THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ^ MANUAL OF PRACTICE IN THE COURTS OF THE UNITED STATES. Embracing the Provisions of the Constitution, the Revised Statutes and Amendments thereto relating to Federal Courts, together with the Rules promulgated by the Supreme Court of the United States. WITH NOTES OF DECISIONS. ROBERT DESTY, Attorney at Law. NINTH EDITION. Revised and brought to date, with the addition of the Rules of the Circuit Courts of Appeals, the Bankruptcy Act, and General Orders in Bankruptcy. BY M. A. FOLSOM, ATTORNEY AT LAW. TOGETHER WITH A VOLUME OF FORMS, Adapted and Referring to this Manual. BY C. H. TEBBS. Attorney at Law, and Solicitor of the Supreme Court of Judicature, England. The Whole in Four Volumes. VOL. 11. SAN FRANCISCO: BANCROFT-WHITNEY CO. LAW PUBLISHERS AND LAW BOOKSELLERS. 1S99. CoPTRiaHT, 1875, Bt SUMNER WHITNEY & CO. COFTBIGHT, 1883, BY SUMNER WHITNEY & CO. (;OPYRTGHT, 1888, Bt BANCROFT-WHITNEY CO, Copyright, 1893, By BANCROFT-WHITNEY CO. . Copyright, 1899, Bt BANCEOFT-WHITNEY co. 703 SUPBEME COUBT— OBGANIZATION. §§ 189-191 CHAPTER XL BITPKEME COURT — OBGANIZATIOW. § 189. Number of justices. § 190. Precedence of the associate justices. § 191. Vacancy in the office of chief justice. § 192. Salaries of justices. § 193. Clerli;, marshal, and reporter. § 194. Deputies of the clerk. § 195. Records of the old court of appeals. § 196. Marshal of the supreme coui't. § 197. Duties of the reporter. § 198. Reporter's salary and price of reports. § 189. Number of justices. — The supreme court of the United States shall consist of a chief justice of the United States and eight associate jus- tices, any six of whom shall constitute a quorum. (Rev. Stats, sec. 673.) § 190. Precedence of the associate justices. — The associate justices shall have precedence accord- ing to the dates of their commissions, or, when the commissions of two or more of them bear the same date, according to their ages. (Rev. Stats, sec. 674.) § 191. Vacancy in the office of chief justice. — In case of a vacancy in the office of the chief jus- tice, or of his inability to" perform the duties and powers of his office, they shall devolve upon the i * ^■»*— vJj— » .<-» ■ §§ 192-194 suPBExrE court— organization. 704 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. (Eev. Stats, sec. 675.) § 192. Salaries of judges. — The chief justice of the supreme court of the United States shall re- ceive the sum of ten thousand five hundred dollars a year, and the justices thereof shall receive the sum of ten thousand dollars a year each, to be paid monthly. (Eev. Stats, sec. 676.) § 193. Clerk, marshal, and reporter. — The su- preme court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions. (Eev. Stats, sec. 677.) § 194. Deputies of the clerk. — 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 dep- uty 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 ofiice of any such deput}', whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties in his official bond shall be liable; and his executor or administrator shall have such remedy for any such default or misfeasance committed af- 705 SUPREME COURT— OBGANIZATION. §§ 195-197 ter his death as the clerk would be entitled to if the same had occurred in his lifetime. (Eev. Stats. sec. 678.) § 195. Records of the old court of appeals. — The records and proceedings of the court of ap- peals, 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 su- preme court; and such copies shall have like faith and credit with all other proceedings of said court. (Rev. Stats, sec. 679.) § 196. Marshal of the supreme court. — The marvshal is entitled to receive a salary at the rate of three thousand five hundred dollars a year. He shall attend the court at its sessions; shall serve and execute all process and orders issuing from it, or made by the chief justice or an associate justice in 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 jus- tice, he may appoint assistants and messengers to attend the court, with the compensation allowed to officers of the House of Representatives of sim- ilar grade. (Rev. Stats, sec. 680.) § 197. Duties of the reporter. — The reporter shall cause the decisions of the supreme court made during his office to be printed and published with- I 198 SUPREME COUBT— ORGANIZATION. 700 in eight months after they are made; and witliin the same time shall deliver three hundred copies of the volumes of said reports to the secretary of the interior. And he shall, in any year, when he is so directed by the court, cause to be printed and pub- lished a second volume of said decisions, of which he shall deliver, in like manner and time, three hundred co])ies. (Rev. Stats, sec. 681.) § 198. Reporter's salary and price of reports. — 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 twelve hundred dollars when, by direction of the court, he causes to be printed and published, in any year, a second volume. 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 Bix hundred dollars. (22 U. S. Stats. 219.) The volumes of said reports shall be furnished by the reporter to the public at a sum not exceeding two dollars per volume, and the number of volumes now recjuired to be delivered to the secretary of the interior shall be furnished by the reporter without any charge therefor. (Act of Feb. 12, 1889, ch. 135, sec. 2; 1 Siipp. 374.) 707 SUPKEMJE CXJUBT — aEBtJlONS. §§ 199-300 CHAPTER XII. BTJPKEME COUET— SESSIONS. § 199. Terms. § 200. Adjournment for want of a quorum. § 201. Preparatory orders made by less than a quorum. § 199. Terms. — The supreme court shall hold at the seat of government one term annually, com- mencing on the second Monday in October, and such adjourned and special terms as it may find necessary for the dispatch of business; and suits, proceedings, recognizances, and processes pending in or returnable to said court shall be tried, heard, and proceeded with as if the time of holding said sessions had not been hereby altered. (Eev. Stats. sec. 684.) § 200. Adjournments for want of quorum. — 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 the 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 5 201 SLPREME COURT — SESSIONS. 708 may adjourn the court from day to day until there is a quorum, or may adjourn without day. (Rev. Stats, sec. 685.) § 201. Preparatory orders made by less than a quorum. — 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, pro- ceeding, or process depending in or returned to the court, preparatory to the hearing, trial, or decision thereot. (Kev. Stats, sec. 686.) 709 SUPBEME COUSX— JUBISDICTIOW, CHAPTER XIII. SUPREME COUKT— JURISDICTION. § 202. Original jurisdiction. § 203. Writs of proliibition and mandamus. § 204. Issues of fact. § 205. Appellate jurisdiction. § 206. Appeal from district and circuit courts, how regulated. § 207. Appeals direct to supreme court from district and circuit courts. § 207a. Appeals to supreme court from circuit court of appeals. § 208. From Indian Territory. § 209. Appeals in prize causes. § 210. Appeals in prize causes remaining in circuit courts. § 210a. Appellate jurisdiction in bankruptcy cases. § 210b. Writs of error and appeals in banliruptcy matters. § 211. Transcripts on appeal. § 212. Cases where questions of jurisdiction only re- viewed, without reference to amount. § 213. Judgment or decree on review. § 213 a. Remanding causes. § 214. Writs of error and appeals from territorial courts. § 215. Utah. § 216. Territorial courts— procedure on appeal. § 217. When a territory becomes a State after judg- ment or decree in territorial court. § 218. Judgments and decrees of district courts in cases transferred from territorial court. Fed. Proc— 60. ^ 202 SUPREME COURT— JURISDHTIOX. 710 § 219. Judji'ments and decrees of court of appeals of District of Columbia. § 220. Certiorari to court of appeals of District of Columbia. § 221. Appeals from the court of claims. § 222. Time aud manner of appeal from the court of claims. § 223. Judgment and decrees of State courts on writs of error. § 224. Precedence of writs of error to State courts in criminal cases. § 202. Original jurisdiction. — The supreme court shall have exclusive jurisdiction of all con- troversies of a ci\il 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 ex- clusive jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against enil)a.ssadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have consistently with the law of nations, and original, but not exclusive, jurisdiction of all suits brought by embassadors, or other public ministers, or in which a consul or vice-consul is a party. [See sees. 4063-40G6.] (U. S. Const, art. iii, sec. 2, cl. 2; Eev. Stats, sec. 687.) Note.— See Fowler v. Lindsey. 3 Dall. 411; Marbury v. Madison, 1 Cranch, 137; Cohens v, Virginia, 6 "Wlieat. 204; Osborn v. Bank, 9 Wheat. 738; Florida V. Georgia. 17 How. 478; Kentucky v. Dennison, 24 IIow. ()o; Mississippi v. .Johnson, 4 Wall. 475; Pooley v. Luco, 70 Fed. Rep. 140. 711 SUPREME COURT— JURISDICTION. § 202 Jurisdiction of supreme court in general. — The su- preme court has no jurisdiction except that given by the Constitution or laws of the United States. (Ex parte Bollman, 4 Cranch, 75.) An action without the limits prescribed is coram non judice, and its action a nullity. (Khode Island v. Massachusetts, 15 Peters, 233; S. C, 12 Peters, 657.) A proceeding to obtain a mandamus is an action at law between the parties, and is not regarded as a prerogative writ. (Com. v. Dennison, 24 How. 60; Com. v. Boutwell, 13 Wall. 526.) The supreme court has no original jurisdiction where a private person, an alien, seelis to obtain redress for a wrong done him by another private per- son, who is a citizen. (Ex parte Barry, 2 How. 65.) So an indictment against a private person for an in- sult upon an embassador or public minister is not a case aftecting such embassador or minister. (U. S. V. Ortega, 11 Wheat. 467.) In the absence of any leg- islation of Congress as to the process and mode of procedure where the supreme court has original juris- diction, the court itself may prescribe the mode and form of procedure. (Florida v. Georgia, 17 How. 478; Chisholm v. Georgia, 2 Dall. 419; New Jersey v. New York, 5 Peters, 284; Com. v. Dennison, 24 How. 66.) In cases tried by the supreme court, if for any reason justice requires it, the supreme court may simply reverse and direct a new trial, although there are no findings of fact or agreed statements (City of St. Eouis V. Western Union Tel. Co., 148 U. S. 92). This section defines the original jurisdiction of this court, and designates the subjects for its exercise where a State is complainant. (Wisconsin v. Pelican Ins. Co., 127 U. S. 265.) Where State is party.— The original jurisdiction of the supreme court refers to cases in which an original suit might be instituted in the Federal courts, and not to cases between a State and its citizens, or § 202 supreme: court — jurisdiction. 712 where a State is enforcing its penal laws. (Cohens V. Virginia, 6 Wheat. 2CA.) It must be a case in which the State is either nominally or substantially a party (Fowler v. Lindsey, 3 Dall. 411); it must be a party on the record. (Bank v. Planters' Bank, 9 Wheat. 904.) It has no original jurisdiction over suits brought by any other political division than a State of the Union (Texas v. White, 7 Wall. 700); nor has it jurisdiction over questions of a political character. (State V. Stanton, 6 Wall. 50; Cherokee Nation v. State, 5 Peters, 1.) So, an Indian tribe is not a for- eign state, and cannot institute a suit in the supreme court. (Cherokee Nation v. State, 5 Peters, 1.) The supreme court is the arlnter of controversies between States (Chancely v. Bailey, 37 Ga. 532); as in ques- tions of boundaries (Florida v. Georgia, 17 How. 478; Missouri V. Iowa, 7 How. 6(30; Alabama v. Georgia, 23 How. 505; Virginia v. West Virginia, 11 Wall. 39; Rhode Island v. Massachusetts, 12 Peters, 657; 15 Peters, 2.33; State of Virginia v. State of Termessee, 148 U. S. 503; United States v. State of Texas, 143 U. S. 6211, and the rules of practice and proceedings in such cases will be molded to bring it to final hear- ing on its real merits. (Rhode Island v. Massachu- setts, 14 Peters, 210.) A private person cannot com- mence a suit against a State to recover the proceeds of property in its possession (Ex parte Madrazzo, 7 Peters, 627) ; and the fact that land has been granted by and is claimed under a State does not make the State a party to the controversy between private persons concerning the land. (Fowler v. Lindsey, 3 Dall. 411.) The supreme court cannot take jurisdic- tion of a suit Iwtwoen a State and citizens of another State and its own citizens (State of California v. Southern Pac. Co., 157 U. S. 229); nor can a State prosecute a suit in the supremo court on the ground of any remote or contingent interest in itself (State V. Wheeler Bridge Co., 13 How. 518); nor tile a bill 713 SUI'KEME COURT— JUKISDICTION. § 203 to enjoin the President in the performance of his official duties. (State v. Johnson, 4 Wall. 475.) Where a State brings a suit, the bill is filed by the governor on behalf of the State. (Georgia v. Brailsford, 2 Dall. 402; Com. v. Dennison, 24 How. 66.) It may- file a bill on a bond on which the obligee has ob- tained judgment in the circuit court. (Georgia v. Brailsford, 2 Dall. 402.) When a State is defendant, summons served on the governor and attorney-gen- eral is sufficient (Chisholm v. Georgia, 2 Dall. 419; Grayson v. Virginia, 3 Dall. 320); and it is entitled to a longer time to answer than an individual. (Rhode Ishand v. Massachusetts, 13 Peters, 23.) If it fails to appear on the return day, the adverse party may proceed (Ex parte Huger v. South Carolina, 3 Dall. 339; New Jersey v. New York, 5 Peters, 284); and so if it withdraws its appearance. (Rhode Island v. Massachusetts, 15 Peters, 233; S. C, 12 Peters, 657). Where there are indispensable parties that are not made parties to a suit in equity in the supreme court, and the making them parties would oust its juris- diction, the suit will be dismissed (State of Califor- nia V. Southern Pac. Ry. Co., 157 U. S. 229). § 203. Writs of prohibition and mandamus. — The supreme court shall have power to issue writs of prohibition to the district courts when proceed- ing as courts of admiralty and maritime jurisdic- tion; and writs of mandamus in cases warranted by the principles and usages of law, to any courts ap- pointed under the authority of the United States, or to persons holding office under the authority of the United States, where a State or an embassador, or other public minister, or a consul or vice-consul, is a party. (Kev. Stats, sec. 688.) Prohibition. — A writ of prohibition will be issued only in case of a want of jurisdiction either of the §203 SUPREME COURT— JURISDICTION. 714 parties or of the subject matter of the proceeding (Morrison v. District Court, 147 U. S. 14; re Eliza- beth Encrles. 140 U. S. 357). Tlie writ of prohibition provided for in the above section is the common-law writ; its office is to prevent an unlawful assumption of jurisdiction, and not to correct mere errors and irregularities (Ex parte Cooper, 143 U. S. 472). Be- fore judgment the court above can examine on pro- hibition not simply the process and pleadings in the record, but the facts in evidence; but after judgment the record proper only should be looked into, and not the evidence, except in extraordinary cases (Ex parte Cooper, 143 U. S. 472). When a writ of prohibi- tion is applied for, the question presented is not whether liljelant can recover on the suit he has be- gun, but whether he can go into a court of admiralty to have his rights determined. (Ex parte Gordon. 3 Morr. Trans. 433.) Where the question of jurisdiction was one proper to be decided by the admiralty court subject to the remedy by appeal, the writ will be denied (Ex parte Gbrdon, 3 Morr. Trans. 433); as in the case of a suit for pilotage claimed to be due un- der a statutory regulation (Ex parte Hager, 3 Morr. Trans. 438); or a suit for damages for death in a col- lision. (Ex parte Gordon, 3 Morr. Trans. 433. See ex parte (iordon, 1 Blacli, 503.) A writ of prohibition will not be issued after the libel has been dismissed. (U. S. V. lloflman, 4 Wall. 158.) If the district court entertains a libel in personam to recover damages for a seizure as prlzewhen the prize has been talien intoa foreign port, the writ will issue. (U.S. v. Peters, :{ Dall. 121.) Whether the district court has transcended its jurisdiction depends on the facts stated in the record. (Ex parte Easton, 95 U. S. 68.) It cannot be issued to regulate proceedings of the district court as a court of bankruptcy. (In re Christy, 3 How. 292.) It can issue the writ only under special authority of 715 SUPREME COURT— JURISDICTION. § 203 law. (Ex parte Gordon, 1 Black, 503; In re Christy, 3 How. 292.) It cannot be issued to restrain a pro- ceeding on bill of review, as on condemnation of land under confiscation laws (Ex parte Graham, 10 Wall. 541); nor can the writ issue to restrain the execu- tion of a sentence for crime of one convicted in the circuit court (Ex parte Gordon, 1 Black. .503); nor re- strain a proceeding by bill in equity to determine the right to an elective office. (Ex parte Warmouth, 17 Wall. 64.) This court may proceed by way of prohi- bition in respect to the district court for the district of Alaska. (Re Cooper. 138 U. S. 404. See Farns- worth V. Montana, 129 U. S. 104.) The writ may be issued to the district court in a case in admiralty and marilime cognizance, in which it has no jurisdic- tion. Ex parte Easton, 95 U. S. 68; United States v. Peters, 3 Dall. 121.) Where the case has gone to sentence and the want of jurisdiction does not ap- pear upon the face of the proceedings, the granting of the writ is not obligatory upon the court, and the party applying may be precluded by acquiescence from obtaining it (Ex parte Cooper, 143 U. S. 472). Is- sues of fact on which the question of jurisdiction de« pends, raised by a petition of intervention and an answer thereto, are not sufficient grounds for a writ of prohibition against enforcing or proceeding further in orders or decrees previously made in the suit. (Re Gustave Alix, 166 U. S. 136.) Mandamus, office of writ. — The office of a writ of mandamus is to compel the performance of a plain and positive duty (Ex parte Cutting, 94 U. S. 14). and is the only adequate mode of relief where an inferior court refuses to act (Life & F. Ins. Co. v. Wilson, 8 Peters, 291), or where the exercise of the discretion of the court is irregular, against law, of flagrant injustice, or without jurisdiction. (Ex parte Bradley, 7 Wall. 364.) The writ may be issued to supervise g 203 SUPREME COURT — JURISDICTION. 716 proceeding iu inferior tribunals where there is a legal right without an existing remedy (Ex parte Bradley, 7 Wall. o7Gj; but it is never granted in anticipation of an omission of duty, but only after actual default. (Ex parte Cutting, 94 U. S. 14.) It may issue to com- pel a court to proceed with the case (Insurance Co. V. Comstoclj, IG Wall. 25S; Railroad Co. v. Wiswall, 23 Wall. 507); or to take jurisdiction of a case dis- missed for want of jurisdiction (Re Ilohorst, 150 U. S. 653); or to remand a case (Ex parte Virginia, 100 U. S. 339); or to reinstate a case (Ex parte Bradstreet, 7 Peters, 034); or to entertain a motion in a case (Ex parte Russell, 13 Wall. G64); or to proceed to judgment; but a plain case must be made out. (Life & F. Ins. Co. V. Adams, 9 Peters, 571.) If the circuit court possess an order staying a suit, mandainus is the remedy. (Livingston v. Dorgenois, 7 Cranch, 577.) A writ of mandamus may be issued to compel an in- ferior tribunal to decide a case, but it cannot direct the manner in which to decide or indicate the char- acter of the judgment. (Life & F. Ins. Co. v. Adams, 9 Peters. 571; United States v. Addison, 22 How. 174; see Ex parte Burtis, 103 U. S. 238; Re Parsons, 150 TJ. S. 150; Morrison v. District Court, 147 U. S. 14.) The court will not, by mandamus, compel an inferior court to reverse a decision. (Ex parte Perry, 102 U. !S. 183.) If a court renders a judgment of dis- missal for want of jurisdiction, but refuses to enter it, mandamus lies to compel the entry (Ex parte Brad- street, (■> Peters. 774); and if the judge dies before signing the judgment, his successor may be compelled by mandamus to do so. (Life al is granted "solely upon the question of jurisdiction," and directs the portions of the record to be certified to the supreme court to present that question (Shields V. Coleman. 157 U. S. 16S; Smith v. McKay, IGl U. S. 355). T\ here the record shows that the only matter tried and decided was a demurrer to the plea to the jurisdiction, and the petition on which the writ of error was allowed asks for a review of the judgment that the circuit court had no jurisdiction, the ques- tion is sufficiently certified (Interior Construction & Impr. Co. V. Gibney, IGO U. S. 217). In the absence of any certificate, of the question of the jurisdiction of the circuit court, its order entered Nov. 28, 1891, dismissing a case for lack of jurisdiction, is not sub- ject to review on writ of error from the supreme court (Davis v. Goisslor, 1G2 U. S. 290). Where the jurisdiction of the lower court is in issue and the case is certified for decision the certificate must be granted during the term at which the judgment or decree is rendered (Colvin v. Jacksonville, 158 U. S. 450). A party whose suit has been dismissed by the U. S. circuit court for want of jurisdiction has the I'iglit to have such judgment reviewed by the supreme court (Wetuiore v. Uyiiier, 169 U. S. 115). Where the question is as to the jurisdiction of the court in equity based on the alleged existence of a complete remedy at law, the question cannot be certified to the supreme court, for the question in such case is not to the want of power, but to the want of equity 731 SUPREME COURT— jukiSdiction. § 207 (Smith V. McKay, IGl U. S. 355). The statute does not authorize a direct appeal to the supreme court on a question involvini,^ tlie jurisdiction of the circuit court over another suit previously determined in the same court (Carey v. Houston & T. C. R. Co., 150 U. S. 170; Ex parte Lennon, 150 U. S. 393). The only question that can be considered in the supreme court when the question of the jurisdiction of the trial court is cer- tified is that of its jurisdiction. (Schunk v. Moline M. & S. Co., 147 U. S. 500; Re Lehigh M. & M. Co., 156 U. S. 322; Greeley v. Lowe, 155 U. S. 58; May- nard v. Hecht, 151 U. S. 324; Mexican Cent. Ry. Co. V. Pinliney, 149 U. S. 194.) (2) In case of conviction of capital crime. — In the original act creating the circuit court of appeals (20 U. S. Stats. 827) the supreme court had jurisdic- tion of cases brought directly from the circuit and district courts where the cases involved a conviction of a capital or other infamous crime. This provision was subsequently amended so as to withdraw from the supreme court jurisdiction over infamous crimes not capital, and to confer it upon the circuit courts of appeals (29 U. S. Stats. 492). At present, therefore, appeals may be taken directly to the supreme court only in such criminal cases as are capital. (Id.) Ap- peals from habeas corpus proceedings can no longer be taken directly to the supreme court in criminal cases, except in the cases mentioned in the section 5 of the act of 1891 (Cross v. Burke, 146 U. S. 82; re James Lennon, 150 U. S. 393). The final judgment of a court in case of conviction of capital or other- wise infamous crime is revicAvable only upon writ of error and not by appeal (Bucklin v. United States, 159 U. S. 680). (3) When Federal question is involved.— When an appeal is taken to the supreme court direct on § 207 SUPREME COURT— JURISDICTION. 732 the ground that a Federal question is involved, and an appeal is also taken to the circuit court of ap- peals, the latter court will stay its hand until the appeal in the supreme court is disposed of (Pullman's Palace Car Co. v. Central Trans. Co., 83 Fed. Rep. 1), A party in the circuit court may resort to the supreme court for a determination of a constitutional question, and while such appeal is pending may ap- peal to the circuit court of appeals upon the 01 her questions involved. (Pullman's Palace Car Co. V. Central Transp. Co., 39 U. S, xVpp. 307; 76 Fed. Rep. 401.) An appeal from a decision of a circuit court involving a question of the United States consti- tutionality of a State statute is within the jurisdic- tion of the supreme court (Hastings v. Ames, 32 U. S. App. 485; G8 Fed. Rep. 720.) Where the only question arising in tlie circuit court under a treaty was as to whether the petitioner was seeking an asylum in the "United States, and no question as to the con- struction or validity of the treaty was involved, an appeal directly to 'the supreme court was not permis- sible (In re NeAvraan. 79 Fed. Rep. 615). When no construction or application of the constitution was either expressed or asked in the circuit court, a cast cannot be carried directly to the supreme court of the United States from the circuit coui't (Cornell v. Green, 103 U. S. 75). In a case before the supreme court on the ground that a constitutional question is involved, it has jurisdiction of the entire case and of all questions involved in it (Scott v. Donald, 165 U. S. 58; Cliappell v. United States, 159 U. S. 698; IJornor v. United States. 143 U. S. 570; Holder v. Aultman, Miller & Co., 109 U. S. 81). The supreme court does not gain jurisdiction because the circuit court directed the jury to find for defendant, and be- cause it is claiuK'd plaintiff is thereby deprived of the right of trial by jury. (The Ti'eat Mfg. Co. v. Stand- .733 SUPREME COURT— JURISDICTION. § 207 ard Steel & Iroii Co., 157 U. S. 074). An appeal lies directly to the Supreme Court from the final decision of a circuit court upon habeas corpus in case of any person alleged to be restrained of his liberty in viola- tion of the Constitution of the United States (Mc- Kane v. Durston, 153 U. S. G84). Where the construc- tion of a treaty between the United States and Mex- ico is drawn in question in a final order of the district court discharging persons from custody in extradition proceedings, an appeal may be taliexi dii'ectly to the su- preme court. (Omelas v. Ruiz. 161 U. S. 502.) Where a case involves the constitutionality of a law of the United States, it is within the appellate jurisdiction of the supreme court. (Horner v. United States, 143 U. S. 570.) The constitutional question need not have been upheld or denied in the lower court in order to give the supreme court jurisdiction. (Holder V. Aultman, Miller & Co., 169 U. S. 81.) The fact that the claim that the State law violates the Constitution of the United States is not well founded does not de- prive the supreme court of jurisdiction. (Penn Mu- tual Life Ins. Co. v. Austin, 168 U. S. 685.) The claim that a city ordinance violates the Constitution is as good for jurisdiction purposes as the claim that a State statute so violates it. (Penn Mutual Life Ins. Co. V. City of Austin. (108 U. S. 685.) The jurisdic- tion of the court of appeals attaches upon the filing of the writ of error in the office of the clerli of the circuit, and is not defeated by irregularity in the transcript or in its certification. (Burnham v. North Chicago St. Ry. Co., 87 Fed. Rep. 108.) An appeal and supersedeas do not oust the jurisdiction of the lower court or preclude collateral or independent pro- ceedings. (Fidelity Trust & Safety Vault Co. v. Mo- bile St. Ry. Co., 54 Fed. Rep. 20.) The circuit court of appeals has no jurisdiction to review a judgment ren- dered before the act creating that court was passed, Fed. Pkoc. - 62. § 207a SUPREME COURT— JURISDICTION. 734 where the amount claimed was too small to give juris- diction to the supreme court. (United States v. Na- tional Exch. Bank, 9 U. S. 145; 53 Fed. Rep. 9.) In an admiralty case the decree of a circuit court on appeal was renewable in the circuit courts of ap- peals, where the appeal to the circuit court was talcen prior to July 1, 1S91. (Tlie Mattauo, 8 U. S. App. Ill; 52 Fed. Rep. 876.) § 207a. Review by supreme court of decisions of circuit court of appeals. — The circuit courts of appeals established by this act shall exercise appel- late jurisdiction to review, by ap)peal or by writ of error, final decisions in the district court, and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law, and the Judg- ments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States, or citizens of different States; also in all cases arising under the patent laws, un- der the revenue laws, and under the criminal laws, and in culniiralty cases, excepting that in every such subject within its appellate jurisdiction the circuit court of appeals at any time may certify to the su- preme court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision. And thereupon the supreme court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the cir- cuit court of appeals in such case, or it may require 735 SUPREME COURT— JUKISDICTION. § 207a that the wtiole record aud cause may be sent up to it for its consideration, and thereupon shall de- cide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. And excepting also that in any such case as is hereinbefore made final in the circuit court of appeals, it shall be com- petent for the supreme court to require, by cer- tiorari or otherwise, any such case to be certified to the supreme court for its review and determina- tion with the same power and authority in the case as if it had been carried by appeal or writ of error to the supreme court. In all cases not hereinbe- fore, in this section, made final, there shall be of right an appeal or writ or 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 ap- peal shall be taken or writ of error sued out unless within one year after the entry of the order. Judg- ment, or decree sought to be reviewed. (26 U. S. Stats. 828, sec. 6.) Judgments final in circuit court of appeals. — Where a decree of the circuit court of appeals is final in the main suit, decrees in accessory and subordinate proceedings are also final. (Gregory V. Van Ee, 160 U. S. 643; Rouse v. Letcher. 156 U. S. 47.) Where one judge of the circuit court of appeals is disqualified and the other two are divided in opin- ion, and the judgment of the circuit court of appeals is not "final" it is not necessary for that court to order a reargument before a full bench nor proper to certify questions to the supreme court for instruc- tions. (Texas & Pac. R. Co. v. Gentry, 13 U. S. App. § 207a SUPREME COURT— JURISDICTION. 736 531; 57 Fed. Rep. 422.) In cases in which the juris- diction of the circuit court of appeals is not made final there is a right of appeal or writ of error by su- preme court where the matter in controversy exceeds $1,000, besides costs. (Northern Pac. Ry. Co. v. Amato, 144 U. S. 465.) (1). When diverse citizenship is only ground.— When diverse citizenship is tlie only ground of juris- diction the judgment of the circuit court of appeals is final. (Press. Pub. Co. V. Monroe. IGl U.S. 105 .American Construction Co. v. Jacksonville T. & K. W. Ry. Co., 148 U. S. 372; Benjamin v. City of New Orleans, 1G9 U. S. l(Jl; Rouse v. Letcher, 15G U. S. 47; Colorado Cent. Cons. Co. v. Turck, 150 U. S. 138; Roscoe v. Hornsby, 161 U. S. 588.) And this is so even though defendant invokes the Federal Constitution and laws. (Press. Pub. Co. v. Monroe, li54 U. S. 105.) Where a court had jurisdiction of a suit only upon the ground of diverse citizenship, and the court's juris- diction over an ancillary suit depended only upon its jurisdiction over the original suit, the decree of the circuil court of appeals is final. (Carey v. Hous- ton & Tex. Cent. Ry. Co., 101 U. S. 115; Rouse v. Letcher. 150 U. S. 47.) If the circuit court of appeals had jurisdiction of the cause not alone on the ground of diverse citizensliip, but on the further ground that a Federal question was involved, the judgment of tlie circuit court of appeals was not final. (Northern Pac. Ry. Co. V. Amato, 144 U. S. 405; Union Pac. Ry. Co. V. Harris, 158 U. S. 320.) But if the jurisdiction of the circuit court of appeals was originally invoked upon the sole ground of diverse citizenship, its judg- ment is final, even if another gi-ouud was developed in the course of the proceeding. (Charles F. .Jones, 104 U. fcs. O'Jl; Borguieyer v. Idler, 150 U. S. 408.) 737 SUl'REME COURT— JURISDICTION. § 207a (2). Cases arising under revenue laws. — The judg- ments of the cii'cuit court of appeals are tiual in cases arising under tlie revenue laws. (Hubbard v. Soby, 14G U. S. 56.) A judgment of the circuit court on appeal fr()m a decision of the board of general ap- praisers is one arising under the revenue laws. (United States v. Hopewell, 5 U. S. App. 137; 51 Fed. Eep. 798.) (3). Cases arising under patent laws. — A suit by the United States to cancel a patent for an invention is not a case arising under the imtent laws, and such a suit is not final in the circuit court of appeals. (United States v. American Bell Tel. Co., 159 U. S. 548.) (4). Cases arising under criminal laws. — A writ of scire facias upon a forfeited recognizance to se- cure the appearance of a person to answer to a charge of embezzlement is a case arising under criminal laws. (Hunt v. United States, 1G6 U. S. 424.) Certification of questions to supreme court by cir- cuit court of appeals. — The circuit court of appeals will not certify the questions in a case to the supreme court, except before it decides them and upon its own motion. (Andrews v. National Foundry & P. Co., 46 U. S. App. 619; 77 Fed. Rep. 774; Lornville N. A. & C. Ry. Co. V. Pope, 46 U. S. App. 25; 74 Fed. Rep. 1.) An application to certify certain questions to the su- preme court for decision will be denied where the case presents no peculiarities rendering such action appropriate. (The Horace B. Parke, 33 U. S. App. 503; 74 Fed. Rep. 640; Fabre v. Cunard Steamship Co., 11 U. S. App. 616; 59 Fed. Rep. 500.) A circuit court of appeals will not withhold a decision of other questions presented for review in a case because on one out of many it desires the opinion of the supreme g 207a SUi'HEME COURT— JUKlSI)lCTIO>J. 738 court. (Sigafus v. Torter, 5(3 U. S. App. 62; 84 Fed. Rt'p. 430.) Certification canuot be granted where the mixed issues of law and fact could be reviewed sat- isfactorily only upon examination of the entire rec- ord. (Fabre v. Cuiiard Steamship Co., 11 U. S. App. 616; 59 Fed. Rep. 5(JU; Warner v. City of New Or- leans, 167 U. S. 407; Graver v. Faurot, 162 U. S. 435; Cross V. Evans. 107 U. S. 00.) In order to involve the exercise of the jurisdiction in the supreme court in the instruction of the circuit court of appeals, the questions or propositions of the law the proper deci- sions of which instruction is asked, must be clearly and distinctly certified, and the certificate must show that Instruction is desired. (Columbus Watch Co. v. Kobi)ins. 148 U. S. 200; United States v. Union Pacific Ry. Co., 108 U. S. 505; McMenry v. Alford, 168 U. S. 651; Cross v. Evans. 167 U. S. 00.) The assertion of a difference of decision between two circuit courts of appeals upon the same facts, and of a wish that it mi.nht be determined by the supreme court is not equivalent to the 'expression of a desire for instruc- tion as to the proper decision of a specific question or questions requiring determination in the proper dispo- sition of the case. (O)lumbus Watch Co. v. Robbing, 148 U. S. 206.) A certificate of propositions of law is irregular where a quorum of the circuit court of appeals which desires instruction does not sit in the case. (Cincinnati, H. & D. R. Co. v. McKeen, 149 U. S. 25!).) The certificate should contain a proper statement of the facts on wliicli the questions or prop- ositions of law arise. (Cincinnati, H. & D. R. Co. v. McKeen. 140 U. S. 259.) The whole record should not be transmitted to the Supreme Court. (Cincin- nati, II. & D. R. Co. V. McKeen. 149 U. S. 259; Graver V. Faurot, 102 U. S. 435.) Questions certified by the circuit court of appeals will not.be considered when other separate and distinct propositions of law not 731) SUPREME COURT— JURISDICTION. § 207a expressly referred to in the certificate are essential to be passed upon in considering the general ques- tions certified. (Cross v. Evan's, 167 U. S. 60; United States V. Union Pac. Ry. Co., 108 U. S. 505.) For a case which was of a nature to be certified, see Na- tional Ace. Soc. V. Spiro. 37 U. S. App. 639; 71 Fed. Rep. 897.) Section 6 of the act of Congress of March 3, 1891, establishing the circuit court of appeals, making its decision final in certain cases, but pro- viding tliat the supreme court may require any such case to be certified to it for instructions, does not re- quire the appellate court to certify any question for review by the supreme court, which identical ques- tion had been already decided by the supreme court. (Lau Ow Bew v. United States, 7 U. S. App. 1; 47 Fed. Rep. 641.) Certiorari to compel circuit court of appeals to certify cases. — The jurisdiction of the supreme court to require, by certiorari or otherwise, a case to be certified from the circuit court of appeals to the supreme court for its review and determina- tion, should be exercised only in cases of grav- ity and importance, or in order to secure uni- formity of decision. (American Const. Co. v. Jaciv- sonville, Tampa & Key West. 148 U. S. 372; Forsyth V. Hammond, 166 U. S. 506; United States v. Three Friends, 166 U. S. 1; In re John Woods, 143 U. S. 202; Lau Ow Bew, 144 U. S. 47; Smith v. Vulcan Iron Worlis, 165 U. S. 518.) The power of the supreme court to compel the certification of a case to it by the circuit court of appeals is not affected by the condi- tion of the case as it exists in the latter court, but may be exercised before or after any decision by that court, and irrespective of any ruling or determination therein. (Forsyth v. Hammond, 166 U. S. 506.) Certiorari is the proper remedy to review a decision of the circuit court of appeals dismissing, for want § 207a SUPKEMK COURT— JUKI SDICTION. 740 of juvisdiction, a case within tlie class of cases in which the juda-ment is made final. (Kingman & Co, V. Western Mlg. Co., 170 U. S. 675; American Const. Co. V. Jaclisonville, T. & K. W. Ky. Co., 148 U. S. 372.) The effect of a certiorari, when awarded by the supreme court in a case decided by the circuit court of appeals is to suspend any action that might be talceu by that court, or by the trial court in obedi- ence to its mandate; but it does not restore jurisdic- tion to the trial court, nor give such court authority to set aside orders legally and properly made in obe- dience to the mandate of the circuit court of appeals before the writ of certioi-ari was awarded. (Louis- ville, N. A. & C. Ky. Co. v. Louisville Trust Co., 78 Fed. Rep. G59.) The judgment of the circuit court of appeals need not be a final judgment in order to be reviewed by certiorari; it is within the discretion of the supreme court to determine at what stage of the proceedings the case should be required to be sent up for review. (American Const. Co. v. Jacksonville, T. & K. W. Ry. ,Co., 148 U. S. 372.) But certiorari should not issue to review an interlocutory order, unless it is necessary to prevent extraordinary incon- venience in the conduct of the cause. (American Const. Co. V. Jacksonville etc. Ry. Co., 14S U. S. 372.) The exclusion of a Chinese merchant under the Chi- nese exclusion act, notwithstanding satisfactory evi- dence of tiis status as a merchant here, presents a question of such impoi'tance as will justify the su- preme court in requiring the circuit court of appeals to certify the case to it for review. (Lau Ow Bew, 141 U. S. 583.) If the case is one from which an ap- peal will lie from the circuit court of appeals to the supreme court, certiorari will not issue to review the judgment of the former court. (Re Tampa Sub- urban Ry. Co., 1G8 U. S. 5S3.) The whole case is open for examination when the supreme court issues a 741 SUPREME COURT— JUKISDICTION, § 207a writ of cortiorari to bring up the whole record. (Pan- ama Ry. Co. V. Napier Shipping Co., 16G U. S. 280.) The fact that the mandate of the circuit court of ap- peals has gone down does not preclude a writ of cer- tiorari from the supreme court to review the decision of a circuit court of appeals. (The Conqueror, 166 U. S. 110.) Certiorari will issue to review judgments in contempt proceedings rendered in excess of ju- risdiction if there is no other adequate I'emedy. (Ex parte Chetwood, 165 U. S. 443.) An application for a certiorari to review a decree of the circuit court, entered after the adjournment of the supreme court for the term, is made with reasonable promptness if, during the next terai of the court and within a year after the original decree. (The Conqueror, 166 U. S. 110.) Appeals from circuit court of appeals to supreme court.— The judgment of the circuit court of appeals is not final where the jurisdiction of the circuit court did not depend upon diverse citizenship of parties, but upon the fact that the suit arose under a law of the Uniteil States. (Northern Pac. Ey. Co. v. Amato, 144 U. S. 465; Union Pacific Ry. Co. v. Harris, 158 U. S. 326.) A writ of error from the supreme coart does not lie to review a judgment of the circuit court of appeals which is not a final judgment, by virtue of the last clause of section 6, act 1891, creating circuit courts of appeals. (MacLeod v. Graven, 47 U. S. App. 673; 79 Fed. Rep. 84; Lutcher v. United States, 157 U. S. 427.) The mandate of the circuit court of ap- peals which has gone down need not be recalled in order to appeal to the supreme court in cases not final in the circuit coiirt of appeals. (Ritter v. Mu- tual Life Ins. Co., 39 U. S. App. 189; 72 Fed. Rep. 567.) An appeal will lie to the supreme court in cases not final in the circuit court of appeals, where the matter in controversy exceeds $1,000, besides costs. g 208 SUPKEME COURT— JUKISDICTIOX. 742 (Northern Tac. Ry. Co. v. Amato, 144 U. S. 465; U. S. V. Wanamaker, 147 U. S. 149.) The matter in contro- versy must have actual value and cannot be supplied on speculation. (Huntington v. Saunders, 163 U. S. 319.) The stipulation of the parties as to the amount in controversy is not controlling, but may be taken into consideration. (U. S. v. Trans-Missouri Freight Assn., 166 U. S. 290.) If the decree fail to specify the sum for which it is given, it is final. (Texas & Pac. Ey. Co. V. Gentry, 163 U. S. 353.) An appeal from a decree of a circuit court which affirms its own prior decree in obedience to a mandate from the circuit court of appeals, is not an appeal from the latter court, but from the circuit court, of which the su- preme court has no jurisdiction. (Webster v. Daly, 163 U. S. 155.) Time for appeal.— A rule limiting the time for an appeal is applicable to a case already decided. (He Philip Hien, 166 U. S. 432.) Where a motion for a re- hearing is made -in season and entertained by the court the decree does not take final effect for the purposes of an appeal, until the motion is disposed of. (Voorhees v. Noye Mfg. Co., 151 U. S. 135; Aspen Min. & Sm. Co. v. Billings, 150 U. S. 31.) § 208. Appeals from Indian Territory direct to supreme court. — Appeals shall be allowed from the I'liiU'd .States courts in the Indian Territory direct to the supreme court of the United States to either party in all citizenship cases, and in all cases be- tween either of the Five Civilized Tribes and the United States, involving the constitutionality or validity of any legislation affecting citizenship, or the allotment of lands, in the Indian Territory, un- der the rules and regulations governing appeals to 743 SUPREME COURT— JURISDICTION. § 209 said court in other cases; provided, that appeals in eases decided prior to this act must be perfected in one hundred and twenty days from its passage; and, in cases decided subsequent thereto, within sixty days from final judgment; but in no such case shall the work of the Commission to the Five Civ- ilized Tribes be enjoined or suspended by any pro- ceeding in,' or order of, any court, or of any judge, until after final judgment in the supreme court of the United States. In case of appeals, as aforesaid, it shall be the duty of the supreme court to advance such cases on the docket and dispose of the same as early as possible. (30 U. S. Stats. 591.) § 209. Appeals in prize causes.— An appeal shall be allowed to the supreme court from all final decrees of any district court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars; and shall be allowed, without reference to the value of the matter in dispute, on the certificate of the district judge that tlie adjudication involves a question of general importance. And the supreme court shall receive, hear, and determine such appeals, and shall always be open for the entry thereof. (Eev. Stats, sec. 695.) [See sec. 1009.] Appeals in prize cases. — A new^ claim cannot be introduced in the supreme court, but may be filed in the circuit court when the cause is remanded. (The Societe, 9 Cranch, 209; The Harrison, 1 Wheat. 298.) Wliere the facts did not show it to be a prize case, but a case of forfeiture, the case will be remanded. §§ 210-210a SUPREME COURT— JUniSDICUON. 744 (U. S. V. Weed, 5 Wall. 62; The Watchful, 6 Wall. 91.) If the district court in a prize case wrongfully al- loAvs or denies the order for further proof, and ob- jection is taken, the supreme court can administer the proper relief (The PizaiTo, 2 Wheat. 227); so if a claim is dismissed, claimant may appeal (Withen- buiy V. U. S., 5 Wall. 819); but a party who does not appeal can raise no objection, although another party appeals. (The Amiable Nancy, 3 Wheat. 546.) Where the objection that the libel is not brought in the name of the United States is not raised by the pleadings, it will not be entertained. (Jecker v. Montgomery, 18 How. 111.) A case carried into a circuit court before the act of 1863 is properly here on appeal from the circuit court. (The Admiral, 3 Wall. 603.) Appeal lies from a final decree in a prize cause, and the whole matter in controvei'sy can be disposed of, leaving nothing to be litigated between the parties. (Withenbury v. U. S., 5 Wall. 819.) Where there was no order, decree, or judgment, the appeal will be dismissed. (The Alicia, 7 Wall. 571.) § 210. Appeals in prize causes remaining in cirouit courts. — An appeal Sliall be allowed to the supreme court from all final decrees of any circuit court in prize causes depending therein oil the thir- tieth day of June, eighteen hundred and sixty-four, m the same manner and subject to the same con- ditions as appeals in prize causes for the district courts. (Eev. Stats, sec. 69(5.) ^ 210 a. Appellate jurisdiction in bankruptcy cases.— (a) The supreme court of the United States, the circuit courts of appeals of the United Slates, and llie supreme courts of the Territories, in vacatiou in cliambcrs and during their respective 745 SUPREME COURT— JURISDICTION. § 310b tei'ms, as now or as they may be hereafter held, are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The supreme court of the United States 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. (b) The several circuit courts of appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved. (30 U. S. Stats. 553, sec. 34.) § 210 b. Writs of error and appeals in bank- ruptcy matters. — (a) That appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the circuit court of appeals of the United States, and to the supreme court of the Territories, in the following cases, to wit (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of five hundred dollars or over. Such appeal shall be taken within ten days after the judgment appealed from has been rendered, and may be Fed. Proc— 63. §211 SUPREME COURT— JUKISDICTIOX 746 heard and determined by the appellate court in term and vacation, as the case may be. (b) From any final decision of a court of appeals, allowing or rejecting a claim under this act, an ap- peal may be had under such rules and within such time as may be prescribed by the supreme court of the United States, in the following cases and no other: 1. Where the amount in controversy exceeds the sum of two thousand dollars, and the question in- volved is one which might have been taken on ap- peal or writ of error from the highest court of a State to the supreme court of the United States; or 2. Where some justice of the supreme court of the United States shall certify that in his opinion the determination of the question or questions in- volved in the allowance or rejection of such claim is essential to a uniform construction of this act througliout the United States. (c) Trustees shall not be required to give bond when they take appeals or sue out writs of error. (d) Controversies may be certified to the su- preme court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof and issue writs of cer- tiorari pursuant to the provisions of the United States laws now in force or such as may be here- after enacted. (30 U. S. Stats. 553, sec. 25.) § 211. Transcripts on appeal. — Upon the ap- peal of any cause in equity, or of admiralty and 747 SUPREME COURT— JUEISDICTION. § 21 1 maritime jurisdiction, or of prize or no prize, a transcript of the record as directed by law to be made, and copies of the proofs and of such entries and papers on file as may be necessary on the hear- ing of the appeal, shall be transmitted to the su- preme court; provided, that either the court below or the supreme court may order any original docu- ment or other evidence to be sent up, in addition to the copy of the record, or in lieu of a copy oi a part thereof. And on such appeal no new evi- dence shall be received in the supreme court except in admiralty and prize causes. [See sec. 750.] (Rev. Stats, sec. 698; 18 U. S. Stats. 316; 1 Sup. Eev. Stats. 135.) Becords.— The certificate of the clerk is prima facie evidence that the record is complete (The Rio Grande, 19 Wall. 178); and his certificate to a deposition con- tained in the record that it was filed after trial of the cause is of equal validity as if forming part of his original certificate (The Samuel, 1 Wheat. 9); but his certificate cannot be received as evidence that pa- pers were used in the court below and have been lost. (The Grapeshot. 9 Wall. 129; 7 Wall. 563.) The su- preme court hears the cause in the first instance up- on the evidence transmitted (The London Packet, 2 Wheat. 371); and if the proof is deficient, the cause may be continued with leave to produce further proof. (The Samuel. 1 Wheat. 9.) On motions to dis- miss appeals or writs of error it is only necessary to print so much of the record as will enable the court to act understandingly without reference to the tran- script. (Carey v. Houston & Texas Cent. Ry. Co., 150 U. S. 170.) It Is the duty of appellants to bring § 212 SUPREME COURT— JUKISDICTION. 748 into the supreme court, as part of the record, excep- tions talien by them to the master's report. (Belford V. Scribner, 144 U. S. 488.) Where the only errors as- signed which call for consideration depend upon the terms and the construction of a contract which does not appear in the record, the judgment will be affirm- ed. (Red River Cattle Co. v. Alfred Sully, 144 U. S. 209.) § 212. Cases where question of jurisdiction only reviewed, without reference to amount. — ■ That in all cases where a final judgment or decree shall be rendered in a circuit court of the United States in which there shall have been a question involving the jurisdiction of the court, the party against whom the judgment or decree is rendered shall be entitled to an appeal or writ of error to the supreme court of the United States to review such judgment or decree without reference to the amount of the sarhe; but in cases where the decree or judgment does not exceed the sum of five thou- sand dollars, the supreme court shall not review any question raised upon the record except such question of jurisdiction; such writ of error or ap- peal shall be taken and allowed under the same provisions of law as apply to other writs of error or appeals, except as provided in the following sec- tion. Sec. 2. That in cases of judgments or de- crees mentioned in the first section of this act, and heretofore rendered", where the period of limitation for taking writs of error or appeals in other cases has not expired, appeals or writs of error may be 8ued out at any time within one year after the pas- sage of this act. (Approved Feb. 25, 1889; 25 749 SUrREME COURT— JURISDICTION. § 213 U. S. stats. 693.) (Mattingiy v. Northwestern Va. K. K Co., 158 U. S. 53.) (Mattingiy v. Northwestern Va. R. R. Co., 158 U. S. 53.) Note.— Was the above act repealed by implication by s-ection 5 of the act creating the circuit court of appeals, ante, sec. 175? § 213. Judgment or decree on review. — The supreme court may ajSirm, modify, or reverse any judgment, decree, or order of a circuit court, or district court, acting as a circuit court, or of a dis- trict court in prize causes, lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceed- ings to be had by the inferior court as the justice of the case may require. The supreme court shall not issue execution in a cause removed before it from such courts, but shall send a special mandate to the inferior court to award execution thereon. (Rev. Stats, sec. 701.) Ee-^iew.— The .iudgment of the circuit court upon a plea to the jurisdiction will not be reviewed upon pe- tition for mandamus. (Ex parte Railway Co., 103 U. S. 794.) The action of the circuit court in refusing to grant an appeal in a habeas corpus case in favor of a prisoner, under judgment of a State court, can- not be revised on application to the supreme court of the United States for such a writ. (Re Boardman, 169 U. S. 39.) On affirmance.— The circuit court has no power to modify a decree which has been affirmed. (Chaires §213 SUPREME COURT— JURISDICTIOX, 750 V. U. S., 3 How. 611; Southard v. Russell, 16 How. 547.) So on affirmance of a decree dismissing the bill. (Durant v. Essex Co., 101 U. S. 555.) Persons not parties to a decree of distribution, who appear after decree affirmed, may claim their share therein. (Ex parte Howard, 9 Wall. 175.) There being in a case separate sentences of concurrent imprisonment imder each of two counts of the indictment, the su- preme court on affirmance as to one, and reversing as to the other, remits the case to the lower court for further proceedings, instead of ordering a new trial. (Putnam v. United States, 162 U. S. 687.) If a State court proceeds before the mandate of affirmance is- sues from the supreme court, its action, though not to be commended, is not void. (Re Boardman, 169 U. S. 39.) On reversal.— If tlie judgment be reversed and judgment for defendant be entered, the circuit court cannot grant a new trial (Ex parte Dubuque & Pac. R., 1 Wall. 69); and if reversed with directions to en- ter judgment for plaintiff in error, judgment should be enforced with costs. (MeKnight v. Craig, 6 Cranch, 183.) On a special finding before the court \\ithout a jury, the circuit court on reversal may pro- ceed to try other issues. (Ex parte French, 91 U. S. 423.) If no supersedeas has been obtained, a rever- sal will not vacate a sale under a decree. (South Fork Canal Co. v. Gordon, 2 Abb. U. S. 479; Fed. Cas. No. 13189.) A reversal which directs restitution of money must be obeyed as far as practicable by the distributees. (Ex parte Morris, 9 Wall. 605.) Entry of the proper judgment below will be directed on re versing a decision in a case heard upon an agreed statement of facts (Meyer v. Richards, 163 U. S. 385), but the appellate court can only direct such judgment as is autliorized by the facts specially found by the circuit court. (Pullman Palace Car Co. v. Metropoli- 751 SUPREME COURT — JURISDICTION, § 313 tan Street Ry. Co.. 157 U. S. 94.) Questions finally settled by the supreme court cannot be reconsidered by the lower court, but must be deemed to have been finally settled. (Re C. & A. Potts & Co., 166 U, S. 263.) Proceedings after mandate.— Where the mandate requires only the execution of the decree, the circuit court is bound thereby, although the jurisdiction is not alleged in the pleadings (Sliillem v. May, 6 Cranch, 267): but where the mandate is uncertain and ambiguous, it has a right to resort to the opin- ion delivered at the time to assist in expounding it, (West V, Brashear, 14 Peters, 51.) The inferior court is bound by the decree of the supreme court, and must caiTy it into execution according to the man- date. (Sibbald v. United States, 12 Peters, 488; West V. Brashear, 14 Peters, 51; Gaines v, Rugg, 148 U. S. 228,) When the direction in the mandate is precise and unambiguous, it is the duty of the circuit court to carry it into execution. (West v, Brashear, 14 Peters, 51,) On demurrer overruled by the supreme court, the party will not be permitted to file other demurrei's after the remand. (Hitchcock v. Galves- ton, 3 Woods, 269; Fed. Gas, No, 6533.) The allow- ance of a supplemental answer after mandate is in the discretion of the court. (Williams v. Gibbes, 20 How. 535.) So the claimant in collusion may amend his answer after return of mandate. (The Pennsyl- vania, 12 Blatchf. 67; Fed. Cas. No. 10951.) A party cannot file new pleadings if the rights of the parties are finally determined. (Stewart v. Salamon, 97 U, S, 361.) The mandate in case of a vessel released on stipulation in the district court operates without any appeal to the supreme court. (The Lady Pike, 96 U. S. 461; see Ex parte Sawyer, 21 Wall. 235.) At- tachment cannot be issued for refusal to obey the §213a SUPREME COUKT—JUKISDICTION. 752 Original judgment awarding a mandamus, but an alias writ will be issued. (United States v. Kendall, 5 Cranch C. C. 385; Fed. Cas. No. 15418.) Costs may be taxed after receipt of mandate, and be entered nunc pro tunc. (Sizer v. Many, 16 How. 98.) If the State Court, after judgment in the supreme court, proceeds before the mandate of affirmance issues from the supreme court its action, though not to be commended, is not void. (Re Boardman, 169 U. S. 39.) In ordinary cases a new trial cannot be granted by the court below in entering the judgment of the supreme court. (Smale v. Mitchell, 143 U. S. 99.) Second appeals. — An appeal from a decree entered by the court below in accordance with the mandate of the appellate court, cannot be maintained. (Aspen M. & S. Co. V. Billings, 150 U. S. 31.) Whatever has been decided on one appeal or writ of error cannot be re-examined on a second appeal or writ of error brought in the same suit. (Thompson v. Maxwell Land Grant Co., 168 U. S. 451.) One who does not appeal from a decree is not entitled on an appeal from a decree of affirmance to contest a provision of the original, which is merely affirmed by the latter. (Harrison v. Perea, 168 U. S. 311.) § 213a. Remanding causes. — AVhenever on ap- peal or writ ot error, or otherwise, a case coming directly from the district court or existing circuit court shall be reviewed and determined in the supreme court, the cause shall be remanded to the proper district or circuit- court for further pro- ceedings, to be taken in pursuance of such deter- mination. And whenever on appeal or writ of er- ror or otherwise, a case coming from a circuit court of appeals shall be reviewed and determined in the 753 6UPBEME COURT— JUKISDICTION. § 213 a supreme court, the cause shall be remanded by the supreme court to the proper district or circuit court for further proceedings in pursuance of such, determination. Whenever on appeal or writ of er- ror or otherwise, a case coming from a district or circuit court shall be reviewed and determined in the circuit coui-t of appeals in a case in which the decision in the circuit court of appeals is final, such cause shall be remanded to the said district or cir- cuit court for further proceedings to be there taken in pursuance of such determination. (36 U. S. Stats. 839, sec. 10.) Remanding cause by appellate court. — An ap- pellate court bas no pow-er to remand except for the purpose of giving effect to some judgment of its own, and hence it cannot remand a suit in equity merely for the purpose of a rehearing of a cause in the court below in view of new matter to be pro- duced by the defeated party. (Harden v. Campbell P. P. & Mfg. Co., 33 U. S. App. 123; 67 Fed. Rep. 809.) The circuit court of appeals can act upon the court below only by mandate. (North Bloomfield G. M. Co. V. United States, 48 U. S. Ai^p. 755; 83 Fed. Rep. 2.) When on the coming down of the' mandate the court enters a judgment against the sureties on the supersedeas bond, such judgment should be for the amount of the original judgment with interest and costs; it is erroneous to compute the interest to date and then enter judgment for the full amount. (Gordon v. Third Nat.' Banlv, 3 U. S. App. 554; 56 Fed. Rep. 790.) If the appellate court commits an error in failing to give the successful party costs, it snould be corrected by motion in the appellate court before the mandate issues. (State of Califoraia, 7 § 213 a SUPREME COURT — JURISDICTION. 754 U. S. App. 652; 54 Fed. Rep. 404.) Except in a very plain case restitution of money paid under an errone- ous decree will not be directed by tlie appellate court where the interests of the parties defendant may be diverse; but leave wiU be reserved in the mandate to present a petition for restitution to the Court be- low. (Andrews v. Thum, 33 U. S. App. 393; 71 Fed. Rep. 763.) The circuit court will, upon writ of en'or, remand a case which has been brought within the jurisdiction by means of collusion, where the proof is clear; when the proof is not clear, on reversing the judgment, the court will direct the trial and deter- mination of that question at the circuit. (Ashley v. Board of Supervisors, 16 U. S. App. 656; 60 Fed. Rep. 55.) A judgment which has been affirmed stands in the same position after mandate is sent down that it did before the writ of error was allowed. (Nelson V, First Nat. Bank, 70 Fed. ReiD. 526.) A court en- gaged in the regular trial of cases on a day not a motion day is not bound to drop all business and im- mediately gi'ant a motion for judgment in accordance with the mandate of a higher court on reversal. (Re Joseph Hall, 167 U. S. 38.) Whatever is before the appellate court and is disposed of by virtue of the appeal becomes the law of the case, and. the lower com-t must carry it into execution according to the mandate witliout power to modify, reverse, enlarge, or suspend it. (Bissell Carpet Sweeper Co. v. Goshen Sweeper Co., 43 U. S. App. 47; 72 Fed. Rep. 545.) Rehearing after mandate. — After a federal appel- late court has passed upon all the issues before it and finally disposed of the case, the court below has no power to subsequently entertain a bill of review based on newly discovered evidence unless the man- date gives such privilege. (In re Gamewell Fire Alarm T. Co., 33 U. S. App. 452; 73 Fed. Rep. 908.) 755 SUPREME COURT— JUKISDICTION. § 213 a But if the appeal was from an interlocutory decree, a rehearing may be allowed, after mandate, by the trial court. (C. & A. Potts & Co. v. Creagher, 71 Fed. Rep. 574.) The appellate court may ordinarily en- tertain an original petition for leave to file in the court below a bill of review or supplemental bill in tne natm-e of a bill of review, even after the close of the term at which the judgment was entered. (In re GameweU Fire Alai-m Tel. Co., 33 U. S. App. 452; 73 Fed. Rep. 908.) It is too late to question the jurisdiction of the circuit court after a return of a mandate from the circuit court of appeals. (Bil- lings V. Aspen Min. & Smelting Co., 53 Fed. Rep. 561.) Appeal from decree on mandate.— Where the judg- ment or decree upon the mandate of an appellate court determines questions not covered thereby, it is subject to review by appeal or writ of eiTor in the proper appellate court. (Metcalf v. City of Water- town, 34 U. S. App. 107; 68 Fed. Rep. 859; Laidlaw V. Oregon Ry. & Nav. Co., 48 U. S. App. 430; 81 Fed. Rep. 876.) In such case the second writ of error brings up nothing for review but the proceedings subsequent to the mandate. (Republican Min. Co. v. Tyler M. Co., 48 U. S. App. 213; 79 Fed. Rep. 733.) Where the supreme court decides that the circuit court has jurisdiction of a cause, and remands the same' for further proceedings, the circuit court of appeals cannot, on a subsequent appeal, reopen the question of jurisdiction. (Nashua & L. R. Coi-p. v. Boston & L. R. Corp., 5 U. S. App. 97; 51 Fed. Rep. 929.) An appellate court should not ordinarily en- tertain an appeal from a decree entered in pursuance of a mandate from the circuit court of appeals when no errors are assigned as to matters arising subse- quent to the mandate. (Gregory v. Pike, 33 U. S. § 214 SUPREME COURT— JUKISDICTIOX. 756 App. 700; 77 Fed. Rep. 241; Merrill v. National Bank of Jacksonville, 41 U. S. App. 645; 78 Fed. Kep. 208.) § 214. Writs of error and appeals from Terri- torial courts. — No appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity in the supreme court of the District of Columbia, or in the supreme court of any of the Territories of the United States, unless the matter in dispute shall exceed the sum of five thousand dollars. This section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of any treaty or statute of, or an authority exercised under, the United States; but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute. (23 U. S. Stats. 355.) Appeal from supreme court of territory, in gen- eral. — An appeal lies to the supreme coiu't from the judgments or decrees of the supreme courts of th6 territories, except in cases where the judgments of tihe circuit court of appeals are made final. (Shute V. Keyser, 149 U. S. 649.) If the supreme court of the territoi-y correctly reversed the decree of the dis- trict court, its decree will be affirmed. (U. S. v. Hart, 6 Wall. 770.) In order that the supreme court may take jurisdiction it must appear on the record that the question was raised and decided in the lower court. (I^ownsdale v. Parrish, 21 How. 290.) Where the question relates merely to the counting of the votes for the removal of a county seat, the value of the interest cannot be computed. (Potts v. Chuma- sero, 92 U. S. 358.) A case in equity may be taken 757 SUPKEME COURT— JURISDICTION. § 214 up by ai.peal, although it was removed into the su- preme court of the territory by writ of error. (Brewster v. Wakefield, 22 How. 118.) A proceed- ing for allotment of dower in a law action cannot be talven by appeal, although not carried on accord- ing to the forms of the common law. (Parish v. El- lis, 16 Peters, 451.) A mortgagor may appeal alone from a decree directing a foreclosure, and subsequent lien-holders need not join. (Brewster v. Walvcfiedd, 22 How. 118.) If neither party had any interest in the property in dispute, no appeal can be talien. (Lowns- dale V. Parrish, 21 How. 290.) On an appeal from the supreme court of a territory the supreme court cannot examine the evidence as to its weight or suf- ficiency, and the findings of fact are conclusive upon the supreme court. (Holloway v. Dunham, 170 U. S. 615: Harrison v. Perea, 168 U. S. 311; San Pedro & Canon Agua Co., 146 U. S. 120.) Where there are no exceptions to rulings on the admission or rejection of evidence the supreme court is limited to a decision as to whether the facts found are sufficient to sustain the judgment rendered. (Glldersleeve v. New Mex- ico Min. Co., 161 U. S. 573; Haws v. Victoria M. Co., 160 U. S. 303; Harrison v. Perea, 168 U. S. 311; Kar- ricii V. Hamiaman, 168 U. S. 328; San Pedro & Canon Agua Co., 146 U. S. 120; Wasatch Min. Co. v. Cres- cent Min. Co., 148 U. S. 293; The Blue .Jacket v. Ta- coma Mill Co., 144 U. S. 371; Mammoth Min. Co. v. • Salt Lake Foundry & Mach. Co., 151 U. S. 447.) The right of appeal to the supreme court from a final or- der made by the supreme court of a territory in a habeas corpus case, involving the question of per- sonal freedom, is not repealed by the act of March 3, 18S5. (Gonzales v. Cunningham, 164 U. S. 612.) The supreme court has jurisdiction to review a judgment of the supreme court of a territory in which is drawn in que.sition the authority of the territory under its Fed. Pboc— 64. § 214 SUPREME COURT— JURISDICTION". 758 Organic Act to extend its taxing power over a res- eiTation created by act of Congress, within its lim- its. (Maricopa & Plioeniz R. Co. v. Territory of Ari- zona, 156 U. S. 347.) Unless a manifest error is dis- closed, the supreme court will not disturb a decision of the supreme court of a territory construing a local statute. (Fox v. Haarstick, 156 U. S. 674.) (1) Writ of error. — No writ of error lies from a ter- ritorial court to the supreme court unless some act of Congress provides therefor (Clarice v. Bazadone. 1 Cranch, 212), and the action of a territorial court re- fusing to set aside a judgment by default is not re- viewable. (McAllister v. Kuhn, 96 U. S. 87; see Kerr V. Clampitt, 95 U. S. 188.) A writ of error does not lie to an order refusing a motion for a new trial (Leitensdorfer v. Webb, 20 How. 176; Sparrow v. Strong, 4 Wall. 584); nor to a judgment reversing a judgment with instructions to award a venire facias de novo. (Brown v. Union Banli, 4 How. 465.) A writ of error to an, order setting aside a return to an execution will not lie. (Wells v. McGregor, 13 Wall. 188.) A judgment sustaining a demurrer or a judg- ment affirming such decision is not final if it awards a precedendo. (Holcomb v. McCusick, 20 How. 552; Miners' Bank v. U. S., 5 How. 213.) A writ of eiTor in an attachment suit will not bring up for review upon points necessaiy to sustain the attachment (Lei- tensdorfer v. Webb, 20 How. 170); nor will it lie when the only dispute is a counter-claim, if the amount is less than on* thousand dollars. (Nagle v. llutledge, 100 U. S. G75.) A petition for rehearing in the court below presents no question for review in the supreme court (San Pedro & Canon Del Agua Co. v. United States, 146 U. S. 120.) (2) Jurisdictional amount. — The supreme court has not jurisdiction of an appejil from a territorial court, 759 StrPREME COURT— JURISDICTION. §§ 215-216 unless the matter in dispute, exclusive of costs, ex- ceeds the sum of ?5,000, or there is involved the va- lidity of a patent or copyright, or unless a Federal question is involved. (Linford v. Ellison, 155 U. S. 503.) The liability for $5,000 each, of several de- fendants, subscribers to stock of a corporation, can- not g-ive jurisdiction on appeal to the supreme court from a teri'itorial court, although they contend that thedr subscriptions were paid by a conveyance of land owned jointly by them. (Wilson v. IClesel, 164 U. S. 248.) Although the judgment of the territorial district court was less than $5,000, if at the time of its atiirmance in the territorial supreme court, it amounted with interest to over $5,000, the supreme court has jurisdiction. (Benson Min. & S. Co. v. Alta M. & S. Co., 145 U. S. 428.) § 215. TJtah. — A writ of error from the su- preme court of the United States to the supreme court of the Territory shall lie in criminal cases where the accused shall have been sentenced to capital punishment or convicted of bigamy or polygamy. (18 U. S. Stats. 254; 1 Sup. Eev. Stats. 108.) From all Judgments and decrees of the su- preme court of the Territory, mentioned in this act, in any case arising within the limits of the proposed State prior to admission, the parties to such judgment shall have the same right to prose- cute appeals and writs of error to the supreme court of the United States as they shall have had by law prior to the admission of said State into the Union. (28 U. S. Stats. 111.) § 216. Territorial courts — Procedure on ap- peal. — That the appellate jurisdiction of the su- §216 SUPKEME COURT— JURISDICTION. 760 preme court of the United States over the judg- ments and decrees of said territorial courts in cases -of trial by jury shall be exercised by writ of error, and in all other cases by appeal, according to such rules and regulations as to form and modes of pro- ceeding as the said supreme court have prescribed or may hereafter prescribe; provided, that on ap- peal, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on tlie admission or rejection of evidence when excepted to, shall be made and certified by the court below, and transmitted to the supreme court, together with the transcript of the proceedings and judg- ment or decree; but no appellate proceedings in said supreme court, heretofore taken upon any such judgment or decree, shall be invalidated by reason of being instituted by writ of error or by appeal; and provided, further, that the appellate court may make any order in any case heretofore ap- pealed, which may be necessary to save the rights of the parties; and that this act shall not apply to cases now pending in the supreine court of the United States where the record has already been filed. (18 U. S. Stats. 27; 1 Sup. Rev. Stats. 12.) Note.— To entitle to nn appeal, the case must be one tried by a jury. (fStringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, 99 U. S. 619.) If the territorial Buprenie court affirms the judgment, it adopts the find'njrs as its own for the purpose of an appeal (Strinyfellow v. Cain. 90 U. S. 010; Cannon v. Pratt, 99 U. S. 619); but if it reverses the judgment, It 761 SUPREME COURT— JURISDICTION. §§ 217 218 should make other findings, so that the ease may be taken on appeal. (Stringfellow v. Cain, 99 U. S. 610.) § 217. When a Territory becomes a State after judgment or decree in Territorial court. — 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 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. (Eev. Stats. sec. 703.) It rests with Congress to declare how the jndg- ments of territorial courts shall be carried into exe- cution, or reviewed iipon appeal or writ of eiTor (Hunt v. Palao, 4 How. 589; Benner v. Porter, 9 How. 235); but concurrent legislation. State and Federal, is necessary in respect to cases pending in the supreme court for review to enable the supreme court to send down the mandate for further proceedings in the proper tribunal. (Benner v. Porter, 9 How. 235.) After a tei'ritory has been admitted as a State, no writ of error or appeal lies from the territorial court without the aid of some act of Congress. (Hunt v. Palao, 4 How. 589; Sheppard v. Wilson, 5 How. 210; McNulty V. Batty, 10 How. 72; Preston v. Bracken, 10 How. 81. See Freeborn v. Smith, 2 Wall. 160; Northern Pac. Ky. Co. v. Holmes, 155 U. S. 137.) § 218. Judgments and decrees of district courts in cases transferred from Territorial courts. — The § 219 SUPREME COURT— JURISDICTION. 762 judgments or decrees of any district court, in cases transferred to it from the superior court of any Territory upon the admission of such Territory as a State, under sections five hundred and sixty-seven and five hundred and sixty-eight, may be reviewed and reversed or affirmed upon writs of error sued out of, or appeals taken to, the supreme court, in the same manner as if such judgments or decrees had been rendered in said superior court of such Territory. And the mandates and all writs neces- sary to the exercise of the appellate jurisdiction of the supreme court in such cases shall be directed to such district court, which shall cause the same to be duly executed and obeyed. (Rev. Stats, sec. 704. See sections 567 and 569.) § 219. Judgments and decrees of court of ap- peals of District of Columbia. — Any final judgment or decree of the said court of appeals may be re- examined and affirmed, reversed or modified by the supreme court of the United States, upon writ of error or appeal in all causes in which the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner and under the same regulations as heretofore provided for in cases of writs of error on judgment or ap- peals from decrees rendered in the supreme court of the District of Columbia; and also in cases, with- out regard to the sum or value of the matter in dis- pute, wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority 763 SUPREME COURT— JURISDICTION. g§ 230-221 exercised under, the United States. (27 U. S. Stats. 436.) Amount.— If the matter In dispute is incapable of being reduced to a pecuniary standard of value, the supreme court will not review a decision of the court of appeals of the District of Columbia. (Perrine v. Slaclv, 164 U. S. 452.) The supreme court cannot re- view a decision of the court of appeals of the District of Columbia in a criminal case. (Chapman v. United States, 164 U. S. 436.) § 220. Certiorari from supreme court to court of appeals of District of Columbia. — That in any case heretofore made final in the court of appeals of the District of Columbia it shall be competent for the supreme court to require, by certiorari or otherwise, any such case to be certified to the su- preme 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. (29 U. S. Stats. 692.) § 221. Appeals from the court of claims. — An appeal to the supreme court shall be allowed on behalf of the United States, from all judgments of the court of claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court, as provided in section one thousand and eighty-nine. (Eev. Stats, sec. 707.) § 221 SUPREME COURT— JURISDICTION. 764 Appeals from court of claims.— An appeal is a mat- ter of right wliich tlie court cannot prevent and wliich a party may exercise at his own volition. (United States V. Adams, 6 Wall. 103.) The United States may appeal from an adverse judgment of the court of claims where that court is by law required to take jurisdiction of a claim against it and judicially de- termine the case. (Vigo's Case, 21 Wall. 648; Ex parte Zellner, 9 Wall. 244.) So when a claim is re- ferred to the court of 4:-laims by a joint resolution (Dickelman v. United States, 9 Ct. of CI. 320); but if a claim is merely referred by act of Congress to as- certain a particular fact to guide the United States in the execution of its treaty stipulations, an appeal will not lie. (Ex parte Atocha. 17 Wall. 4.39.) An appeal will not lie from order passed upon a change of attorneys (Dismare v. United States, 9 Ct. of CI. 1); or an order refusing a new trial. (Ex parte Rus- sell, 13 Wall. 6&4.) When equitable jurisdiction is conferred in a special case by a special act, no state- ment of facts on appeal is necessary, this section not applying to such case. (Haiwey v. United States, 4 Morr. Trans. 099.) When the United States appeals, only the claim allowed is brought up. (United States V. Hickey, 17 Wall. 9.) When the court of claims fails to find a matea-ial fact, the judgment will be re- versed; or when the amount that the party is entitled to recover is not set out in the findings (United States V. Clark, 94 U. S. 73); and a refusal to find a mate- rial fact may be excepted to. (United States v. Adams, 9 Wall. 061.) In the exercise of its general jurisdiction appeals lie to the supreme court from judgments of the court of claims. (United States v. Jones, 119 U. S. 477.) An appeal taken before the right of appeal has expired is not vacated by the ap- propriation by Congress of the amount necessary to 765 SUPIJEME COURT — JURISDICTION. § 221 pay the judgment. (United States v. Jones, 119 U. S. 477.) This section authorizes an appeal to this court in behalf of the United States from all judgments of the court of claims adverse to the United States. (United States v. Mosby, 133 U. S. 273; United States V, Davis, 131 U. S. 36.) Neither the court of claims nor the supreme court of the United States can de- termine any claim against the United States, except in cases defined by Congress. (United States v. Glee- son, 124 U. S. 255.) Under this section of the Revised Statutes, no ap- peal lies from a judgment of the court of claims against the United States, "pro forma for purpose of appeal," for less than $3,000. (United States v. Glee- son, 124 U. S. 255.) Nothing can be reviewed on ap- peal but questions of law. (Mahan v. United States, 14 Wall. 109; Talbert v. United States, 155 U. S. 45.) The judgment of the court of claims as to the legal effect of the ultimate circumstantial facts in a case may be reviewed in the supreme court. (United States V. Pugh, 99 U. S. 265.) The rule with regard to findings of fact has no reference to a case of equity jurisdiction confen-ed by a special act. In such case, where appeal lies, this court must review the facts and the law as in other equity cases appealed fi-om. (Harvey v. United States, 105 U. S. 671.) If the court of claims refuses to find as prayed, the prayer and refusal must be made part of the record, that the court may determine whether to send it back for a finding. (Hahan v. United States, 14 Wall. 109.) Where it does not find the amount of loss, its judg- ment will be reversed on account of an insufficient finding. (United States v.- Clark, 94 U. S. 73.) Where it sounds all the evidence, but there was no legal evi- dence to establish such fact, this court must revei-se tne judgment. (United States v. Clark, 96 U. S. 37.) §§ 222-223 SUPREME court— jurisdiction. 766 The supreme court cannot give the court of claims any directions as to what finding it shall make. (United States v. Child ["United States v. Adams"], 9 Wall. 661.) Under act of 1894 see United States y. GilUat, 164 U. S. 42.) § 222. Time and manner of appeals from the court of claims. — All appeals from the court of claiins shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regulations as the supreme court may direct. (Eev. Stats, sec. 708.) Appeals from, court of claim.s. — The limitation ceases to run from the time of application for an ap- peal, and subsequent delays will not prejudice the party, (United States v. Adams, 6 Wall. 101.) Such appeals must be taken within ninety days after the judgment is rendered, but this period is enlarged to six months by section 10 of the act in question. In our judgment, the same right can be exercised by the United States in any case of the prosecution of a claim in the district or circuit courts of the United States under said act. (United States v. Davis, 131 U. S. 36.) § 223. Judgments and decrees of State courts on writs of error. — A liual judgment or decree in any suit in the highest court of a State in whicli 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 the validity, or where is drawn in question the validity, of a statute of, or an authority exercised under, any State on the 767 SUPREME COURT— JUKISDICTION. § 223 ground of their being repugnant to the Constitu- tion, 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 un- der the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity, specially set ajDart 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 Judgment or decree of such State court, and may, at their dis- cretion, award execution or remand the same to the court from which it was removed by the writ. (Rev. Stats, sec. 709.) Review of State Decisions. — Jurisdiction is not con- ferred by consent. (jNIills v. Brown, l(j Petei*s, 525.) A writ of error from the supreme court to review a state judgment can only be maintained undea* the cir- cumstances defined in section 709 of the Revised Stat- utes. (Duncan v. State of Missouri, 152 U. S. 377.) A judgment of an inferior State court which is the highest court of the State in which a decision can be had, because a -RTit of error has been denied by the supreme court of the State, can be reviewed if it in- volves a Federal question, decided against plaintiff in error, by writ of eiTor from the supreme court of the United States. (Bacon v. States of Texas, 163 U. S. § 223 SUPREJiE COURT— JURISDICTION. 768 207; Bergemann v. Backer, 157 U. S. 655.) A writ of error to a State court brings before the supreme court only tlie Federal question in the case. (Ashley V. Ryan, 153 U. S. 4.36.) The supreme court must de- termine for itself whether the suit really involves any federal question which will entitle it to review the judgment of the State court. (Newport Light Co. V. City of Newport, 151 U. S. 527.) It is requisite that it should be apparent in the record that one of the questions arose, and that a decision was made thereon. (Crowell v. Randall, 10 Peters, 368.) Tho. allegation that a treaty has been misconstrued, in re- fusing to sanction a claim, is not sufficient (Chou- teau V. Marguerite, 12 Peters, 507), or a decision in accordance with the practice of the State court. (Commercial Bli. v. Rochester, 15 Wail. 639.) It must appear from the record that the act or Constitution was drawn in question (Miller v. Nicholls, 4 Wheat. 811), or the record should show a complete title un- der the treaty. (Hickie v. Starke, 1 Peters, 94.) It is sufficient if frdm the facts stated such a question must have arisen (Harris v. Dennie, 3 Peters, 292), and that the act was misconstrued. (Davis v. Pack- ard, 6 Peters, 41.) The question must appear to have arisen by clear and necessary intendment (Ocean Ins. Co. V. Polleys, 13 Peters, 137), and to have been nec- essarily involved (Armstrong v. Treasurer, 16 Pet- ers, 281; Mills v. Brown, 16 Peters, 525), so that the State court could not have given judgment without deciding it (Davis v. Texas, 139 U. S. 651; Johnson v. Risk, 137 U. S. 300; California Powder Works v. Davis, 151 U. S. 389; Winter- v. Montgomery, 156 U. S. 385; Parmelee v. Lawrence, 11 Wall. 36; Railroad Co. V. Rock, 4 Wall. 177, and that the question was decided in the State court. (Commorcial Bank v. Buckingham, 5 How. 317; Smitli v. Hunter, 7 How. 769 SUPBEME COURT— JURISDICTION, § 223 738: Taylor v. Morton, 2 Black, 481; Cockroft v. Vose, 14 Wall. 5; Fowler v. Lamson, 1&4 U. S. 252; McNulty V. People of Oaliforala, 149 U. S. 645; Morrison v. Watson, 154 IT. S. 111.) Nelither the argument of counsel nor the opinion of the court below can be looked to for this purpose. (Gibson v. Chouteau, 8 Wall. 314.) It wil not be entertained if the judg- ment may have been given on grounds which that section does not make cause for error fSteines v. Franklin Co., 14 Wall. 15; Kennebec R. R. v. Portland R. R., 14 Wall. 23); as on the construction of a State statute. (Insurance Co. v. The Treasurer, 11 Wall. 204.) It extends to riglits protected by the Constitu- tion. (New Orleans v. De Armas, 9 Peters, 224.) Under this section, the jurisdiction of the supreme court depends upon the question involved, and not upon the citizenship of the parties. (French v. Hop- kins, 124 U. S. 524.) The jurisdiction for review of the judgments of State courts given by this section extends to adverse decisions upon rights and titles claimed under commissions held or authority exer- cised under the United States, as well as to rights claimed under the Constitution, laws or treaties of the United States. (Carson v. Dunham, 121 U. S. 421. Compare Crescent City etc. Co. v. Butchers' Union Co., 120 U. S. 141; Pi'ovident Sav. Soc. v. Ford, 114 U. S. 635.) This section applies only to a writ of error to review a final judgment or decree on a suit In the highest court of a State. (Farnsworth v. Ter- ritory of Montana, 129 U. S. 104.) These sections do not cover a criminal case. (Snow v. United States, 118 U. S. 346.) Section 709 points out the cases in which the judgment or decree of the highest court of a State may be reviewed by the supreme court of the United States. (McKenna v. Simpson, 129 U. S. 506.) Jurisdiction under this section does not depend upon Fed. Peoc— 66. § 223 SUPREME COURT— JURISDICTION. 770 the citizenship of the parties, but on the questions involved. (French v. Hopldns. 124 U. S. r)24.) The supreme court can review such a .iudpment only when the right, privilege, or immurLity claimed un- der the Constitution or any treaty or statute of the United States was specially set up or claimed in the State court at the proper time and in the proper way. (Chappell V. Bradshaw. 128 U. S. l.'?2; J.eeper v. Tex- as, 139 U. S. 402; Spies v. Illinois, 12:3 U. S. 131; Bald- win V. State of Kansas. 129 U. S. 52; Chappell v. Bradshaw. 128 U. S. 132; 132 U. S. 369; Leoper v. Texas, 139 U. S. 462; Brown v.- Commonwealth of Mass., 144 U. S. 573; Duncan v. State of Missouri, 152 TJ. S. 377; Morrison v. Watson, 154 U. S. Ill; Bobb V. Jamison, 155 U. S. 416; Winona & St. Petere L. Co. V. State of Minnesota, 159 U. S. 540; Re Buchanan, 158 U. S. 31); and the right so set up must have been denied, either expressly or by necessary implication. (Roby v. Colehour, 146 U. S. 153; Israel v. Arthur, 152 U. S. 355; Snell v. City of Chicago, 152 U. S. 191; Dower v. Richards, 151 U. S. 658; California Powder Works V. Davis, 151 U. S. 389; The Schuyler Nat. Banlf V. Bollong, 150 U. S. 85; Winter v. City Coun- cil of Montgomery, 1.56 IJ. S. 385; Missouri v. An- driano, 138 U. S. 497; Reddall v. Bryan, 24 How. 420.) The question must have been raised before judgment in the court below. (Miller v. Cornwall R. B. Co., 168 U. S. 131; Union Mutual Life Ins. Co. v. Kirchoff, 169 U. S. 103; Bushnell v. Crooke M. & S. Co., 148 U. S. 682.) It is essential to the exercise by this court of revisory jurisdiction over the final judg- ments or decrees of the courts of the States that the writ of error sliould be allowed either by a ju.stice of this court, or by the proper judge of the State court, after ascertaining by an examination of the record that a question cognizable here was made and 771 SUPREME COURT— JURISDICTION. § 223 decided in the State court, and that snch allowance was justified. (Gleason v. Florida, 9 Wall. 779; But- ler V, Gage, 138 U. S. 52; Havnor v. State at New York, 170 U. S. 408; In re Robertson, 156 U. S. 183.) The only appellate jurisdiction to review State judg- ments at law or in equity is by writ of erix)r. (Dower V. Richards, 151 IJ. S. 658.) To review the decision of the State court upon a question of fact is not with- in the jurisdiction of the supreme court. (Dower v. Richards. 151 U. S. 6.58; Bartlett v. Lockwood. 160 U. S. 357; Eg^an v. Hart, 165 U. S. 188; Lloyd v. Mat- thews, 1.-5 U. S. 222; Hedrick v. Atchison T. & Santa Fe Ry. Co., 167 U. S. 673); and this is so even though a Federal question might arise if the. question of fact were decided in a particular way. (Israel v. Ar- thur, 152 U. S. 355.) It matters not that the judg- ment, denying the right, was rendered in a manda- mus proceeding, (McPherson v. Blacker, 146 U. S. 1.) The decision must be a final one (Oxley Stave Co. V. County of Butler. 166 U. S. 648). or the writ will be dismissed. (Drake v. Kochersperger, 170 IT. S. 303.) An order made upon a return to a writ of habeas corpus gi-anted by a judge, and returnable before him, does not constitute a final judgment or decree which may be reviewed by the supreme court. (Clarke v. McDade, 165 U. S. 168.) Neither is a judg- ment of the supreme court of a State final which re- verses an order overruling a demurrer, and remands the case for further proceedings. (Great Western Tel. Co. V. Burnham, 162 U. S. 339; Union Mut. L. Ins. Co. V. Kirchoff. 160 U. S. 374.) The decision of the highest court of a State ordering a lower State court to discharge a rule for contempt is not a final judgment (Newport Light Co v. City of Newport, 151 U. S. 527); neither is an order overruling a motion to quash an execution. (Loeber v. Schroeder, 149 U. S. 580.) Where the State supreme court of the State § 223 SUPREME COURT— JURISDICTION. 772 remanded a cause for further proceedings, the judg- ment -was not final (Rice v. Sanger, 144 U. S. 197): neither is the jndgmont of the State supreme court merely affirming an interlocutory order of the lower court. (Meagher v. Minnesota Mfg. Co.. 145 IT. S. 608.) An order of a State .judge at chambers in a habeas corpus case is not reviewable. (McKnight v. James, 155 U. S. 685.) Where the case was decided on an independent ground broad enough to maintain the judgment, and not involving a Federal question, this court will dismiss the wiit of eiTor without con- sidering the Federal question. (Beatty v. Benton, 135 U. S. 244; Marrow v. Brinkley, 129 U. S. 178; Hale v. Alters, 132 U. S. 554; San Francisco v. Itsell, 133 U. S. 65; Hopkins v. McLure, 133 U. S. 380; Hale v. Akers. 132 U. S. 554.) This principle has since been repeatedly applied as in Jenldns v. Lowenthal, 110 U. S. 222; Murdock v. City of Memphis, 20 Wall. 590, 636; McManus v. O' Sullivan, 91 U. S. 578; Brown v. Atwell, 92 U. S. 327; Citizens' Bank v. Board of Liqui- dation. 98 U. S. '140; Chouteau v. Gibson, 111 U. S. 200; Adams Co. v. Burlington & M. R. Co., 112 U. S. 123; Detroit City Ry. v. Guthard, 114 U. S. 133; New Orleans Water AVorks Co. v. La. Sugar Ref. Co., 125 U. S. 18; De Saussure v. Gaillard, 127 U. S. 216, 234; Beaupre v. Noyes, 138 U. S. 397 ; Hale v. Akers. 132 U. S. 554; Eustis v. Bolles, 150 U. S. 361; Hammond V. Conn. Mut. T^fe Ins. Co., 150 U. S. 633; Haley v. Breeze, 144 U. S. 130; Northern Pac. Ey. Co. v. Ellis, 144 U. S. 458; Ca-stillo v. McConnico, 168 U. S. 674; Egan V. Hart, 165 U. S. 188; Gillis v. Stinchfield, 159 U. S. 658; Rutland R. R. Co. v. Cent. Vt. R. R. Co., 159 U. S. 030; Bacon v. State of Texas, 163 U. S. 207; Seneca Nation v. Christy, 162 U. S. 283; Missouri Pac. Ry. Co. V. Fitzgerald. 160 U. S. 556; Chemical Nat. P.;ink v. City Bank of Portage, 160 U. S. 646; State of Connecticut v. Woodruff, 153 U. S. 689; State 773 SUPREME COURT— JURISDICTION. § 233 of Michigan v. Flint & P. M. R. Coo., 152 U. S. 303; Dower v. Richards, 151 U. S. 658; California Powder Works V. Davis, 151 U. S. 389; Wells v. Goodnow's Admrs., 150 U. S. 84; Rector v. Ashley, 6 Wall. 142.) This court has no jurisdiction to review a judgment of the highest court of a State, unless a Federal question has been, either in express terms or by nec- essary effect, decided by that court against the plain- tiff in error. (New Orleans Water Works v. Louisi- ana Sugar Ref. Co., 125 U. S. 18; De Saussure v. Gail- lard, 127 U. S. 216; Hale v. Akers, 132 U. S. 554; San Francisco v. Itsell, 133 U. S. 65; Missouri v. Andriano, 138 U. S. 497.) The party's right must have depended on the statute. (Williams v. Norris, 12 Wheat. 117; Montgomery v. Hernandez, 12 Wheat. 129; Ryan v. Thomas, 4 Wall. 603.) It is not necessary to state in terms upon the record that the law was drawn in question, it is sufficient if it shows that the law must have been misconstrued or the decision could not have been made. (W^illson v. Marsh Co., 2 Peters, 245; Furman v. Nichol, 8 Wall. 44; Satterlee v. Matthew- son, 2 Peters, 380; Jackson v. Lamphire, 3 Peters, 280.) When the decision is against the right claimed under the Constitution or laws of the United States, a writ of error will lie to bring the judgment of the State court before this court for re-examination and revision. (Ablemau v. Booth, 21 How, 506.) The statute must be specially set up by the party, and the decision must be against the claim (Montgomery V. Hernandez, 12 Wheat. 129); but the point must be raised and decided against the party applying for the writ in the State court to which the writ is di- rected. (Farney v. Towle, 1 Black. 350.) The point must be distinctly raised in the court below (Hoyt v. Shelden, 1 Black, 518; Yesler v. Board of Harbor Commrs., 146 U. S. 646; Morrison v. Watson, 154 U. S. Ill; Zadig v. Baldwin, 166 U. S. 485; Oxleg Stave § 223 SUPREME COURT— JLKISDICTIOX. 774 Co. V. County of Butler, 166 U. S. 648; Kipley v. State of Illiuuis, 170 U. S. 182); and shown by the record (R. R. Co. v. Rock. 4 Wall. 177; Louisville & N. Ry. Co. V. City of Louisville, 166 U. S. 709; Powell V, Brunswick County, 150 U. S. 433; State of Con- necticut V. Woodruff, 158 U. S. 689; Bobb v. Jamison, 155 U. S. 416; Re William Robertson, 156 U. S. 183), wh'ch must be properly authenticated. (Caperton v. Ballard, 14 Wall. 238.) Nothing out of the record can be taken into consideration. (Walker v. Villa- vaso, 6 Wall. 124); not even specificatious of error. (Fowler v. Lamson, 164 U. S. 2.52; Chicago & N. W. Ry. Co. V. City of Chicago. 164 U. S. 454; Clarke v. McDnde. 165 TT. S. 168; but see Chicago B. & Q. Ry. Co., 166 U. S. 226.) The decision cannot be questioned by the party in whose favor it was given. (Rutland R. R. Co. V. Cent. Vt. R. R. Co., 159 U. S. 630); and the right or immunity must be one of the plaintiff in error and not of a third person. (Texas & Pac. Ry. Co. v. Johnson, 151 U.S. 81; Ludeling v. Chaff e, 143 U. S.301.) A certificate of the presiding ju.stice is not conclusive to show that a Federal question Avas raised in the case (Caperton v. Bowyer, 14 Wall. 216), nor the record of the judge who tries the case at nisi prius. (Inglee V. Coolidge, 2 Wheat. 303.) Where the decision is made on settled pre-existing rules of general juris- prudence the case cannot be brought here for reviev? (Bank of West Tenne.ssee v. Citizens" Bank, 14 Wall. 9; Palmei" v. Marston, 14 AYall. 10; Sevier v, Haskell, 14 Wall. 12; Delmas v. Ins. Co., 14 Wall. 661), nor if decided exclusively upon the principles of the jurisprudence of the Stale. (IMarqueze v. Bloom, 16 Wall. ;151.) The jurisdiction is maintainable if the caise shows that Federal questions were involved, though it also appears that there were other defenses, if these defenses afford no legal answer to the suit (Maguire v. Tyler, 8 Wall. 651). If the court is the 775 SUPREME COURT— JURISDICTION. § S23 highest which may consider the question, the right of review exists, although it be not the liighest court in the State (Downham v. Alexandria, 9 Wall, 659; Mil- ler V. Joseph, 17 Wall. 655; Bacon v. State of Texais, 163 U. S. 207; Bergemann v. Backer, 157 U. S. 655), and though the case be decided on an equal division. (Hartman v. Greenhow, 102 U. S. 672.) In order to give the supreme court jurisdiction under this section, because of the denial by a State court of any title, right, privilege, or immunity claimed under the Con- stitution, or any treaty or statute of the United States, it must appear on the record that it was duly set up, that the decision was advea-se, and was made in the highest coui't of the State. (Spies v. Ill;nois, 123 U. S. 132; French v. Hoplcins, 124 U. S. 524.) Ju- risdiction under this section, for the review of the decision of the highest court of a State, is not dependent upon the citizenship of the parties. The court looks only to the questions involved. (French V. Hopkins, 124 U. S. 524.) If a Federal question is fairly presented by the record, and its decision is nec- essary to the determination of the case, a judgment which rejects the claim, but avoids all reference to it, is as much against the right, witliin the meaning of this section, as if it had been specifically referred to, and the right directly refused. But if a decision of such a question is rendered unnecessary by the view which the court properly takes of the rest of the case, within the scope of the pleadings, the judgment is not open to I'eview in the supreme court. (Chapman v. Goodnow, 123 U. S. 540.) Constitution and statutes.— There must be fair color for claiming that rights under the Federal Con- stitution have been violated in order to give the su- preme court jurisdiction to review a State judgment (Wilson V. State of North Carolina, 169 U. S. 586; § 223 SUPREME COURT— JURISDICTION. 776 Hamblin v. Western Land Co., 147 U. S. 531; St. Louis, G. & F. S. Ry. Co. v. State of Missouri, 156 U. S. 478; Douglas v. Wallace, 161 U. S. 346). A con- ti-act can only be impaired within the meaning of Sec. 709. Rev. Stats., by some subsequent statute of the State which has been upheld or -g-iven effect by the State court (Bacon v. State of Texas, 163 U. S. 207; Central Land Co. v. Laidley, 150 U. S. 103; McNulty V. reople of California, 149 U. S. 645; Wi-nona & St. Peters R. Co. v. Town of Plainview, 143 U. S. 371). Where one construction of the U. S. Constitution or laws will defeat some right, title or immunity of plaintiff in error, and another construction will sus- tain the right, the case is one arising under the Con- stitution (Cook V. Aveiy, 147 U. S. 375; Shively v. Bowlby, 152 U. S. 1; Stanley v. Schwalby, 162 U. S. 255; McCormick v. Market Nat. Bank, 165 U. S. 538). The following questions have been held to arise under the Constitution and laws of the United States, and to bring a case within the jurisdiction of the supi'eme court to review by writ of error to the State supreme court: Power of national bank to become stockholder in a savings bank (California Bank v. Kennedy, 167 U. S. 362); whether due eft'ect has been given in a State court to the judgment of a court of another State, a Federal court (Central Nat. Bank v. Stevens, 169 U. S. 432; Huntington v. Attrill, 146 U. S. 657; Great Western Tel. Co. v. Purdy, 162 U. S. 329; but see Winona etc. R. Co. v. Plainview, 143 U. S. 371). Whether a given act of Congress or the U. S. CouKli- tution furnish a complete defense to an action to enforce a State statute (Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613; Williams v. Eggleston, 170 U. S. 304). Whether an assignee in bankruptcy is en- titled to certain property of the bankrupt as against adverse claimants thereto (Dushane v. Beall, 161 U. S. 513; Williams v. Heard, 140 U. S. 529). Whether 777 SUPREME COUET— JURISDICTION. § 223 levee bonds for a loan of gold coin were invalid be- cause payable in gold coin without express authority of statute to be made so payable (Woodruff v. State of Mississippi, 162 U. S. 291). Whether private prop- erty has been taken for any other than a public use (Fallbrook Irr. Dist. v, Bradley, 164 U. S. 112). Whether an equitable title apparently conveyed by proceedings in the U. S. land office was of any effect (Hussman v. Durham, 165 U. S. 144). A Federal question is raised by an unsuccessful contention in a State court that the obligations of a contract have been Imijaired by State statutes and ordinances, (Chicago B. & Q. R. R. Co. v. State of Neb., 170 U. S. 57; Giozza v. Tiernan, 148 U. S. 657; Mobile & O. R. Co. V. State of Tennessee, 153 U. S. 486; Wilmington & W. R. R. Co.v. Alsbrook, 146 U. S. 279); and by an unsuccessful contention that a State statute deprives defendant of property without due process of law (Tregea v. Modesto Irr. Dist., 164 U. S. 179). If the decision is in favor of the validity of the authority set up and claimed no Federal question Is presented (Bartlett v. Lockwood, 160 U. S. 357; Carothers v. Mayer, 164 U. S. 325). If the decision of the State court holds the State statute void as in contraven- tion of the U.. S. Constitution,-!! cannot be reviewed by the supreme court on writ of error (McNulty v. People of Calif ornia, 149 U. S. 645). The supreme court cannot review any question as to the admission or rejection of evidence in the State court which does not bear directly upon some matter of a Federal nature (Cleve- land C. C. & St. L. R. Co. V. Backus, 154 U. S. 439; Central Pac. Ry. Co. v. State of California, 162 U. S. 91). The following questions have been held not to arise under the United States Constitution or laws: Whether a person has the right to practice law in State courts (In re Belva Lockwood, 154 U. S. 116); which of two parties has a right to stock in a national § 223 SUPREME COURT— JURISDICTION. 77S bauk, where the national banking act is only col- laterally involved (Leyson v. Davis, 170 U. S. 36); the construction of a State statute of limitations, (Ludeling v. ChafCe, 143 U. S. 301); whether a claim against a national bank was an existing demand at the time the bank suspended (Chemical Bank v. Hart- ford D. Co., 161 U. S. 1); a question of State practice (Thorington v. City of Montgomery, 147 U. S. 490; Northern Pac. Ry. Co. v. Patterson. 154 U. S. 130; Lambert v. Barrett, 159 U. S. 660); the sufficiency of an indictment found in a State court (Ke Robertson, 156 U. S. 183); the denial of an application to amend a petition for removal (Stevens' Adm'r v. Nichols, 157 U. S. 370); the construction of a State statute (Dougherty v. Nevada Bauk, 160 U. S. 171; Bacon v. State of Texas, 163 U. S. 207); time when a cause of action accrues under a State statute (Great Western Tel. Co. V. Purdy, 162 U. S. 329). Where the question is not as to the validity of the Constitution or act but merely as to the application of the same to the case no Federal question is in- volved (Cameron v. United States, 146 U. S. 533). The question of estoppel and bar by former judg- ments is not a Federal question (California v. IIol- laday, 159 U. S. 415). The right of the plaintiff in error is limited to the inquiry whether, in the case presented, the statute is so applied as to deprive him o't" property without due process of law (Castillo v. McConnico, 168 U. S. 674). In order to sustain a writ of error the record must show that the act of the legislature violates the Constitution of the United Stales, not merely the State constitution (Levy v. Su- perior court of San Francisco, 167 U. S. 175; Kipley v. State of Illinois, 170 U. S. 182; Galveston H. & S. A. K. Co. V. State of Texas, 170 U. S. 226; Sage v. Board of Liquidation, 144 U. S. 647; Adams v. Same, 779 SUPREME COUBT— JURISDICTION, § 223 144 U. S. 651). The construction which a State court places upon its own judgments (Newport Light Co. V. City of Newport, 151 U. S. 527). Under treaty. — (Owings v. Norwood, 5 Cranch, 344; Martin v. Hunter, 1 Wheat. 304; Moreland v. Page, 20 How. 522; Mining Co. v. Boggs, 3 Wall. 304; Ma- guire V. Tyler, 8 Wall. G50; Ward v. Race Horse, 163 U. S. 504; Budzisz v. Illinois Steel Co., 170 U. S. 41). Right and title to lands. (Gordon v. Caldcleugh. 3 Cranch, 2G8; Matthews v. Zane, 4 Cranch, 382; Mc- Clung V. Silliman, 6 Wheat. 598; Buel v. Van Ness, 8 Wheat. 312; Fulton v. McAffee, 16 Peters, 149; City of Mobile v. Eslava, 16 Peters, 234; Crowell v. Ran- dell, 16 Peters, 368; Chouteau v. Eckhardt, 2 How. 344: McDonough v. Millaudon, 3 How. 693; Walker V. Taylor, 5 How. 64; Scott v. Jones, 5 How. 343; Kennedy v. Hunt, 7 How. 586; Neilson v. Lagow, 7 How. 772; Almonester v. Kenton, 9 How. 1; Doe, ex deni. Barbaric v. Eslava, 9 How. 421; Henderson v. Tennessee, 10 How. 311; Lessieur v. Price, 12 How. 59.) The decision of the supreme court of Louisiana against a right asserted under a treaty presents a question for jurisdiction of this court. (Burthe v. Denis, 133 U. S. 514.) This section is section 25 of the Judiciary Act, reproduced, somewhat enlarged. (Burthe v. Denis, 133 U. S. 514. See Weston v. Charleston, 2 Peters, 449.) Personal rights.— Right to freedom. (Choteau v. Marguerite 12 Peters, 507; Strader v. Graham, 10 How. 82; Ward v. Race Horse, 163 U. S. 504.) To writ of habeas corpus. (Holmes v. Jennison, 14 Pe- ters, 540.) To religious liberty, (Permoli v. First Municipality, 3 How. 589.) In criminal cases.— A state may not sue out a writ of error except in a case under and in accordance § 238 SUPREME COURT— JURISDICTION. 780 with express statutes. (U. S. v. Sanges, 144 U. S. 31U.) AVliere a party under indictment for violation of a State law pleads a license from the United States, and decision of State court is against the li- cense, the United States supreme court has juris- diction. (McGuire v. Com., 3 Wall. 382.) The re- versal of a judgment in a criminal case by State supreme court ordering new trial is not a "final judg- ment." (Rankin v. State, 11 Wall. 380.) Tax repug- nant to United States constitution. (Weston v. Charleston, 2 Peters, 449.) Consideration of a con- tract. (Craig V. Missouri, 4 Peters, 410.) Not on a State law only. (McBride v. Hoey, 11 Peters, 167; Commercial Bank v. Buckingham, 5 How. 317; Scott V. Jones, 5 How. 343; Congdon v. Goodman, 2 Black, 574; Michigan C. R. Co. v. Michigan S. R. R., 19 How. 379; Withers v. Buckley, 20 How. 84; Beers v. Arkan- sas, 20 How. 527; Medberry v. Ohio, 24 How. 413; Porter v. Foley, 24 How. 415; Attorney General v. Meeting House, 1 Black, 262; Austin v. The Alder- men, 7 Wall. 694; Worthy v. The Commissioners, 9 Wall. 611. J State decision against execution by United States marshal. (Clements v. Berry, 11 How. 398; Buck v. Colbath, 3 WaU. 334; Sharpe v. Doyle, 102 U. S. 686.) Against validity of an entry of land allowed by United States officei'S. (Lytle v. Arkansas, 22 How. 193.) Title to land. (Bell v. Hearne, 19 How. 252; Burke v. Gaines, 19 How. 388; Wyun V. Morris, 20 How. 3; Berthold v. McDonald, 23 How. 334; Laufear v. Hunley, 4 Wall. 205; Car- penter V. Williams, 9 Wall. 785.) Authority of Unit- ed States marshal. (Buck v. Colbath, 3 Wall. 334.) In insolvency. (Crapo v. Kelly, 16 Wall. 610.) In bankruptcy. (Strader v, Baldwin, 9 How. 261; Cal- cote V. Stanton. 18 How. 243.) Mexican treaty. (Gill V. Oliver, 11 How. 529.) If the State refuses to carry into effect the mandate of the supreme court, the 781 .Si;Pl{EME COUBT— JURISDICTION. § 323 latter will proceed to a final decision and award ex- ecution (Martin v. Hunter, 1 Wheat. 304), and may send its process to either the appellate or the inferior court of a State. (Williams v. BrufCy, 102 U. S. 248.) The power to review does not extend to statutes passed by Territorial legislatures. (Miners' Bank v. Iowa, 12 How. 1; Messenger v. Mason, 10 Wall. 507.) Questions of evidence. (Mackay v. Dillon, 4 How. 421; White v. Wright, 22 How. 19; Dupasseur v. Eochereau, 21 Wall. 132; Railroad Co. v. Mai-yland, 21 Wall. 456; Edwards v. Elliott, 21 Wall. 532; Moore V. Mississippi, 21 Wall. 636; Atherton Ex. v. Fowler, 3 Cent. L. J. 60; Long v. Converse, 8 Chic. L. N. 121: S. C. 13 Alb. L. J. 118. Practice.— Remedy by writ of error. (Verden v. Ooleman, 22 How. 192; Webster v. Reid, 11 How. 437.) Right of. (Twitchell r. The Commonwealth. 7 Wall. 321.) Waiver of right. (Erwin v. Lowry, 7 How. 172.) When operates as supersedeas. (O'Dowd V. Russell, 14 Wall. 402; see Hamilton Co. v. Massachusetts, 6 Wall. 632; Tarver v. Keach, 15 Wall. 67; The Victory, 6 Wall. 382.) Remanding cause for further proceedings. (Winn v. Jackson, 12 Wheat. 135; Pepper v. Dunlap, 5 How. 51.) Dis- missal. (Christ Church v. Philadelphia. 20 How. 26; Millingar v. Hartupee, 6 Wall. 258; Gleason v. Flor- ida, 9 Wall. 779; Bartcineyer v. Iowa, 14 AVall. 26; Hurley v. Street, 14 Wall. 85; Penny wit v. Eaton, 15 Wall. 380: Stanley v. Schwalby, 162 U. S. 255; Bacon V. State of Texas, 163 U. S. 207; Eustis v. Bolles, 150 U. S. 361.) For defect of parties. (Railroad Co. v. Johnson, 15 Wall. 8.) Interlocutory decree. (Red- dall V. Bryan, 24 How. 42!J.) Final judgment, what is. (Weston V. Charleston, 2 Peters, 449; Olney v. Arnold, 3 Dall. 308.) Advei'se party. (Poydras de la Lande v. Treasurer, 17 How. 1.) Writ, to what Fed. Proc— 66. ^ 224 SUPREME COURT— JUKISDICTION. 782 court issued. (Miller v. Joseph, 17 Wall. 655; Stanley V. Scbwalby, 162 U. S. 255.) When jurisdiction does not attach. (Randall v. Howard, 2 Black, 585; Day V. Gallup, 2 Wall. 97.) When portion of State judg- ment is correct and separable. (Bank of Commerce V. State of Tennessee, 163 U. S. 416.) § 224. Precedence of writs of error to State courts ill criminal cases. — Cases on writ of error, to revise the judgment of a State court in any crim- inal cases, shall have precedence on the docket of the supreme court of all cases to which the govern- ment 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. (Eev. Stats, sec. 710.) 783 COMMON TO MORE THAN ONE COUBT. OHAPTBR XIV. PKOVISIONS COMMON TO MORE THAN ONE COURT OR JUDGE. § 225. Exclusive jurisdiction of courts of United States. § 226. Oath of United States judges. § 227. Judges prohibited from practicing law. § 228. Judges resigning entitled, in certain cases, to salary for life. § 229. Criers of the courts — Attendants on jui-ies. § 230. Property in hands of receiver. § 231. That every receiver may be sued without previous leave of court. § 232. Issue of search warrants. § 233. Warrant of search to custom officers. § 234. WaiTant to revenue officers. § 235. Power to issue writs. § 236. Mandamus against common carrier. § 237. Writs of ne exeat. § 238. Temporary restraining orders. § 239. Injunctions. § 240. Injunction to stay proceedings in State courts. § 241. Laws of the States, niles of decision. § 242. Proceedings, civil and criminal, in vindica- tion of civil rights. § 243. When suits in equity may be maintained. § 244. Power to order production of books and writ- ings in actions at law. § 245. Power to impose oaths and punish contempts. § 246. Occupants of lands— Remedies for improve- ments. § 225 COMMON TO MORE THAN ONE COURT. 7S4 § 247. New trials. § 248. Power to hold to security for the peace and good behavior. § 24U. Power to enforce awards of foreign consuls, etc., in certain cases. § 250. Proceedings to enjoin compti-oller of the cur- rency. § 2.51. Suits, where brought § 2.52. Parties may plead their OAvn causes. § 253. Officers forbidden to practice as attorneys. § 254. Penalty. § 255. Final record— How made. §225 (711). Exclusive jurisdiction of courts of United States. — The jurisdiction vested in the courts of the United States, in the cases and pro- ceedings hereinafter mentioned, shall be exclusive of the courts of the several States — First. Of all crimes and offenses cognizable un- der the authority of the United States. Second. Of all suits for penalties and for- feitures incurred under the laws of the United States. Third. Of all civil causes of admiralty and mar- itime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, where the com- mon law is competent to give it. Fourth. Of all seizures under the laws of the United States, on land or on waters not within ad- miralty and maritime jurisdiction. Fifth. Of all cases arising under the patent- right or copyright laws of the United States. Sixth. Of all matters and proceedings in bank- ruptcy. 785 COMMON TO MORE THAN ONE COURT. § 226 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. (Eev. Stats, sec. 711.) Note.— By the statutes of the United States, Fed- eral courts have jui'isdiction, exclusive of the courts of the several States, of "all crimes and offenses cognizable under the authority of the United States." (Rev. Stats., sec. 711, cl. 1; Cross v. State. 132 U. S. 132; Thomas v. Loney, 134 U. S. 372.) Section 711 de- fines the cases in which "the jurisdiction vested in the courts of the United States" shall be "exclusive of the courts of the several States," and among such are "all suits for penalties and forfeitures incurred under the laws of the United States." (First Nat. Bank of Charlotte v. Morgan, 132 U. S. 141.) The criminal jurisdiction of the Federal courts does not extend to the great lakes and their connecting wa- ters. (Ex parte Byers, 32 Fed. Rep. 404.) The com- mon-law rule that qui tarn actions on penal statutes do not survive prevails in the Federal courts as to actions on penal statutes of the United States, even in States where the statutes of the State allow suits on State penal statutes after the death of the of- fender. (Schreiber v, Sharpless, 110 U. S. 76.) A Federal court does not, by virtue of an attachment levy, draw to itself the question of the title of the attached property, so as to prevent the State courts from deciding such question in a suit subsequently brought. (Montgomery v. McDermott, 87 Fed. Rep. 374.) § 226 (712). Oath of United States judges.— The justices of the supreme court, the circuit judges, and the district judges, hereafter appoint- ed, shall take the following oath before they pro- §§ 227-228 COMMON to more than one coubt. 780 ceed to perform the duties of their respective of- fices: "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 1 will faithfully and impartially dis- charge and perform all the duties incumhent on me as , according to the best of my abilities and understanding, agreeably to the Constitution and law^s of the United States: So help me God." (Kev. Stats, sec. 713.) § 227 (713). Judges prohibited from practic- ing law. — It sliall not be lawful for any judge ap- pointed under the authority of the United States to exercise the profession or employment of coun- sel or attorney, or to be engaged in the practice of the law. And any person offending against the prohibition of this section shall be deemed guilty of a high misdemeanor. (Rev. Stats, sec. 713.) Note.— .Tudges are not liable in civil suits for their judicial acts. (Pliilbrook v. Newman, 85 Fed. Rep. l?,i).) It is no objection to a judge trying a case that before his appointment he was attorney in other matters for one of the parties. (Can- v. Fife, 156 U. S. 494.) ^ 228 (714). Judges resigning entitled, in cer- tain cases, to salary for life. — Wlien any judge of any court of the United States resigns his office, after having held his commission as such at least ten years, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the same salary which was by law pay- able to him at the time of his resignation. 787 COMMON TO MORE THAN ONE COURT. §§ 229-230 § 229 (715). Criers of the courts — Attendants on juries. — The circuit and district courts may ap- point criers for their courts, to be allowed the sum of two dollars per day, and the marshals may ap- point such a number of persons, not exceeding five, as the judges of their respective courts may deter- mine, to attend upon the grand and other juries, and for other necessary purposes, who shall be al- lowed for their services the sum of two dollars per day, to be paid by and included in the accounts of the marshal, out of any money of the United States in his hands. Such compensation shall be paid only for actual attendance, and when both courts are in session at the same time, only for attendance on one court. (Eev. Stats, sec. 715.) § 229 a. Criers, when deemed in attendance; Vacation. — That all persons employed under sec- tion seven hundred and fifteen of the revised stat- utes shall be deemed in actual attendance when they attend upon the orders of the courts; no such person shall be employed during vacation. (30 U. S. Stats. 58.) § 230. Property in hands of receiver. — • 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 man- ager shall manage and operate such property ac- cording to the requirements of the valid laws of the State in which such property shall be situated, ih the same manner that the owner or possessor thereof would be bound to do if in possession there- § 230 COMMON TO MORE THAN ONE COURT. 788 of. Any receiver or manager who shall willfully violate the provisions of this section shall be deemed guilty of a misdemeanor, and shall, on con- viction thereof, be punished by a fine not exceed- ing three thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. (25 U. S. Stats. 433, sec. 2.) Property in possession of receiver. — Whore the property in litigation is in the possession of a receiver of the circuit court, such possession draws to it the right to decide conflicting claims to its ultimate pos- session and control. (Morgan's La. & Tex. R. & S. Co. V. Texas Cent. R. Co., 137 U. S. 171; Milwaukee etc. R. Co. V. Soutter, 2 Wall. 510; People's Bank v. Calhoun, 102 U. S. 256; Krippendorf v. Hyde, 110 U. S. 27G.) A receiver appointed befoi'e the removal remains in possession until he is removed. (Hinck- ley V. Itailroad Co., 100 U. S. 153.) An attachment suit, being the flrst levied, was removed to the Fed- eral coiu't, the State court directing the receiver to retain so much of the fund as belonged to that suit and pay the balance into the registry of the State court, which was done. On the failure of the re- moved attachment in the Federal court, the fund would not be returned to the State court to answer subsequent attachments not removed; but by the re- ceiver should be paid under the order of the State court. (Mack v. .Tones, 31 Fed. Rep. 189.) A receiver will be protected in the possession and use of fran- chises and property committed to him. (Fidelity T. & Safety Vault Co. v. Mobile St. Ry. Co., 53 Fed. Rep. G87; Sullivan v. Colby, 34 U. S. App. 422; 71 Fed. Rep. 4G0.) Primary and ancillary receivers. (Wheel- ing Bridge & T. Ry. Co. v. Cochran. 85 Fed. Rep. 789 COMMON TO MORE THAN ONE COURT. § 230 500; Bayne v. Brewer Pottery Co., 82 Fed. Rep. 391; Ames V. Union Pac. Ry. Co., 60 Fe8 Fed. Rep. QS5.) A suit against a receiver appointed by a Federal court, brought without leave, is removable since it involves the construction of the pi'ovisions of the amendatory act of March 3, 1887, permitting a suit in a State court against a receiver appointed by a Federal court. (Evans v. Dillingham, 43 Fed. Rep. 177.) A suit to recover property ac- quired by the removing defendant as receiver of a national bank by authority of the laws of the United States arises under the laws of the United States within the meaning of the Removal Act of August 13, 1888. (Sowles v. Witters, 43 Fed. Rep. 700.) An action between a receiver of an insolvent national bank and a depositor, involving only the right of set- off of deposits against notes due by the depositor, does not present a Federal question under Revised Statutes, sec. 5342. (Tehan v. First Nat. Bank, 89 Fed. Rep. 577.) Where receivers of a railroad run- ning through Arkansas, who were appointed in that State, had removed into another State, held, that the court would authorize them to be sued in the State courts of Arkansas by service on their station agents § 231 COMMON TO MORE THAN ONE COURT. 792 or clerks therein. (Central Trust Co. of N. Y. v. St. Louis A. & T. R. Co., 40 Fed. Rep. 426.) The per- mission by statute to sue a Federal receiver extends to any court of competent jurisdiction not merely by Federal court. (Central Trust Co. v. East Tennessee V. & G. Ry. Co.. 50 Fed. Rep. 523; Texas & Pac. R. R. Co. V. Johnson, 151 U. S. Si.) Where property is in tlie liands of a receiver appointed by a court, an independent suit to foreclose a mortgage cannot be maintained, even in the same court. (American Loan & T. Co. V. Central Vermont R. Co.. 86 Fed. Rep. 31)0.) When the jurisdiction of the court in which the receiver is sued is conferred by Federal laws, and when such jurisdiction is exclusive, consent of the appointing court is not necessary in order to sue the receiver. (Hupfeld v. Automaton Piano Co., 06 Fed. Rep. 788.) A receiver of a State court cannot be sued without the consent of the appointing court. (Porter v. Sabin. 149 V. S. 473.) The right of a re- ceiver to be sued in a certain district is a personal privilege which may be waived by an appearance and answer. (Texas &, Pac. Ry. Co. v. Cox, 145 U. S. 593.) The statute allowing receivers of Federal courts to be sued without leave applies to a receiver appointed by a Territorial court for a corpoi'ation created by act of Congress. (Wheeler v. Smith, 81 Fed. Rep. 319.) A receiver may not be sued without leave of the court appointing him for alleged wrong- ful acts committed in the operation of the road be- fore he became the receiver. (.Tones v. Schlapback, 81 Fed. Rep. 274.) The right to sue a receiver with- out leave of court does not extend to a suit to estab- lish a right to the property placed in his custody adverse to his right thereto. (J. I. Oase Plow Works V. Finks, 81 Fed. Rep. 529.) A judgment rendered in a State court against a I'ederal receiver is con- clusive as to the existence and amount of plaintiff's 793 COMMON TO MORE THAN ONE COURT. § 232 claim, but tlie time and manner of payment are to be controlled by the appointing court. (Dillingham v. Hawk, 23 U. S. App. 273; 60 Fed. Rep. 494.) § 232. Issue of search warrants in certain cases. — The several Judges of courts established under the laws of the United States and the com- missioners of such courts may, upon proper oath or affirmation, within their respective Jurisdictions, issue a search-warrant authorizing any marshal of the United States, or any other person specially mentioned in such warrant, to enter any house, store, building, boat or other place named in such warrant, in the day-time only, in which there shall appear probable cause for believing that the manu- facture of counterfeit money, or the concealment of counterfeit money, or the manufacture or con- cealment of counterfeit obligations or coins of the United States or of any foreign government, or the manufacture or concealment of dies, hubs, molds, plates, or other things fitted or intended to be used for the manufacture of counterfeit money, coins or obligations of the United States or of any foreign government, or of any bank doing business under the authority of the United States or of any State or Territory thereof, or of any bank doing business under the authority of any foreign government or of any political divis- ion of any foreign government, is being carried on or practiced, and there search for any sach coun- terfeit money, coins, dies, hubs, molds, plates, and other things, and for any such obligations, and if any such be found, to seize and secure the same, Fed. PR c— 67. §g 233-234 COMMON to more than one coukt. 794 and to make return thereof to the proper authority; and all such counterfeit money, coins, dies, hubs, molds, plates, and other things, and all such coun- terfeit obligations so seized, shall be forfeited to the United States. [Approved February 10, 1891.] (26 V. S. Stats. 743.) § 233. "Warrant to search to custom officers. — If any collector, naval officer, surveyor, or other person specially appointed by either of them, or inspector, shall have cause to suspect a conceal- ment of any merchandise in any particular dwell- ing-house, store, building, or other place, they, or either of them, upon proper application on oath to any justice of the peace, shall be entitled to a warrant to enter such house, store, or other place, in the day-time only, and there to search for such merchandise, and i,f any shall be found to seize and secure the same for trial; and all such merchandise, on which the duties shall not have been paid or secured to be paid, shall be forfeited. (Rev. Stats, sec. 30G6.) § 234. Warrant may issue to internal revenue officer. — The several judges of the circuit and dis- trict courts of the United States and commissioners of the circuit courts ma^'', within their respective jurisdictions, issue a search-warrant, authorizing any internal revenue officer to search any premises within the same, if such officer makes oath in writ- ing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being 795 COMMON TO MORE THAN ONE COURT. § 235 committed upon or by the use of the said premises. (Eev. Stats, sec. 34G2.) §235, (716). Power to issue writs. — The su- preme court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective juris- dictions, and agreeable to the usages and principles of law. (Eev. Stats, sec. 716.) Writ of certiorari.— Russell v. Thomas, 31 Leg. Int, 189; Ex parte Van Orden, 3 Blatchf. 166; Fed. Cas. No. 16S70; Patterson v. U. S., 2 Wheat. 221; Ex parte Martin. 5 Blatchf. 303; Fed. Cas. No. 91.51; Ex parte Stnpp. 12 Blatchf. 501; Fed. Cas. No. 13.563; Ex parte Bollman, 4 Cranch, 75; Ex parte Buford, 3 Cranch, 447; U. S. V. Young, 94 U. S. 258; Ex parte Vallan- digham, 1 Wall. 243; U. S. v. Adams, 9 Wall. 661. Scire facias. — Oral evidence on scire facias. (Hunt V. United States, 19 U. S. App. 683; 61 Fed. Rep. 795.) Capias ad satisfaciendum. — Right not limited by State statute. (United States v. Arnold, 34 U. S. App. 177; 69 Fed. Rep. 987.) Writ of mandamus.— Wheeling v. Mayor, 1 Hughes, 90; Graham v. Norton, 15 Wall. 427; U. S. V. New Orleans, 98 U. S. 381; Riggs v. Johnson, 6 Wall. 166; Ex parte Holman, 28 Iowa. 88; Supeiwisors V. U. S., 4 Wall. 435; Galena v. Amy, 24 How. 376; Com. V. Sellew, 99 U. S. 624: Smith v. Allyn, 1 Paine, 453; Fed. Cas. No. 13000; The New England, 3 Sum. 495; Fed. Cas. No. 10151; Ex parte Hoyt, 13 Peters» 279; The Enterprise, 3 Wall. .Jr. 58; Fed. Cas. No. 4500.) To State courts. (Ladd v. Tudor, 3 Wood & § 235 COMMON TO MOBE THAN ONE COURT. 796 M. 325; Fed. Cas. No. 7975; Fisk v. Union Pac. R. R. Co., 6 Blatchf. 3G2; Fed. Cas. No. 4S27; Hough v. West. Trans. Co., 1 Biss. 42.5; Fed. Cas. No. 6724; Rosenbaum v. Bauer, 120 U. S. 450; Labette County V. United States, 112 U. S. 217; In re Slierman, 124 U. S. 364; United States v. Seaboard Ry. Co. of Ala- bama, 85 Fed. Rep. 935; Deuel Co. v. First Nat. Bank, U. S. App.; 86 Fed. Rep. 264; 74 Fed. Rep. 373.) Writ of execution. — Wayman v. Southard, 10 Wheat. 1; Bank of U. S. v. Halstead, 10 Wheat, 51. Writ of attachment.— Voss v. Luke. 1 Cranch C. C. 331; Fed. Cas. No. 17014; U. S. v. AVilliams, 4 Cranch a C. 372; Fed. Cas. No. 16712; Montgomery v. Mc- Dermott, 83 Fed. Rep. 576. Writ of assistance. — Terrell v. Allison, 21 Wall. 289. It should not issue against one not a party to the suit. (Comer v. Felton, 22 U. S. App. 313; 61 Fed. Rep. 731.) Writ of inhibition. — Penhallow v. Doane, 3 Dall. 54. Writ of injunction. — An injunction will not be granted by a United States court to interfere with the possession, control, or disposition of property in the hands of the State court (Hutchinson v. Green, 2 Mc- Crary, 471); so if the sheriff has possession of prop- erty under process of the State court he cannot be displaced by process from the Federal court (Watson V. .Tones, 13 Wall. 679); nor can a Federal court in- terfere ■with property in the hands of a receiver ap- pointed by the State court (Mercantile Trust Co. v. Lamoille Val. R. R. Co., 10 Blatchf. 324; Fed. Cas. No. 9^.'^2); nor can a party be restrained from taking possession of property which a judgment of the State court requires to be delivered to him. (Watson 797 COMMOX TO MORE THAN ONE COURT. g§ 236 237 r. Jones, 13 Wall. 679. See Claybrook v. Oweusboro, 16 Fed. Rep. 303.) A court of equity may enjoin an act to protect property rights, even tliough the act sought to be enjoined is also a violation of the crim- inal law. (Nashville C. ik St. L. Ry. Co. v. McCon- uell, 82 Fed. Rep. tw.) It is not a fatal objection that the use of the writ of injunction for the par- ticular puiTJOse for which it is sought is novel. (Nash- ville C. & St. L. Ry. Co. V. McConnell, 82 Fed. Rep. 65.) Writ of subpoena.— A subpoena duces tecum can- not issue to a witness not a party to a suit to com- pel him to bring before, the court patterns for a stove, (In re Shepard, 18 Blatchf. 226; 3 Fed. Rep. 12.) § 236. Mandamus against common carrier. — The United States courts shall have jurisdiction upon the relation of any person or persons, firm or corporation, to issue a writ or writs of mandamus against a common carrier, commanding such car- rier to move and transport traffic, or to furnish cars or other facilities for transportation for the party applying for the writ, under the Act of March 2, 1889, amendatory of an act to regulate commerce, approved February 4, 1887. (25 U. S. Stats. 862, sec. 19.) Circuit courts have jurisdiction to com- pel common carriers, under the inter-State com- merce act, to publish rates of fares and freights. (24 U. S. Stats. 382.) § 237 (717). Writ of ne exeat.— Writs of ne exeat may be granted by any justice of the supreme court in cases where they might be granted by the supreme court; and by any circuit justice or circuit § 238 COMMON TO MOEE THAN ONE COURT. 798 judge in cases where they might be granted by the circuit court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the de- fendant designs quickly to depart from the United States. (Eev. Stats, sec. 717.) ■ Writ of ne exeat.— The writ cannot be issued un- less a pai-ty intends to leave the United States. (LoTvenstein v. Biernbaum, 8 Week. Notes. 163; Fed. Cas. No. 8461a; see Patterson v. McLaughlin, 1 Cl-anch G. C. 3.^2; Fed. Cas. No. 10828; Union Mutual Ins. Co. V. Kellogg, 5 Week. Notes, 477; Fed. Cas. No. 14373.) To obtain the writ, the party must SAvear positively to a debt or to a belief that a cei-tain bal- ance is due him. (Gernon v. Boecaline, 2 Wash. C. G. 130; Fed. Oas. No. 5677.) It must be an equitable debt or pecuniary claim, and be certain, or capable of reduction to certainty. (Graham v. Stucken, 4 Blatchf. 50; Fed. Cas. No. 5677.) So a claim for thrf return of proi)erty is not sufficient. (Graham v. Stucken, 4 Blatchf. 50: Fed. Cas. No. 5677.) A dis- trict judge has no power to award the writ. (Gernon v. BoecaJine, 2 Wash. C. G. 130; Fed. Cas. No. 5367.) The question of the propriety of issuing a writ of ne exeat cannot be raised by demurrer. (Shainwald V. Lewis, 69 Fed. Rep. 487.) § 238 (718). Temporary restraining orders. — Whenever notice is given of a motion for an in- junction out of a circuit or district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be. enjoined until the decision upon the motion; and such order may be 799 COMMON TO MORE THAN ONE COURT. § 238 granted with or without security, in the discretion of the court or judge. (Eev. Stats, sec. 718.) Temporary injunctions.— An injunction may be grantee! on motion witliout previous notice to the adrerse party (Yuengling v. Johnson, 1 Huglies, 607; Fed. Cas. No. 18195); but the court may in its dis- cretion require notice to be given (Iving v. Hughes, 7 Am. Law Reg., N. S., 209; Fed. Cas. No. 7076; In re Wallace, 1 DeadJ^ 433; Fed. Cas. No. 17094; In re Muller, 1 Deady, 513; Fed. Cas. No. 9912; In re Carl- ton, 1 Deady, 292; Fed. Cas. No. 4769; In re Smith, 1 N. y. Leg. Obs. 231; Fed. Cas. No. 32.j4); and what is reasonable notice depends on the circumstances of the case. (New Yorli v. Connecticut, 4 Dall. 1.) It should not be granted without notice, whether grant- ed by the court or a judge thereof. (New York v. Connecticut, 4 Dall. 1; Wynn v. Wilson, Hemp. 698; Fed. Cas. No. 18116; Lawrence v. Bowman, 1 McAll. 419; Fed. Cas. No. 8134; Perry v. Parker, 1 Wood & M. 280; Fed. Cas. No. 11010.) If a party voluntarily appeai-s, it will be presumed that he had regular and timely notice. (Marsh v. Bennett, 5 McLean, 117; Fed. Cas. No. 9110; Bradley v. Reed, 12 Pittsb. L. J. 65; Fed. Cas. No. 1785.) Interlocutory injunctions may be granted to restrain the mining of ores pend- ing an action at law. (St. Louis M. & M. Co. v. Montana M. Co., 58 Fed. Rep. 129.) The burden of proof is on defendant to show cause for dissolving a temporary injunction (Edison El. Light Co. ^. Buckeye El. Co., 59 Fed. Rep. 691); a motion to dit- solve should always, when practicable, be addressea to the judge w^ho gi-anted it, and in case of his death two judges should hear the motion to dissolve (Westerly W. Co. v. Westerly, 77 Fed. Rep. 783.) A' preliminary injunction merely preseiwes matters in statu quo, and cannot direct the restoration of prop- § 239 COMMON TO MORE THAN ONE COURT. !S00 erty to its condition before being disturbed (Soutli- ei-n Pac. Ry. Co. v. City of Oalilaud, 58 Fed. Rep. 50.) A tenipoi-ary injunction sliould not be granted in a case of new impression if it would be pos.si'ble to effectuate justice in any otiier way (Ladd v. Ox- nard, 75 Fed. Rep. ~0'd.) It should not be granted except in cleai* cases of pressing necessity (Amer- ican Cereal Co. v. Eli Pettijohn C. Co., 4G U. S. App. 188; 76 Fed. Rep. 372; Home Ins. Co. v. Nobles, 63 Fed. Rep. 642.) A temporai'y injunction will not be granted on a bill cleai'ly demurrable (Ladd v. Ox- nard, 75 Fed. Rep. 703.) On application for prelim- inary injunction where grave questions are involved, the court should not decide the merits of the contro- versy; probable right and danger to that right should be sutiicient (New Memphis Gas & L. Co. v. City of Memphis, 72 Fed. Rep. 952; City of Newton V. Lewis, 49 U. S. App. 266; 79 Fed. Rep. 715.) A mere temporary restraining order granted ex parte may be dissolved on motion before answer filed, even where the bill is one for discovery (Fen wick llall Co. V. Town of Old Saybrook. 66 Fed. Rep. 389.) Public inconvenience is not to be considered wliere a refusal of the order would work serious injury to plaintiff (Westinghouse Air Brake Co. v. Burton Stock Car Co., 70 Fed. Rep. 619.) Whenever it is manifest that, on the case made, an injunction will be granted on tinal hearing, one should be granted preliminarily in the absence of special facts (Aliing- tou & C. Mfg. Co. V. Booth, 45 U. S. App. 627; 78 Fed. Rep. 878.) § 239 (719). Injunctions. — Writs of injunc- tion may be granted by any justice of the supreme court in cases wliere they might be granted l)y the supreme court; and by any judge of a circuit court 801 COMMON TO MOKE THAN ONE COURT. g 239 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 cir- cuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipula*te in writing, except when it cannot be heard by the circuit judge of the circuit or the district judge of the district. And an in- junction shall not be issued by a district judge as one of the judges of the circuit court, in any case where a party has had a reasonable time to apply to the circuit court for the writ; nor shall any injunc- tion so issued by a district judge continue longer than to the circuit court next ensuing, unless so orrlered by the circuit court. (Rev. Stats, sec. 719.) Justice of supreme court.— A justice of the su- preme court may hear an application outside the cir- cuit when from any cause the parties cannot px'esent it to the circuit or district .uidge (Sea.vles y. Jnclvsni- Tille, P. & M. R. E. Co., 2 Woods, 621; Fed. Cas. No. 12586), or in case of absence or siclvness of the cir- cuit and district judges (Searles v. Jaclisouville, P. & M. E. E. Co., 2 Woods, 621; Fed. Oas. No. 12586); and if the allotted justice and the circuit and disti-ict judges are absent from the district and circuit, the writ may be allowed by a justice allotted to another circuit. (United States v. L. & P. Can. Ct>., 4 Dill. 601; Fed. Cas. No. 15633.) Circuit judge.— A circuit judge cannot issue the writ at a distance from tlie cleric's ofhce when the court is in session. (^Goodyear Dental V. Co. v. Fol- som, 3 Fed. Rep. 509.) § 240 COMMON TO MOKE THAN ONE COURT. 802^ District judge.— The district judge, when holding the circuit couit, may issue the writ (Goodyear Den- tal V. Co. V. Folsom, 3 Fed. Rep. 509); but he cannot issue it beyond his jurisdiction further than to the next term of the circuit court (In re Dudley, 1 Penn. L. J. 302; Fed. Cas. No. 4114), when it ceases to be in force unless an order is made for its continuance. (Parker v. Judges, 12 Wheat. 561; Gray v. Chicago, Iowa & N. E. R. Co.. 1 Woodw. 03; Fed. Cas. No. 5713); but if the circuit court refuses to dissolve it, it may be treated as an order for its continuance. (Parker v. Judges, 12 Wheat. 5G1.) A district judge cannot sign a writ of injunction in vacation, when the circuit court can be applied to. (Goodj'^ear Den- tal V. Co. V. Folsom, 3 Fed. Rep. 509.) § 240 (720). Injunction to stay proceedings in State courts.-^The writ of injunction shall not be granted by any court of the United States to stay proceedings in any conrt of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. [See sec. 5106.] (Rev. Stats, sec. 720.) In general. — This section must be construed in connection with section 716. (Sharon v. Teri'y, 1 L. R. A. 572.) The prohibition in this section against injunctions by Federal courts to stay proceedings in a State court except in bankruptcy cases, is not in any part repealed or abrogated by U. S. Rev. Stats., sec. 1979, which Mas a part of the Civil Rights Bill of 1871. (Hemsley v. Myers, 45 Fed. Rep. 283.) Restraining proceedings in State courts. — This section applies to the restraint of suits, which, but for the injunction, the State court would have juris- diction over (In re Long Island etc. Trans. Co., 5 803 COMMON TO MORE THAN ONE COURT. § 240 Fed. Rep. G28), and only such as are commenced in a State court before proceedings in the Federal court have been commenced (Fislc v. Union I'ac. K. Co., 10 Blatchf. 518; Fed. Cas. No. 4830); for if a suit be commenced in the Federal court, subsequent proceed- ings in a State court may be restrained. (Fisk v. Union Pac. R. Co., 10 Blatchf. 518; Fed. Cas. No. 4830; Lanning v. Osborne, 79 Fed. Rep. 657; President of Bovvdoin College v. Merritt, 59 Fed. Rep. 6; In re Whitelaw, 71 Fed. Rep. 733.) It is now thoroughly set- tled that the statute forbidding the Federal courts to enjoin proceedings in a State court aoes not apply to proceedings incidental to jurisdiction properly acquir- ed by a Federal court for other purposes than that of enjoining proceedings in a State court (Garner v. Second Nat. Bank, 33 U. S. App. 91; 67 Fed. Rep. 833; Central Trust Co. v. St. Louis A. &. T. Ry. Co., 59 Fed. Rep. 385; Terre Haute & G. R. Co. v. Peoria etc. R. R. Co., 82 Fed. Rep. 943.) "Proceed- ings" include all steps taken in a suit from its In- ception to linal process. (United States v. Collins, 4 Blatchf. 142; Fed. Cas. No. 14834.) This section is an inhibition against staying a party in the conduct of the proceedings in a State court as much as an inhibition against an injunction, mandamus, or pro- hibition directed to the State court (Fisk v. Union Pac. R. Co., 6 Blatchf. 362; Fed. Cas. No. 4827); and its interpretation is restricted by sections six hun- dred and forty and six hundred and forty-six of the Revised Statutes to cases where the jurisdiction oi the courts of the United States is originally invoked for the purpose of staying proceedings in the State courts. (Perry t. Sharpe, 8 Fed. Rep. 24.) This sec- tion of tlie United States Revised Statutes prohibits Federal courts from issuing injunctions to stay pro- ceedings in State courts, except in matters of bank- ruptcy. And where lands were sold by order of the § 240 COMMON TO MORE THAN ONE COURT. 804 banki-uptcy court, the sale confii-med, and the cbn- veyauce made by the assij?uee, the Federal court was held to be without ijower to enjoiu a sale of the same land under an order of the State court. (Sargent v. Helton, 115 U. S. 348; New York & N. E. R. Co. v. Woodruff, 42 Fed. Rep. 4(>8; Tiichman v. Welch, 42 Fed. Rep. 548; Carpenter v. Talbot, 33 Fed. Rep. 537; Chapman v. Brewei", 114 U. S. 158; Hamilton v. Walsh, 23 Fed. Rep. 420; Hunt v. Fisher, 29 Fed. Rep. 801; Yick Wo v. Crowley, 26 Fed. Rep. 207; Lauderdale Co. v. Foster, 23 Fed. Rep. 516; Mc- Whirter v. Halsted, 24 Fed. Rep. 828; Ex parte Schulenburg, 25 Fed. Rep. 211; Weil v. Calhoun, 25 Fed. Kep. 8ii5; Wagner v. Drake, 31 Fed. Rep. 851; Suess V. Noble, 31 Fed. Rep. 855; see, also, French v. Hay, 22 Wall. 250; Dietzsch v. Huidekoper, 103 U. S. 41M:.) An entry upon lands by petitioner pending condemnation proceedings in a State court will not be enjoined by a Federal court. (Dillon v. Kansas City S. B. R. Co., 43 Fed. Rep. 109.) A Federal court is not prohibited by Rev. Stats., sec. 720, from issu- ing an injunction to restrain the prosecution in a State court of a multiplicity of threatened suits which have not been actually begun (Texas & Pac. Ry. Co. V. Kuteman, 13 U. S. App. 99; 54 Fed. Rep. 547.) The prohibition of injunctions against the State courts extends to all cases over which such courts fli'st get jurisdiction and applies to the officers- and parties in the courts as well as the courts them- solvos f^^^hitney v. Wilder, 13 U. S. App. 180; 54 Fed. Rep. 554.) A court of the United States cannot enjoin pro- ceedings in a State court. (Diggs v. Wolcott, 4 Cranch, 179; Rogers v. City of Cincinnati, 5 Mc- Lean, 337; Fed. Cas. No. 12008.) So the supreme court cannot enjoin proceedings in a subordinate 805 COMMON TO MORE THAN ONE COURT. § 240 State court, although it has allowed a writ of error to the judgment of the appellate court. (The Slangliter-house Cases, 10 Wall. 273.) The circuit court has no jurisdiction over the proceedings of a State court. (Bridges v. Sheldon, 18 Blatchf. 517; 7 Fed. Rep. 45; Watson v. Jones, 13 Wall. 679.) The statute applies to a case in which it is sought to en- join a town fi-om levying upon and selling property for the purpose of collecting an assessment of bene- fits for the laying out of a highway, which assess- ment the State court has ordered collected (Fanwick Hall Co. V. Town of Old Saybrook, 66 Fed. Rep. 389.) Although the circuit court has no jurisdiction over the proceedings in a State court, yet this section does not prevent it from releasing a defendant from pro- cess out of a State court violating its protection, or to prevent abuse of its privileges. (Bridges v. Shel- don, 18 Blatchf. 517; S. C. 7 Fed. Rep. 45; Hurst's Case, 4 Dall. 387.) So a circuit court may restrain parties from taking out criminal process under a State law which impairs the obligations of contrac! (Louisiana State Lottery Co. v. Fitzpatrick, 3 Woods, 222; Fed. Cas. No. 8541); nor does the section pro- hibit the district court, after a transfer of the ship and freight under the "Limited Liability Act," from restraining the prosecution of any suit gi'owing out of the disaster theretofore commenced and then pending in a State court. (In re Long Island etc. Trans. Co., 5 Fed. Rep. 627.) A circuit court cannot issue an injunction to stay proceedings in a Stati court. (The Slaughter-house Cases, 1 Woods, 21; Fed. Cas. No. 12938.) An injunction to restrain suits in the State court for the collection of taxes will not be granted (Moore v. Holliday, 4 Dill. 52; Fed. Cas. No. 9765); but under special circumstances a tem- porary injunction to restrain the collection of retro- spective taxes was allowed. (Moore v. Holliday, 4 Fed. Peoc— 68. § 240 COMMON TO MORE THAN ONE COXTRT. 806 Dill. 52; Fed. Oas. No. 9765.) Although a party files a bill of interpleader, yet he cannot restrain a de- fendant from prosecuting an action pending in the State court. (City Bank v. Skelton, 2 Blatchf. 14: Fed. Cias. No. 2739.) Where the jurisdiction of a court and the right of a plaintiff to prosecute his suit have once attached that right cannot be arrested or taken away by proceedings in another court. (Peck V. .Tenness, 7 How. 625.) So, if a marshal is sued in a State court for taking the goods of a third person on a writ of execution, the proceedings against him cannot be enjoined. (Evans v. Pack, 2 Flip. 267; Fed. Cas. No. 4566.) This section prohibits the issue of an injunction to restrain the sale of property under an execution issued out of a State court, al- though application is made by a third party whose property is taken. (Watson v. Bondurant, 2 Woods, 166; Fed. Cas. No. 17278; S. C. 30 La. An. 1; Daly V. The Sheriff, 1 Woods, 175; Fed. Cas. No. 3553; Perry v. Sharpe. 8 Fed. Rep. 23; contra, Cropper v. Coburn, 2 Curt. 465; Fed. Cas. No. 3416.) The Fed- eral court will not, at the instance of a receiver of a State court, enjoin creditox's who have attached property in a State court from prosecuting their suit (Hale V. Bugg, 82 Fed. Eep. 33.) The holder of a chattel mortgage cannot enjoin the sheriff from sell- ing the property under execution on a judgment against the mortgagor. (Ruggles t. Simonton, 3 Biss. 325; Fed. Cas. No. 12120.) The prohibition ex- tends to injunctions against proceedings to enforce a judgment obtained by a party in a State court (Louisville T. Co. v. City of Cincinnati. 73 Fed. lU'p. 716.) Courts of the United States have jurisdiction over executors and administrators where the parties have the requisite citizenship, and this jurisdiction is not ban-ed by subsequent proceetlings in insol- vency in the State court. In such case the courts 807 COMMON TO MORE THAN ONE COURT. § 240 may interpose in favor of a foreign creditor to ai'rest the distribution of any surplus of the estate of dece- dent. (Green v. Cteighton, 23 How. 90; see Youley V. Lavender, 21 "Wall. 276; January v. Powell, 29 Mo. 241.) The circuit court cannot issue an injunction to prevent a police ofhcer of a city from serving war- rants of arrest issued by a State court Tor violation of city ordinances, claimed to be in contravention of the fourteenth amendment of the United States Con- stitution and the treaty with China. (Yick "Wo v. Crowley, 26 Fed. Rep. 207.) Between courts of con- current jurisdiction the court first acquiring juris- diction will not be interfered with by another court. (Davis V. jDife Assn., 11 Fed. Rep. 781; Ward v. Todd, 103 U. S. 327.) Injunction will be refused by the Federal court where a valid judgment has been obtained in a State court against a national bank and the lien thereof has attached before the appointment of a receiver (Baker v. Ault, 78 Fed, Rep. 394.) The application of the statute is not affected by the fact that the land, a sale of which is sought to be re- strained is the property of the person asking the in- junction (Southern Bank Sz T. Co. v. Folsom. 43 U. S. App. 713; 75 Fed. Rep. 929.) Injunctions to stay proceedings in State courts were refused in the fol- lowing cases (Central Trust Co. v. Grantham, 83 Fed. Rep. 540; Reinach r. Atlantic & G. W. Ry. Co., 58 Fed. Rep. 33; Chicago Trust & Sav. Bank v. Bentz, 59 Fed. Rep. 645; Gates v. Bucki, 12 U. S. App. 69; 53 Fed. Rep. 961; American Assn. v. Hurst, 16 U. S. App. 325; 59 Fed Rep. 1; Moloney v. Massachusetts Ben. Assn.. 53 Fed. Rep. 209.) What constitutes a violation of an injunction against litigation in a State court, see Stateler v. California Nat. Bank, 77 Fed. Rep. 43. § 241 COMMON TO MORE THAN ONE COUBT. 808 On cause removed. — A circuit court will not order a stay of all proceedings iu a State court in a caasi,' re- moved into the circuit court (Fisk v. Union Pac. R. Co., 6 Blatchf. 3U2; Fed. Cas. No. 4827; Perry v. Sharpe, 8 Fed. Rep. 23); but after removal it has jurisdiction to continue in force an injunction al- lowed by the State court before the removal. (Smith V. Schwed, 6 Fed. Rep. 458; and see Rev. State, sees. 640, 046; Act of March 3, 1875, sec. 4; 18 Kev. Stats., sec. 571.) If plaintiff, after removal, brings an ac- tion in a State court upon a judgment rendered therein before removal, defendant may file a bill in the circuit court to restrain the proceedings. (French V. Hay, 22 Wall. 250.) Where a State court im- properly refuses a petition for removal, and renders final judgment in a replevin suit, and orders plain- tiffs to restore the property, and on their refusal to do so defendant sues on the replevin bond, the Fed- eral court may restrain the proceedings on such suit, the injunction being merely an am-illary pro- ceeding, and not forbidden by this section. (Kem v. Huidekoper, 103 U. S. 485.) § 241 (721). Laws of the States, rules of decis- ion. — The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be re- garded as rules of decision in trials at common law, in courts of the United States, in cases where they ppply. (Rev. Stats, sec. 721.) State laws as rules of decision in Federal courts. — As to questions not involving the U. S. Constitution or laws, or affecting the commercial intercourse or business of the country at large, but relating solely to a subject riiatter within State control, the Federal courts should follow the rules adopted by the State 809 COMMON TO MORE THAN ONE COUIiT. § 241 courts (Kowalski v. Chicago G. W. Ry. Co., 84 Fed. Rep. .586; Illinois Trust & Sav. Bank v. City of Ar- kansas, 40 U. S. App. 2.j7; 76 Fed. Rep. 272; Forsyth V. Hammond, 166 U. S. .j06). When a Federal court construes a State statute with reference to a new question and the State court subsequently interprets it differently the Federal court should thereafter con- form to such interpretation (Leighton v. Young, 10 U. S. App. 298; 52 Fed. Rep. 439; Sandford v. Poe, 37 U, S. App. 378; 69 Fed. Rep. 546; Bauserman v. Blunt, 147 U. S. 647; but see In re Copenhaver, 54 Fed. Rep. 660; Chisholni v. Caiues, 67 Fed. Rep. 285). Federal courts are not bound by the construction of a State statute by the courts of the State, as applied to con- tracts entered into before such construction was adopted (Caesar v. Capell, 83 Fed. Rep. 403; Central Trust Co. V. Citizens' St. Ry. Co., 82 Fed. Rep. 1; Bartholomew v. City of Austin, U. S. App. 85 Fed. Rep. 359; Jones v. Great Southern Fireproof Co.,U. S. App. 84 Fed. Rep. 370; Louisville Trust Co. v. City of Cincinnati, 47 U. S. App. 36; 76 Fed. Rep. 296; Knox County V. Ninth Nat. Bank, 147 U. S. 91). If a contro- versy in a Federal court involves a Federal question the court must decide it for itself, treating the State decision with consideration (Central Trust Co. of N. Y. V. Citizens' St. Ry. Co., 82 Fed. Rep. 1; The J. E. Rumbell, 148 U. S. 41; Scott v. McNeal, 154 U. S. 34; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112; Id.. 68 Fed. Rep. 949). The construction of a State coiistitution by a State court is binding on the Federal courts where no question affecting the Con- stitution of the U. S. is involved (McCain v. City of DesMoines, 84 Fed. Rep. 726; Hoge v. Magnes, 56 U. S. App. 500; 85 Fed. Rep. 355; Wade v. Travis County, U. S. App. 81 Fed. Rep. 742; Folsom v. Township of Ninety Six. .59 Fed. Rep. 67; but see Quaker City Nat. Bank v. Nolan County, 59 Fed. Rep. 660). Mere dicta §241 COMMON TO MORE THAN ONE COURT. 810 of a State court concerning the construction of a State statute are not binding (Matz v. Cliicago & A. R. Co., 85 Fed. Rep. 180); but are entitled to -weight (Nat. Bank v. Whitman, 76 Fed. Rep. 097). A decis- ion by a State court as to whether a statute of the State has been duly enacted is binding on the courts of the United States (Crowther v. Fidelity Ins. T. & S. D. Co., U. S. App. 85 Fed. Rep. 41). Decisions of State courts construing its statutes are binding on the Federal courts (Sutherland-Irmes Co. v. Village of Evart, U. S. App. 86 Fed. Rep. 597). The decisions of a State supreme court that the law of another country is opposed to the policy of a State and cannot be enforced there, are not controll- ing in the Federal courts (Evey v. Mexican Cent. Ry. Co., U. S. App. 81 Fed. Rep. 294). The decisions of an appellate court not the highest tribunal in a State will sometimes be followed by the Federal court (Seccomb v. Wurster, 83 Fed. Rep. 850). The direct ruling of the supreme court of a State upon a particular question involving the construction of a State statute will be followed by the Federal court (Andrews v. National Foundry & Pipe Works, 46 U. S. App. 281; 70 Fed. Rep. 100; Bergman v. Bly, 27 U. S. App. 650; 60 Fed. Rep. 40). The fact that a State decision was rendered in a fxiendly suit does not im- pair its authority in the Federal courts (Sandford v. Poe,37U.S.App. 378; 69 Fed. Rtp. 546; Adams Express Co. V. Ohio State Auditor, 105 U. S. 194). The Federal courts will not follow a decision of a State court made after the case is submitted (Roberts v. Northern Pac. Ry. Co., 158 U. S. 1; but see Western Union Tel. Co. V. Poe, 04 Fed. Rep. 9). When a State court over- rules its decision upon the construction of a State statute after rights have grown up under the former statute the Federal courts are not bound to follow the later decision (Wilson v. Ward Lumber Co., 67 811 COMMON TO MOBE THAN ONE COURT. §341 Fed. Eep. 674; National Foundry &, P. Works v. Oconto Water Co., 68 Fed. Eep. 1006). This section relates to the nature and principles of evidence, and also to competency of witnesses. iConn. Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250; Ex parte FislJ, 113 U. S. 713.) This section, originally section thii-ty-four of the Judiciary Act (1 Stats. 92), is construed only to in- clude civil cases at common law, and not crim- inal offenses against the United States. (United States V. Reid, 12 How. 361.) It is limited strictly to local laws (Swift v. Tyson, 16 Peters, 1; Boyce v. Tabb, 18 Wall. 546); that is to say. to the positive statute of the State (Swift v. Tyson, 16 Peters, 1), to private statutes (Williamson v. Berry, 8 How. 495), and does not apply to questions of a general nature (Boyce v. Tabb, 18 Wall. 546; Willis v. Board of Comm'rs, U. S. App. 86 Fed. Rep. 872; Murray v Chicago & N. W. Ry. Co., 62 Fed. Rep. 24; Hartford Fire Ins. Co. v. Chicago M. & St. P. Ry. Co., 36 U. S. App. 152; 70 Fed. Rep. 201; Eells v. St. Louis, K. & N. W. Ry. Co., 52 Fed. Rep. 903; Cairo V. & C. Ry. Co. V. Brevoort. 62 Fed. Rep. 129; Western Union Tel. Co. V. Cook, 15 U. S. App. 445; 61 Fed. Rep. 624; Western Union Tel. Co. v. Wood, 13 U. S. App. 317; 57 Fed. Rep. 471), as to contracts of a com- mercial nature, the true interpretation of which is sought in the doctrine of commercial juris- prudence. (Swift V. Tyson, 16 Peters, 1; Rail- road Co. V. National Bank. 102 U. S. 34; Gates v. National Bank, 100 U. S. 239; Pliipps v. Harding, 34 U. S. App. 148; 70 Fed. Rep. 468; Berry v. Lake Erie & W. R. Co., 70 Fed. Rep. 679; Farmers' Nat. Bank V. Sutton Mfg. Co., 6 U. S. App. 312; 52 Fed. Rep. 191). United States courts adopt and follow the de- cisions of the State courts in questions which concern merely the constitutions (Luther v. Borden, 7 How. 1; § 241 COMMOX TO 5IOEE THAN ONE COURT. 812 Jefferson Branch Bank y. Skelly, 1 Black, 430) and statutes of the Slate (Luther v. Borden. 7 How. L; Morgan v. Curtenius, 20 How. 1; Jetferson Branch Bank v. Skelly, 1 Black, 436), given by the highest State tribunal as part of the law. (Tjavin v. Emi- grant Indust. Sav. Bank, 1 Fed. Rep. 641; 18 Blatchf. 1; Christy v. Pridgeon, 4 Wall. 196; see Leffingwell V, WaiTem, 2 Black, 603; Shelby v. Gay, 11 Wheat. 361.) It applies to the construction of a law provid- ing for administration of estates (Lavln v. Emigrant Indust. Sav. Bank, IS Blatchf. 11; S. C. 1 Fed. Rep. 641), or to the construction of devices creating es- tates in fee (Van Rensselaer v. Kearney, 11 How. 297; Carroll v. Lessee of CaiToU, 16 How. 275): but the mere construction of a will by a State court does not, as the construction of a statute of the State, con- stitute a rule of decision for the courts of the LTnited States, unless such construction had been so long ac- quiesced in as to become a rule of property. (Lane V. A^ick, 3 How. 464.) It applies to principles estab- lishing title to real property (Suydam v. Williamson, 24 How. 427; Chicago City v. Bobbins. 2 Black. 418; Hoge V. Magnes, 56 U. S. App. 500; 85 Fed. Rep. 355; Henry v. Pittsburgh Clay Mfg. Co.. 39 U. S. App. 605; 80 Fed. Rep. 485); and the construction by the State supreme court of the State statutes establishing the rule of properly. (Green v. Neal, 6 Petei-s, 291; Ross V. Duval, 13 Peters, 45; Lauriat v. Stratton, 6 Sawy. 339, 11 Fed. Rep. 107; citing Polk's Lessee v. Wendel, 9 Cranch, 98; Jackson v. Chew. 12 Wheat, 162; Nichols v. Levy, 5 Wall. 433; Independent Dist. v. Beard, 83 Fed. Rep. 5; Elder v. McChiskey, 37 U. S. App. 1; 70 Fed. Rep. 520; Rothschild v. Hasbrouck, 72 Fed. Hep. 813; May v. Teuney, 148 U, S. 60; Fii-st Xat. Bnnk v. Glass. 79 Fed. Rep. 706; but see Ryan v. Staples, 40 U. S. App. 427; 76 Fed. Rep. 721.) This rule of decision does not apply on tLie general princi- 813 COMMON TO MORE THAN ONE COURT. § 241 pies of equity not controlled by local law or usage (Neves v. Scott, 13 How. 268; Montejo v. Owen, 14 Blalclif. 326, Fed. Cas. No. 9722), nor to remedies at common law or in equity (Robinson v, Campbell, 3 Wheat. 212); but a nonresident complainant can ask no greater relief than he could were he to resort to the State courts. (Ewing v. St. Louis, 4 Wall. 413.) The rule applies on questions of jurisdiction of inferior courts of the State under State laws (Jeter v. Hewitt, 22 How. 352), as on a question to subject legal and equitiible interests in real estate to the claims of creditors (Nichols v. Levy, 5 Wall. 433); but not to the practice of allowing ejectments to be maintained on equitable titles (Sheirburn v. Oordov^a, 24 How. 423: Fenn v. Holme, 21 How. 481), nor to State laws regu- lating proceedings on execution and other process in suits at common law (Wayman v. Southard, 10 Wheat. 1; Ross v. Duval. 16 Peters, 45), nor to all rules governing procedure and practice (Brown v. Van Braam, 3 Dall. 344); but it applies to rules of evi- dence (Hau&slinecht v. Claypool, 1 Black. 431), and to the statutes of limitations of the State (LefEngwell V. Warren, 2 Black, 599; Sayles v. Oregon Cent. R. Co., 6 Sawy. 31, Fed. Cas. No. 12423; Moores v. Cit- izens' Nat. Bank, 11 Fed. Rep. 624, note, Percy v. Cockrill, 10 U. S. App. 574; 53 Fed. Rep. 872; Fearing V. Glenn, 38 U. S. App. 424; 73 Fed. Rep. 116), as limitations of actions and executions on judgments (Sayles v. Oregon Cent. R. Co.. 6 Sawy. 31, Fed. Cas. No. 12423; Sayles v. Louisville City R. Co., 9 Fed. Rep. 513), except where the laws of the United States otherwise provide, as in patent cases. (Sayles v. Oregon Cent. R. Co., 6 Sawy. 31, Fed. Cas. No. 12423; Leffingwell v. Warren, 2 Black, 599; Johnson v. Roe, 1 Fed. Rep. 695; Ross v. Duval, 13 Peters, 45; Sayles v. Louisville City R. Co., 9 Fed. Rep. 513.) The decision of State courts will be followed as to the construe- § 241 COMMON TO MORE THAN ONE COIRT. 814 tion of a contract declared by the State court void, on the general principles of public policy, unless the question was whether the legislation impaire the ob- ligation of the contract. (Delmas v. Ins. Co., 14 Wall. 661; see Budge Proprietors v. Hoboken Co., 1 Wall. 116.) It applies to the interpretation of contracts made by the State, as statutes authorizing municipal corporations to subscribe to aid railroads extending beyond the limits of the city or county, and to issue bonds accordingly. (Gelpecke v. Dubuque, 1 Wall. 175), and to the question as to the validity of munici- pal bonds issued under the State law (Mitchell v. Bui'lington, 4 Wall. 271); but not to a question of contract made by the State which violates the Con- stitution of the United States. (Bridge Prop. v. Ho- boken Co., 1 Wall. 116; see Delmas v. Ins. Co., 14 Wall. 661.) So it applies to the construction of a State grant, as a ferry franchise. (Conway v. Taylor, 1 Black, 603.) To what extent the Federal courts adopt and follow the decisions of the State courts, determined. (Gage v. Pumpelly, 115 U. S. 454; Car- roll County V. Smith, 111 U. S. 556; Norton v. Shelby County, 118 U. S. 425; Gibson v. Lyon, 115 U. S. 439; Louisville etc. R. R. Co. v. Palmes, 109 U. S. 244; Yick Wo V. Hopkins. 118 U. S. 356; Anderson v. Santa Anna, 116 U. S. 356; Buford v. Holley, 28 Fed. Rep. 680; Woodward v. Gould, 28 Fed. Rep. 736: Dodd V. Ghiselin, 27 -Fed. Rep. 405; Freund v. Yaeg- erman, 27 Fed. Rep. 248; Rico v. Frayser, 24 Fed. Rep. 460; Moulton v. Chafee, 22 Fed. Rep. 26; Venner V. Atchison etc. R. R. Co., 28 P\^d. Rep. 581; National Foundry & P. Works v. Oconto Water Co., 68 Fed. Rep. 1006; Chisholm v. Gaines, 67 Fed. Rep. 285; Wilson V. Neal, 23 Fed. Rep. 129; Raymond v. Parish of Terrebonne, 28 Fed. Rep. 773; Cook County v. Cal- umet & C. Canal & D. Co., 138 U. S. 635; Lookout Mt. R. Co. V. Houston, 44 Fed. Rep. 449; Heath v. Wal- 815 COMMON TO MORE THAN ONE COURT. § 241 lace, 138 U. S. 573.) State laws and decisions gov- ern United States courts, as to title and transfer of real estate by grant or devise. (Claiborne Co. v. Brooks, 111 U. S. 400; see Bncher v. Railroad Co., 125 U. S. 555; St. Louis v. Rutz, 138 U. S. 226; Buford v. Kerr, 86 Fed. Rep. 97.) Where a local law or cus- tom has been establlsbed by repeated decisions of tbe highest courts of a State, it becomes also the law governing the courts of the United States sitting in that State. (Burgess v. Seligman, 107 U. S. 20.) It has been held, however, that rules of property and ac- tion in the State are always regarded by the Federal courts; but the Federal courts exercise their own judgment in reference to the doctrines of commercial law and general jurisprudence. (Pleasant Twp. v. Aetna L. Ins. Co., 138 U. S. 67.) A State decision as to the extent and powers of a corporation created under its laws is binding on a Federal court (Sioux City Terminal Ry. etc. v. Trust Co. of North America, 49 U. S. App. 523; 82 Fed. Rep. 124). The State stat- ute of frauds is applicable to a suit in equity brought in a Federal court (Buhl v. Stevens, 84 Fed. Rep. 922; Moses v. National Bank of Lawrence Co., 149 U. S. 298). A State decision as to the effect of its Sunday laws upon contracts is binding (Hill v. Hite, 56 U. S. App. 403; 85 Fed. Rep. 268). A State decis- ion consti'uing common law rules of evidence is not binding (Union Pac. Ry. Co. v. Yates, 49 U. S. App. 241; 79 Fed. Rep. 584). Decisions of a State court to the effect that under the State statutes one out of possession can bring a suit to remove a cloud on title are binding (Harding v. Guice, 42 U. S. App. 411; 80 Fed. Rep. 162), as are decisions construing the reg- istration statutes of the State (Union Pac. Ry. Co. V. Reed, 49 U. S. App. 233; 80 Fed. Rep. 234). The Federal courts recognize no lien at common law in behalf of an attorney, beyond that given by the local §241 COMMON TO MORE THAN ONE COUUT. 816 law (Gregory v. Pike, 21 U. S. App. 658; 67 Fed. Rep. 837). Tlie (lecisiion of State tribunals as to the I'igbt of set off, except as it is enforced in equity is a matter of local legislation (Charnley v. Sibley, 34 U. S. App. 705; 73 Fed. Rep. 980). Where an indictment found in court of a State in which offense is defined by statute, is removed to a P'ederal court for trial, the latter court must be controlled by the State decis- ions (State V. Gosuell, 74 Fed. Rep. 734). Decisions of the supi-eme court of a State construing its attach- ment laws are rules of decision in the Federal courts (Riice V. Adler, Goldman Commission Co., 36 U. S. App. 2GG; 71 Fed. Rep. 151). The rights and liabilities respecting surface watea* are matters of local law (Walker v. New Mexico & S. P. R. R. Co., 165 U. S. 593). State decisions as to whether or not certain workmen are fellow servants do not bind Federal courts. (Newport News & M. Co. V. Howe, 6 U. S. App. 172; 52 Fed. Rep. 362; con- tra, Becker v. Baltimore & O. Ry. Co., 57 Fed. Rep. 188.) But decisions relating to compensation for im- provements upon laud, made in good faith, are rules of properly and binding (McClaskey v. Barr, 62 Fed. Rep. 209); as are decisions upon the question of the validity of a chattel mortgage (Wilson v. Perrin, 22 U. S. App. 514; 62 Fed. Rep. 629); and as to the lia- bility of an employer for in.iurii« to his employee (Northern Pac. Ry. Co., v. Ilogan, 27 U. S. App. 184; 03 Fed. Rep. 102); and decisions that contributory uegMgence shall not be a complete bar to a statutory action for negligence (Byrne v. Kansas City F. S. & M. R. Co., 22 U. S. App. 220; 61 Fed. Rep. 605). State decisions interiDreting statutes as to the right of counties to make contracts are binding on Federal courts (Thompson v. Searcy County, 12 U. S. App. 618; 57 Fed. Rep. 10.30). The decisions of a State court construing a contract are not binding (Hambley 817 COMMON TO MOKE THAN ONE COUKT. § 241 V. Bancroft, 83 Fed. Rep. 444). The meaniing of a State statute, declared by the highest court of a State, is conclusive upon the supreme court of the United States (Morley v. Lake Shore etc. Ry. Co., 146 U. S. 162; Miller v. Swan, 150 U. S. 132: Baltimore Traction Co. V. Baltimore Belt Ry. Co., 151 U. S. 137; Marchant V. Pennsylvania R. R. Co., 153 U. S. 380; Fallbrook Irr. Dist. v. Bradley, 1G4 U. S. 112; First Nat. Bank v. County of Chehalis, 166 U. S. 440; Wilson v. State of South Carolina, 169 U. S. 586); but not if it is claimed in a direct appeal from the State supreme court that the judgment was against a right claimed under the U. S. Constitution (Scott v. McNeal, 154 U. S. 34^. The construction by the State court of a statute is binding upon the supreme court of the U. S. in deter- mining whether the statute conforms to the Consti- tution of the United States (Missouri Pac. B. R. Co. V. State of Nebraska, 164 U. S. 403; Merchants & M'f'rs Bank v. Penn., 167 U. S. 461). The decision of a State court as to the time when a cause of action accrues in case of fraud or concealment, based not on a construction of the State statute but upon the view taken of tlie common law, is not binding on Federal courts (Murray v. Chicago & N. W. By. Co., 62 Fed. Rep. 24). Administering' remedies prescribed by State stat- utes.— Rights created by State statute to be pursued in the State courts may be administered in the Fed- oral courts, either at law, in equity or in admiralty (Darragh v. Welton Mfg. Co., 78 Fed. Rep. 7; Chicot County V. Shei"Wood, 148 U. S. 529; Indianapolis Water Co. v. American Strawboard Co., 53 Fed. Rep. 970; Fai-mers' Loan & T. Co. v. Toledo A. A. & N. M. Co., 67 Fed. Rep. 73; First Nat. Bank v. Peavey, 69 Fed. Rep. 455; but see The Wm. M. Hoag, 69 Fed. Rep. 742; England v. Russell, 71 Fed. Rep. 818). The V^D. Piioc— 69. Ji 242 COMMON TO MORE THAN OXE COURT. 818 Federal courts adopt the statutes, of limitation of the State where the court is sitting (Miles v. Vivian, 51 U. S. App. 194; 79 Fed. Rep. 848; Fearing v. Glenn, 38 U. S. App. 424; 73 Fed. Rep. 116; Coclcrill v. Butleo", 78 Fed. Rep. 679; Haydeo v. Thompson, 36 U. S. App. 361; 71 Fed. Rep. 60; Scheftel v. Hays, 19 U. S. App. 220; 58 Fed. Rep. 457; IMetcalf v. City of WatertowTi, 153 U. S. 671; Ballcam v. Woodstoclc Iron Co., 154 U. S. 177). But State statutes of limitations do not ap- ply where the United States is phiintiff (U. S. v. Belli^nap, 73 Fed. Rep. 19.) State laws relating to in- solvency and assignment for creditors do not control the Federal courts in receivership cases, (London & S. F. Banli v. Willameftte Steam M. L. & M. Co., 80 Fed. Rep. 226.) The Federal courts in administering equitable relief are not bound by any restrictions of the local law, but may have the benefit of any en- largement of equitable rights by the State. (Boston & M. R. R. Co. V. Slocum, 77 Fed. Rep. 345; Meyers V. Shields, 61 Fed, Rep. 713; Prentice v. Duluth Stor- age & F. Co., 19 U. S. App. 100: 58 Fed. Rep. 437.) A State statute allowing a married woman to sue in her own name does not govern the Federal courts in equity suits (Wills v. Pauly, 51 Fed. Rep. 257), nor are the P'ederal courts governed by a provision in the State laws with reference to tlie directing of a jury to make special findings. (Dwyer v. St. Louis & S. F. R. Co., 52 Fed. Rep. 87.) § 242 (72;.^). Proceedings, civil and criminal, in vindication of civil rights. — The jurisdiction in civil and criminal matters conferred on the district and circuit court by the provisions of this title, and of title "Civil Eights/' and of title "Crimes," for the protection of all persons in the United States in their civil rights, and for their vindication, shall 819 COMMON TO MOEE THAN ONE COURT. § 242 be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of pun- ishment on the party found guilty, (Kev. Stats. sec. 722). Remedy at law. — If the remedy at law is speedy and adequate, a remedy in equity, created by State statute, cannot be resorted to in tlie Federal courts, by reason of the provisions of this section, and of article 7 of the Constitutional Amendments, ^aran- teeing the right of trial by jury. (Whitehead v. Ent- whistle, 27 Fed. Rep. 778.) Federal courts will fol- low the procedure of the State courts regarding ob- jections to the irregularities in the selection of the grand jury. (United States v. Eagan, 30 Fed. Bep. 608.) Remedies in law and equity not blended.— The blending of remedies is not permissible in the United States courts. All actions which seek to recover spe- cific property, with or without damages, or a money judgment for breach of a simple contract, or damages for injury to person or property, are legal actions, and can be brought in the Federal courts only on their § 243 COMMON TO MORE THAN O.XE COURT. 820 law side, provisions in the State statutes to the con- trary notw-ithsmndiug. (Scott v. Neely, 140 U. S. 106; Hipp V. Babin, 60 U. S. 278; Lewis v. Cgclis, 23 Wall. 466; Killian v. Ebbinhaus. 110 U. S. 568: Buzard v. Houston, lit) U. S. 347; Thompson v. Railroad Cos.. 6 ^\'all. 134; Robinson v. Campbell, 3 Wheat. 212; Fenn v. Holmes, 21 How. 481; Clapp v. City of Spo- kane, 53 Fed. Rep. 515; Whitney v. FairbanlvS, 54 Fed. Rep. 985; Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371; Coit v. Sullivan Kelly Co., 84 Fed. Rep. 724.) And equitable causes can only be brought on the equity side. (Kircher v. Murray, U. S. App.; 54 Fed. Rep. 617.) Where a case of a purely legal nature was brought in the State court in the form of a bill in equity under a local statute and removed to the Federal court and conducted as an equity suit, upon appeal the case was remanded, with instructions to redoeket the case as one at law and to refi-ame the pleadings accordingly. (^IcConnell v. Provident Sav. Life Assn., 37 U. S. App. 213; 69 Fed. Rep. 113.) >< 243 (72;}). When suits in equity maybe maintained. — Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law. (llev. Stats, sec. 723.) Generally.— This section is merely declaratory, making no alteration whatever in the rules of equity on the subject of legal remedy. (Boyce v. G-rundy, 3 Peters, 210.) Plain, Adequate and Complete Remedy at Law. — ^This phrase refers to the common law and not to State statutes. (Dodge v. Woolsey, 18 How. .331; Cropper v. Coburn. 2 Curt. 465; Fed. Cas. No. 3416; Pratt v. Northam, 5 Mason, 95; Fed. Cas. 821 COMMON TO MOKE THAN ONE COURT. § 243 No. 11ST6; Gordon v. Hobart, 2 Sum. 401; Fed. Gas. No. 5G09; Kimball y. Mobile, 3 Woods, 555; Fed. Gas. No. 7774.) The adequate remedy at law is that which existed when the judiciary act of 1789 was adopted unless subsequently changed by act of Congress. (Missouri K. &. T. R. Go. v. Elliot; 5G Fed. Rep. 773 ^ The object of the provision requiring suits to be brought at law when possible was to insure the pre- servation of the right to a jury trial. (Grether v. Wright, 43 U. S. App. 470; 75 Fed. Rep. 742; In re Foley, 76 Fed. Rep. 390.) So whenever a court of law is competent to proceed to final judgment and afford a remedy, plaiuj adequate, and complete, the plaintiff must pursue that remedy. (Wright v. Elli- son, 1 Wall. 16; Dade v. Irwin, 2 How. 383; Andrews v. Solomon, Peters G. C. 356; Fed. Gas. No. 378; Magniac v. Thompson. 15 How. 281; Hungerford v. Ligerson, 20 How. 156; Shapley v. Rangeley, 1 Wood. & M. 213; Fed. Gas. No. 12707); and the ab- sence of a plain and adequate remedy is the only test. (Watson v. Southerland, 5 Wall. 74.) The rem- edy at law in order to exclude equity must be as prac- tical and efficient to the ends of justice as the rem- edy in equity. (Tyler v. Savage, 143 U. S. 79.) The objection that there is a plain and adequate remedy is jurisdictional and may be enforced by the court of its own motion (Parker v. W. L. G. & W. Go., 1 Blacli, 545; Baker v. Biddle, Bald. 394; Fed. Gas. No. 764; Post v. Gorbin, 5 Bank Reg. 11, Fed. Gas. No. 11299;) it may be waived (see Waite v. O'Neal, 72 Fed. Rep. 348; Levi v. Evans, 18 U. S. Am>. 293; 57 Fed. Rep. 677; Book v. Justice Mining Go., 58 Fed. Rep. 827; Knight v. Fisher, 58 Fed. Rep. 991); but the remedy must be plain and adequate. (Boyce v. Grundy, 3 Peters 210; Watson v. Southerland, 5 Wall. 74; Morgan v. Beloit, 7 Wall. 613; Oelrichs v. Spain, 15 Wall. 211; Pierpont v. Fowle, 1 Wood & M. 23; § 243 COMMON TO MOUE THAN ONE COURT. 822 Fed. Cas. No. 11152; Maj^er v. Foulkrod, 4 Wash. C. C. 349; Fed. Cas. No. 9341.) So a party is not remit- ted to a court of law wbere the remedj' is not effec- tual and complete. (Wylie v. Coxe, 15 How. 415; May V. Le Claire, 11 Wall. 217; Brown v. Pac. M. S. Co., 5 Blatchf. 525; Fed. Cas. No. 2025.) If a plaintiff' has an adequate remedy at law by a suit for damages, a suit in equity, though permitted by State laws, should not be entertained by a State court. (Clamp v. City of Spokane, 53 Fed. Rep. 515.) If a right is equitable, or if legal the remedy is only equitable, or both legal and equitable, the suit for its assertion may be equitable (Baker v. Riddle, Bald. 394; Fed. Cas. No. 764); and it is then no ob- jection that the remedy in that pai-ticular case might be adequate. (U. S. v. Meyers, 2 Brock. 51G; Fed. Cas. No. 15844; Pratt v. Northam, 5 Mason, 95; Fed. Cas. No. 11376). If the remedy at law was par- tial and would leave the party to renew the contest in a series of suits, he may have relief in equity (Boyce v. Grundy, 3 Peters. 210: Hipp v. Babin, 19 How. 271; Lewis v. Cocks, 23 Wall. 466); so in case of an illegal tax, to prevent a multiplicity of suits. (Union Nat. Bank v. Chicago. 3 Biss. 82; Fed. Cas. No. 14374; Dows v. Chicago. 11 Wall. 108; First Nat. Bank v. Douglas, 3 Dill. 29S; Fed. Cas. No. 4809; Union Pac. R. II. Co. v. MoShane, 3 Dill. 303; Fed. Cas. No. 14.382; Crane v. McCoy, 1 Bond, 422; Fed. Cas. No. 3354; Plummer v. Conn. Mut. L. Ins. Co., 1 Holmes, 267; Fed. Cas. No. 11232; Garrison v. Mem- phis Ins. Co., 19 How. 312.) The test of jurisdiction in an action at law is whether, on the facts shown, the plaintiff is entitled to any relief which a court of law is competent to give. (Blalock v. Equitalde Life Assur. Soc, 41 U. S. App. 761; 75 Fed. Rep. 43.) If a defendant in an action at law has equitnl)le rights which he is entitled to enforce against plaintiff, he 823 COMMON TO MORE THAN ONE COURT. § 243 should resort to equity to arrest or stay the action at law. (Owens v. Heidbreder, 41 U. S. App. 736; 78 Fed. Rep. 837.) There is nothing peculiar to infringe- ment suits for damages and profits whereby equity jurisdiction may be maintained, and it must appear that the remedy at law is inadequate. (Woodmanse & Hewitt Mfg. Co. v. Williams, 37 U. S. App. 109; 68 Fed. Rep. 489). If the trial court had jurisdiction of the subject matter of an equity suit, an objection to the jurisdiction on the ground that complainant had a plain, adequate and complete remedy at law comes too late on appeal. (Lone Jacli Min. Co. v. Megginson. 47 U. S. App. 452; 82 Fed. Rep. 89). Remedy at law. — A bill in equity is not the appro- priate remedy to enforce a decree in chancery for the payment of money. (Tilford v. Oaliley, Hemp. 197.) So a suit at law cannot be enjoined merely be- cause the party has a good defense (Rogers v. Cin- cinnati, 5 McLean, 337; Fed. Cas. No. 12008); nor will a bill be entertained to recover possession of property taken from the marshal by the sheriff. (Knox v. Smith. 4 How. 298.) So a court of equity cannot de- cree that an indorser pay a note. (Shields v. Bar- row, 17 How. 130.) A party cannot by bill in equity enforce payment of a policy (Graves v. Boston Mar. Ins. Co., 2 Cranch, 215); nor can a party maintain a bill to enforce a liability for falsely recommending another. (Russell v. Clarke, 7 Cranch, 69.) A mu- nicipal corporation cannot maintain a bill to cancel a bond issued without authority and in violation of official duty (Grand Chute v. Winegar, 15 Wall. 373); nor can an insurance company maintain a bill to can- cel a policy. (Insurance Co. v. Bailey, 13 Wall. 616; Home Ins. Co. v. Stanchfield, 1 Dill. 424; Fed. Cas. No. 66G0.) The mere fact that the evidence is volumin- ous is not a gi'ound for equitable intervention. (Bowen v. Chase, 94 U. S. 812.) § 243 COMMON TO MORE THAN ONE COUKT. 824 Remedy in equity.— Equity will entertain a bill for an account only where action for account is the proper remedy at law, or where a trustee is a party (Fowle Y. Lawrason, 5 Peters, 495; Blakeley v. Bis- coe, iienip. 114j; so a bill may be filed to correct a mistake in parlnei'ship accounts (Ivinson v. Hut tun. 98 U. S. 79), but it cannot draw to itself every trans- action in which an account is to be adjusted; it is only in transactions of great complexity or difficulty at law, or some discovery is required, that equity will interpose. (Fowle v. Lawrason, 5 Peters, 495.) A trustee or cestui que trust may file a bill to obtain possession of land subject to the trust (Harrison v. Rowan, 4 Wash. C. C. 202; Fed. Cas. No. 0143); or an assignee in bankruptcy to obtain the value of prop- erty transferred by a partner. (Taylor v. Rasch, 5 Bank. Reg. 399; Fed. Cas. No. 13801.) If the United States claims priority of payment out of a trust fund (Hunter v. United States, 5 Peters, 173), or has a claim against a party who has made a deed of trust, it may file a bill in equity against the trustee. (United States v. Mj^ers, 2 Brock. 51(j; Fed. Cas. No. 15844.) A statute allowing supplementary proceedings does not prevent the filing of a creditor's bill (Putnam v. New Albany, 4 Biss. 365; Fed. Cas. No. 11481); or although a State law allows suit against a debtor of a debtor. (United istates v. Howland, 4 Wheat. 108.) An inde- pendent suit against a railroad receiver to recover a simple contract debt owing by the receiver is not sustainable in equity. (Nash v. Ingalls, 79 Fed. Rep. 510.) If there is no adecjuate remedy at law. a stock- holder may apply in equity to prevent a corporation from committing a breach of trust or violation of chartered rights (Dodge v. Woolsey, 18 How. 331; Wheeling v. Mayor, 1 Hughes, 90; Fed. Cas. No. 17502); and when a bill is filed to recover stock, an action at law for damages is not the proper remedy. 825 COMMON TO MORE THAN ONE COURT. § 243 (Kilgonr v. N. O. Gaslight Co.. 2 Woods, 144; Fed. Cas. No. 7764.) Where a creditor has a purely legal demand a suit cannot be brought upon it in equity merely because it is against the estate of a deceased person. (Wallser v. Brown, 27 U. S. App. 291; 63 Fed. Rep. 204; but see Johnson v. Culbertson, 79 Fed. Rep. 5.) A ferae covert may file a bill to recover money to which she is entitled (Hunt v. Danforth, 2 Curt. 592; Fed. Cas. No. 6887): or a legatee a bill against the executor to recover a legacy (Mayor v. Foulkrod, 4 Wash. C. C. 349; Fed. Cas. No. 9341); or a distributee to recover his share of the estate. (Payne v. Hook, 7 Wall. 425; Pratt v. Northam, 5 Mason, 93: Fed. Cas. No. 11376.) A party in pos- session of land may file a bill to quiet title (Moi'ton V. Root, 2 Dill. 312; Fed. Cas. No. 9866); but one who has the legal title cannot madntain a bill against par- ties in possession of the land. (Speigle v. Meredith, 4 Biss. 120; Fed. Cas. No. 1:3227); and this is so even where a State statute i)ermits such a suit. (Gordan V. Jackson, 72 Fed. Rep. 86; Eiffert v. Craps, 8 U. S. App. 436; 58 Fed. Rep. 470; Frey v. Willoughby, 27 U. S. App. 417; 63 Fed. Rep. 865.) The circuit court will entertain jurisdiction of a bill for relief against a judgment and sale thereunder on the ground of fraud. (Shelton v. Tiflin, 6 How. 163.) A party im- peaching a judicial sale for fraud may proceed, al- though he has a remedy at law (Slater v. Maxwell, 6 Wall. 268; Cocks v. Izard, 7 Wall. 559); or although he can have his right to the property summarily determined in a State court. (Breeden v. Lee, 2 Hughes, 484; Fed. Cas. No. 1828.) A creditor may file a bill to set aside a fraudulent conveyance. (Rail- road Co. V. Howard, 7 Wall. 392; Bean v. Smith, 2 Mason, 252; Fed. Cas. No. 1174.) So a bill may be filed to recover money fraudulently appropriated by directors of a corporation. (Giugrat v. Dane, 4 Cliff. § 243 COMMON TO MORE THAX ONE COURT. 826 260; Fed. Cas. No. 5455.) If a party is possessed of a full equitable title to lands he may resort to a court of equity to protect himself, although perhaps he might defend in an action at law by asserting title by prescription. (Massenburgh v. Dennison, 30 U. S. App. 612; 71 Fed. Rep. 618.) If a party has been in- duced by fraudulent represeutations to purchase laud, he may file a bill to rescind a contract (Boyce v. Grundy, 3 Peters, 210; so a bill may be sustained to establish a will fraudulently suppressed if it avoids a multiplicity of suits. (Gaines v. Chew, 2 How. 619.) If the question of fraud has been tried at law it cannot be reviewed in equity without suggestions of equitable circumstances which could not be availed of at law. (Smith v. Mclver, 9 Wheat. 532.) A party who holds the bond of a corporation secured by a pledge may file a bill to enforce the pledge. (Valette v. W. V. Canal Co., 4 McLean, 192; Fed. Cas. No. 16820). The distinction between actions at law and suits in equity in the United States courts is not one of form merely, but of vital substance. (Owens V. Heidbreder, 41 U. S. App. 736; 78 Fed. liep. 837; In re Foley, 76 Fed. Rep. 390.) Mandamus in a State court to enforce the conveyance of real property is not such an adequate remedy at law as to bar the equitable jurisdiction of a Federal court. (Provisional Municipality v. Lehman, 13 U. S. App. 411; 57 Fed. Rep. 323.) Parties cannot by stipulation convert an equitable suit into a legal one. (Land Trust of Indianapolis v. Hoffman, 13 U. S. App. 411; 57 Fed. Rep. 333.) Discovery is not ordinarily an independent ground for equitable intervention, merely because it is prayed for. (Erskine v. Forest Oil Co., 80 Fed. Rep. 253; Everson v. Equitable Life Assur. Co., 68 Fed. Rep. 258; Cecil Nat. Bank v. Thurber, 8 U. S. App. 496; 59 Fed. Rep." 91.3.) See generally as to Bills of Peace, Scottish Union v. Mohlman Co., 827 COMMON TO MORE THAN ONE COUKT. § 243 73 Fed. Eep. 66; creditor's bill, Putney v. Whit- more, 66 Fed. Rep. 385; Tompkins Co. v. Catawba Mills, 82 Fed. Rep. 780; Bacon v. Harris, 62 Fed. Rep. 99; Greenwood A. & W. R. Co. v. Strang, 77 Fed. Rep. 498; Streight v. Juulv, 16 U. S. App. 608; 59 Fed. Rep. 321; National Tules Worlis v. Ballou, 146 U. S. 517; accounting, Hagenbecli v. Hagenbeck Z. Arena Co., 59 Fed. Rep. 14. Tlie proper practice, where the answer to a bill for partition of real estate entirely denies the title set up by plaintiff, is to stay the suit and send plaintiff to a court of law to estab- lish his title. (Brown v. Cranberry Iron & Coal Co., 25 U. S. App. 679; 72 Fed. Rep. 96.) Equity jurisdiction. — The equity jurisdiction of the courts of the United States is subject to neither limi- tation nor restraint by the State authorities, and is uniform throughout the different States of the Union. (Gamewell Fire Alarm Tel. Co. v. Mayor etc., Cir. Ct. N. Y., 31 Fed. Rep. 312.) Federal courts may en- force on their equity side new rights or privileges established by State or Territorial statutes. (Cow- ley V. Northern Pac. Ry. Co., 159 U. S. 569; Gil- christ V. Helena Hot Springs & S. R. R. Co., 58 Fed. Rep. 708.) A court of the United States sitting in equity cannot control a principal surveyor of a mili- tary district in the discharge of his official duties, or take charge of the records of his office, or declare their effect to be other than what appears on their face. (Fussell v. Gregg, 113 U. S. 550.) A court of equity has power to issue an injunction to aid the general government to prevent a forcible obstruction of interstate commerce and the transportation of the mails (In re Debs, 158 U. S. 564), and may issue an injunction to prevent a collector of customs from de- stroying teas, on the ground of preventing a multi- plicity of suits. (Sang Lung v. Jackson, 85 Fed. Rep. 503.) The equity jurisdiction of the Federal courts § 243 COMMON TO MORE THAX ONE COURT. 828 Will not take cosniznnce of a suit by a colored per- son, to restrain officers of a State from denying his ri.ffht to vote under a State statute which he claims is in violation of the amendment to the United States Constitution. (Gowdy v. Green. 69 Fed. Rep. SCT,.) Courts of equity concern themselves only with mat- ters of property and the maintenance of civil rights and have no jurisdiction in matters of an executive or political nature (Taylor v. Kercheval, 82 Fed. Rep. 497); but sometimes a court of equity will re- strain criminal proceedings. (Wadley v. Blount, G5 Fed. Rep. 6(37.) Equity will not enjoin an action at law on a note and contract tainted witli usury. (At- kinson V. Allen. 30 U. S. App. 255; 71 Fed. Rep. 58.) A court of equity has jurisdiction of a suit against the directors of a national bank for excessive loans in certain cases. (Cockrill v. Cooper, U. S. App. 8G Fed. Rep. 7.) Injunction.— A court of equity will not interfere to stay proceedings in a number of actions of eject- ment to abide the result of one (Peters v. Prevost, 1 Paine, 64; Fed. Cas. No. 11032); nor wdi injunction issue to restrain a threatened trespass until it tends to irreparable mischief (Le Roy v. Wright. 4 Sawy. 530; Fed. Cas. No. 8273; but a denial of title is no rea- son for refusing to enjoin a trespass, if the trespass goes to the destruction of the estate. (United States V. Parrott, 1 McAll. 271; Fed. Cas. No. 1599S; Le Roy V. Wright. 4 Sawy. 530; Fed. Cas. No. 8273; Buskirk v. King, 25 U. S. App. 607; 72 Fed. Rep. 22; Perry V. I'arker, 1 Wood & M. 280; Fed. Cas. No. 11010.) An injunction will issue to protect a lien by attach- ment on property which another person threatens to sell under execution. (New York Com. Co. v. Francis, 83 Fed. Rep. 769.) A court will not enjoin a threatened injury where there is a plain and adequate remedy at law. (Parker v. W. L. C. & W. Co., 2 Black, 545). I i 829 COMMON TO MORE THAN ONE COURT. § 243 If the sheriff attempts to take pi'operty from the pos- session of the marshal under a writ of replevin, he may be restrained to prevent a conflict of juris- diction (Crane v. McCoy, 1 Bond, 422; Fed. Cas. No. 33.^4); but a mortgagee of personal property cannot restrain the sale under execution (La Mothe v. Finli, 8 Biss. 493; Fed. Cas. No. 8032); nor a person whose property is talvcn on execution against another (Van Norden v. Morton, 99 U. S. 378); but if it would de- stroy the credit or brealv up the business of the owner, he may restrain the sale. (Watson v. Sutherland, 5 Wall. 74.) Injunction and accounting may both be granted in the same suit in case of trespass on a mining claim. (Consol. Wyoming G. M. Co. v. Cham- pion M. Co., 63 Fed. Rep. 540). Although an injunc- tion is sought to prevent another from acting under an agreement, yet damages for its breach cannot be recovered (La Mothe Mfg. Co. v. Nat. Tube Works, 15 Blatchf. 432; Fed. Cas. No. 8083); but if equity takes jurisdiction it will grant full relief, although the re- lief would be as full as at law. (Gass v. Stinson, 2 Sum. 453; Fed. Cas. No. 5260; Warner v. Daniels, 1 Wood & M. 90; Fed. Cas. No. 17181; Pierpont v, Fowle, 2 Wood & M. 23; Fed. Cas. No. 11152; Foster V. Swasey, 2 Wood & M. 217; Fed. Cas. No. 4984.) The courts have jurisdiction to enjoin an officer from removing an assistant who claims protection under the civil service law. (Couper v. Smyth, 84 Fed. Rep. 757; Butler v. White, 83 Fed. Rep. 578; Priddie V. Thompson, 82 Fed. Rep. 186; contra, Taylor v. Kercheval, 82 Fed. Rep. 497; Flemming v. Stahl, 83 Fed. Rep. 940.) A court of equity will enjoin the en- forcement of a bid for public works, induced by the mistake of one. (Moffett v. City of Rochester, 82 Fed. Rep. 255.) An injunction was granted to re- straia ticket scalpers from continuing in business. (Nashville C. & St. L. Ry. Co, v. McConnell, 82 Fed, Fed. Peoc— 70. § 244 COMMON TO MOKE THAN ONE COURT. 830 Rep. G5.) Inconvenieuce of the public in stopping the running of electric cars is not sulficient ground to require the refusal of an injunction. (Thomson- Houston El. Co. V. Union Ry. Co., 78 Fed. Rep. 365.) An injunction was granted to restrain defendants from organizing a boycott or strike in the following cases: (iMackall v. Ratchford, 82 Fed. Rep. 41; Hop- kins V. Gxley Stave Co., 49 U. S. App. 709; 83 Fed. Rep. 912; Oxley Stave Co. v. Coopers' Int. Union, 72 Fed. Rep. 695; Consolidated Steel & W. Co. v. Mur- ray, SO Fed. Rep. 811.) A Federal court will enjoin the sale of real estate belonging to a national bank in certain cases. (Brown v. French, 80 Fed. Rep. 166.) An injunction may issue from a Federal court to restrain an army officer from committing a tres- pass on lands where he justified his proposed action on the ground that he is simply obeying the orders of his superiors (La Chapelle v. Bubb, 69 Fed. Rep. 481); and the writ will issue where a goveinmeutal em- ployee has inteiTupted the usual course of business of his office and threatens to continue such interruption. (Fairfield Floral Co. v. Bradbury, 87 Fed. Rep. 415.) The Federal courts will not enjoin the performance by an executive officer of discretionary acts. (Enter- prise Sav. Assn. v. Zumstein, 37 U. S. App. 71; 67 Fed. Rep. lOOO; Lane v. Anderson, 67 Fed. Rep. 563.) § 244 (724). Power to order production of books and writings in actions at law. — In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their pos- session or power which contain evidence pertinent to the issue, in cases and under circumstances where they miower to compel compli- ance (Merchant's Nat. Bank v. State Nat. Bank, 3 Cliff. 201; Fed. Cas. 9448); as the penalty for failure to produce a paper is nonsuit or default (lasigi v. Brown, 1 Curt. 401; Fed. Cas. No. 6993); and a mo- tion for non-pros for failing to produce may be made even after the jury is sworn. (Waller v. Stewart, 4 Cranch C. C. 532; Fed. Cas. No. 17109.) A party cannot be compelled to produce a paper which would subject him to a penalty or a forfeiture. (Finch r. Kikeman, 2 Blatchf. 301; Fed. Cas. No. 4788; U. S. V. Packages, Gilp. 306; Fed. Cas. No. 16561; U. S. v. Nat. Lead Co., 75 Fed. Rep. 94). The order must be served a reasonable time before the production of the paper is required. (Macomber v. Clarke, 3 Cranch C. C. 347; Fed. Cas. No. 8918.) It is premature be- fore the jury are sworn and the trial commenced for either party to call upon the other to produce a paper which he has received notice to produce on the trial. (Hylton V. Brown, 1 Wash. C. C. 298; Fed. Cas. No. 6981.) He has no right to examine them before trial to discover if there is in them anything perti- nent to the issue (Triplett v. Bank of Washington, 3 Cranch C. C. i'Aii; Fed. Cas. No. 14178); but the books must be produced at the trial or an excuse given under oath for not producing them (U. S. v. Barrels, 10 Int. Kev. Kec. 205), so he may make an oath that they are not in his possession (U. S. v. Packages, Gilp. 306; Fed. Cas. No. 16561); and such oatli may be met by contrary proof. (Bas v. Steele, 3 Wash. 835 COMMON TO MORE THAN ONE COUBT. § 244 C. C. 381; Fed. Cas. No. 1088.) A petition by a stock- holder of an insolvent company to inspect a mine with a view to having the receiver removed is in the na- ture of a motion made for the production by parties of books or writings in their possession. (Henszey v. Langdon-Heuszey Coal M. Co., 80 Fed. Hep. 178). If the omission to produce the books arose from over- sight, the case may be postponed to allow time to pro- cure the affidavit of the party. (U. S. v. Barrels, 10 Int. Kev. Rec. 205.) If, by affidavit, he explains how the paper came into his possession, the court may order the affidavit put in evidence with the paper. (Bank of U. S. v. Wilson, 3 Cranch C. C. 213; Fed. Cas. No. 943). If a party inspects a book after its production it may be used as evidence by the ad- verse party. (Waller v. Stewart, 4 Cranch C. C. 532; Fed. Cas. No. 17109). After removal of a cause from a State Court, the Circuit Court should enforce an order made in the State court for the production of books or papers. (Williams Mower Co. v. Raynor, 7 Biss. 245; Fed. Cas. No. 17748j. This section applies as weU to cases arising under the revenue laws (U. S. V. Hughes, 12 Blatchf. 553; Fed. Cas. No. 15417; U. S. V. Distillery, 6 Biss. 483; Fed. Caa. No. 14966),. as in a proceeding to enforce a forfeiture under these laws. (U. S. V. Mason, 6 Biss. 350; Fed. Oas. No. 15775). There is nothing in this section to prevent Govern- ment from seizing and examining the books of a dis- tiller to ascertain some fact that will sustain a charge. (U. S. v. Mason, 6 Biss. 350; Fed. No. 15735). A description is sufficient which calls for the produc- tion of books and papers of a certain business be- tween specified dates. (U. S. v. Distillery, 6 Biss. 483; Fed. Cas. No. 14966; U. S. v. Three Tons, 6 Biss. 379; Fed. Cas. No. 16515). Plaintiff Is not entitled under this section to an order for the production by a defendant before trial of private books of account for plaintiff's inspection on an affidavit merely stating § 245 COil.MOX TO MORE THAN ONE COURT. S36 that affiant "believes" that such books will tend to prove the issues, without stating any grounds for such belief. (Caspary r. Carter, 84 Fed. Kep. 41G.) § 245 (725). Power to impose oaths and punish contempts. — The said courts sliall 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; 'pro- vided, that such power to punish contempts sliall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, Juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts. (Rev. Stats, sec. 725.) Dispbedience or resistance to orders, etc -The ex- ercise of the power to punish for the disobedience of an order has a two- fold aspect: first, to punish for disi'espect of the court, and second, to compel per- formance of the duty requii-ed; in the first case the court must judge for itself as to the punishment; in the latter the party should be imprisoned till he per- forms the act retiuir(Hl (In re Chiles. SI Wall. LIT.) and the Federal court may commit for contempt, al- though it has not jurisdiction over the cause. (Williamson's Case, 20 Pa. St. 9.) Where the order is in effect a final judgment for payment of money, the powei* of the court cannot be enforced (In re Atlantic Mut. Ins. Co., 17 Bank. Reg. 3G8; Fed. Oas. No. ()2U; The Blanche Page, 10 Blatchf. 1; Fed. Oas. 837 COMMON TO MORE THAN ONE COUET. § 245 No. 1524); and a person who merely interferes with property constructively attached cannot be proceeded against. (Steam Stone Cut Co. v. Windsor Manuf. Co. 3 Fed. Rep. 2'J8.) An interpreter or expert refus- ing to obey a summons will not be committed except in case of necessity. (In re Roelker, 1 Sprague, 270; Fed. Ca.s. No. 11995.) The power to summon a wit- ness carries with it the power to enforce obedience; and if he lives within a hundred miles of the court, he may be attached for contempt for refusing to obey the subpoena (Voss v. Luke, 1 Cranch G. C. 331; Fed. Cas. No. 17014; Hodgson v. Butts, 1 Cranch. C. C. 447; Fed. Cas. No. 65G3; Somerville v. French, 1 Oranch C. C. 474; Fed. Gas. No. 13173; United- States V. Williams, 4 Cranch C. C. 872; Fed. Cas. No. 16712; see Woods v. Young, 1 Cranch C. G. 346; Fed. Cas. No. 17994; Park v. Willis, 1 Cranch C. C. 357; Fed. Cas. No. 10716; Lewis v. Mandeville. 1 Cranch C. C. 360; Fed. Cas. No. 8326; Ex parte Pleasants, 4 Cranch O. C. 314; Fed. Cas. No. 11225; United States V. Jacobi, 4 Am. L. T. 148.) He may be at- tached for contempt, although he lives out of the district (United States v. Williams, 4 Cranch C. G. 372; Fed. Cas. No. 16712); but sickness of himself or family will be an excuse (Ex parte Beebees, 2 WaU. Jr. 127; Fed. Cas. No. 1220); or in ease of great inconvenience. (Ex parte Beebees, 2 Wall. Jr. 127; Fed. Cas. No. 1220.) A restraining order must be obeyed in its entirety until modified; the fact that respondents were acting under advice of counsel may mitigate but will not obviate punish- ment (Pokegama Sugar Pine L. Co. v. Klamath River L. & I. Co., 86 Fed. Rep. 538; Ulman v. Ritter, 72 Fed. Rep. 1000.) A person may be bound by an injunction though he is not a party to the suit, and though not served with an injunction order (Ex parte Lennon, 22 U. S. App. 561; 54 Fed. Rep. 320.) J; 245 COMMON TO MORE THAN ONE COURT. 83S Actual notice of an injunction makes it binding upon a party though he is not served. (Ulman v. Hitter, 72 Fed. Rep. 1000.) It is a violation of an in- junction against a partnership for the members to do the acts in their capacity as servants of others a» ■well as in their individual capacity (Daderrian v. Gullian, 79 Fed. Rep. 784.) Though a person is not named in an injunction it becomes binding as agalnsi him if served on him as one of the unliuown defend- ants (United States v. Agler, 62 Fed. Rep. 824.) Petition and rule for attachment is a proper method to pursue in a proceeding for contempt in disobeying an order of court, although not the only remedy; and ' when a copy of such petition is served on defendant six days is sufficient time to answer or get an ex- tension of time to answer. (American Const. Co. v. Jacksonville T. & K. W. Ry. Co., 52 Fed. Rep. 937.) Refusal to attend court in obedience to a subpoena is a conlempt (Carman v. Emerson, 36 U. S. App. 388; 71 Fed. Rep. 2&4.) Contempt. — For a discussion of the nature and classes of contempts, and motive as an eleujent, see (Indianapolis Water Co. v. American Strawboard Co., 75 Fed. Rep. 972.) The power to punish for con- tempt is incidental and necessary to the exercise of all other powers. (United States r. Hudson, 7 Oranch, 32; United States v. New Bedford Bridge, 1 Wood. & M. 401; Fed. Ojs. No. 15807.) A con- tempt of court is a crime against the United States (United States v. Jacobi, 4 Am. L. T. 148); and if willful may be dealt with by indictment. (United States V. .Tacobi. 4 Am. L. T. 148.) This section ap- plies to the circuit and district courts. (Ex parte- Robinson. 19 ^^^•lll. 5(K;.) The power to commit for contempt Is limited to cases whei'e there has been misbehavior in pre<;ence of the court, or of any oilicer of the court In his official transactions, or where- 839 COMMON TO MOKE THAX ONE COURT. § 245 there is a resistance to any lawful writ, proceoS, order, decree, or command of the court. (Ex parte Robinson 19 Wall. 506; Bridges v. Sheldon, 18 Blatchf. 518.) A proceeding for contempt cannot be re-examined on appeal or writ of error. (Hayes v. Fischer, 102 U. S. 121.) This section is a limitation upon the manner in which the power to punish for contempt shall be exercised. (Ex parte Robinson, 19 Wall. 506.) The circuit courts have power to pun- ish for contempt for any disobedience or resistance by any such officer, or by any party, juror, witness; or other person, to any lawful writ, process, order, rule, decree or command of the said courts (R. S. sec. 725; 1 Stat. 83; 4 Stat. 487; In re Terry, 289 U. S. 287.) The right of a citizen of one State to institute proceedings in a United States circuit court situated in another State to punish for contempt citi- zens of the latter State who have disobeyed a de- cree of such court in the enforcement of which the petitioner has an interest, is a right secured by the constitution and laws of the United States within the meaning of U. S. Rev. Stats, sees. 5508, 5509, which provides a punishment for conspiring to in- jure, oppress, threaten, or intimidate a person in the exercise of such rights. (United States v. Lancaster, 10 Ij. R. a. 317; see Ex parte Yai'brough, 110 U. S. 651; United States v. Lancaster, 44 Fed. Kep. 885, SOU.) A sheriff who levies upon property in possession of a Federal court, and continues to detain the property contrary to the order of the court, is guilty of con- tempt and is liable to punishment therefor (Ex parte Tyler, 149 U. S. 164; Sabin v. Fogarty, 70 Fed. Rep. 482; Ex parte Hudel^oper, 55 Fed. Rep. 709); but a sheriff Is not guilty of contempt in levying upon goods which have passed out of the custody of the Federal court (Animarium Co. v. Bright. 82 Fed. Rep. 197.) It is a contempt to bring an action at law to § 245 COMMON TO MOKE THAN ONE COURT. 840 recover the same rents and profits where an inter- locutoi-y decree has been rendered for complaituint, and the cause remanded to a master for an account- ing of rents and profits (Garner v. Second National Bank, 33 U. S. App. 91; 67 Fed. Rep. 833.) A Fed- eral court has no jurisdiction to punish as a con- tempt an act of disobedience to an order which the court intended to malie but which was never en- tered; or an act in violation of a stipulation in open court. Neither can the court make so punishable an act not forbidden by an ordei- or decree at the time it was committed, by afterward entering a nunc pro tunc order forbidding such act (Ex parte Buskirk, 2.5 U. S. App. G13; 72 Fed. Rep. 14.) It is a contempt of court to unlawfully impede or prevent a receiver of a railroad from complying with an order of the court in running the road (Thomas v. Cincinnati N. O. & T. P. Rj-. Co., 62 Fed. Rep. 803.) In presence of the court. — It is a contempt of court for a person acquitted of a crime to threaten vengeance on a witness within the possible hearing of the court (United States v. Carter, 3 Cranch C. C. 423; Fed. Cas. No. 14740); or to use abusive language in the courtroom (United States v. Emerson, 4 Cranch C. C. 188; Fed. Cas. No. 15050); or to com- mit an assault and battery at the enti'ance to the courtroom (United States v. Emerson. 4 Ci'anch C. C. 18S: Fed. Cas. No. 15050); or for a witness to refuse to be sworn according to law (United States v. Cool- idge. 2 Call. 3G4; Fed. Cas. No. 14858); or to refuse to answer a question and misbehave before the jury (United States v. Caton, 1 Cranch C. G. 150; Fed. Cas. No. 14758; but it is not a contempt to serve a summons on a suitor while he is in actual or con- structive presence of the court. (Blight v. Fisher, Feters C. G. 41; Fed. Cas. No. 1542.) It is contempt S41 COMMON TO MORE THAJST ONE COURT. § 245 to bribe a person who is a material witness, to hide himself and remain away, thereby preventing his testifying in a case, whether such person has been subpoenaed or not, the act of bribeiy being a con- tempt committed "so near," to the court "as to ob- struct or impede the due administration of justice" (In re Brule, 71 Fed. Rep. 945.) Out of presence of court. — If an officer does not obey an order directing him to pay over money re- ceived in his official capacity, it is a contempt of court. (In re Pittman, 1 Curt. 186; Fed. Cas. No. 111&4; Bagley v. Yates, 3 McLean. 465; Fed. Cas. No. 725.) So where money is collected by a deputy marshal ex officio (The Lawrens, 1 Abb. Adm. 508; Fed. Cas. No. 8122; United States v. Mann, 2 Brock. 9; Fed. Cas. No. 15716; Bagley v. Yates, 3 McLean, 465; Fed. Cas. No. 725); but the marshal is not re- si)onsible (Bagley v. Yates. 3 McLean, 465; Fed. Cab. No. 725); and if proceedings are instituted for fees collected by an officer, his claim for fees for services rendered may be set off. (United States v. Mann, 2 Brock. 9; Fed. Cas. No. 15716.) If an attorney col- lects money for his client and refuses to pay it over, he is liable for contempt (In re Paschal, 10 Wall. 483); but if he has cross-demands, and has not acted dishonestly, he is not liable (In re Paschal. 10 Wall. 483), and courts cannot disbar him for the contempt, but may do so for misconduct. (Ex parte Robinson, 19 Wall. 506.) A person summoned as a .iuror. ex- pressing an opinion for the purpose of disqualifying himself, is guilty of contempt (United States Devaughan, 3 Cranch C. C. 84; Fed. Cas. No. 14952); or for disobeying orders of court as to conversing with others about the case (In re May. 1 Fed. Rep. 737); or for escaping out of a window of the jury- room. (Oft'utt V. Parrott. 1 Cranch C. C. 154; Fed. Cas. No. 10453.) Fed. Proc— 7L §§ 246 247 COMMON TO more than one COIKT. 84J § 246. Occupants of lands, remedies for im- provements. — \\'hen an occupant of land, having color of title, in good faith has made valuable im- provements thereon, and is, in the proper action, found not to he the rightful owner thereof, such occupant shall be entitled in the federal courts to all the rights and remedies, and, upon instituting the proper proceedings, such relief as may be given or secured to him by the statutes of the State or Territory where the land lies, although the title of the plaintiff in the action may have been granted by the United States after said improvements were so made. [Approved June 1, 1874.] (18 U. S. Stats. 50. See Eev. Stats, sec. 121.) §247 (726). New Trials.— All of the said courts shall have power to grant new trials in cases whore there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. (Rev. Stats, sec. 726.) Granting of new trials. — This soction relates only to cases wliere there lias been a trial by jurj-; in other cases State laws may give additional reme- dies. (Clark V. Sohier. 1 Wood. & M. 368; Fed. Cas. No. 2835.) A new trial will not be gi-anted upon the sroimd of newly discovered evidence, where the party had lieard rumors which If followed up would have led to a discovery of the evidence before trial, or where the new evidence would be merely cumulative (Wrijrht v. Southern Ex. Co., 80 Fed. Rep. 85). A verdict in favor of a party whose con- duct was calculated to improperly influence the j\u-y upon a material (luestion should be set aside and a new trial gi'anted on the ground of public 843 COMMON TO MORE THAN ONE COURT. §§ 248-249 policy (Preston v. Mutual Life Ins. Co. of N. Y., 71 Fed. Eep. 4€7). A circuit court will not gi'ant a new trial because one of the juroi-s was a nonresi- dent of the district, which fact was not disclosed at the trial (Fisher v. Yoder, 53 Fed. Rep. 565). An application to file a bill of reriew on the ground of newly discovered evidence will not be gi'auted un- less the evidence is so controlling that it would probably induce a different conclusion than that on which the former decree was based (Jourolmon v. Ewing, 85 Fed. Rep. 103). A new trial will usually be granted where a party, without laches on his part, loses the benefit of his exceptions through the death or illness of a judge (Hume v. Bowie, 14S U. S. 245). Refusal to grant a new trial is not reviewable, see ante § 177, p. 661. § 248 (727). Power to hold to security for the peace and good behavior. — The judges of the su- preme court and of the circuit and district courts, the commissioners of the circuit courts, and the judges and other magistrates of the several States who are or may be authorized by law to make arrest 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 cogniza- ble before them. (Kev. Stats, sec. 737.) § 249 (728). Power to enforce awards of for- eign consuls, etc., in certain cases. — The district and circuit courts, and the commissioners of the circuit courts, shall have power to carry into effect, § 249 COMMON TO MOBE THAN ONE COUBT. 844 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 na- tion, made or rendered by virtue of authority con- ferred on him as such consul, vice-counsel or com- mercial agent, to sit as judge or arbitrator in such dilferences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to his charge; application for the exercise of such power being first made to such court or commissioner by petition of such consul, vice-counsel, or commercial agent. And said courts and commissionei^s may issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration, or de- cree, 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 law- fully imprison any person arrested under the au- thority of the United States, until such award, ar- bitration, or decree is complied with, or the parties are otherwise discharged therefrom, by the consent in writing of such consul, vice-consul, or commer- cial agent, or his successor in office, or by the au- thority of the foreign government appointing such consul, vice-consul, or commercial agent; provided, however, that the expenses of the said imprison- ment and maintenance of the prisoners, and the cost of the proceedings, shall be borne by such foreign government, or by its consul, vice-consul, or commercial agent requiring such imprisonment. The marshals of the United States shall serve all 845 COMMON TO MOKE THAN ONE COURT. §§ 250-251 such process, and do all other acts necessary and proper to carry into eli'ect the premises under the authority of the said courts and commissioners. (Kev. Stats, sec. 728.) § 250. Proceedings to enjoin comptroller of the currency. — All proceedings by any national bank- ing association to enjoin the comptroller of the cur- rency under the provisions of any law relative to national, banking associations shall be had in the district where such association is located. (Kev. Stats, sec, 736.) § 251. Suits, in what district brought. — ^Gen- erally, no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhab- itant; 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 defendant. (35 U. S. Stats. 434.) See ante, sections 26 and 87 and notes. Application of statute. — This section does not ap- ply to Territorial courts. (Salisbury v. Sands, 2 Dill. 270; Fed. Cas. No. 12251.) Its provisions ap- ply to process in equity as well as at law (Winter v. Ludlow, 3 Phila. 464; Fed. Cas. No. 17891); as on a bill filed to set aside a foreclosure sale. (Pacific § 251 COMMON TO MOKE THAN ONE COURT. 846 R. R. V. Missouri Pac. Ry. Co. 1 McCrary, &47; 3 Fed. Rep. 772.) It applies exclusively to original process. (Picquet t. Swan, 5 Mason, 35; Fed. Cas. No. 11134.) The statute of Indiana of May 29, 1879, relating to procedure in actions against foreign cor- porations, their ofticei*s or agents, does not apply to causes arising outside the State. (Grover v. Amer. Express Co., 11 Fed. Rep. 386.) This section applies to suits for relief against interfering patents. (Lig- gett etc.' Co. V. Miller, 1 Fed. Rep. 203.) It inhib- its the suing of any person in any other district than the district in which he resides. (Dovejoy v. Hartford Fire Ins. Co., 11 Fed. Rep. 64.) The pro- visions of this section are applicable to patent suits. (Chaffe V. Hay ward, 20 How. 208; Allen v. Blunt, 1 Blatchf. 480; Fed. Cas. No. 215; Day v. Newark Manuf. Co., 1 Blatchf. 628; Fed. Cas. No. 3685.) A bill to obtain relief against a judgment is deemed an auxiliary suit, and the subpoena may be seiTed in another district (Logan v. Patrick, 5 Cranch, 288; Dunlap T. Stetson, 4 Mason, 349; Fed. Cas. No. 4164); and if plaintiff is nonresident, it may be sei'ved on plaintiff's attorney. (Dunn v. Clarke. 8 Peters, 1; Seegee v. Thomas. 3 Blatchf. 1] ; Fed. Cas. No. 12633; Hitner v. Suekley, 2 Wash. C. C. 465; Fed. Cas. No. 6543; Read v. Consequa. 4 Wash. C. C. 174; Fed. Cas. No. 11606; Eckert v. Bauert, 4 Wash. C. 0. 370; Fed. Cas. No. 4266; Ward v. Sealiry. 4 Wash. C. C. 426; Fed. Cas. No. 17161. See additional notes, p. ante §§ 26, 87. Territorial limit of jurisdiction. — A court created within and for a particular territory is bounded in the exercise of its power by the limits of such ter- ritory. (IMcquet v. Swan, 5 Mason, 35; Fed. Cas. No. 11134; Ex parte Graham, 3 Wash. C. C 456; Fed. Cas. No. 5657.) Whatever may be the extent 847 COMMON TO MORE THAN ONE COURT. § 251 of the jurisdiction orer the subject-matter in a suit in respect to jurisdiction over persons and prop- erty, it can only be exercised within the limits of the judicial district. (Toland v. Sprague, 12 Peters, 300; Picquet v. Swan, 5 Mason, 35; Fed. C'as. No. 11134.) Where a citizen of New Hampshire and a citizen of Georgia sued a citizen of Massachu- setts in New York, where he was arrested, the court had no jurisdiction. (Moffat v. Soley, 2 Paine, 103; Fed. Cas. No. 96S8.) Where there are two districts in a State, a citizen of such State is liable to suit in either district if served with process. (McMicli- en V. Webb, 11 Peters, 25; Vore v. Fowler, 2 Bond, 294; Fed. Cas. No. 17003; Locomotive Co. v. Erie R. Co., 10 Blatchf. 292; Fed. Cas. No. 8452.) Jurisdiction, how acquired. — A Federal court ac- quires jurisdiction over parties only by a service of process or by their voluntary appearance (Herndon v. Ridgway, 17 How. 424), and only by seiTice of process within the district (Allen v. Blount. 1 Blatchf. 480; Fed. Cas. No. 215; Union Sugar Refi. V. Matthiesseu, 2 Cliff. 304; Fed. Cas. No. 14.397), and not then if he is but temporarily within the district, (Smith v. Tuttle, 5 Biss. 159; Fed. Cas. No. 13120.) A person who comes within the district merely for the purpose of attending a trial in a State court cannot be sei-ved with process issuing oiit of a United States court (.luneau Bank v. Mc- Spedan, 5 Biss. 64; Fed. Cas. No. 7582); and if served with summons while attending the trial of a cause in the circuit court as a party, the service will be set aside.) Parker v. Hotchkiss, 1 Wall. .Tr. 269; Fed. Cas. No. 10739; contra. Blight v. Fisher, Pet- ei-s. C. C. 41; Fed. Cas. No. 1542.) Where defend- ant, not an inhabitant of the distiMct, is inveigled or enticed into the district by false, representations or § 251 COMMON TO MORE THAN ONE COURT. 848 deceptive contrivances, service of pi'ocess on liim within the district is illegal. (Steiger v. Bonn, 4 Fed. Rep. 17; Union Sugar Kefi. v. Matthiessen, 2 Cliff. 304: Fed. Cas. No. 143JJ7.) If a nonresident comes into the district for the purpose of pleading to an indictment and giving bail, he cannot be sued before he has a reasonable time to depart (U. S. V. Bridgman, 9 Biss. 221; Fed. Cas. No. 14&45.) If defendant is a nonresident of the district, the record must show with certainty that pi'ocess was served upon him within the district. (Allen r. Blunt, 1 Blatchf. 480; Fed. Cas. No. 215; Tore v. Fowler, 2 Bond, 294; Fed. Cas. No. 17003; McCloskey v. Webb, 2 Bond, 16; Fed. Cas. No. 8702; Thayer v. Wales, 5 Fish. 448; Fed. Cas. No. 13872.) Waiver of irregularities. — A Federal court has no authority to issue process to another district. (Hern- don V. Ridgway, 17 How. 424.) So the process of a circuit court cannot be served without the dis- trict in which it is established except by special authority of law. (Toland v. Sprague, 12 Peters, 300; Ex parte Graham, 3 Wash. C. C. 456; Fed. Cas. No. 5657; Wilson v. Graham, 4 Wash. C. C. 53; Fed. Cas. No. 17804.) In proceedings for relief against an interfering patent under section four thousand nine hundred and eighteen. Revised Statutes, no provision is made for service of notice on parties outside of the district. (Liggett v. Miller, 1 Mc- Crary, 31; 1 Fed. Rep. 203.) No judgment can be rendered against a defendant who has not been served with process in the manner pointehals to pay supervisors of election; for filin:i- mar- shal's accounts of it; for mailing final records, which also include the order of commitment (United States V. Jones, 147 U. S. 672). The clerk of the circuit court is not entitled to per diem charge for services as clerk in selecting juries in connection with the jury commissioner; nor to a charge for docketing and indexing a summary application to the judge, the pro- ceeding not being a "cause"; nor to charge for making separate reports of the amount of fees due by the United States to jurors and witnesses for traveling and attending, nor for filing separate orders of the court to pay the same; nor for drawing more than one recognizance for witnesses in a criminal case (United States V. King, 147 U. S. 676). § 297. Marshals' fees. — For service of any war- rant, attachment, summons, capias, or other writ, except execution, venire, or a summons or sub- poena for a witness, two dollars for each person on whom service is made. For the keeping of personal property attached on mesne process, such compensation as the court. § 297 FEES. 916 on petition setting forth the facts under oath, may allow. For serving venires and summoning every twelve men as grand or petit jurors, four dollars, or thirty- three and one-third cents each. In States where, by the laws thereof, jurors are drawn by lot, by constables, or other officers of corporate places, the marshal shall receive, for each jury, two dollars for the use of the officers employed in drawing and summoning the jurors and returning each venire, and two dollars for his own services in distributing the venires. But the fees for distributing and .serving venires, drawing and summoning jurors by township officers, including the mileage charge- able by the marshal for each service, shall not at any court exceed fifty dollars. For holding a court of inquiry or other proceed- ings before a jury, including the summoning of a jury, five dollars. For serving a writ of subpoena on a witness, fifty cents; and no further compensation shall be al- lowed for any copy, summons, or notice for a wit- ness. For serving a writ of possession, partition, exe- cution, or any final process, the same mileage as is allowed for the service of any other writ, and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set- off, or otherwise according to law, receiving and paying over the money, the same fees and pound- age as arc or shall be allowed for similar services to the sheriffs of the States, respectively, in which the service is rendered. 917 FEES. § 297 For each bail bond, fifty cents. For summoning appraisers, lit'ty cents each. For executing a deed prepared by a party or his attorney, one dollar. For drawing and executing a deed, five dollars. For copies of writs or papers furnished at the request of any party, ten cents a folio. For every proclamation in admiralty, thirty cents. F'^or serving an attachment in rem or a libel in admiralty, two dollars. For the necessary expenses of keeping boats, vessels or other property attached or libeled in ad- miralty, not exceeding two dollars and fifty cents a day. When the debt or claim in admiralty is settled by the parties without a sale of the property, the marshal shall be entitled to a commission of one per centum on the first five hundred dollars of the claim or decree, and one-half of one per centum on the excess of any siim thereof over five hun- dred dollars; provided, that when the value of the property is less than the claim, such commission shall be allowed only on the appraised value thereof. F'or sale of vessels or other property under pro- cc!fs in admiralty, or under the order of a court of admirafiy, and for receiving and paying over the money, two and one-half per centum on any sum under five hundred dollars, and one and one- quarter per centum on the excess of any sum over five hundred dollars. § 297 FEES. 918 i*"or disbursing money to jurors and witnesses, and ior other expenses, two per centum. I^'or expenses wiiile employed in endeavoring to arrest, under process, any person charged witli or convicted of a crime, the sum actually expended, not to exceed two dollars a day, in addition to his compensation for services and travel. For every commitment or discharge of a pris- oner, fifty cents. For transporting criminals, ten cents a mile for himself and for each prisoner and necessary guard; except in the case provided for in the next para- graph. For transporting criminals convicted of a crime in any district or Territory where there is no pen- itentiary available for the confinement of convicts of the United States, to a prison in another dis- trict or Territory designated by the attorney gen- eral, the reasonable actual expense of transporta- tion of the criminals, the marshal, and the guards, and the necessary subsistence and hire. For attending the circuit and district courts, when both are in session, or either of them when only one is in session, and for bringing in and com- mittincr prisoners and witnesses during the term, five dollars a day. For attending examinations before a commis- sioner, and bringing in, guarding and returning prisoners charged with crime, and witnesses, two dollars a day; and for each deputy not exceeding two, necessarily attending, two dollars a day. For traveling from his residence to the place of 919 FEES. § 297 holding court, to attend a term thereof, ten cents a mile for going only. For travel, in going only, to serve any process, warrant, attachment, or other writ, including writs of subpoena in civil or criminal cases, six cents a mile, to be computed from the place where the process is returned to the place of service, or, when more than one person is served therewith, to the place of service which is most remote, adding thereto the extra travel which is necessary to serve it on the others. But when more than two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs; and to save unnecessary expense, it shall be the duty of the clerk to insert the names of as many witnesses in a cause in such subpoena as conven- ience in serving the same will permit. In all cases where mileage is allowed to the mar- shal he may elect to receive the same or his actual traveling expenses, to be proved on his oath, to the satisfaction of the court. ("Rer. Stats, sec. 829. See sec. 1660; also 26 TJ. S. Stats. 839; 1 Sup. Rev. Stats. 909.) . Note.— By an act which went into effect July 1, 1896 (29 TJ. S. Stats. 179-186). it was provided that marshals should receive annual salaries as provided in the act in lieu of all commissions, fees, etc.. but that they should continue to collect the sams fees as formerly and turn them into the hands of the clerk, to be covered into the treasury. The act did not require or authorize the charging of collection § 297 FEES. 920 of fees against the United States, except in certain cases foi- field deputies of the mai>;hal. Expenses of the marshal while traveling on business for the United States are allowed to him (2. 495.) § 308. Clerks in California. Oregon and Ne- vada. — The clerks of the several circuit and dis- 935 FEES. § 309 trict courts in California, Oregon and Nevada shall be entitled to charge and receive double the fees hereinbefore allowed to clerks, and shall be al- lowed, respectively, by the attornej^-general, to re- tain the fees so received by them, for their per- sonal compensation, over and above the necessary expenses of their offices, including the salaries of deputy clerks and necessary clerk hire, to be audited by the proper accounting officers of the treasury department, any sum not ex- ceeding seven thousand dollars a year, nor ex- ceeding that rate for any time less than a year; provided, that whenever in either of the said dis- tricts, the same person holds the office of clerk of both the circuit and district courts, he shall be allowed by the attorney-general to retain for his personal compensation, as foresaid, only such sum as herein allowed to be retained by a person hold- ing the office of clerk of only one of the said courts. (Eev. Stats, sec. 840.) § 309. Compensation of marshals. — Prior to July 1, 189G, the several marshals were allowed to retain from the fees collected by them an amount not exceeding six thousand dollars. By an Act which went into effect on that date the marshals were given regular salaries, and the fees thereafter collected were to be covered into the treasury. (29 U. S. Stats. 179-186.) Note. — The attorney-general can do nothing but reduce the rate allowed, whenever the marshal's re- turn shows such "rate to be unreasonable." (Phil- lips V. U. S., 11 Ct. of CI. 570; see preceding sec- tion.) §§ 310-312 FEES. 936 § 310. Additional compensation in prize causes. — Clerks [and inarshals] may be allowed to retain, for all official services in prize causes, an additional compensation not exceeding in amount one-half of the maximum compensation allowed to them, respectively, by the three preceding sec- tions. (Eev. Stats, sec. 843.) See preceding section. Note.— Clerks and marehals entitled to additional compensation in prize causes. (United States v. Avtrill, 130 U. S. 335.) §311. Mileage. — Only actual traveling ex-- penses shall be allowed to any person holding em- ployment or appointment under the United States, and all allowances for mileages and transportation in excess of the amount actually paid are hereby declared illegal;, and no credit shall be allowed to any of the disbursing officers of the United States for payment or allowances in violation of this pro- vision. (June 16, 1874. 18 U. S. Stats. 72; 1 Sup. Eev. Stats. 37. See Eev. Stats, sees. 829, 830.) § 312. Mileage, attorneys, marshals and clerks. — From and after the first day of January, eighteen hundred and seventy-five, no such officer or person shall become entitled to any allowance for mileage or travel, not actually and necessarily performed under the provisions of existing law. (Sec. 827-839, U. S. Stats. 334; 1 Sup. Rev. Stats. 147.) Note. — Only one charg:e for milonse is allowable for the service of several writs on hand at the same 937 FEES. §§313-315 time, in the same direction. (15 Opin, Att.-Gen. 108; see 16 Opin. Att.-Gen. 1G5.) § 313. Mileage, jurors and witnesses. — Jurors and witnesses in the district and circuit courts of the United States in and for the State of Colorado shall be entitled to receive fifteen cents for each mile actually traveled in coming to or returning from said courts. (Approved, June 16, 1880. See Eev. Stats, sees. 848-852.) § 314. Allowances for each year made from the fees thereof. — The allowances for personal compensation of district attorneys, clerks, and mar- shals, for each calendar year, shall be made from the fees and emoluments of that year, and not otherwise. (Eev. Stats, sec. 843.) Note.— Since July 1, 1806, the several marshals and district attorneys, excepting the Qi strict attorneys in the southern district of New York and certain terri- tories, have been paid annual salaries. (29 U. S. Stats. 179-186.) § 315. Payment of surplus fees into treasury. • — Every district attorney, clerk, and marshal shall, at the time of making his half-yearly return to the attorney-general, pay into the treasury, or de- posit to the credit of the treasury, as he may be directed by the attorney-general, any surplus of the fees and emoluments of his office, which said return shows to exist over and above the compen- sation and allowance authorized by law to be re- tained by him. (Eev. Stats, sec. 844.) Fed. Pkoc— 79, §§316-317 FEES. 938 Note.— See the act of 1896 (29 U. S. Stats., 179-18J) which provides that all the district attorneys of the United States, except in the southern district of New York and the district of Columbia, Alaska, and Indian Territoiy, and all the marshals except in Indian Territoi'y and Alaska, shall turn their fees collected to the clerk, to be by him covered into the treasury of the United States. The act provides for salaries for the several district attorneys and mar- shals. The department will see that no more is re- tained by the officer than the sum given him by law. (The Anna, Blatchf. Prize, 337; Fed. Cas. No. 402.) The costs must be taxed according to law. (The Anna, Blatchf. Prize, 337; Fed. Cas. No. 402.) This section is not a "revenue law" within the mean- ing of section 699. subdivision 2. (United States v. Hill, 123 U. S. 681.) § 316. Auditing of accounts of district attor- ney. — In every case where the return of a district attorney, clerk or marshal shows that a surplus may exist, the attorney-general shall cause such return to be carefully examined, and the accounts of disbursements to be regularly audited by the proper officer of his department, and an account to be opened with such officer in proper books to be provided for that purpose. (Kev, Stats, sec. 845.) § 317. Attorney in District of Columbia. — That the emolument returns of the attorney of the United States for the District of Columbia shall be returned to the attorney-general, and the ac- counts of the said attorney shall be rendered, au- dited, and paid in the same manner as accounts of all other district attorneys are rendered, audited 939 FEES. § 318 and paid. (Approved, DecemlDer 14, 1877; 20 U. S. Stats. 7; Sup. Eev. Stats. 303. See Eev. Stats, sees. 833, 834, 844, 846.) § 318. Accounts to he certified to by district judge. — The accounts of district attorneys, clerks, marshals, and commissioners of circuit courts shall be examined and certified by the district judge of the district for which they are appointed, be- fore they are presented to the accounting officers of the treasury department for settlement. They shall then be subject to revision upon their merits by said accounting officers, as in case of other pub- lic accounts; provided, that no accounts of fees or costs paid to any witness or Juror, upon the order of any judge or commissioner, shall be so re-ex- amined as to charge any marshal for an erroneous taxation of such fees or costs. That where the ministerial officers of the United States have or shall incur extraordinary expense in executing the laws thereof, the payment of w^hich is not speci- fically provided for, the President of the United States is authorized to allow the payment thereof under the special taxation of the district or circuit court of the district in which the said services have been or shall be rendered, to be paid from the ap- propriation for defraying the expenses of the judi- ciary. (Eev. Stats. sec.''846; 18 U. S. Stats. 318; 1 Sup. Eev. Stats. 138.) Note.— The accounts of the marshals and district attorneys and assistants may be submitted to and examined by either the circuit or district judge. (29 U. S. Stats. 183.) § 319 FEES. 940 A district judge has the power to take the oath of the clerk to his return of fees of office (United States v. Ambrose, 2 Fed. Rep. 556); and the certificate of the judge is only evidence of the claim or right to he given to the treasury. (United States V. Ingersoll, Crabbe, 135; Fed. Cas. No. 15440.) It is merely prima facie evidence of its correctness, and any item may be rejected by the accounting officers. (United States v. Smith, 1 Wood & M. 184; Fed. Cas. No. 16346.) If the items have been passed upon in judgments as to bills of costs, the certificate of the judge is conclusive. (United States v. Smith, 1 Wood & M. 184; Fed. Cas. No. 16346.) Whether the mar- shal's fees are fixed by rule or depend on circum- stances, they must be certified to. (The Antelope, 12 Wheat. 546.) A refusal by the court to act upon a claim under this section is not required to authorize a pre-sentation of the claim to the treasui*y depai"t- ment before bi'inging suit in the court of claims. (United States v. Knox, 128 U. S. 230.) This section declares that clerks, marshals and commissioners of circuit courts shall be accounting otticei"s of the treasury department and shall be subject to revision upon their merits by said accounting officei'S, as in case of other public accounts. The claimant has a remedy in the court of claims vs^ithout first resoi*ting to a writ of mandamus against the circuit court. (United States v. Knox, 128 U. S. 230.) It is not a defense to an action by a clerk of the Federal court against the government, to recover his fees, that his claim has not been audited by the officials of the ex- ecutive department, or that it has not been allowed by such officials. (U. S. v. Fitch, 37 U. S. App. 103; 70 Fed. Rep. 578.) § 319. Accounts for costs of clerks, etc. — That before any bill of cost .shall be taxed by any judge y41 FEES. § 319 or other officer, or any account payable out of the money of the United States shall be allowed by any olhcer of the treasury, in favor of clerks, mar- shals, or district attorneys, the party claiming such account shall render the same, with the vouchers and items thereof, to a United States cir- cuit or district court, and, in presence of the dis- trict attorney or his sworn assistant, whose pres- ence shall be noted on the record, prove in open court,^to the satisfaction of the court by his own oath or that of other persons having knowledge of the fact, to be attached to such account, that the services therein charged have been actually and necessarily performed as therein stated; and that the disbursements charged have been fully paid in lawful money; and the court shall thereupon cause to be entered of record an order approving or dis- approving the account, as may be according to law, and just. United States commissioners shall forward their accounts, duly verified by oath, to the district attorneys of their respective districts, by whom they shall be submitted for approval in open court, and the court shall pass upon the same in the manner aforesaid. Accounts and vouchers of clerks, marshals, and district attorneys shall be made in duplicate, to be marked respectively "original" and "duplicate." And it shall be the duty of the clerk to forward the original accounts and vouchers of the officers above specified, when approved, to the proper accounting officers of the treasury, and to retain in his office the duplicates, where they shall be open to public inspection at all § 320 FEES. 942 times. Nothing contained in this act shall be deemed in any wise to diminish or affect the right of revision of the accounts to which this act applies by the accounting officers of the treasur)', as exer- cised under the laws now in force. (See sees. 824, 838; 18 U. S. Stats. 333. 1 Sup. Eev. Stats. 145.) § 320. Clerk failing to report to be removed. — That if any clerk of any district or circuit court of the United States shall willfully refuse or neg- lect to make any report, certificate, statement or other document required by law to be by him made, or shall willfully refuse or neglect to for- ward any such report, certificate, statement or document to the department, officer, or person to whom, by law, the same should be forwarded, the President of the United States is empowered, and it is hereby made his duty, in every such case, to remove such clerk so offending from office, by an order in writing for that purpose. And upon the presentation of such order, or a copy thereof, au- thenticated by the attorney-general of the United States, to the judge of the court whereof such of- fender is clerk, such clerk shall thereupon be deemed to be out of office, and shall not exercise the functions thereof. And such district judge, in the case of the clerk of a district court, shall ap- point a successor; and in the case of the clerk of a circuit court, the circuit judge shall appoint a suc- cessor. And such person so removed shall not be eligible to any appointment as clerk or deputy clerk for the period of two years next after such 943 FEES. §§ 321-333 removal. [See sees. 797, 798.] (18 U. S. Stats. 333; 1 Sup. Eev. Stats. 146.) § 321. Additional punishment. — That if any clerk mentioned in the preceding section shall will- fully refuse or neglect to make or to forward any such report, certificate, statement, or document therein mentioned, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding one thousand dollars, or by impris- onment not exceeding one year, in the discretion of the court; but a conviction under this section shall not be necessary as a condition precedent to the removal from office provided for in this act. [See sec. 797.] (18 U. S. Stats. 333; 1 Sup. Eev. Stats. 147.) § 322. Fees of "United States commissioners. — That each United States commissioner shall be en- titled to the following named fees, and none other: drawing a complaint, with oath and jurat to same, fifty cents; copy of complaint, with certificate to same, thirty cents; issuing warrant of arrest, seventy-five cents; issuing a commitment an,d making copy of same, one dollar; entering a return, fifteen cents; issuing subpoena oi subpoenas in any one case, with five cents for each necessary wit- ness in addition to the first, twenty-five cents; drawing a bond of defendant and sureties, taking acknowledgment of same and justification of sure- ties, seventy-five cents; for administering an oath (except to vritness as to attendance and travel) ten cents; recognizance of all witnesses in a case. § 322 FEES. 944 wlieu the defendant or dei'endants are held for court, fifty tents; transcripts of proceedings;, wiien required by order of court and transmission of origiuai papers to court, sixty cents; copy of war- rant of arrest, with certificate to same, when de- fendant is held for court, and the original papers are not sent to court, forty cents; order in dupli- cate to pay all witnesses in a case: ¥ot first wit- ness, thirty cents, and for each additional witness five cents, and for oath to each witness as to at- tendance and travel, five cents; for hearing and deciding on criminal charges and reducing the testimony to writing when required by law or or- der of court, five dollars a day for the time neces- sarily employed: provided, that not more than one per diem shall be allowed in a case, unless the ac- count shall sho.w that the hearing could not be completed in one day, when one additional per diem may be especially approved and allowed by the court; provided, further, that not more than one per diem shall be allowed for any one day; provided, further, that no per diem shall be al- lowed for taking a bond or recognizance and pass- ing on the sufficiency of the bond or recognizance and the sureties thereon when the bond or recog- nizance was taken after the defendant had been committed to prison upon a final commitment, or has given bond or been recognized for his ap- pearance at court, or when the defendant has been arrested on a capias or bench warrant, or was in custody under any process or order of a court of record. For the examination and certificate in 945 FEES. § 322 cases of application for discharge of poor convicts imprisoned for nonpayment of fine or fine and costs, and all services connected therewith, three dollars; for attending to a reference in a litigated matter, in a civil cause at law, in equity, or in ad- miralty, in pursuance of an order of the court, three dollars a day; for taking and certifying depo- sitions to file in civil cases, ten cents for each folio; for each copy of the same furnished to a party on request, ten cents for each folio; for is- suing any warrant under the tenth article of the treaty of August ninth, eighteen hundred and forty-two, between the United States and the Queen of the United Kingdom of Great Britain and Ireland, against any parties charged with any crime or offense set forth in said article, two dol- lars; for issuing any warrant under the provision of the convention for the surrender of criminals between the United States and the King of the French, concluded at Washington, November ninth, eighteen hundred and forty-three, two dollars; for hearing and deciding upon the case of any person charged with any crime or offense, and arrested under the provisions of said treaty or of said con- vention, five dollars a day for the time necessar- ily employed. (39 U. S. Stats. 184.) TTnited States commissioners. — By an act passed May 28, 1896 (29 U. S. Stats. 184), the office of cir- cuit court commissioner was abolished, and instead the office of district court commissioner was created. A new scliedule of fees to be charged by the dis- trict court commissioner as given in the above sec- tion was established by the act. § 323 FEES. 946 Commissioner's fees. — It is important that a com- missiouer stiould write out ttie testimony taken be- fore liim in preliminary examinations and he is en- titled to fees therefor as an examining magistrate. (United States v. Dundy, 40 U. S. App. 379; 76 Fed. Eep. 355.) Commissioners are not allowed double fees in Wyoming. (Churchill v. United States, 32 U. S. App. 196; 67 Fed. Rep. 529.) The compensa- tion of a commissioner is limited to those specific services for which Congress has provided compensa- tion. (United States v. Patterson, 150 U. S. 65.) Commissioners are subject, so far as relates to their administrative action, to the orders and directions of the court appointing them. (United States v. AUred, 155 U. S. 591.) A lack of good faith on the part of a commissioner will bar his claim against the United States for compensation. (Southworth V. United States, 161 U. S. 639.) § 323. Witnesses' fees. — For each day's attend- ance in court, or before any officer, pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. "When a M'itness is detained in prison for want of security for his ap- pearance, he shall be entitled, in addition to his su])sistence, to a compensation of one dollar a day. (Eev. Stats, sec. 848. See sees. 879-881.) 947 FEES. § 323 Witness fees. — A witness subpoenaed at the place of trial on the day of trial is not entitled to a travel fee (The Sunnyside, 5 Ben. 162; Fed. Cas. No. 13619); and if he has the means to pay traveling expenses, it is not necessary to tender his fees. (United States V. Durling, 4 Bi^ss. 509; Fed. Cas. No. 15010.) Fees for attendance may be taxed in civU as well as crim- inal cases (Sebring v. Ward, 4 Wash. C. C. 54G; Fed. Cas. No. 12598); and although he was summoned to serve as a juror and so served (Edwards v. Bond, 5 McLean, 500; Fed. Cas. No. 4294); and where his attendance and examination were procured in good faith, he is entitled to his fees although he was not served with a subpoena. (Pinson v. Atchison T. & S. Fe R. Co., 54 Fed. Rep. 464; Simpkins v. Atchison T. & S. Fe R. Co., 61 Fed. Rep. 999; Sloss Iron & Steel Oo. V. South Carolina & G. R. Co., 75 Fed. Rep. 106; but see Lilienthal v. Southern Cal. Ry. Co., 61 Fed. Rep. 622; United States v. Williams, 1 Cranch C. C. 178; Fed. Cas. No. 16709; Power v. Semmes, 1 Cranch C. C. 247; Fed. Cas. No. 11360; Cummings vt The .\rkon Co., 6 Blatchf. 500; Fed. Oas. No. 3473; Dennis v. Eddy, 12 Blatchf. 195; Fed. Cas. No. 8793; Anderson v. Moe. 1 Abb. U. S. 299; Fed. Cas. No. 359; Prouty v. Draper, 2 Story, 199; Fed. Cas. No. 11447. But see Sawyer v. Aultman Co., 5 Biss. 165; Fed. Cas. No. 12897; Woodruif v. Barney, 1 Bond, 528; Fed. Cas. No. 17986.) Where persons are sub- poenaed as witnesses, but are not introduced to tes- tify, the presumption is that they were unneces- sarily brought to court, and their fees are not taxable against the opposite paily. (Simpkins v. Atchison T. & S. Fe R. Co., 61 Fed. Rep. 999.) The United States is not required to tender witness fees in ad- vance. (In re Storror, 63 Fed. Rep. 564.) The com- pensation of experts called by a party in his own behalf cannot be taxed against the losing party. § 323 FEES. 948 (The William Branfoot, 8 U. S. App. 129; 52 Fed. Eep. 390.) Witnesses from a distance. — The attendance of "Witnesses coming from more than one hundred miles distance is voluntary, even where served with a sub- poena (Spaulding v. Tucker, 2 Sawy. 50; Fed. Cas. No. 13221); and fees may be taxed (Dreskill v. Par- ish, 5 McLean, 241; Fed. Cas. No. 4076), and his traveling fees may be taxed for a distance of one hundred miles and no more (Beckwith v. Easton, 4 Ben. 357; Fed. Cas. No. 1212; The Leo, 5 Ben. 486; Fed. Cas. No. 8252; Anonymous, 5 Blatchf. 134; Fed. Cas. No. 432; Russell v. Ashley, Hemp. 546; Fed. Cas. No. 12150; Pinson v. Atchison T. & S. Fe K. Co., 54 Fed. Rep. 464; Sloss Iron & Steel Go. v. South Car. & G. R. Go. 75 Fed. Rep. 106; but see Hunter v. Russell, 59 Fed. Rep. 964); and if he actually attends his fees may be taxed, although he is not examined (Hathaway v. Roach, 2 Wood & M. 63; Fed. Cas. No. (^213); and althougli the subpoena was served on him by a private person. (Power v. Semmes, 1 Cranch C. C. 247; Fed. Cas. No. 11360; Gordon v. Scott, 2 Bank Reg. 86; Fed. Gas. No. 5620.) His fees are taxable, although his deposition was taken (Ander- son V. Moe, 1 Abb. U. S. 299; Fed. Cas. No. 359; Beck- with V. Easton, 4 Ben. 357; Fed. Cas. No. 1212); and in case of postponement on account of sickness of counsel, the fees may be taxed during the postpone- ment. (Whipple V. Cumberland Cotton Co., 3 Story, 84; P^ed. Cas. No. 17515.) Postponement at the re- quest of a party where witnesses of his advereary were present will entitle the latter to costs of the delay. (Hunter v. Russell, 59 Fed. Rep. 964.) The fees may be taxed during tlieir actual attendance, after their examination is closed and while the case is under argument. (Whipple v. Cumberland Cotton Co., 3 Story, 84; Fed. Cas. No. 17515.) If the case is 949 FEES. : 323 postponed by agreement fees for double travel may be taxed, if governed by the agreement. (Hance v. McCormick, 1 Cranch C. C. 522; Fed. Cas. No. 6009; Hathaway v. Eoach, 2 Wood & M. 63; Fed. Cas. No. 6213.) When summoned in several cases a witness is allowed a per diem and mileage only in one case, to be distributed and charged equally among the various cases (Parker v. Oartzler. 5 McLean, 4; Fed. Cas. No. 10730); but he has a right to fees in each suit where the parties are different. (Parker v. Bigler, 1 Fish. Pat. Cas. 28.5; Fed. Cas. No. 1072a) A party called and examined as a witness in his own behalf is not entitled to fees and traveling expenses. (Nichols V. Brunswick, 3 Cliff. 88; Fed. Cas. No. 10230; Roundtree v. Rembert, 71 Fee!. Rep. 2.>.5.) A party is not entitled to costs of more than three wit- nesses to any one fact. (Bussard v. Catalino, 2 Cranch C. C. 421; Fed. Cas. No. 2228.) Witnesses attending Federal courts are not entitled to the per diem fee of $1.50 in addition to their mileage for time spent in coming to and returning from the place of trial, or for time occupied previous to the day of ti'ial in conference with counsel or proctor. (The Michigan. 52 Fed. Rep. 509; Carter v. Sweet, 84 Fed. Rep. 17.) Attendance before commissioners. — "Pursuant to law" applies to attendance of witnesses before com- missioners only (Cummings v. Akron Co., 6 Blatchf. 509; Fed. Cas. 3473); and if parties agree that the testimony of various witnesses shall be taken before a commissioner in another State, the fees may be allowed, although they attended voluntarily. (Spaul- ding V. Tucker, 2 Sawy. 50; Fed. Cas. No. 13221.) No per diem allowance can be taxed for attendance before a master where the testimony is afterward abandoned, stricken out or rejected. (Troy etc. Fac- tory V. Corning, 7 Blatchf. 16; Fed. Cas. No. 14197.) Fed. Proc— 80. ^§ 324-326 FEES. 950 Detention of witness.— If a witness is committed for want of recognizance, he is entitled to fees for ttie time he is detained. (In re Higginson, 1 Cranch C. O. 73; Fed. Cas. No. 6471.) § 324. No officer of court to have witness fees. — No oJB&cer of the United States courts, in any- State or Territory, or in the District of Columbia, sliall be entitled to witness fees for attending be- fore any court or commissioner where he is of- ficiating. (Eev. Stats, sec. 849.) § 325. Expenses of clerks as witnesses. — When any clerk or other officer of the United States is sent away from his place of business as a witness for the government, his necessary expenses, stated in items and sworn to, in going, returning and at- tendance on the cpurt, shall be audited and paid; i)ut no mileage, or other compensation in addition to his salary, shall in any case be allowed. (Kev. Stats, sec. 850.) § 326. Seamen sent home as witnesses.— There shall be paid to eacli seaman or other person who is sent to the United States from any foreign port, station, sea or ocean,- by any United States min- ister, charge d'affaires, consul, captain, or com- mander, to give testimony in any criminal case depending in any court of the United States, such compensation, exclusive of subsistence and trans- portation, as such court may adjudge to be proper, not exceeding one dollar for each day necessar- ily employed in such voyage, and in arriving at the place of examination or trial. In fixing such 951 FEES. §§ 327-328 compensation, the court shall take into considera- tion the condition of said seaman or witness, and whether his voyage has been broken up to his in- Jury by his being sent to the United States. When such seaman or person is transported in an armed vessel of the United States, no charge for subsistence or transportation shall be allowed. When he is transported in any other vessel, the compensation for his transportation and subsis- tence, not exceeding in any case fifty cents a day, may be fixed by the court, and shall be paid to the captain of said vessel accordingly. (Eev. Stats, sec. 851.) § 327. Fees of grand and petit jurors. — For actual attendance at any court or courts, and for the time necessarily occupied in going to and re- turning from the same, three dollars a day dur- ing such attendance. For the distance necessarily traveled from their residence in going to and re- turning from said court by the shortest practicable route, five cents a mile. (Eev. Stats, sec. 852; 21 U. S. Stats. 43; 1 Sup. Eev. Stats. 497.) Note. — Where a person is summoned as a juror, and at the same term subpoenaed by the United States as a witness, he is entitled to compensation for each service (Edwards v. Bond, 5 McLean. ?,00; Fed. Cas. No. 4294); and a juror fi-om a distance may be allowed per diem for days durin.e which the panel stands adjourned. (Parker v. Kempton, 1 Wall. Jr. 344; Fed. Cas. No. 10741.) § 328. Mileage in Pacific States. — Jurors and witnesses in the United States courts in the States § 329 FEES. 952 of Wyoming, Montana, Washington, Oregon, Cali- fornia, Nevada, Idaho, and Colorado, and in the Territories of New Mexico, Arizona and Utah, shall he entitled to and receive fifteen cents for each. mile necessarily traveled over any stage line or by private conveyance, and five cents for each mile over any railway in going to' and returning from said courts; provided, that no constructive or double mileage fees shall be allowed by reason of any person being summoned both as witness and juror, or as witness in two or more cases pend- ing in the same court and triable at the same term thereof. (27 U. S. Stats. 347.) Mileage.— More than one traveling fee may be taxed as costs for the same witness, where his at- tendance was required on different occasions by rea- son of the sole fault of the defeated party. (Hake v. Brown, 44 Fed. Rep. 734.) § 329. Printers' fees. — For publishing any no- tice or order required by law, or the lawful order of any court, department, bureau, or other person, in any newspaper, except as mentioned in sections thirty-eight hundred and twenty-three, thirty- eiglit hundred and twenty-four, and thirty-eight hundred and twenty-five, title, "Public Printing, Advertisements, and Public Documents," forty cents per folio for the first insertion, and twenty cents per folio for each subsequent insertion. The compensation herein provided shall include the furnishing of lawful evidence under oath, of publi- cation, to be made and furnished by the printer or publisher making such publication. (Rev. Stats. eec. 853.) 953 FEES. §§ 330-331 Printing records. — A charge for printing the rec- ord and brief in compliance with the rules of the United States circuit court in the second circuit is a proper item of disbursement. (Hake v. Brown, 44 Fed. Kep. 734.) Fees for final records in criminal cases cannot be limited to four folios in each case by an arbitruiy rule. (Marvin v. United States, 4ri Fed. Rep. 4U5.) § 330. Meaning of folio. — The term folio, in this chapter, shall mean one hundred words, count- ing each hgure as a word. When there are over fifty and under one hundred words, they shall be counted as one folio; but a less number than fifty words shall not be counted except when the whole statute, notice, or order contains less than fifty words. (Rev. Stats, sec. 854.) Folio.— In determining the number of folios in a final record, each separate and distinct order, notice, or other paper is to be counted separately, accord- ing to the rule hei'ein prescribed. (Erwin v. United States, 37 Fed. Kep. 470.) § 331. Cost of printing taxed. — And there shall be taxed against the losing party in each and every cause pending in the supreme court of the United States, or in the court of claims of the United States, the cost of printing the record in such case which shall be collected, except when the judgment is against the United States, by the clerks of said courts respectively, and paid into the treasury of the United States. (19 U. S. Stats. 344; 1 Sup. Rev. Stats. 288.) Note.— If the expense of the record is no greater than it would be at the government printing office, §3 333-333 fees. 954 it may be taxed as costs. (Railroad Co. v. Collector, 96 U. S. 594.) § 332. Payment of jurors and witnesses. — In cases where the United States are parties, the mar- shal sliall, on tlie order of tlie court, to be entered on its minutes, pay to the jurors and witnesses all fees to which they appear by such order to be entitled, which sum shall be allowed him at the treasury in his accounts. (Eev. Stats, sec. 855.) § 333. Fees of district attorneys, etc. — The fees of district attorneys, clerks, marshals and com- missioners, in cases where the United States are liable to pay the same, shall be paid on settling their accounts at the treasury. (Rev. Stats, sec. 856.) See Act of 1896, 29 U. S. Stats. 179-186.) Note.— "Cases where the United States are liable to pay" refer to other than suits where the fees are collected from antagonists of the gorei-nment. (U. S. V. Cigars, 37 Leg. Int. 237.) When officers collect fees in revenue cases, they may retain and account for them in their semiannual returns. (U. S. v. Cigai-s, 37 Leg. Int. 237.) Fees in cases where United States are liable to pay the same shall be paid on settling accounts at the treasury. (In re U. S. v. Cigars, 2 Fed. Rep. 495.) The provisions of the stat- utes providing for the retention of fees by clerks and other officers until the maximum of their compensa- tion is reached, apply to fees other than those for which the government is responsible and which are to be paid out of the ti-easury. Services rendered the government by the clerii or other officers of the court in suits by it for which the law fixes certain fees render the government liable therefor, whether 955 FEES. §§ 333a-334 it succeeds in collecting its legitimate costs or not. (United States v. Wolters, 51 Fed. Rep. 896.) § 333 a. Purchase of fees, etc., of court officers prohibited. — That it shall hereafter be unlawful for any United States marshal or deputy marshal, or any clerk or deputy clerk of any court of the United States or of any Territory thereof, or any United States attorney or assistant attorney, or any United States judge, or United States com- missioner, or any other person holding any office, employment or position of trust or profit under the Government of the United States to purchase at less than the full face value thereof, either directly or indirectly, any claim for fee, mileage or ex- penses of any witness, juror, deputy marshal or any other officer of court whatsover against the United States Government. (29 U. S. Stats. 595.) § 334. Fees, how recovered. — The fees and compensations of the officers and persons herein- before mentioned, except those which are directed to be paid out of the treasury, shall be recovered in like manner as the fees of the officers of the States, respectively, for like services are recovered. (Rev. Stats, sec. 857.) Fees, how collected. — This section provides for of- ficers retaining their fees. (In re U. S. v. Cigars, 2 Fed. Rep. 495.) The fees other than those which are to be paid out of the treasury are those which are taxed and collected in suits; and these are to be re- covered as like fees are recovered by similar officers of the State. (In re U. S. v. Cigars, 2 Fed. Rep. 496.) If there wei'e no other mode of payment provided by § 335 FEES, 956 law, under this section the services of the marshal upon the arrest of a vessel might be deemed covered by the statutory expression "like services." But un- der the law and practice of New York, the sheriff's fees must be paid at the time by the person who re- ceives the property, and this rule is applicable to the marshal's fees. A similar rule has long existed in the English admiralty practice. (The Georgeanna, 31 Fed. Kep. 405.) Under this section a marshal who has incurred large expenses in caring for and preserv- ing a vessel in his custodj* is entitled to a reimbui'se- ment thereof out of the proceeds of her sale in the registry without awaiting the final decree in the cause. (The Allegheny, 85 Fed. Rep. 463.) The above section does not make applicable to the Fed- eral courts a special State statute applying only to a certain part of the State, and establishing a practice different from the general law of the State. (Aiken V. State, 13 U. S. App. 394; 57 Fed. Rep. 423.) § 335. Suit by a poor person, costs and counsel. — Any citizen of the L'nited States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs, or give security therefor before or after bringing suit or action, upon filing in said court a statement under oath, in writing, that, because of his poverty, he is un- able to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action. (27 U. S. Stats. 252.) 957 FEES. § 335 Action by poor person. — The right given to a poor person to bring a suit without prepayment of fees or costs embraces the right to appeal to the circuit court of appeals. When the proper oath has been filed no appeal bond can be required. (Fuller v. Montague, 53 Fed. Rep. 206.) By the above act the privilege of suing in forma pauperis is granted to every poor per- son in the jurisdiction of the United States. (St. Louis & S. F. Ry. Co. v. Fan-, 12 U. S. App. 520; 56 Fed. Rep. 994.) If the clerk of the circuit court re- fuses to deliver the record for filing in an appellate court until his fees are paid, the circuit court, on granting summary relief, will require the appellant to file an affidavit of poverty in the appellate court. (Columb V. Webster Mfg. Co., 76 Fed. Rep. 198.) When one shows a right to sue in forma pauperis the court will appoint an attorney for him, whose fee will be contingent on success, and in any event will not be larger than the quantum meruit. (Whe- lan V. Manhattan Ry. Co., 86 Fed. Rep. 219.) The act does not apply to a person who receives a salary of twenty dollars per weelj, and who pays two hun- dred dollars per year for the rent of the house he lives in. (Wiclielman v. Dicli Co., 85 Fed. Rep. 851.) "■Fees or costs."— The word "costs," used in the above section, means taxable costs to be recovered by the adverse party. "Fees" means fees of officers in the strict sense. (Columb v. Webster Mfg. Co., 76 Fed. Rep. 198.) Affidavit of poverty. — The sw^orn statement men- tioned in the statute must show that plaintiff is a cit- izen, and that there is no person interested who is able to pay or secure the costs. (Boyle v. Great Northern Ry. Co., 63 Fed. Rep. 539.) Pending an ap- plication for the allowance of an appeal defendant § 335 FEES. 956 law, under this section the services of the marshal upon the arrest of a vessel might be deemed covered by the statutory expression "like services." But un- der the law and practice of New York, the sheriffs fees must be paid at the time by the person who re- ceives the property, and this rule is applicable to the marshal's fees. A similar rule has long existed in the English admiralty practice. (The Georgeanna, 31 Fed. Rep. 405.) Under this section a marshal who has incurred large expenses in caring for and preserv- ing a vessel in his custody is entitled to a reimbm'se- ment thereof out of the proceeds of her sale in the registry without awaiting the finiaJ decree in the cause. (The Allegheny, 85 Fed. Rep. 463.) TI.e above section does not make applicable to the Fed- eral courts a special State statute applying only to a certain part of the State, and establishing a practice different from the general law of the State. (Aiken V. State, 13 U. S. App. 394; 57 Fed. Rep. 423.) § 335. Suit by a poor person, costs and counsel. — Any citizen of the United (States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs, or give security therefor before or after bringing suit or action, upon filing in said court a statement under oath, in writing, that, because of his poverty, he is un- able to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth brioliy the nature of his alleged cause of action. (27 U. S. Stats. 25^.) 957 FEES. § 335 Action by poor person.— The right given to a poor person to bring a suit without prepayment of fees or costs embraces the right to appeal to the circuit court of appeals. When the proper oath has been filed no appeal bond can be required. (Puller v. Montague, 53 Fed. Rep. 206.) By the above act the privilege of suing in forma pauperis is granted to every poor per- son in the jurisdiction of the United States. (St. Louis & S. F. Ry. Co. v. Fan% 12 U. S. App. 520; 56 Fed. Rep. 994.) If the clerk of the circuit court re- fuses to deliver the record for filing in an appellate court until his fees are paid, the circuit court, on granting summary relief, will require the appellant to file an aJfidavit of poverty in the appellate court. (Columb V. Webster Mfg. Co., 76 Fed. Rep. 198.) When one shows a right to sue in forma pauperis the court will appoint an attorney for him, whose fee will be contingent on success, and in any event will not be larger than the quantum meruit. (Whe- lan V. Manhattan Ry. Co., 86 Fed. Rep. 219.) The act does not apply to a person who receives a salary of twenty dollars per week, and who pays two hun- dred dollars per year for tlie rent of the house he lives in. (Wickelman v. Dick Co., 85 Fed. Rep. 851.) "Fees or costs."— The word "costs," used in the above section, means taxable costs to be recovered by the adverse party. "Fees" means fees of oflBcers In the strict sense. (Columb v. Webster Mfg. Co., 76 Fed. Rep. 198.) Afladavit of poverty. — The STVorn statement men- tioned in the statute must show that plaintiff is a cit- izen, and that there is no person interested who is able to pay or secure the costs. (Boyle v. Great Northern Ry. Co., 63 Fed. Rep. 539.) Pending an ap- plication for the allowance of an appeal defendant §§ 336-338 FEES. 958 cannot move to dismiss the case because the oath for leave to prosecute in form a pauperis was defec- tive both in form and in substance. (Fuller v. Monta- gue, 53 Fed. Kep. 206.) It is the filing of the affidavit, and not in truth of it, that constitutes an answer to defendant's demand. (McDuffee v. Boston & M. R. Co., 82 Fed. Rep. 865.) An affidavit of facts show- ing that the cause is not frivolous should also be filed. (Whelan v. Manhattan Ky. Co., 86 Fed. Rep. 219.) § 336. Affidavit when demand for fees, etc., is made. — Alter any sucli suit ur action sliaii have been brought, or that is now pending, the plaintiff may answer and avoid a demand for fees or secur- ity for costs by fiUng a like affidavit, and willful false swearing in any affidavit provided for in this or the previous section shall be punishable as per- jury is in other cases. (27 U. S. Stats. 253.) § 337. Process, etc., to issue. — The officers of court shall issue, .serve all process, and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff sliall have the same remedies as are provided by law in other cases. (27 U. S. Stats. 252.) ^ 338. Assignment of counsel — Costs on judg- ment. — The court may re(iucst any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, and may dismiss any such cause so brought under this act if it be made to appear that the allegation of poverty is un- true, or if said court be satisfied that the alleged 95y FEES. § 338 cause of action is frivolous or malicious. Judg- ment may be rendered for costs at the conclusion of the suit, as in other cases. Provided, that the United States shall not be liable for any of the costs thus incurred. (37 TJ. S. Stats. 252.) Dismissal of cause.— In view of the above section, the clerk should not ordinarily assume to act under the statute Trithout prior conference With the f^oiirt. (Ck^Iumb V. Webster Mfg. Co., 76 Fed. Rep. 198.) " 339 JUBiES. 9G0 CHAPTER XVII. JUKIES. § 339. Juroi*s, qualifications and selection of. § i!4U. Juries, race or color not to exclude. § J41. Jurors, per diem. § 342. Jurors, how drawn. § 343. Qualifications. § 344. Juries interchangeable. § 345. Jurors, how appoi'tioned. § 346. Venire, how issued and served. § 347. Talesmen for petit juries. § 348. Special juries. § 349. Number of grand jurors. § 350. Foreman of grand jury. § 351. Grand juries, when summoned. § 352. Discharge of grand juries. § 353. Juries not to be summoned oftener than once in two years. § 354. Grand juries of district courts may act in cases cognizable in circuit courts. § 355. ChaUenges. » § 356. Challenges in summary trials. § 357. Grand and petit jurors. § 358. Rules in particular states. § 339. Jurors, qualifications and selection of. — Jurors to serve in the courts of the United States in each State respectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemptions, -, as jurors of the highest court of law in such State m may have and be entitled to at the time when such 961 JUKiES. § 339 jurors for service in the courts of the United States are summoned; and they sliall be designa- ted by ballot, lot, or otherwise, according to the mode of forming such juries then practiced in such State court, so far as such mode may be prac- ticable by the courts of the United States or the oihcers thereof. And for this purpose the said court may, by rule or order, conform the designa- tion and impaneling of Juries, in substance, to the laws and usages relating to jurors ifi the State courts from time to time in force in such State. (Eev. Stats. 800.) Note.— See United States v. Rose, 6 Fed. Rep. 136. Qualifications of juror.— Qiialifications relate to the juror personally as to age, property, or citizenship (U. S. V. Collins, 1 Woods, 499; Fed. Cas. No. 14837), and ' not to special reasons, which, if they exist, do not disqualify the juror. (U. S. v. Williams, 1 Dill. 485; Fed. Cas. No. 16716.) This section relates to qualifications which are requisite according to the law and practice of the respective States. (IT. S. v. Insurgents. 2 Dall. 335; U. S. v. Collins, 1 Woods, 499; Fed. Cas. No. 14837; U. S, v. Wilson, 6 McLean, 604; Fed. Cas. No. 16737; U. S. v. G-ardner, 5 Chic. L. N. 501; Fed. Cas. No. 15187; U. S. r. Coit, 1 Car. Law Repos. 346; Fed. Cas. No. 14829; contra, U. S. v. Price, 3 Hall L. J. 121; Fed. Cas. No. 16088.) The placing of a man's name on the tax-book implies only the qualification of being a tax-payer. (U. S. v. Col- lins, 1 Woods, 499; Fed. Cas. No. 14837.) Persons ex- empt are not thereby disqualified. (U. S. v. Gardner, 5 Chic. L. N. 501; Fed. Cas. No. 15187.) It is not nec- essary that the rule specify the qualifications, as jurors may be objected to by challenge (U. S. v. Col- lins, 1 Wood, 499; Fed. Cas. No. 14837), according to Fed. Peoc— 81. § 340 JURIES. 962 the practice under the State law (U. S. v. Douglass, 2 Blatcht. 207; Fed. Cas. No. 14989; U. S. v. Reed, 2 Blatchf. 435; Fed. Cas. No. 16134; U. S. v. Tallman, 10 Blatchf. 21; Fed. Cas. No. 16429; U. S. v. Tuska, 14 Blatchf. 5; Fed. Cas. No. 16550), unless act of Con- gress expressly provides for peremptory challenges (U. S. V. Shaclileford, 18 How. 588), as this section does not relate to peremptory challenges. (U. S. v. Devlin, 6 Blatchf. 71; Fed. Cas. No. MQ-oS; U. S. v. Douglass, 2 Blatchf. 207; Fed. Cas. No. 14989.) The court may direct the summoning of any number of jurors (U. S. v. Insurgents, 2 Dall. 335; U. S. v. Fries, 3 Dall. 515; U. S. v. Dow, Taney, 34; Fed. Cas. No. 14990); and they should be selected from the district at large. (U. S. r. Woodruff, 4 McLean, 105; Fed. Cas. No. 16758.) If a juror becomes sicli after an opening statement he may be discharged and another selected, if that is allowable under the State law. (Silsby V. Foote, 14 How. 218.) A teiTitorial court is not deprived of Its jurisdiction to try a person in- dicted for a criminal offense by the fact that an alien sat on the grand jury that found the indictment, un- der a provision of a territorial statute permitting it. (Ex parte Hai'ding, 120 U. S. 783.) Federal courts of their own motion, or that of counsel, may enforce other objections than prescribed by State statutes to grand jurors. (United States v. Jones, 69 Fed. Rep. 973.) § 340. Race or color not to exclude. — No citi- zen possessing all other qualifications which are or may be prescribed by law shall be disqualified lor service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any 1 903 JUKiES. §§ 341-343 duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars. (18 U. S. Stats. 336; 1 Sup. Eev. Stats. 149.) Note.^No person charged with a crime involving life or liberty is entitled by the United States Consti- tution to have his race represented upon the grand jury that may indict him, or upon the petit jury that may tiy him. (In re Shibuya Jugiro, 140 U. S. 291; In re Wood, 140 U. S. 278, 370.) § 341. Jurors, per diem. — That the per diem pay of each juror, grand or petit, in any court of the United States, shall be two dollars. (21 U. S. Stats. 43.) § 342. Jurors, how drawn. — And that 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 section eight hundred of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commis- sioner, to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the 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 § 342 JURIES. 964 name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein. But nothing herein con- tained shall be construed to prevent any Judge from ordering the names of jurors to be drawn from the boxes used by the State authorities in selecting jurors in the highest courts of the State. (21 U. S. Stats. 43.) Drawing jurors. — In drawing jurors the great ob- ject is to obtain qualified jurors, and this is effected by the courts of the United States and their officers, and is under the sole regulation of Congress. (United States V. Collins, 1 Woods, 499. Fed. Cas. No. 14837; United States v. Woodruff, 4 McLean, 105, Fed. Cas. No. 16758; United States v. Gardner, 5 Chic. L. N. 501, Fed. Cas. No. 15187.) The State law does not apply. (Alston V. Manning, 1 Chase, 460, Fed. Cas. No. 266; United States v. Collins, 1 Woods, 499, Fed. Cas. No. 14837.) The marshal is substituted for the ordinary, who acts under State laws (United States v. Collins, 1 Woods, 499, Fed. Cas. No. 14837; United States v. Woodruff, 4 McLean, 105, Fed. Cas. No. 16758); and the jurors need not be taken from the lists made by State authority; conformity is required only in two respects: first, as to qualifications and exemp- tions; second. a.s to the mode of designating and im- paneling (United States v. Collins, 1 Woods, 499, Fed. Cas. No. 14837; see United States v. Gardner, 5 Chic. L. N. 501, Fed. Cas. No. 15187); but a literal con- formity is not required. (United States v. Tallman. 10 Blatchf. 21. Fed. Cas. No. 16429; United States V. Wilson. 6 McLean, 604, Fed. Cas. No. 16737.) The act of Congress of June 30, 1879. having reference to drawing jurors for the Federal courts, did not repeal U. S. Rev. Stats, sees. 800, 802, 804, 808. pre- scribing the qualifications, etc.. of jurors. (United States V. Eagan, 30 Fed. Rep. 608.) 965 JURIES. §§ 343-345 § 343. Qualifications. — And no person shall serve as a petit juror more than one term in any one year, and all juries to serve in courts after the passage of this act shall be drawn in conform- ity herewith; provided, that 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 con- dition of servitude. (21 U. S. Stats. 43.) Note.— The provisions of this section are mandatory (United States v. Ambrose, 3 Fed. Eep. 283), and any irregularity which may arise from other than evil motives will not be fatal. So, the mere fact that the name of one grand juror contained in the venire was not put in the box nor drawn will not vitiate the indictment, unless the act was done in bad faith, (United States v. Ambrose, 3 Fed. Rep. 283.) This provision as to qualifications is authorized by the Thirteenth and Fourteenth Amendments (Ex parte Virginia, 100 U. S. 339). § 344. Juries interchangeable. — Whenever any circuit and district court of the United States shall be held at the same time and place, they shall be authorized and required, if the business of the courts will permit, to use interchangeably the juries in either court drawn according to the pro- visions of said act. (25 U. S. Stats. 386.) § 345. Jurors, how apportioned. — 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 §§ 346-347 JURIES. 966 not to incur jpi unnecessary expense, or unduly to burden the citizens of any part of tlie district with such services. (Kev. Stats, sec. 802.) Note.— A jury cannot be selected from any partic- ular locality without an order of court. (U. S. v. Coit, 1 Car. Law. Kepos. 34G, Fed. Cas. No. 14829; but see U. S. v. Price, 3 Hall. L. J. 121, Fed. Cas. No. 160SS.) The part of the district from which jurors may be drawn is within the discretion of the court. (U. S. V. Stowell, 2 Curt. 153, Fed. Cas. No. 1G409; U. S. V. Woodruff, 4 McLean, 105, Fed. Cas. No. 1675S.) § 346, Venire, how issued and served. — Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. (Rev. Stats, sec. 803.) § 347. Talesmen for petit juries. — When from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the mar- shal or his deputy shall, by order of the court in which such defect of Jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may ap- 967 JURIES. §§ 348-349 point, and such person shall be sworn, as pro- vided in the preceding section. (Ec^. Stats, sec. 804.) Note.— This section is not repealed in terms by the act of June 30, 1879, nor is it repealed by implication. (U. S. V. Rose, 6 Fed. Rep. 137; St. Clair v. United States, 154 U. S. 134.) Whenever by reason of chal- lenge there is. not a petit jury, it is within the prov- ince of the court to direct the marshal to complete the panel by calling a sufficient number from the bystanders. (U. S. v. Rose, 6 Fed. Rep. 137; St. Clair V. United States, 154 U. S. 134.) Persons selected for the panel, and present in court when returned by the marshal, are bystanders, although they were not in court when summoned. (U. S. v. Loughery, 13 Blatchf. 267, Fed. Cas. No. 15(331.) § 348. Special juries. — When special juries are ordered in any circuit court, they shall be return- ed by the marshal in the same manner and form as is required in such cases by the laws of the sev- eral States. (Eev. Stats, sec. 805.) § 349. Number of grand jurors. — Every grand jury impaneled before any district or circuit court shall consist of not less than sixteen nor more than twenty-three persons. If, of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall or- der the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient num- ber of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed. §§ 350-351 JURIES. 968 and there are not in attendance other jurors suffi- cient 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. (Eev. Stats, sec. 808.) Note.— This section does not apply to territorial courts. (Reynolds v. United States. 98 U. S. 145.) Although a person summoned as a grand juror fails to attend, yet the marshal cannot excuse him and substitute another in his place. (1 Burr's Trial, 37.) The court has power to determine the number to be summoned that a grand jury may be constituted. beas corpus. (In re Neagle, 39 Fed. Rep. 833.) If a certificate granted by a commissioner was is- sued without authority of law, the party held under it may be released (Ex parte Davis, 14 Daw Rep. 301; Fed. Cas. No. 3613); so where a party has been ar- rested under a treasury warrant issued without au- thority (Ex parte Randolph, 2 Brock. 447; Fed. Cas. No. 11558); so if the sentence of a court is void, as being in excess of its authority (Ex parte Lange, 18 Wall. 163); so if a military commission imposes a sentence not authorized by law (Ex parte Hewitt, 3 Am. Law Rev. .382; Fed. Cas. No. 6442); so if a court- martial proceeds against a party without notice its § 369 HABEAS CORPUS. 1002 sentence Is void, and fhe party may be released (Meade v. Deputy Marshal, 1 Brock. 324; Fed. Gas, No. 9372): but if a court-martial has jurisdiction, a party held for trial cannot be released (In re Bogart, 2 Saw. 396; Fed. Gas. No. 1596); nor can its judg- ment be collaterally impeached for irregularities. (Ex parte Reed, 100 U. S. 13.) If the statute under* Avhich a party is indicted is unconstitutional, it can- not be a legal cause of imprisonment (Ex parte Sie- bokl, 100 U. S. 371); and the appellate court may give relief without waiting for an appeal or writ of eiTor. ^Ex parte Siebold, 100 U. S. 371.) If a party under sentence has received a pardon, he may be released under this writ. (Ex parte Greathouse, 4 Saw. 487; Fed. Gas. No. 5741.) A discharge from the process under which he is imprisoned discharges him from confinement under that pi-ocess alone. (Ex parte Milburn, 9 Petere, 704.) A person imprisoned un- der a sentence for a longer time than the court had power to impose can be released on habeas corpus. (Re Monroe, 46 Fed. Rep. 52; but see In re Swan, 150 U. S. 6:J7.) So where process is void, he may be released on the ground that he is deprived of liberty without due process of law (Re Monroe, 46 Fed. Rep. 52); or whei'e the court had no jurisdic- tion of the offense. Re Goy, 127 U. S. 731.) So a second conviction and punishment for the same of- fense is an excess of authority. (Re Nielsen, 131 U. S. 176.) A person imprisoned for an alleged con- tempt may be released if the act was not forbidden by any order of court at the time, but which the court afterward made nunc pro tunc. (Ex parte Buskirk, 25 U. S. App. 613; 72 Fed. Rep. 14.) A judgment of a Federal court discharging on habeas corpus a Ghi- nese immigiant from detention on board a vessel, and permitting her to land is conclusive as to her right to come into this country. (United States v. 1003 HABEAS CORPUS. § 369 Chung Shee, 71 Fed. Rep. 277; 44 U. S. App. 751; 76 Fed. Rep. 9.31.) A judgment of acquittal by the courts of the United States under the laws will, as to the is.sues involved, protect the relators from prosecution or molestation elsewhere. (Kelly v. State of Georgia, 68 Fed. Rep. 052.) The fact thiat an officer of the United States sought to be held in a State court for punishment for acts done in performance of his duty to the United States, may raise the question of his immunity in the State court, is not sufficient reason for a Federal court to refuse to release him on habeas corpus. (In re Waite, 81 Fed. Rep. 359.) A witness aiTested while coming into a State to tes- tify in obedience to a subpoena from a Federal court will be released. (United States v. Baird, 85 Fed. Rep. 633.) When not released.— If a court holding a party un- der sentence had jurisdiction, he cannot be released ni.erely for errors in the proceedings (Fx parte Parks, 93 U. S. 18; Ex parte Siebold, 100 U. S. 371; In re Callicot, 8 Blatchf. 89; Fed. Cas. No. 2323; Ex parte Watkins, 3 Peters. 193; Ex parte Shaffenburg, 4 Dill. 271; Fed. Cas. No. 12696; .Tohnson v. U. S., 3 Mc- Lean, 89; Fed. Oas. No. 7418), although the indictment alleges the commission of the crime more than two years before commencement of the prosecution (John- son V. United States, 3 McLean, 89; Fed. Cas. No. 7418), or although it does not show arty offense cog- nizable by such court. (Ex parte Watkins, 3 Peters, 193.) If a party has been committed for a con- tempt, inquiry cannot be made into the sufficiency of the cause of commitment. (Ex parte Kearney, 7 Wheat. 38.) A person imprisoned for contempt in violating an injunction cannot be released because the necessary jurisdictional facts do not appear on the face of the pleadings in the injunction case. (In re Eaton, 51 Fed. Rep. 804.) The decision of one § 369 HABEAS CORPUS. 1004 court or judge upon a return of the writ will not bar successive applications for discbarge under the writ of habeas corpus. (Ex parte Kaine, 3 Blatchf. 1; Fed. Cas. No. 7597.) An extradition warrant ouLiht not to be pronounced void merely because of some technical defect in the foreign indictment or affida- vit. (Webb V. York, 79 Fed. Rep. 616.) Refusal of a State court to assign counsel to the prisoner, and forcing him to trial without compulsory process to secure witnesses cannot be considered by a Federal court on habeas corpus proceedings. (In re Mc- Knight, 52 Fed. Rep. 799.) A prisoner cannot be dis- charged on habeas corpus until he has performed so much of the judgment, or served out so much of the sentence as it was within the power of the court to impose (Re Swan, 150 U. S. C37), or unless it is af- firmatively shown that the judgment or sentence under which the petitioner is confined is void, he is not entitled to his discharge. (United States v. Prid- geon, 153 U. S. 48.) A prisoner committed on a crim- inal charge will not be released merely because he was brought back from another State as a fugitive from justice by means of extradition warrants pro- cured by false affidavits. (In re Moore, 75 Fed. Rep. 821.) A hearing and discharge upon an application for committal to jail is no ground for discharge on habeas corpus from imprisonment under an indict- ment. (Wliitten V. Tomlinson, 160 U. S. 231.) Er- ror of a State court in denying a stay of execution in a capital case, because of a pending appeal to a Fed- eral court, is not ground for setting the prisoner at liberty on habeas corpus, when that judgment has been superseded by the supreme court of the State, and further proceedings have been taken in the State courts. (In re Boardman. 109 U. S. 39.) The dis- charge on habeas corpus of a person arrested on a warrant of a State court as a fugitive from the jus- 1005 HABEAS COEPUS. §§ 370-371 tice of a State of which he is a native born citizen, when claimed on the ground that he holds a consu- lar office, may be denied by a Federal court where his consular office has terminated at the date of the order of denial, although it existed at the time of his ar- rest and when the petition for the writ was filed, (lasigi V. Van De Carr, 106 U. S. 391.) § 370. In cases involving the law of nations. — When a writ of habeas corpus is issued in the case of any prisoner who, being a subject or citizen of a foreign State, and domiciled therein, is committed or confined or in custody, by or under the author- ity or law of anyone of the United States, or pro- cess founded thereon, on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission or order or sanction of any foreign State, or under color thereof, the validity and ef- fect whereof depend upon the law of nations, notice of the said proceedings to be prescribed by the court or justice or judge at the time of grant- ing said writ shall be served on the attorney gen- eral or other officer prosecuting the pleas of said State, and due proof of such service shall be made to the court or justice or judge before the hearing. {Eev. Stats, sec. 762.) § 371. Appeals to circuit court. — Erom the final decision of any court, justice, or judge in- ferior to the circuit court, upon an application for a writ of habeas corpus, or upon such writ when issued, an appeal may be taken to the circuit court for the district in which the cause is heard. g 372 HABEAS COKPUS. lOOti 1. In the case of any person alleged to be re- strained of his liberty in violation of the constitu- tion or of any law or treaty of the United States. 2. In the case of any prisoner who, being a sub- ject or citizen of a foreign State, and domiciled therein, is committed or confined or in custody, by or under the authority or law of the United States, or of any State, or process founded thereon, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protec- tion, or exemption, set up or claimed under the commission, order, or sanction of any foreign State or sovereignty, the validity and effect whereof de- pend upon the law of nations, or under color there- of. (Eev. Stats, sec. 7G3.) The appellate jiu'iscliction. formerly exercised by the circuit courts under this section, now belongs to the circuit courts of appeals under sections four to six of the act of March 3, 1891. (United States v. Fowkes, 53 Fed. Rep. 13, 14; King v. McLean Asy- lum. CA Fed. Rep. 325. See Cross v. Burke, 146 U. S. 82. 86; In re Lennon. 150 U. S. 393, 398; Clarke v. McDade, 165 U. S. 108, 170; Ex parte Jugiro, 44 Fed. Rep. 754.) § 372. Appeal to supreme court. — From the final decision of such circuit court an appeal may be taken to the supreme court in the cases de- scribed in the preceding section. (Eev. Stats, sec. 704; as amended, 23 U. S. Stats. 437.) Appeal.— No appeal lies to the supreme court from an order of a circuit judge, sitting as such and not as a court, discharging a prisoner brought before him on a writ of habeas corpus (Carper v. Fitzger- 1007 HABEAS CORPUS. § 373 aid, 121 tJ. S. 87. See Ex parte Royall, 112 U. S. 181) ; neither will au appeal lie from an order of a circuit judge refusing to issue a writ of habeas corpus after a hearing at chambers. (In re King, 51 Fed. Rep. 434; Lambert v. Barrett, 157 U. S. 697.) Since the amendment of section 764 of the Revised Statutes, so as to give this court jurisdiction, upon appeal, to re- view the final decisions of the circuit court of the United States in cases of habeas corpus, the right to the writ, upon original application to this court is not, in every case, an absolute one. (Wales v. Whit- ney, 114 U. S. 564; 29 L. ed. 277; Ex parte Royall, 117 U. S. 241, 250; Ex parte Terry, 128 U. S. 289.) A final order of the circuit court at a stated term, dismiss- ing a writ of habeas corpus and remanding the pris- oner to the custody of the marshal for trial, is ap- pealable to this court. (In re Palliser, 136 U. S. 256.) The supreme court may, by means of the writ of certiorari, review the judgiuents of the cir- cuit courts of appeals in habeas corpus cases. (Lau Ow Bew V. U. S., 144 U. S. 47.) Pending an appeal from a refusal to grant the writ in behalf of a per- son confined under sentence of a State court, the cus- tody of the prisoner cannot be disturbed. (In re Mc- Kane, 61 Fed. Rep. 205.) The question whether good cau.se is shown for a prisoner's discharge is to be ju- dicially determined by the judge, and his determina- tion can be reviewed by appeal, but not by manda- mus. (Commonwealth of Virginia v. Paul, 148 U. S. 107.) The rule that a writ of habeas corpus cannot l)e used to perform the oflice of a writ of error applies not only to original writs of habeas corpus issued by the supreme court, but also to appeals to it from courts below in habeas corpus proceedings. (Gonza- les V. Cunningham, 164 U. S. 612.) That a prisoner should not be admitted to bail pending an appeal from a denial of the writ, whether the court is pro- § 373 HABEAS CORPUS. lOOS hibited from so doing or not. (In i-e Chin Yuen Sing, 65 Fed. Rep. 788.) As to when a prochein ami of an insane person may prosecute an appeal from an order of a circuit court remanding the insane person to an asylum, see King v. McLean, 21 U. S. App. 407; 64 Fed. Kep. 325. Where an appeal has been taken from an order of a Federal court denying a writ of ha- beas corpus to release one convicted of a capital crime by a State court, and the order has been in fact affirmed, the State court is not required before pro- ceeding to order the execution, to await the filing in the Federal court of the supreme court mandate. (In re Durrant, 84 Fed. Rep. 314.) The supreme court may on an appeal in a habeas corpus case re- view both law and fact. (Johnson v. Sayre, 158 U. S. 109.) § 373. Appeals, how taken. — The appeals al- lowed by the two preceding sections shall be taken on such terms, and under such regulations and or- ders, as well for the custody and appearance of the person alleged to be in prison or confined or re- strained of his liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other pro- ceedings as may be prescribed hy the supreme courts, or, in default thereof, by the court or judge hearing the cause. (Rev. Stats, sec. 765.) How taken. — The provisions of this section do not violate the seventh amendment to the Constitution. (McElrath v. U. S., 102 U. S. 426.) Under the Re- vised Statutes and the rules of the supreme court, the allowance of an appeal by a circuit or distx'ict court, or by some judge thereof or of the supreme court, is necessary to the perfection of an appeal; and if an order of allowance is denied by the court, the party i009 HABEAS CORPUS. § 374 desiring to appeal miist <' pply either to some of the other judges named for the allowance, or to the su- preme court for a writ of mandamus in aid of its ap- pellate jurisdiction. (In re Durrant, 84 Fed. Rep. 317.) Citation is not required when the appeal is talccn in open court during the term at which the de- cree is entered; aliter where at a subsequent term the appeal is allowed, although the solicitors of the ap- pellee be present. (Kailroad Co. v. Blair, 100 U. S. G61.) The appeal will uot, however, be dismissed in the latter case, but terms will be imposed upon the appellant. (Dayton v. Lash, 94 U. S. 112; Railroad Co. V. Blair, 100 U. S. GUI.) The appeal must be in writing and filed with the clerk, and when afterward the bond is given, the appeal is perfected. (Winslow V. Wilcox, 12 Fed. Rep. 352.) A district judge, who has denied a writ of habeas corpus to release a for- eign consul imprisoned under State authority, has no power under this section and rule 34, supreme court, to admit the prisoner to bail pending an appeal from the order denying the writ. (In re lasigi, 79 Fed. Rep. 755.) No bill of exceptions is necessary on appeal from the order of a district judge in a liaboas corpus case. (Solomon v. Davenport, U. S. App. 87 Fed. Rep. 318.) § 374. Pending proceedings — Action by Gtate authority void. — Pending the proceedings or ap- peal in the cases mentioned in the three preceding sections, and until final judgment therein, and after final Judgment of discharge, any proceeding against the person so imprisoned or confined or re- strained of his liberty, in any State court, or by or under the authority of any State, for any matter so heard and determined, or in process of being heard and determined, under such writ of habeas Fed. Peoc— 85. § 374 HABEAS CORPUS. 1010 corpus, shall be deemed null and void; provided,, that no such appeal shall be had or allowed after six months from the date of the judgment or order complained of. (Eev. Stats, sec. 766; as amended 27 TJ. S. Stats. 751.) Jurisdiction of the State court under this section is restrained only pending the proceeding in the courts of the United States on habeas corpus, and until final judgment therein. (In re Sblbuya Jugiro, 140 U. S. 291.) A .iudgment of the supreme court of the United States affirming a judgment of the cu'cuit court deny- ing a habeas con:)us to review the judgment of a State court in a criminal case is a final judgment within this section. (In re Shibuya Jugiro, 140 U. S. 291.) Un- der this section an order of the State court, directing the infliction of the death penalty pending an appeal from the order of the district court denying a writ of habeas corpus, is invalid (In re Ebanks, 84 Fed. Rep. 311); but if the order of the district court has been in fact affirmed on appeal the State court is not re- quired before proceeding to order the execution to await the filing in the Federal court of the supreme court mandate. (In re Boardman, 169 U. S. 39.) The fact that a prisoner Is daily required to perform hard labor pending the appeal gives no authority un- der this section for any interference on a subsequent application for the writ. (In re McKane, 61 Fed. liep. 205.) 1011 EVIDENCE. CHAPTER XIX. EVIDENCE. § 875. No witness excluded on account of color or interest. § 376. Defendants in criminal cases competent wit- nesses. § 377. Testimony of witnesses before Congress not admissible against them in criminal prosecu- tions. § 378. Pleadings, disclosures, etc., not to be used in criminal proceedings. § 379. Mode of proof in common-law actions. § 380. Mode of proof in equity and admiralty causes. § 381. Notaries may talie depositions, acknowledg- ments, etc. § 381 a. Depositions may follow State usage. § 382. Depositions de bene esse. § 383. Mode of talking depositions de bene esse. § 384. Transmission to the court of depositions de bene esse. § 385, Depositions under a dedimus potestatem and in perpetuam, etc. § 386. Depositions in perpetuam, etc., admissible at discretion of the court. § 387. Depositions under a dedimus potestatem, how talien. § 388. Subpoena duces tecum under a dedimus po- testatem. § 389. Witness under a dedimus potestatum, when required to attend. § 390. Depositions in District of Columbia in suits pending elsewhere. EVIDENCE. 1012 8 391. Same subject— When no commission nor no- tice. § 392. Same subject— Manner of taking and trans- mitting tlie depositions. S 393. Same subject— Witness fees. § 394. Letters rogatory from United States courts. S 395. Letters rogatory from foreign courts. i 390. Subpoenas for witnesses to run into another district. § 397. Witnesses, form of subpoena— Attendance under. § 398. Witnesses in behalf of indigent defendants in criminal cases. § 309. Eecognizance of witnesses in criminal cases. § 400. Vermont— Recognizance of witnesses, how taken. § 401. Eecognizance of witnesses required at any time on application of district attorney. § 402. Copies of department records and papers. § 403. Copies of records, etc., in office of the solici- tor of the treasury. § 404. Instruments and papers of comptroller of the currency. 5 405. Organization certificates of national banks. § 406. Transcripts from books, etc., of the treasury. § 407. Transcripts from books of the treasury con- tinued. S 408. Copies of returns in returns office. § 409. Copies of post-office records and auditor's statement of accounts. S 410. Copies of statements of demands by post-of- fice department. S 411. Copies of records, etc., of general land-office. § 412. Copies of records, etc., of patent office. § 41.3. Copies of foreign letters patent. S 414. Printed copies of specifications and drawings of patents. 1013 EVIDENCE. §375 § 415. Extracts from the journals of Congress. § 416. Copies of records, etc., in offices of United States consuls, etc. § 417. Certain books and papers in offices of district and circuit courts in Texas, Florida, Wiscon- sin, Minnesota, Iowa, and Kansas. § 418. Transcribed records in tbe clerk's offices of western district of North Carolina. § 419. When original records are lost or destroyed- § 420. Same subject. § 421. Lost record of cause. § 422. Records of United States courts— Notice. § 423. Force and effect of papers restored. § 424. Restoration of records— Compensation, etc. § 425. Authentication of legislative acts and proof of judicial proceedings of States, etc. § 426. Proof of records, etc., kept in offices not per- taining to courts. § 427. Copies of foreign records, etc., relating to land titles in the United States. § 428. Evidence of United States Statutes, Little & Brown's Edition. § 429, Printed copies of statutes to be evidence, § 429 a. Supplement to Revised Statutes as evidence. § 430. Revised Statutes. § 431. Burden of proof, when it lies on claimant in seizure cases. § 432. I'ossessory actions for recovery of mining ti- tles. § 375. No witness excluded on account of color or interest. — In the courts of the United States no witness shall be excluded in any action en account of color, or in any civil action because he is a party to or interested in the issue tried; provided, that in actions by or against executors, Administrators, or guardians, in which judgment § 375 EVIDENCE. 1014 may be rendered for or against them, neither party shall he allowed to testify against the other, as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at com- mon law, and in equity and admiralty. [See Rev. Stats, sec. 1977.] (Kev. Stats, sec. 858.) Competency of witnesses. — The competency of par- ties to testify as to transactions with decedent in ac- tions against personal representatives is to be de- termined by this section rather than by State laws (Page V. Burnstine, 102 U. S. 664; De Beaumont v. Webster, 39 U. S. App. 713; 81 Fed. Kep. 535; Morris V. Norton, 43 U. S. App. 739; 75 Fed. Rep. 912); and the objection to the competency of a witness is dis- posed of under this section. (Nat. Bank v. Potter, 102 U. S. 163; Beardsley v, U. S., 3 Morr. Trans. 541.) The testimony of parties is not to be excluded in suits by or against administrators, except as to transac- tions with or statements by deceased. (De Beaumont V. AVebster, 39 U. S. App. 713; 81 Fed. Rep. 535.) The husband of a deceased person defending an action as her executor is not precluded from testifying to inci- dents occurring with third parties to the benefit of deceased as to which, if living she could not have given testimony to contradict his. (Hinchman v. Parlin & Orendorf Co., 41 U. S. App. 301; 74 Fed. Rep. 698.) This section does not apply to territorial courts (Good v. Martin, 95 U. S. 90); but it applies to courts of the District of Columbia, (Noerr v. Brewer, 1 McAr. 507.) This section applies to trials in which 1015 EVIDENCE. § 375 the United States is a party. (Green v. United States, 9 Wall. 655; but see Jones v. United States, 1 Ct. of CI. 383.) It is remedial, and its language should be construed accordingly. (Texas v. Chiles, 21 Wall. 488.) A party may testify either orally or by deposi- tion. (Cornett v. Williams, 20 Wall. 226.) This sec- tion applies to a case where a party offers to testify on his own behalf (Texas v. Chiles, 21 Wall. 488; Rail- road Co. V. Pollard, 22 Wall. 341); but an application for an order to testify in one's own behalf must not be granted if it would adopt a rule of decision differ- ent from that which the legislature of the State has prescribed for State courts in similar cases. (Robin- son V. Mandell, 3 Cliff. 169; Fed. Cas. No. 11959.) A husband is a competent witness to testify as to a claim in favor of his wife (In re Campbell, 3 Hughes, 276; Fed. Cas. No. 2348; Green v. Taylor, 3 Hughes, 400; Fed. Cas. No. 5761); and she is a competent wit- ness in an action for damages for injury to her if made so under the laws of the State (Packet Co. v. Clough, 20 Wall. 528) ; but at common law a wife can- not testify in favor of her husband. (Lucas v. Broolis, 18 Wall. 436.) This section applies to the courts of the District of Columbia. (Page v. Burnstine, 102 U. S. 664.) No witness can be excluded because he is a party to or interested in the issue tried. (King v. Worthington, 3 Morr. Trans. 101; Potter v. National Bank, 102 U. S. 163; Railroad Co. v. Koontz, 104 U. S. 5; Texas v. Chiles, 21 Wall. 488; Nash v. Williams, 20 Wall. 226; N. J. R. Co, v. Pollard, 22 Wall. 877; The Argo, 2 Wheat 287.) The proviso of this section excludes only parties to the issue from testifying as to transactions with a deceased person in an action against his executor, etc. (Potter v. Third Nat. Bank of Chicago. 102 U. S. 163; Monongahela Nat. Bank v. Jacobus, 109 U. S. 275.) In an action against executors for advances made to their testator on goods con- § S75 EVIDENCE. 1016 sisrned. testimony of plaintiff as to his efforts to sell the goods, the prices obtained and the correctness of charges made should not have been excluded under the proviso of this section. (Steiner v. Eppinger, 23 U. S. App. 344; 01 Fed. Eep. 253.) The exception can- not be extended so as to exclude parties from testify- ing in their own behalf against assignees in bank- ruptcy. (Hobbs V. McLean, 117 U. S. 567.) In the United States courts no witness can be excluded In any civil action because he is a party to or interested in the issue tried. (Potter v. Third Nat. Banli of Chicago, 102 U. S. 163; Bradley v. United States, 104 U. S. 442.) And this rule applies to trials in which the United States is a party. (Green v. United States, 9 Wall. (155.) Parties to the record may testify lllie other witnesses, either orally or by deposition. (Nash V. Williams, 20 W^ll. 226.) Their testimony, in a proper case, may be taken by depositions de bene esse (Nash v. Williams, 20 Wall. 220; New Jersey R. R. & Trans. Co. v. Pollard, 22 Wall. 341; Lowiy v, Kusworm, 66 Fed. Rep. 538); and the deposition of one party may be taken in behalf of another. (Texas V. Chiles, 21 Wall. 488.) Under section 34 of the ju- diciary act, a party to a suit in the circuit court in Ohio must be admitted as a witness in his own be- half, being competent as such in the State courts. (Wright V. Bales, 2 Black, 535; Vance v. Campbell, 1 Black, 427; Ryan v. Bindley, 1 Wall. 66.) This sec- tion, relating to the competency of parties as wit- nesses, applies to the District of Columbia as fully as to the circuit and district courts of the United States. (Page v. Burnstine, 102 U. S. 064, cited in McAllister v. United States, 141 U. S. 174.) Though bills of dis- covery are not now as necessarily and commonly re- sorted to as formerly, yet discovery is still permissi- ble. (National etc. Co. v. Interchangeable etc. Brake Beam Co., 83 Fed. Rep. 26.) 1017 EVIDENCE. § 375 Parties to suit.— A party merely having an Interest in the suit is a competent witness, although one of the pax'ties is an executor (Potter v. Third Nat. Bank, 13 Chic. L. N. 102); but where an administrator is a party, the opposite party is not competent to testify unless called by the administrator or requii-ed to tes- tify by the court. (James v. Atlantic Delaine Co., 3 Cliff. 614; Fed. Cas. No. 7177.) The opposite party is that party against whom the evidence is sought to be used. (Eslava v. Mazauge, 1 Woods, 623; Fed. Cas. No. 4527.) This section does not contemplate an ex parte order permitting a party to testify. (Eslava V. Mazauge, 1 Woods, 623; Fed. Cas. No. 4527.) A bill in equity for a discovery merely is unnecessary, as a party may be examined as a witness (Heath v. Erie Eailway Co., 9 Blatchf. 316; Fed. Cas. No. 6307); and admissions of a party are competent against him, although he testified in the case, and was not asked whether he made them or not. (The Stranger, 1 Brown Adm. 281; Fed. Cas. No. 13525.) It is for the court to suggest that a party be called in special cases. (Eslava v. Mazauge, 1 Woods, 623; Fed. Cas. No. 4527.) If a party dies after his testimony has been taken, the adverse party may be examined if the administrator insists. (Mumm v. Owens, 2 Dill. 475; Fed. Cas. No. 9919. See Jerman v. Stewart, 12 Fed. Eep. 275.) Congress intended no more than to restore the common-law rule of evidence. (United States v. Clark, 96 U. S. 42.) A party interested in the issue but not a party to the suit is competent to testify as to statements of the testator. (Porter v. Nat. Bank, 102 U. S. 163.) State laws followed as to competency of witnesses. —Under the last clause of this section a State statute prohibiting physicians and others from testifying as to confidential communications made to them in a professional capacity is binding upon a Federal court § 376 EVIDENCE. 101& sitting within that State. (Mutual Benefit Life Ins. Co. V. Robinson, 19 U. S. App. 266; 58 Fed. Rep. 723.) The provision of the section that the laws of the State as to competency of witnesses shall be con- trolling has no application to criminal trials. (Logan V. United States, 144 U. S. 2G3; United States v. Hall. 53 Fed. Rep. 352.) In the absence of special provi- sion by Congress, the competency of witnesses in criminal cases is to be determined by the law of the State as it existed when the judiciary act of 1789 was passed. (United States v. Hall, 53 Fed. Rep. 352.) This section contains the whole law governing the courts of the United States in respect to the compe- tency as witnesses of interested parties, and no State statute can annex any further qualifications to its provisions. (De B^umont v. Webster, 71 Fed. Rep. 226.) A provision in a State statute excluding as against the heir- or representative of a decedent the testimony of one who has acted as au agent in mak- ing or continuing a contract with such decedent is binding on a Federal court. (Continental Nat. Bank T. Heilman, 81 Fed. Rep. 36.) § 376. Defendants in criminal cases as wit- nesses. — That in the trial of all iudictnieuts, infor- mations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors in the United States courts, territorial courts, and courts-martial, and courts of inquiry, in any State or Territory, includ- ing 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. (20 U. S. Stats. 30.) 1019 EVIDENCE. §§ 377-378 § 377. Testimony before Congress. — No testi- mony given by a witness before either house, or before any committee of either house of Congress, shall be used as evidence in any criminal proceed- ing against him in any court, except in a prosecu- tion for perjury committed in giving such testi- mony. But an official paper or record produced by him is not within the said privilege. (Eev. Stats, sec. 859.) § 378. Pleadings, disclosures, etc. — No plead- ing of a party, nor any discovery or evidence ob- tained from a party or witness by means of a ju- dicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeit- ure; provided, that this section shall not exempt any party or witness from prosecution and punish- ment for perjury committed in discovering or tes- tifying as aforesaid. (Rev. Stats, sec. 860.) Note.— Section partly repealed by act of June 22, 1874, sec. 5 (18 Stats. 18G). (United States v. Three Tons, 6 Biss. 379; Fed. Cas. No. 16515; United States V. Distillery. G Biss. 483; Fed. Cas. No. 1496fi.) The books and papers of a party talven from him are com- petent evidence against him (United States v. Distil- lery, 1 Hushes, 533: Fed. Cas. No. 14961; United States V. Hughes, 12 Blatchf. 553; Fed. Cas. No. 15417); but he cannot be required to produce the books and papers which will subject him to the pen- alty. (Johnson v. Donaldson. 3 Fed. Rep. 22; 18 Blatchf. 287.) An affidavit made by defendant to §§379-381 EVIDENCE. 102() procure the summoning and payment by the United States of witnesses in his behalf is not a pleading of defendant nor a discovery or evidence obtained from him by a judicial proceeding vpithin this section, (Tucker v. United States, 151 U. S. 164.) The provi- sion of the above section does not neutralize or mod- ify the right of protection secured to the witness by the fifth amendment to the constitution. (Ex parte Irvine, 74 Fed. Eep. 955.) § 379. Proof in common-law actions. — The mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter pro- vided. (Rev. Stats, sec. 861.) Note.— Open court means in presence of the court and jury at the trial. (Beardsley v. Littell, 14 Blatchf. 102; Fed. Cas. No. 11S5.) This section does not refer to discovery. (Bryant v. Leyland, 6 Fed. Rep. 125. See Ex parte Fisk, 113 U. S. 713.) § 380. Proof in equity and admiralty causes. — The mode of proof in causes of equity and of ad- miralty and maritime jurisdiction shall be accord- ing to rules now or hereafter prescribed by the su- preme court, except as herein especially provided. (Rev. Stats, sec. 8G2.) Note.— This section does not expressly repeal the act (1 Stat. 8S) in relation to oral examination of wit- nesses. (Blease v. Garlington, 92 U. S. 1.) ^ 381. Notaries may take depositions, ac- knowledgments, etc. — Notaries public of the sev- * era] States, Territories, and the District of Colum- ^ bia are hereby authorized to take depositions, and 1021 EVIDENCE. § 381a do all other acts in relation to taking testimony to be used in tlie courts of the United States, take acknowledgments and affidavits in the same man- ner and with the same eft'ect as commissioners of the United States circuit court may now lawfully take or do. (1876; 19 U. S. Stats. 206.) § 381 a. Depositions may follow State usa^e. — • 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 testi- mony of witnesses in the mode prescribed by the laws of the State in which the courts are held. (27 U. S. Stats. 7.) Taking depositions according to State practice.— This section does not extend the right to examine parties to the cause in advance of trial. It only af- fects the mode of making the examination. (Despeaux V. Pennsylvania R. Co., 81 Fed. Rep. 897.) This sec- tion adopts the State practice as to the manner of tak- ing depositions, and does not in connection with a State statute authorize the taking of defendant's dep- osition before trial, in the absence of any of the grounds therefor prescribed by the Revised Statutes, sees. 8C)3, 866. (Shellabarger v. Oliver, 64 Fed. Rep. 306.) This section merely provides an additional mode of taking depositions of witnesses and obtain- ing answers on interrogatories in the cases ah'eady authorized, and did not confer additional rights to ob- tain proofs by interrogatories addressed to the ad- verse party in actions of law under the provisions of State statutes. (National Cash Register Co. v. Le- land, 77 Fed. Rep. 242.) This section does not author- ize the admission of testimony found in the steno- Fed. Vroc— 86. § 382 EVIDENCE. 1022 graphic notes of a former trial, where the laws of the State in which the court is held allows it. (Mulcahey V. Lake Erie & W. R. Co., 69 Fed. Rep. 172.) § 382. Depositions de bene esse. — The testi- mony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before 'any judge of any court of the United States, or any commissioner of a circuit court, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or a superior court, mayor or chief magistrate of a city, judge of a county court or court of com- mon 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. Keasonable notice must first be given in writing by the party or his attorney pro- posing 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 hav- ing the agency or possession of the property at the time of seizure shall be deemed the adverse 1023 EVIDENCE. § 382 party, until a claim shall have been put in; and whenever, by reason of the absence from the dis- trict and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent neces- sity for taJiing, upon such notice as any judge au- thorized to hold courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as pro- vided by this section, in the same manner as wit- nesses may be compelled to appear and testify in court. (Rev. Stats, sec. 863.) Conditions under which taken. — The conditions un- der which a party is permitted, and a magistrate au- thorized, to talie depositions de bene esse under the act of 1789 are: (1) that the witness lives at a greater distance from the place of trial than one hundred miles; (2) or is bound on a voyage to sea; (3) or is about to go out of the United States; (4) or out of such district to a greater distance from the place of trial than one hundred miles, before the time of the trial; (5) or is ancient or very infirm. (.Harris v. Wall, 7 How. 693; Patapsco Ins. Co. v. Southgate, 5 Pet. 604.) The liability of a witness who is a seaman on board a gunboat, to be ordered out of the reach of the court, is not a sufficient cause for taking a deposition de bene esse, under the judiciary act of 17S9. (The Samuel, 1 Wheat. 9.) This section applies to equity as well as to common-law causes. (Stegner v. Blake, 36 Fed. Rep. 183.) A witness "lives" where he can be found, and is sojourning, residing, or abiding for his health or any other lawful purpose. (Mutual Benefit Life Ins. Co. v. Eobisou, 19 U. S. App. 2GG; 58 Fed. Hep. 723.) § 382 EVIDENCE. 1024 To what applies.— The provisions of this section do not apply to depositions taken under a rule of court (Banert v. Day, 3 Wash. C. C. 243; Fed. Cas. No. 836) ; nor to cases pending in the supreme court. (The Argo, 2 Wheat. 287; The London Facliet, 2 Wheat. 371.) The provisions of this and the succeeding sec- tion apply to the talking of depositions within the United States, and have no application to foreign countries. (Bird v. Halsy, 87 Fed. Kep. 671.) The court may issue a subpoena duces tecum to compel the production of books and papers (Ex parte Peck, 3 Blatchf. 113; Fed. Cas. No. 10885; U. S. v. Tilden, 10 Ben. 566; Fed. Cas. No. 16522); but not for the pur- pose merely to refresh the memory of the witness. (Lulled States v. Tilden, 10 Ben. 566; Fed. Cas. No. 16522.) The provision for taking depositions de bene esse is still in force, the mode being that provided by equity, rule 67. (Bischoftscheim v. Baltzer, 10 Fed. Rep. 1.) The conditions under which a deposition de bene esse may be taken are, first, that the witness lives more than one hundred miles distant; second, or is bound on a sea voyage; third, or is about to leave the United States; fourth, or about to go out of the district to a distance greater than one hundred miles; lifth, or is very old or very infirm. (Harris v. Wall, 7 How. 693.) It may be taken out of the district as well as within it (i'atapsco Ins. Co. v, Southgate, 5 Pet. 604; but see Evaus v. Hettick, 3 Wash. C. C. 408; Fed. Cas. No. 4562; Bleecker v. Bond, 3 Wash. C. C. 529; Fed. Cas. No. 1534; United States v. Tilden, 25 Int. Rev. Rec. 352; Ex parte Humphrey, 2 Blatchf. 228; Fed. Cas. No. 6^67); and a second deposition of the same witness may be taken with- out an order of court. (Cornett r. Williams, 20 Wall. 226.) Before the subpoena is issued evidence should be produced to show that the case is one In which such examination can be had. (Ex parte 1025 EVIDENCE. § 383 Peck. 3 Blatchf. 113; Fed. Cas. No. 10885.) De- fendant may examine plaintiff de bene esse, even be- fore Issue joined, where plaintiff resides out of the district and more than one hundred miles from the place of trial. (Lowrey v. Kusworm, GG Fed. Rep. 539.) A witness casually absent cannot be compelled to appear and testify at the place where he is so- journing. (Ex parte Humphrey, 2 Blatchf. 228; Fed, Cas. No. G867.) So if he resides more than one hun- dred miles distant he cannot be compelled to testify before an officer in the district where he resides. (Henry v. Ricketts, 1 Cranch C. C. 580; Fed. Cas. No. 6386.) The liability of a witness to be ordered out of the reach of the court is not sufficient for tak- ing a deposition de bene esse. (The Samuel, 1 Wheat. 9.) A party may apply for a dedimus, and cause tes- timony to be taken of the dedimus so stated, orally. (Egbert v. Citizens' Ins. Co., 7 Fed. Eep. 51; 2 Mc- Crary, 3SG.) A commissioner under a dedimus potes-"' tatem may be an officer of any kind, or any one not an officei*, and is not within this section. (Jerman v. Stewart, 12 Fed. Rep. 273.) A deposition is admissi- ble in evidence in a s'uit brought by the United States under the contract labor law. (Moller v. United States, 13 U. S. App. 472; 57 Fed. Rep. 490.) A deposi- tion properly taken under this section will not be sup- pressed upon the sole ground that it was taken during a term at which the case might be tried. (Union Pac. Ry. Co. V. Reese, 15 U. S. App. 92; 56 Fed. Rep. 288). The authority to take testimony de bene esse must be strictly construed, and all requisites of law must be complied with before such testimony is admissible (Bell V. Morrison, 1 Fet. 351; Harris v. Wall, 7 How. 693; Carrington v. Stimson, 1 Curt. 437; Fed. Cas. No. 2450; Allen v. Blunt, 2 Wood. & M. 121; Fed. Cas. No. 217; Jones v. Neale, 2 Mart. (N. C.) 81); 1 Hughes, 268; Fed. Cas. No. 7483); and there must be di- § 383 EVIDENCE. 1026 rect proof that the requirements of the statute were complied with. (Bell v. Morrison, 1 Pet. 351.) Depositions not taken according to the rules of law of the Federal courts are not admissible, though taken according to the rules of practice of the State courts. (Evans v. Eaton, 7 Wheat. 35G; Evana V. Hettick, 3 Wash. C. C. 408; Fed. Cas. No. 4562.) They cannot be used in a case in equity (Walker v. Parker, 5 Cranch C. C. 639; Fed. Cas. No. 17082); as under this section they can be taken without a com- mission. (Pettiboue v. Derringer, 4 Wash. C. C. 215; Fed. Cas. No. 11043.) The provisions of this section should never be resorted to, except in cases of abso- lute necessity. (Walsh v. Rogers, 13 How. 283.) It may be taken before a probate court if it is a coui't of record (Fowler v. Merrill, 11 How. 375); or before any county judge .(Voce v. Lawrence, 4 McLean, 203; Fed. Cas. No. 16979); or before a commissioner of the circuit court (Whitney v. Huntt, 5 Cranch C. C. 120; Fed. Cas. No. 17589); or a notary public (Dinsmore V. Maroney, 4 Blatchf, 416; Fed. Cas. No. 3020); but not before a township justice (Shutte v. Thompson, 15 Wall. 151); or a judge of a county commissioner's court (Garey v. Union Bank, 3 Cranch C. C. 91; Fed. Cas. No. 5241); or a judge of the city court. (Fore- man V. Holmead, 5 Cranch C. C. 162; Fed. Cas. No. 4935.) A commissioner cannot issue the writ of ha- beas corpus for the purpose of taking the deposition of the prisoner. (Ex parte Barnes, 1 Sprague, 133; Fed. Cas. No. 1010.) Depositions de bene esse taken pursuant to this section may be opened before the trial by order of court upon motion of one party and against the objection of the other party. (United States V. Tilden, 10 Ben. 170; Fed. Cas. No. 10520; see United States v. Hall, 44 Fed. Rep. 883.) A depo- sition taken under this section cannot be used against ol)jection, when it appears that the witness is ac- 1027 EVIDENCE. § 383 tually present in court, ready and able to testify if called. (Whitford v. Clarli County, 119 U. S. 522.) Notice to adverse party.— Reasonable notice must be given to the adverse party (Egbert v. Citizens' Ins. Co., 7 Fed. Rep. 51); talien without notice to the ad- verse party cannot be used if such adverse party or his attorney is within one hundred miles (The Sailor's Bride, 1 Brown Adm. 68; Fed. Cas. No. 12220; Pentle- ton V. Forbes, 1 Cranch C. C. 507; Fed. Cas. No. 10966; Dunlop V. Monroe, 1 Cranch C. C. 536; Fed. Cas. No. 4167; Allen v. Blunt, 2 Wood. & M. 121; Fed. Cas. No. 217); or if the adverse party is temporarily with- in that distance. (Dicli v. Runnels, 5 How. 7.) What constitutes reasonable notice depends upon such cir- cumstances as distance, number of witnesses, and fa- cility of communication to obtain representation at the taking. (American Exch. Nat. Bank v. First Nat. Bank, 82 Fed. Rep. 901.) If a known attorney is within that distance, notice must be given to him though he be not attorney of record (Allen v. Blunt, 2 Wood. & M. 121; Fed. Cas. No. 217); and where there is an attorney of record notice must in all cases be given to him (Leiper v. Bickley, 1 Cranch C. C. 29; Fed. Cas. No. 8222; Barrell v. Limington, 4 Cranch 0. C. 70; Fed. Cas. No. 1040; The Argo, 2 Gall. 314; Fed. Cas. No. 517); and in all cases where the United States is a party, notice must be given to the district attorney (The Argo, 2 Gall. 814; P^ed. Cas. No. 517); but if neither the party nor his attorney are within a hundi-ed miles no notice need be given. (Dick v. Runnels. 5 How. 7; Miller v. Young, 2 Cranch o. O. 53; Fed. Cas. No. 9596; Voce v. Lawrence, 4 McLean, 203; Fed. Cas. No. 16979.) Parol evidence is admis- sible to prove the party or his attorney was within the distance. (Dick v. Runnels, 5 How. 7.) The no- tice should be given by the party proposing to take § 383 EVIDENCE. 1028 the deposition. (Young v. Davidson, 5 Cranch C. C. 515; Fed. Cas. No. 18157.) If the deposition was talien witliout notice, the adverse party may have it taken again (Goodhue v. Bartlett, 5 McLean, 186; Fed. Cas. No. 5538); or if he objects on that ground, the party who offei-s the deposition may show that neither he nor his attorney were within one hundred miles at the time. (fc>mith v. Coleman, 2 Cranch C. O. 237; Fed. Cas. No. 13029; see Brooks V. Jenkins, 3 McLean, 432; Fed. Cas. No. 1953.) If the certificate states facts which make it un- necessai*y to give notice, it need not state that those facts were the reason no notice was given. (Dinsmore v. Maroney, 4 Blatchf. 416; Fed. Cas. No. 3920; see Shutte v. Thompson, 15 Wall. 151.) What notice to contain.— The notice should show on its face that the contingency has happened which gives the right to the party to take the deposition (Harris v. Wall, 7 How. 693; but see Debutts v, Mc- Culloch, 1 Cranch C. C. 286; Fed. Oas. No. 3718; Sage V. Tauszky, 6 Cent. L. J. 7; Fed. Cas. No. 12214); and the time and place of taldng the deposition (Dunlop V. Munroe, 1 Cranch. C. C. 536; Fed. Cas. No. 4167); and the name of the witness (Carrington v. Stimson, 1 Curt. 437; Fed. Cas. No. 2450); and if if notifies that it will be taken between certain hours, it may be taken any time before the last hour named (House v. Cash, 2 Cranch C. C. 73; Fed. Cas. No. 6736); and an hour's notice of the time and place, under special circumstances is sufficient (Leiper v. Bickley, 1 Cranch C. C. 29; Fed. Cas. No. 8222; Bowie v. Talbot, 1 Cranch C C. 247; Fed. Cas. No. 1732; Atkinson v. Glenn. 4 Cranch C. C. 134; Fed. Cas. No. 610); but if the notice is not reasonable, and no necessity ex- ists for a short notice, the deposition cannot be read. (Jamieson v. Willis, 1 Cranch G. C. 566; Fed. Cas. No. 7204; Renner v. Howland, 2 Cranch C. C. 441; 1029 EVIDENCE. § 383 Fed. Cas. No. 11700.) If the srurname is given in the caption to the notice and deposition, it is sufficient. (Claxton V. Adams, 1 McAr. 496.) The notice need not require the party to put interrogatories. (Bussard V. Catalino, 2 Cranch C. C. 421; Fed. Cas. No. 2228.) Service of notice.— The service of the notice must be personal, as no substituted service is authorized. (Carrington v. Stirason, 1 Curt. 437; Fed. Cas. No. 2450.) If served by the marshal, the magistrate should certify thereto (Han-is v. Wall, 7 How. 693); and the certificate should state that notice was given. (Jones V. Knowles, 1 Cranch C. C. 523; Fed. Cas. No. 7474.) If the suit is instituted against several, if no notice is served on the one summoned, it should be given to those not summoned. (Brown v. Pratt, 2 Cranch C. C. 253; Fed. Oas. No. 2026.) Attacliment of witness.— Before an attachment will be granted it must clearly appear that the com- missioner has jurisdiction, and that the witness re- sides more than one hundred miles from the place of trial (Ex parte Peck. 3 Blatehf. 113; Fed. Cas. No. 10885); and that the facts to which he is called to testify are material and relevant to the Issue. (Ex parte Peck, 3 Blatehf. 113; Fed. Cas. No. 10885; Ex parte Judson, 3 Blatehf. 148; Fed. Cas. No. 7563.) A party moving for an attachment must file affidavits showing that witness has committed a contempt, but for merely refusing to answer an interrogatory, an attachment will not issue. (Ex parte Judson, 3 Blatehf. 148; Fed. Cas. No. 7563.) § 383. Mode of taking depositions de bene esse. — Every person deposing, as provided in the pre- ceding section, shall be cautioned and sworn to testify the whole truth, and carefully examined. § 383 EVIDENCE. 1030 His testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person, and shall, after it has been reduced to writing, be subscribed by the deponent. (Eev. Stats, sec. S64.) Examination of witness. — A deposition will not be suppressed, although witnesses are examined on the day fixed in the notice, and on other days, to keep the notice alive till other witnesses appear (Sage v. Tauszky, 6 Cent. L. J. 7; Fed. Cas. No. 12214); but if the notary meets on Saturday, adjourns to Sunday, and then to Monday, those taken on Monday will be suppressed. (Kirle v. Simmons, 2 Cranch C. C. 195; Fed. Cas. No. 14007.) A deposition talien down stenogi*aphically in questions and an- swers and not reduced to writing in the presence of the witness, nor read over to or by him, is not prop- erly talien under this section, and is not admissible in evidence against objections. (Moller v. United States, 13 U. S. App. 472; 57 Fed. Rep. 490.) Certificate to deposition.— The act of Congress re- quires the deposition to be certified by the magistrate (Harris v. Wall, 7 How. 693); and the certificate should state the precise caption (Pentleton v. Forbes, 1 Cranch C. C. 507; Fed. Cas. No. 10966); and the place where the deposition is taken should be named (Toolcer v. Thompson, 3 McLean, 92; Fed. Cas. No. 14097); and the court in which the case is pending (Van Ness v. Heineke, 2 Cranch C. C. 259; Fed. Cas. No. 16S6o); and the names of the parties to the suit (Peyton v. Yeitch, 2 Cranch C. C. 123; Fed. Cas. No. 11057; Centre v. Keene, 2 Cranch C. C. 198; Fed. Cas. No. 2553; Smith v. Coleman, 2 Cranch C. C. 237; Fed. Cas. No. 13029; Waskern v. Diamond, Hemp. 701; Fed. Cas. No. 1724S; Allen v. Blunt, 2 Wood & M. 131; Fed. Cas. No. 217; Buckingham v. Burgess, 3 McLean, 36S; Fed. Cas. No. 2(J89); and if the name stated in the caption is correct, an error in stating it in the body of the deposition will not vitiate it (Voce V. Lawrence, 4 McLean, 203; Fed. Cas. No. 16979); 1033 EVIDENCE. § 383 and it may be read, although entitled in the case against one defendant alone. (Pannill v. Elia-son, 3 Cranch C. C. .358; Fed. Cas. No. 10707.) If the dep- osition is written by the magistrate, it is sufiicient, though not certified to have been written in pres- ence of the witness (Van Ness v. Heineke, 2 Cranch C. C. 259; Fed. Cas. No. 10866; Vasse v. Smith, 2 Cranch C. C. 31; Fed. Cas. No. 1G896; Centre y. Keene, 2 Cranch C. C. 198; Fed. Cas. No. 25^3); and if he certifies that it was reduced to wi'iting by the witness and himself, it is sufficient. (Bussard v. Catalino, 2 Cranch C. C. 421; Fed. Cas. No. 2228.) If the signature of the witness is on the deposition, the certificate is evidence that he signed it. (Voce v. Lawrence, 4 McLean, 203; Fed. Cas. No. 16979.) The fact that the witness reduced his testimony to writ- ing in the presence of the magistrate may be proved by parol testimony. (Vasse v. Smith, 2 Cranch C. C. 31; Fed. Cas. No. 16896.) The certificate is good evi- dence of the facts stated therein (Bell v. Morrison, 1 Peters, 351; Banks v. Miller. 1 Cranch C. C. 543; Fed. Cas. No. 963); but if it does not show that the requisites of the statute have been complied with, it cannot be read. (Thorpe v. Simmons, 2 Cranch C. C. 195; Fed. Cas. No. 14007; Luther v. The Merritt Hunt, Newb. Adm. 4; Fed. Cas. No. 8610.) It need not state that the magistrate is not of counsel for either party and not interested in the event of the cause. (Miller v. Young. 2 Cranch C. C. 53; Fed. Cas. No. 9596; Peyton v. Veitch, 2 Cranch C. C. 123; Fed. Cas. No. 11057.) The certificate of the notary that he is "not of counsel nor interested in any manner whatever in this cause" is sufficient. (American Exch. Nat. Bank v. First Nat. Bank, 82 Fed. Rep. 96L) It is not necessary that it should appear in the deposition or certificate that the witness is not a resident of the district. (Sage v. Tauszky, Cent. Fed. froc— 87. ^384 EVIDENCE. 1034 L. J. 7; Fed. Oas. No. 12214.) If it omits to state wlietlier notice was given, evidence may be given to prove that neither the adverse party nor his attorney were within the distance of one hundred miles (Trav- el's V. Bell, 2 Cranch G. C. IGO; Fed. Cas. No. 1414U); but the certificate that witness lives at a gi'eater dis- tance is prima facie evidence of that fact. (Patapsco Ins. Co. V. Southgate, 5 Pet. 604; Merrill v. Dawson, Hemp. 563; Fed. Cas. No. 9469; Tooker v. Thompson, 3 McLean, 92; Fed. Cas. No. 14097.) The Avord "lives" must be inserted, as it cannot be supplied, so as to show that witness lives more than one hundred miles from the place of trial. (Dunke v. Worcester, 5 Biss. 102; Fed. Cas. No. 4162.) The officer taking the deposition must certify each item of costs before him. (Russell v. Ashley, Hemp. 546; Fed. Cas. No. 12150.) No formal certificate is necessary to be at- tached to exhibits in order to make them parts of the deposition in which reference is made to them. If the indorsements of the examining commissioner on the exhibits and depositions be made by the same person and the exhibits ai'e so marked and described by the commissioner* that identity is unmistakably es- tablished, this is sufficient. (Bird v. Halsey, 87 Fed. Eep. 671.) § 384. Transmission to the court of deposi- tions de bene esse.— Every deposition taken un- der the two preceding sections 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 rea- sons as aforesaid of taking it and of the notice, if any, given to the .adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it ap- 10o5 EVIDENCE. § 384 pears to the satisfaction of the court that the wit- ness 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. (Eev. Stats, sec. 865.) Construction.— This section Is not to be construed as changing the "construction of the statute which it re-enacts, in respect to the time when depositions de bene esse may be opened. (United States v. Tilden, 10 Ben. 170; Fed. Cas. No. 16520.) Delivery, how made. — The deposition may be di- rected to the judge of the court (Thorp v. Orr, 2 Cranch C. C. 335; Fed. Cas. No. 14006); or to the clerli. (Whitney v. Huntt, 5 Crunch C. C. 120; Fed. Cas. No. 17589.) If sent by mail the officer should certify that it was retained until it was seated and sent to the clerli. (Shankwiljer v. Reading, 4 Mc- Lean, 240; Fed. Cas. No. 12704.) And if the envelope is sealed and the name of the officer written across the seal, it is sufficient (Thorp v. Oit, 2 Cranch C. C. 335; Fed. Cas. No. 14000); but if talien by the clerli of the court, it need not be sealed up. (Nelson v. WoodrufC, 1 Blacli, 156.) If the magistrate does not retain it until he delivers it into court, or seals and directs it, the deposition cannot be read. (Jones v. Neale, 1 Hughes, 268; Fed. Cas. No. 7483.) No notice of filing need be given to a party who linows tliat a deposition has been given. (Nelson v. Woodruff, 1 Black, 156.) Exhibits properly identified as a part of a deposition cannot be deprived of their character as part of the depositions because they are for con- venience or for any other reason mailed to the clerk § 384 EVIDENCE. 1036 in a separate package. (Bird v. Halsey, 87 Fed. Rep. 671.) Deposition, when read.— A deposition de bene esse can be read only when the witness liimself is un- obtainable (The Sgimuel, 1 Wheat. 9; Wood v. Kel- logg, 6 McLean, 44; Fed. Cas. No. 17345), unless it ap- pears that he cannot attend pei-sonally (Park r. Willis, 1 Cranch C. C. 357; Fed. Cas. No. 10716i; and proof of that fact may be given without issuing a subpoena. (Park v. Willis, 1 Cranch C. C. 357; Fed. Cas. No. 10716; Leatherben-y v. Radcliff, 5 Cranch C. C. 550; Fed. Cas. No. 8163; but see Brown v. Gal- loway, Pet C. C. 291; Fed. Cas. No. 2006.) And the party offering it must prove diligence in endeavor- ing to procure the witness. (Patapsco Ins. Co. v. Southgate, 5 Pet. 604; Park v. Willis, 1 Cranch C. C. 357; Fed. Cas. No. 10716; Jones v. Greenolds, 1 Cranch C. C. 339; Fed. Cas. No. 7464; Penn v. Ingra- ham, 2 Wash. C. C. 487; Fed. Cas. No. 10944; Ban- ert V. Day, 3 Wash. C. C. 243; Fed. Cas. No. 836: Pettibone v. Derringer, 4 Wash. C. C. 215; Fed. Cas. No. 11043; Read v. Bertrand, 4 Wash. C. C. 558; Fed. Cas. No. 11603.) Where a party knows that the witness has since removed within reach of a sub- poena, he is bound to procure his personal attend- ance. (Patapsco Ins. Co. v. Southgate, 5 Pet. 604; Russell V. Ashley, Hemp. 546; Fed. Cas. No. 12150.) A deposition may be used although taken from the file with leave of court, and the certificate amended (Leatherberry v. Radcliffe, 5 Cranch C. C. 550; Fed. Cas. No. 8163); but if opened out of court, without consent of the adverse party, it cannot be used (Beale v. Thompson, 8 Ci"anch, 70; The Roscius, 1 Brown, 442; Fed. Cas. No. 12042); and consent out of court should be evidenced by a writiug duly signed. (The Roscius, 1 Brown, 442; Fed. Ca.s. No. 12042.) If 1037 EVIDENCE. § 384 the attorney appears and cross-examines the witness, it is a waiver of irregularity in the notice (Dinsmore V. Maroney, 4 Blatchf. 416; Fed. Cas. No. 3920), and of all formal objections. (Shutte v. Thomp.son, 15 Wall. 151; United States v. One Case.l Paine, 400; Fed. Cas. No. 15924.) Where both parties have examined the witness, one party has no right to direct a commis- sioner to withhold it simply because the testimony has taken him by surprise. (Grand Haven First Nat Bank v. Forest, 44 Fed. Rep. 246.) In a suit in admiralty, where the interpreter whose sei'vices were necessary refused to act further, and another could not be obtained before witness, whose deposi- tion was being taken de bene esse, left the port, the part of deposition taken and signed by the witness is not admissible on the trial. (Schiaffino v. The Jacob Brandow, 33 Fed. Rep. 160.) Where a deposi- tion has been read in evidence vdthout opposition, it cannot afterward be objected to as being irreg- ularly taken. (Evans v. Hettich, 7 Wheat. 453; Brown v. Tarkington, 3 Wall. 377; The Georgia, 7 Wall. 32.) A deposition of a party as to transactions with another party, taken while the latter is alive, may, though the latter dies without giving his dep- osition as he could have done, be used when the suit is revived in the name of his executors. (McMullen V. Ritchie, 64 Fed. Rep. 253.) Certificate of reasons for taking. — A sufficient cause for taking the deposition cannot be proved by parol evidence. (Wheaton v. Love, 1 Cranch C. C. 451; Fed. Cas. No. 17485.) So if the officer does not assign a sufficient reason for taking it, it will be sup- pressed. (Harris v. Wall, 7 How. 693; Wheaton v. Love, 1 Cranch C. C. 451; Fed. Cas. No. 17485; Jones V. Knowles. 1 Cranch C. C. 523; Fed. Cas. No. 7474; Shutte V. Tliompson, 15 Wall. 151; Sage v. Tauszky, 6 Cent. L. J. 7; Fed. Cas. No. 12214; Jones v. Neale, 2 § 384 EVIDENCE. 1038 Mart. (N. C.) 81; Woodward v. Hall, 2 Cranch C. C. 235; Fed. Cas. No. 18005.) The certificate and seal of a notary public are sufficient proof of bis author- ity. (Dinsniore v. Maroney, 4 Blatcbf. 416; Fed. Cas. No. 3920.) And so of a mayor, although not certified under bis seal. (Price v. Morris, 5 McLean, 4; Fed. Cas. No. 11414.) A certificate without the official seal is not sufficient where be has an official seal, and usually certifies his official acts. (Paul r. Lowry, 2 Cranch C. C. 628; Fetl. Cas. No. 10S44.) The appointment of a commissioner of a circuit court need not be authenticated by the record (Whitney v. Huntt. 5 Cranch C. C. 120; Fed. Cas. No. 17589); it should be shown by a certificate of the clerk and of the presiding judge. (Toolver v. Thompson, 3 Mc- Lean, 92; Fed. Cas. No. 14097.) And the fact that he who certifies to a deposition is an officer may be proved by parol. (Dunlop v. Monroe, 1 Cranch C. 0. 536; Fed. Cas. No. 4167; Paul v. Lowry, 2 CrancE O. C. 628; Fed. Cas. No. 10844.) The presumption is, that the officer talcing the deposition is the proper officer. (Vasse v. Smith, 2 Cranch C. C. 31; Fed. Cas. No. 16896; Price v. Morris, 5 McLean, 4; Fed. Cas. No. 11414; Ruggles v. Bucknor, 1 Paine, 358; Fed. Cas. No. 12115.) Objections to deposition.— Appearance of the party or his attorney, and the examination or cross-exam- ination of the witness without protest or in silence, is a waiver of objection to formal defects (Shutte v. Thompson, 15 Wall. 151; Dinsmore r. Maroney, 4 Blatchf. 416; Fed. Cas. No. 3920); if read in evi- dence, it is too late to object. (Evans v. Hettlch. 7 Wheat. 453; Brown v. Parkington, 3 Wall. 377.) An objection on account of formal defects must be made by motion to suppress, before going to trial. (Claxton V. Adams, 1 McAr. 496.) If depositions are J ]0"9 EVIDENCE. § 384 made without notice, the court may allow a con- tinuance to enable the advei-se party to cross-exam- ine the witness, or may reject his testimony. (Dade V. Young, 1 Cranch C. C. 123; Fed. Oas. No. 3534; Straas v. Marine Ins. Co., 1 Cranch C. C. 343; Fed. Cas. No. 1351S; Barrell v. Simonton, 3 Cranch C. C. GSl; Fed. Cas. No. 1042; Allen v. Blunt, 2 Wood & M. 121; Fed. Cas. No. 217.) If suppressed, the case may be continued to allow of the taliing of another. (Moore v. Nelson, 3 McLean, 383; Fed. Cas. No. 9771; Luther v. The Merritt Hunt, Newb. Adm. 4; Fed. Cas. No. 8610.) A waiver of all objections operates as a waiver at a subsequent trial (Edmond- son V. Barrell, 2 Cranch C. C. 228; Fed. Cas. No. 4284); and although waived as to the manner and form of taking it, yet it must be returned by the magistrate, in conformity with this section. (Liv- ingston V. Pratt, Brown Adm. 66; Fed. Cas. No. 8417.) If on file for three years, it cannot be exclud- ed on the ground of defect on the certificate after the cause is set down for hearing. (Bank v. Ti-avers, 4 Biss. 507; Fed. Cas. No. 886.) A party knowing of the incompetency of a witness waives the objection by appearing and cross-examining him, but not if he does not at the time know that fact (U. S. v. One Case, 1 Taine, 400; Fed. Cas. No. 15924); but the mere presence of the attorney is not a waiver. (Harris v. Wall, 7 How. 693.) General objections to a deposition may be oveiTuled, if any part of the deposition appears to be admissible in any view of the case (First National Bank v. Rush, 56 U. S. App. 556; 85 Fed. Rep. 539.) Where the objecting party has consented to the issuing of the commission, and practically united in executing it, and where no notice of objections are given until after trial, in- formalities in the notice to take and certification are "Vraived. (Bird v. Halsy, 87 Fed. Rep. 671.) An agi-ee- § 385 EVIDENCE. 1040 ment that neither party will take abjection to the form of a deposition must show that the agreement was made with special reference to a given paper purporting to be a deposition. (Lutcher v. United States, 72 Fed. Rep. 9G8.) Where a party moves be- fore the commencement of a trial for the suppression of the deposition, and then suffers it to be read with- out objection, he cannot avail himself of the previous exception in the reviewing court. (Union Pac. Ky. Co. V. Reese, 15 U. S. App. 92; 56 Fed. Rep. 288; Northern Pac. Ry. Co. v. Urlin, 158 U. S. 271.) The whole of a deposition may be suppressed on the ground that a witness has refused to answer a ma- terial question. (Bird v. Halsey, 87 Fed. Rep. 671.) A motion to suppress a deposition should be made before a case is called. (Bibb v. Allen, 149 U. S. 481.) § 385. Dedimus potestatem and in perpetuam, 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 po- tesiaiem to make depositions according to common usage; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpeluam 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 deposition to be taken under the authority of this section. (Eev. Stats, sec. 866.) Construction.— This act. being in derogation of the common law, should be strictly constiiied. (United States V. Parrott, 1 McAll. 447; Fed. Cas. No. 15999.) 1041 EVIDENCE. § 385 The preceding sections relating to depositions de bene esse do not apply to a dedimus potestatem. ower to take the examination, and he is to exercise this power according to the directions of the commis- sion, which is his chart and guide. (Jones v. Oregon Cent. R. R. Co., 3 Sawy. 523; Fed. Cas. No. 7486; Gil- pins V. Consequa, 3 Wash. C. C. 1S4; Fed. Cas. No. 5452.) The deposition must be taken at the time and place designated (Boudereau v. Montgomery, 4 Wash. C. C. 186; Fed. Cas. No. ir,94; Rlioades v. Solin, 4 Wash. C. C. 715; Fed. Cas. No. 11740), and the notice naming the day must also name the year (Knode v. Williamson, 17 Wall. 586); and on an adjournment from day to day it cannot pass over an intermediate day. (Buddicum v. Kirk, 3 Cranch, 203.) The par- ties cannot appear before the commissioner either In person or by attorney (Knode v. Williamson, 17 Wall. 586; Cunningham v. Otis, 1 Gall. 16(5; Fed. Cas. No. 3485); nor can a witness have a ft-iend to attend and assist him before the commissioner (Cun- ningham V. Otis, 1 Gall. 166; Fed. Cas. No. 3485.) Witnesses may be examined, although not named in the commission, where their names and testimony ■were not discovered until the commission was is- 1047 EVIDENCE. § 385 sued. (The Infanta, Abb. Adm. 263; Fed. Cas. No. 7030.) The interrogatories may be shown to the witness before he is called upon to give his testi- mony (North Carolina R. U. Co. v. Drew, 3 Woods, 692; Fed. Cas. No. 17434); but no additional inter- rogatories can be filed. (Cunningham v. Otis, 1 Gall. 166; Fed. Cas. No. 3485.) Ezamination of witness.— The witness should be examined as to each interrogatory, and if he omits to answer any, the deposition is not admissible. (Nelson t. United States, Peters, C C. 235; Fed. Cas. No. 10116; -Kentland v. Bisset, 1 Wash. C. C. 144: Fed. Cas. No. 7742; Wenthrop v. Union Ins. Co., 2 Wash. C. C. 7; Fed. Cas. No. 17901.) So if no an- swer is given to the general interrogatory (Richard- son V. Golden, 3 Wash. C. C. 109; Fed. Cas. No. 11782; Dodge V. Israel, 4 Wash. O. C. 323; Fed. Cas. No. 3932); and it is no ground of objection that the mater- ial evidence is brought out under that instead of un- der the preceding special interrogatories. (Rhoades v. Selin, 4 Wash. C. C. 715; Fed. Cas. No. 11740.) Al- though the answer to an interrogatory would not be legal evidence, the deposition may be read if the interrogatory was not put to the witness. (Bell v. Davidson, 3 Wash. C. C. 328; Fed. Cas. No. 1248.) If the cross-interrogatories are not put to the wit- ness, the deposition cannot be read (Gilpins v. Con- sequa. Peters C. C. 88; Fed. Cas. No. 5452); but it is no objection that they were not put to each witness till after the direct interrogatories were answered by the last witness. (Gilpins v. Consequa, Peters C. G. 88; Fed. Cas. No. 5452.) On a commission issued ex parte the party may put as many or as few inter- rogatories as he thinlvs proper, but the last must be put. (Fowlei" v. Merrill, 11 How. 375.) § 385 EVIDENCE. 1048 To be reduced to writing.— The deposition may be reduced to writing by the magistrate or by the de- ponent, in the presence of the magistrate (Stockwell V. United States, 3 Cliff. 2&4; Fed. Cas. No. 13466); it is immaterial in whose handwriting it is (Keene v. Meade, 3 Peters, 1); but it will be suppressed if the answers of the witness are written down by counsel for the party who procured the commission. (Uaited States t. Piugs, 4 Fed. Rep. 714; but see Nicholls V. White, 1 Cranch C. C. 58; Fed. Cas. No. 10235; Atlvinson v. Glenn, 4 Cranch C. C 134; Fed. Cas. No. 610.) It is not necessary that the deposi- tion be signed by the witness (Ketland v. Bissett, 1 Wash. C. C. 144; Fed. Cas. No. 7742); and if pre- pared and signed by the witness before the oath is administered, it is improper. (Dodge v. Israel, 4 Wash. C. C. 323: Fed. Cas. No. 3952; N. C. Railroad Co. V. Drew, 3 Woods, 692; Fed. Cas. No. 17434.) If the commission is issued to an alien, it may be writ- ten in the English language, though it does not ap- pear that there was a sworn interpreter. (Gilpins V. Consequa, Peters C. C. 88; Fed. Cas. No. 5452.) Return. — The return must sliow that the commis- sioner took the oath annexed to the commission (Prevail r. Bache, 5 Cranch C. C. 463; Fed. Cas. No. 5113; but see Gilpins v. Consequa, 3 Wash. C. C. 184; Fed. Cas. No. &452); and the return that he took the oath is sufficient evidence that it was properly administered. (Winter v. Simonton, 3 Cranch C. C. 104; Fed. Cas. No. 17894.) Where the deposition was taken by a commissioner of the circuit court it need not appear that he was sworn. (Hoyt v. Ham- mekin, 14 How. 346.) It should appear by the cer- tificate or by other evidence that the examination was conducted at the time and place designated (Jones v. Oregon Cent. R. R. Co., 3 Sawy. 523; Fed. 1049 EVIDENCE. § 385 Oas. No. 7486; Ehoades v. Selin. 4 Wash. C. C. 715; Fed. Cas. No. 11740); and his certificate is prima facie evidence thereof. (Boudereau v. Montgomery, 4 Wash. C. C. 186; Fed. Cas. No. 1684.) The return need not show that the witness was cautioned be- fore being sworn, nor need it set out the form of the oath; that he was duly sworn is sufficient. (Keene V. Meade, 3 Peters, 1; .Jones v. Oregon Cent. R. R. Co., 3 Sawy. 523; Fed. Cas. No. 7486.) The com- missioners need not certify in whose handwriting the deposition was taken down. (Jones v. Oregon Cent. R. R. Co.. 3 Sawy. 523; Fed. Cas. No. 7486.) If exhibits are referi-ed to by the witness, they should be annexed to the deposition with marlis or references to show that they are the identical ones referred to. (Dodge v. Israel, 4 Wash. C. C. 323; Fed. Cas. No. 3952.) If the commissioner states in the caption of the deposition that it was taken in pursuance of the commission, an omission therein of the names of one of the parties named in the com- mission will not render it inadmissible (Fowler v. MeiTill, 11 How. 375); so that the insertion of a wrong middle letter in the name of one of the par- ties may be corrected, on motion, upon the return of the commission. (Keene v. Meade. 3 Peters, 1.) The envelope may be directed to the chief judge of the court (Prevail v. Bache, 5 Cranch C. C. 463; Fed. Cas. No. 5113); and if opened before it comes into the hands of the clerk, it may be set aside and a new commission be issued. (United States v. Price. 2 Wash. C. C. 356; Fed. Cas. No. 16089.) Tlie return is prima facie evidence of the facts stated therein as to the execution of the commission. (Winter v. Simonton, 3 Cranch O. C. 104; Fed. Cas. No'. 17894; Boudereau v. Montgomery, 4 Wash. C. C. 186; Fed. Cas. No. 1694.) § 385 EVIDENCE. 1050 Objections.— A party who unites in issuing a com- mission cannot afterward object to it on tlie ground that the witness lives within the distance of one hundred miles (Sergeant v. Biddle, 4 Wheat. 508; Ridgeway v. Ghequier, 1 Cranch C. C. 4; Fed. Gas. No. 11813); but it cannot be read in an action at law if the witness at the time of the trial, is in the place where the court is held, and is able to attend (Weed V. Kellogg, 6 McLean, 44; Fed. Gas. 17345); nor can a party who joins in a commission object that it was issued improperly or improvidently (Ser- geant V. Biddle, 4 Wheat. 508); so iiTegularitles are waived by appearing and cross-questioning the wit- ness. (Mechanics' Bank v. Seton, 1 Peters, 299.) Objection to iiTegularities not taken and noted when the deposition is taken and by motion to suppress before the trial has begun, will be deemed waived (Doane v. Glenn, 21 Wall. 33; York Go. v. Gentral Railroad, 3 Wall. 107; Blackburn v. Crawford, 3 Wall. 175); an objection to the omission to produce a memorandum referred to can be taken only by mo- tion to suppress (Blackburn v. Crawford, 3 Wall. 175); so where the witness fails to produce a copy of a prior deposition. (Winans v. N. Y. & Erie R. R. Co., 21 How. 88.) A waiver of notice of the taking of a deposition may be inferred from the conduct of the party or his attorney (Buddicum v. Kirt, 3 Oranch. 293); but a party may take exceptions to it that were not taken at the time it was returned and opened (Walker v. Parker, 5 Cranch G. C. 639; Fed. Gas. No. 170S2); so on objection to the answer to a leading Interrogatory, the deposition will be re- ferred to a master to inquire if the interrogatory Is leading. (Boudereau v. Montgomery, 4 Wash. C. O. 186; Fed. Gas. No. 1694.) The party at whose in- stance a deposition was taken may read the answer to a cross-interrogatory, although the answer to a dl- 1051 EVIDENCE. §§ 386 387 reet interrog'atoi'y was suppressed. (Alsop v. Com- mercial Ins. Co., 1 Sum. 451; Fed. Cas. No. 262.) The failure of a party to note objections to deposi- tions wlaen taken or to present them by motion to suppress is a waiver of the objections. (Howard v. Stillwell etc. Co., 139 U. S. 199.) Where questions put to a witness were unobjectionable, and the an- swers were responsive, and not hearsay, objections taken are frivolous. (Gregory Consol. M. Co. v. Starr, 141 U. S. 222.) § 386. Depositions in perpetuam, when admis- sible. — 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. (Eev. Stats, sec. 867.) Note.— If the deposition in perpetuam rei mem- oriam is not admissible in the State court, it is not admissible in the Federal court. (Gould v. Gould, 3 Story, 516; Fed. Cas. No. 5637; see Seeley v. Kan- sas City Star Co., 71 Fed. Rep. 554.) Where the remedy exists under section 866. an application under this section will be denied. (Richter v. Jerome, 115 TJ. S. 55.) § 387. Depositions under a dedimus potesta- tem, how taken. — When a commission is issued by any court of the United States for taking the testimony of a witness named therein at any place within any district or Territory, the clerk of any court of the United States for such district or Ter- ritory shall, on the application of either party to the Buit, or of his agent, issue a subpoena for such § 388 EVIDENCE. 1052 witness, commanding him to appear and testify before the commissioner named in the commis- sion, at a time and place stated in the subpoena; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after appearing, refuses to testify, not being priv- ileged from giving testimony, and such refusal or neglect is proven to the satisfaction of any judge of the court whose clerk issues such subpoena, 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 is- sued by such court. (Eev. Stats, sec. 868.) Note. — This section was intended to authorize the procuring of means of a commission, when neces- sary, any evidence that might be procured upon a trial. (In re Shepard, 18 Blatchf. 227; S. C, 3 Fed. Rep. 12.) The commission must be accompanied by written interrogatories, and furnish information as to the inquiry, or the court cannot determine the question as to his refusal to answer a proper ques- tion. (In re Glaser, 2 Banlc. Reg. 398; Fed. Gas. No. 5476; see Sergeant v. Biddle, 4 Wheat. 508; York Co. V. Cent. R. R., 3 WaU. 113.) § 388. Subpoena duces tecum under a dedimus potestatem. — When either party in such suit ap- plies to any judge of a United States court in such district or Territory for a subpoena commanding a witness, therein to be named, to appear and tes- tify before said commissioner, at the time and place to be stated in the subpoena, and to bring with him and produce to such commissioner any 1063 EVIDENCE. § 388 paper or writing or writ|;en 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 aflSdavit of the person applying, or otherwise, that there is reason to believe that such paper, writing, written instrument, book, or other document is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of said court to issue such subpoena accordingly. And if the witness, after being served with such subpoena, fails to produce to the commissioner, at the time and place stated in the subpoena, any such paper, writing, written instrument, book, or other 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 disobedi- ence 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. (Eev. Stats, sec. 869.) A subpoena duces tecum may issue to witness to be examined on a commission. (In re Shepard, 18 Blatchf. 226; S. C, 3 Fed. Rep. 12.) The writ is ex- pressly confined to the production of "any paper or § 388 EVIDENCE. 1054 writing or written instrument or booli or other docu- ment." (In re Sliepaad, 18 Blatclif. 226; 3 Fed. Rep. 12.) The subpoena duces tecum must describe or refer to the paper or document which is in the pos- session of the witness and which is required (Murray V. State of Louisiana, 1C3 U. S. 101.) It cannot issue to a witness not a party to a suit to compel him to bring before the court patterns for a stove. (In re Shepard, 18 Blatchf. 226; 3 Fed. Rep. 12.) A defend- ant cannot be compelled to malie discoveries in an- svrer to a bill which seelcs to enforce penalties and forfeitures against him by means of such discoveiies. (Atwill v. Ferrett, 2 Blatchf. 39; Fed. Cas. No. G-10.) The defendant cannot be compelled, under a subpoena duces tecum, to produce his books and papers and plates to be used in evidence for plain- tiff. (Johnson v. Donaldson, 18 Blatchf. 287; S. C, 3 Fed. Rep. 22.) A motion to compel such testimony will not be granted in aid of an action for trespass for the violation of a copyright. (Atvvill v. Ferrett, 2 Blatchf. 39; Fed. Cas. No. 040.) The relief will only be to the extent of the part infringed. (Story v. Holcombe. 4 McLean. 306: Fed. Cas. No. 13497.) The various provisions of the law should be liberally con- strued to give effect to Avhat may be considered the inherent right of the author to his work (Myers v. Callahan, 5 Fed. Rep. 726; 11 Biss. 1.39); but equity will not, at the instance of the author, where he has made an assignment forever, rtstrain the assignee from selling after a renewal taken out by the author. (Falgo V. Banks. 7 Blatchf. 152; Fed. Cas. No. 10671.) The right to a chart is violated only when another copies from the chart of him who has secured the copyright. ((Blunt v. Patten, 2 Paine, ,398; Fed. Cas. No. 1580; compare Gray v. Russell. 1 Story, 11; Fed. Cas. No. ,5728; Emerson v. Da vies. 3 Story, 7GS; Fed. Cas. No. 4436.) The publication of a map made from lOaS EVIDENCE. §§389 390 materials collpcted while In the service of the gavern- niout as dranj?htsiiiau belongs to the government. {ConunonwoaUh v. Desilvan, 3 Phlla. 31; see Heine v. Applclon, 4 Bliitchf. 125: Fed. Cas. No. G:')24.) Ck)nipil- ing maps of ji city of a particular design from public records into an atlas, iunl without talcing out a copy- riglit; making several copies and selling them, and placing ono copy in the hands of the city for public use, is a dedication to public use (Kees v. I'ellzer, 75 111. 47.^»); but depositing one chart in the navy de- partment does not make it public property. (Blimt v. Patten, 2 Paine, 397; Fed. Cas. No. 1580.) A single sheet containing diagrams is a subject of copyriglit; the form of the publication is immaterial (Drury v. lowing. 1 Bund, 540; Fed. Cas. No. 4005); but an ad- vertising card is not. (See Ehret v. IMercc, 10 Fed. Hep. 553; see United States v. Hall, 44 Fed. llcp. 883.) § 389. Witness under a dcdimus potestatem.— No witness shall be required, under the provisions of cither of the two precodin 14 Blatchf. 411; Fed. Cas. No. 4467; Nazro v. Crogin, 3 Dill. 474; Fed. Cas. No. 100G2; Republic Ins. Co. v. Williams, 3 Biss. 370; Fed. Cas. No. 11707), but it does not apply to ordering a peremptory nonsuit against the will of the plaintiff. (Elmore v. Grymes, 1 Pet- ers, 471.) It applies to notice of hearing for the trial of an issue of law on a demun-er (Rosenbach v. Drey- fuss, 2 Fed. Rep. 23); but a State law regulating the filing of a lis pendens does not apply to Federal courts. (Majors v. Cbwell, 51 Gal. 478; see U. S. v. Stevenson. 1 Abb. G. G. 4^5; Fed. Gas. No. 16395.) A State law authorizing dismissal of a suit, and which prohibits reinstatement unless at the next term, is not covered by this section. (Mutual Build. Fund v. Bossieux, 1 Hughes, 386; Fed. Gas. No. 9977.) There is no authority to refer an action to referees without consent of parties, although the State court may (Howe Mach. Co. v. Edwards, 15 Blatchf. 402; Fed. Gas. No. 6784); but if the parties consent the rule of the State applies. (Parlier v. Ogdensburgh & L. O. R. Co., 51 U. S. App. 88; 79 Fed. Rep. 817.) This sec- 1113 PKOCEDURE. §436 tion has no reference to the designation of jurors. i*ocess thereon, are the same as judgments of the State court. (U. S. v. Morrison, 4 Pet. 124; Barth §438a PKOCEDUBE, 1128 V. Makeever, 4 Biss. 206; Fed. Cas. No. 1069; U. S. v. Humphreys, 3 Huglies, 201; Fed. Oas. No. 15422; Shew V. Jones, 2 McLean, 78; Fed. Cas. No. 12818; Lombard v. Bayard, 1 Wall. Jr. 196; Fed. Gas. No. 8469.) A levy and sale of lands under a pluries exe- cution while a prior levy remains undisposed of is a mere iiTcgularity which can onlj' be taken advantage of in apt time. (Kerr v. South Park Commrs., 8 Biss. 276; Fed. Cas. No. 7733.) A suit in rem for forfeiture of property by reason of violation of the internal rev- enue law is a "common-law cause" within the mean- ing of this section. (A Quant, of Manuf. Tobacco, 10 Ben. 447; Fed. Gas. No. 11499. See act of August 1, 1888.) § 438 a. Procedure upon award in controver- sies between carriers and their employees. — That the award and the papers and proceedings, includ- ing the testimony relating thereto, certified under the hands of the arbitrators and which shall have the force and effect of a bill of exceptions, shall be filed in the clerk's office of the circuit court of the United States for the district wherein the controversy arises or the arbitration is entered into, and shall be final and conclusive upon both parties, unless set aside for error of law apparent on the record. That the award being filed in the clerk's office of a circuit court of the United States, as herein- before provided, shall go into practical operation, and judgment shall be entered thereon accordingly at the expiration of ten days from such filing, un- less within such ten days either party shall file exceptions thereto for matter of law apparent upon 1129 PEOCEDTJKE. §439 the record, in whieli case said award shall go into practical operation and judgment be entered ac- cordingly when such exceptions shall have been finally disposed of either by said circuit court or on appeal therefrom. At the expiration of ten days from the decision of the circuit 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 under- standing and consideration of the questions of law presented by said exceptions and to be decided. The determination of said circuit court of ap- peals upon said questions shall be final, and being certified by the clerk thereof to said circuit court, judgment pursuant thereto shall thereupon be en- tered by said circuit court. If exceptions to an award are finally sustained, judgment shall be entered setting aside the award. But in such case the parties may agree upon a judgment to be entered disposing of the subject matter of the controversy, which judgment when entered shall have the same force and effect as judgment entered upon an award. (30 U. S. Stats., 425, 426.) § 439. Supreme court to regulate the practice of circuit and district courts. — The supreme court shall have power to prescribe, from time to time. Fed. Proc— 95. §439 PROCEDTJEE. 1130 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 proceed- ings and pleadings, of taking and obtaining evi- dence, of obtaining discovery, of proceeding to ob- tain relief, of drawing up, entering, and enrolling decrees, and of proceeding before trustees appoint- ed 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. (Rev. Stats, sec. 917.) The power conferred is not only to make rules, but to make them from time to time. (The St. Lawrence, 1 Blaclv, 522.) The supreme court may make rules to regulate mere matters of practice in equity (Pier- pout V. Fowie, 2 Wood. & M. 23; Fed. Cas. No. 11152), as by allowing defendant to plead to part of a bill, and demur to a part. (Pieiiiont v. Fowle, 2 Wood. & M. 23; Fed. Cas. No. 11152.) Such rules are obligatory on the circuit court (Poultney v. La Fayette, 12 Pet. 472; Ex parte Whitney, 13 Pet. 404); and no practice in the circuit court inconsistent therewith is admissible to control them (Bank v. White, 8 Pet 2G2); but rules prescribed by the supreme court do not ex- clude other rules aud usages of the circuit courts (Van Hook v. Pendleton, 2 Blatchf. 85; Fed. Cas. No. 1G852), as enlarging the time of appearing, and answering when justice requires it (Poultney v. La Fayette, 12 Pet. 472); but the circuit courts have no power to make rules inconsistent with the rules presci'ibed by the supreme court (Story v. Livingston, 13 Pet. 359; Gaines v. Relf, 15 Pet. 9; Bedn v. Heath, 12 How. 168; Jenkins v. Greenwald, 1 Bond, 126; Fed. Cas. No. 7270), as a rule adopting a State law as to the rights and obligations of parties to injunction bonds. (Biea 1131 PROCEDURE. § 440 T. Heath, 12 How. 168.) Rules prescribed by the su- preme court have the force and effect of statutoi*y pro- Ylslons, (The Delaware, Olcott, 240; Fed.Cas. No. 3762; Scott V. The Young America, Newb. Adm. 107; Fed. Gas. No. 12550; Hussel v. The Asa R. Swift, Newb. Adm. 553; Fed. Cas. No. 12144; Gaines v. Travis, Abb. Adm. 422; Fed. Gas. No. 5180; The Illinois, 1 Brown Adm. 13; Fed. Gas. No. 7003), but it can make no rule to conflict with an act of Congress (Gray v. G. I. & N. R. R. Go., 1 Wool. 63; Fed. Gas. No. 5713), as a rule making judgments or decrees for money a lien, on land, or to displace any land where the same is con- ferred by law. (Ward v. Ghamberlain, 2 Black, 430.) Although it cannot by rule affect the jurisdiction con- ferred by law, yet it may regulate proceedings and process. (The St. Lawrence, 1 Black, 522.) § 440. Practice in the several courts to be reg- ulated by their own rules. — The several circuit and district courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the supreme court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vaca- tion, and otherwise regulate their own practice as may be necessary or convenient for the advance- ment of Justice and the prevention of delays in proceedings. (Eev. Stats, sec. 918.) Rules.— Under this section Federal courts may by rule require parties to print their briefs (Neff v. Pennioyer, 3 Saw. .335; Fed. Gas. No. 10084); or may pass a rule for making up the tx'ial docket, and make § 440 PBOCEDURE, 1132 the clerk's fee part of taxable costs (The Alice Tamtor, 14 Blatehf. 225; Fed. Cas. No. 196); or a rule which dispenses with proof of execution of a bond, bill, or note, unless defendant flies an affidavit deny- ing the execution (Mills v. Banli, 11 Wheat. 431); or it may adopt the form of a bill of exceptions as known at common law (Pomeroy v. State Bank, 1 Wall. 592); but no rule can exclude competent evi- dence. (Patterson v. Winn, 5 Pet. 233.) Federal courts may regulate their own process, and prescribe rules for the collection and disposition of moneys, and compel their observance by attachment. (The Lau- rens, 1 Abb. Adm. 508; Fed. Cas. No. 8122.) And with consent of parties a cause may, under a rule, be referred to a referee to hear and report his determin- ation to the court. (Thornton v. Carson, 7 Cranch, 596;Alexandria Canal Co. v. Swarm, 5 How. 83; Heck- ers V. Fowler, 2 Wall. 123.) A court may suspend its rules or except a case from their opei-ation. (U. S. V. Breitling, 20 How. 252; Russell v. McLellan, 3 Wood. & M. 157; Fed. Cas. No. 12158; Wallace v. Clark, 3 Wood. & M. 359; Fed. Cas. No. 17098.) It is not essential that it adopt wiltten rules; it may be established by uniform practice of a series of years. (FuUerton v. Bank, 1 Pet. 604; Duncan v. U. S., 7 Pet. 435; U. S. v. Stevenson. 1 Abb. U. S. 495; Fed. Cas. No. 16P.95; Koning v. Bayard, 2 Paine, 251; Fed. Cas. No. 7924; Sellers v. Corwin, 5 Ohio, 398.) And a decision on a subject establishes the practice. (Duncan v. U. S., 7 Pet. 435.) Section 914, adopting the practice of the several States, should be construed in connection with this section. (Osborne v. City of Detroit, 28 Fed. Rep. 385.) The power given to the Federal courts to prescribe rules does not authorize a district court to prescribe that among admiralty claims of equal dignity, the first libeling shall be paid first. (Saylor v. Taylor, 42 U. S. App. 206; 77 Fed. Rep. 476.) 1 1133 PEOCEDUBE. §§ 441-443 § 441. Suits for duties, etc. — All suits for the recovery of any duties, imposts, or taxes, or for the enforcement of any penalty or forfeiture pro- vided by any act respecting imports or tonnage, or the registering and recording or enrolling and licensing of vessels, or the internal revenue, or di- rect taxes, and all suits arising under the postal laws, shall he brought in the name of the United States. (Rev. Stats, see. 919.) § 442. Consolidation of revenue seizures. — Whenever two or more things belonging 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. (Rev. Stats, sec. 920.) § 443. Orders to save costs ; consolidation of causes. — When causes of a like nature or relative to the same question are pending before a court of the United States, or of any Territory, the court may make such orders and rules concerning pro- ceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so. (Rev. Stats, sec. 921.) Consolidation to save costs.— If a party has two or more causes of action of the same kind he mav be compelled to consolidate and pay the costs of the ap- plication. (Bank v. Young, 1 Cranch C. C. 458; Fed. Cas. No. 857; Wolverton v. Lacey, 18 Law Rep. 672; §§444-445 PKOCEDURE. 1134 Fed. Cas. No. 179:^2.) The practice to consolidate un- der tills section is a common practice. (U. S. v. U. Pac. R. R. Co., 98 U. S. 569.) If several suits involve the same questions, and tlie attorneys for defendants co'usent that judgment may abide the event of a trial of one case, an order may be entered that the decree entered in the case selected for trial shall be entered in the other cases. (Andi-ews v. Spear, 4 Dill. 472; Fed. Cas. No. 380.) So the court may ordir several ac- tions against several insurance companies to be tried before the same jury if the questions and the evidence are the same and the counsel the same. (Weide v. Insurance Co., 1 Dill. 441; Fed. Cas. No. 17858.) Un- der the above section it is proper to consolidate an equity suit brought in aid of an attachment, and one to restrain the enforcement of such attachment by ex- ecution, and to make the bill in the latter a cix)ss-bill in the former. (Lant v. Kinne, 43 U. S. App. 640; 75 Fed. Rep, (>36.) § 444. When the marshal is a party. — When the marshal or his deputy is a party in any cause, the writs and precepta therein shall be directed to such disinterested person as the court or any Jus- tice or judge thereof may appoint, and the person so appointed may execute and return them. (Rev. Stats, sec. 922.) A deputy marshal cannot plead in abatement that the writ was not directed to and served by a disinter- ested person. (Knox v. Summers, 3 Oranch, 496.) § 445. Seizures for forfeiture in certain cases. — When any vessel, goods, wares, or merchandise are seized by any officer of the customs, and prose- cuted for forfeiture by virtue of any law respect- 1135 PROCEDURE. § 445a ing the revenue^ or the registering and recording, or the enrolling and licensing of vessels, the court shall cause fourteen days' notice to be given of such seizure and libel, by causing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for trial, to be inserted in some newspaper published near the place of seizure, and by posting up the same in the most public manner for the space of fourteen days, at or near the place of trial; and proclamation shall be made in such manner as the court shall direct. And if no person appears and claims such vessel, goods, wares, or merchandise, and gives bond to defend the prosecution thereof, and to respond the cost in case he shall not sup- port his claim, the court shall proceed to hear and determine the cause according to law. (Eev. Stats, sec. 923.) § 445 a. Proceedings to restrain combinations in violation of import trade. — That the several cir- cuit courts of the United States are hereby in- vested with jurisdiction to prevent and restrain violations of section seventy-three of this act [de- claring void agreements in restraint of import trade], and it shall be the duty of the several dis- trict attorneys of the United States, in their re- spective districts, under the direction of the At- torney-General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petitions setting forth the case and praying that such violations shall be enjoined or otherwise prohibited. When § 446 PROCEDUKE. 1136 the parties complained of shall have been duly no- tified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. (28 U. S. Stats, 570.) § 446. Attachment in postal suits.— In all cases where debts are due from defaulting or de- linquent postmasters, contractors, or other officers, agents, or employees of the post-office department, a warrant of attachment may issue against all real and personal property and legal and equitable rights belonging to such officer, agent, or em- ployee, and his sureties, or either of them, in the following cases: First. When such officer, agent, or employee, and his sureties, or either of them, is a nonresi- dent of the district where such officer, agent, or employee was appointed, or has departed from such district for the purpose of permanently residing out of the same, or of defrauding the United States, or of avoiding the service of civil process. Second. When such officer, agent, or employee, and his sureties, or either of them, has conveyed away, or is about 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 de- fraud the United States. 1137 PEOCEDUEE. §§ 447-448 And when any snch property has been removed, certified copies of the warrant may be sent to the marshal of the district into which the same has been removed, under which certified copies he may seize said property and convey it to some conven- ient point within the jurisdiction of the court from which the warrant originally issued. And alias warrants may be issued in such cases upon due application, and the validity of the warrant first is- sued shall continue until the return day thereof. (Bev. Stats, sec. 924.) § 447. Application for warrant — Postal suit. — Application for such warrant of attachment may be made by any district or assistant district attor- ney, or by any other person authorized by the post- master-general, before the judge, or, in his ab- sence, before the clerk of any court of the United States having original jurisdiction of the cause of action. And such application shall be made upon an affidavit of the applicant, or of some other cred- ible person, stating the existence of either of the grounds of attachment enumerated in the preced- ing section, and upon production of legal evidence of the debt. (Eev. Stats, sec. 925.) § 448. Issuing warrant in postal suit — Duty of clerk and marshal. — Upon any such applica- tion, and upon due order of any judge of the court, or, in his absence, without such order, the clerk shall issue a warrant for the attachment of all the property of any kind belonging to the person speci- fied in the affidavit, which warrant shall be exe- §§ 449-450 PKOCEDUKE. 1138 cuted with all possible dispatch 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. (Eev. Stats, sec. 926.) § 449. Ownership of attached property — Trial. — At any time within twenty days before the re- turn day of such wan-ant, the party whose prop- erty is attached may, on giving notice to the dis- trict attorney of his intention, file a plea in abate- ment, traversing the allegations of the affidavit, or denying the ownership of the property attached to be in the defendants or either of them; in which case the court may, upon application of either party, order an immediate trial by jury of the issues raised by the affidavit and plea; but the par- ties may, by consent, waive a trial by jury, in which case the court shall decide the issues raised. And any party claiming ownership of the property attached, and a specific return thereof, shall be confined to the remedy herein afforded; but his right to an action of trespass, or other action for damages, shall not be impaired hereby. (Rev. Stats, sec. 937.) § 450. Proceeds of attached property. — When the property attached is sold on any interlocutory order of the court or is producing any revenue, the money arising from such sale or revenue shall be invested in securities of the United States, under the order of the court, and all accretions shall be 1139 PROCEDUEE. §§451-453 held subject to the orders of the same. (Eev. Stats, sec. 928.) § 451. Publication of attachment. — Immedi- ately upon the execution of any such warrant of attachment, the marshal shall cause due publica- tion thereof to be made, in the case of absconding debtors for two months, and of nonresidents for four months. The publication shall be made in some newspaper published in the district where the property is situate, and the details thereof shall be regulated by the order under which the war- rant is issued. (Rev. Stats, sec. 929.) § 452. Property of defendants — Accounting, etc. — After the first publication of such notice of attachment as required by law, every person in- debted to, or having possessionof any property be- longing to, the said defendants, or either of them, and having knowledge of such notice, shall ac- count and answer for the amount of such debt and the value of such property; and any disposal or at- tempt 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 pos- session of the property of, such defendants, or either of them, is known to the district attorney or marshal, such officer shall see that personal no- tice of the attachment is served upon such person, but the want of such notice shall not invalidate the attachment. (Rev. Stats, sec. 930.) §•453. Discharge of attachment — Bond. — TTp- ■on application of the party whose property has §§ 454-455 PKOCEDURE. 1140 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 suf- ficient penal bond, in double the value of the prop- erty 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. (Kev. Stats, sec. 931.) § 454. Accrued rights not to be abridged. — Nothing contained in the preceding eight sections shall be construed to limit or abridge, in any man- ner, such rights of the United States as have ac- crued or been allowed in any district under the former practice of, or the adoption of State laws by, the United States courts. (Rev. Stats, sec. 932.) § 455. Attachments dissolved in conformity with State lav^s. — An attachment of property, upon process instituted in any court in the United States, to satisfy such judgment as may be re- covered by the plaintiff therein, except in the cases mentioned in the preceding nine sections, 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 inter- fere with any priority of the United States in the payment of debts. (Rev. Stats, sec. 933.) 1141 PKOCEDUKK. §§ 456-457 Dissolution of attachments. — A motion to dis- charge an attachment should be supported by an affi- davit traversing the facts set out in the affidavit of plaintiff, upon which the attachment was issued. (Jenks V. Richardson, 71 Fed. Rep. 3G5.) On a mo- tion to dissolve an attachment the sufficiency of the petition as showing a cause of action on the part of plaintiffs, cannot be considered. (Jenks v. Richard- son, 71 P'ed. Rep. 365.) Under this section an attach- ment is dissolved in Louisiana by an accepted ces- sion of the attached property to creditors under the Insolvency laws of that State. (Schwartz v. Claflin, 13 U. S. App. 707; 60 Fed. Rep. 676.) § 456. Property taken under revenue laws ir- repleviable. — All property taken or detained by any officer or other persons, under authority of any revenue law of the United States, shall be ir- repleviable, and shall be deemed to be in the cus- tody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof. (Rev. Stats, sec. 934.) Note. — Property levied on by a collector of inter- nal revenue. (O'Reilly v. Good, 42 Barb. 521; Brice V. Elliott, 22 Int. Rev. Rec. 206; Fed. Gas. No. 18^.) § 457. Garnishees in suits by the United States on notes, etc. — 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 sum- moned 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 Fed. Proc— 96. §§ 458-460 PBOCEDTJRE. 1142 the summons and at the time of making such de- position; 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 en- tered against any garnishee until after Judgment has been rendered against the corporation defend- ant to the said action, or until the sum in which the garnishee stands indebted is actually due. (Eev. Stats, sec. 935.) § 458. Issue tendered when garnishee denies indebtedness. — When any person summoned as garnishee deposes in open court that he is not, and was not at the time of the service of the summons, indebted to such corporation, an issue may be ten- dered by the United States upon such demand, and if, upon the trial of that issue, a verdict is ren- dered against the garnishee, judgment shall be en- tered in favor of the United States, pursuant to such verdict, with costs of suit. (ilev. Stats, sec. 936.) § 459. Garnishee failing to appear. — If any person summoned as garnishee, as aforesaid, fails to appear at the term of tlie court to which he is summoned, he shall be subject to attachment for contempt of the court. (Rev. Stats, sec. 937.) § 460. Bailing of property seized under cus- toms laws. — Upon the prayer of any claimant to the court that any vessel, goods, wares, or mer- 1143 PKOCEDUEE. §460 chandise, seized and prosecuted imder any law re- specting the revenue from imports or tonnage, or tlie registering and recording, or the enrolling and licensing of vessels, or any part thereof, should be delivered to him, the court shall appoint three proper persons to appraise such property, who shall be sworn in open court, or before a commis- sioner appointed by the district court to administer oaths to appraisers for the faithful discharge of their duty; and the appraisement shall be made at the expense of the party on whose prayer it is granted. If, on the return of the appraisement, the claimant, with one or more sureties, to be ap- proved by the court, shall execute a bond to the United States for the payment of a sum equal to the sum at which the property prayed to be deliv- ered is appraised, and produce a certificate from the collector of the district where the trial is had, and of the naval officer thereof, if any there be, that the duties on the goods, wares, and merchan- dise, or tonnage duty on the vessel so claimed, have been paid or secured in like manner as if the same had been legally entered, the court shall, by rule, order such vessel, goods, wares, or merchan- dise to be delivered to such claimant; and the said bond shall be lodged with the proper officer of the court. If judgment passes in favor of the claim- ant, the court shall cause the said bond to be can- celed; but if judgment passes against the claimant, as to the whole or any part of such vessel, goods, wares or merchandise, and the claimant does not, within twenty days thereafter, pay into the court, § 460 PEOCEDTJRE. 1144 or to the proper officer thereof, the amount of the appraised value of such vessel, goods, wares, or merchandise so condemned, with the costs, Judg- ment shall be granted upon the bond, on motion in open court, without further delay. [See sec. 570.] (Eev. Stats, sec. 938.) Security, how taken.— The security may be taken by a sealed instrument or by a stipulation in the na- ture of a recognizance (The Alligator, 1 Gall. 145; Fed. Cas. No. 248; McLellan v. U. S., 1 Gall. 227; Fed. Cas. No. 8895; The Octavia, 1 Mason, 149; Fed. Cas. No. 10423); but the best course is to take a stipula- tion. (The Alligator, 1 Gall. 145; Fed. Oas. No. 248.) The stipulation is deemed a mere substitute for the thing itself, and the stipulators are liable to the exer- cise of all those powers on the part of the court which it could properly exercise if the thing itself were still in its custody. (The Palmyi-a, 12 Wheat. 1; Newell V. Norton, 3 Wall. 257.) The exercise of authority on the part of court, where the sureties will be affected injuriously, is in the discretion of the court. (The Palmyra, 12 Wheat 1.) Even without any statute the admiralty may take a stipulation (The Alligator, 1 Gall. 145; Fed. Cas. No. 248; McLellan v. U. S., 1 Gall. 227; Fed. Cas. No. 8895; Place v. Norwich, 1 Ben. 89; Fed. Cas. No. 11202; U. S. v. Four Pieces, 1 Paine, 435; Fed. Cas. No. 15150); and a void bond may be good as a stipulation. (The Alligator, 1 Gall. 145; Fed. Cas. No. 248.) The government has a right to be heard as to the propriety of a delivery on bail, and no delivery ought to be made until all objections have been heard and considered (Ex parte Robbins, 2 Gall. 320; Fed. Cas. No. 11879); and the court may refuse to deliver on a stipulation unless upon condition that it carry interest. (The Santa Maria. 10 Wheat. 431.) Where a vessel libeled for violation of the revenue 1145 PKOCEDURE. §461 laws is released upon a bond of doubtful validity tlio United States cannot maintain a second libel for other violations of the revenue laws, committed dux'ing the same period for which the first libel was filed, with-' out dismissing the first proceeding. (The Haytian Republic, 57 Fed. Rep. 508.) A release bond which contains no condition, and which is for double the value of the vessel, is valid as an obligation to pay at least the value of the vessel. (The Haytian Re- public, 57 Fed. Rep. 508.) Procedure on stipulation. — The court rany require full proof of the allegations in the libel (United States V. The liion, 1 Sprague, 399; Fed. Cas. No. 15607); but if there is no claim no proof oif the facts is required. (United States v. The Lion, 1 Sprague, 399; Fed. Cas. No. 15607; The MaiT Anne, 1 Ware, 104; Fed. Cas. No. 9195.) If the stipulation is joint and sev- eral, libelants may take separate judgments and executions against the surviving parties on the bond or pi-oceed against the representatives. (The Oc- tavia, 1 Mason, 149; Fed. Cas. No. 10423.) Judg- ment on the bond ought to be in open court after the lapse of twenty days, and not before. (JNIcLellan V. U. S., 1 Gall. 227: Fed. Cas. No. 8895.) Judgment and execution may be awai'ded in a summary manner on a stipulation. (The Gran Para, 10 Wheat. 497; The Alligator, 1 Gall. 145; Fed. Cas. No. 248; Tho BnT- tic, Blatchf. & H. 149; Fed. Cas. No. 826.) The ulti- mate adjudication of the cause is not compieie ml judgment is awarded on the bond. (McLellan v. U. S., 1 Gall. 1; Fed. Cas. No. 15165.) § 461. Sale after condemnation. — All vessels, goods, wares, or merchandise wliicli shall be con- demned by virtue of any law respecting the reve- nue from imports or tonnage, or the registering ^ 462 PEOCEDUEE. 1146 and recording, or the enrolling and licensing of vessels, and for which, bonds shall not have been given by the claimant, shall be sold by the marshal or other proper officer of the court in which con- demnation shall be had, to the highest bidder, at public auction, by order of such court, and at such place as the court may appoint, giving at least fif- teen days' notice (except in cases of perishable merchandise) in one or more of the public news- papers of the place where such sale shall be; or if no paper is published in such place, in one or more of the papers published in the nearest place there- to; for which advertising a sum not exceeding five dollars shall be paid. And the amount of such sales, deducting all proper charges, shall be paid within ten days after such sale by the person sell- ing the same, to the clerk or other proper officer of the court directing such sale, to be by him, after deducting the charges allowed by the court, paid to the collector of the district in which such seiz- ure or forfeiture has taken place, as hereinbefore directed. (Eev. Stats, sec. 939.) § 462. In cases of seizure, bailing of property in vacation. — In any cause of admiralty and mari- time jurisdiction, or other case of seizure, depend- ing in any court of the United States, any judge of the said court, in vacation, shall have the same authority to order any vessel or cargo or other property to be delivered to the claimants, upon bail or bond, or to be sold when necessary, as the said court has in term-time, and to appoint appraisers, and exercise every other incidental power neces- 1147 PKOCEDURE § 463 sary to the complete execution of the authority herein granted; and the recognizance of bail or bond, under such order, may be executed before the clerk upon the party's producing the certificate of the collector of the district, of the sufficiency of the security offered; and the same proceedings shall be had in case of said order of delivery or of sale as are had in like cases when ordered in term- time; provided, that upon every such application, either for an order of delivery or of sale, the collec- tor and the attorney of the district shall have rea- sonable notice in cases of the United States, and the party or counsel in all other cases. (Rev. Stats, sec. 940.) § 463. Delivery bond in admiralty proceed- ings. — When a warrant of arrest or other pro- cess in rem is issued in any cause of admiralty jurisdiction, except in cases of seizures for for- feiture under any law of the United States, the marshal shall stay the execution of such process, or discharge the property arrested if the process has been levied, on receiving from the claimant of the property a bond or stipulation in double the amount claimed by the libelant, with sufficient surety, to be approved by the judge of the court where the cause is pending, or, in his absence, by the collector of the port, conditioned to answer the decree of the court in such cause. Such bond or stipulation shall be returned to the court, and judgment thereon, against both the principal and sureties, may be recovered at the time of rendering the decree in the original cause. And the owner of any vessel may cause to be executed and de- § 463 PKOCEDITRE. 1148 livered to the marshal a bond or stipulation, with sufficient surety, to be approved by the jtidge of the court in which he is marshal, conditioned to answer the decree of said court in all or any cases that shall thereafter be ba-'ought in said court against the said vessel, and thereupon the execution of all such process against said vessel shall be stayed so long as the amount secured by said bond or stipula- tion shall be at least double the aggregate amount claimed by the libelants in such suits which shall be begun and pending against said vessel; and like judgments and remedies may be had on said, bond OT stipulation as 'if a special bond or stipulation had been filed in each of said suits. The court may make such orders as may be necessary to carry this section into effect, and especially for the giving of proper notice of any such suit. Such bond or stipulation shall be indorsed by the clerk with a minute of tbe suits wherein process is so stayed, and further security may at any time be re- quired by tbe court. If a special bond or stipula- tion in the particular cause shall be given under this section, the liability as to said cause on the general bond or stipulation shall coase. [Eev. Stats. § 941, as amended March 3. 1899, 30 U. S. Stats.] Release of vessel. — Retumo'dtoowm'.r (TheOld Con- cord. 1 Brown. 270; Fed Oas. No. 10-182; The TTnion, 4 lilalchf. IM); Fed. Ca.s. No. 14341;). dischni'Sed of lien for which seized fTlie Mutual, 7S Fed. Rep. 144), but subject to all previous liens, and subseqiieii'l ac- eruin.cr lions (The linioii. 4 Hlalchf. !)0; Fefl. Cas. No. 14346). Coui-t will not order redelivery of vessel 1149 PKOCEDUEE. §463 to marshal (The Uniion, 4 Blatchf. 90; Fed. Cas. No. 14346). And she cannot again be taken for the same cause of . action (The Mutual, 78 Fed. Rep. 144). The libelants cannot participate in the proceeds of the sale undeT a subsequ.ent libel in ab- sence of fraud. (The Madge, 31 Fed. Rep. 926); The Belgenland, 108 U. S. 157). A vessel libeled for for- feiture for violation of neutrality laws may in the court's discretion be released on bond (The Three Friends, 78 Fed. Rep. 173). The right of a vessel owner to give bond and retain posses- sion extends under the above section to possess- ory action.s as well as others; and if he fails to exercise the right he cannot require the libelant to give security for damages caused by seizure. (The Poconoket, 61 Red. Rep. 106.) A bond in the general form of a common-law bond given to secure the re- lease of a vessel, and approved by the judge and filed with the clerk is within the requirements of the above section, even if given before the vessel is actually arrested, process having been issued to the marshal for that purpose; and a decree and execution thereon may be awarded against the siirety without a sep- arate suit. (Munks v. Jackson, 29 U. S. App. 482; 66 Fed. Rep. 571.) A release bond for a vessel seized for violation of the revenue laws, which contains no con- dition and which is for double the value of the vessel as if drawn under § 941, Rev. Stats., is valid under Rev. Stats., § 938, as an obligation to pay at least the value of the vessel. (The Haytian Republic, 57 Fed. Rep. 508.) A vessel released on bond, it having been seized under a libel of forfeiture for violation of the revenue laAvs. is not subiect to seizure in a differ- ent district, under a libel alleging other violations committed during the same period. (The Havtian Re- public, 15 U. S, App. 288; 59 Fed. Rep. 476.) § 464. Special bail in suits for duties and pen- alties. — In all suits or prosecutions for the recov- ery of duties or pecuniary penalties prescribed by the laws of the United States, commenced in any state where, by the laws thereof, imprisonment for § 465 PKOCEDUKE. 1150 debt shall not have been abolished, the person against whom process is issued shall be held to special bail, subject to the rules which prevail in civil suits in which special lail is required. (Rev. Stats, sec. 912.) Note. — The marshal may detain the defendant until bail is given, and for that purpose may commit him to prison. (Palmer v. Allen, 7 Cranch, 550; U. S. v. Mundell, 1 Hughes, 415; Fed. Cas. No. 15834.) Bail cannot be required unless the affidavit shows prob- able cause where the State law so requires. (Leonard V. Casli^in, Bee, 14G; Fed, Cas. No. 8257.) § 465. Defendant giving bail in one district committed in another. — When a defendant who has procured bail to respond to the judgment in a suit in any court of the United States in any dis- trict is afterward arrested in any other district, and is committed to a jail, the use of which had been ceded to the United States for the custody of prisoners, the judge of the court wherein the suit in which the defendant has so procured bail is de- pending shall, at the request of the bail, order that such defendant be held in said jail, in the custody of the marshal of the district in which it is. The said marshal, upon the delivery of such order, duly authenticated, shall receive such person into his custody, and thereupon be chargeable for an escape, and shall forthwith make a certificate, under his hand and seal, of such commitment, and transmit the same to the court from which the order issued, and, if required, shall make and de- liver to such bail, or to his attorney, a duplicate 1151 PROCEDURE. §§466-468 thereof. Upon the return of such certificate, the court which made the said order or any judge thereof, may direct that an exoneretur be entered upon the bail piece, where special bail shnll have been found, or otherwise discharge such bail, (lie v. Stats, sec. 943.) § 466. Allowing prisoners to escape. — When- ever any marshal, deputy marshal, ministerial of- ficer, or other person, has in his custody any prison- er by virtue of process issued under the laws of the United States by any court, judge, or commis- sioner, and such marshal, deputy marshal, minis- terial officer, or other person, voluntarily sufl'ers such prisoner to escape, he shall be fined not more than two thousand dollars, or imprisoned for a term not more than two years, or both. (Eev. Stats, sec. 5409.) § 467. Application of preceding section. — The preceding section shall be construed to apply not only to cases in which the prisoner who escaped was charged or found guilty of an offense against the laws of the United States, but also to cases in which a prisoner may be in custody charged with offenses against any foreign government with which the United States have treaties of extradi- tion. (Rev. Stats, sec. 5410.) § 468. Defendant held until judgment. — When a defendant is committed by virtue of the order provided in the preceding section, he shall, unless sooner discharged by law, be holden in jail until §§ 469-470 PEOCEDUKE. 1152 final judgment is rendered in the suit in which he procured bail as aforesaid, and sixty days tliere- after, if such judgment is rendered against him, in order that he may be charged in execution, which may, in such cases, be directed to and served by the marshal in whose custody he is. (Eev. Stata sec. 944.) § 469. Bail and affidavits taken by commis- sioners. — Bail and affidavits, when required or al- lowed in any civil cause in any circuit or district court, may be taken by a commissioner of the cir- cuit court for the district; and such acknowledg- ments of bail and affidavits shall have the same ef- fect as if taken before any judge of such courts. (Eev. Stats, sec. 945.) A commissioner may take affidavits in civil pro- ceedings for arrest in conformity with State laws (Fulton V. Gilmore, 10 Chic. L. N. 108; Fed. Cas. No. 5154); but a commissioner in one circuit caxmot authenticate a stipulation to talie effect in another circuit. (Sawyer v. Oaliman, 11 Blatchf. 65; Fed. Cas. No. 12403.) In the absence of a rule of court providing otherwise, appeal bonds may be taken be- fore a United States commissioner. (The Canary, No. 2, 22 Fed. Kep. 536.) § 470. Calling of bail, in Kentucky. — When a bail bond is given for the appearance of any person, to answer in the district or circuit court for the dis- trict of Kentucky, the clerk of such court shall call the party at the time he is bound to appear. If the party fails, the clerk shall enter such failure on his minutes, and on said entry judgment may I 1153 PEOCEDURE. §§471-473 afterward be made of record by the court; but if the party appears, the clerk shall take another bond, with sureties similar to the first, for further appearance at the next succeeding term of the court, and if the party fails to give such other bond and surety, he shall stand committed by order of the clerk until he complies. (Eev. Stats, sec. 946.) § 471. When clerks may take bail de bene esse. — Kecognizances of special bail may be taken de lene esse by the clerks of the circuit and district courts, in the absence or in case of the disability of the judges, in any action depending in either of the said courts, where special bail is demandable. (Eev. Stats, sec. 947.) § 472. Amendment of process. — 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. (Rev. Stats, sec. 948.) Note.— If a summons did not issue from the court, it cannot be amended. (Dwi^ht v. Merritt. 4 F.) So where a claim was rejected by the secretary of the treasury. (.U. fcs. V. MacDaniel, 7 Peters, 1.) This section applies to payments by sureties of a defaulting postmaster on account of his liability made in cash, as well as to credits, when evidence of such payments is sought to be introduced by the sureties in an action against them on the bond (Alexander v. United States, 15 U. S. App. 158; 57 Fed. Rep. 828). A defendant may give evidence that money was collected under a judg- ment without proof that the claim has been presented to the proper officers and rejected. (Meyers v. U. S., 1 McLean, 493; Fed. Cas. No. OWS.) So a defendant may claim credits, though not presented and disal- lowed until after commencement of the suit. (U. S. V. Hawkins, 10 Peters, 125.) Where a claim has not been presented and disallowed, no evidence can be given concerning it, unless defendant has vouchers which he could not procure before. (Watkins v. U. S., y Wall. 759; Halliburton v. U. S., 13 Wall. 03; RaU- road Co. v. U. S., 101 U. S. 541; U. S. v. Austin, 2 ClifC. 325; Fed. Cas. No. 14480; U. S. v. Ingersoll, Crabbe, 135; Fed. Cas. No. 15440; U. S. v. Smith, 1 Bond, 68; Fed. Cas. No. 1U321; U. S. v. Duval, Cilp, 350; Fed. Cas. No. 15015; U. S. v. Barker, 1 Paine, 150; Fed. Cas. No. 14517.J This section requires that the claim otoly shall have been presented, and not the evidence 1157 PROCEDURE. §475 to support it and hence such evidence will not be ex- cluded merely because it was never so presented. (United States v. Patrick, 36 U. S. App. 645; 73 Fed. Rep. 800.) Proof of a claim is not admissible until a proper foundation is laid by proof of its rejection, and parol evidence is inadmissible for that purpose (U. S. V. Gilmore, 7 Wall. 491); and in default of proof of rejection the claim should be withdrawn from the consideration of the jury (U. S. v. Gilmore, 7 Wall. 491; U. S. v. Smith, 1 Bond, 68; Fed. Gas. No. 16321); but an instruction cannot be given that de- fendant is not entitled to credits unless there is no eridenx^e to support them. (U. S. v. Laub, 12 Peters, 1.) No particular form of allowance or disallowance is required (U. S. v. Duval, Gilp, 356; Fed. Gas. 15- 015); but the suspension of a claim is not a disallow- ance. (U. S. V. Duval, Gilp. 356; Fed. Gas. No. 15015; U. S. V. Cadwalader, Gilp. 568; Fed. Gas. No. 14- 706.) A suspended claim may be allowed by the suc- cessor in office. (U. S. v. Cadwalader, Gilp. 563; Fed. Gas. No. 14706.) The bringing of an action for the balance that excludes the claim is a sufficient dis- allowance. (U. S. V. Duval, Gilp. 356; Fed. Gas. No. 15015.) An equitable claim that should have been allowed by an exercise of discretionary power may be admitted as a set-off. (U. S. v. MacDaniel, 7 Peters, 1; U. S. v. Ripley, 7 Peters, 18; U. S. v. Duval, Gilp. 356; Fed. Gas. No. 1-5015.) A credit or allowance made by the head of a department cannot aiterwurd be recalled. (U. S. v. Bank, 15 Peters, 377; U. S. v. Kuhn, 4 Cranch G. G. 401; Fed. Gas. No. 15545.) A claim for unliquidated damages cannot be used as a set-off. {{]. S. V. Robeson, 9 Peters, 319; U. S. v. Bu- chanan, 8 How. 83; U. S. v. Williams, 5 McLean, 133; Fed. Gas. No. 16721; U. S. v. Wells, 2 Wash. C. G. 161; Fed. Gas. No. 16663.) So a claim for a new credit from another account cannot be received unless §476 PROCEDURE. 1158 it has been first presented to the treasury department. (Cox V. U. S., 6 Peters. 172.) So a credit allowed to a quartermaster must first be presented at the treasury department. (U. S. v. Lent, 1 Paine, 417; Fed. Cas. No. 15593.) A charge against one claim on which there will be a balance cannot be used as a set-off against another claim. (U. S. v. Prentice, 6 McLean, 65; Fed. Cas. No. 1G0S3.) A claim which requires legislative action is not a proper set-off. (U. S. v. MacDaniel, 7 Peters, 1; U. S. v. Buchanan, 8 How. S3; U. S. V. Williams, 5 McLean, 133; Fed. Cas. No. 16721; U. S. V. Wells, 2 Wash. C. C. 161; Fed. Cas. No. 16663.) The presentation of a claim against the United States to the treasury department for ex- amination and allowance as required by law bars the running of the statute of limitations during the time consumed in such investigation. (Utz v. United States, 75 Fed. Rep. 648.) § 476. In suits under postal laws — Credits. — No claim for a credit shall be allowed upon the trial of any suit for delinquency against a post- master, contractor, or other officer, agent, or em- ployee of the post-office department, unless the same has been presented to the sixth auditor, and by him disallowed, in whole or in part, or unless it is proved to the satisfaction of the court that the defendant is, at the time of trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting to the said auditor a claim for such credit by some unavoida- ble accident. (Kev. Stats, sec. 952.) Note.— If a statute does not give an allowance as a matter of right, the disallowance of the postmaster- general is conclusive; but if he is entitled to a claim 1159 PROCEDURE. §§ 477-478 as a matter of rigbt, he may use it as a set-off, al- though it be disallowed. (U. S. v. DaVis, Deady, 294; Fed. Cas. No. 14927.) If a claim has not been pre- sented to the sixth auditor, and by him disallowed, it cannot be used as a set-off, unless the party is in pos- session of vouchers which he could not before pro- cure. (Ware v. U. S., 4 Wall. 617.) § 477. Bill of exceptions — A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge being annexed thereto. (Rev. Stats, sec. 953.) Note.— If the bill is signed by the judge it is suf- ficient, though not sealed. (Geueres v. Campbell, 11 Wall. 193.) It is conclusive upon the supreme court Avhich cannot assume that any material part of the evidence is omitted. (Bingham v. Cabot, 3 Dall. 19, 382.) A bill of exceptions may be signed after the expiration of the term at which the judgment was rendered if done by consent of parties given during that term, (Waldron v. Waldron, 15G U. S. 361.) § 478. Defects of form — Amendments. — No summons, writ, declaration, return, process, judg- ment, or other proceedings in civil causes, in any court of the United States, shall be abated, ar- rested, 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 §478 l-ROCEDURE. 1160 which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, a.3 the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe. (Rev. Stats, sec. 954.) Amendments — In general. — This section autliorizes ameudmeuts only iu cases properly instituted and then only in matters of form. (Lusk's Admrs. v. Kimball, 87 Fed. Kep. 545. This section is remedial, and should he liberally- construed (I'arks v. Turner, 12 How. 39; Tohey v. Clatlin, 3 Sum. 371); Fed. Gas. No. 14€G(J; Gregg r. Gier, 4 McLean, 208; Fed. Gas. No. 57y9j; hut amendments are not allowed with such liberality in penal actions or forfeitures as in civil ac- tionii (U. S. V. Batchelder, 9 Int. Kev. Kec. 98; Fed. Gas. No. 14541); and a criminal information can- not be amended at the trial in any manner affecting the charge. (Golumbia v. Herlihy, 1 McAr. 466.) The power to amend at common law was limited to trivial errors, and could not be exercised after final judg- ment (Smith V. AHyu, 1 I'aine, 453; Fed. Gas. 13000; Nelson v. Barker, 3 McLean, 379; Fed. Gas. No. 10- 101); but this section empowers generally any United States coui-l to disregai-d mere defects iu form iu giv- ing judgment, except those which the party demur- ring sets down as the cause of the demurrer (.Kosen- bach V. Dreyfuss, 1 Fed. liep. 3i>4j; and authorizes the allowance of amendments during the trial. (Bam- berger V. Terry, 103 U. S. 40.) It embraces every step in the cause down to the judgment. (Roach v. Hu- liugs, 10 i'et. 319.) Where no local statute or rule of 1161 PBOCEDUBE. §478 local law is involved, the power to amend is the same in attachment suits as in other (Tilton v. Corfield, 93 U. S. 163); and amendments of mere form, not going to the merits, and not of such a character as to pre- judice, will not entitle respondents to costs. (Olsen v. The Edwin Post, 6 Fed. Rep. 314.) A defect is foa-mal when a defendant must of neeesisity be guilty of a breach of the law, and liable to an action if the declar- ation is true. (Jacob v. U. S., 1 Brocli. 520; Fed. Cas. No. 7157.) This section, except the last clause, relates to defects which are mere matters of form, an.d the last clause embraces matters of substance. (Smith v. Allyn, 1 Paine, 453; Fed. Cas. No. 13(X>0.) Tlie power is confined to process and pleadings, and reaches all defects, but does not extend to the judgment. (Smith V. Allyn, 1 Paine, 453; Fed. Cas. No. 13000.) It ex- tends to actions brought by the United States. (.Jacob V. U. S., 1 Broeli. 520; Fed. Cas. 7157.) Discretion of court. — The allowance of amendments In general rests in the sound discretion of the court. (Ex parte Bradstreet, 7 Pet. 634; "Wright v. Hollings- worth, 1 Pet. 165; Walden v. Craig, 9 Wheat. 576; U. S. V. BufoTd, 3 Pet. 12; Mathseon v. Grant, 2 How. 263; U. S. V. Batchelder, 9 Int. Rev. Rec. 98; Fed. Cas. No. 14541.) Sterens' Admrs. v. Nichols, 157 U. S. 370; Phillip Schneider B. Co. v. American Ice M. Co., 40 U. S. App. 382; 77 Fed. Rep. 138; Jefferson v. Burn- hams, U. S. App. 85 Fed. Rep. 924.) And if the party is in no default they will be allowed without costs. (Lanning v. Dolph, 4 Wash. C. C. 624; Fed. Cas. No. 8073.) So where plaintiff was notified of the defect no costs will be allowed (Hoclischer v. Binney, 3 Wood. & M. 333; Fed. Cas. No. 6316); but if it ma- terially varies the line of the defense plaintiff may be required to pay all accrued costs. (Wright v. Hollings worth, 1 Pet. 105; Corp. v. Beatty, 1 Cranch C. C. 234; Fed. Cas. No. 5344; Ferris v. Williams, 1 § 478 PROCEDUBE. 1162 Cranch C. C. 281; Fed. Cas. No. 4749; Page v. Hodg- son, 1 Cranch C. C. 508; Fed. Cas. No. 10853; Elliott V. Holmes, 1 MeLeau, 466; Fed. Cas. No. 4392; Pierce V. Strickland, 2 Story, 292; Fed. Cas. No. 11147; Fred- ler V. Carpenter, 2 Wood.&M. 211; Fed. Cas. No. 4759; Sanders v. Hamilton, 2 Hayw. 282; Fed. Cas. No. 12- 294.) The payment of costs is not a condition pre- cedent, unless made so by order. (Wigfield v. Dyer» 1 Cranch C. C. 403; Fed. Cas. No. 17622; Wheaton v. Love, 1 Cranch C. C. 451; Fed. Cas. No. 17485; Butts V. Chapman, 1 Cranch C. C. 570; Fed. Gas. No. 2257.) Where the defendant misled the plaintiff, leave to amend the plea will be given only on payment of costs (Anonymous, 2 Wash. C. C. 270; Fed. Cas. No. 476); so after plea of misnomer (Payen v. Hodgson, 1 Cranch C. C. 508; Fed. Cas. No. 10853); or on leave to substitute a general denial (Krouse v. Sprogell, 1 Oranch C. C. 78; Fed. Cas. No. 7940; see Milburne V. Kearnes. 1 Cranch C. C. 77; Fed. Cas. No. 9543); an amendment may be allowed with the costs of the term only (Greeley v. Smith, 3 Story, 76; Fed. Cas. No. 5747); or the party applying may be required to pay the expenses of the adverse party. (U. S. v. Batchel- der, 9 Int. Rev. Rec. 98; Fed. Cas. No. 14541.) An amendment varying the amount of damages was al- lowed after verdict on payment of costs and consent to a new trial. (Elting v. Campl>ell, 5 Blatchf. 183; Fed. Cas. No. 4422.) The granting or refusing leave to plead anew is in the discretion of the court (Good V. Martin, 1 Col. 406); and pleas filed before amend- ment may be allowed to stand, or defendant may plead de novo (Tieruan v. Woodruff, 5 McLean, 135; Fed. Cas. No. 14027; Wright v. Hollingsworth, 1 Pet. 165; Furniss v. Ellis, 2 Brock. 14; Fed. Cas. No. 5162; Corp. V. Beatty, 1 Cranch C. C. 234; Fed. Cas. No. 5344; Bank v. Hyatt, 4 Cranch C. C. 38; Fed. Cas. No. 869); but going to trial after amendment of a 1163 PKOCEDUBE. §478 declaration without objection is a waiver of right to plead de novo. (Wright v, Hollingsworth, 1 Pet. 165.) Amendments to pleadings after two demurrers sus- tained are allowed in discretion, and the court will permit them on terms where the case is important, and to prevent part of plaintiff's remedy from being cut off. (Wilbur v. Abbot, 6 Fed. Rep. 817.) The court in its discretion may determine whether, on an amendment, the submission of the cause ought to be vacated. (Bamberger v, Terry, 103 U. S. 40.) Continuance.— If a material amendment is allowed, the opposite party may have a continuance (Schnert- zell V. Purcell, 1 Cranch C. C. 246; Fed. Cas. No. 12- 472; Corp. v. Beatly, 1 Cranch a C. 234; Fed. Cas. No. 5344; Elliott v. Holmes, 1 McLean, 466; Fed. Cas. No. 4392; Walker v. Johnson, 2 McLean, 255; Fed. Cas. No. 17075; Wyatt v. Harden, Hemp. 17; U. S. v. Whisljy, 7 Phila. 603; Fed. Cas. No. 16071); and if de- fendant amend his plea plaintiff may have a continu- ance and costs also (Semmes v. O'Neale, 1 Cranch G. C. 246; Fed. Cas. No. 12054; Marsteller v. McLean, 1 Cranch C. C. 550; Fed. Cas. No. 9138; Short v. Wilkin- son, 2 Cranch C. C. 22; Fed. Cas. No. 12810; or his option between a continuance and costs (Milburne v. Kearnes, 1 Cranch C. C. 77; Fed. Cas. No. 9543); or defendant may be required to pay the costs of the term (Krouse v. Sprogell, 1 Cranch C. C. 78; Fed. Cas, No. 7940); or all costs up to the time of filing the amendment (Semmes v. O'Neale, 1 Cranch C. C. 246; Fed. Cas. No. 12654; Marsteller v. McLean, 1 Cranch C. C. 550; Fed. Cas. No. 9138; Short v. Wilkinson, 2 Cranch C. C. 22; Fed. Cas. No. 12810; Anonymous, 2 Wash. C. C. 270; Fed. Cas. No. 476.) Process.— The power to alter process embraces the whole process of the suit until the satisfaction of the judgment (Cooke v. Avery, 14T U. S. 375). The United §478 PKOCEDUBE. 1164 states courts have plenary power to allow amend- ments of process (Eberly v. Moore, 24 How. 147), where there is anything to amend by (Furniss v. Ellis, 2 Brock. 14; Fed. Cas. No. 51G2; Randolph v. Barrett, 16 Fed. Rep. 138; Tayloe v. Wharfield, 2 Cranch C. C. 248; Fed. Cas. No. 13772); and so of criminal pro^ cess in matters of form (Anonymous, 1 Gall. 22; Fed. Cas. No. 444); but if process is ineffectual, no amendment can be made which would render it effectual. (Brown v. Pond, 5 Fed. Rep. 31.) The power gi-anted is a power to amend a defect in process, and a i>0'wer to amend a want of form in process (D wight v. Merritt, 18 Blatchf. 305; 4 Fed. Rep. 616); as a neglect to advance a writ with the cause of action (Miller v. Gages, 4 McLean^ 436; Fed. Cas. No. 9571); or a mistake of the clerk in the title in a writ. (Furniss v. Ellis, 2 Brock. 15; Fed. Cas. No. 5162); but see Albers v. Whitney, 1 Story, 310; Fed. Cas. No. 137.) A writ calling defendant by a wrong name may be amended by consent (Elliott V. Holmes, 1 McLean, 466; Fed. Cas. No. 4392); as by striking out administrator and inserting executor (Randolph v. Barrett, 16 Pet. 138); or by correcting the corporate name of plaintiff (Georgetown v. Beatty, 1 Cranch C. C. 234; Fed. Cas. No. 5344); but leave to strike out the name of the wife may be re- fused. (Moores v. Carter, Hemp. 64; Fed. Cas. No. 9782a.) A summons may be amended by the subse- quent addition of the signature of the clerk, and seal of the court (Dwight v. Merritt, 4 Fed. Rep. 614; S. C. 18 Blatchf. 30G); but a summons issued from a State court is not process within this section. (Dwight V. Merritt, 4 Fed. Rep. 614.) The court has discretion to permit an officer to amend his return with or without notice at any time (Rickards v. Ladd, 6 Saw. 40; Fed. Cas. 11804), as to both mesne and final process. (Phoenix lus. Go. v. WaJrath, 1 Fed. I 1165 PKOCKDURK. §478 Rep. 775; Semmes v. U. S., 91 U. S. 21; French v. Ed- wards, 5 Saw. 266; Fed. Cas. No. 5098.) But a sheriff cannot amend his return on a summons after the cause has been removed to a Federal Court (Hawkins V. Peirce, 79 Fed. Hep. 452). An execution may be made to conform to the judgment (Murphy v. Lewis, Hemp. 17; Fed. Cas. No. 181(X) a); so a fieri facias may be amended by strilving out the name of the deceased plaintiff (Lane v. Beltzlioover, Taney, 110; Fed. Cas. No. 8047); and longer time be given to a State than to other parties. (Rhode Island v. Massachusetts, 13 Pet. 23.) A capias may be amended by inserting the christian name of the plaintiff (Birch v. Butler, 1 Cranch C. C. 319; Fed. Cas. No. 1425); but not so as to alter the name of the plaintiff. (Oomegyss v. Robb, 2 Cranch C. C. 141; Fed. Cas. No. 3049. The return to a writ of peremptory mandamus may be amended (Supervisors v. Durant, 9 Wall. 736), even after the return day (Linthicum v. Remington, 5 Cranch C. C. 546; Fed. Cas. No. 8377), or after the marshal has ceased to hold office. (Cushing v. Laird, 4 Ben. 70; Fed. Cas. No. 3508.) A court of the United States, sitting as a court of law, has an equitable power over its own process to prevent abuse, oppression, and in- justice, which power may be involved by a stranger to the litigation, as Incident to the jurisdiction already vested, and without regard to his own citizenship. (Gumbel v. Pitliin, 124 U. S. 131.) Amendment to Pleadings.— The court is authorized at any time during the trial to allow an amendment to the pleadings, and where it has done so it rests in its discretion to determine whether the submission of the case ought not to be vacated. (Bamberger v. Terry, 103 U. S. 40.) Some amendments are permitted at any stage of the proceedings (Walden v. Bodley, 14 Pet. 156; Keene v. Wheatley, 4 Phila. 157; Fed. Cas. No. 7644); so a bill may be amended after demurrer Fed. Proc— 98. §478 PROCEDURE. 11&6 sustaine<3 (Hunt v. Rousmaniere, 2 Mason, 342; Fed. Cas. No. 6898; Fisher v. Ruthei-ford, Bald. 188; Fed. Gas. No. 4823); as by making new parties even after the case has been remanded from the supreme court (Russell V. Clark, 7 Cranch, 69; Caldwell v. Taggart, 4 Pet. 190); or after healing so as to make out a new case on the same subject-matter. (Neale v. Neales, 9 Wall. 1; Battle v. Mut. L. Ins. Co., 10 Blatchf. 417; Fed. Cas. No. 1109.) But an amendment of an in- tervenor's claim for personal injuries setting up a dis- tinct gi'ound of negligence, is too late, after a master has finished a hearing and is preparing his report (Clyde V. Richmond & D. R. Co., 59 Fed. Rep. 394). The commissioner has no power to amend the com- plaint or warrant iia an extradition case, or to supply defects by his certificate after the case is closed, and a writ of certiorari is served upon him. (Ex parte Lane, 6 Fed. Rep. 34.) Notice for leave to amend should be given to the adverse party. (Good V. Martin, 1 Col. 40G.) A pleading may be amended so as to bring the case within the exception to the statute of limitations (Piatt v. Vattier, 9 Pet. 405; The Harmony, 1 Gall. 123; Fed. Cas. No. 6081; Tier- man V. Woodruff. 5 McLean, 135; Fed. Cas. No. 14- 027); as that the fraud was not discovered until the time that would remove the bar of the statute. (Whar- ton V. Lowroy, 2 Dall. 304.) A plea of the statute of limitations can be amended only when shown neces- sary for the justice of the case. (Thompson v. Af- flick, 2 Cranch C. C. 40; Fed. Cas. No. 13939.) Blanks may be filled in a declaration to avoid the statute of limitations on payment of costs. (Ferris v. Williams, 1 Cranch C. C. 281; Fed. Cas. No. 4749.) Leave to file a plea of the statute of limitations applied for out of time will be refused. (Read v. Clark, 3 McLean, 480; Fed. Cas. No. 11643.) Leave may be granted to verify pleadings as required by statute (Loving v. Fairchild, 1167 PROCEDURE. § 478 1 McLean, 333; Fed. Cas. No. 8556); but not on the . trial to the surprise of the plaintiff. (Benedict v. Maynard, 6 McLean, 21; Fed. Cas. No. 1296.) Plaintiff's refusal to comply with an order requir- ing him to separately paragraph his different causes of action according to the local practice, justifies a dismissal of his case. (Thompson v. Gatlin, 19 U. S. App. 157; 58 Fed. Rep. 534.) If the court has jurisdic- tion at the commencement of a suit, subsequent amendments of pleadings do not affect the jurisdic- tion. (Tug River Coal & Salt Co. v, Brigel, U. S. App., 86 Fed. Rep. 818.) The circuit court can, in its dis- cretion, allow amendments to the pleadings for the purpose of more fully presenting the facts at issue between the parties even after reversal by the su- preme court of the decree of the circuit court sustain- ing plaintiff's exceptions to tlie answer and granting the relief prayed for. (In re Sanford Fork & Tool Co., 160 U. S. 247.) Amendment as to parties. — A defect of parties may be cured by amendment (Douglas v. Butler, 6 Fed. Rep. 228); OT by striking out parties (Connolly v. Tay- lor, 2 Peters, 556; C>ole S. M. Co. v. Virginia G. H. W. Co., 1 Saw. 470; Fed. Cas. No. 2989); or by substitut- ing the proper party as plaintiff (Essex Co. Nat. Bank V. Bank of Montreal, 15 Am. Law. Reg.,N. S., 418; Fed. Cas. No. 4532); but it cannot be amended so as to make new parties (Morris v. Barney, 1 Cranch C. C. 245; Fed. Cas. No. 9826; Luke's Admrs. v. Kimball, 85 Fed. Rep. 545); nor so as to strike out or alter the name of one of ttie plaintiffs (Moores v. Cailer, Hemp. 64; Fed. Cas. No. 9782a; Comegyss v. Robb, 2 Cranch C. C. 141; Fed. Cas. No. 3049); but it may be amended by inserting the names of the members of a firm (Tibbs V. Parrott, 1 Cranch C. C. 177; Fed. Cas. No. 14022); but not if the form of the action is such that the member is already embraced (United States v. Mc- §478 PEOCEDURE. 1168 Coy, 54 Fed. Eep. 107); so an error In a name may- be corrected (Furniss v. Ellis, 2 Brock. 14; Fed. Cas. No. 5162)) as in the name of a corporation. (Corp. of Georgetown v. Beatty, 1 Cranch C. C. 234; Fed. Cas. No. 5344.) An amendment will be allowed, striking out a name from a petition (Whitaker v. Pope, 2 Woods, 463; Fed. Cas. No. 17528); and on a plea of misnomer plaintiff may amend as to the name of defendant (Nelson v. Barker, 3 McLean, 379; Fed. Cas. No. 10101; Scull V. Briddle, 2 Wash. C. C. 200; Fed. Cas. No. 12570; see Craig v. Brown, Pet. C. C. 139; Fed. Cas. No. 3326); or by striking out the name of a defendant. (Greeley v. Smith, 3 Story, 76; Fed. Cas. No. 5747.) Dismissal by plaintifC of the action as against some of thie defendants, not on the merits, is not a bar to a subsequent action on the cause against such defendants. (Huckill v. Marysville & B. S. R. Co., 72 Fed. Kep. 745.) Leave to dismiss as to certain defendants will not be granted after the court has rendered an opinion granting a motion to direct a verdict for defendants. (Wright v. Southern By. Co., 80 Fed. Kep. 260.) Plaintiff's pleadings.— The declaration may be amended at any stage of the trial if not actually com- mitted to the jury (Smith v. Barker, 3 Day, 312; Fed. Cas. No. 13013; Mack v. Porter, 25 U. S. App. 595; 72 Fed. Rep. 236); and a dismissal may be sti'icken ooit with leave to amend (liaunlng v. Dolph, 4 Wash. C. C. 624; Fed. Cas. No. 8073); if a declaration fails to allege the matter in controversy it may be amended (Lanning v. Dolph, 4 Wash. C. C. 624; Fed. Cas. No. 8073); and the claim for damages may be in- creased. (Gregg V. Gier, 4 McLean, 208; Fed. Cas. No. 5799; Good v. Martin, 1 Col. 406.) A party may amend his complaint so as to demand two-thirds in- stead of the entire property. (Van Zandt v. Argen- tine Min. etc. Co., 2 McCiary, 159; 8 Fed. Bep. 725.) 1169 PROCEDURE. §478 The amended declaration is sufficient if it arei-s citi- zenship in the present tense (Birdsall v. Perego, 5 Blatchf. 251; Fed. Cas. No. 1435); but a complainant cannot abandon his case and make a new and dif- ferent one by amendments (Sneed v. McCouU, 12 How. 407; Shields v. Barrow, 17 How. 130; Goodyear V, Bourn, 3 Blatchf. 260; Fed. Cas. No. 5561.) It will not be allowed to change from an action on the case to an action in debt (Ten Broeck V. Pendleton, 5 Craneh C. C. 464; Fed. Cas. No. 13827; Schoolfield v. Fitzhugh, 1 Craneh C. C. 108; Fed. Cas. No. 12474); but it is allowed when the cause of action is not changed (Fiedler v. Carpenter, 2 Wood. & M. 211; Fed. Cas. No. 4759); as by adding a new count of a kindred cause of action (Tiernan v. Woodruff, 5 Mc- Lean, 135; Fed. Cas. No. 14027; Bowen v. Needles Natl. Bank, 79 Fed. Rep. 49); and founded on the same transaction, and admitting the same pleading, defense, and proof. (Tiernan v. Woodruff, 5 McLean, 135; Fed. Cas. No. 14027; U. S. v. Batchelder, 9 Int. Eev. Rec. 98; Fed. Cas. No. 14541.) A declaration may be amended so as to refer to the right statute. (Rosenbach v. Drey fuss, 1 Fed. Rep. 391.)PlaiutifC may be allowed to withdraw a replication, and file a denial or plea (McGill v. Shehee, 1 Craneh C. C. 49; Fed. Cas. No. 8790): but he cannot amend his replication after the jury is sworn. (Clark v. Mayfield, 3 Craneh C. C. 353; Fed. Cas. No. 2858.) After demurrer sustained the plaintiff is not entitled as matter of right to amend his bill; it is within the discretion of the court to allow it (National Bank v. Carpenter, 101 U. S. 567); and the order denying the motion to amend is not reviewable if the record does not show what amendment was desired (National Bank v. Carpenter, 101 U. S. 567); but plaintiff may show a subsequent capacity to sue after demurrer sustained. (Swatzel V. Arnold, 1 Woolw. 383; Fed. Cas. No. 13682.) When §478 PROCEDURE. 1170 the nature of the suit is as not such as to give the court jurisdiction over a nonresident defendant brought in by sul>stituted service, the court has no power to amend the pleadings so as to give such jurisdiction. (Adams v. Heclischer, 80 Fed. Rep. 742.) When a complaint is amended its legal effect is the same as though it had originally read as amended. (Bowden v. Bm-nham, 19 U. S. App. 448; 59 Fed. Repw 752; Carnegie, Phipps & Co. v. Hulbert, 36 U. S. App. 81; 70 Fed. Rep. 209.) Defendant's pleading. — A defendant may amend his plea (McGill v. Shehee, 1 Cranch C.C.49;Fed.Ca3. No. 8796), or withdraw a plea (Melbiu'ne v. Kearnes, 1 Oi-anch C. C. 77; Fed. Cas. No. 9543; GiU v. Patten, 1 Cl-anch C. C. 114; Fed. Cas. No. 5427; Short v. Wilk- inson, 2 Cranch C. C. 22; Fed. Cas. No. 12810; or file an additional plea (Semmes v. O'Neale, 1 Cranch G. C. 246; Fed. Cas. No. 12«54; Teasdale v. Jordan, 2 Hayw. 28; Fed. Cas. No. 13814); or add an affidavit thereto (Loving v. Fairchild, 1 McLean, 333; Fed. Cas. No. 8556); or he may withdraw his plea and demur (Deakins v. Lee, 1 Cranch C. C. 442; F'ed. Cas. No. 3697; Krouse v. Sprogell, 1 Cranch C. C. 78; Fed. Cas. No. 7940); Alricks t. Slater, 1 Cranch C. C. 72; Fed. Cas. No. 259); but upon the overniling of the demur- rer the court may refuse to permit him to file an an- swer setting up a new cause of action. (Baltimore & O. R. R. Co. V. Camp, 81 Fed. Rep. 807.) Defend- ant may file a plea in abatement (Eberly v. Moore, 24 How. 147); or an additional plea, and amend those already filed. (Polard v. D wight, 4 Cranch, 421; Ma- rine Ins. Co. v. Hodgson, 6 Cranch, 206; U. S. v. Kirkpatrick, 9 Wheat. 720; Day v. Chism, 10 Wheat. 449.) New pleas should be allowed only where a good reason is shown for it, and on terms (Childs v. Lenig, 1 Wall. Jr. 305; Fed. Cas. No. 2680); but leave to file a special plea is allowed where it does not ap- 1171 PEOCEDUEE. §478 pear clearly bad (Gillen v. Patten, 1 Cranch 0. C. 114; Fed. Cas. No. 5427), and an insuflEicient plea will be rejected. (Kerr v. Force, 3 Cranch C. C. 8; Fed. Cas. No. 7730.) It will not be allowed if it essential- ly changes the ground of the defense, unless for co- gent reasons (Smith v. Babcoclj, 2 Woods & M. 246; Fed. Cas. No. 13009; Morehead v. Jones, 3 Wall. Jr. 306; Fed. Cas. No. 9791); and where the case is called for trial only when necessary for the justice of the case (Bullock v. Van Pelt, Bald. 463; Fed. Cas. No. 2131; Bastable v. Wilson, 1 Cranch C. C. 124; Fed. Cas. No. 1097; Allen v. Magi-uder, 3 Cranch C. C. 6; Fed. Cas. No. 230; Childs v. Lenig, 1 Wall. Jr. 305; Fed. Cas. No. 2680); and it cannot be filed after the jury has been sworn (Lanning v. Dolph, 4 Wash. C. C, 624; Fed. Cas. No. 8073), nor if judgment on demurrer has been affirmed on appeal. (Hodgson v. Marine Ins. Co., 1 Cranch 0. C. 569; Fed. Cas. No. 6566) ; nor permit defendant to amend his answer so as to deny a fact affirmatively passed uix)n and deter- mined by the supreme court (Walker v. Brown, 86 Fed. Rep. 364). The court will permit the withdrawal of a demuiTer (Sucldey v. Slade, 5 Cranch C. C. 123; Fed. Cas. No. 13587) ; but leave to amend a demurrer which does not go to the merits will be refused (Offutt v. Beatty. 1 Cranch C. C. 213; Fed. Cas. No. 10448). The fact of not setting out special defenses cannot be cured by filing special notice of defense (Doughty V. West, 2 Fish. Pat. Cas. 558; Fed. Cas. No. 4029). An amendment to the answer will not be allowed unless good cause and the use of diligence be shown (Lamb v. Parkman, 21 Law Kep. 589; Fed. Cas. No. 8019.) An admission cannot be withdrawn if there is no allegation of mistake in fact or of law (Morehead v. Jones, 3 Wall. Jr. 306; Fed. Cas. No, 9791; Waterman v. Merrill, 2 Abb. U. S. 478; Fed. Cas. No. 17258). The amendment of an answer by the assertion of an additional fact was re- § 478 PROCEDURE. 1 172 fused, where the fact was known, at the time the answer was filed (Cross v. Morgan, 6 Fed. Rep. 241). It Is not allowed where due diligence has not been exercised (Snead v. McCoull, 12 How. 407; Clifford v. Coleman, 13 Blatchf. 210, Fed. Cas. No. 2894; Ross V. Carpenter, 6 McLean, 382; Fed. Cas. No. 12072; Indiana Rubber Co. v. Phelps, 8 Blatchf. 185; Fed. Cas. No. 7025; Webster Loom Co. v. Higgins, 13 Blatchf. 340; Fed. Cas. No. 17341; Suydam v. Trues- dale, 6 McLean, 459; Fed. Cas. No. 13656); but it is not necessary that the new fact should be first estab- lished (Smith V. Babcocli, 2 Wood & M. 246; Fed. Cas. No. 13U09). At law.— An .amendment cannot be allowed to change the form of action (Scholfield v. Fitzhugh, 1 Cranch C. C. 108; Fed. Ca,s. No. 12474; but see The Harmony, 1 Gall. 123; Fed. Cas. No. 6081.) A declar- ation in ejectment may be amended by inserting a later date of the lease. (Walden v. Craig, 9 Wheat. 57G; Blacljwell v. Patton, 7 Cranch, 471.) The State of the demise may be amended (Blackwell v. Patton, 7 Cranch, 471; Smith v. Vaughan, 10 Peters, 367; Mc- Daniel v. Wailes, 4 Cranch C. C. 201; Fed. Cas. No. 8746; see Day v. Chism, 10 Wheat. 449); and it may be extended after judgment, but not except on notice. (Ledgerwood v. Pickett, 1 McLean, 143; Fed. Cas. No. 8175.) Stating it under a new title will not be al- lowed. (Gale V. Babcock, 4 Wash. C. C. 199; Fed. Cas. No. 5188.) If judgment in ejectment is rendered after the lapse of the terms stated in the demise, it may be amended by enlarging the term. (Walden v. Craig, 9 Wheat. 576.) In slander an amendment may be allowed changing the words charged (Dough- erty V. Bentley, 1 Cranch C. C. 219; Fed. Cas. No. 4024); and in libel an answer was allowed to be amended by inserting denials in respect to the amount of damages. (Goodyear D. V. Co. v. White, 1173 PROCEDUKE. §478 17 Blatchf. 5; Fed. Cas. No. 5601.) A libel or informa- tion at common law to enforce a forfeiture may be amended. (U. S. v. Stevenson, G Int. Rev. Rec. 221; Fed. Cas. No. 16398; U. S. v. Batchelder, 9 Int. Rev. Rec. 98; Fed. Cas. No. 14541; U. S. v. Barrels, 3 Int. Rev. Rec. 114; Fed. Cas. No. 16502; U. S. v. Whisliey 7 Phila. 003; Fed. Cas. No. 16671; U. S. v. .Casks, 1 Abb. U. S. 573; Fed. Cas. No. 15943; Anon., 1 Gall. 22; Fed. Cas. No. 444.) So a petition on a court of claims may be amended. (Molina v. U. S., 6 Ct. of 01. 269.) When the jury find larger damages than are laid in the declaration, and plaintiff aslis to amend, defendant is entitled to a new trial and to costs. (Etting V. Campbell, 5 Blatchf. 183; Fed. Cas. No. 4422.) In equity.— Amendments in mere matters of form, dates, or verbal inaccuracies, are liberally allowed. (Smith V, Babcocli, 3 Sum. 583; Fed. Cas. No. 13008.) The court has power in the interest of justice to per- mit an amendment to defective pleadings, both of bills and answers. (Neale v. Neales, 9 Wall. 1; Foote V. Silsby, 1 Blatchf. 545; Fed. Cas. No. 4918; Battle V. Mut. L. Ins. Co.. 10 Blatchf. 417; Fed. Cas. No. 1109; Caster v. Woods, Bald 289; Fed. Cas. No. 2505.) A bill may be amended by maliing new parties (Fisher v. Rutherford, Bald. 188; Fed. Cas. No. 4823); or by adding an averment of citizenship (Fisher v. Rutherford, Bald. 188; Fed. Cas. No. 4823; Keene v. Wheatley, 4 Phila. 157; Fed. Cas. No. 7644); even after interlocutory decree on demurrer (Fisher v. Rutherford, Bald. ISS; Fed Cas. No. 4823; Ililliard V. Brevoort. 4 McLean, 24; P'ed. Cas. No. 6505; Spof- ford V. Ritten, 4 McLean, 253; Fed. Cas. No. 13244); and even after remand from the supreme court (Jack- son V. Ashton, 10 Pet. 480); or by striking out an invitation to other creditors to come in at anj^ time before answer. (Yates v. Arden, 5 Cranch C. C. 526; §478 PEOCEDUKE. 1174 Fed. Cae. No. 18126.) So a bill may be amended by- adding a prayer for relief. (Horsburg v. Baker, 1 Pet. 232.) It may be amended so as to conform its special prayer to its real purpose. (.Partee v. Thomas, 11 Fed. Eep. 772; see Estiill t. Deckard, 4 Baxt. 497.) So if the facts authorize a redemption from a cred' itors' sale though the period for redemption is past, the court will permit an amendment to the prayer for relief. (Burgess v. Graftam, 10 Fed. Kep. 216.) If the amendment introduces a new case, defendant maj' plead in abatement or otherwise. (Keene v. Wheatley, 4 Phila. 157; Fed. Cas. No. 7644.) When due diligence is shown, the bill may be amended, even though the claim is stale. (Wharton v. Lowrey, 2 Dall. 364; Fisher v. Rutherford, Bald. 188; Fed. Cas. No. 4823; Copen v. Flesher, 1 Bond, 440; Fed. Cas. No. 3211.) Where a new cause of action is in- tended by an amendment, it may be allowed when it corresponds with the original bill (U, S. v. Distilled Spirits, 1 Abb. U. S. 573; Fed. Cas. No. 15943); but not when it introduces a new cause of action (The Cir- cassian, 2 Ben. 171; Fed. Cas. No. 2723; see Walden v. Bodley, 14 Pet. 156); but an amendment which changed the character of the bill Avas allowed in a special case, even after final decree. (The Tremolo Patent, 23 Wall. 518.) AVhere the original petition was lost, the court may allow the filing of a new petition. (Phillips v. Moore, 100 U. S. 208.) The amended bill should state so much of the original bill as is necessary. (Pierce v. West, 3 Wash. C. C. 354; Fed. Cas. No. 10910.) An amendment relates back to the filing of the original bill, and is incorporated into and is a part of it. (Gaylord v. Ft. W. M. & O. R. Co., 6 Biss. 286; Fed. Cas. No. 5284.) An amend- ment was allowed where it was -clear the cause was tried as it must have been tried had the bill been originally drawn as amended. (Tremaine v. Ilitch- 1175 PEOCEDURE. §478 cock, 23 "Wall. 518.) On a motion made before final argument, leave may be granted to amend an answer, so as to set up a new defense. (Snow v. Tapley, 13 Off. Gaz. 548; Fed. Gas. No. 13147.) An application to reform an answer is more favorably received tlian one to strilie it off and substitute another. (Gaste V, Wood, Bald. 289; Fed. Gas. No. 25U5.) In a par- ticular case an amendment was allowed so as to deny the validity of a patent (Morehead v. Jones, 3 Wall. Jr. 306; Fed. Gas. No. 9791); and an amendment in an answer, on the ground of mistake or error in the admission of an infringement, was denied. (Ruggles v. Eddy, 11 Blatchf. 524; Fed. Gas. No. 12118.) An amendment will not make evidence admissible which was taken under objections before admission. (Roberts V. Buck, 6 Fish. Pat. Gas. 325; Fed. Gas. N»o. 11897.) A motion to amend b^ adding new parties defendant after replication where plaintiff" was in a position to make the amendment before will not be allowed. (Glifford V. Goleman, 13 Blatchf. 210; Fed. Gas. No. 2894; see Gay lord v. Fort Wayne & Go., 6 Biss. 286; Fed. Gas. No. 5284.) A bill not framed with a view to compel the receiver and back tax collector to pro- ceed with the collection of taxes cannot be amended so as to obtain relief against such collector. (Meri- wether V. Garrett, 102 U. S. 472.) An amendment to an answer cannot be made after ' an interlocutory decree. (Wilson v. Tuberville, 2 Granch G. G. 27; Fed. Gas. No. 17844.) In equity the party amending may be required to pay costs. (Foote v. Silsby, 1 Blatchf. 545; Fed. Gas. No. 4918; Yates v. Arden, 5 Granch G. G. 526; Fed. Gas. No. 18126; Davis v. Leslie, 1 AbT). Adm. 123; Fed. Gas. No. 3639.) A motion to amend by averment on information and belief that the invention was in public use more than two years, denied. (Webster Loom Go. v. Higgings, 13 Blatchf. 349, 954; Fed. Gas. No. 17341.) §478 PROCEDURE. 1176 In admiralty.— A libel or information to enforce a forfeiture may be amended (The Caroline, 7 Crauch, 498; The Edward, 1 Wheat. 201); or a libel in rem for violation of a municipal law (The INlarianna Flora, 11 Wheat. 1; Anon., 1 Gall. 22; Fed. Cas. No. 444); and in case of smuggling, an amendment is allowed, to show that a foreign-owned vessel is liable to penalty for the infraction of duty laws. (U. S. v. The Queen, 4 Ben. 237; Fed. Cas. No. 16107.) An informal libel or information in rem may be am(^nded by leave of court. (The Caroline, 7 Cranch, 498.) A libel in admiralty may be amended as to parties (The Commander-in- Chief, 1 Wall. 43), by striking out names of libelants (Taylor v. Harwood, Taney, 437; Fed. Cas. No. 13794); as the name of the pilot (Newell v. Norton, 3 Wall. 257); or by discharging the master (United States v. The Queen, 11 Blatchf. 416; Fed. Cas. No. 16108); but it cannot be amended by striking out the name of the sole libelant and substituting another. (The Detroit, 1 Brown Adm. 141; Fed. Ca.s. No. 3832.) It may be amended by striking out unnecessary and impertinent allegations (Amer. Ins. Co. v. Johnson, Blatchf. & H. 9; Fed. Cas. No. 303), or immaterial averments as to ov.nership (U. S. v. The Queen, 4 Ben. 237; Fed. Cas. No. 16107); or by adding new allegations (Tlie Ed- ward, 1 AVheat. 201), or a new cause of forfeiture (U. S. V. Whiskey, 7 Fhila. 603; Fed. Cas. No. 16671); but not if barred by the statute of limitations (U. S. v. Casks, 1 Abl). U. S. 573; Fed. Cas. No. 15943; The Har- mony, 1 Gall. 123; Fed. Cas. No. 6081); or averments, as of negligence (The Deer, 4 Ben. 352; Fed. Cas. No. 3737); or an averment that it is prosecuted for all in- terested who may come in and establish their rights. (Amer. Ins. Co. v. Johnson, Blatchf. & H. 9; Fed. Cas. No. 303.) An amendment will be allowed to enal)le a party to ol)tain a contribution out of dam- ages due for the loss of the vessel. (The C. U. Fos- 1177 PEOCEDURE. § 478 ter, 1 Fed. Rep. 733.) A new cause of action may be introduced by amendment when it corresponds with tlie original bill (U. S. v. Dist. Spirits, 1 Abb. U. S. 573; Fed. Cas. No. 15943); but it cannot be amended so as to change from a lil)el in rem to a libel in per- sonam (The Young America, 1 Brown Adm. 463; P^'ed. Cas. No. 18178), or so as to increase the amount of the claim (Agnew v. Dorman, Taney, 388; Fed. Cas. No. 100), nor to show that a party was formerly owner, and sold with a covenant to discharge all liens. (The Prindiville, 1 Brown Adm. 485; Fed. Cas. No. 11435.) It may be amended by inserting a prayer for a decree against a party liable, even after a de- cree in rem has been rendered. (The Zenobia. Abb. Adm. 48; Fed. Cas. No. 18208.) An amendment to an answer will be allowed, though the effect be to de- feat the action and compel libelant to seek another forum. (Keppert v. Robinson, Taney, 492; Fed. Cas. No. 11703.) A supplemental libel alleging new matter, and an answer thereto, may be filed after appeal in the discretion of the court. (U. S. v. Dist. Spirits, 1 Abb. U. S. 573; Fed. Cas. No. 15943.) District courts, in the exercise of a sound discretion, may allow libels to be amended, even at the hearing (Davis v. Leslie, Abb. Adm. 123; Fed. Cas. No. 3639; The William Peun, 3 Wash. C. C. 484; Fed. Cas. No. 3373); or at any stage of the proceedings (The Hunter, 1 Ware, 249; Fed. Cas. No. 6904; Pettingill v. Dinsmore, 2 Ware, 212; Fed. Cas. 11045; Nevitt v. Clarke, Olcott, 316; The Deer. 4 Ben. 352; Fed. Cas. No. 3737; The St. John, 7 Blatchf. 220; Fed. Cas. No. 12224), till the termination of the cause (The Edwin Post, 6 Fed. Rep. 206), in the interest of substantial justice. (Pet- tingill V. Dinsmore, 2 Ware, 212; Fed. Cas. No. 11045; Anon, 1 Call. 22; Fed. Cas. No. 444.) It may be amended in the circuit court (The Sarah Ann, 2 Sum. 206; Fed. Cas. No. 12342. The Morton, 1 Brown Adm. Fed. Prog— 99. J; 478 PROCEDURE. 1178 137; Fed. Cas. No. 9864); and a defect in the signa- ture will not be regarded if it appears it was verified (Hardy v. Moore, 4 Fed. Rep. 843); it may be allowed without waiting for the disposition of the exceptions thereto. (The Western Metropolis, 28 How. Pr. 283.) A supplemental libel and an answer thereto may be filed after appeal. (The Boston, 1 Sum. 328; Fed. Cas. No. 1073; Lamb v. Parkman, 21 Law Rep. 589.) So in collision cases (The Pennsylvania. 12 Blatchf. 67; Fed. Cas. No. 10951), and after reversal where there is a want of a substantial averment (The Anne V. U. S., 7 Cranch, 570); or even after the case has been remanded from the supreme court (The Caroline V. U. S., 7 Cranch, 490; The Anne, 7 Cranch, 570; The Mary Ann, 8 Wheat. 380); but an amendment in an admiralty case before the court of appeals cannot in- troduce a new subject of controversy. (Houseman V. The North Carolina, 15 Peters, 40.) Am^endment on removal.— This section, both in let- ter and spirit, confers the power and makes it the duty of courts to cure defects in the record by en- larging the time for filing a transcript on the removal of a cause from a State court. (Woolridge v. Mc- Kenna, 8 Fed. Rep. 603.) So an amended transcript may be filed disclosing the requisite citizenship. (Kaeizer v. Illinois Cent. R. R. Co., 6 Fed. Rep. 1; 2 McCrary, 187.) So the declaration may be amended by inserting new counts for the same cause of action. (West V. Smith. 101 U. S. 263.) A sheriff may not amend his return of service of process in a suit begun in the State court, after removal (Hawkins v. Peirce, 79 Fed. Rep. 452). Amendment of verdict.— The words "or course of proceeding whatever" are broad enough to include verdicts (Parks v. Turner, 12 How. 39); so if a ver- dict is general, it may be amended so. as to apply to 1179 PROCEDURE. §478 the count under which the evidence is given. (Mathe- son V. Grant, 2 How. 263; Stockton v. Bishop, 4 How. 155.) Leave may be granted to amend a verdict in replevin after the jury had returned and another cause had been tried. (Argueles v. Wood, 2 Cranch C. C. 579; Fed. Gas. No. 520.) A verdict in assumpsit "that defendant is guilty in manner and form as al- leged" is amendable. (Lincoln v. Iron Go., 103 U. S. 412.) On a stipulation that the jury, if the court be not in session when they agree upon their verdict, may sign, seal, and deliver it to the officer in charge and disperse, the entry of the verdict in proper form is allowed by this section. (Koon v. Ins. Go., 104 U. S. lOG; S. G., 3 Morr. Trans. 125.) The court may enter the verdict in such form as to give legal effect to what the jury unmistaliably found, under Rev. Stat., sec. 954, and the Practice Act of Illinois. (Koon v. Phoenix Mut. L. Ins. Co., 104 U. S. lOG. The verdict may be amended to correct a mistake, in the nature of a clerical error, in announcing or making the record of the verdict actually agreed upon (Pelzer Mfg. Go. V. Hamburg-Bremen Fire Ins. Go., 71 Fed. Rep. 82G); and in a proceeding in equity to remedy a mistake in announcing the verdict of a jury the jurors are competent witnesses to prove that the verdict read out in the court by their foreman was not their ver- dict, but the result of an oversight by him in making the announcement (Hamburg-Bremen Fire Ins. Co. v. Pelzer Mfg. Co., 42 U.' S. App. 123; 76 Fed. Rep. 479). Amendments after verdict.— A defective pleading may be cured after verdict (Garland v. Davis. 4 How. 131; Clark v. Sohier, 1 Wood & M. 308; Fed. Gas. No. 2835); and the rule that a defective statement of a good cause of action is cured by the verdict extends to penal actions (Smith v. U. S., 1 Gall. 261; Fed. Gas. No. 13122.) All circumstances necessary in form or § 478 PROCEDURE. 1180 in siilistance to make out a cause of action, though impeifpctly stated, must be proved at the trial; hence the defect is cured by the verdict (Pearson v. Bank. 1 Petei-s. 89; ^Nlatheson v. Grant, 2 How. 2(33; Stockton V. Bishop, 4 How. 155; De Sobry v. Nicholson, 3 Wall. 420; Corcoran v. Dougherty, 4 Cranch C. C. 205; Fed. Cas. No. 3227; Scull v. Higgins, Hemp. 90; Fed. Cas. No. 12570 a; Stanley v. Whipple, 2 McLean, 35; Fed. Cas. No. 1.3286; Kemble v. Lull, 3 McLean, 272; Fed. Cas. No. 7683; Gray v. James, Peters C. C. 476; Fed. Cas. No. 5719; Dobson V. Campbell, 1 Sum. 319; Fed. Cas. No. 3945); as an allegation under- a videlicet (Ingle v. Collard. 1 Cranch C. C. 152; Fed. Cas. No. 7013; W\)odward v. Brown, 13 Petei*s, 1); or the omission to join a party as plaintiff who ought to have been joined ((ireenleaf v. Schell, 6 Blatchf. 225; Fed. Cas. No. 5782); or to give the time when the injury was done (Stockton r. Bishop, 4 How. 155); or to aver the value of the foreign money in an action on a bill of exchange (Brown v. Barry, 3 Dall. 365), as a declaration in debt is in the debet as well as the detinet (Brown v. Barry, 3 Dall. 208; Gardiner V. Lindo, 1 Cranch C. C. 78; Fed. Cas. No. 5231); but if it omits to show matters essential to the jiu'isdiction (Smith V. Allyn. 1 Paine, 486; Fed. Cas. No. 13065), or to state a cause of action, it is not cured by the ver- dict (Smith V. Allyn, 1 Paine, 486; Fed. Cas. No. 13065; Henner v. B:ink, !> Wheat. 581; McDonald v. Hobson, 7 How. 745; Washington r. Ogden, 1 Black. 450); or if a libel in rem does not show the commis- sion of an offense. (See The Virgin, Peters C. C. 7; Fed. Cas. No. 16625.) An alternative allegation in an action of debt for a penalty can only be objected to by a demurrer, and is cured by a verdict. (.lacobi v. U. S., 1 Brock. 520; Fed. Cas. No. 7157.) An objec- tion that the declai'ation does not make profert of let- ters of administration cannot be taken after verdict. 1181 PEOCEDURE. § 478 (Gjirdner v. Lindo, 1 Cranch C. C. 78; Fed. Cas. No. 5231; Math^sou v. Grant, 2 How. 263.) If a declara- tiou merely assigns the uonpayraeut of the penal sum on a bond, an omission to assign a special breach of the condition, in a replication to a plea of perform- ance, is cured by a verdict. (Minor v. Mechanics" Bank, 1 Peters, 46.) A verdict will cure a discon- tinuance caused by the failure of the executor to ap- pear within the proper time after suggestion of the death of the plaintiff. (Brent v. Coyle, 2 Cranch C. C. 287; Fed. Cas. No. 1837.) An allegation under a vide- licet may be disregarded. If the breach alleged is not a h^e. ch of the covenant, error is not cured by verdict. (Ingle V. Collard, 1 Cranch C. C. 152; Fed. Cas. No. 7043.) A plea of non assumpsit, in an action on the case, is not cured bj' a verdict. (Garland v. Davis, 4 How. 131.) Where two pleas present substantially the same issue, the fact that an immaterial issue is joined on the replication to one plea is no reason for arresting a judgment and awarding a repleader (Ers- kine v. Hornbach, 14 Wall. 613; I'egram v. U. S., 1 Brock. 261; Fed. Cas. No. 10906); so if plaintiff replies to only one. (Laber v. Cooper, 7 Wall. 565.) Al- though a decision sustaining a demurrer to a plea is erroneous, yet if the defense can be pre- sented under another plea filed, the judgment will be good. (.Tunction R. Co. v. Bank, 12 Wall. 226.) Where there is a defect in a pleading, yet if the issue be such as required proof of the facts so defectively stated oi- omiited, and without Avhich it is not to be presumed the judge would have directed a verdict, such defect is cured. (Lincoln Township v. Cambria Iron Co., 103 U. S. 415.) A variance between the writ and the declaration as to the return day is amenable. (Wilder v. McCormick, 2 Blatchf. 31; Fed. Gas. No. 17650.) Judgments and decrees.— .Tudgments may be cor- rected after the end of the term: 1. Where the neces- § 478 PROCEDUEK. 1182 sity for correction and the matter from which it is to be made appear upon the face of the record; 2. Where justice requires a correction to be made from matters resting in the recollection of the judge or in the evi- dence aliunde. In the former case notice is unneces- sary; in the latter case it is necessary if it rests on evidence aliunde. (O'Dell v. Reynolds, 37 U. S. App. 447; 70 Fed. Rep. 6"t6.) All judgments, decrees, or or- ders are under control of the court which pronounces them during the term at which they are rendered, and may be set aside, vacated or modified. (Bronson v. Schulten, 104 U. S. 410; Aetna L. Ins. Co. v. Board of Commi-s., 79 Fed., Rep. 575); as an order allowing an appeal when the appeal has not been perfected. (Asp- en Mining & S. Co. v. Billings, 150 U. S. 31.) But amendments to judgments or decrees cannot be made except as to formal defects (Albers v. Whitney, 1 Story, 310; Fed. Cas. No. 137), where the entry was eiToneously made (U. S. v. Bennett, Hoff. 281; Fed. Oas. No. 14573), or where there is a verbal mistalie of the clerk in using a supei-fluity of words in entering judgment (Shaw v. Railroad Co., 101 U. S. 557; Barnes V. Lee, 1 Ci-anch C. C. 471; Fed. Cas. No. 1018); or where by a misprision of tlie clerk the judgment had not l>een entered accoi'ding to the declaration (Wood- ward V. Brown. 13 Peters, 1), or where the clerk had omitted to enter judgment allowing interest (Bank v. Wistar. 3 Peters, 431); or if a jud.^ment by confession is entered without declaration or rule to plead (Ault T. Elliot, 2 Cranch C. C. 372; Fed. Cas. No. 655); or if made by only one of several joint defendants (Hyler V. Hyatt, 2 Cranch C. C. 633; Fed. Cas. No. 6970; New- ton V. Weaver, 2 Cranch C. C. 085; Fed. Cas. No. 10193; see Ringgold v. Elliot, 2 Cranch C. C. 462; Fed. Cas. No. 11844); or if entered in a wrong case (Pierce r. Ttirner. 1 Cranch C. C. 433; Fed. Cas. No. 11148); or if made by an attorney by mistak'e. (Bank 1183 PBOCEDUKE. §478 r. McKinney, 3 Cranch C. C. 173; Fed. Cas. No. 926.) A judgment may be amended by sti-iking out a part which the court has no authority to malie (The Hiram Wood, 6 Chic. L. N. 135); or wliere it was entei-ed by mistalie (U. S. v. Fearson, 5 Oranch C. C. 95; Fed. Gas. No. 15081); any clerical error may be corrected after the lapse of the term (Scott v. Blaine, Bald. 287; Fed. Cas. No. 12525; Brush v.Robbins, 3 McLean, 486; Fed. Cas. No. 2059); as by maliiug it payable in gold or silver coin (Cheang Kee v. U. S., 3 Wall. 320). A judgment or decree cannot be stiiclien out for error of law after the lapse of the term at which it is ren- dered (Brush V. Bobbins, 3 McLean, 486; Fed. Cas. No. 2059; Wood v. Luse, 4 McLean, 254; Fed. Cas. No. 17950; Scott v. Blaine, Bald. 287; Fed. Cas. No. 12525; Doe v. Waterloo Min. Co., 60 Fed. Rep. 643; Austin T. Riley, 55 Fed. Rep. 833; Klever v. Sewell, 22 U. S. App. 458; 65 Fed. Rep. 373; Craven v. Cana- dian Pac. Ry. Co., 62 Fed. Rep. 170); but if the judge has been induced to enter a decree by false repre- sentation as to its character, and which he did not intend to enter, the decree may be set aside after the term. (U. S. v. Williams, 32 U. S. App. 126; 67 Fed. Rep. 384; Fisher v. Simon, 32 U. S. App. 132; 67 Fed. Rep. 387.) But if irregularly entered it may be set aside (Union Banli v. Crittenden, 2 Cranch C. C. ZiS; Fed. Oas. No. 14354); as where a judgment was en- tered in vacation the court properly vacated it at the next term and entered a new judgment to the same effect (Abraham v. Levy, 30 U. S. App. 713; 72 Fed. Rep. 124); or for a mistalie in the assessment of dam- ages (Crooks V. Maxwell, 6 Blatchf. 468; Fed. Cas. No. 3415); or if coinsidered as a nullity. (Wood V. Luse, 4 McLean, 254; Fed. Cas. No. 17950; Harris v. Hardeman, 14 How. 334.) Though the court cannot change the essential parts of a de- cree after the term at wliich it is entered, yet § 478 PKOCEDUBE. 118i it may subsequently amend the deci'ee as to the mode of execution, manner of sale, time of publica- tion, and distribution of pi'oceeds (Turner v. I. B. & W. R. Co., 8 Biss. 380; Fed. Cas. No. 14259); but aoi in- terlocutory decree is always open to amendment and correction. (De Flovez v. Reynolds, 8 Fed. Rep. 434; 17 Blatchf. 436.) The rule that a cause may not be reheard after the term in which it was oi'iginally de- cided does not affect a proceeding in another cause to review the original suit. (Jaclcsou v. Muuks, 58 Fed. Rep. 59(5.) Where an order has been entered that the bill be talvcn pro coufesso, defendant, even if he has entered an appearance, is not entitled to notice of subsequent application for final decree, when such application is made in open court. (Austin v. Riley, 55 Ved. Rep. 833.) The power of amendment after term does not extend to the coiTection of judicial er- rors. (Elder r. Richmond G. & S. M. Co., 19 U. S. App. IIS; 58 Fed. Rep. 53t).) On error or appeal.— An amendment may be made in the appellate tribunal by agreement of parties (Fletcher v. Peck, 6 Cranch, 137; Matheson v. Grant, 2 How. 2G3; Anonymous, 1 Gall. 25; Fed. Cas. No. 444; Kennedy v. Bank, 8 How. .j8(j); but not so as to in- troduce a new controversy. (The North Carolina, 15 Peters, 50; The John Jay, 3 Blatchf. U8; Fed. Cas. No. 7352.) So if the record does not contain the proper allegation of eitizeuship it may, be amended. (Iven- nedy v. Bank, 8 How. ti07.} On reversing a judgment the appellate court will not direct the lower court to allow the proceedings to be amended (Sheehy v.Mand- eville, 6 Cranch, 207, note); so as to the allowance of a repleader; but it may remand the cause that the pleading may be amended. (Garland v. Davis, 4 How. 53.) The power over mere matters of form extends to the appellate court, where the defects are not to be i i 185 PROCEDUBE. § 478 regarded as matters of error (Smith v. Allyn, 1 Paine, 456; Fed. Gas. No. 130G4); such defects being disi-e- garded (Stockton v. Bishop, 4 How. 155); so of an Immaterial allegation under a videlicet (Steinham v. U. S., 2 Paine, 16S; Fed. Gas. No. 13355; U. S. t. Bum- ham, 1 Mason, 57); or where there is a. formal sub- mission (Banli V. Guttschliclv, 14 Peters, 19); or a de- fective name (Chittenden v. Davis, Hemp. 96; Fed. Cas. No. 3393 b; Conrad v. Griffey, 11 How. 480); OT a variance between averments and findings (Rail- road Co, V. Lindsay, 4 Wall. 650); or an error on trying issues out of their order (Townsend v. Jemison, 7 How. 706; Morsell v. Hall, 13 How. 212; or a formal defect in the verdict if it is otherwise sufficient to sustain the judgment (Downey V. Hicks, 14 How. 240); or a general verdict on dis- tinct issues (Roach v. Hulings, 16 Peters, 319); or where the verdict and judgment are only on one de- mise out of several. (Van Ness v. Bank, 13 Peters, 17.) So if a declaration contains a special count, and the common counts, judgment may be sustained on the common counts (Bank v. Moss, 6 How. 31); or where there is an omission to join issue on one out of two avowals in replevin (Dermott v. Wallach, 1 Black, 96); or where there is an omission of a similiter (Dermott v. Wallach, 1 Black, 90); or the omission to obtain leave to file an amended bill, or to file a repli- cation. (Clements v. Moore, 6 Wall. 299.) An omis- sion on an appeal does not require the dismissal of the appeal, but the court may aid the appeal on terms. (Dayton v. Lash, 94 U. S. 112; see Vansant v. Gas Light Co., 99 U. S. 213.) A party will be allowed to enter his remittitur in the supreme court in further- ance of justice, where it appears that one of the bills sued on had been omitted to be described in the orig- inal declai ation. The appellate court may correct an error in strikiug out defendant's pleading which con- §478 PROCEDURE. 1186 stitutes a ground of defense (Hozey v. Buchanan, 16 Peters, 2iri.i; or may permit tlie addition of counts under the statute in an action for a forfeiture (U. S. V. Whiskey, 11 Int. Kev. Rec. 109; Fed. Cas. No. 16f>71); or allow amendments so as to let in new evi- dence or grounds of defense in the circuit court in an admiralty case. (Keppert v. Robinson, Taney, 492; Fed. Cas. No. 11703.) The appellate court may allow an amendment, although it concludes against the form of the statute in an offense created by a single statute. (Kenricks v. U. S., 1 Gall. 268; Fed. Cas. No. 7713.) After a writ of eiTor the court will not grant leare to amend in a matter of substance. (The Philadelphia n, 21 U. S. App. 90; 60 Fed. Kep. 423; Marsteller v. McClean, 2 Cranch C. C. 8; Ftni. Cas. No. 9140.) If a declaration in debt for a penalty does not conclude against the form of the statute, it is bad on writ of ei-ror. (Smith v. U. S., 1 Gall. 261; Fed. Cas. No. 13122.) The court will not set aside at a subsequent term the order of dismissal, and grant leave to file the record and docket the case. (Selma & Mer. R. R. Co. v. Louisiana Nat. Bank, 94 U. S. 253.) So the court denied the allowance of an amendment making a new party where the question made by the assignment of error had been settled by repeated de- cisions. (Pearson v. Yawdell. 95 U. S. 294.) The court refuses to consider an amended bill which does not appear to have been filed by leave of court (Terry v. McLure, 103 U. S. 442; Godfrey v. Terry, 97 U. S. 171.) If a party omitted to file a replication in a special plea, he may be allowed to file it nunc pro tunc, although the case is on appeal. (Wilcox v. U. S.. 6 Ct. of Ol. 78.) Amendment of record.— The courts may by nunc pro tunc orders supply omissions in the record of what was actually done, but which was not entered 11S7 PROCEDURE. §476 on the record, by reason of mistake or neglect; but they cannot thereby modify ordere previously made, or make an order which they intended to make at a previous time, but did not in fact make, so as to bind the parties as of the date to which the order relates; and especially is this so in matters I'elating to crim- inal proceedings. (Ex parte Buskirk, 25 U. S. App. 613; 72 Fed. Eep. 14.) A clerical error in any part of the record may be amended. (Doane v. Glenn, 1 Colo. 454; Fidelity Ins. Co. v. Roanoke Iron Co., 84 Fed. Rep. 744; Cobb v. Ho ward, 10 N.Y.Leg. Obs. 353; Fed. Cas. No. 2025), even after lapse of the term (Doane v. Glenn, 1 Colo. 454); as a mistake in entering verdict on the merits (Tomes v. Redfleld, 7 Blatchf. 139; Fed. Cas. No. 14085); or on entering judgment (Cromwell V. Bank. 2 Wall. Jr. 570; Fed. Cas. No. 3409; Coelle v. Lockhead, Hemp. 194; Fed. Cas. No. 2943 a); or the omission to enter an order (U. S. v. Smith, 1 Cranch C. C. 127; Fed. Cas. No. 16324), as for a majidamus (Supervisors v. Duraut, 9 Wall. 736), or the allowance of time to file exceptions. (Doane v. Glenn, 1 Colo. 454.) A mistake in an entry or a misprision may be stricken out at a subsequent term (Shoppard v. Wil- son, 6 How. 260); but a mistake in the docket that the judgment is for the use of another cannot be stricken out after lapse of the term. (Bradley v. El- iot, 5 Cranch C. C. 293; Fed. Cas. No. 1778.) A mis- take in the name of defendant in a commission may be amended (Boone v. Janney, 2 Cranch C. C. 312; Fed. Cas. No. 1642): but a mistake in the name of the plaintiff cannot be amended where the record show.% matter by which it can be amended. (Albers v. Whit- ney, 1 StoiT, 310; Fed. Cas. No. 137.) A wrong title inserted on a commission may be amended (Keene V. Meade. 3 Peters, 1); or a defect in an affidavit to an account filed with the declaration. (Tilley v. Tharp, 3 Cranch C. C. 290; Fed. Cas. No. 14047. If § 479 PROCEDURE. 118S important to give consistency to the minutes and ren- der the ultimate action of the court connect, amend- ments may be allowed. (Amer. Ins. etc. Co. v. John- son. Blatchf. & II. 9; Fed. Oas. No. 303; The Martha. 1 Blatchf. & H. 151; Fed. Cas. No. 9144; Nevitt v. Clarke, Olcott. 316; Fed, Cas. No. 10138.) A material amendment of the record cannot be made aftea- wi'lt of error bixtught. (U. S. v. Hooe, 1 Cranch C. C. 116; Fed. Cas. No. 15386; Michigan Ins. Bank v. Eldred, 143 U. S. 293.) A writ of error is amendable (Course V. Stead, 4 Dail. 22) by filing a blank left for the return day. (Mossman v. Higginson, 4 Dail. 12.) So a clerical mistake may be amended by the citation. (McVeigh v. U. S., 8 Wall. 640.) A bill of exceptions may be amended during the term. (Walton v. U. S.. 9 Wheat. 651.) § 479. Death of parties. — "When either of the parties, whether plaintitf, petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administra- tor of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to filial 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 ad- ministrator, having been duly served with a scire facias from the ollice 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 part}', in tlie same manner as if the executor or administrator had voluntarily 1189 PROCEDURE, S 480 made himself a party. The executor or adminis- trator 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. (Rev. Stats, sec. 955.) § 480. Revivor on death of party. — That when- ever either party to a final judgment or decree which has been or shall be rendered in any circuit court has died or shall die before the time allowed for taking an appeal or bringing a writ of error has expired, it shall not be necessary to revive the suit by any formal proceedings aforesaid. The representative of such deceased party may file in the office of the clerk of such circuit court a duly certified copy of his appointment, and thereupon may enter an appeal or bring writ of error as the party he represents might have done. If the party in whose favor such judgment or decree is rendered has died before appeal taken or writ of error brought, notice to his representatives shall be given from the supreme court, as provided in case of the death of a party after appeal taken or writ of error brought. (18 U. S. Stats. 473; 1 Sup. Eev. Stats. 177.) Revivor on death of party.— The common-law rule that qui tarn actions on penal statutes do not survive prevails in the Federal courts as to actions on penal statutes of the United States, even in States where the statutes of the State allow suits on State peual statutes after the death of the offender. (Schreiber v. Sharpless, 110 U. S. 76.) The survivability of a right of action is governed by the local law. (Warren v. Fed. Proc— 100. §480 PBOCEDUBB. 1190 Fui-stenheim, 35 Fed. Rep. (i91.) In case of injuries causing death a liiiht of action survives. (Rev. Stats., sees. 522.5, 522lj; St. Louis etc. R. Ck». v. McBride, 141 U. S. 127.) Revival of suit.— This section saves every action from abatement by deatli of the parties where the cause of action sui-vives, and the survival of the cause must depend on the local law. (Trigg v. Conway, Hemp. 711; Fed. Cas. No. 14173; Hatfield v. Bushuell, 1 Blatchf. 393; Fed. Cas. No. 6211.) It is confined to personal actions, as the power to prosecute or defend is not given to the heir or devisee; so a real action abates by death, and cannot be revived against the heir. (Green v. Watkins, 6 Wheat. 280; Maclier v. Thomas, 7 Wheat. 530.) The revivor of the suit by or against the representative of deceased is a matter of right, and is a mere continuation of the original suit, without distinction as to citizenship of such repre- sentative (Clarlie v. Matliewson, 12 Pet. 1(>4); but this section does not relate to or affect suits in admiralty. (The James A. Wright, 10 Blatchf. 100; Fed. Cas. No. 7191; but see The Norway, 1 Ben. 493; Fed. Cas. No. 10357.) The mode of continuing a suit in the name of the executor or administrator is a substitute for the continuance by Journey's account. (Richards v. Md. Ins. Co., 8 Cranch, 84.) If complainant died before entry of deci'ee from Avhich an appeal was taken, it is no gi-ouud for abating the suit after return of the mandate. (Story v. Livingston, 13 Pet. 359.) In aU cases of the death of a party before fimil judgment the proceedings are to be exactly a.s if the executor or administrator were a voluntai-y party to the suit. (Hatch V. Eustis, 1 Gall. 160; Fed. Cas. No. 6207.) He may be made a party on liis own motion without issu- ing a scire facias (Wilson v. Codman, 3 Cranch, 193; Griswold v. Hill, 1 Paine, 483; Fed. Cas. No. 5^34); but he must show that he is executor, s^nd produce his 1191 PEOCEDUEE. § 480 letters testamentary if required by the adverse party. (Wilson V. Codman, 3 Crancb, 193.) If he voluntarily makes himself a party, the adverse pai-ty is not enti- tled to a continuance. (Wilson v. Codman, 3 Cranch, 193; Griswold v. Hill, 1 Paine, 483; Fed. Cas. No. 5834.) The appearance of the heir under the rule to show cause why a real action should not be revived against him will not cure the error of such revivor. (Macker v. Thomas, 7 Wheat. 530.) Upon a bill to revive, the sole questions are as to the competency of the parties and the correctness of the frame of the bill. (Bettes v. Dana, 2 Sum. 383; Fed. Oas. No. 1368.) It cannot be brought against an administrator of a defendant who neither appeared nor was served with process (U. S. v. Fields, 4 Blatchf. 326; Fed. Cas. No. 15089), nor against one in a State other than that fi-om which their authority proceeds. (Melius v. Thompson, 1 Cliff. 125; Fed. Cas. No. 9405.) The abatement of a scire facias in the name of a feme sole as administratrix who afterward man-ies is no bar to a scire facias in the name of husband and wife. (McCoul V. Lekamp, 2 Wheat. 111.) A general denial of each allegation of a writ is a form of defense not permitted in scire facias to revive a judgment (Won- derly v. Lafayette County, 77 Fed. Rep. 665.) The proper method of reviving a suit in equity to recover real estate, which suit has abated because of death of a party plaintiff, is by a supplemental bill (Currell v. Villars, 72 Fed. Rep. 330.) The fact that one is suing in a State court upon a judgment of a Federal court will not prevent him from- proceeding at the same time in the Federal court to revive the judgment by scire facias. (Wonderly v. Lafayette County, 77 Fed. Rep. 665.) A proceeding to revive a judgment being a collateral proceeding, no error in such judgment is available against it if the court which rendered it was duly organized and had jurisdiction of the subject ^§ 481-482 PEOCEDURK. 1192 matter and of the parties. (Foster v. Crawford, 80 Fed. Rep. 991.) § 481. Whenoneof several plaintiffs or defend- ants dies. — If there are two or more plaintiffs or defendants, in a suit where the cause of action sur- vives to the sui-viving plaintiff or against tlie sur- viving 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. (Rev. Stats, sec. 956.) § 482. Delinquents for public money. — When suit is brought by the United States against any revenue oflicer or other person accountable for public money, who neglects or refuses to pay into the treasury the sum or balance reported to be due to the United States, upon the adjustment of his account it shall be the duty of the court to grant judgment at the return term, upon motion, unless the defendant, in open court (the United States attorney being present), makes and sub- scribes an oath that he is equitably entitled to credits which had been, previous to the commence- ment of the suit, submitted to the accounting offi- cers 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 con- 1193 PROCEDURE. §§483-484 tinuance may also be granted when the suit is brought upon a bond or other sealed instrument, and the defendant pleads non est factum, or makes a motion to the court, verifying such plea or mo- '-'on by his oath, and the com-t thereupon requires the production of the original bond, contract, or other paper certified in the affidavit. And no con- tinuance shall be granted except as herein pro- vided. (Eev. Stats, sec. 957.) Note.— See U. S. v. Hawkins, 10 Pet. 125. An officer against wliom summary proceedings are insti- tuted may set off tne fees for services to government rendered by him. (U. S. v. Mann, 2 Brock. 9; Fed. Cas. No. 15716.) § 483. Judgment for suits under postal laws. — 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 contin- uance, if, on his statement, the court deems it ex- pedient; 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. (Eev. Stats, sec. 958.) § 484. Judgment for suits on debentures. — In all suits for the recovery of money upon deben- §§485-486 rnocEDUBE, 1194 tures 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. (Kev. Stats, sec. 959.) § 485. Judgments in suits on bonds for recov- ery of duties. — 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 de- fendant, in open court (the United States attorney being present), makes oath that an error has been committed in the liquidation of the duties demand- ed 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 jus- tice. (Kev. Stats, sec. 960.) Note. — Wliere there is a real defense, an oppor- tunity to obtain evidence by a continuance must be ffiven. (U. S. v. Phelps, 8 Peters, 700.) § 486. Judgment for sum due in equity on bonds, etc. — In all suits brought to recover the forfeiture annexed to any articles of agreement, 1195 PEOCEDUEE, § 487 covenant, bond, or other specialty, where the for- feiture, breach, or nonperformance appears by the default or confession of the defendant, or upoji demurrer, the court shall render judgment for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, it shall, if either of the parties request it, be assessed by a jury. (Kev. Stats, sec. 961.) Note.— This section is confined to cases of default, confession and demurrer (Farrar v. U. S., 5 Peters, 373), and does not apply to cases heard on agreed fads. (Ives v. The Merchants' Bank, 12 How. 159.) Where damages exceed the penalty of the bonds, judgment should be for the penalty only. (Fai-rar v. U. S., 5 Peters, 373.) § 487. Judgment for duties, etc. — In all suits by the United States for the recovery of duties upon imports, or of penalties for the nonpayment thereof, the judgment shall recite that it is ren- dered for duties, and such judgment, with inter- est thereon and costs, shall be payable in the coin by law receivable for duties; and tlie 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. [See sec. 3014.] (Eev. Stats, sec. 962.) §§ 488 491 PEOCEDUKE. 1193 § 488. Interest on bonds for duties. — Upon all bonds on which suits are brouglit for the recovery of duties, interest shall be allowed, at the rate of six per centum a year, from the time when said balance became due. (Rev. Stats, sec. 963.) § 489. Interest on balances due postofiice de- partment. — In all suits for balances due to tha postoliice department, interest thereon shall be recovered from the time of the default at the rate of six per centum a year. (Rev. Stats, sec. 96-1:.) § 490. Interest on debentures. — 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. (Rev. Stats, sec. 965.) § 491. Interest on judgments. — Interest shall be allowed on all judgments in civil causes recov- ered in a circuit or district court, and may be lev- ied by the marshal under process of execution is- sued 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 recov- ered in the courts of such State. (Rev. Stats, sec. 966.) Interest.-- This section does not embrace eases In equity nor judgments or decrees of tlie supremo court. I'crlcius V. Fourniquet, 14 How. 328.) It does not ap- 1197 PHOCEDTJEB, g 493 ply to judgments against the United States. (U. S. V. Sherman, 98 U. S. 505.) The interest on decrees is the same as that in the State courts. (Railroad Co. V. Turrill, 101 U. S. 836.) A judgment beai's interest by force of law, although it may not purport to carry interest. (Perkins v. Fourulquet, 14 How. 328.) The liability of defendant is not only for the amount of the judgment, but for interest on it. (White v. Ar- thur, 10 Fed. Rep. 83; 20 Blatchf. 237.) This section does not exclude the idea of a power in the State to allow interest on verdicts; it is a right of which the successful plaintiff cannot be deprived by removal of his case to a Federal court. (Massachusetts Ben. Assn. V. Miles, 137 U. S, 689.) Where judgment was entered generally for no definite sum. and the amount actually with interest exceeded five thousand dollara, this court has jurisdiction. (Massachusetts Ben. Assn. V. Miles, 137 U. S. 689.) § 492. Judgments — Lien and record of. — That judgments and decrees rendered in a circuit or dis- trict court of the United States within any State shall be liens on property throughout such State in the same manner and to the same extent and under the same conditions only as if such judg- ments and decrees had been rendered by a court of general jurisdiction of such State; provided, that whenever the laws of any State require a judgment or decree of a State court to be registered, record- ed, docketed, indexed, or any other thing to be done, in a particular manner, or in a certain office or county or parish in the State of Louisiana be- fore a lien shall attach, this act shall be applicable therein whenever, and only whenever, the laws of such State shall authorize the judgments and de- §§ 493-404 PROCEDURK 1198 crees of the United States courts to be registered, recorded, docketed, indexed, or otherwise con- formed to the rules and requirements relating to the judgments and decrees of the courts of the State. (25 U. S. Stats. 357, sec. 1.) § 493. Record in Louisiana. — Nothing herein shall be construed to require the docketing of a judgment or decree of a United States court, or the filing of a transcript thereof, in any State office within the same county or the same parish in the State of Louisiana in which the Judgment or de- cree is rendered, in order that such judgment or decree may be a lien on any property within such county, if the clerk of the United States court be required by law to have a permanent office and a judgment record open at all times for public in- spection in such county or parish. (25 U. S. Stats. 357, sec. 3; as amended 28 U. S. Stats. 813.) § 494. Effect of judgments in California. — The passage of this act, to "Create the United States judicial district of Southern California," shall not have the effect to destroy or impair the lien of any judgment or decree rendered in the circuit or district court of the United States for the present di.strict of California prior to this act taking efTcct; and final process on any judgment or decree entered in the circuit or district court of the United States for the district of California, or which shall be entered therein prior to this act taking effect, and all other process for the enforce- ment of any order of said courts, respectively, in 1199 PEOCEDURE. §495 any cause or proceeding now pending therein ex- cept on proceedings removed as herein provided, shall be issued and made returnable to the proper court for the said northern district of California, and may be directed to and executed by the mar- shal of the United States for the said northern dis- trict in any part of the State of 'Calif ornia. (24 U. S. Stats. 308.) § 495. Judgments — Limitations. — Judgments and decrees rendered in a circuit or district court within any State shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such State cease, by law, to be liens there- on. (Bev. Stats, sec. 967.) Judgment liens.— A State law which provides that a judgment shall not be a lien unless execution be is- sued thereon within a certain time applies to Federal courts (Sellers v. Corwin, .5 Ohio, 398); but a State law which allows a suspension of the lien on giving security on appeal (Myers v. Tyson, 13 Blatchf. 242; Fed. Cas. No. 9995), or Which provides that a judg- ment shall not be a lien except it be docketed in the county where the land lies, does not apply to the Federal courts. (U. S. v. Humphreys, 3 Hughes, 201; Fed. Cas. No. 15422.) The same proceedings which in a State court creates a lien in the county where judgment is entered creates it in the circuit court to the extent of its jurisdiction. (Massingill V. Downs, 7 How. 760.) The pendency of a writ of error does not affect the duration of the lien. (Chou- teau V. Nuckolls, 20 Mo. 442.) The duration of a judgment lien in a Federal court is the same as that of judgments in a State court. (Chouteau v. Nuck- § 496 PROCEDURE. 1200 oils, 20 Mo. 442.) Although land is sold under judg- ment of a State court, if the lien of judgments of the Federal court is allowed to expire before the sales, the first purchaser obtains the elder legal title. (Chouteau v. Nucliolls, 20 Mo. 442.) A state law cannot have a retrospective effect, so as to impair a judgment lien of the Federal court. (Massingill V. Downs, 7 How. 760; conti-a, Tan>loy v. Hamer, 9 Smedes & M. 310.) As to district courts, "decrees" in this section applj' to decrees in admiralty for the payment of money. (Ward v. Chamberlain, 2 Black. 430.) Sale of property under execution exhausts the lien of the judgment as to subsequent mortgage; and redemption by the subsequent lienholder does not restore the lien of the judgment. (Porter r. Pitts- burg Bessemer Steel Co., 122 U. S. 2G7.) The In- diana statute authorizes redemption of railix>ad prop- erty from sale under execution. (Id.) Suits in equity in the Federal Courts ai'e not deemed to be brought or commenced imtil the suing out of appropriate process and a bona fide attempt to serve it (United States V. American Lumber Co., 80 Fed. Rep. 309). A right of action under the act of Mai-ch 3, 1887, against the government under a contract of can-iage of imported goods in its custody accrues as soon as the money becomes due without a prior prest^ntatioii of the claim to the executive department for allow- ance (United States v. Utz, 39 U. S. App. 630; 80 Fed. Rep. 848). § 496. Recovery of costs. — When, in a circuit court, a plaintiif in an action at law originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, exclusive of costs, in a case which cannot be brought there unless the 1201 PKOCEDURE. § 496 amount in dispute, exclusive of costs, exceeds said sum OT value, or a libelant, upon liis own appeal, recovers less than the sum or value of three hun- dred dollars, exclusive of costs, he shall not be al- lowed, but, at the discretion of the court, may be adjudged to pay costs. (Eev. Stats, sec. 968.) Costs.— This section applies to cases arising under the constitution and laws of the United States as well as cases at common law. (Kneass v. Schuylkill Banii, 4 Wash. C. C. 106; Fed. Cas. No. 7876.) If a plaintiff recover less than five hundred dollai's, he cannot recover costs (Kneass v. Schuylkill Bank, 4 Wash. C. C. 106; Fed. Cas. No. 7876; Leeds v. Cameron, 3 Sum. 488; Fed. Cas. No. 8206; Curranee V. McQueen, 2 Paine, 109; Fed. Cas. 3488); so if the value of land recovered is less than five hundred dollars (Green v. Liter, 8 Cranch, 229); but other- wise in a case removed from the State courts, if he would have been entitled to costs in such court (Field V. Schell, 4 Blatchf. 435; Fed. Cas. No. 4771; Kreager v. Judd, 5 Fed. Rep. 27; Ellis v. Jarvis, 3 Mason, 457; Fed. Cas. No. 4403; Scripps v. Camp- bell, 22 Int. Eev. Rec. 2t50; Fed. Cas. No. 12562; Ooggill V. Lawrence, 2 Blatchf. 304; Fed. Cas. No. 2957.) The act of Congress of March 3, 1887, raising the minimum amount required to give jm-isdiction to a circuit court of the United States, does not by implication raise to the same limit the amount of recovery necessary to carry costs in favor of plain- tiff, but a recovery of five hundred dollars is still sufficient imder this section. (Johnson v. Watkins, 40 Fed. Rep. 187.) This section was not amended by the act of 1887. (Eastman v. SheiTy, 37 Fed. Rep. 844; followed in Johnson v. Watkins, 40 Fed. Rep. 187.) In a suit against three railroad companies, it Is too late after judgment to make the objection that Fed. Proc— 101. §497 PROCEDURE. 1202 the suits should have been separately brought, or to escape costs caused by defendant's act in separating the verdict and judgment for their own benefit, un- der Thompson's Code (Tenn.), sees. 2973-2975. Sec- tion 9()8, supra, does not apply to such a case. (John- son V. Mississippi & T. K. Co., 31 Fed. Rep. 551.) This section changes the rule established by the stat- ute of Gloucester, that the prevailing party should recover his expenses as costs from his adversary; and where the recovery is less than five hundred dol- lars no costs are allowed, and the common law is in effect restored in such cases. (Gibson v. Memphis & C. R. Co., 31 Fed. Rep. 553.) § 497. Cases under revenue laws— Collectors. — It shall be the duty of every collector of internal revenue to report within ten da3^s to the district attorney of the district in which any fine, penalty, or forfeiture may be incurred for the violation of any law of the United States relating to the rev- enue, a statement of all the facts and circumstances of the case within his knowledge, together witli the names of the M'itnesses, and which may come to his knowledge from time to time, stating the provisions of the law believed to be violated, and on which a reliance may be had for condemnation or conviction; and if any collector shall in any case fail to report to the proper district attorney as prescribed in this section, his right to any com- pensation, benefit, or allowance in such case shall bo forfeited to the United States, and the same may, in the discretion of the secretary of the treas- ury, be awarded to sucb persons as may make com- plaint and prosecute tlie same to judgment or con- viction. (Rev. Stats, sec. 3164.) I 1203 PKOCEDURE. §§ 498-499 § 498. Compromises in revenue cases. — The commissioner of internal revenue, with the advice and consent of the secretary of the treasury, may compromise any civil or criminal case arising un- der the internal revenue laws instead of com- mencing suit thereon; and, with the advice and consent of the said secretary and the recommenda- tion of the attorney general, he may compromise any such case after a suit thereon has been com- menced. Whenever a compromise is made in any case there shall be placed on file in the office of the commissioner the opinion of the solicitor of in- ternal revenue, or of the officer acting as such, with his reasons therefor, with a statement of the amount of tax assessed, the amount of additional tax or penalty imposed by law in consequence of the neglect or delinquency of the person against whom the tax is assessed, and the amount actually paid in accordance with the terms of the compro- mise. (Kev. Stats, sec. 3229.) § 499. Remission of fines. — The secretary of the treasury is authorized to prescribe such rules and modes of proceeding to ascertain the facts upon which an application for remission of a fine, penalty, or forfeiture is founded, as he deems prop- er, and, upon ascertaining them, to remit the fine, penalty, or forfeiture, if in his opinion it was in- curred without willful negligence or fraud, in either of the following cases: First. If the fine, penalty, or forfeiture was im- posed under authority of any revenue law, and the amount does not exceed one thousand dollars. §§ 500-501 PROCEDUBE. 1204 Second. Where the ease occurred within either of the collection districts in the states of California or Oregon. Third. If the fine, penalty, or forfeiture was imposed under authority of any provisions of law relating to the importation of merchandise from foreign contiguous territory, or relating to mani- fests for vessels enrolled or licensed to carry on the coasting trade on the northern, northeastern, and northwestern frontiers. Fourth. Repealed. Fifth. If the fine, penalty, or forfeiture was imposed hy authority of any provisions of law for levying or collecting any duties or taxes, or relat- ing to registering, recording, enrolling, or licens- ing vessels, and the case arose within the collection district of Alaska, or was imposed by virtue of any provisions of law relating to fur seals upon the islands of Saint Paul and Saint George. (Rev. Stats, sec. 5293.) § 500. Discontinuances. — ISTo discontinuance or nolle prosequi of any prosecution under section three thousand two hundred and fifty-seven shall be allowed without the permission in writing of the secretary of the treasury and the attorney gen- eral. (Rev. Stats, sec. 3230.) § 501. Continuances. — It shall be lawful for any court in which any suit or criminal proceed- ing arising under the internal revenue laws may be pending to continue the same at any stage thereof, for [rood cause shown on motion by the district attorney. (Rev. Stats, sec. 3231.) I 1205 PROCEDURE. §§ 502-503 § 502. Costs in revenue suits upon information. — When a suit for the recovery of any penalty or forfeiture accruing under any law providing internal revenue is brought upon information re- ceived from any person other than a collector, dep- uty collector^ or inspector of internal revenue, the United States shall not be subject to any costs of suit. (Rev. Stats, sec. 969.) § 503. Costs, when reasonable cause of seizure. — When, in any prosecution commenced on ac- count of the seizure of any vessel, goods, wares, or merchandise, made by any collector or other offi- cer, under any act of Congress authorizing such seizure. Judgment is rendered for the claimant, but it appears to the court that there was reason- able cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor tbe prosecutor, be liable to suit or judgment on ac- count of such suit or prosecution; provided, that the vessel, goods, wares, or merchandise, be, after judgment, forthwith returned to such claimant or his agent. (Eev. Stats, sec. 970.) Probable cause.— Probable cause imports a seizure made vinder circumstances which wan-ant suspicion. (Laclte v.U. S., 7 Cranch. 3.39; U. S. v. Gay, 2 Gall. .359; Fed. Cas. No. 15193; The George, 1 Mason. 24; Fed. Cas. No. 5328; United States v. 1^ Jeune Eugenie, 2 Mason, 409; Fed. Cas. No. 15551; Averill v. Smith, 17 Wall. 82; Shattuck v. Maley, 1 Wash. G. C. 245; Fed. Gas. No. 12714; Tnited States v. One Sorrel Horse, 22 Vt. 656; United States r. The Reindeer, 14 Law Rep. § 503 PROCEDURE. 1206 235; Fed.Cas. No. 1G145; The La Manche, 25 Law Rep. 585; Fed. C'as. No. 8004.) A certificate may be given where there is a doubt as to the true coii.«;truction of a statute (U. S. v. K'iddle, 5 Craiich, 311; The Paulina v. U. S., 7 Cranch, 52; Averill v. Suilth, 17 Wall. 82; The Friendship, 1 Gall. Ill; Fed. Gas. No. 5125; United States v. The Reindeer, 14 Law Rep. 235; Fed. Gas. No. 16145); it is never given in the admiralty except in cases under the revenue and navigation acts. (The Marianna Flora, 11 Wheat. 1; The Palmyra, 12 Wheat. 1.) If given the claimant is not entitled to costs (In re Stover, 1 Gurt. 93; Fed. Gas. No. 1350G); and when given it is a bar to an action for damages for seizure. (Gels-ton v. Hoyt, 3 Wheat, 24G; Averill r. Smith. 17 Wall. 82.) But Avhere the collector does not apply for the certificate until after he has been sued he may be required to pay the costs. (United States v. The Recjorder, 2 Blatchf. 119; Fed. Gas. No. 1(J130); and if the goods are in his hands it is his duty to surrender them as soon as they are acquitted. (Averill v. Smith, 17 Wall. 82.) If there is a decree of acquittal, and a denial of the certificate, the seizure is tortious, and the owner is entitled to full damages (Gelston v. Hoyt, 3 Wheat. 246; The Appollou, 9 Wheat. 302): but the actions to recover damages cannot be commenced while pro- ceedings to enforce the forfeiture are pending. (Gel- ston V. Hoyt, 3 Wheat. 246; Averill v. Smith. 17 Wall. 82.) The claimant must move the court for the nec- essary orders to cause the property or its proceeds to be returned to the owner. (Averill v. Smith, 17 Wall. 82.) The opinion of the attorney-general, and the instruction of the secretary of the treasury based thereon, constitute reasonable cause for seizure. (The Recorder, 2 Blatchf. 119; Fed. Gas. No. 16130.) If the goods are taken from the collector the ceptifl- csite is a protection, although the maj-shal omits to 1207 PKOCEDURE. § 504 return the goods to the owner. (Averill v. Smith, 17 Wall. 82.) And where restitution is accepted with- out qiialification it is a mutual release, and bars all claim for damages. (Lovett v. Bispham, 2 Alb. L. J. 97.) Where a sale of a condemned vessel in the custody of the marshal was, by agreement between the proctors of the parties, postponed, the max*shal was entitled to the costs of keeping his watchman also aboard of the vessel. (The San Jacinto, 30 Fed. Rep. 206.) Costs in admiralty. — In admiralty, the costs are under the control of the court, and do not necessar- ily follow the rule in equity or admiralty. They may be denied in whole or in part to the prevailing, or even allowed to the losing, party, as in view of all the facts seems proper (Union lee Co. v. Crowell, 5 U. S. App. 270; 55 Fed. Rep. 87; The E. A. Shores, 79 Fed. Rep. 987). In limited liability pi'oceediugs, the costs arising on every contested issue should fall on the losing party; but the expenses of admin- istration, including the fees ajid other charges of officers of the court and of the commissioner, should be paid from the fund, unless and so far as parties have made issues, and as to this exception the owner stands in the same condition as any other party (H. F. EXimock, 33 U. S. App. 647; 77 Fed. Rep. 226). A vessel owner who in procedings for limitation of liability, desires to give a stipulation in lieu of trans- ferring the vessel to a trustee must pay the taxable costs incident to giving the stipulation, including the expenses of making the appraisal (The H. F. Dimock, 33 U. S. App. 647; 77 Fed. Rep. 226). § 504. Double costs on nonsuit in action against officer. — If, in any suit against an officer or other person executing or aiding or assisting in §§ 505-506 PKOCEDUKE. 1208 the seizure of goods, under any act providing for or regulating the collection of duties on imports or tonnage, the plaintiff is nonsuited, or judgment passed against him, the defendant shall recover double costs. (Rev. Stats, sec. 971.) § 505. In copyright suits, costs. — In all recov- eries under the copyright laws, either for damages, forfeitures, or penalties, full costs shall be allowed thereon. (Eev. Stats, sec. 972.) § 506. Costs, infringement of patent. — When judgment or decree is rendered for the plaintiff or complainant, in any suit at law or in equity, for the infringement of a part of a patent, in which it appears that the patentee, in his specification, claimed to be the original and first inventor or dis- coverer of any material or substantial part of the thing patented, of which he was not the original and first inventor, no costs shall be recovered, un- less the proper disclaimer, as provided by the pat- ent laws, has been entered at the patent office be- fore the suit was brought. (Eev. Stats, sec. 973.) Note.— A patentee is not for an infrinsrement en- titled to reimbursement for counsel fees paid by him. (Parks V. Booth. 102 U.S. 96.) If the verdict affirms the validity of all the claims, and the novelty of the invention in each, a sulisequont disclaimer of one or more claims will not deprive of the ri.2:ht to cost. (Eliistic Faiiric Co. v. Smith, 100 U. S. 110; Peek V. Frame, 5 Fish. Pat. Cas. 211; Fed. Cas. No. 101)04.) "VNliere there is no necessity for filing a disclaimer, a failure to do so does not affect the court's discretion to allow costs to complainant (GameWell Fire-Alarm 1209 PKOCEDUEE. §§ 507-509 Tel. Ck>. V. Municipal Signal Co., 33 U. S. App. 714; 77 Fed. Rep. 490). § 507. When costs of prosecution to be paid by defendant. — When judgment is rendered against the defendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs; and on every conviction for any other ofEense not capital the court may, in its discretion, award that the defendant shall pay the costs of the prosecu- tion. (Rev. Stats, sec. 974.) § 508. When costs are recovered by defendant in a prosecution. — If any informer or plaintiff on a penal statute, to whom the penalty or any part thereof, if recovered, is directed to accrue, discon- tinues his suit or prosecution or is nonsuited there- in, or if, upon trial, judgment is rendered in favor of the defendant, the court shall award to the de- fendant his costs, unless such informer or plaintiff is an officer of the United States specially author- ized to commence such prosecution, and the court, at the trial in open court, certifies upon the record that there was reasonable cause for commencing the same; in which case no costs shall be adjudged to the defendant. (Rev. Stats, sec. 975.) § 509. Fees of clerk, marshal, etc., by whom payable. — If any informer on a penal statute, to whom the penalty, or any part thereof, if recov- ered, is directed to accrue, discontinues his suit or prosecution or is nonsuited therein, or if, upon trial, judgment is rendered in favor of the defend- § 510 PKOCEDXIRE. 1210 ant, such informer shall be alone liable to the clerk, marshal, and attorney for the fees of such prosecution, unless he is an officer of the United States whose duty it is to commence such prosecu- tion, and the court certifies that there was reason- able cause for commencing the same, in which case the United States shall be responsible for such fees. (liev. Stats, sec. 976.) Note.— The words "the fees of such prosecution" refer to fees for services rendered to the party prose- cuting, aud to those only. (In re Stover, 1 Curt. 93; Fed. Cas. No. 13500.) If the informer is an officer, and he obtains from the court a certificate of proba- ble cause, the fees must be paid by the United States. (In re Stover, 1 Curt. 93; Fed. Cas. No. 1350tj.) The name of the informer need not be written at the foot of the indictment. (U. S. v. Mundell, 1 Hughes, 415; Fed. Cas. No. 15834.) § 510. Costs, nonjoinder of action. — If several actions or processes are instituted, in a court of the United States or one of the Territories, against persons who might legally be joined in one action or process touching the matter in dispute, the party pursuing the same shall not recover, on all of the judgments therein which may be rendered in his favor, the costs of more than one action or process, unless special cause for said several ac- tions or processes is satisfactorily shown on motion in open court. (Kev. Stats, sec. 977.) Note.— Two separate libels in admiralty of a like nature, involving substantially the same question, may be consolidated. (Rogers v. Hurney, 4 Cliff. 582; Fed. Cas. No. 215'.).) J 211 PEOCEDUKE. §§611-512 § 511. Costs in libels against vessel and cargo. — A\'lien proceedings are had before a court of the United States or of the Territories, on several libels against any vessel and cargo, which might legally be joined in one libel, there shall not be al- lowed thereon more costs than on one libel, unless special cause for libeling the vessel and cargo sep- arately is satisfactorily shown on motion in open court. And in proceedings on several libels or informations against any cargo, or parts of cargo, or merchandise seized as forfeited for the same cause, there shall not be allowed more costs than would be lawful on one libel or information, what- ever may be the number of owners or consignees therein concerned. But allowance may be made on one libel or information for the costs incidental to several claims. (Rev. Stats, sec. 978.) Note.— Where unnecessary libels or claims are filed it is at the peril of paying costs. (The Henry Ew- bank, 1 Sum. 400; Fed. Cas. No. 6376.) If two libels are filed simultaneously for seamen's wages, the costs of one libel only and one seizure can be taxed. (The Cabot, Abb. Adm. 150; Fed. Cas. No. 2277; The R. P. Chase, 3 Ware, 294; Fed. Cas. No. 12099.) This sec- tion is merely in affirmance of the pre-existing law (Salmon Falls Mfg. Co. v. The Tangier, 3 Ware. 110; Fed. Cas. No. 12267); but there is pothing in this sec- tion which compels parties having a lilce cause of ac- tion founded on a several liability to join under a penalty of forfeiture of costs. (The Young Mechanic, 3 Wai-e, 58; Fed. Cas. No. 18182.) § 512. Claimant's costs, when paid before pos- session. — When judgment is rendered in favor of §§ 513-515 PKOCEDURE. 1212 the claimant of any vessel or other property seized on behalf of the United States, and libeled or in- formed against as forfeited under any law thereof, he shall be entitled to possession of the same when his own costs are paid. (Rev. Stats, sec. 979.) Note.— Claimant must pay the clerk's and marshal's fees before he can take possession of the property. (In re Stover, 1 Curt. 93; Fed. Cas. No. ISoOG.) § 513. District attorney's costs. — When a dis- trict attorney prosecutes two or more indictments, suits, or proceedings which should be joined, he shall be paid but one bill of costs for all of them. (Rev. Stats, sec. 980.) Note.— When several attachments for contempt are issued, the district attorney is entitled to only one docket fee. (Riggs v. Supervisors. 1 Woolw. 377; Fed. Cas. No. 4191.) § 514. Taxation of fees of witness. — In no case shall the fees of more than four witnesses be taxed against the United States, in the examination of any criminal case before a commissioner of a cir- cuit court, unless their materiality and importance are first approved and certified to by the district attorney for the district in which the examination is had; and such taxation shall be subject to re- vision, as in other cases. (Rev. Stats, sec. 981.) § 515. Attorney liable for costs vexatiously in- creased. — If any attorney, proctor, or other per- son admitted to conduct causes in any court of the United States, or of any territory, appears to have multiplied the proceedings in any cause before 1213 PROCEDURE. § 516 such court, so as to increase costs unreasonably and vexatiously, he shall be required, by order of the court, to satisfy any excess of costs so increased. (Eev. Stats, sec. 982.) Note. — If a vessel seized under one libel is released on stipulation, it may be talven under successive libels. (The Younir Mechanic, 3 Ware, 58; Fed. Cas. No. 18182.) If a proctor presents an unreasonable num- ber of petitions for separate claims his fees may be reduced. (The Hinchman, 7 Chic. L. N. 387; Fed. Cas. No. 7620.) § 516. Bill of costs, how taxed.— The bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers nec- essarily obtained for use on trials in cases whereby law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause. (Rev. Stats, sec. 983.) Taxation of costs. — In actions at law the court must tax the costs against the losing party, except where special provision to the contrary has been made by Congress (Trinidad Asphalt Co. v. Robinson, 52 Fed. Eep. 347). The fees of a witness cannot be taxed against the adverse party, unless they have been paid. (Secor v. The Highlander, 19 How. Pr. 3.34; Fed. Cas. No. 12G04). So no costs can be awarded wlien a case is dismissed for want of .iurisdiction. (Abbey v. The Stevens, 22 How. Pr. 78; Fed. Cas. No. 8; Hornthall v. The Collector, 9 Wall. 560: Mayor v. Cooper, 6 Wall. 247; Fed. Peoc— 102. § 516 PEOCEDUBE. 1214 The McDonnell, 4 Blatchf. 477; Fed. Gas. No. 8756; Maxfield v. Levy, 4 Dall. 330; Agnew v. Dorman, Taney, 3S0; Fed. Gas. No. 100; Lowe v. Benjamin, 1 Wall. Jr. 187; Fed. Gas. No. 8565; Burn- liam V. Rangeley, 2 Wood. & M. 417; Fed. Gas. No. 2177; Citizen's Baulv v. Cannon, 164 U. S. 319); but tliis rule does not apply Avlien want of jurisdiction does not appear by the arerments of the libel, but is only disclosed by subsequent pleadings or evi- dence after the parties are in court and in such cases costs may be adjudged againt libelant on dismiss- ing the libel (The City of Florence, 56 Fed. Rep. 236). If there arp several suits costs are taxed in each (Ferrett v. Atwill, 1 Blatchf. 151; Fed. Gas. No. 4747); and if there are several defendants sev- ex-al costs may be allowed. (Crosby v. Folger, 1 Sum. 514; Fed. Cas. No. 3421.) Where several suits ai'e consolidated costs in each will be taxed up to the time of consolidation and after that only on the con- solidated suit. (Simpson v. Gaulkins, Abb. Adm. 539; Fed. Cas. No. 12SS0.) No judgment or decree can be rendered against the United States for costs (U. S. T. La Vengence, 3 Dall. 297; U. S. v. Ilooe, 3 Cranch, 73; U. S. v. Barker, 2 Wheaton, 39.")); nor can a marshal claim a lien for fees (The Antelope, 12 Wheaton, .546); yet a party having such a claim may set it up as a defense in an action against him, brought by the United States (U. S. v. Ringgold, 8 Peters, 150). The court cannot adjudge costs de novo on an appeal from the taxation (The CaJthneshire, Abb, Adm. 163; Fed. Cas. No. 2294); and unless the party appealing demands a specification of items, the charge will be considered as acquiesced in (Dede- kam V. Vose, 3 Blatchf. 153; Fed. Cas. No. 3731). \\ here a dispute arises in regard to fees the case should be i-eferred to a person as auditor to hear and report the case (liottomley r. U. S., 1 Story, 153; Fed. Cas. No. 16S9). The Federal fee bill (act of 1215 PROCEDURE. § 516 1853, U. S. Rev. Stats., sec. 983) abolished all form- er practice and laws on the subject of fees in the courts of the United States, and prescribed the items composing a bill of costs to be taxed against the losing party (O'Neil v. Kansas City S. & M. T. Co., 31 Fed. Rep. 663). Fees for certifying docu- ments not actually certified may not be taxed as costs (Shaw El. Crane Co. v. Shriver, 80 Fed. Rep. 640). In our Federal practice the acts of Congress are not superseded by the State statutes, even if such statutes may be construed as permitting a more in- dulgent practice (See Ford v. Louisville etc. R. Co., 45 Fed. Rep. 210). In the absence of a rule of court or of a written stipulation so providing the expense of printing briefs, or of procuring copies of the re- porter's notes of testimony for the use of the par- ties, is not taxable (Kelly v. Springfield Ry. Co., 83 Fed. Rep. 183). Allowances to railroad receivers and their attorneys are taxable as costs (Petersburg Sav. & Ins. Co. V. Dellatorre, 30 U. S. App. 504; 70 Fed. Rep. 643). In suits against the United States, when Congress permits it the court may award to plain- tifiC if he prevails costs of witnesses and fees of clerk (United States r. Harmon, 147 U. S. 268; Ma- rine V. Lyon, 8 U. S. App. 573; 62 Fed. Rep. 153; but see Stanley v. Schwalby, 162 U. S. 255; Carlisle v. Cooper, 26 U. S. App. 240; 64 Fed. Rep. 472). Where, on appeal, it is ordered that a party should recover costs the circuit court can entertain an application for an extra allowance of costs out of the funds, to the counsel of such party (Mason v. Pewabic Min. Co., 153 U. S. 361). The expense of maps necessarily introduced at the trial is taxable (Lilienthal v. South- em Cal. Ry. Co., 61 Fed. Rep. 622). Payments to stenographer for making carbon copies of testimony for use of the party or his counsel are not taxable (Atwood V. Jaques, 63 Fed. Rep. 561; The "William §§ 517-518 PROCEDUBE. 1216 Branfoot, 8 U. S. 129; 52 Fed. Eep. 390). Notarial fees for seals affixed to affidavits used on a motion for a preliminary injunction are taxable (Atwood v. .Taques, 63 Fed. Rep. 561). A reasonable attorney's fee is properly taxable as costs in contempt proceedings (Stahl r. Ertel, 62 Fed. Rep. 920). A party cannot tax as costs more than the amount actually paid to witnesses (Burrow v. Kansas City Ft. S. & M. R. Co., 5i Fed. Rep. 278). The expense of testimony tak- en de bene esse, obtained solely for the convenience of counsel cannot be taxed as part of the c-osts in the absence of agreement to that effect (Roundtree v. Bembert, 71 Fed. Rep. 255). § 517. Bill of costs to be sworn to. — Before any bill of costs shall be taxed by any judge or other officer, or allowed by any officer of the treas- ury, in favor of clerks, marshals, commissioners, or district attorneys, the party claiming such bill shall prove by his own oath, or that of some other person having a knowledge of the facts, to be at- tached to such bill, and filed therewith, that the services charged therein have been actually and necessarily performed, as therein stated. (Rev. Stats, sec. 984.) Note.— The requirement of an affidavit that the ser- vices charged have been actually and necessarily per- formed applies to all eases, and not to government cases only. (Jerman v. Stewart, 12 Fed. Rep. 276.) 5^ 518. Executions to run in all the districts of the State. — All writs of execution upon judg- ments or decrees obtained in a circuit or district court, in any State which is divided into two or more districts, may run and be executed in any 1217 PROCEDURE. § 519 part of such State; but shall be issued from, and made returnable to, the court wherein the judg- ment was obtained. (Kev. Stats, sec. 985.) Executions.— A writ of execution issued to the marshal of one district may be executed by the mar- shal of the other district (Prorost v. Gorrell, 5 Week. Notes, 151; Fed. Cas. No. 11400); and if a State be divided into two districts, a judgment for one dis- trict will be a lien on land in the other district. (Pro- vost V. Gon-ell, 5 Week. Notes, 151; Fed. Cas. No. 11400.) A plaintiff who resides in another district may be required to give security for costs. (Lyman V. & R, Co. V. Southard, 12 Blatchf. 405; Fed. Cas. No. 8633.) Jurisdiction to render judgment of fiat executio on the return of nihil to two successive wi'its of scire facias is obtained in accordance with the rule that the return of two nihils is equivalent to a service (Brown t. Wygaut, 163 U. S. 618). When a marshal, in levying execution, forcibly takes pi'op- erty out of the possession of a constable who has levied thereon under a dif^itress w^arrant or of a pledgee for the benefit of third persons, such action is illegal, and the judgment creditor acquires no right to or lien upon the property (LfCwis v. Dillard, 40 U. S. App. 404; 76 Fed. Rep. 688). In general process is not returnable in a different disti-ict from that of its issue, except under the Chinese Ex- clusion Act of 1888 (United States v. Dong Hop, 55 Fed. Rep. 58). A judgment does not become final for the purpose of an execution until after a mo- tion for a new trial which has been made and duly filed is disposed of (Danielson v. Northwestern Fuel Co., 55 Fed. Rep. 49). § 519. Executions in favor of United States to run in every State. — All writs of execution upon § 520 PROCEDURE. 1218 judgments obtained for the use of the United States in any court thereof, in one State, may run and be executed in any other State or in any Ter- ritory, but shall be issued from, and made return- able to, the court wherein the judgment was ob- tained. (Eev. Stats, sec. 986.) § 520. Execution stayed on conditions. — When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such finding is al- lowed, execution -may, on motion of either party, at the discretion of the court, and on such condi- tions 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 re- fuse 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 thereby rendered void. (Rev. Stats, sec. 987.) Note.— Congress did not Intend to suspend the op- eration of a judf^ment .so as to allow application for a new trial beyond a period of forty-two days from its rendition (Cambnston v. U. S., 95 IT. S. 285); and an application to strike out a judgment after the lapse of the term is not within the terms Of this section. (Popino v. Mc.\llister, 4 Wash. C. C. 393; Fed. Cas. 1219 PEOCEDURE. §§ 521-523 No. 11277.) Tlie right to apply for a new trial is independent of this section. It provides for a case whe're a party desires an extension of the time with- in which to malie application. (Rutheford v. Penn. Mut. Life Ins. Co., 1 Fed. Rep. 456; 1 McCrary, 120.) The motion need not be based upon petition except when made after judgment. (Emma S. M. Oo. v. Park, 14 Blatchf. 411; Fed. Cas. No. 4467.) § 521. Judgment debtor, continuance. — In any state where judgments are liens upon the prop- erty of the defendant, and where, by the laws of such State, defendants are entitled, in the courts thereof, to stay of execution for one term or more, defendants in actions in the courts of the United States, held therein, shall be entitled to a stay of execution for one term, (Eev. Stats, sec. 988.) § 522. Execution against officers of revenue. — When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the di- rections of the secretary of the treasury, or other proper officer of the government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the treasury. (Rev. Stats, sec. 989.) §1'523 PROCEDURE. 1220 Note.— The term "officer of the revenue" means an officer of the revenue from customs. (Campbell v. James, 18 Blatchf. 196; S. C, 3 Fed. Rep. 515.) His claim for taxable costs not taxed cannot be admitted on a ti'iaJ unless presented and disallowed. (U. S. v. Ingersoll, Crabbe, 135; Fed. Gas. No. 15440.) A judge maj- grant the certificate although he is not the judge before whom the rerdict was rendered (Cox v. Barney, 14 Blatchf. 289; Fed. Cas. No. 33(X)); and it may be issued not only to prevent the issuing of an execution, but to stay one already issued. (Cox v. Barney, 14 Blatchf. 289; Fed. Oas. No. 3300.) It is the duty of the court to grant it although the money may not be paid under it. (Cox v. Barney, 14 Blatchf. 289; Fed. Cas. No. 3300.) Whether it ought to be granted can- not be determined before trial. (Andrae v. Redfield, 12 Blatchf. 407; Fed. Cas. No. 3G7.) The words "offi- cer of the revenue" mean of the revenue of customs. (Campbell v. James, 3 Fed. Rep. 513.) It is not only necessaiy that there be a recovery against the col- lector, but there must be a certificate of probable cause before the liability of the government begins. (White v. Arthur, 10 Fed. Rep. 83; following U. S. v. Sherman, 98 U. S. 5U5.) § 523. Imprisonment for debt. — Xo person shall be imprisoned for debt in any State, on process issuing from a court of the United States, where, by the laws of such State, imprisonment for debt has been or shall be abolished. And all modifications, conditions, and restrictions upon imprisonment for debt provided by the laws of any State shall be applicable to the process issu- ing from the courts of the United States to be executed therein; and the same course of proceed- 1221 PKOCEDTTRE. § 523 mgs shall be adopted therein as may be adopted in the courts of such State. (Eev. Stats, sec. 990.) Arrest of debtor. — A debtor is not liable to arrest on Federal process unless liable to arrest under the State laws (Gray v. Munroe, 1 McLean, 528; Fed. Cas. No. 5724; Wilber v. Ingersoll, 2 McLean, 322; Fed. Cas. No. 17632); and this limitation applies as well to admiralty courts as to others. (The Kentucliy, 4 Blatchf. 448; Fed. Cas. No. 7717; Louisiana Ins. Co. V, Niclierson, 2 Low. 310; Fed. Cas. No. 8539; Fry v. Oook, 8 Chic. L. N. 286; Fed. Cas. No. 5138; The Blanche Page, 16 Blatehf. 1; Fed. Cas. No. 1524; but see Gardner v. Isaacson, Abb. Adm. 141; Fed. Cas. i\o. 5230; Gaines v. Travis, Abb. Adm. 422; Fed. Cas. No. 5180; Hanson v. Fowle, 1 Saw. 497; Fed. Cas. No. 6041; Marshall v. Bazin, 7 N. Y. Leg. Obs. 342; Fed. Cas. No. 9125; Hodge v. Bemis, 12 Law Eep. 470; Fed. Cas. No. 6557.) Where the State law does not allow imprisonment for debt after the debtor has S'urrendered his property, he cannot be ar- rested on Federal court process. (Moan v. Wil- marth. 3 Wood. & M. 399; Fed. Cas. No. 9686.) The proceedings in all cases of arrest on mesne process must confoi-m to practice as prescribed by State law. (In re Bergen, 2 Hughes, 513; Fed. Cas. No. 1338.) All constructions in the absence of fraud should lean in favor of personal liberty. (Moan V. Wilmarth, 3 Wood. & M. 399; Fed. Cas. No. 9686.) So where a State law modifies imprisonment for debt the modification is adopted (Low v. Durfee, 5 Fed. Rep. 256; United States v. Tetlow, 2 Low. 159; Fed. Cas. No. 16456; but see Catherwood v. Gapete, 2 Curt. 94; Fed. Cas. No. 2513; In re Freeman, 2 Curt. 491; Fed. Cas. No. 5083: Campbell v. Hadley, 1 Sprague, 470; Fed. Cas. No. 2358): as a law exempting an in- solvent who has received a discharge from imprison- 3 524 PBOCEDUBE. 1222 ment (Low v. Durfee, 5 Fed. Rep. 256); or where the State law imposes conditions or restrictions upon the power to imprison a debtor (Oatherwood v, Gapete, 2 Curt. 94; Fed. Cas. No. 2513); or where it prohibits imprisonment in certain cases this section adopts the modification. (U. S. v. Tetlow, 2 Low. 159; Fed. Cas. No. 16456.) The verification of papers for the arrest of a debtor may be made before a commis- sioner of the United States. (Fulton v. Gilmore, 2 Flip. 260; 10 Chic. L. N. 108; Fed. Cas. No. 5154.) Whether defendant is liable to aiTest on execution de- pends on the State statute. (U. S. v. Moller, 10 Ben. 189; Fed. Cas. NO. 15793.) A statute which provides that creditors who have caused their debtors to be imprisoned upon Avrits of ca. resp. or ca. sa. must pay their board weelily in advance, or the debtors will be discharged, is a restriction on imprisonment for debt within the meaning of the above section. (Stroheim V. Deimel, 73 Fed. Rep. 430.) § 524. Discharge from arrest or imprisonment. — When any person is arrested or imprisoned 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 imprisonment in the same manner as if he were so arrested and imprisoned on like pro- cess 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 proceed- ings 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 cir- cuit court for the district whore the defendant 18 so held. (Rev. Stats, sec. 991.) 1223 PROCEDURE. § 525 Discharge from arrest.— Where State laws can be executed conveniently and properly by Federal courts and judges, they have been adopted as incident to the remedy, and are cumulative, and in addition to this section (Duncan v. Darst, 1 How. 301); but this sec- tion does not adopt State laws prospectively. (In re Freeman, 2 Curt. 491; Fed. Cas. No. 5083; Campbell V. Hadley, 1 Sprague, 470; Fed. Cas. No. 2358.) This section is obligatory on shei'iffs, and no discharge from jail under a State law not in conformity thea-e- with will exonerate the sheriff. (McNutt v. Bland, 2 How. 1.) So a discharge by a State official under a State law will not authorize a release from prison on process issued from a Federal court. (McNutt v. Bland, 2 How. 1; Duncan v. Darst, 1 How. 301; Bank V. Tyler, 4 Pet. 366; Catherwood v. Gapete. 2 Curt. 94; Fed. Cas. No. 2513; In re Hopkins, 2 Curt. 567; Fed. Cas. No. 6683.) In adopting State legislation Congress adopted the proceedings only so far as they are analogous and applicable. (Lockhurst v. West, 7 Met. 2S0.) If the United States sues for a pen- alty, its judgment can only be enforced by process under State law, and a discharge under a State law will be valid. (Stearns v. IT. S., 2 Paine, 300; Fed. Cas. No. 13341; see U. S. v. Tetlow, 2 Low. 159; Fed. Cas. No. 16456; but see U. S. v. Hewes, Crabbe, 307; Fed. Cas. No. 15359.) A discharge under this section does not release the debtor from his liability (King v. Riddle, 7 Cranch, 168); but if the lien of a judgment is surrendered by levying a capias ad satisfaciendum, a discharge under this section will not revive it. (Snead v. McCoull, 12 How. 407.) § 525. Privileges of jail limits. — Persons im- prisoned on process issuing from any court of the United States in civil actions, as well at the suit of the United States as at the suit of any person, § 526 PROCEDURE. li!24 shall be entitled to the same privileges of the 3'ards of the resijective jails as persons confined in like cases on process from the courts of the re- spective States are entitled to, and under the like regulations and restrictions. (Eev. Stats, sec. 992.) Note.— This section adopts State laws in force at the time of its passage. (U. S. v. Kniglit, 14 Peters, 301; S. C, 3 Sum. 358; Fed. Cas. No. 1."k)39.) It embraces executions at the suit of the United Srates. (U. S. v. Knight, 14 Peters, 301.) When a prisoner is regular- ly committed to a State jail by the marshal, he is no longer in custody of the marshal nor under his authority or command. (Randolph v. Donaldson, 9 Cranch, TO: see United States v. Harden, 10 Fed. Rep. 802; 4 Hughes, 455.) § 526. Goods taken on a fieri facias, how ap- praised. — 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 there- of, the appraisers appointed under the authority of the State may appraise goods taken in exe- cution 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 marslial in whose custody sucli goods may be shall summon the appraisers, in the same man- ner as tlie sherifT is, by the laws of such State, reciuircd to summon them; and if the appraisers, being duly summoned, fail to attend and per- form the duties required of them, the marshal may proceed to sell such goods without an appraise- ment. When such appraisers attend they shall be entitled to the like fees as in cases of appraise- 1225 PROCEDURE. > § 536a ment under the laws of the State. (Eev. Stats. sec. 993.) Note.— This section proceeds on the idea that State appraisement laws have been adopted, and the officer may avail himself of those persons selected by local ti'ibunals to appraise property taken on eaiecution. (Wayman v. Southard, 10 Wheat. 1.) § 526 a. Property, how sold under order of court. — 1. All real estate or any interest in land sold under any order or decree of any United States court shall be sold at public sale at the courthouse of the county, parish, or city in which the property, or the greater part thereof, is lo- cated or upon the premises, as the court render- ing such order or decree of sale may direct. 2. 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. 3. That hereafter no sale of real estate under any order, judgment or decree of any United States court shall be had without previous publication of notices of such proposed sale being ordered and had once a week for at least four weeks prior to such sale in at least one newspaper, printed, regularly issued and having a general circulation in the county and State where the real estate proposed to be sold is situated, if such there be. If said property shall be situated in more than one county or State, such notice shall be published in such of the counties where said Fed. Proc— 103. § 527 PKOCEDUEE. 1226 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 dis- cretion, direct the publication of the notice of sale herein provided for to be made in such other papers as may seem proper. (27 U. S. Stats. 751.) Note.— The above act is prospective only. (Cen- tral Trust Co. V. Sheffield etc. R. R. Co., 60 Fed. Rep. 9.) Sale— Publication.— Publication of notice of sale once a weeli for only twenty-seven days before the day of sale is not a "previous publication" of such a notice "once a week for at least four weeks prior to such sale," as required by the above act. (Wilson V. Northwestern Mut. Life Ins. Co., 27 U. S. App. 526; 65 Fed. Rep. 38.) § 527. Death of marshal after levy or sale. — 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 dis- position thereof, the like process shall issue to the succeeding marshal, and the same proceeding shall be had as if such marshal had not died or been removed, or the term of his commission had not expired. And when a marshal dies or is re- moved from office, or the term of his commission expires, after he has sold any lands, tenements, or hereditaments, under process from a court of the United States, and before a deed for the same is executed by him to the purchaser, such court 1227 PBOCEDUBE. § 528 may, on application by the purchaser, or by the plaintiff at whose suit the sale was made, setting forth the case and the reason why the title was not perfected by said marshal, order the marshal for the time being to perfect the title and exe- cute a deed to the purchaser, upon his paying the purchase-money and costs remaining unpaid. (Kev. Stats, sec. 994.) Note.— If a marshal is removed from office after the sale and before the execution of a deed to the pur- chaser, his successor may execute the deed (Byers v. Fowler, 12 Arls. 218; and if removed after he has made a levy a ne^'^ writ may be issued to his suc- cessor and all rights of the judgment creditor will remain as under the prior writ. (Doolittle v. Bryan, 14 How. 563.) If the purchaser obtains an order di- recting the successor to make the deed, such order is a mere ex parte proceeding, and not a judicial act. (Merchants' Bank v. Evans, 51 Mo. 335.) A deed executed by the marshal should be admitted to record in the State courts. (Byea-s v. Fowler, 12 Ark. 218.) And if a State law makes the certificate of purchase assignable, a deed made to such assignee will be valid. (Martin v. Gilmore, 72 111. 193.) § 528. Moneys paid into court. — All moneys paid into court of the United States, or received by the officers thereof, in any cause pending or adjudicated in such court, shall be forthwith de- posited with the treasurer, an assistant treasurer, or a designated depositary of the United States, in the name and to the credit of such court; pro- vided, that nothing herein shall be construed to prevent the delivery of any such money upon se- § 529 rBocEDUKE. 1228 curity, according to agreement of parties, under the direction of the court. (Rev. Stats, sec. 995.) Money in the hands of the clerk of a court is not liable to attachment. (The Lottawanna, 20 Wall. 201; In re Forsyth, 78 Fed. Rep. 21)6.) Neither is monej- in the hands of a designated depositai-y of the court, placed there pending litigation concerning it, subject to process. (Jones v. Merchants' Nat. Bank, 33 U. S. App. 703; 76 Fed, Rep. 683.) Money received by a master in chancery in payment of property sold uix)u the foreclosure of a mortgage ought, in pursuance of U. S. Rev. Stats., sec. 91>5, to be deposited with a designated depositary of the United States; and the clerk is entitled to his commission thereon. (Thomas V. Chicago & G. S. R. Co., 37 Fed. Rep. 548.) Moneys paid into court to the credit of a suit in equity in the same court are to be disposed of in that suit, and no orders relating to such moneys can properly be made in another suit which does not include the same parties as the former suit. (Gregory v. Boston Safe Dep. & T. Co., 144 U. S. 663.) Third parties claiming pixjperty levied on by the marshal will not be per- mitted to take it out of his possession under color of process by means of a sepai'ate suit. (St. Paul M. & M. Ry. Go. V. Drake, 44 U. S. App. 271; 72 Fed. Rep. 945.) Generally, as to control of court over money in its hands, see Caesar v. Capell, 83 Fed. Rep. 403. § 529. Moneys deposited, how withdrawn. — No money deposited as aforesaid sliali be with- drawn except by order of the judge or judges of said courts respectively, in term or in vacation, to be signed by such judge or judges, and to be entered and certified of record by the clerk; and every such order shall state the cause in or on 1229 PROCEDURE. § 529 account of which it is drawn; and it shall be the duty of the judge or judges of said courts, re- spectively, to cause any moneys deposited as afore- said, which have remained in the registry of the court unclaimed for ten years or longer, to be de- posited in a designated depositary of the United States, to the credit of the United States. (Kev. Stats, sec. 996; as amended, 29 U. S. Stats. 578.; § 530 PBOC£r>UB£ ON EBBOB AND APPEAU 1230 CHAPTER XXI. PEOCEDUBE ON EEROB AND APPEAIi, § 530. Removal of causes by writ of error, § 531. Citation. § 532. Citation — Supreme court. I 533. Bond in error and on appeal. § 534. No bond required of United States, etc. S 535. Writs of error to district courts acting as cir- cuit courts. § 536. "Writs of error to State courts, manner of issue. § 537. Writs of error returnable to ttie supreme court, how issued. § 538. Amendment of writ of eiTor. § 5.39. Amendment in prize appeals. § 540. Supersedeas. § 541. Writs of eiTor and appeals to supreme court, time for taking. § 542, Appeals in prize causes within what time. § 543. Damages and costs on affirmance in error. § 544. Reversal on error limited. § 544 a, Cases tiied by the circuit court without a jury. S 545. Appeals from circuit courts to supreme court. § 546. Where both parties appeal to the supreme court, one record sufficient, § 530. Removal of causes by writ of error. — 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 1231 TEOCEDUEE ON ERROR AND APPEAL. § 530 transcript of the record, an assignment of errors, and a prayer for reversal, with, a citation to the adverse party. (Rev. Stats, sec. 997.) Transcript. — A i-ecord which is mereily authenti- cated by the clerk or judge is not properly verified (Wilson V. Daniel, 3 Dall. 401); and if the ease was tried on an agreed statement of facts, a record which omits the other proceedings is insufficient (Keene v. Whittaker, 13 l'eters,459; Curtis v. Petitpain, 18 How. 109.) If the transcript is returned within proper time with the copy of the wi-it of error it is sufficient (Mus- sina T. Cavazos, 6 Wall. 355): as a rigid and litei'al fulfillment of everything prescribed is not an indis- pensable requisite to the jurisdiction of the supreme court (Mussina v. Oavazos, 6 Wall. 355): but the origi- nal writ of eiTor should be returned. (Mussina v. Cavazos, 6 Wall. 355.) The transcript is sufficient al- though it omits the names of jurors (Owens v. Han- ney, 9 Cranch, 180); and it is sufficient if authenti- cated by the signature of the deputy clerk and sealed with the seal of the court, ((iarueau v. Dozier, 100 U. S. 7.) The certificate of the clerk is prima facie eH^idence that the ti'anscript is a true copy of all the proceedings in the ease. (The Rio Grande, 19 Wall. 178.) A failure to annex to, or return with, a writ of error, an assignment of errors, as required by Rev. Stat., sec. 997, is no ground for dismissal for want of jurisdiction. If the assignment is filed in accordance with the requirements of rule 21, par. 4, it will or- dinarily be enough. (School Uist. of Ackley v. Hall, 106 U. S. 428.) Where no assignment of error was returned with the writ of error to a State court, as required by this section, and no counsel appeared for the plaintiff in error, the judgment will be afi^rmed. (Dagger v. Tayloe, 121 U. S. 286.) § 530 PROCEDURE OX ERROR AXD APPEAL. 1232 Citation.— The citatiou is not necessarily a part of the record; the presumption is, that one was issued (lunerarity v. Byrne, 5 How. 21>5); it is simply a no- tice to the opposite party to appear or decline to ap- pear (Cohens v. Virginia, 6 Wheat. 264); and judg- ment cannot be given against him for liis nonappear- ance (Cohens v. Virginia, 6 Wheat. 264); and a clea'ical error in it will not vitiate the proceedings. (Da\'id- son V. Lainer, 4 Wall. 447.) If it is to appear at the ciUTent term of the supreme court the case will be dismissed (Yeaton v. Lenox, 7 Peters, 220); but it may be issued at any time, provided i.t is issued and served before the term of the supreme court next suc- ceeding the entiy of the appeal. (Villalobos v. U. S., 6 How. 81; Hudgins v. Kemp, 18 How. 530.) When issued to one not a party to the suit the writ will be dismissed. (Davenport v. Fletcher, 16 How. 142.) So if it differs from the writ of error in the description of the person it will be dismissed (Kail v. Wetmore, 6 Wall. 451), unless the misdescription is not sufficient to mislead (Peale v. Phipps, 8 How. 256); and al- though addressed to the original pai-ty instead of to the administrator, the counsel may waive the irregu- lai-ity. (Bigler v. Walter, 12 Wall. 142.) The writ of error. — No one can sue out the writ un- less he is a party to the judgment (I'ayne v. Niles, 20 How. 219); but if a judgment is joint and sevea-al one may sue it out (Cox v. U. S., 6 Peters, 172); but not if the judgment is joint (Williams v. Bank, 11 Wheat. 414; Wilson v. Fire & L. Ins. Co., 12 Peters, 140; Hampton v. House, 13 Wall. 187; Simpson v. Greeley, 20 Wall. 152); yet a party against whom a separate judgment is rendered may sue it out. (Germain v. Ma.son, 12 Wall. 25'J.) "\^'here parties have refused to join in a writ of error, one of several parties may sue It out (.Masterson v. Ilcrndou. 10 Wall. 416; O'Dowd V. RupspU. 14 Wall. 402; but the irregularity is waived 1233 PKOCEDXTRE ON EREOR AND APPEAL. § 530 by appearance and defense. (Amis v. Smith. 16 Peters, 303.) A formal petition for the allowance of a writ of error is not requisite to the vesting of juris- diction. (Louisville Tnist Co. v. Stocliton, 41 U. S. App. 579; 72 Fed. Rep. 1.) If dismissed on. account of irregularity a second may issue (Deneale v. Shimp, 8 Peters, 52R): and the names of tlie parties who apply must be set forth. (Deneale v. Shimp, 8 Peters, 526; Wilson V. Life & F. Ins. Co.. 12 Peters, 140.) The issue of a subsequent writ and citation not served cannot prejudice the prior writ and citation. (David- son V. Lanier, 4 Wall. 447.) If the copy lodged with the clerk is correct it is sufBeient. (U. S. v. Six Lots, 1 Woods, 234; Fed. Oas. No. 16299.) Wliere the vrrit of error was served before the return day, but not returned until after expiration of the term, an ap- pearance is a waiver of the iiTegularity (Wood v. Lide. 4 Cranch. 180: Piclcett v. Legerwood, 7 Peters, 144); but if not returned at the next term it Is null. (Blair v. Miller. 4 Dall. 21.) In ease of the death of defendant after entry of judgment, the suit should be revived and the TVTit of error sued out. (McClane v. Boon, 6 Wall. 244.) The removal of a case into the appellate court by writ of en-or puts an end to the jurisdiction of the lower court. (Citizens' Banlv v. Farwell, 12 U. S. App. 419; 56 Fed. Rep. 539.) It Is no part of the duty of the clerk of a Federal court to pi'ocure the allowance of writs of error and the ap- proval of bonds, and parties who trust it to him can- not complain of delay therein. (Warner v. Texas Pac. Ry. Co., 2 U. S. App. 647; 54 Fed. Rep. 920.) Prayer for reversal.— A prayer in a petition for a writ of eiTor that the wi'it may issue "for the cor- rection of errors so complained of." is in substance a prayer for reversal within the meaning of the a])ove section. fSpringfield Safe Dep. & T. Co. v. City of Attica, 56 U. S. App. 330; 85 Fed. Rep. 387.) §§ 531-532 PROCEDURE ON ERROB AND APPEAL. 1234 § 531. Citation. — "WTien 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. (Kev. Stats, sec. 998.) § 532. Citations, supreme court. — When the writ is issued by the supreme court to a circuit court, the citation shall be signed by a judge of such circuit court, or by a justice of the supreme court, and the adverse party shall have at least thirty days' notice; and when it is issued by the supreme court to a State court, the citation shall be signed by the chief justice, or judge, or chan- cellor of such court rendering the judgment or passing the decree complained of, or by a justice of the supreme court of the United States, and the adverse party shall have at least thirty days' notice. (Eev. Stats, sec. 999.) Issued to a State court.— Allhouch the jurlffe of an- otlior eirr-uit lioUls the circuit court, ypt he cannot siern a citation when the writ is issued to a State court rromi>kinR v. Mahonoy. ,32 Pal. 2.31); and if signed by a judge of the district court, the writ will be dismisse.) A district judsre may allow tlie appejil. altliough the decree was rendered on appeal from the district court. (Rodd v. Heartt, 17 Wall. 354.) When the appeal is entered In the clerk's othce and not taken in open court, a citation signed by liim is insuthcient. (Villabolos v. U. S.. 6 How. 81.) And if the circuit court disallows the appeal, the party presenting a petition to the i'2o7 PROCEDUKE OX ERROR AND APPEAL,. § 533 supreme court must file a copy of the record. (Ray v. Law, 3 Cranch, 179.) When one of the judges of the circuit comi: has approved an appeal bond it is com- petent under this section for another judge of that court who might have, granted the appeal to sign the citation. (Farmei's" Loan & T. Co. v. Chicago & N. P. Ry. Co., 34 U. S. App. 626; 73 Fed. Rep. 314.) § 533. Bond in error and on appeal. — 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 dam- ages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid. (Rev. Stats, sec. 1000.) Good and sufficient security.— This section does not prescribe any form of security: a bond given in the usual form has been the uniform practice (Seymour v. Philips & C. Const. Co., 7 Biss. 460; Fed. Cas. No. 12689); but it must be taken before the judge or jus- tice as the cleric alone has no power to take it. (O'Reilly v. Edrington. 96 U. S. 724: National Bank V. Omaha. 96 L. S. 787.) The requirement that the judge shall take good and sufficient security implies that he shall approve the bond, but an approval may be inferred from The facts (Silver v. Ladd. 5 Blatchf. 440): and if the judge who signs the citation takes the oath of the sureties to their sufficiency, it will be inferred that he approved the bond. (Davidson v. Lanier, 4 Wall. 447; Silver v. Ladd, 5 Blatchf. 440.) Fed. Proc. - 104. § 533 PROCEDURE ON ERROR AND APPEAL. 1'_'38 If the usual affidavit of the sureties accompanies the bond at the time of its approval no further justifica- tion is required unless on allegation of their inability. (Hatch V. Codington, 5 Blatrhf. 523: Fed. Cas. No. 6205; see Hobson v. Johnson, 4 Biss. 505; Fed. Cas. No. 6553.) The mere fact that the sureties do not re- side in the district is not a reason for objecting to the bond if in other respects unoblectionable. (Ex parte Milwaukee R. Co., 5 Wall. 188.) The bond may be ap- proved by the judge at chambers (Hudgins v. Kemp, 18 How. 530; but if it is insufficient he cannot at chambei-s require a bond for an additional amount (Butchers' Assn. v. Slaughter House, 1 Woods, 50; Fed. Cas. No. 2234); but if after allowing a super- sedeas rule he finds that the bond is insufficient, he may revolie the order. (Black v. Zacharie, 3 How. 483.) The refusal of the circuit court to accept a supersedeas bond during tha term does not neces- sarily take away the power to approve one thereafter. (Sage V. Railroad Co., 96 U. S. 712.) A bond is not sufficient for appeal or for supersedeas unless the obligors are bound for the payments of costs. (Seward V. Corueau, 102 U. S. 161.) Approval of bond. — It is within the discretion of the judge to approve the bond with a penalty for less than double the amount. (Hatch v. Ooddington. 5 Blatchf. 523; Fed. Cas. No. 6205.) And to diminish the amount of the penalty in propoi'tion to the amount of bonds deposited. (Rubber Co. v. Goodyear, 6 Wall. 153.) In case of perishable propei'ty the actual loss may be taken into consideration. (Duncan v. M. «fe O. R. Co., 3 Woods. .597; Fed. Cas. No. 41.39.) The juflge who signs the citation is the sole and exclusive judge of the sufficiency of the security (Black v. Zacharie, 3 How. 48.3); as where damages are claimed (Ex parte lYench, 100 U. S. 1); his action is conclusive 1 1239 PROCEDURE ON ERROR AND APPEAL. § 533 both as to the amount of the surety and the suffi- ciency of the sureties. (Jerome v. McCartei', 21 Wall. 17; Martin v. Hazard Powd. Co., 93 U. S. 302; Ex parte French, 100 U. S. 1.) After the allowance of the appeal the question of the sufficiency of the se- curity becomes cognizable in the supreme court. (Rubber Oo. v. Goodyear, 6 Wall. 153.) The supreme court cannot inteafere to enlarge the security to cover damages which plaintiff may recover for mesne prof- its, or other losses. (Roberts v. Cooper, 19 How. 373.) Omission to give security. — The provision in this section is merely directory to the judge, and an omis- sion to take the bond does not necessarily avoid the writ or the appeal; the supreme court may in such a case grant the proper relief (Martin v. Hunter, 1 Wheat. 304; Anson v. Blue Ridge R. Co., 23 How. 1; Davidson v. Lanier, 4 Wall. 447; Seymour v. Freer, 5 Wall. 822; but see Boyce v. Grandy, 6 Peters, 777); and the party may be allowed time to give the bood (Anson v. Blue Ridge R. Co., 23 How. 1; Brobst v. Brobst, 2 Wall. 96; Seymour v. Freer, 5 Wall. 822.) If the record shows no security taken the appeal will be dismissed (Boyce v. Grandy, 6 Peters, 777); but the presumption is, that the judge who signed the citation took the security as required by law. (Martin v. Hunter, 1 Wheat. 304.) The objection that the bond was given by only one of several appellants may be taken by a preliminary motion to dismiss. (Mande- ville V. lliggs, 2 Peters, 482.) The defendant must procure sureties although he is amply responsible (Amer. Pave. Oo. v. Elizabeth, 6 Off. Gaz. 772; Fed. Cas. No. 310); but the law does not require that the security shall be in any fixed proportion to the de- cree. (Amer. Pave. Oo. v. Elizabeth. 6 Off. Gaz. 772, Fed. Cas. No. 310.) In a proceeding on the relation, of a party the bond may run to the State or to the relator. (Spalding v. People, 2 How. 66.) The § 533 PROCEDURE ON ERROR AND APPEAL. 1240 amount recoverecl on execntion is not to be appor- tiont'd where the unpaid balance exceeds the penalty of the bond. (Ives v. Mercliants' Bank, 12 How. 1.59.) The proceeds of the sale must be first applied to the decree and the sureties left liable for the balance, (Sessions v. Pintard, 18 How. 106.) The omission to give the security as provided in this section is an ir- regularity merely, which may be subsequently cured. (Brown v. McConnell, 124 U. S. 489; Stewart v. Mas- terson, 124 U. S. 493.) The circuit court has no au- thority to grant an appeal without requiring bond for costs. (In re NeAvman, 79 Fed. Rep. 615.) Security on appeal.— The appeal bond must be given to the opposite party (Bigler v. Waller, 12 Wall. 142), or it will be dismissed (Davenport v. Fletcher, 16 How. 142); yet if irregular in this regard, time may be allowed to file a correct bond. (Biglei* v. Waller, 12 Wall. 142.) Appellant must either give good and sufficient security to answer all damages and costs, or if he does not wish to supei-sede execu- tion, sutficient security to answer for costs in case of affirmance. (Hayford v. Griffith, 3 Blatchf. 34; Fed. Cas. No. 6263.) A condition to the effect that appel- lant will pay the damages and costs and damages rendered and to be rendered till decree is affirmed, covers the requirements of the statute (Gay v. Par- part, 101 IT. S. 391); but it need not be sufficient to secure interest pending ai)p("al. (Jerome v. McCarter, 21 Wall. 17.) When talcen from an order directing the sale of property, the penalty will be little more than interest on the debt while the sale of the property was suspended. (Wilnier v. Atlanta etc. Co., 2 Woods. 447; Fed. Cas. No. 17776.) When the property neces- sarily follows the writ, indemnity to an amount suffi- cient to secure the sum received for use of the prop- erty and for incidental items is sufficient. (French v. 1241 PROCEDURE ON ERROR AND APPEAL. § 533 Shoemaker, 12 Wall. 86.) A defendant in an equity suit may be compelled to pay the sum allowed to the master as compensation for his services, although an appeal is duly taken. (Myers v. Dunbar, 12 Blatchf. 380; Fed. Gas. No. 9990.) If a bill is dismissed with- out qualification, a preliminary injunction falls, al- though an appeal is taken. (Eureka Consol, Min. Co. V. Richmond Min. Co., 5 Saw. 121; Fed. Cas. No. 4549.) On writ of error.— If the judgment is severable, each may file a separate bond. (Ex parte French, 100 U. S. 1.) When it operates as a supersedeas the security must be sufficient to satisfy the whole amount of the judgment (Catlett v. Brodie, 9 Wheat. 55.3; Tucker v. Lee, 3 Cranch C. C. 684; Fed. Cas. No. 14221; Bank v. Swann, 4 Cranch G. C. 139; Fed. Gas. No. 902); but see Kenner v. Bank, 2 Cranch C. G. 310; Fed. Cas. No. 11699); and the judge cannot exercise any discretion. (Stafford v. Union Bank, 16 How. 135; 17 How 275.) The condition of the bond is alterna- tive that plaintiff in error either prosecutes his writ to effect or answers all damages and costs. (Tucker V. Lee, 3 Cranch C. C. 684; Fed. Gas. No. 14221.) A writ of error becomes per se a supersedeas upon com- pliance with the statute (Tiernan v. Booth, 4 Fed. Rep. 620; 9 Biss. 499; Booth v. Tiernan, 109 U. S. 205; Arnold v. Frost, 9 Ben. 267; Fed. Gas. No. 558), if a citation is issued and served before the next en- suing term of the supreme court (Arnold v. Frost, 9 Ben. 267; Fed. Cas. No. 558), where nothing appears in the record to tlie contrary (French v. Shoemaker, 12 Wall. 86); but if the value of the matter in dispute does not appear in the record it cannot operate as a supei'sedeas. (Williamson v. Kineaid, 4 Dall. 20.) A writ of error sued out in a criminal case in a State court stays execution of the sentence. (Bryan v. Bales, 12 Allen, 201.) A State court cannot determine § 533 PROCEDURE ON ERROR AND APPEAL. l'J42 whether a writ of error operates as a supersedeas or not. (Ex parte Dunn, 6 S. C. 307.) The fact that a citation was not presented to and signed by the judge within sixty days will not necessarily prevent a writ of error from operating as a supersedeas. (Tiernan V. Booth, 4 Fed. Rep. 620; 9 Biss. 499; Booth v. Tier- nan, 109 U. S. 205.) Appeal— Supersedeas.— If a bond given on an ap- peal from a foreclosure decree is merely for costs, it will not stay the sale (Stafford v. Union Bank, 16 How. 135; 17 How. 275; Orchard v. Hughes, 1 Wall. 73); but the appeal will not be dismissed for that reason. (Orchard v. Hughes, 1 Wall. 73.) An appeal from a dec-ree disallowing an injunction against a judgment at law does not supersede the judgment (Grundy v. Young, 1 Cranch C. C. 443; Fed. Cas. No. 5850.) If the property is in charge of a receiver, an appeal opei'ating as a supersedeas will not entitle the party to a delivery of the property to him. (Schenk V. Peay, 1 Dill. 267; Fed. Cas. No. 12451.) The super- sedeas is but an appurtenant to the appeal and ends when the appeal becomes inoperative as by neglect to file the transcript. (Gillette v. Bullard, 20 Wall. 571.) Appealing and giving security operate as a stay of proceedings. (Ilscher v. Hayes, 7 Fed. Kej). 99; 19 Blatchf. 184.) The condition of the bond that appellants "shall duly prosecute their said appeal with effect, and, moreover, pay the amount of costs and damages rendered and to be rendered in ca.se the de- cree shall be affirmed" meets all the requirements of this section. (Gay v. Parpart, 101 U. S. 391; see Bab- bitt V. Finn, 101 U. S. 7.) The court may modify a supersedeas so as to allow a sale of mortgaged prop- erty. (Williams v. Clafiin, 103 U. S. 753; following Jerome v. McCarter, 21 Wall. 31.) 1243 PKOCEDURE ON ERROR AND APPEAL. § 533 Effect of supersedeas.— The only effect of a super- sedeas is to prevent further proceedings in the lower court; it does not operate to nullify or to reverse an in- junction. (Slaughter House Cases, 10 Wall. 27o; Whitney v. Mowry, 2 Bond, 45; Fed. Gas. No. 17592.) After appeal in a prize ease the district court can malie no order concerning the property (The Petei'- hoff, Blatchf. Prize, 620; Fed. Oas. No. 11025); and no sale of the property can take place (The Sunbeam, Blatchf. Prize, 638; Fed. Gas. No. 13614), nor can the court attach for contempt for neglecting to comply with a judgment. (Frazee v. Gordozo, 6 S. G. 815.) The supersedeas operates to prevent the payment out of a fund in court. (Goddard v. Ordway, 94 U. S. 672.) If an execution is improperly issued where there is a supersedeas the circuit court may on mo- tion quash it (Stockton v. Bishop, 2 How. 74); but if the bond is filed after execution of the writ the court will not restore the party to his prior rights. (Board v. Gorman, 19 Wall. 661.) A judgment in a State court awarding a peremptory mandamus cannot be executed if defendant file a bond. (State v. Johnson, 29 La. Ann. 399; U. S. v. Columbian Ins. Go., 2 Granch C. G. 2©6; Fed. Gas. No. 14840.) Liability of surety.— The sureties become liable If judgment is affirmed in the circuit court, and they are not discharged, although the case is taken to the su- preme court, and a new bond is given. (Babbitt v. J"'inn, 101 U. S. 7.) And if judgment is affirmed an action lies on the bond without first issuing execution against defendant (Babbitt v. Finn, 101 U. S. 7); but on the action there must be an allegation of a single breach denying each alternative that the writ was not prosecuted with effect, nor did the plaintiff in eiTor answer the damages and costs, which must be spe- cially set forth. (Tucker v. Lee, 3 Granch G. O. §§ 534-535 PROCEDURE ON ERROR AND APPEAL. 12-44 684, Fed. Cas. No. 14221: Bank v. Swann, 4 Crauch C. C. 139, Fed. Can. No. 902.) Interest on the penalty from the time of demand may be recovered. (Ives v. Merchants' Bank, 12 How. 159.) Under this section the damages recoverable on an appeal bond are such only as result from the delay in the sale of the prop- erty, and do not include accumulated interest. (Su- pervisoi-s v. Kennicott, 103 U. S. 554.) Sureties ou an appeal bond will be protected when they have acted in good faiith. (Bayliss v. Lafayette etc. R. Co., 9 Biss. 90, Fed. Cas. No. 1141.) § 534. No bond required of United States. — "Whenever a writ of error, appeal, or other process in law, admiralty, or equity issues from or is brought up to the supreme court, or a circuit court, either by the United States or by direction of any department of the Government, no bond, obligation, or security shall be required from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs. In case of an adverse decision, such costs as by law are taxa- ble against the United States, or against the party acting by direction as aforesaid, shall be paid out of the contingent fund of the department under whose directions ^he proceedings were instituted. (Eev. Stats, sec. 1001.) Note.— No bond in suing out an attachment need be given by the United States. (U. S. v. Ottman, 1 Iluglies, 313, 21 Int. Rev. Rec. 294; Fed. Cas. No. 1.^)977.) ^ 535. Writs of error to district courts acting as circuit courts. — Writs of error sliall be prose- 1245 PROCEDURE ON ERROR AND APPEAL. § 536 cuted from the final judgments of district courts acting as circuit courts to the supreme court in the same manner' as from the final judgment of cir- cuit courts. (Eev. Stats, sec. 1002.) § 536. Writs of error to State courts. — 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 effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States. (Rev. Stats, sec. 1003.) Error to State courts.— A writ of error will not be allowed on application of an attorney not acting for appellant directly (Ex parte Dorr, 3 How. 10.3); and It must be brought In the name of the claimant who appeared to defend the action (The Burns, 9 Wall. 237); and issues under "regulations" of the United States courts (Buell v. Van Ness, 8 Wheat. 312); and be allowed by the circuit judge, and bear tlie seal of the court and signature of the clerk. (Buell v. Van Ness, 8 .Wheat. 312.) It need not on its face purport to be issued upon a final judgment of the highest court in the State, for it is the act of the court, and its object is to bring up the record, and cite the parties. (Buell v. Van Ness, 8 Wheat. 312.) A mistalve in the date does not viti .te it (O'Dowd \. Russell, 14 Wall. 402); nor is it objectionable that it bears teste on the date of its issue. (Atherton v. Fowler, 91 U. S. 143.) As to the return of the writ, the law malvcs no distinction between criminal and civil cases. (Worcester v. State, G Peters. .515.) If the clerk omits to make return, a rule of court may re- quire him to make return on the first day of the next term, or show cause or excuse for his neglect. (U. § 537 PROCEDUKE ON ERROR AND APPEAL. 1246 S. V. Booth, 18 How. 476.) If the record is duly certified by the clerk of the State court, authenti- cated by seal of the court, and annexed to the writ, it is sufficient (JNIartiu v. Hunter, 1 Wheat. 304; Wor- cester V. State, 6 Peters, 515), although the certificate of the judge is not appended (Worcester v. State. 6 Peters, 515), if it contains the judgment duly certified, over which the supreme court can exercise jurisdic- tion. (Webster v. Reid, 11 How. 437.) § 537. Writs of error returnable to the su- preme court. — Writs of error returnable to the supreme court may be issued as well by the clerks of the circuit courts, under the seals thereof, as by the clerk of the supreme court. When so is- sued they shall be, as nearly as each case may ad- mit, agreeable to the form of a writ of error trans- mitted to the clerks of the several circuit courts by the clerk of the supreme court, in pursuance of section nine of the Act of May eight, seventeen hundred and ninety-two, chapter thirty-six. (Rev. Stats, sec. 1004.) Return of writ. — The vrit of error is the writ of the supreme court (Mussina v. Cavazos, G Wall. 35.5); and a clei'k of the circuit court has no right to change its form without consent of tlie supreme court justices. (Barton v. Forsyth, 5 Wnll. 100.) It need not be allow- ed by nny judge; that it is issued and served by copy is sufficient. (Davidson v. Lanier, 4 Wall. 447.) When issued to the supreme court of a territory, it may be issued by the clerk of the territorial court. (Sheppard V. Wilson, 5 How. 210.) Prior to the adoption of this section a clerk of the circuit court could not issue the writ (West v. Barnes, 2 Uall. 401.) 1247 PROCEDURE ON ERROR AND APPEAL. § 538 § 538. Amendment of writ of error. — The su- preme court may, at any time, in its discretion and upon such terms as it may deem just, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made re- turnable on a day other than the day of the com- mencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form; provided, the defect has not prejudiced, and the amendment will not injure, the defend- ant in error. (Eev. Stats, sec. 1005.) Amendment.— This section is applicable to the cir- cuit court of appeals (Cotter v. Alabama G. S. R. Co., 22 U. S. App. 372; 61 Fed. Rep. 747). Before the adoption of this section a writ of error could not be amended. (Insurance Co. v. Mordecai, 21 How. 19.5; Porter v. Foley, 21 How. 393; Hodge v. Williams. 22 How. 87; Washington v. Dennison, 6 Wall. 495.) The right to amend under this section is not absolute, but is within the discretion of the court (Pearson v. Yew- dall, 95 U. S. 294); and where the record presents no question which has not been previously decided, leave to amend will not be granted. (Pearson v. Yewdall, 95 U. S. 294.) A writ of error without a seal is void. (Washington v. Dennison, 6 Wall. 495.) But it may be amended by affixing the seal (Cotter v. Alabama G. S. R. Co., 22 U. S. App. 372; 61 Fed. Rep. 747.) If the writ is not tested as of a preceding term the teste may be amended by the record of duration of that term (Course v. Stead. 4 Dall. 22); but the mere fact that it is dated before the entry of the judgment will §538 PROCEDURE ON ERROR AND APPEAL. 1248 not vitiate it if served after that time. (O'Dowd v. Russell, 14 Wall. 402.) If there is sufficient in the record to amend by, an omission may be amended. (Course v. Stead, 4 Dall. 22.) So if the names of par- ties are not set forth in the writ (Deueale v. Stump, 8 Peters, 520), or if an appeal is talieu in the name of the firm instead of the name of the individual member of the tirm. (Moore v. Simouds. 100 U. S. 145.) The name of the present administrator of an estate as plaintiff in error may be inserted in place of the former administrator (Walton v. Marietta Chair Co., 157 U. S. 342). If the writ is made returnable on the wrong day (National Bk. v. Bank of Commerce, 99 U. S. 608; Hampton v. Rouse. 15 Wall. 684), or the day is described imperfectly (McVeigh v. U. S., 8 Wall. 640), or left blank (Mossman v. Higginsou, 4 Dall. 12), it may be amended by inserting the proper return day (Atliorton v. Fowler, 91 U. S. 143); and a new citation will be issued. (National Bk. v. Bank of Commerce, 99 TJ. S. 608; Dayton v. Lash. 94 U. S. 112.) Where the record shows who are the members of the partnership, and an appeal has been taken in the name of the firm, the defect may be cured by amendment. (Moore v. Simonds, 100 U. S. 145.) A paper purporting to be a writ of error, but not being such, is not susceptible of amendment under this section. (Bondurant v. Watson, 1U3 U. S. 281.) Un- der section 1005 of the Revised Statutes, being section 3 of the act of June 1, 1872 (cliap. 255, 17 Stat, at L. 19()), this court may, at any time, in its discretion and ui)on such teriiis as it may deem just, allow an amendment of a writ of error "when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied 1)y reference to the accomi>anying record," "provide4.) The supersedeas is a statutory remedy, and can only be obtained by a strict compliance with the statute. (Sage v. Central R. R. Co., 93 U. S. 412.) The writ will not operate as a supersedeas unless sued out and a copy tiled in the clerli's otfice. (Moore v. Dunlop, 1 Cranch C. C. 180; Fed. Cas. 9759; Ex parte Ben, 1 Cranch C. C. 532; Fed. Cas. No. 1285; Railroad Co. v. Harris. 7 Wall. 574; O'Dowd v. Russell, 14 Wall. 402; Kitchen v. Randolph, 93 U. S. 80; contra. Telegraph Co. v. Eyser, 19 Wall. 419.) Such service as is required on writ of error is not required in case of appeal. (Bigler V. Waller, 12 Wall. 142.) Where the appeal is im- properly refused, judgment on a mandamus may di- rect that the security for a supersedeas be accepted as of the date of the appeal. (Ex parte Railroad Co., 95 U. S. 221.) And an appeal subsequently al- lowed vacates all acts done before its allowance. (Tliornl)ill v. Bank, 4 Am. L. T. 24fi; Fed. Cas. No. l.';99l.) If the approval of a supersedeas bond is obtained l)y fraud it may be vacated (Rail- road Co. v. Schutte, 100 U. S. 644), and no no>v bond will be taken. (Railroad Co. v. Schutte, 100 U. S. G44.) Tinder the Judiciary Act of 1789 and the act of 1803, an appeal or writ of enor, to ojKn-ate sus a supersedeas, must be taken and se- ciirity given within ten days after the rendition of tlie judgment or decree. (Adams v. Law, 16 How. 144; Iludgins v. Kemp, 18 How. 530; Silsby v. Foot, 20 How. 290; Washington v. Dennison, 6 Wall. 495; 1251 PROCEDURE ON ERROR AND APPEAL. S 540 Patterson v. De La Roade, 8 Wall. 293; Washington etc. R. R. Co. V. Bradleys, 7 Wall. 575.) Nor could the circuit court award a supersedeas unless the writ of error is taken within such time. (Hogan v. Ross, II How. 294.) Under Rev. Stat, sec. 1007, as amended by 18 Stat, at L. 318, a supersedeas cannot be al- lowed where an appeal was not taken or a writ of error suea out and served within sixty days, Sundays exclusive, after judgment. (Kitchen v. Randolph, 93 U. S. 86; Sage v. Central R. Co., 93 U. S., 412; Rodd V. Heartt, 17 Wall. 354; Texas & P. R. Co. v. Murphy, III U. S. 488; Wurts v. Hoagland, 105 U. S. 701; Peugh V. Davis, 110 U. S. 227.) To make a nunc pro tunc order for a supersedeas effectual, it must appear that the delay was the act of the court, and that injustice will not be done. (Sage v. Central R. R. Co., 93 U. S. 412.) The service of the writ of error must be within sixty days, "Sundays excluded," and security must be given "within sixty days" after the rendition of such judgment, or afterward by special permission. This can only mean that he may give the security and so obtain the supersedeas within the same sixty days which is allowed him to serve the writ. (Town of Danville v. Brown, 128 U. S. 503.) This section does not apply to judgments in the high- est court of a State. (Foster v. Kansas, 112 U. S. 201.) It refers only to judgments and decrees in the courts of the United States, and not to State courts. (Doyle V. Wisconsin, 94 U. S. 50; Foster v. Kansas, 112 U. S. 201.) A supersedeas, in order to stay pro- ceedings on an execution, must come before a levy is made. (Boyle v. Zacharie, 6 Pet. MS.) Time to file security. — Time is an essential element which cannot be disregarded, and to make a nunc pro tunc order effectual it must appear that the delay was the fault of the court, and not of the parties. (Sage V. Central R. R. Co., 93 U. S. 412.) Where the 8 540 PROCEDURE ON ERROR AND APPEAL. 1252 security of a supersedeas bond becomes impaired, tlie supreme court will order and adjudge it to be made sufficient by additional security. (Williams v. Clafiin, 103 U. S. 753; Jerome v. McCarter, 21 Wall. 17.) The time begins to run from tlie announcement of the de- cision, although the record is not signed till next day. (Board v. Gorman, 19 Wall. 6(31.) The right of appeal is determined by the entry of the final decree, al- though entered as of a prior date (Rubber Co. v. Good- year, 6 Wall. 153); but not till the actual filing of the decree (Seymour v. Freer, 5 Wall. 822); so a judgment is not final till it. is entered in the court. (Green V. Van Buskirk, 3 Wall. 448.) So the time begins to run from entry of the decree, although it provides for the taxation of costs, which are not taxed till after the time allowed for an appeal (Craig v. The Hartford, 1 McAll. 91; Fed. Cas. No. 3333); but if the court entertains a motion to open the decree the time does not begin to run until the motion is disposed of. (Brockett v. Brockett, 2 How. 238; Railroad Co. v. Bradleys, 7 Wall. 575; Memphis v. Brown, 94 U. S. 715.) Although the writ is served before the expira- tion of the sixty days, yet if not sealed till after that time it cannot operate as a supersedeas. (Washing- ton V. Dennison, 6 Wall. 495.) An appeal taken after sixty days cannot be allowed nunc pro tunc. (Sage V. Central R. R. Co., 93 U. S. 412; The Roanoke, 3 Blatchf. 390; Fed. Cas. No. 11875.) Where a motion for a new trial is filed the time begins to run from the day it is overrxiied. (Rutherford v. Penn. Mut. L. Ins. Co., 1 Fed. Rep. 45(3; 1 McCrary, 120; see Hatch V. Coddiuglon, 5 Blatchf. 523; Fed. Cas. No. G205.) The circuit court, during the term, may strike out and enter a judgment anew for the purpose of allowing a writ of <'rror to operate as a supersedeas (Memphis V. Brown, 94 U. S. 715), but if it is improperly award- ed the motion should be to discharge the order 1253 PKOCEDURE ON EKROK AND APPEAL. § 540 (Hudgins v. Kemp, 18 How. 530); and although an order has all the requisites of a decree, yet if followed by a decree the appeal will be regarded as taken from the latter (Rubber Co. v. Groodyear, 6 Wall. 15^i), and if it refers the Case to a commissioner and an- other decree is entered, the time runs from either decree. (Eodd v. Heartt, 17 Wall. 354.) If an inter- venor moves to set aside a decree the motion does not suspend the decree. (Sage v. Central R. R. Co., 93 U. S. 412.) Under section 11 of the act of June 1, 1872, the supersedeas bond may be executed and a supersedeas obtained within sixty days after the ren- dition of the judgment, and later with the permission of the designated judge. (Western U. Telegraph Co. V. Eyser, 19 Wall. 419; Boise County v. Gorman, 19 Wall. G61; see United States v. Addison, 22 How. 174; Stoclvton V. Bishop, 2 How. 74.) Writ of error as supersedeas.— A writ of error be- comes a supersedeas per se where the party suing it out complies with the statute. (Tiernan v. Booth, 9 Biss. 499; 4 Fed. Rep. 620.) It will operate as a supersedeas if duly seawed within sixty days, Sun- day exclusive, after motion for new trial overruled. (Rutherford v. Penn. Mut. L. Ins. Co., 1 Fed. Rep. 456; 1 McCrary, 120; Tiernan v. Booth, 9 Biss. 499; 4 Fed. Rep. 620; Arnold v. Frost, 9 Ben. 267; Fed. Cas. No. 558.) If the writ of error is too late to operate as a supersedeas the supreme court will not quash a writ of possession issued to enforce the de- cree. (Wallen v. Williams, 7 Cranch, 278.) The court will not grant a writ of possession where there was a mere technical defect in the supersedeas. (Tiernan V. Booth, 9 Biss. 499; 4 Fed. Rep. 620.) The circuit court has no power to stay the execution on the ground of mistalie (Saltmarsh v. Tuthill, 12 How. 387); and there is nothing to pTevent the clerlj from preparing an execution before the sixty days; but it § 540 PEOCEDURE ON ERROR AND APPEAL, 1254 cannot be issued before the expiration of the sixty days. (Board v. Gorman, 19 Wall. 661; Ex parte Dunn, 6 S. C. 307.) The prohibition of the issuance of execution until after a certain time refers only to judgments and decrees of Federal courts. (Doyle V. Wisconsin, 94 U. S. 50.) Although the bond is filed within the sixty days, yet the writ will not operate as a supersedeas unless a copy thereof is lodged in the clerk's othce within sixty days (Rail- road Co. V. Harris, 7 Wall. 574; see Thornhill v. Bank, 4 Am. L. T., N. S., 245; Fed. Cas. No. 13991; Thompson v. Yoss, 1 Cranch 0. O. 108; Fed. Cas. No. 13979; Adams v. Law, 16 How. 144); but if the district court extends the time for giving the bond, when taken it relates back to the time of taking the appeal (Dutcher v. Woodhull, 7 Ben. 313; Fed. Cas. No. 4204); and if the writ of error is sued out and served within the sixty days, the required security may be given after the service. (Kitchen v. Randolph, 93 U. S. 86.) The service of the writ of error or the perfection of the appeal within sixty days is an indispensable prerequisite to a supersedeas, and no stay of process can be granted on the judgment if this is not done. (Kitchen v. Randolph, 93 U. S. 86; Sage v. Central R. R. Co., 93 U. S. 412.) A bond filed on the taking of an appeal in an action at law cannot operate as a supersedeas (Sallraarsh v. Tut- hill, 12 How. 387); and if no bond is tiled to stay execution of the decree appellant cannot complain on account of its enforcement. (Soutter v. Da Crosse Railroad, 1 Woolw. 80; Fed. Cas. No. 13180.) Where a petition is filed for a rehearing in the State court, the granting of a writ of error and the filing of the bond witnin sixty days will operate as a supersedeaa. (Slaughter House Cases, 10 Wall. 273.) Where the de- cree is special, and its terms are to be subsequently settled, the appellant may file the bond within sixty days after entry of the decision, or within sixty days J 1255 PEOCEDUBE ON ERKOR AND APPEAL. § 541 after the entry of the decree (Silsby v. Foote, 20 How. 2yu); and if he does not give the bond within sixty days he may nevertheless sue out his writ of error or talie his appeal at any time within two years upon giving security to cover the costs. (Saltmarsh V. Tuthill, 12 How. 387; Hudgins v. Kemp, 18 How. •530; The Roanolie, 3 Blatchf. 31)0; Fed. Oas. No. 11875.) After acceptance of a bond in awarding a superse- deas the jurisdiction of the lower court ceases and it attaches here, and the lower court cannot make an order requiring additional secnrity. (Keyser v. Farr, 105 U. S. 265.) Sundays are to be excluded in the computation of time under the last clause of the above section. (Danielson v. Northwestern Fuel Co., 55 Fed. Kep. 49.) § 541. Writs of error and appeals to supreme court, time for taking. — No 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, un- less the writ of error is brought, or the appeal is taken, within two years after the entry of such judgment, decree, or order; provided, that where a party entitled to prosecute a writ of error or to take an appeal is an infant, insane person, or im- prisoned, 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. [See sec. 635. J (Eev. Stats, sec. 1008.) Within what time.— A writ of error (Gelston v. vHoyt, 3 Wheat, 246; Brooks v. Norris, 11 How. 204) or an appeal (U. S. v. Pacheco, 20 How. 261) must be allowed within two years, or the court may § 542 PROCEDURE ON ERROR AND APPEAL. 1250 disallow the appeal; but if the appeal was al- lowed within the two years, the court may accept tlie security after that time and allow the ap- peal nunc pro tunc. (Brandres v. Cochrane, 13 Fed. Rep. 142, notes; The Dos Hermauos, 10 Wheat. 306.) The limitation prescribed by this section does not apply to writs of error coram nobis. (Strode v. Stafford Justices, 1 Brocli. 162; Fed. Cas. 1S537.) If an opinion is filed containing directions for a decree there is no decree until it is tiled, and if subsequently amended the last is the final decree. (U. S. v. Gomez, 1 Wall. Gatement the judg- ment cannot be reversed on error. (IMquignot v. Penn- sylvania 11. R. Co., 16 Hovvf. 104; see Stafford v. Union Bank, 16 How. 135.) The above section does not fori (id the review of a decision of a question of juris- diction depending on the sufficiency of the service of summons (Goldey v. Morning News, 156 U. S. 518). Under the alxive section the sufficiency of the evi- dence to sustain the findings of the court can only be presented for review by a request for a peremp- tory holding that on the undisputed facts the finding must be otherwise (Citizens' Bank of Wichita v. Far- 1259 PROCEDURE ON ERROR AND APPEAL. § 544 well, 27 U. S. App. 2G8; 63 Fed. Eep. 117; Rhodes v. United States Nat. Bank, 24 U. S. App. 607; 66 Fed. Rep. 512; National Bank of Commei-ce v. First Nat. Bank, 27 U. S. App. 88; 61 Fed. Rep. 809; Rodecker V. Littauer, 19 U. S. App. 455; 59 Fed. Rep. 857; Board of Commissioners v. McMaster, 32 U. S. App. 367; 68 Fed. Rep. 177; Searcy County v. Thompson, 27 U. S. App. 715; 66 Fed. Rep. 92; Distilling & Cattle Feeding Co. v. Gottschalk Co., 24 U. S. App. 638; 66 Fed. Rep. 609; Adkins v. W. & J. Sloane, 19 U. S. App. 661 ; 61 Fed. Rep. 791 ; Burrows v. Niblack, 53 U. S. App. 712; 84 Fed. Rep. Ill; Minchen v. Hart, 36 U. S. App. 534; 72 J'ed. Rep. 294; Woodbury v. City of Shawneetown, 34 U. S. App. 655; 74 Fed. Rep. 205. On writ of error the findings of fact are binding on the appellate court (Jones y. McCoruiick Harvesting Co., 53 U. S. App. 408; 82 Fed. Rep. 295; Smiley v. Barker, 55 U. S. App. 125; 83 Fed. Rep. 684; Adkins v. W. & J. Sloane, 19 U. S. App. 661; 61 Fed. Rep. 791; Hardman v. Montana Union Ry. Co., 83 Fed. Rep. 88; Hoge v. Magnes, 56 U. S. 500; 85 Fed. Rep. 355; O'Hara v. Mobile & O. Ry. Co., 40 U. S. App. 471; 76 Fed. Rep. 718; Farwell v, Sturges, 9 U. S. App. 405; 56 Fed. Rep. 782.) Verdict — When conclusive. — The sufficiency of the evidence to sustain the verdict is not reviewable in Federal appellate courts, unless defendant asked a peremptory instruction for a verdict in his favor at the close of the whole evidence (Pac. Mut. Life Ins. Co. V. Snowden, 12 U. S. App. 704; 58 Fed. Rep. 342; German Ins. Co. v. Frederick, 19 U. S. App. 24; 58 Fed. Rep. 144; City of Lincoln v. Sun Vapor St. Light Co., 19 U. S. App. 431; 59 B'ed. Rep. 756; Chisholm V. Radford Brick Co., 24 U. S. App. 523; 65 Fed. Rep. 1; Terre Haute & I. R. Co. v, Mansberger, 28 U. S. App. 313; 65 Fed. Rep. 196; McCormick v. Falls City Bank, 9 U. S, App. 203; 57 Fed. Rep. 107; Great § 544 PROCEDURE ON ERROR AND APPEAL. 1260 Northern Ry. Co. v. McLaughlin, 44 U. S. App. 189; 70 Fed. Rep. 669). And even though a motion for a verdict be made and overruled or granted, the verdict of the jury -wall not be disturbed except clear er- ror be shown (Carter Crume Co. v. Peurrung, TJ. S. App., 86 Fed. Rep. 439: Merwin v. Magone, 35 U. S. App. 741; 70 Fed. Rep. 776; Magone v. Origet, 35 U. S. App. 744; 70 Fed. Rep. 778; Gulf etc. Ry. Oo. V. Ellis, 10 U. S. App. 640; 54 Fed. Rep. 481), When there is evidence to sustain a verdict an appel- late court should not reverse the judgment thereon on the ground that the jury erred in the amount of their finding (Crosby Lumber Co. v. Smith, 3 U. S. App. 125; 51 Fed. Rep. 63; Morning .Toiu*nal As«n. v. Ruth- erford, 1 U. S. App. 201} ; 51 Fed. Rep. 513). The rec- ord must disclose that the whole evidence is included in the bill of exceptions or the sufficiency of the evidence to sustain the verdict cannot be considered (National Masonic Assn. v. Shryocli, 36 U. S. App. 658; 73 Fed. Rep. 774). Harmless error.— An error committed by the trial court which is immaterial in view of the whole case, is not ground for reversal (McElwee v. Bridgeport Land v^- Imp. Co., 13 U. S. App. 195; 54 Fed. Rep. 627; Texas & Pac. R. R. Co. v. Nolan. 23 U. S. App. 443; 62 Fed. Rep. 552; Migeon v. Montana Cent. Ry. Co., 44 U. S. App. 724; 77 P'ed. Rep. 249; Steiuer v. Ep- pinger, 23 U. S. App. 344; 61 Fed. Rep. 253; Manufac- turers' Accident etc. Co. v. Dorgan, 16 U. S. App. 290; 58 Fed. Rep. 945; Hudmon v. Cuyas, 13 U. S. App. 443; 57 Fed. Rep. 355; United States v. Patrick, 36 U. S. App. 645; 73 Fed. Rep. 800; United States v. Shapioigli, 12 U. S. App. 26; 54 Fed. Rep. 126). But it must clearly appear from the record that the error was harmless, or error in giving instructions must lead to reversal (Atchison T. & S. Fe R. Co. v. Mc- Clurg, 19 U. S. App. 346; 59 Fed. Rep. 860; National 1261 PROCEDURE ON ERROR AND APPEAL. § 544a Masonic Ace. Assn. v. Shryock, 36 U. S. App. 658; 73 Fed. Eep. 774). § 544 a. Cases tried by the circuit court with- out the intervention of a jury. — When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the inter- vention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time and duly presented by a bill of ex- ceptions, 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. (Eev. Stats, sec. 700.) See ante, sees. 115, 116. Special findings— Review of.— When there is a special finding of facts the appellate court will only consider whether upon such facts the judgment was correctly rendered (White v. Thacker, 41 U. S. App. 745; 78 Fed. Rep. 8G2; Randle v. Barnard, 53 U. S. App. 377; 81 Fed. Rep. 682; Walker v. Miller, 19 U. S. App. 403; 59 Fed. Rep. 869; Insurance Co. v. International Trust Co., 36 U. S. App. 291; 71 Fed. Rep. 88; Wesson v. Saline County, 34 U. S. App. 680; 73 Fed. Rep. 917; Blanchard v. Commercial Bank, 44 U. S. App. 456; 75 Fed. Rep. 249). When a jury Is waived in the circuit court, a party wishing to raise any question of law upon the merits in the court above should request special findings of fact framed like the verdict of a jury and reserve his exceptions to those special findings Fed. Proc— 106. § 544a PROCEDURE ON ERROR AND APPEAL. 1*262 if he deem them not sustained by the evidence (Humphreys v. Third Nat. Banli, 43 U. S. App. 698; 75 Fed. Kep. 852; Mercantile Trust Co. v. Wood, 19 U. S. App. 567; 60 Fed. Rep. 346). If finding of the facts is special it should be set forth on the record in the natm-e of a special Tcrdict. (Hyde v. Booraem, 16 Fetei-s, 169; U. S. v. Kins, 7 How. 833; Weems v. George, 13 Hoav. 190; see Parsons v. Ar- moa% 3 Peters, 413.) If there is a special finding, the evidence will not be examined to see whether the finding is right. (Saulet v. Shepherd, 4 Wall. 502; Copelin v. Ins. Cq., 9 Wall. 461; Insurance Ck>. v. Folsom, 18 Wall. 237; Insurance Co. v. Sea, 21 Wall. 158; U. S. V. Dawson, 101 U. S. 569; l^ng v. Grin- nell, 92 U. S. 467.) The review extends to the suffi- ciency of the facts found to support the judgment. (Tyng V. Grinnell, 92 U. S. 467.) If not sufficient to support the judgment, the case may be remanded for trial on other issues involved therein. (Ex parte French, 91 U. S. 423.) If there Is no special finding of facts, the supreme court cannot examine the evi- dence to determine whether it is sulficient to support the judgment. (Norris v. Jaclvson, 9 Wall. 125; Gen- eres v. Campbell, 11 Wall. 193; Miller v. Life Ins. Co., 12 AVall. 285; Richmond v. Smith, 15 Wall. 429; Dickinson v. Planters' Bank, 16 Wall. 250; Ohio v. Marcy. 18 Wall. 552; Fan-ell v. U. S., 99 U. S. 221; Miller v. Houston City St. Ry. Co., 13 U. S. App. 57; 55 Fed. Rep. 366.) If there is no error in making up the findings of fact, the judgment may be reversed and a new trial awai-ded. (Flanders v. Tweed, 9 Wall. 425.) Trial by the court.— Where a party is present and goes to trial Ix'tore the court without objection, he will be deemed to have waived a jury trial (Phil- lips V. Preston, 5 How. 278; Gilman v. Illinois & M. Tel. Co., 91 U. S. 603); but if there is nothing to show 1263 PROCEDUKE ON ERROR AND APPEAL. § 544a that he or his counsel were present, it is error for the court to try the issues without a jury- (Kearney V. Case, 12 Wall. 275.) If the record shows a waiver of a jury trial, but not that such waiver was in. writing, it is sufficient to support the judgment but not to authorize a review of the rulings. (Kearney V. Case, 12 Wall. 275.) A recital in the record that a jury is waived is conclusive of an agreement to waive it. (Fleitas v. Coclirau, 101 U. S. 301.) A statement of facts filed after judgment is no evidence of a waiver. (Flanders v. Tweed, y Wall. 425.) If the record does not show a waiver, judgment may be reversed and the case remanded. (Flanders v. Tweed, 9 Wall. 425.) Rulings at the trial of an action at law, without a jury, when there had been no waiver of a jury by stipulation in writing signed by the parties or their attorneys, and filed with the clerk, are not reviewable under this section. (Bond v. Dustin, 112 U. S. 604; Paine v. Cent. Vt. Railroad, 118 U. S. 152; Dundee Mortgage Co. v. Hughes, 124 U. S. 157; Rob- erts V. Benjamin, 124 U. S. 64.) Eulings. — If the case was tried by the court, the improper rejection of evidence is a proper subject for a bill of exceptions (Arthurs v. Hart, 17 How. 6); but if the testimony is cumulative, judgment will not be reversed if it could not have influenced the result. (Arthurs v. Hart, 17 How. 6.) So the ad- mission of immaterial evidence is no sufficient rea- son for reversing a judgment when it would not have injuriously affected the party objecting. (Mining Co. V. Taylor, 100 U. S. 37.) The ruling on admission of evidence must be properly excepted to. (Tyng \. Grinnell, 92 U. S. 467; Weems v. George, 13 How. 190; Campbell v. Boyreau, 21 How. 223; see Field v. U. S., 9 Peters, 182.) If the judge refuses an instruc- tion at the close of plaintiff's case that the evidence is not sufficient to entitle plaintiff to recover, the § 544a PROCEDURE ON ERROR AND APPEAL. 1264 ruling is subject to review (Insurance Co. v. Folsom, 18 Wall. 237; Folsom v. Mercantile Ins. Co., 9 Blatchf. 201; Fed. Cas. No. 4903);^ but the rulings of the judge on prayers for instructions to submit to the jury can- not be reviewed. (Dirst v. Morris, 14 Wall. 484; Crews V. Brewer, 19 Wall. 70; Cooper v. Omohundro, 19 Wall. 65; see Miller v. Life Ins. Co., 12 Wall. 285.) A refusal to grant a new trial is not subject to re- view, as the granting or refusing is in the discretion of the court (Cooper v. Omohundro, 19 Wall. 65); so of the allowance of time for the production of further evidence (Gilman v. Illinois & M. Tel. Co.. 91 U. S. 603); or a ruling on motion to strilie out a judgment entered on the pleadings. (Cheang Kee v. U. S., 3 Wall. 320.) Findings.— The court under this section may deter- mine, as in case of a special verdict, whether the facts in the agreed statement are sufficient to sustain the judgment, although the finding of the circuit court was in form general. (Supervisors v. Kennicott, 103 U. S. 554.) The findings of the court are conclusive. (Davis V. FredericlvS, 104 U. S. 018.) In cases of trials not by jury, a statement of facts is necessary to enable this court to review the decision of the court below. (Bonnifield v. Price, 4 Morr. Trans. 357.) Where the finding is general, no question of law is subject to review except those growing out of the rulings. (Dirst v. Morris, 14 Wall. 484; Insurance Co. V. Folsom, 18 Wall. 237; Cooper v. Omohundix), 19 Wall. Go; Crews v. Brewer, 19 Wall. 70.) If the judge finds the facts, and then proceeds to deduce there- from another fact, the conclusion may be revised. (French v. Edwards. 21 Wall. 147.) A statement of facts signed by counsel cannot be deemed a finding of facts. (Bethel v. Matthews, 13 Wall. 1; Kearney v. Case, 12 Wall. 275.) An opinion reciting some evi- dence, and stating evidence instead of facts found, 1265 PROCEDURE OX ERROR AND APPEAL. g 544a is not a statement of facts (Insurance Co. v. Tweed, 7 Wall. 44); and a statement or opinion tiled after entry of judgment cannot be regarded (Flanders v. Tweed, 9 Wall. 425; United States v. King, 7 How. 833; see McGavock v. Woodlief, 20 How. 221); so, a mere report of the evidence is not a sufficient state- ment of facts (Crews v. Brewer, 19 Wall. 70); and a statement filed without consent of the parties after issue and service of the writ of error cannot be re- garded. (Generes v. Bonnemer, 7 Wall. 564; Aven- dano V. Gay, 8 Wall. 376.) When the cause is tried by the court without a jury, judgment will be af- firmed if there is neither a special verdict nor an agreed statement of facts, nor a bill of exceptions to rulings. (Minor v. Tillotson, 2 How. 392; Prentice V. Zane, 8 How. 470; Guild v. Frontin, 18 How. 135; Kelsey v. Forsyth, 21 How. 85; Lawler v. Claflin, 22 How. 23; New Orleans v. Gaines. 22 How. 141; Gil- man V. Illinois & M. Tel. Co., 91 U. S. 603.) The de- cision of the circuit court on the weight of evidence is conclusive. (Bond v. Brown, 12 How. 254.) Exceptions to be taken. — An objection to the ad- mission or exclusion of evidence or to the ruling on propositions of law must appear by bill of excep- tions (Norris v. Jackson, 9 Wall. 125); so where the objection is that the evidence was not suflicient to justify the finding. (Cucullu v. Emmerling, 22 How. 83.) If the verdict is general, only such rulings can be reviewed as are presented by bill (NoiTis v. Jack- son, 9 Wall. 125; Miller v. Life Ins. Co., 12 Wall. 285); and the bill of exceptions cannot be used to bring up the whole testimony for review (Dirst v. Morris, 14 Wall. 484; see Coddington v. Richardson, 10 Wall. 510); but whether the finding is general or special, the rulings, if excepted to, may be reviewed (Miller v. Life Ins. Co., 12 Wall. 285); and no bill of exceptions is necessary to bring up on the record the § 544a PROCEDUKE ON ERROR AND APPEAI,. 1266 findings, whether general or sjiecial (Insurance Co. v. Boon, 95 U. S. 117.) The mere fact that other evi- dence was given besides what is found in the bill of exceptions is no objection to the examination of the question of law presented by it. (Arthurs v. Hart, IT How. G.) A general exception to a special finding is not sufficient (Insurance Co. v. Sea, 21 Wall. 158); and no exception can be talvcn to a refusal to malie a special finding. (Insurance Co. v. Folsom, 18 Wall. 237.) Exceptions to rulings of the court must be taken at the time. (Nickerson v. Steamship Co., 4 Morr. Trans'. 360.) The court refuses to con- sider errors assigned on a mere motion for a new trial, and not made part of the record by bill of ex- ceptions. (Levy V. Danzcl, 3 Morr. Trans. 115.) Al- leged errors not brought to the attention of the in- ferior court cannot be considered. (Davis y. Fred- ericks, 104 U. S. 618.) Where no bill of exceptions is taken, this court cannot consider the validity of an order setting aside a nonsuit. (Loring v. Frue, 3 Morr. Trans. 174.) Bills of exceptions must embody the evidence, or refer to the evidence contained in other parts of the record. (Jones v. Buckell, 3 Morr, Trans. 555.^ A prayer for instructions presented as a whole is properly refused if any of them is erroneous. (U. S. V. Hough. 103 U. S. 71.) It is error to in- struct toucliing the law applicable to facts not sup- ported by evidence. (Jones v. Van Beuthuysen. 103 U. S. 87.) Where the bill of exceptions sets forth all the facts, the judgment will not be reversed, be- cause a peremptory instruction was given to return a verdict in favor of the plaintiff. (Arthur v. Jacoby, 103 U. S. 077.) A verdict in assumpsit is amendable, HJid judgment may be rendered therein for the dam- ages thereby caused. (Miles v. U. S., 103 U. S. 304.) An amended bill tiled witliout leave eight years after a bill in equity had l^een filed will be disregarded on i 1267 PROCEDURE ON ERROR AND APPEAL. § 545 appeal. (Terry v. McClure, 103 U. S. 442.) An order made by the court below by consent of parties la binding on them on appeal. (Water Works Co. v. Barrett, 103 U. S. 516.) A cause not entitled to prece- dence will not, over objections, be advanced in order to be heard before another case on the docliet. (Louis- iana V. New Orleans, 103 U. S. 521.) Where the only question presented arises on the finding of facts, the appeal will be dismissed. (Niclcerson v. Merchants' S. Co., 12 Fed. Kep. 352, note.) § 545. Appeals from circuit courts to supreme court. — Appeals from the circuit courts and dis- trict courts acting as circuit courts, and from dis- trict courts in prize causes, shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error. (Rev. Stats, sec. 1012.) Appsal, rules, and regulations.— The supreme court lias no power to receive an appeal in any other mode than that provided by law (Villabolos v. United States, 6 How. 81; United States v. Moore, 11 Fed. Rep. 248), nor to dispense with or change the law. (United States v. Curry, 6 How. 106.) The rules, regulations and restrictions as to time within which the writ of error may be brought, and when it shall operate as a supersedeas, the citation, the security to be given, and the restrictions upon the appellate court as to reversal are all applicable. (The San Pedro, 2 Wheat. 132.) The law does not require an appeal to be made in open court; it may be made in vacation, and the form in which it is taken is immaterial. (Hudgins v. Kemp, 18 How. 530.) An entry on the minutes is not necessary; the certificate of the clerk to the facts is all that is required. (Hudgins t. Kemp, 18 How. 530.) And where an appeal bond is filed, the record may be amended nunc pa-o time to § 545 PROCEDURE ON ERROR AND APPEAL. 1268 show an appeal taken. (Nicholson v. Chicago, 5 Biss. 89; Fed. Cas. No. 10248.) Appeals entered at the succeeding- term will be dismissed. (In re McEwen, 9 Biss. 3G8.) A cross-appeal must be prosecuted like any other appeal. (Weuslow v. Wilcox, 4 Morr. Trans. 394.) If the decree is joint all the defendants must join, unless there is a severance (Owings v. Kin- cannon, 7 Peters, 399; Mussina t. Cavazos, 20 How. 280; Masterson v. Herndon, 10 Wall. 416); but one of them may prosecute, although the others abandon it (Todd V. Daniel, 16 Peters, 521); and any one hold- ing a distinct interest may appeal. (Forgay v. Con- rad, 6 How. 201.) An appeal or supereedeas does not oust the jurisdiction of the lower court or preclude collateral or independent proceedings. (Fidelity Trust & S. D. Co. V. Mobile St. Ry. Co., 54 Fed. Rep. 26.) Application and allowance.— An appeal is a matter of right, and no petition is necessary. (United States V. Curry, 6 How. 106.) A petition praying for an ap- peal does not operate to remove the cause, unless ac- companied by an allowance of the appeal by the court (Yeaton v. Lenox, 7 Pet. 220; Barrell v. Transporta- tion Co:, 3 Wall. 424; Pierce v. Cox, 9 Wall. 786); and if no appeal lies the court may refuse to allow it (San Francisco v. United States, 4 Saw. 553; Fed. Cas. No. 12316); but whfn allowed the circuit court cannot af- terward set aside the order allowing it. (McGarra- han V. The New Idria Min. Co., 49 Cal. 331.) Who- ever can sign a citation may allow the appeal. (Sage V. Railroad Co., 96 U. S. 712.) The order allowing an appeal may at the request of appellant be set aside at any time during the term. (Goddard v. Ord- way, 101 U. S. 745.) There is no provision in the stat- ute for the form of allowance; the acceptance of se- curity followed, when necessai-y, by the signing of a cit/ition is in legal effect an allowance of the appeal. 1269 PKOCEDUKE ON EKROR AND APPEAL. § 545 (Sage V. Railroad Oo., 96 U. S. 712; Brandies v. Coch- rane, 105 U. S. 202; S. C. 13 Fed. Eep. 142.) Where the claim and bond were sufficient a motion to dismiss will be denied (Scruggs v. Viser, 13 Fed. Rep. 304, note); and it may be inferred that the appeal was al- lowed, although the allowance does not appear on the record (Railroad Co. v. Bradleys, 7 Wall. 575) ; but the mere approval of the bond during the term is not suf- ficient. (Vansant v. Gaslight Co., 99 U. S. 213.) If allowed in open court during the term the allowance should be entered on the minutes. (Vansant v. Gas- light Co., 99 U. S. 213.) The citation. — A citation to the opposite party to appear is necessary (Villabolos v. United States, 6 How. 81; United States v. Curry, 6 How. 106; Garri- son V. Cass Co., 5 W^all. 823; Alviso v. United States, 5 Wall. 824; Railroad Co. v. Blair, 100 U. S. 661; Ja-- cobs V. George, 150 U. S. 415; Peace River Phosphate Co. V. Edwards, 30 U. S. App. 513; 70 Fed. Rep. 728; West V. Irwin, 9 U. S. App. 547; 54 Fed. Rep. 419); but if an appeal is taken in open court at the same term at which the decree is entered, no citation is necessary (Reily v. Lamar, 2 Cranch, 344; The San Pedro, 2 Wheat. 132; Yeaton v. Lenox, 7 Pet. 220; Brockett v. Brockett, 2 How. 238; Villabolos v. United States, 6 How. 81; United States v. Vigil, 10 Wall. 423; Milner v. Meek, 95 U. S. 252; Jacobs v. George, 150 U. S. 415; Central Trust Co. v. Continental T. Co., U. S. App., 86 Fed. Rep. 517); but the record must show the appeal was allowed in open court (Vansant v. Gaslight Co., 99 U. S. 213); a citation should issue though the security is not taken till after the term (National Bank v. Omaha, 96 U. S. 737) ; and if the record shows that appellee had notice, the cita- tion is not indispensable, although the appeal is taken at a subsequent term. (United States v. Gomez, 1 Wall. 690.) A defect in the return day of a citation § 545 PROCEDURE ON ERROR AND APPEAL. 1270 on appeal is not jurisdictional, and a new citation may be talven out if necessary. (Sliute v. Keyser, 149 U. S. 649.) A citation sliould issue where the ap- peal is allowed at the term, but not perfected until after the term. (Jacobs v. Geoi'ge, 150 U. S. 415.) A general acceptance of service of citation by an attor- ney is good for all the parties whom he represents of record. (Andrews v. National Foundry & P. Worlis, 46 U. S. App. 619; 77 Fed. Rep. 774.) The citation may issue, properly returnable even after the expiration of the time for talking the appeal has elapsed. (Jacobs vi George, 150 U. S. 415.) Facts reviewable in appealed cases.— In appeals in equity cases findings of fact made by the court be- low are not binding on the appellate court. The whole case is before the latter court. (Waterloo Min. 'Co. V. Doe, 48 U, S. App. 411; 82 Fed. Rep. 45.) But the findings are of weight. (Latta v. Granger, 32 U. S. App. 342; 68 Fed. Rep. 69; Maun v. Keene G. Sav. Banli, U. S. App., 86 Fed. Rep. 51; Metropoli- tan Banlj V. Rogers, 3 U. S. App. 406; 53 Fed. Rep. 776.) When a circuit court has sustained the finding of a district court on conflicting evidence in an ad- miralty case, the circuit court of appeals will not re- verse the findings below. (The S. S. Wilhelm, 16 U. S. App. 356; 59 Fed. Rep. 169; The Rabboni, 53 Fed. Rep. 952; The Royal, 14 U. S. App. 30; 54 Fed. Rep. 204.) Second appeal.— If an appeal is dismissed for some informality the party may talie a second appeal with- in the period allowed for an appeal (Yeaton v. Lenox, 8 Pet. 123; The Virginia v. West, 19 How. 182; United States V. Patheco, 20 How. 261; Edmondson v. Bloom- shire, 7 Wall. 306); but an order allowing a party to perfect an ai)peal is not the allowance of a second appeal (United States v. Curry, 6 How. 106; Ed- 1271 PEOCEDURE ON ERROR AND APPEAL. § 546 mondson v. Bloomshire, 7 Wall. 306.) Second ap- peals are allowed to bring up proceedings subsequent to the mandate issued on a former appeal and not set- tled by the terms of the mandate (Hinckley v. Mor- ton, 103 U. S. 7G4); but where the decree was entered in exact accordance with the mandate, an appeal from the decree will be dismissed. (Humphrey v. Baker, liTS U. S. 736.) A party who has appealed, but whose appeal has been dismissed, can only be heard in support of the decree. (Loudon v. Taxing Dis- trict, 104 U. S. 771.) If a copy of the transcript is not filed at the term next succeeding the appeal, a cita- tion issued after that time without a secouid appeal is null. (Castro v. United States, 3 Wall. 46.) § 546. Where both parties appeal to the su- preme court, one record sufficient. — Where appeal is duly taken by botli parties from the judgment or decree of a circuit or district court to the su- preme 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. (Eev. Stats, sec. 1013.) CKIMINAI. FBOCEDU&B. 1272 CHAPTER XXII. CRIMINAL PKOCEDURE. S 547. Offenders against the United States, how ar- rested, and how removed for trial. § 548. Bail shall be admitted in cases not capital — By whom. § 549. Bail may be admitted in capital cases— By whom. § 550. Bail in criminal cases removed by writ of er- ror from State courts. § 551. Surrender of criminals by their baJl. § 552. New bail to be given in certain cases. § 553. When penalty of recognizances may be re- mitted. § 554. Indictments and presentments to be by at least twelve grand jurors. § 555. Offenses against the elective fi'anchise, how prosecuted. § 556. Form of indictment for perjury. § 557. Persons convicted of perjury incompetent witnesses. § 558. Indictment for subornation of perjury. § 559. Matters set forth in prosecution for perjury before a naval court-martial. § 5G0. Cliarges which may be joined in one indict- dictment shall be so joined. § 561. Indictments, defects of form. § 562. Judgment on demurrer to an indictment. § 568. When several indictments against the same persons, one writ sufficient. § 564. Copy of writ to be jailer's authority, original retunied. 1273 CKIMINAL PROCEDURE. § 565. Writ for removal of a prisoner from one dis- trict to another. § 566. No writ necessary to bring into court a per- son in custody. § 567. Wlien peremptory challenges exceed the num- ber allowed by law. § 568. Prisoner standing mute, etc. § 569. Copy of indictment and list of jurors and wit- nesses to be delivered to prisoner in capital cases. § 570. Persons indicted for capital crimes entitled to counsel and to compel attendance of wit- nesses. § 571. Verdict of less offense than charged. § 572. Verdict against part of several joint defend- ants. § 573. Indictments remitted by circuit and district courts to each other. § 574. Remission from disti-ict to cirvmit court of difficult cases. § 575. All capital cases remitted from district to circuit courts. § 576. When a capital case is carried to the supreme court, execution postponed. § 577. Judgments for fines, how collected. § 578. Poor convicts sentenced and imprisoned for fines. § 579. For offenses against navigation laws. § 580. Complaint and answer. § 581. Amendments and adjournments. § 582. Challenges to jurors. § .583. Limit of sentences. § 584. Penalties, etc., under navigation laws, how prosecuted, etc. § 585. Fugitives from the justice of a foreign coun- try. Fed. Peoc— 107. CRIMINAL PROCEDURE. 1274 § 586. Subpoena of witnesses— Costs of process and fees of witnesses, how paid. § 587. Witness fees, costs, etc., to be certified to sec- retary of State. § 588. Surrender of tlie fugitive. § 589. Time allowed for extradition. § 590. Continuance of provisions limited. § 591, Protection of the accused. § 592. Powers of agent receiving offenders delivered by a foreign government. § 593. Penalty for opposing agents, etc. § 594. Evidence on the hearing— Proof of proper au- thenticity. § 595. Fugitives from justice of a State or TeiTitory. § 596. Penalty for resisting agent, etc. § 597. Arrest of deserting seamen from foreign vessels— Authority of foreign consul or vice- consul. § 598. Power of foreign consuls over disputes be- tween seamen. § 599. Arrest of seamen on application of consul § 600. Commitment and discharge. § 601. Custody of United States prLsoners, expenses to be paid by United States. § 602. Places of confinement. § 603. Marshals to make provisions for their safe- keeping. § 604. United States prisoners in state penitentiaries. § 605. Selection of penitentiary in a divided district. § 606. Sentences for longer term than a year, where to be executed. § 607. Penitentiary sentences, where to be exeuted. § 608. Deduction from term of imprisonment for good conduct. § 609. To what prisoners to apply. § 610. Convicts to have five days per month deduct- ed for good conduct. 1275 CKIMINAL PROCEDURE. § 547 § 611. To be prorided with clothes and money on their discharge. § 612. Actual reasonable cost of subsisting prisonei-s to be paid. § 613. Designation of penitentiary by attorney-gen- eral. § 614. Attorney-general to contract for subsistence, etc. § 615. Court may order sentence executed in house of correction. § 616. Confinement of juvenile offenders. § 617. Attorney-general to contract for their sub- sistence. § 618. Removal of prisoners in case of contagion or epidemic. § 620. Indictment— Capital offenses. § 621. Indictment— OfEenses not capital § 622. Fleeing from justice. § 623. Crimes under the revenue laws. § 624. Penalties and forfeitures under laws of the United States. § 625. Under customs revenue law. § 626. Parties beyond reach of process during the rebellion. § 547. Offenders against the United States, how arrested and removed for trial. — For any crime or offense against the United States the of- fender 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 su- preme 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 nsual mode of process against offenders in such State, and at the expense § 547 CRIMINAL PROCEDURE. 1276 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 re- turned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is 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 mar- shal to execute, a warrant for his removal to the district where the trial is to be had. [See sec. 879.] (Eev. Stats, sec. 1014.) Note. — Section recited and referred to in TTnited States V. .Tones. 134 U. S. 4S3. All the regulations and steps incident to a proceedins: before tlie United States commissioner from its commencement to its close are guided by the State laws so far as they may be applicable to the Federal courts, if no rule upon the same subject has been prescribed by the Federal statutes (U. S. v. Sauer, 73 Fed. Rep. 671). The purposp of the words "agi-eeably to the usual mode of process ;i gainst offenders in such State" was to assimilate all tlie proceedings for holding accused persons to answer before a court of the United States to those for similar piu-poses under the laws of the State where tho proceeding should talce place (Uni- ted States V. Dunbar, 83 Fed. Rep. 151). Tlie Uni- ted States courts are governed in the administration of the criminal law by the rules of the common law (Howard v. United States, 43 U. S. Api). 678; 75 Fed. Rep. 086); but there are no common law offenses against the United States (In re Greene, 52 I'"'ed. Rep. 104). 1277 CRIMINAL PROCEDURE, § 547 Authority of magistrates.— The power conferred by this section is common to any judge or justice of the peace (Ex parte, Gist, 26 Ala. 156; Bacnall v. Ableman, 4 Wis. 163); and a commissioner has all the powers of a justice of the peace or State magis- trate in the arrest and commitmsnt of offenders against United States laws (Ex parte Kaine, 10 N. Y. Leg. Obs. 257; Fed. Cas. No. 7598.) A district at- torney has no authority to order the marshal not to execute a wan-ant issued by a commissioner. (U. 'S. V. Scroggins, 3 Woods, 529; Fed. Cas. No. 16244.) It is to be exercised according to such form and manner as the judge may see fit to adopt, agreeably to the usual mode adopted in the State. (Bagnall V. Ableman, 4 Wis. 163.) It was the intention to assimilate all proceedings for holding accused per- sons to answer for crime to the proceedings had for similar offenses in the State courts. (U. S. v. Har- den, 10 Fed. Rep. 803; 4 Hughes, 455; U. S. v. Eundlett, 2 Curt. 41; Fed. Cas. No. 16208; U. S. v. Horton's Securities 2 Dill. 94; Fed. Cas. No. 15393; United States v. Dunbar, 83 Fed. Rep. 151.) The term "mode of process" is synonymous with mode of pro- ceeding, and includes the power to admit to bail. (U. S. V. Rundlett, 2 Curt. 41; Fed. Cas. No. 16208.) When a judge sits to hear a criminal charge and commit for trial, he acts as a judge and not as a coiu-t. (U. S. V. Clarke, 1 Gall. 497; Fed. Cas. No. 14804; United States v. Hughes, 70 Fed. Rep. 972.) The authority of a United States commissioner to take bail for the appeai'ance of an accused person to an- swer further depends upon the laws of the State giving authority to examining magistrate (United States T. Saner, 73 Fed. Rep. 671). United States commissioners have no authority to pass upon the credibility of testimony, or to find any fact (United States V. Hughes, 70 Fed. Rep. 972). Commissioners § 547 CRIMINAL PKOCEDUBE. 1278 have the same power to take bail upon an aiTest made after- an indictment as they have in cases of arrest before indictment (Hoeffner v. United States, 87 Fed. Rep. 185). A charge of perjury cannot be predicated upon an oath administered by a commis- sioner in taking bail in a criminal case in a State where the State laws do not authorize justices of the peace to administer oaths for similar purposes (United State V. Garcelon, 82 Fed. Rep. 611). Issuance of warrant.— It is the duty of the magis- trate to award a warrant whenever complaint is made to him on oath that a crime has been commit- ted, whether applied for by the disti-ict attorney or any other person (U. S. v. fei^iuner, 2 Wheel. C. C. 232; Fed. Cas. No. 1(>S09); but the oath of the com- plainant is necessary (U. S. v. Mackenzie, 1 N. Y. Leg. Obs. 227; Fed. Cas. No. 15690j; and the party who makes the oath must have personal knowledge of the commission of the offense (U. S. r. Burr, 2 Wheel. C. C. 573; Fed. Cas. No. 14G92; In re Com- missioners, 3 Woods, 502; Fed. Cas. No. 1212G); but a court may issue a warrant upon probable cause supported by oath. (U. S. v. Bollman, 1 Cranch C. C. 373; Fed. Cas. No. 141522); but not upon a com- plaint made upon information and belief only (United States V. Collins, 79 Fed. Rep. 65). If the signature of a magistrate is in pencil the warrant is void. (U. S. V. Thompson, 2 Cranch C. C. 409; Fed. Cas. No. 1G484.) A Avarrant will not issue to arrest an officer wliile his conduct is under investigation by a naval court of inquiry regularly organized. (U. S. V. Mackenzie, 1 N. Y. Leg. Obs. 227; Fed. Cas. No. 15690.) A party arrested in a civil action for dam- ages for conversion, who is already held to bail on criminal cliarges growing out of the same transac- tion is entitled to a reduction in the amount of bail. (Smith V. Lee, 13 Fed. Rep. 28.) As to an-est In 1279 CEIMINAL PKOCEDUKE. § 547 civil actions, see U. S. v. Griswold, 11 Fed. Rep. 807; S. C, 6 Saw. 255. When a crime has been committed by a corporation the court obtains juris- diction over it, in the absence of statutory provision, by any appropriate writ for that purpose (United States V. John Kelso Co., 86 Fed. Rep. 304). Preliminary proceedings. — A magistrate is not gen- erally bound to investigate charges known to the district attorney, and which he declines to prosecute. (U. S. V. Maclienzie, 1 N. Y. Leg. Obs. 227; Fed. Cas. No. 15690.) A marshal who has arrested a person may talie him before a justice of the peace to be admitted to bail (U. S. v. Milbuni, 4 Cranch C. C. 478; Fed. Cas. No. 15765); and a commitment for ex- amination should noft exceed twenty-four houi-s un- less special cause is shown, except at the request of the accused. (U. S. v. Worms, 4 Blatchf. 332; Fed. Cas. No. 16765.) A commissioner has no authority to ball the offender if the State magistrates have no power (U. S. v. Case, 8 Blatchf. 250; Fed. Cas. No. 14742; U. S. v. Sauer 73 Fed. Rep. 671); but other- wise, if the State magistrates have such power (U. S. V. Rundlett, 2 Curt. 41; Fed. Cas. No. 16208; U. S. V. Horton's Securities, 2 Dill. 94; Fed. Cas. No. 15393.) The material parts of a recognizance to ap- pear, and of its condition, sliould be set forth in the body of it so as to admit of extension consistently with its terms (DUlingham v. U. S., 2 Wash. O. G. 422; Fed. Cas. No. 3913.) And it is essential that the party recognized to appear should be solemnly warned to appear before default is entered. (Dilling- ham V. U. S., 2 Wash. C. C. 422; Fed. Cas. No. 3913.) A commissioner may order an adjournment to a more convenient place, and this power includes adjourn- ments as to time and place (U. S. v. Rundlett, 2 Curt. 41; Fed. Cas. No. 16208); and if the accused is under bail to appear at an adjourned day, second adjourn- § 547 CRIMINAL PROCEDURE. 1280 Dient cannot be made until he appears or is legally put in default. (U. S. v. Kundlett, 2 Curt. 41; Fed. Cas. No. 111208.) An arrest for trial may be made, to be followed by imprisonment if no bail is taken, or by bail, though punishment may be by fine alone (In re Jackson, 14 Blatehf. 245; Fed. Cas. No. 7124.) This section does not apply to an arrest made for the purpose of extradition. (In re Henrich, 5 Blatehf. 414; Fed. Cas. No. Q'669.) A Chinese person who is otherwise entitled to remain in the United States, cannot be deported for his refusal to be sworn to testify (Ex parte SJng, 82 Fed. Kep. 22). Preliminary examination. — A commissioner for the purposes of a preliminary examination has only the power and authority of a committing magistrate, and he must proceed "agreeably to the usual mode of IH'ocess against offenders" before State magisti-ates (In re Martin, 5 Blatehf. a03; Fed. Cas. No. 9151); and he maj' be directed to certify the proceedings into the court, that it may be there considered (U. S. V. Berry, 4 Fed. Rep. 779; 2 McCrary, 58); and if the magistrate takes money from the person of the ac- cused, a summary order for its return may issue from the court. (Ex parte Craig, 4 Wash. C. C. 710; Fed. Cas. No. 3321.) The accused may at the hear- ing be represented by counsel. (U. S. v. BoUman, 1 Cranch C. O. 373; Fed. Cas. No. 14t;22.) Witness for the accused present at the commission of the offense may be examined to explain wliat is said by the witnesses for the prosecution (U. S. v. Wliite, 2 Wash. C. C. 29; Fed. Cas. No. 10U85); but a magistrate cannot issue process into another State to summon witnesses for the accused. (U. S. v. White, 2 Wash. C. C. 29; Fed. Cas. No. lGl>85.) The district attor- ney may appear to attend to the presentation of evi- dence, as counsel for the government, and he cannot dismiss the proceedings. (U. S. v. Schumann, 7 Sawy. 1281 CRIMINAL PROCEDURE. § 547 439; 2 Abb. C. C. 523; Fed. Cas. No. 16235.) Wit- nesses for the prosecutiou canuot be examined (U. H. V. White, 2 Wash. C. G. 29; Fed. Gas. No. 166S5; U. S. V. Burr, 1 Burrs Trial, 177). Witnesses for accused are not generally examined on an application to bind him over to answer a criminal charge. (U. S. v. White, 2 Wash. G. 0. 29; Fed. Gas. No. 1G685.) The preliminary examination is to take place in the dis- ti'ict where the offender is found without regard to where the offense was committed (Anonymous, 1 Woolw. 422; Fed. Gas No. 730); and the prisoner should be brought before the officer to establish his identity, as the finding in another district estab- lished nothing as to his identity. (Anonymous, 1 Woolw. 422; Fed. Gas. No. 730; Bagnall v. Ableman, 4 Wis. 163.) Commitment.— If the indictment contains incon- sistent allegations and charges an impossible crime, the accused will be dischai-ged (U. S. r. Pope, 24 Int. Rev. Rec. 29; Fed. Gas. No. 16009); but if dis- charged he may be again ai*rested. The action of the commissioner is not final as to the commitment or discharge of the prisoner. (In re Martin, 5 Blatchf, 303; Fed. Cas. No. 9151; U. S. v. Burr, 1 Buit's Tfial, 79.) A certified copy of an information which was not filed upon cause shown is not sutficient evidence to .iustify a commitment. (U. S. v. Shepard, 1 Abb. C. G. 431; Fed. Gas. No. 16273.) The presence of witnesses ought to be obtained. (U. S. v. Burr, 1 Burr's Trial, 97.) An affidavit made before one com- missioner is admissible before another. (Ex pai-te Bollman, 4 Cranch, 75; S. G., 1 Granch G. G. 373; Fed. Cas. No. 14622; U. S. v. Burr, 1 Burr's Trial, 97.) The court may commit the prisoner for trial although the grand jury is in session and the order does not cease on the assembling of the grand jury. (U. S. V. Burr, 1 Burr's Trial, 97.) If the sessions of the § 547 CEIMINAL PKOCEDUnE. 1282 court are interrupted by rebellion, the prisoner can- not be committed for an indefinite time. (U. S. v. Greiner, 4 Pbila. 396; Fed. Gas. No. 15262.) To war- rant a commitment tlie fact of the commission of an offense may be proved by the confession of the pris- oner. (U. S. V. Bloomgart, 2 Ben. 356; Fed. Gas. No. 14612.) Probable cause must be shown to justify a commitment, and probable cause must be made out by proof furnishing good reason to believe that the crime alleged has been committed by the person chargesdell, 3 Ben. 132; Fed. Cas. No. 14(M^J8); if sentenced under a cumu- lative judgment, it will be deemed valid in a collateral action. (Ex parte Peters, 4 Dill. 1G9; Fed. Cas. No. 11027.) If defendant has benditCvl bj- the joinder of offenses, his acquittal of some of the charges affords 1299 CRIMINAL PROCEDURE. § 561 no grounds for a new trial. (United States v. Brent, 17 Int. Rev. Rec. 54; Fed. Cas. No, 14640.) § 561. Indictments, defect of form. — No in- dictment 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. (Eev. Stats, sec. 1025.) Indictment, sufficiency of.— The rule that an indict- ment following the words of the statute is sufficient is subject to the qualification that all material facts and circumstances embraced in the definition of the offense must be stated. (United States v. Brazeau, 78 Fed. Rep. 464; In re Benson, 58'Fed. Rep. 962.) Mere mistakes in expressing the substance of a crime will be regarded as formal. (United States v. Jackson, 2 Fed. Rep. 502.) So an irregularity in summoning a grand jury is a mere matter of form. (United States V. Tuska, 14 Blatchf. 5; Fed. Cas. No. 16r)50.) A fail- ure of the record to show that it was demanded of the accused to plead to the indictment or that he did so plead is not matter of form only which is cured by this section, but is a matter of substance. (Alex W. Grain v. United States, 162 U. S. 625.) So a defect in an indictment is cured if a criminal case is remitted from the district court to the circuit court for trial (United States v. McKee, 4 Dill. 1; Fed. Cas. No. 15687), although there is an imperfect and informal averment of an essential fact (United States v. Noelke, 1 Fed. Rep. 426; 17 Blatchf. 554); but an omission to state anything whicti is a part of the description of the crime will render an indictment defective. (United § 561 CRIMINAL PROCEDURE. 1300 States V. Conant, 9 Cent. L. J. 129; Fed. Cas. No. 14844.) So if an indictment sets forth a paper by a description, instead of g'iving it in haec verba, it is bad on motion in arrest of judgment. (United States v. Noellje, 1 Fed. Rep. 426; 17 Blatcbf. 554.) This section governs on an application for a new trial in a Federal court, although a different rule obtains in the State courts. (United States v. Molloy, 31 Fed. Rep. 19.) And a new trial cannot be granted for such defects of form although the record fails to show an arraignment and plea before the trial. (United States v. Molloy, 31 Fed. Rep. 19.) The section was intended to declare that no mere irregularity or defect in the form of pro- ceedings which did not tend to the prejudice of the defendant should be ground for a new trial, although a different rule obtains in State courts. (United States V. Molloy, 31 Fed. Rep. 19.) The purpose of the provision is, that where a real question of a diffi- cult point of law arising in the case is such that the two judges sitting on the hearing differ in opinion in regard thereto, they may certify it to the supreme court for an answer. (United States v, Perrin, 131 U. S. 55.) One convicted in a State court cannot com- plain in a Federal court that the conviction by which he has been deprived of his liberty was not founded upon a good indictment. (In re Krug, 79 Fed. Rep. 309.) Surplusage in an iudictmont cannot be reached by demurrer of any character. (United States v. Pat- terson, 59 Fed. Rep. 2.S0.) In an indictment for a stat- utory offense it is only necessaiy to negative an ex- ception to the statute when that exception is such as to render the negative of it an essential part of the definition of the offense. (Shelp v. United Slates, 81 Fed. Rep. 694.) Sufficiency of an indictment for obstructing justice. (PettilK>ne v. United States, 148 U. S. 197.) In an Indictment for a violation of a Federal statute It should not be left In doubt or to 1301 CRIMINAL PROCEDURE. §§ 562-564 mere inference from the words of the indictment whether the offense charged is one within Federal cognizance. (Blitz v. United States, 153 U. S. 308.) The existence of a technical defect in an information or indictment does not malie it no information or in- dictment at all. (In re Rowe, 40 U. S. App. 51G; 77 Fed. Rep. 161.) § 562. Judgment on demurrer to an indict- ment. — In every case in any court of the United States, where a demurrer is interposed to an in- dictment, or to any count or cotints thereof, or to any information, and the demurrer is overruled, the judgment shall be respondeat ouster; and thereupon a trial may be ordered at the same term, or a continuance may be ordered, as justice may require. (Kev. Stats, sec. 1026.) § 563. Several indictments against the same person, one writ sufficient. — When two or more charges are made, or two or more indictments are found, against any person, only one writ or war- rant 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. (Rev. Stats, sec. 1027.) § 564. Copy of writ to be jailer's authority. — 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 re- §§ 565-567 CKIMINAL PROCEDURE. 1302 turned to the proper court or officer, with the ofR- cer's return thereon. (Rev. Stats, sec. 1028.) Note.— The above section does not render a pris- oner's detention unlawful because of a defect in a copy of the writ, warrant, or mittimus. (Howard v. United States, 43 U. S. App. 678; 75 Fed. Rep. 98G.) § 565. Writ for removal of a prisoner from one district to another. — Only one writ or warrant is necessary to reijiove a prisoner from one district to another. One copy thereof may be delivered to the sheriff or jailer from whose custody the pris- oner is taken, and another to the sheriff or jailer to whose custody he is committed, and the original writ, with the marshal's return thereon, shall be returned to the clerk of the district to which he is removed. (Rev. Stats, sec. 1029.) § 566. No writ necessary to bring into court a person in custody. — No writ is necessary to bring into court any prisoner or person in cu.stocly, 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. (Rev. Stats, sec. 1030.) Note.— The above section applies only to the case of prisoners confined at the place where the court is in session and not to those in custody at a place re- mote therefrom. (United States v. Donahower, 56 U. S. App. 4G7; 85 Fed. Rep. 547.) § 567. Peremptory challenges. — If, in the trial of a capital offense, the party indicted peremptor- 1303 CBIMIXAI, PROCEDURE. § 568 ily challenges jurors above the number allowed him by law, such excess of challenges shall be dis- allowed by the court, and the cause shall proceed for trial in the same manner as if they had not been made. [See sec. 819.] (Rev. Stats, sec. 1031.) § 568. Prisoners standing mute, etc. — When any person indicted for any offense against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf in the same manner as if he had pleaded not guilty there- to. 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. (Rev. Stats, sec. 1032.) Standing mute.— Where defendant stands mute the court may enter a plea of not guilty and pi-oceed with the trial. (In re Smith, 13 Fed. Rep. 25.) He should have an opportunity to plead, and trial with- out entry of a plea of not g-uilty is erroneous. (PaJmeir v. United States, 1 Wash. Ter. 7.) After he has put in a plea of not guilty it includes everything essential to put him on trial by jury. (United States v. Gilbert, 2 Sum. 19; Fed. Cas. No. 15204.) This section applies to an offense created by a statute enacted since its adoption. (United States v. Hare, 2 Wheel. C. C. 283; Fed. Cas. No. 15304; see generally Ellewood V. Com., 10 Met. 222; Com. v. McKenna, 125 Mass. 3197; Com. r. Braley, 1 Mass. 103; Com. v. TTil l, 14 Mass. 207; Dyott v. Com., 5 Whart. 67; § 569 CRIMIXAL PROCEDURE. 130-t United States v. Hare, 2 Wheel. C. C. 283; Fed. Cas. No. 15304; Com. v. Moore, 9 Mass. 402; United States V. Reid. 12 How. 3G1.) Until defendant has pleaded to the indictment there is no issue to be submitted to the jury, and an omission to plead is fatal to the judgment in cases of misdemeanor as well as in- famous crimes. (Shelp v. United States, 48 U. S. App. 370; 81 Fed. Rep. 604.) § 569. Copy of indictment, etc., delivered to prisoner. — When any person is indicted of treason, a copy of the indictment and a list of the jury, and of the witnesses to he produced on the trial for proving the indictment, stating the place of ahode of each juror and witness, shall be delivered to him at least three entire days before he is tried for the same. When any person is indicted of any other capital 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. (Eev. Stats, sec. 1033.) Treason.— The provision as to three days is ex- pressly confined to treason. (United States r. Wood, 3 Wash. C. G. 440; Fed. Cas. No. 1G7.56.) The prLs- oner is entitled to a reasonable time after the copy is delivered to him to investigate the character and conduct of the witnesses. (United States v. Stewart, 2 Dall. i54."5.) The list of jurors and witnesses need not specify their occupations (United States v. In- surgents. 2 Dall. 335); but the townships in which they respectively reside should be specified (United State V. Insurgents, 2 Dall. 335); and copies of both caption and indictment should be delivered to the prisoner. 1305 CKIMINAI, PKOCEDURE. § 569 Other offenses. — In capital offenses other than trea- son the copy must be delivered two days before the cause is tried by a jui-y, and not before the party is aiTaigned (United States v. Curtis, 4 Mason, 232, Fed. Cas. No. 141)05; but see U. S. v. Dow, Taney, 34, Fed. Cas. No. 14990); and the two entire days must be exclusive of tlie day of its delivery (U. S. v. Dow, Taney, 34, Fed. Cas. No. 14990). If the right to a copy is not insisted on before pleading and trial no objec- tion can afterward be taken to the proceedings (Uni- ted States V. Cornell, 2 Mason, 91, Fed. Cas. No. 14S6S); if he makes no objection till after the jury has been sworn the omission is no ground for arrest of judgment, or for a new trial (U. S. v. Curtis, 4 Mason, 232, Fed. Cas. No. 14905). If he acknowledges be- fore arraignment the receipt of a copy, it is a waiver of his right if he has not received it (U. S. v. Corn- well, 2 Mason, 91, Fed. Cas. No. 14868). If the case is not capital the prisoner is not entitled to a copy of the indictment at government expense (U. S. v. Bick- ford, 4 Blatchf. 337, Fed. Cas. No. 14591; U. S. v. Hare, 2 Wheel. C. C. 2&3, Fed. Cas. No. 15304); nor is he entitled to a list of witnesses or jurors (U. S. V. Williams, 4 Cranch C. C. 372, Fed. Cas. No. 16712; U. S. V. Wood, 3 Wash. C. O. 440, Fed. Cas. No. 16756; Shelp v. United States, 81 Fed. Rep. 694); but in all cases where there has been no preliminary ex- amination the court, in its discretion, may order a list of witnesses before the grand juiy to be furnished shington, 7th Nov. 1791 ; Jefferson's Letter to Genet. 1793, 1 Am. St. Pap. 175: Story's Letter to Gov. Everett, June 6, 1835, cited in 2 Life of Story, 179; 1 Kent's Com. 37, note.) Extradition is to be effectuated through the agency of the tribunals of justice, whose province it is to determine the existence of reasonable cause for the charge of crime, and if there be sufficiemt evidence to justify putting the accused upon his trial. (In re Metzger, 1 Edm. Sel. Cas. 402.) Under the treaty with Great Britain of 1842 a preliminary mandate from the executive is not necessary. (In re Herrea, 1317 CRIMINAL PROCEDURE. §585 33 Fed. Eep. 165.) One accused of poisoning, result- ing in death in Canada, may be extradited, though it appears that the poison, if administered at all, was given in this country (Sternaman v. Peck, 83 Fed. Eep. B90). Right exists only under treaty stipulations. — Ex- cept under the provisions of treaties, the delivery by one country to another of fugitives from justice is a matter of comity, not of obligation. (Uniited States V. Rauscher, 119 U. S. 407.) Extradition from a for- eign countiy although for a crime committed against the law of a State, must be negotiated through the P^'ederal government. (United Sitates v. Rauscher, 119 U. S. 407.) Extradition treaties of the United States do not guarantee a fugitive an asylum in any foreign country. So far as they regulate the right of asylum at all, they limit it. (Ker v. Illinois, 119 U. S. 436.) Conduct of proceedings.— The rules prescribed for the conduct of proceedings under extradition treaties are: 1. Demand for surrendei* and mandate of the President; 2. Previous designation of the commis- sioner before whom the warrant of arrest is return- able; 3. Certificates to documentary evidence; 4. Rec- ord by the commissioner of the proceedings before him; 5. Verified transactions of documents in foreign languages; 6. Contents of complaint. (Re Henrich, 5 Blatchf. 414, Fed. Cas. No. 6369.) Whether a party making complaint is duly authorized to appear in be- half of the foreign government is a matter to be in- quired into before the commissioner. (Re Kelly, 26 Fed. Rep. 852.) On motion of a sovereignty making the demand, a commissioner may, in his discretion, adjourn the hearing of the exti-adition proceedings. (Re Ludwig, 32 Fed. Rep. 774.) §585 CRIMINAL PROCEDURE. 1318 Bequisition for process and surrender.— Requisi- tions sliould issue from the supreme political autlior- ity of the demanding State, and be addressed to tlie secretaiy of State. (8 Op. Att'y-Gen. 240; Op. Att'y- Gen. 201; 7 Ap. Att'y-Gen. 6; 8 Op. Att"y-Gen. 420; Re Henrich, 5 Blatclif. 414, Fed. Gas. No. 6369.) The requisition need not be founded on an Indictment or warrant issued on an indictment. (Re British Prisoners, 1 Wood. & M. 66, Fed. Oas. No. 12734; Be Thomas, 12 Blatchf. 370, Fed. Cas. No. 13887.) Proceedings for e.^tradition need not necessarily be initiated by a requisition from a foreign government (In re Adutt, 55 Fed. Rep. 376). To authorize arrest and removal from the State or country, it must ap- pear on the application that the crime was committed in the State or country from which the requisiitioii proceeds. (Ex parte Smith, 3 McLean, 121, Fed. Gas. No. 12968; 6 L. R. 57; 8 Op. Att'y-Gen. 215, 306; 1 Op. Att'y-Gen. S3; Re Vogt, 14 Op. Atfy-Gen. 251.) A requisition for a return of a fugitive from justice cannot be denied when the indictment or affidavit, of which a copy is attached to the requisition, would be held sufficient by the courts of the State where the offense was committed (Webb v. York, 49 U. S. App. 163; 79 Fed. Rep. 616). Complaint under oath requisite.— A complaint made under oatii is necessary to autliorize a warrant to compel a preliminary examination of a person de- manded by a foreign government as a criminal. (Ex parte McCabe, 46 Fed. Itep. 363.) It must be a com- plaint by some one authorized to represent the ex- (Kjutive department of the foreign treaty power. (Re Extradition of Ferrelle, 24 Blatchf. 155; 28 Fed. Rep. 878.) It is not necessary that the attorney-general, or any member of the executive department of a foreign nation, should him.self make the complaint 1319 CRIMINAL PROCEDURE. § 585 on which the accused is arrested. Any person whom he authorizes or whom he delegates to act for that government is a proper person to appear and file a complaint. (Re Kelly, 26 Fed. Rep. 852.) If the complaint be made by a private individual, his au- thority to act in behalf of the foreign executive should be made to appear before the proceedings be- fore the commissioner are closed, or the proceed- ing should be dismissed. (Re Extradition of Fer- relle, 24 Blatchf. 155; 28 Fed. Rep. 878.) In a complaint for a warrant of extradition, the crime must be clearly set forth and the facts constituting it must be stated; but the averments need not be upon personal iinowledge. (Re Farez, 7 Blatchf. 34. ;545, 491. Fed. Oas. Nos. 4644, 4645, 4046; 2 Abb. U. S. 346: 40 How. Pr. 107; Ex parte Van Hoven, 4 Dill. 411, Fed. Cas. No. 16858; Ex parte Sternaman, 77 Fed. Rep. 595.) If it appear in the proceedings that they are initiated and carried on by a foreign govei'nment, it is sufficient, although the complaint does not show the fact. (Re Herres, 33 Fed. Rep. 165; reversing 32 Fed. Rep. 583.) Warrant of arrest.— The fact that the commissioner who issued the warrant is authorized so to do is jur- isdictional and must appear upon the face of the warrant. (Re Kelly, 25 Fed. Rep. 270.) Proceedings for extradition may be commenced by the arrest of the person charged, under a warrant issued by a United States commissioner on complaint of a foreign consul without a requisition. (In re Adutt, 55 Fed. Rep. 376.) Under the treaty with Great Britain, no authority is required from the executive department of the United States to enable a judge, magistrate, or commissioner to issue a warrant for the arrest of an alleged fugitive from justice. (Ex parte Ross, 2 Bond, 2.52; Fed. Cas. No. 12069.) It is not necessary, preliminary to an investigation here, that a warrant S 585 CRIMINAL PROCEDURE. 13'_'0 of aiTest should hare been issued in the foreign jur- isdiction. (Re Thoiua.s, 12 Blatchf. 370; Fed. Cas. No. 13887.) Where a warrant of extradition recited that the party was accused of the crime of forgery, with- out saying what forgery, resort might be had to the proceedings before the committing magistrate, and his report, on which the warrant was issued, to ascer- tain what and how many forgeries the extradition was intended to apply to or include. (Ex parte Hibbs, 26 Fed. Rep. 421.) The term "forgery" in the extra- dition act means that which by universal acceptation it is understood to mean. (Re Tully, 22 Blatchf. 220; 20 Fed. Rep. 812.) The district judge may issue a second warrant, where the first was of ques- tionable regularity. (Re Fergus, 30 Fed. Rep. 607.) The warrant may run thi-oughout the United Slates, and may be executed by any marshal or deputy marshal. (Re Fergus, 30 Fed. Rep. 607.) Where a district judge at chambei's decided that there was sufficient cause for surrender of a fugitive claimed by the P^'rench government under a treaty, the supreme court had no jurisdiction to review that decision. (Re Metzger, 5 How. 176.) The governor's warrant for an arrest as a fugitive from justice, on a requisition, can be issued only on an affidavit ac- companying the requisition which positively and di- rectly charges the commission of a specific offense. (Ex parte Spears, 88 Cal. 640.) A warrant, when issued by a county judge under section 5270, although he styles himself also an extradition agent, is not In- valid because it does not recite the source of his au- thority to issue it. (Ex parte McCabe, 46 Fed. Rep. 303.) Upon application from the British govern- ment an arrest of a British subject seeking an asylum in this country may be made upon a British vessel wilhin our territory. (In re Newman, 79 Fed. Rep. 622.) 1321 CRIMINAL PROCEDURE. §§ 586-587 § 586. Subpoena of witnesses — Costs of process and fees of witnesses, how paid. — On the hearing of any case under a claim of extradition by any foreign government, upon affidavit being filed by the person charged setting forth that there are witnesses whose evidence is material to his de- fense, that he cannot safely go to trial without them, what he expects to prove by each of them, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such wit- nesses, the judge or commissioner before whom such claim for extradition is heard may order that such witnesses be subpoenaed; and in such cases the costs incurred by the process, and the fees of witnesses, shall be paid in the same manner that similar fees are paid in the case of witnesses sub- poenaed in behalf of the United States. (Ap- proved August 3, 1883, sec. 3; 22 U. S. Stats. 216, superseding Eev. Stats, sec. 5271.) § 587. Witness fees, costs, etc., to be certified to secretary of state. — All witness fees and costs of every nature in cases of extradition, including the fees of the commissioner, shall be certified by the judge or commissioner before whom the hearing takes place to the secretary of state of the United States, who is hereby authorized to allow the pay- ment thereof out of the appropriation to defray the expenses of the judiciary; and the secretary of state shall cause the amount of said fees and costs so alloAved to be reimbursed to the government of the United States by the foreign government by whom the proceedings for extradition may have Fed. Proc— Ul. § 588 CBIMINAL PROCEDURE. 1322 been instituted. (Approved August 3, 1882, sec. 4. 22 U. S. Stats. 216.) § 588. Surrender of the fugitive. — It shall be lawful for the secretary of state, under his hand and seal of office, to order the person so committed to be delivered to such person as shall be author- ized, in the name and on behalf of such foreign government, to be tried for the crime of which such person shall 'be so accused, and such per- son shall be delivered up accordingly; and it shall be lawful for the person so aiithorized to hold such person in custody, and to take him to the territory of such foreign government, pursuant to such treaty. If the person so accused shall escape out of any custody to which he shall be committed, or to which he shall be delivered, it shall be lawful to re- take such person in the same manner as any person accused of any crime against the laws in force in that part of the United States to which he shall so escape, may be retaken on an escape. (Rev. Stats, sec. 5272.)"^ Surrender under treaty. — Persons may be suiTen- dercd under a treaty made after the crime was com- mitted, and after their arrival in this country. (In re Giacomo. 12 Blatchf. 391; Fed. Cas. No. 8747.) Under the constitution, the subject of intercourse with for- eign powers is vested exclusively in the United States government, and States have no authority to grant or oause the extradition of one of its citizens on de- mand of a foreign power. (People v. Curtis. .50 N. Y. 321; Holmes v. .Tennison, 14 Pet. .540; Ex parte Smith. 3 MeUean, 121; Fed. Cas. No. 1206S; Cooper v. Cal- braith, 3 Wash. C. C. o4G; Fed. Cas. No. 3193.) No 1323 CRIMINAL PROCEDURE. § 588 State can delirer up a fugitive to a foreign govern- ment, as it cannot have ti-eaty relations with such government. (Holmes v. .Tennison, 14 Pet. 540.) State courts cannot interfere with the surrender of a fugitive, and the marshal may disregard their pro- cess. (6 Op. Atty.-Gen. 227, 237, 270, 290, 466, 713; 7 Op. Atty.-Gen. 482.) A person will not be surren- dered to a foreign power where the United States has jurisdiction over the ol¥ense chai'ged. (6 Op. Atty.-Gen. 85; 8 Op. Atty.-Gen. 215, 306; In re Stupp, 11 Blatchf. 124; Fed. Gas. No. 13562.) If it ap- pears that there is probable reason to believe defend- ant guilty, justice requires that he should be put upon his trial. (Ee Herres, 33 Fed. Rep. 165.) Where a commissionei', without special authority, issued a warrant, at the instance of the British consul, for the arrest of a fugitive charged with assault with intent to murder in Ireland, habeas corpus did not lie to re- lieve him from the aiTest. (Re Kaine, 14 How. 103.) The law of nations does not require the surrender of a fugitive, whether citizen or alien, to a foreign government, in the absence of a treaty stipulation requiring it. (Ex parte McCabe, supra.) A citizen of the United States cannot be surrendered to Mexico as a fugitive, under the treaty with that counti-y, which provides that "neither of the contracting par- ties shall be bound to deliver up its own citizens." (Id.) But a person may be extradited to Mexico for the crime of forgery of an instrument, which is made an offense by the Mexican laws, he having been held in Mexico for the offense. (Benson v. Mc Mahon, 127 U. S. 457.) Under the treaties of 1852 between the United States and Prussia, and other States of the Germanic Confederation, an application should be granted where the evidence is such as to fairly prove the charge. (Re Risch, 36 Fed. Rep. 546.) A person brought to this country by extradition § 589 CRIMINAL PKOCEDXXRE. lo24 proceedings cannot be convicted of any other offense than that cliarged, altlioiigh upon the same evidence which was produced before the committing magis- trate in England, in the extradition proceedings. (United States v. Rauscher, 119 U. S. 407.) Immunity from arrest ixi civil action. — One who has been extradited, under a treaty with a foreign country, upon a charge of which he is acquitted, is not, before the expiration of a reasonable time for his return to the cpuntry from which he was extra- dited, subject to aiTest in a civil action in a State court for any cause arising prior to his extradition. (Ke Keinitz, 39 Fed. Kep. 204; United States v. Kauscher, supra.) § 589. Time allowed for extradition. — When- ever any person who is committed under this title or any treaty, to remain until delivered up in pur- suance of a requisition, is not so delivered up and conveyed out of the United States witliin two cal- endar months after such commitment, over and above the time actually required to convey the prisoner from the jail to which he was committed, by the readiest way, out of the United States, it shall be lawful for any judge of the United States, or of any State, upon application made to him by or on behalf of the person so committed, and upon proof made to him that reasonable notice of the intention to make such application has been given to the secretary of state, to order the person so committed to be discharged out of custody, unless sufficient cause is shown to such judge wty such discharge ought not to be ordered. (Rev. Stats, sec. 5273.) 1325 CEIMINAL PROCEDUEE. §§ 590-593 § 590. Continuance of provisions limited. — ■ The provisions of this title relating to the surren- der of persons who have committed crimes in for- eign countries shall continue in force during the existence of any treaty of extradition with any for- eign government, and no longer. (Kev. Stats. sec. 5374.) § 591. Protection of the accused. — Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime for which he is duly accused, the President shall have power to take all neces- sary measures for the transportation and safe-keep- ing of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final dis- charge from custody or imprisonment for or on account of such crimes or offenses, and for a rea- sonable time thereafter, and may employ such por- tion of the land or naval forces of the United States, or of the militia thereof, as may be neces- sary for the safe-keeping and protection of the ac- cused. (Rev. Stats, sec. 5375.) § 592. Powers of agent receiving offenders de- livered by a foreign government. — Any person duly appointed as agent to receive, in behalf of the United States, the delivery, by a foreign govern- ment, of any person accused of crime cetnmitted within the jurisdiction of the United States, and §§ 593-594 CETMIXAL PROCEDURE. 1326 to convey him to the place of his trial, shall have all the powers of a marshal of the United States, in the several districts through which it may be necessary for him to pass with such prisoner, so far as such power is requisite for the prisoner's safe-keeping. (Kev. Stats, sec. 5376.) § 593. Penalty for opposing agents, etc. — Every person who knowingly and willfully ob- structs, resists, or opposes such agent in the exe- cution of his duties, or who rescues or attempts to rescue such prisoner, whetlier in the custody of the agent or of any officer or person to whom his cus- tody has lawfully been committed, shall be pun- ishable by a fine of not more than one thousand dollars, and by imprisonment for not more than one year. (Rev. Stats, sec. 5277.) § 594. Evidence on the hearing in extradition cases. — In all cases where any depositions, war- rants, or other papers or copies thereof shall be offered in evidence upon the hearing of any ex- tradition case under title sixty-six of the Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing, for all the purposes of such hearing, if they shall be properly and legally authenticated 80 as to entitle them to be received for similar pur- poses by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consu- lar officer of the United States resident in such for- 1527 CKIMTNAL PROCEDURE. § 594 eign country shall be proof tliat any deposition, warrant, or other paper, or copies thereof, so of- fered, are authenticated in the manner required by this act. (22 U. S. Stats. 216, sec. 5.) Hearing on application for extradition. — The pro- cet'dings are not to be conducted with extreme tech- nicality. (In re Breen, 73 Fed. Rep. 458.) Where there is an application for extradition sustained by com- plaint on oath, it is not for the judge to consider whether or not a foreign government has authorized the application; he has only to examine the evidence of criminality, and if not sufficient to sustain the charge, to certify the same to the secretary of State. (Re Dugan, 2 Low. 3(57; Fed. Cas. No. 4120.) The first question is one of law, open upon the face of the papers to judicial inquiry; the second is one of fact, upon which the governor's decision is sufficient to justify removal until the presumption in his favor is overthrown. (Roberts v. Reilly, 116 U. S. 80.) In a proceeding under the treaty with Great Britain, evi- dence of criminality must be such as woiUd justify the arrest and commitment of the accused according to law in the place where he is found. (Re McPhun, 24 Blatchf. 254; 30 Fed. Rep. 57; Ex parte Kaine, 3 Blatchf. 1; Fed. Cas. No. 7597; United States v, Warr, 3 N. Y. Leg. Obs. 346; Fed. Cas. No. 16644; Re Heil- bronn, 12 N. Y. Leg. Obs. 65; Fed. Cas. No. 6323; 4 Op. Atty.-Gen. 201, 330; Re Kelly, 2 Low. 339; Fed. Cas. No. 7655; Re MacDonnell, 18 Int. Rev. Rec. 11; Fed. Cas. No. 8772; Re Farez, 2 Abb. U. S. 346; Fed, Cas. No. 4645.) Where a requisition was had on a chairge of embezzling money, an indictment for em- bezzling money and property simply charges the same offense in different ways to meet the evidence as it may appear on the trial, and is unobjectionable. (Waterman v. State, 116 Ind. 51.) On the extradi- § 594 CRIMINAL PEOCEDUKE. 1328 tion of a person charged with forgery, embezzlement, . and larceny, the demanding government and a com- missioner need not elect the charge for which he shall be tried. (Bryant v. United States, 167 U. S. 104.) Evidence admissible.— Copies of depositions taken by a magistrate in a foreign country must be certi- fied by the United States consul there to be authenti- cated, so as to entitle them to be received for similar purposes by the tribunals of the foreign country. (Re McPhun, 24 Blatchf. 254; 30 Fed. Rep. 57.) Upon hearing a case arising imder treaty, not only copies of depositions, but also copies of warrants and other papers, certified under the liand of the person issuing the same, and attested on oath of the party producing them to be true copies, are admissible as evidence of criminality of the accused. (Ex parte Ross, 2 Bond. 2.52; Fed. Cas. No. 12069.) The act of congress of 1860, relating to proof of authenticity of papers produced in the proceedings does not repeal prior acts, but merely provides another mode of authentication. (Ibid.) The judicial proceeding in a Pnissian court being valid evidence in that country, a certiiicate of the T'nitcd States minister that the documents are legally authenticated entitles them to be received here as evidence where the certiticates are in sufficient form. (Ke Behrendt. 23 Blatchf. 40; 22 Fed. Rep. 699; Re Farez, 7 Blatchf. 345; Fed. Cas. No. 4645; Re Wadge, 15 Fed. Rep. 864; 21 Blatchf. 300.) Under the act of 1882 regarding evidence in extradition cases, the certificate of the resident minister to copies of documentary evidence from abroad may be supple- mentiHj l)y oral proof of competency of the originals. (Re Wadge, 15 Fed. Rep. 864; 21 Blatchf. 300; Re Ileinrich. 5 Blatchf. 414; Fed. Cas. No. a'!69.) Under the Revised Statutes, depositions may be authenti- cated by a vice-consul of the United States. (Re Herres, 33 Fed. Rep. 165.) In an extradition proceed- 1329 CKIMINAL PROCEDUKE. § 594 ing under the treaty with Great Britain of August 9, 1842, the evidence of the fugitive's criminality must be such as would justify his apprehension and com- mitment according to the law of the place where he Is found. (Re McPhun, 24 Blatchf. 254; 30 Fed. Rep. 57.) Copies af depositions talcen by a magistrate in such country must be certified by the United States consul there to be authenticated. (Id.) A court will take judicial notice that the charge de affaires who signed the depositions, warrants, etc., offered in evi- dence was the chief diplomatic officer of the country at the time. (In re Orpen, 86 Fed. Rep. 760.) Rights of party accused.— The party proceeded against has the right to examine witnesses in his own behalf. (Re Kelley, 25 Fed. Rep. 268.) The testi- mony of the accused is not admissible, although the judge be sitting in a State where such evidence is ad- missible. (Re Dugan, 2 Low. .367; Fed. Cas. No. 4120.) The evidence may be in the form authorized in the country whence it comes, and in substance sufficient to warrant action in the country whose ac- tion is involved. (Re Dugan, 2 Low. 367; Fed. Cas. No. 4120.) It may be open to the petitioner, when before the Canadian courts, to show that the extra- dition proceedings were not prosecuted in good faith. But, having been surrendered, it is not for him to raise that question before the tribunals of his own country. (Adriance v. Lagrave, 59 N. Y. 110; Dow's Case, 18 Fa. 37; Re Miller, 23 Fed. Rep. 34.) Under the Canada Extradition Statute, s. s. 3, sec. 9, the accused can only show that the offense is either a political one, or that it is not an extradition crime. The investigation cannot talie the features of a trial. (Re Debaun, Can. Sup. Ct. 11 Or. L. Mag. 47.) In order to justify the extradition from England of the subject of a foreign State, there must be evidence of an act committed by him in the foreign country, § 595 CRIMINAL PROCEDURE. 1330 amounting to an offense against the law of such coun- try, and which, if committed in England, would amount to an offense against English law. (Re Bel- lencontre (1S91), 2 Q. B. 122.) The accused cannot be admitted to bail during a continuance of the heai'ing on extradition. (In re Carrier, &7 Fed. Rep. 578.) Nature of the proceedings.— Extradition proceed ings do not Involve in their nature the right of ac cused not to be prosecuted upon any other charge than that upon which his extradition is asked (United States v. Lawrence, 13 Blatchf. 295: Fed. Cas Jwo. 15.573; G Op. Atty.-Gen. G91; United States v. Cald well, 8 Blatchf. 131; Fed. Cas. No. 14707; Adriance v Lagrave, 59 N. Y. 110; Re Miller, 23 Fed. Rep. 33.) But one extradited from a foreign country may claim exemption from trial upon any charge other than that mentioned in the extradition proceedings; and this right cannot be waived. (Ex parte Coy, 32 Fed. Rep. 911.) The extradition proceedings are in some re- spects like preliminary examinations; and if it appear that a crime has been committed, and that there is probable reason to believe that defendant is guilty of that crime, substantial justice requires that he shall be put upon trial. (Re Herres, 33 Fed. Rep. 1G5.) Extradition is not defeated by the fact that a part of the alleged offenses named In the warrant are not extraditable if the others are. (Re Bellencoutre (1891), 2 Q. B. 122.) ^ 595. Fug"itives from justice of a State or Ter- ritory. — \\'liciiever the executive autliority of any State or Territory demands any person as a fugi- tive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any State 1331 CRIMINAL PROCEDURE. § 595 or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief mag- istrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be ar- rested and secured, and to cause notice of the ar- rest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incur- red in the apprehending, securing and transmit- ting such fugitive to the State or Territory making such demand, shall be paid by such State or Terri- tory. (Rev. Stats, sec. 5278!) Interstate Extradition.— (See Robb v. Connolly, 111 U. S. G24.) The term "magistrate," used in this sec- tion, includes an assistant police magistrate of a city. (Kurtz v. State, 22 Fla. 36.) A person who has com- mitted a crime in one State, and has left it, so as to be beyond the reach of process, is a fugitive from jus- tice, regardless of his purpose in leaving. (St^te v. Richter, 37 Minn. 430; In re Bloch, 87 Fed. Rep. 981; In re White, 14 U. S. App. 87; 55 Fed. Rep. 54.) Ex- tradition from one State to another can be had only when the person cliarged is a fugitive from the State in which the crime was committed. (State v. Jack- son^ 36 Fed. Rep. 258.) Tlie words "certified to be in due form" are equivalent to "certified as authen- tic" in the above section. (Ex parte Dawson, 83 Fed. § 596 CRIMINAL PROCEDURE. 1332 Eep. 30G.) An iuformation is not tbe equivalent of an indictment provided for by tliis section; nor is tlie verilicatiou on belief the equivalent of an affidavit required by the section. (Ex parte Harte. 25 U. S. App. 22; 63 Fed. Hep. 249.) Under this section, affi- davits tiled with the governor requesting him to make a requisition, though made a part of the requisition papers, are not sufficient where the governor only certities to the authenticity of an information and makes his demand on this. (Ex parte Harte, 25 U. S. App. 22; 63 Fed. Jlep. 249.) § 596. Penalty for resisting agent, etc. — Any agent so appointed who receives the iugitive into his custody shall be empowered to transport him to the State or Territory from which he has .fled. And every person who, by force, sets at liberty or res- cues the fugitive from such agent while so trans- porting him, shall be fined not more than five hun- dred dollars, or imprisoned not more than one year. (Rev. Stats, sec. 5379.) Review on habeas corpus.— The Federal and State courts have concurrent jurisdiction in extradition pro- ceedings. (Ex parte Brown. 28 Fed. Rep. 653; Re Roberts, 24 Fed. Rep. 132.) And the question of law- ful arrest of a person as a fugitive from justice from a State may be inquired into by either a Federal or a State court. (Roberts v. Reilly, 116 U. S. 80; Ro Doo Woon, 18 Fed. Rep. 898.) A writ of habeas cor- pus in a case of extradition cannot perform the office of a writ of error. (Willis v. Bayles, 105 Ind. 363; State V. 5;eel, 48 Ark. 283; Ex parte Boennenghausen, 21 Mo. App. 267; In re Oteiza y Corte.s, 130 U. S. 330; I'owell v. Dayton etc. R. Co., 16 Or. 33; 8 Am. St. Rep. 251; Re Savin, 131 U. S. 267.) The court cannot investigate the question as to the guilt or iu- 1333 CRIMINAL PROCEDURE. § 597 nocence of the defendant (Re Roberts, 24 Fed. Rep. 132) ; or the grade of the guilt (Re Palmer. 18 Int. Rev. Eec. 84; Fed. Cas. No. 10679). Although courts may review the decisions of executive authority in such proceedings, they will not overrule the decisions un- less they are clearly satisfied that an error has been committed. (Ex parte Brown, 28 Fed. Rep. 653.) The court will not reverse the decision of the com- missioner on the question of criminality of the ac- cused, (lie Stupp, 12 Blatchf. 501; Fed. Cas. No. 13.563; Re MacDonuell, 11 Blatchf. 170; Fed. Cas. No. 8772; Re Vandervelpen, 14 Blatchf. 137; Fed. Cas. No. 16844; Re Wahl, 15 Blatchf. 334; Fed. Cas. No. 17041; Re Wiegand, 14 Blatchf. 370; Fed. Cas. No. 17618.) § 597. Arrest of deserting seamen from foreign vessels. — On application of a consul or vice-consul of any foreign government having a treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government, while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll, or other offi- cial document, that the person named belonged, at the time of desertion, to the crew of such vessel, it shall be the duty of any court, judge, commis- sioner of any circuit court, justice, or other mag- istrate, having competent power, to issue warrants to cause such person to be arrested for examina- tion. If, on examination, the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the consul or vice-consul, to be sent back to the Fed. Proc— 112. § 598 CKIMINAI, PROCEDURE. 1334 dominions of any such government, or, on the re- quest and at the expense of the consul or vice-con- sul, shall be detained until the consul or vice-con- sul finds an opportunity to send him back to the dominions of any such government. No person so arrested shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such deserter shall be found to have committed any crime or offense, his surrender may be delayed until the tribunal be- fore which the case shall be depending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect. (Eev. Stats, sec. 5280.) § 598. Power of foreign consuls over disputes between seamen. — Whenever it is stipulated by treaty or convention between the United States and any foreign nation that the consul-general, consuls, vice-consuls, or consular or commercial agents of each nation, shall have exclusive jurisdic- tion of controversies, difficulties, or disorders aris- ing at sea or in the waters or ports of the other 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 section shall take effect as to the ves- sels of any particular nation having such treaty with the United States, the President shall be sat- 1335 CRIMINAL PEOCEDUBE. § 599 isfied that similar provisions have been made for the execution of such treaty by the other coniract- ing party, and shall issue his proclamation to that effect, declaring this section to be in force as to such nation. (Rev. Stats, sec. 4079.) § 599. Arrest of seamen on application of con- sul. — In all cases within the purview of the pre- ceding section, the consul-general, consul, or other consular or commercial authority of such foreign nation charged with the appropriate duty in the particular case, may make application to any court of record of the United States, or to any Judge thereof, or to any commissioner of a circuit court, setting forth that such controversy, difficulty, or disorder has arisen, briefly stating the nature thereof, and when and where the same occurred, and exhibiting a certified copy 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 person has withdrawn himself, or is believed to be about to withdraw himself, from the control and discipline of the master and officers of the vessel, or that he has refused, or is about to refuse, to submit to and obey the lawful jurisdiction of such consular or commercial authority in the premises; and further stating and certifying that, to the best of the knowledge and belief of the officer certifying, such person is not a citizen of the United States. Such application shall be in writing and duly authenti- cated by the consular or other sufficient official § 600 CRIMINAL PROCEDURE. 1336 seal. Thereupon such court, judge, or commis- eioner 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 hrought before him for examination at a certain time and place. (Rev. Stats, sec. 4080.) § 600. Commitment and discharge. — If, on Buch examination, it is made to appear that the person so arrested is a citizen of the United States, he shall be forthwith discharged from arrest, and shall be left to the ordinary course of law. But if this is not made to appear, and such court, judge, or commissioner finds, upon the papers 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 execution of the laws of the United States, or the rights and duties of any cit- izen of the United States, he shall forthwith, by his warrant, commit such person to prison, where prisoners under sentence of a court of the United States may be lawfully committed, or, in his dis- cretion, to the master or chief officer of such for- eign vessel, to be subject to the lawful orders, con- trol, and discipline of such master or chief officer, and to the jurisdiction of the consular or commer- cial authority of the nation to which such vessel belongs, to the exclusion of any authority or juris- 1337 CEIMINAL PROCEDUKE. §§601-603 diction 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 ex- penses of the arrest and the detention of the per- son so arrested shall be paid by the consular offi- cers making the application. (Eev. Stats, sec. 4081.) § 601. Custody of United States prisoners — Expenses to be paid by United States. — All the ex- penses attendant upon the transportation from place to place, and upon the temporary or perma- nent confinement of persons arrested or committed under the laws of the United States, as well as upon the execution of any sentence of a court thereof respecting them, shall be paid out of the treasury of the United States in the manner pro- vided by law. (Eev. Stats, sec. 5536.) § 602. Places of confinement. — In a State where the use of jails, penitentiaries, or other houses is not allowed for the imprisonment of per- sons arrested or committed under the authority of the United States, any marshal in such State, un- der the direction of the judge of the district, may hire, or otherwise procure, within the limits of such State, a convenient place to serve as a tempo- rary jail. (Eev. Stats, sec. 5537.) § 603. Marshals to make provision for safe- keeping of prisoners. — The marshal shall make §§ 604-606 CRIMINAL PEOCEDUBE. 1338 such other provision as he may deem expedient and necessary for the safe-keeping of the prisoners ar- rested or committed under the authority of the United States, until permanent provision for that purpose is made by law. (Eev. Stats, sec. 5538.) § 604. United States convicts in State peniten- tiaries. — Whenever any criminal, convicted of any offense against the United States, is imprisoned in the jail or penitentiary of any State or Territory, such criminal shall in all respects be subject to the same discipline and treatment as convicts sen- tenced by the courts of the State or Territory in which such jail or penitentiary is situated; and while so confined therein shall be exclusively under the control of the officers having charge of the same, under the laws of such State or Territory. (Rev. Stats, sec. 5539.) § 605. Selection of penitentiary in a divided district. — Where a judicial district has been or may hereafter be divided, the circuit and district courts of the United States shall have power to sentence any one convicted of an offense punish- able by imprisonment at hard labor to the peniten- tiary within the State, though it be out of the judi- cial district in which the conviction is had. (Rev. Stats, sec. 5540.) § 606. Sentences for longer term than a year, where to be executed. — In every case where any person convicted of an offense against the United States is sentenced to imprisonment for a period 1339 CKIMINAL PROCEDURE. §§ 607 608 longer than one year, the court by which the sen- tence is passed may order the same to be executed in any State jail or penitentiary within the dis- trict 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. (Rev. Stats, sec. 5541.) §•607. Penitentiary sentences, where to be exe- cuted. — In every case where any criminal 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 exe- cuted in any State jail or penitentiary 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. (Rev. Stats, sec. 5542.) Where convict imprisoned.— If the law prescribes a place of imprisonment the court cannot direct a dif- ferent place not authorized (In re Bonner, 151 TJ. S. 242); and if the court orders imprisonment in a place not authorized by law, the prisoner is entitled to a writ of habeas corpus to relieve him from im- prisonment at that place, but without prejudice to his being sentenced in accordance with law upon the ver- dict against him. (In re Bonner, 151 U. S. 242.) Under this and the succeeding section, the court has no power after the expiration of the term in which such sentence is imposed to order the removal of a prisoner from a State prison to a county jail. (United States V. Greenwald, 64 P"'ed. Rep. 6.) § 608. Deduction from term of imprisonment § 609 CRIMINAL PROCEDURE. 1340 for good conduct. — All persons who have "been or may be convicted of any offense against the laws of the United States, and confined in any State jail or penitentiary in execution of the judgment upon such conviction, who so conduct themselves that no charge for misconduct is sustained against them, shall have a deduction of one month in eacli year made from the term of their sentence, and shall be entitled to their discharge so much the sooner, upon the certificate of the warden or keeper of such jail or penitentiary, with the approval of the attorney general. (Eev. Stats, sec. 5543.) Note.— This section governs commutations of sen- tences of offenders confined in county jails. (.In re Deering, 60 Fed. Rep. 265.) § 609. To what prisoners to apply. — The pre- ceding section, however, shall apply to such prison- ers only as are confined in jails or penitentiaries where no credits for good behavior are allowed; but in. other cases, all prisoners now or hereafter confined in the jails or penitentiaries of any State, for offenses against the United States, shall be en- titled to the same rule of credits for good behavior applicable to other prisoners in the same jail or penitentiary. (Rev. Stats, sec. 5544.) Good conduct credits. — A sentence to commence on the expiration of a preceding" sentence is not uncer- tain because l)y the above section convicts are entitled to good conduct credits on their sentences. (Howard V. United States, 43 U. S. App. 678; 75 Fed. Hep. 986.) A prisoner confined in a penitentiary of NeAV York State for an offense against the United States is noc entitled to an unconditional allowance for good be- 1341 CBIMINAL PEOCEDUBE. §§610-611 havior, but to the same rule of credits applicable by the law of the State to other prisoners in the same penitentiary. (In re Willis, 83 Fed. Rep. 148.) § 610. Credits for good conduct and on dis- charge, etc. — That all prisoners who have been, or shall hereafter be, convicted of any offense against the laws of the United States, and confined, in ex- ecution of the judgment or sentence upon such conviction, in any prison or penitentiary of any State or Territory which has no system of commu- tation for its own prisoners, shall have a deduction from their several terms of sentence of five days in each and every calendar month during which no charge of misconduct shall have been sustained against each severally, who shall be discharged at the expiration of his term of sentence less the time so deducted, and a certificate of the warden or keeper of such prison [or] penitentiary of such de- duction shall be entered on the warrant of com- mitment; provided, that if during the term of im- prisonment the prisoner shall commit any offense for which he shall be convicted by a jury, all re- missions theretofore made shall be thereby an- nulled. (18 Stat. L. 479; 1 Sup. Eev. Stats. 184, sec. 1.) § 611. To be provided with clothes and money on discharge. — That on the discharge from any prison of any person convicted under the laws of the United States on indictment, he or she shall be provided by the warden or keeper of said prison with one plain suit of clothes and five dollars in money, for which charge shall be made and allowed §§612-613 CBIMINAL PROCEDTTBE. 1342 in the accounts of said prison with the United States; provided, that this section shall not apply to persons sentenced to a term of imprisonment of less than six months. (Act of March 3, 1875, 18 Stat. L. 479; 1 Sup. Rev. Stats. 184, sec. 2.) - § 612. Actual reasonahle cost of keeping prisoners to be paid. — Hereafter there shall be al- lowed and paid by the attorney general, for the subsistence of prisoners in the custody of any mar- shal of the United States and the warden of the jail in the District of Columbia, such sum only as it reasonably and actually cost to subsist them. And it shall be the duty of the attorney general to prescribe such regulations for the government of the marshals and the warden of the jail in the District of Columbia, in relation to their duties under this chapter, as will enable him to determine the actual and reasonable expenses incurred. (Eev. Stats, sec. 5545.) § 613. Designation of penitentiary "by attorney general. — All persons who liave been, or who may hereafter be, convicted of crime by any court of the United States whose punishment is imprisonment in a district or territory where, at the time of con- viction, or at any time during the term of impris- onment, there may be no penitentiary or jail suit- able for the confinement of convicts or available therefor, shall be confined for the term for which they have been or may be sentenced, or during the residue of said term, in some suitable jail or peni- tentiary in a convenient State or Territory, to be 13-13 CIUMIXAL PROCEDURE. § 613 designated by the attorney general, and shall be transported and delivered to the warden or keeper such jail or penitentiary by the marshal of the ^district or Territory where the conviction has oc- curred; and if the conviction be had in the Dis- trict of Columbia the transportation and the de- livery shall be by the warden of the jail of that dis- trict; the reasonable actual expense of transporta- tion, necessary subsistence, and hire and transpor- tation 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 gen- eral, the expense of transportation from any State, Territory, or the District of Columbia, in which there is no penitentiary, will exceed the cost of maintaining them in jail in the State, Territory, or the District of Columbia, during the period of their sentence, then it shall be lawful so to confine them therein for the period designated in their respective sentences. And the place of imprison- ment may be changed in any case, when, in the opinion of the attorney 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 or improper treatment; pro- vided, however, that no change shall be made in the case of any prisoner on the ground of the un- healthiness of the prisoner, or because of his treat- ment, 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. §§ 614-615 CKIMINAL PROCEDUBE. 1344 (Eev. Stats, sec. 5546, as amended by the act of July 12, 1876, 19 Stat. L. 88.) Prisoner, removal of.— The power of remoxaL prisoner is in ttie hands of the attorney-general, and not in the courts. (United States v. Greenwald, 64 Fed. Rep. 6.) § 614. Attorney general to contract for sub- sistence, etc. — The attorney general shall contract with the managers or proper authorities having control of such prisoners, for the imprisonment, subsistence, and proper employment of them, and shall give the court having jurisdiction of such offenses notice of the jail or penitentiary where such prisoners will be confined. (Eev. Stats, sec. 5547.) Subsistence of prisoners.— A State statute author- izing the use of county jails for the confinement of United States prisoners on certain terms as to charges and fees is not binding on the United States, as sub- sistence is a matter of contract. (County of Lewis and Clarke v. United States, 77 Fed. Rep. 732.) §•615. Court may order sentence executed in house of correction. — Whenever any person is con- victed of any offense against the United States which is punishable by fine and imprisonment, or by either, the court by which the sentence is passed may order the sentence to be executed in any house of correction or house of reformation for juvenile delinquents within the State or dis- trict where such court is held, the use of which is authorized by the legislature of the State for such purpose. (Eev. Stats, sec. 5548.) 1345 CEIMINAL PROCEDURE. §§ 616 617 § 616. Confinement of juvenile offenders. — 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 pun- ishment whereof is imprisonment, shall be con- fined during the term of sentence in some house of refuge to be designated 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 occurred; or if such conviction be had in the Dis- trict of Columbia, then the transportation and de- livery shall be by the warden of the jail of that district, and the reasonable actual expense 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 judiciary fund. (Eev. Stats, sec. 5549.) § 617. Attorney general to contract for their subsistence. — The attorney general shall contract wdth the managers or persons having control of such houses of refuge for the imprisonment, sub- sistence, and proper employment of all such juve- nile offenders and shall give the several courts of the United States and of the District of Columbia notice of the places so provided for the confine- ment of such offenders; and they shall be sentenced to confinement in the house of refuge nearest the place of conviction so designated by the attorney general. (Rev. Stats, sec. 5550.) Fed. Pboc — 113. §§618-621 CKIMINAI. PROCEDURE. 1346 § 618. Removal of prisoners in case of contag- ion or epidemic. — The judge of any district court, within whose district any contagious or epidemic disease shall at any time prevail, so as, in his opin- ion, to endanger the lives of persons confined in the prison of such district, in pursuance of any law of the United States, may direct the marshal to cause the persons so confined to be removed to the next adjacent prison where such disease does not prevailj there to be confined until they may safely be removed back to the place of their first confinement. Such removals shall be at the expense of the United States. (Rev. Stats, sec. 4800.) § 620. Indictment— Capital offenses. — No per- son shall be prosecuted, tried, or punished for treason or other capital offense, willful murder ex- cepted, unless the indictment is found within three years next after such treason or capital of- fense is done or committed. (Eev. Stats, sec. 1043.) § 621. Indictment — Offenses not capital. — ISTo person shall be prosecuted, tried, or punished for any offense not capital, except as provided in sec- tion one thousand and forty-six, unless the indict- ment is found or the information is instituted within three years next after such offense shall have been committed. But this court shall not have effect to authorize the prosecution, trial, or punishment for any offense barred by the pro- visions of existing laws. (19 U. S. Stats. 32; 1 Sup. Eev. Stats. 204; Eev. Stats, sec. 1044.) 1347 CRIMINAL PKOCEDURE. § 621 Offenses not capital. — This section applies to prose- cutions under statutes passed since its adoption, and is general in its nature. (Adams v. Woods, 2 Cranch, 836; United States v. Mayo, 1 Gall. 397; Fed. Cas. No. 15755; United States v. Brown, 2 Low. 267; Fed. Cas. No. 14665; Joiinson v. United States, 3 McLean, 89; Fed. Cas. No. 7418; United States v. Ballard, 3 Mc- Lean, 469; Fed. Cas. No. 14507; United States v. Sho- rey, 9 Int. Rev. Rec. 202; Fed. Cas. No. 16281; United States V. Dustin, 15 Int. Rev. Rec. 30; Fed. Cas. No. 15012.) It applies to offenses at common law com- mitted in the District of Columbia. (United States V. Sla.cum, 1 Cranch C. C. 485; Fed. Cas. No. 16311; United States v. Porter, 2 Cranch C. C. 60; Fed. Cas. No. 16072; United States v. Watkins, 3 Cranch C. C. 441 ; Fed. Cas. No. 16649.) It runs from the time of the commission of the offense to the finding of the indictment or filing of the information (United States V, Ballard, 3 McLean, 469; Fed. Cas. No. 14507); and that altliough a prior indictment was found within the three years, but upon which a nol. pros, was en- tered. (United States v. Ballard, 3 McLean, 469; Fed, Cas. No. 14507.) The indictment may set forth the true time of the commission of the offense, and any facts which show defendant cannot avail himself of the limitation (United States v. Watkins, 3 Cranch C. C. 441; Fed. Cas. No. 16649; United States v. White, 5 Cranch C. C. 368; Fed. Cas. No. 16678); and evidence may be given even under the general issue that he fled from justice to avodd the bar of the stat- ute. (United States v. White, 5 Cranch C. O. 368; Fed. Cas. No. 16678.) The indictment will not be quashed, although it appears upon the record that the offense was committed more than three years before Itsfinding (United States v. White, 5 Cranch 0. C. 368; Fed. Cas. No. 16678; Utiited States v. Cook, 17 Wall. 168); nor will judgment be arrested for that reason. (United States v. Cook, 17 Wall. 168.) The defense §621 CRIMINAL PROCEDURE. cannot be set up by demurrer. (United States v. Cook, 17 Wall. 168; but see contra, United States v. Watkins, 3 Cranch 0. C. 441; Fed. Cas. No. 16649; United States v. White, 5 Cranch C. C. 368; Fed. Cas. No. 16678.) A party is entitled to the benefit of the limitation although the government does not know him to be the person who committed the crime (United States v. White, 5 Cranch C. C. 368; Fed. Cas. No. 16678), and although he committed the crime on the high seas and did not return until the three years had expired. (United States v. Brown. 2 Low. 267; Fed. Cas. No. 146(15.) It is not necessary to plead the statute specially; it may be taken advantage of under the plea of not guilty. (United States v. Cook, 17 Wall. 168; United States v. Fermenting Tubs, 1 Abb. U. S. 268; Fed. Cas. No. 16296; United States v. White, 5 Cranch C. C. 368; Fed. Cas. No. 16678; United States V. Brown, 2 Low. 267; Fed. Cas. No. 14665; Parsons V. Hunter, 2 Sum. 419; Fed. Cas. No. 10778.) If a public officer embezzles public funds the offense is within the provisions of this section (United States V. Cook, 17 Wall. 168); but an oflcnse arising under the revenue laws is not within its provisions (United States V. Hirsch, 100 U. S. 33) ; but a plea of the lapse of three j'ears is good to an indictment for a conspir- acy, although the overt act ueces-sary to the offense may be one affecting the revenue. (United Strifes v. Hirsch, 100 U. S. 33; United States v. Blunt, 7 Chic. L. N. 258; Fed. Cas. No. 14615; but see United States V. Fehrenback, 2 Woods, 175; Fed. Cas. No. 15083; United States v. Dustin, 15 Int. Rev. Rec. 30; Fed. Cas. No. 1.5012.) Fraudulently procuring one's name to be entered on the pension roll is a commission of the offense every time he claims his pension. (United States V. Coggin, 3 Fed. Rep. 492; 9 Biss. 416.) If a pensioner makes demand on an agent for his pension more than two years before the prosecution this sec- tion is a uar. (United States v. Irvine, 98 U. S. 450.) 1349 CRIMINAL PROCEDURE. §§ 622-633 § 622. Fleeing from justice. — Nothing in the two preceding sections shall extend to any person fleeing from justice. (Eev. Stats, sec. 1045.) Fleeing from, justice. — Pleeing from justice means leaving one's home or abode to avoid detection for some ott'ense against the United States. (United States V. O'Brian, 3 Dill. 381; Fed. Cas. No. 1590S.) It is not necessary that there should be an intent to avoid the justice of the United States; but it is suffi- cient if there is an intent to avoid the justice of the State having criminal jurisdiction over the same ter- ritory and the same act. (Streep v. United States, 160 U. S. 128.) After flight, an open and public re- turn more than three years before indictment bars the prosecution (United States v. White, 5 Cranch C. C. 38; Fed. Cas. No. 16675), either by leaving the juris- diction or concealing one's self vv^ithin it. (United States V. White. 5 Cranch C. C. 38; Fed. Cas. No. 16675.) If one flees to avoid punishment the statute is no bar, though he did not flee to avoid process. (United States v. White, 5 Cranch C. C. 38; Fed. Cas. No. 16675; United States v. White, 5 Cranch C. C. 116; Fed. Cas. No. 16677.) Continuing on a cruise after commission of the crime is not a fleeing from justice. (United States v. Brow^n, 2 Low. 267; Fed. Cas. No. 14665.) § 623. Crimes under the revenue laws. — No person shall be prosecuted, tried, or punished for any <;rime arising under the revenue laws, or the slave-trade laws of the United States, unless the indictment is found or the information is insti- tuted within five years next after the committing of such crime. (Eev. Stats, sec. 1046.) OfEenses ag'ainst revenue laws. — This section does not embrace every law of fines or forfeiture. (United § 624 CRIMINAL PROCEDURE. 1350 States Y. Mayo, 1 Gall. 397; Fed. Cas. No. 1575.5.) The term "revenue laws" does not mean laws which, by Indirect operation, may conduce to the public wealth, (United States v. Norton, 91 U. S. 566; United States v. Mayo, 1 Gall. 397; Fed. Cas. No. 15755.) But it applies to special acts violating laws made to protect the revenue. (United States v. Hirsch, TOO U. S. 33.) As malting a false entry of goods by a fraudulent invoice and false classification. (United States v. Hirsch, 100 U. S. 33.) Or to a crime created by a statute relating to the internal revenue. (United States v. Wright, 11 Int. Rev. Rec. 35; Fed. Cas. No. 16770; United States v. Dustin, 15 Int. Rev. Rec. 30; Fed. Cas. No. 15012.) Nor is the act to estab- lish a monej'-order system. (United States v. Norton, 91 U. S. 566.) Offenses against the customs are crimes punishable by fine and imprisonment, forfeit- ures carried into effect by seizure, condemnation and sale, and pecuniary penalties recoverable by action. (In re Landsberg, 11 Int. Rev. Rec. 150; Fed. Cas. No. 8041.) But not if a statute provides for fine or im- prisonment, or both, at the discretion of the court. (In re Landsberg, 11 Int. Rev. Rec. 150; Fed. Cas. No. 8041; United States v. Shorey, 9 Int. Rev. Rec. 202; Fed. Cas. No. 16281; McGlinchy v. United States, 4 Cliff. 312; Fed. Cas. No. 8S03; Perkins v. United States, 4 Cliff. 321; Fed. Cas. No. 10990; United States V. One Oil Fainting, 31 Fed. Rep. 881. § 624. Penalties and forfeitures under laws of United States. — No suit or prosecution for- any penalty or forfeiture, pecuniary or otherwise, ac- cruing under the laws of the United States, shall be maintained, except in cases where it is other- wise specially provided, unless the same is com- menced Avithin five years from the time when the penalty or forfeiture accrued; provided, that the I 1351 CRIMINAI, PBOCEDTJEE. § 624 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. (Eev. Stats, sec. 1047.) Note. — ft applies equally to an action of debt to recover a penalty. (Adams v. Woods, 2 Cranch, 336; Stimpson v. Pond, 2 Curt. 502; Fed. Cas. No. 134-5.5.) It applies to civil actions and not to prosecutions for the crime. (United States v. Brown, 2 Low. 267; Fed. Cas. No. 14665.) It does not apply to actions on a bond, or for the penalty named in the bond. (Raymond v. United States, 14 Blatchf. 51; Fed. Cas. No. 11596.) A State statute cannot bar an action aris- ing under an act of Congress. (McGlinchy v. United States, 4 ClifC. 312; Fed. Cas. No. 8803; Perkins v. United States, 4 ClifC. 321; Fed. Cas. No. 10990.) "Penalty" is a fixed pecuniary mulct incurred for vio- lation of a law. (In re Landsberg, 11 Int. Rev. Rec. 150; Fed. Cas. No. 8041.) And the limitation appliess to suits to recover such penalty, as well as fines and forfeitures accruing under the laws of the United States, and those accruing to the United States unless specifically excepted (United States v. Maillard, 4 Ben. 459; Fed. Cas. No. 15709; In re Landsberg, 11 Int. Rev. Rec. 150; Fed. Cas. No. 8041), whether the action be in rem or in personam (The Boston, 3 Fed. Rep. 807); as for refusal of a master to deposit papers with the consul (Parsons v. Hunter, 2 Sum. 419; Fed. Cas. No. 10778), and a fraudulent concealment of the cause of action will not prevent the running of the statute. (United States v. Maillard, 4 Ben. 459; Fed. Cas. No. 15709.) Five years from the time "when the penalty or forfeiture accrued" is the limitation for actions of debt for penalties. (Hatch v. The Boston, §§ 625-626 CRIMINAL PROCEDURE. 1352 3 Fed. Rep. 810.) A statute imposing a penalty for the master's refusal or neglect to deposit papers with the consul is not a revenue law. (Parsons v. Hunter, 2 Sum. 419; Fed. Cas. No. 10778.) Under this clause a right to forfeit the charter of a national banli for violation of tlie provisions of U. S. Kev. Stat., tit. 02, is limited to five years. (Welles v. Graves, 7 K. R. & Corp. L. J. 392; 41 Fed. Rep. 459.) § 625. Under customs revenue law. — That no suit or action to recover any pecuniary penalty or forfeiture of property accruing under the cus- toms revenue laws of the United States shall be instituted unless such suit or action shall be com- menced within three years after the time when such penalty or forfeiture shall have accrued; provided, that the time of the absence from the United States of the person subject to such pen- alty or forfeiture, or of any concealment or ab- sence of the property, shall not be reckoned with- in this period of limitation. (Eev. Stats, sec. 1047.) i:; 626. Parties beyond reach of process during the rebellion. — In all cases where, during the late rebellion, any person could not, by reason of re- sistance to the execution of the laws of the United States, or of the interruption of the ordinary course of judicial proceedings, be served \nth process for the commencement of any action, civil or criminal, which had accrued against him, the time during which such person was beyond the reach of legal process shall not be taken as any part of the time limited by law for the commence- ment of such action. (Rev. Stats, sec. 1048.) 3353 CRIMINAL, PROCEDURE. § 626 Suspension of operation of statute. — A State law may suspend the operation of the statute for a longer period. (Graydon v. Sweet. 1 Woods, 418; Fed. Cas. No. 5733.) This statute is not a statute of limitations, not specTfying the time in which action may be brought. (Graydon v. Sweet, 1 Woods, 418; Fed. Cas. No. 5733.) If defendant was where process could be served on him, the limitation in other cases applies. (Britton v. Butler. 11 Blatchf. 350; Fed. Cas. No. 1994.; The suspension of the statute ceased a reasonable time after restoration of peace. (United States v. Muhlenbrink, 1 Woods, 5G9; Fed. Cas. No. 15831.) All the time must be deducted during which suits could not be prosecuted, by resistance to laws or in- terruption to judicial proceedings, whether before or after its passage. (United States v. Wiley, 11 Wall. 508.) It does not apply between persons who resided in the Confederate States. (Lockhart v. Horn, 1 Woods, 628; Fed. Cas. No. 8445.) §§ 637-628 COUET of claims. 1354 CHAPTER XXIII. COUKT OF CLAIMS— OKQANIZATIOW AND SESSIONS. § 627. Judges, § 628. Seal. § 629. Court-rooms, etc., how provided. § 630. Sessions — Quorum. § 631. Officers of the court. § 632. Salaries of clerks, bailiff, and messenger. § 633. Clerk's bond. § 634. Contingent fund. § 635. Reports to Congress, copies for departments, etc. § 63G. Members of Congress not to practice in the court. § 627. Judges. — The court of claims, estab- lished by the act of. February twenty-four, eigh- teen hundred and fifty-live, shall be continued. It shall consist of a chief justice and four judges, who shall be appointed by the President, by and with the advice and consent of the Senate, and hold their offices during good behavior. Each of them shall take an oath to support the con- stitution of the United States, and to discharge faithfully the duties of his office, and shall be en- titled to receive an annual salary of four thousand five hundred dollars, payable quarterly from the treasury. (Rev. Stats, sec. 1049.) § 628. Seal. — The court of claims shall have a seal, with such device as it may order. (Rev. Stats, sec. 1050.) 1.355 COUKT OF CLAIMS. §§ 629-631 § 629. Courtrooms, etc., how provided. — It shall be the duty of the speaker of the House of Eepresentatives to approjDiiate such rooms in the Capitol, at Washington, for the use of the court of claims, as may be necessary for their accommo- dation, unless it appears to him that such rooms cannot be so appropriated without interfering with the business of Congress. In that case the court shall procure, at the city of Washington, such rooms as may be necessary for the transaction of their business. (Eev. Stats, sec. 1051.) § 630. Sessions — ftuorum. — 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 nec- essary for the prompt disposition of the business of the court. And any three judges of the court of claims shall constitute a quorum; provided, that the concurrence of three judges shall be necessary to the decision of any case. (Eev. Stats, sec. 1052; 18 U. S. Stats. 252.) § 631. Officers of the court. — The said court shall appoint a chief clerk, an assistant clerk, if deemed necessary, a baililf, and a messenger. The clerks shall take an oath for the faithful discharge of their duties, and shall be under the direction of the court in the performance thereof; and for misconduct or incapacity they may be removed by it from office; but tlie court shall report such re- movals, with the cause thereof, to Congress, if in session, or if not, at the next session. The bailiff §§ 632-635 COURT of claims. 1356 shall hold his office for a term of four years, un- less sooner removed by the court for cause. (Rev. Stats, sec. 1053.) § 632. Salaries of clerks, etc. — The salary of the chief clerk shall be three thousand dollars a year, of the assistant clerk, two thousand a year, of the bailiff, fifteen hundred dollars a year, and of the messenger eight hundred and forty dollars a year, payable quarterly from the treasury. (Rev. Stats, sec. 1054.) § 633. Clerk's bond.— The chief clerk shall give bond to the United States in such form, and vrith such security as shall be approved by the sec- retary of the treasury. (Rev. Stats, sec. 1055.) § 634. Contingent fund. — The said clerk sliall have authority, when he has given bond as pro- vided in the preceding section, to disburse, un- der the direction of the court, the contingent fund which may from time to time be appropriated for its use; and his accounts shall be settled by the proper accounting officers of the treasury in the same way as the account of other disbursing agents of the government are settled. (Rev. Stats, sec. 1056.) ^ 635. Reports to Congress, copies for depart- ments, etc. — On the first day of every December session of Congress, the clerk of the court of claims shall trnnsmit to Congress a full and complete statement of all the judgments rendered by the 1357 COURT OF CLAIMS. ^ 636 court during the previous year, stating the amounts thereof, and the parties in whose favor they were rendered, together with a brief synop- sis of the nature of the claims upon which they were rendered. And 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 comptrollers, and the auditors of the treasury; to the commissioners of the general landoffice and of Indian affairs; to the chiefs of bureaus; and to other officers charged with the adjustment of claims against the United States. (Eev. Stats, sec. 1057.) § 636. Members of Congress. — ^Members of either house of Congress shall not practice in the court of claims. (Eev. Stats, sec. 1058.) Fed. Pboc— 114. COUBT OF CLAIMS— JUKISDICTION. 135S CHAPTER XXIV. COURT OF CLAIMS — JURISDICTION. § 037. Jurisdiction— Suits against government— Pro- viso— "War" and rejected claims excepted. § 638. Set-offs, counterclaims, etc.— Proviso— Limi- tation. § 639. District and circuit courts to have concurrent jurisdiction with court of claims— Limit. § GiO. Petitions for release from official bond— Judg- ment — Limitation. § 641. Attorney-general to represent United States. § 642. Payment, discharge of obligation. § 643. Jurisdiction and procedure. § 644. Petition for settlement of claims. § 645. Service— Defense — Proviso — Proceedings on failure to answer. § 646. Findings of court. § 647. Interested parties may testify. § 648. Appeals aud writs of error— Procedure. § 649. Judgments adverse to United States to be cer- titied to attorney-general — Appeal — Proviso — Limitation— Interest § 650. . Heport to Congress. § 651. Claims refened by departments. § 652. Claims referred uuder "Bowman Act"— Judg- ment. § 653. lieference of claims pending in Congress— Re- port to Congress. § 654. Costs. § 655. Inconsistent laws repealed. § 656. Claims allowed by the first auditor and com- missioner of customs. § 657. Western Cherokee Indian claims. 1359 COUKT OF CLAIMS— JURISDICTION. § 658. Shawnee and Delaware Indian claims. § 659. Private claims in Congress. § 660. Judgments for set-off or counterclaim. § 661. Decree on accounts of paymasters, etc. § 662. Claims referred by department. § 663. Procedure in cases transmitted by depart- ments. § 664. Judgments in cases transmitted by depart- ments, how paid. § 665. Judgments and claims subject to offsets. § 666. Claims growing out of treaties. § 667. Claims pending in other courts. § 668. Aliens. § 665). Limitations. § 670. Rules of practice— Contempts. § 671. Oaths and acknowledgments. § 672. Petition. § 673. Petition, when dismissed. § 674. Burden of proof and evidence as to loyalty. § 675. Commissioners to take testimony. § 676. Power to call upon departments for informa- tion. § 677. When testimony not to be taken. § 678. Witnesses not excluded. § 679. Examination of claimant. § 680. Testimony taken where deponent resides. § 681. Witnesses, how compelled to attend. § 682. Cross-examination. § 683. Witnesses, how sworn. § 684. Fees of commissioner. § 685. Claims forfeited for fraud. § 686. New trial on motion of claimant. § 687. New trial on motion of United States. § 688. Payment of judgments. § 689. Interest. § 690. Interest on claims. § 691. Payment of judgment a full discharge, etc. § 692. nnal judgment a bar. COURT OF CLAIMS— JURISDICTION. 1860 § 693. Claims, etc., pending before CongresB, when to be referred to court of claims. § 694. Claims pending in executive department, when transmitted, etc. § 695. Claims not within jurisdiction of court. § 696. Claims for supplies, etc., furnished for sup- pression of the rebellion. § 697. Defense, etc., for the United States. § 698. Parties in interest may testify, etc. § 699. Heports of court may be continued, etc., for action. § 700. Claims of American citizens for spoliations committed by the French. § 701. Court to make needful rules. § 702. Court to determine validity, amount, owner- ship of claims, etc.— Proviso as to testimony and law, and report conclusions. § 703. Attorney general to be notified of all petitions presented, and resist claims by legal de- fenses. § 704. Secretary of state to procure evidence and documents from abroad. § 705. Court to report to Congress— Claims barred if not presented in two years. § 706. Claims arising from Indian depredations. § 707. Examined claims. § 708. Offsets and counterclaims. § 709. Limitations waived — Provisos— Claims not to be considered. § 710. I'etltion, etc. § 711. Service— I'etition—Attorney-genoral to defend- — I'rovisos — Proceedings on his failure to de- fend—Special attorney for Indians. § 712. Evidence— Provisos— Priority of claims, re- opening cases, etc. § 713. Rules for talcing testimony, etc. § 714. Judgment to be charged against tribe— Mode of payment. 1361 COURT OF CLAIMS— JURISDICTION. § 637 § 715. Judgments final— Appeal. § 716. Lists of judgments to be sent to Congress. § 717. Bales, attorneys' contracts, etc., declared void — Warrants payable to claimant, etc., allow- ance to attorneys— Maximum. § 718, Appeal. § 719. All papers, etc., to be furnislied the court. § 720. Additional assistant attorney-general to be appointed. § 721. Investigation under present laws to cease — Balances to be covered in. § 722. Court to determine claims of Pottawatomiea for land purchased. § 723. Private claim referred. § 637. Jurisdiction — Suits against govern- ment. — The court of claims shall have jurisdiction to hear and determine the following matters: First. All claims founded upon the constitu- tion of the United States, or any law of Congress, , except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or un- liquidated, in cases not sounding in tort, in re- spect 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, Tioivever, that nothing in this section shall be construed as giving to either of the courts herein mentioned 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 have heretofore been rejected, or reported on ad- § 637 COURT OF CLAIMS— JURISDICTION. 1362 versely by any courts, department, or commission authorized to hear and determine the same. (Eev. Stats, sec. 1059, as amended; 24 U. S. Slats. 505, sec. 1, cl. 1.) Jurisdiction in general. — The court of claims is not a local but a national court, with jurisdiction through- out the United States. (King's Case, 27 Ct. of Cl. 529.) Where Congress creates a class of claims and provides a jurisdiction it is exclusive. (Foster's Case, 32 Ct. of Cl. 170.) Conuress can confer upon the court of claims power not strictly judicial. (Westei*n Cher- okee Indians' Case, 27 Ct. of Cl. 1.) The court of claims has no general jurisdiction over claims against the United States; it can take cognizance of only those matters which by the terms of some act of Congress are committed to it. (Johnson v. United States. IdO U. S. 546.) Where Congress has provided a system adequate to the investigation and recovery of legal claims, and has intrusted specified executive or other officers with a judicial discretion, such claims cannot be enforced in the court of claims (Boughton V. United States, 12 Ct. of Cl. 3.30); and if a claimant institutes proceedings without presenting his claim to an executive department, he may be re- quired to do so before relief will be granted (Sweeney v. United States, 5 Ct. of Cl. 28.5); but he cannot be required so to do before filing his petition. (Clyde v. United States, 13 Wall. 38; but see Calkins v. United States, 1 Ct. of Cl. 382.) If the government assumes to pay a certain claim, and provides a specific tribunal for the ascertainment thereof, the claimant cannot prosecute in the court of claims after the decision of that tribunal. (Meade v. U. S., 9 Wall; 691.) Where the government recognizes an assignment of the claim, the parties to the agreement and those claiming under them cannot set up that the contract was not assignable. (Goodman v. Niblack, 102 U. S. 556.) 1363 COURT OF CLAIMS — JURISDICTION. § 637 The court of claims lias no equitable jurisdiction. (Bonner v. United Slates. 9 Wall. 156.) An action to implead the United States and a State cannot be pros- ecuted in the court of claims. (Mil. & R. R. Canal Co. V. United States. 1 Ct. of CI. 187.) Plaintiff, who has insiltuted proceedings in the court of claims to re- cover for lands condemned for public purposes, can- not then be heard to say that the law establishing the court is unconstitutional because it takes away the right of trial by jury and establishes a court unknown to the Constilution. ((ire;it Falls Manuf. Co. v. At- torney-general, 124 U. S. 581; affirming S. C. 25 Fed. Rep. 521.) The jurisdiction of the court of claims over cases refen-ed to it by either house of Congi'ess is subject to prorisions of general statutes of limitation regulating that jurisdiction. (Ford v. United States, 116 U. S. 213.) This court has jurisdiction of an action by a State against the United States, for a demand arising upon an act of Congress. (United States v. Louisiana. 123 U. S. 32.) The court of claims has not jurisdiction of a suit in equity to set aside a sale of land to the United States on the gi-ound that it was in fraud of the rights of the present claimants. (Jackson's Case, 27 Ct. of CI. 74.) Where the gov- ernment has taken property avowedly as its own the court of claims has no jurisdiction. (Merriam's Case, 29 Ct. of CI. 250.) A claim before the Southern claims commission, prosecuted only by ex parte affi- davits, is excluded from the jurisdiction of the court of claims. (Duplantier's Case, 27 Ct. of CI. 323.) When a citizen insists upon a recognition of a claim, he imposes a legal obligation upon himself to become subject to the jurisdiction of such court as Congress may empower to adjudicate it. (La Abra Case, 29 Ct. of CI. 432.) The court of claims has jurisdiction to recover a drawback on exported sugar. (Durant'a Case, 28 Ct. of CI. 356.) An act of Congress provid- ing a method of adjusting a claim, if the claimant so § 637 COURT OF CLAIMS— JURISDICTION. 1364 desire, without a suit, does not deprive the court of claims of its jurisdiction of the claim, if within its general jurisdiction. (Smithmeyer v. United States, 147 U. S. 342.) The jurisdiction of the court of claims to proceed further in a case founded upon a statute is taken away by the repeal of the act after a reversal of the judgment of the court and the remanding of the case for further proceedings. (In re Hall, 167 IT. S. 38.) The refusal of the court to approve the accovmt of a commissioner is no bar to an action therefor in the court of claims, although such refusal may be a matter for consideration in respect at least to the good faith of the transaction. (Southworth v. United States, 151 U. S. 179.) Law of Congress.— A claim founded on a law of Congress may be prosecuted in the court of claims. (Alive V. United States, 1 Ct. of CI. 233; Bogert V. United States, 3 Ct. of CI. 18.) An officer may prosecute a claim to recover salary allowed by act of Congress. (Moore v. United States, 4 Ct. of CI. 139.) The owner of bonds assumed by the United States may maintain an action thereon in the court of claims (Morrell v. U. S., 7 Ct. of CI. 421); but a per- son who has attended as a witness before either house of Congi'ess cannot prosecute an action to recover com- pensation. (Lilley v. U. S., 14 Ct. of CI. 539.) So a pension agent cannot prosecute when there is no pro- vision of law for his compensation. (Kapp v. U. S., Dev. Ct. Cl. 132.) Although an unauthorized purchase is ratified by Congress, yet an action in the court of claims for rent from time of purchase to time of ratification cannot be maintained. (Carpenter v. U. S., 17 Wall. 489; S. C, 6 Ct. of Cl. 18.) So if the United States take possession of land, under an Indian treaty, and as trustee for the Indians, the owner cannot prosecute an action to recover com- pensation in court of claims. (Langford v. U. S.. 12 1365 COURT OF CLAIMS— JURISDICTION. § 637 Ct. of CI. 338.) Where, by an act of Congress, the secretary of the treasury is required to pay a cer- tain claim against the United States, and no discre- tion in the premises is vested In hijn, the claimant is entitled to payment, and no suit lies to recover back the amount when paid, on the ground of mistake, un- less Congress abrogates the law under which payment was made. (United States v. Price, 116 U. S. 43.) Neither the court of claims nor the supreme court of the United States can determine any claim against the United States, except in cases defined by Con- gress. (United States v. Gleeson, 124 U. S. 255; Do Groot V. United States, 5 Wall. 419.) Claims against or liens upon property of the United States are in- capable of enforcement, except when such property becomes subject to the control of the courts. (The Siren v. United States, 7 Wall. 152.) The court of claims has jurisdiction of an action by a state against the United States for a demand arising upon an act of Congress. (United States v. Louisiana, 123 U. S. 32.) Revenue Laws. — An ofHcer of the internal revenue may prosecute a claim to recover his salary, (Patton V. U. S., 7 Ct. of CI. 362.) An informer may prose- cute his claim to recover his share of a forfeiture (Shelton v. U. S., 8 Ct. of CI. 487), but not if the sec- retary of the treasury has decided against his claim (Ramsey v. U. S., 14 Ct. of CI. 367); but if the money has been conveyed into the treasury, he may prose- cute an action to recover his share. (Bradley v. U. S., 12 Ct. of CI. 578.) An importer cannot prosecute to recover money paid as a duty on imported goods, although the assessment was illegal (Nichols v. United States. 7 Wall. 122; Doherty v. U. S., 6 Ct. of CI. 901; De Cells v. U. S., 13 Ct. of CI. 117); but he may prosecute to recover money deposited by him in excess of the duties on goods received. (Broulatour i 637 COURT OF CLAIMS— JURISDICTION. 1366 V. U. S., 7 Ct. of CI. 555.) A manufacturer who has paid the tax imposed by the internal revenue cannot prosecute to recover the drawback allowed upon ex- portation of the goods (Portland Co, v. U. S., 5 Ct. of CI. 441); a manufacturer of matches may prosecute to recover the commission on stamps. (Daily v. U. S., 7 Ct. of CI. 383.) A distiller cannot prosecute to re- cover an allowance for lealvage (Turner v. U. S., 9 Ct. of CI. 307 j; but a brewer may maintain an action for an excess on the payment of a special tax. (U. S. v. Kaufman, 9G U. S. 567; U. S. v. Real Est. Sav. Bk., 104 U. S. 728.) A' person who never attempts to per- form his contract cannot prosecute a claim against the United States upon the ground that a different mode of inspection was adopted after the making of the contract. (Spicer v. U. S., 1 Ct. of CI. 316.) The court of claims has jurisdiction of a petition by an assessor of internal revenue to recover money de- posited by him to secure the compromise of a prosecu- tion, if the compromise is rejected, and the money conveyed into the treasury. (Boughton v. U. S., 12 Ct. of CI. 330.) An exporter entitled to a drawback may maintain suit therefor. (Campbell v. U. S., 107 U. S. 407.) The allowance, by the commissioner of in- ternal revenue, of a claim for taxes illegally or er- roneously collected, may be used as the basis of an action in the court of claims. (U. S. v. Real Estate Sav. Bank of Pittsburg, 104 U. S. 728; see Campbell V. United States, 107 U. S. 407.) Department regulations. — "Regulations of an ex- ecutive dei)artnient" describe rules and regulations made by the head of the department, under an act of Congress, and an order assigning a clerk to duty ia not such a regulation. (Harvey v. U. S., 3 Ct. of CI. 38.) Contracts express or implied. — The United States is not liable on a contract where the officer made it 1367 COURT OF CLAIMS— JURISDICTION. § 637 without authority, unless ratified, or the benefits were received. (De Celis v. U. S., 13 Gt. of CI. 117.) An implied contract cannot arise out of acts of an agent who had no power or authority to contract. (Pitcher V. U. S., 1 Ct. of CI. 7.) To constitute an implied con- tract there must be a consideration moving- to the United States, or they must have received benefits from the property, or claimant must have a lawful right to the property. As in case of money paid by mistalve. (Knote v. U. S., 95 U. S. 149.) So where the United States receives money through the fraud of their agent. (U. S. v. State, 96 U. S. 30.) So the owner of land sold for the direct tax may prosecute an action in the court of claims to recovei* the sur- plus. (Taylor v. U. S., 14 Ct. of 01. 339.) A claim based upon an implied promise to repay money er- roneously exacted is within the provisions of this sec- tion. (Schleslnger v. U. S., 1 Ct. of Ol. 16.) A claim for salvage services may be prosecuted in the court of claims (Brynn v. U. S., 6 Ct. of CI. 128), or for de- livery of goods, though the original contract made by another person was void. (Heatbfield v. U. S., 8 Ct. of CI. 213.) The owner of land laay provsecute a claim for compensation for the use thereof. (John- son V. U. S., 4 Ct. of CI. 248.) The court of claims cannot render judgment for recovery on a military land warrant against the government (U. S. V. Alire, 6 WaU. 573; Chamberlain v. U. S., 20 Law Eep. 681; Jewett v. U. S., 23 Law Eep. G33): and although the United States disposes of land in violation of a ti-ust, yet the holder of the war- rant cannot enforce a claim arising from such breach. (Bonner v. U. S., 9 Wall. 156.) When the government is liable on contract this court alone has jurisdiction. (Case v. Terrell, 11 Wall. 199; Gibbons v. U. S., 8 Wall. 269.) It lies on an implied contract for services, equipment, and manning of a § 637 COURT OF CLAIMS— JURISDICTION. 1368 vessel in the service of governments (U. S. v. Rus- sell. 13 Wall. 62^3), bnt not in case of impressment of a vessel. (U. S. v. Kimbal, 13 Wall. 630.) Where property is taljcn for public use the government is under au implied obligation to make compensation therefor. (U. S. v. Great Falls M. Co., 112 U. S. 645.) Damages. — A patentee cannot maintain an action of damages for the infringement of a patent; so held ■where the warden of a penitentiary infringed the patent and paid the proceeds from the sale of the ar- ticles made to the United States (Fletcher v. U. S., 11 Ct. of CI. 748); but the government may be sued for the use of a patented invention (Jones v. Camp- bell, 3 Ct. of CI. 440; McKeever v. U. S., 14 Ct. of CI. 396), or for the royalty which the government agrees to pay for its use. (U. S. v. Burns, 12 Wall. 240.) If the United States leases a piece of property, a claim for damages arising after the execution of the lease from the want of reasonable care in the use »iay be maintaine8; Harvey v. U. S.. 12 Ct. of CI. 141; 13 Ct. of Ol. 322.) The determination of what are the facts relative to the rights of a claimant In a Congressional case, and the determination of what is competent evi- dence involve the exercise of the judicial function. To this extent Congress has made the court of claims a court of last resort. (Vance's Case, 30 Ct. of CI. 252.) § 654. Costs. — 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 in- clude only what is actually incurred for witnesses, and for summoning the same, and fees paid to the clerk of the court. (24 U. S. Stats. 505, sec. 15.) § 655. Inconsistent laws repealed. — All laws and parts of laws inconsistent with this act are 1385 COURT OF CLAIMS— JUBISDICTION. §§ 656-659 hereby repealed. (24 U. S. Stats. 505, sec. 16. Approved March 3, 1887.) § 656. Claims allowed by the first auditor and commissioner of customs.— Full and complete jurisdiction is conferred by the appropriation act of July 7, 1884, section 3, on the court of claims, on claims allowed by the first auditor and com- missioner of customs, as to the expenses of col- lecting the revenue from customs prior to July 18, 1881, being the difference between amount paid and legal compensation fixed by Revised Statutes, sections 2733, 2738. (Act of July 7, 1884; 23 U. S. Stats. 257.) § 657. Western Cherokee Indian claims. — An act to authorize the court of claims to hear, deter- mine, and render final judgment upon the claim of the old settlers or Western Cherokee Indians. (Feb. 25, 1889; 25 U. S. Stats. 694.) § 658. Shawnee and Delaware Indian claims. — An act to refer to the court of claims certain claims of the Shawnee and Delaware Indians and the freedmen of the Cherokee nation, and fpr other purposes. COct. 1, 1890; 26 U. S. Stats. 636.) § 659. Private claims in Congress. — All peti- tions and bills praying or providing for the satis- faction of private claims against the government, founded upon any law of Congress, or upon any regulation of an executive department, or upon § 660 COURT OF CLAIMS— JURISDICTION. l.'ISG any contract, expressed or implied, with the gov- ernment of the United States, shall, unless other- wise ordered by resolution of the house in which they are introduced, be transmitted by the secre- tary of the Senate or the rlerk of the House of Eepresentatives, with all the accompanying docu- ments, to the court of claims. (Rev. Stats, sec. 1060.) Claims referred by Congress. — The jurisdiction of the court of claims over cases referred to it by either house of Congress is subject to provisions of general statutes of limitation regulating that jurisdiction. (Ford V. United States, 116 U. S. 213.) This court has jurisdiction of an action by a State against the United States for a demand arising upon an act of Congi'ess. (United States v. Louisiana, 123 U. S. 32.) § 660. Judgments for setoff or counterclaim. — Upon the trial of any cause in which any setoff, 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 determine such claim or demand both for and against the government and claimant; and if, upon the whole case, it finds that the claimant is indebted to the government, it shall render judgment to that ef- fect, 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 or circuit court shall ])e entered upon the records thereof, and shall thereby become and be a judgment of such 1387 COURT OF CLAIMS— JURISDICTION. § 661 court and be enforced as other judgments in such courts are enforced. (Eev. Stats, sec. 1061.) Note. — This section is coustitutional, although there is no provision for a jury trial. (McElrath v. U. S., 12 Ct. of CI. 312.) If no definite evidence is given of the counterclaim, it may be used to defeat it, but judgments will not be entered against claimant. (Shi-ewsbury v. U. S., 13 Ct. of CI. 183.) If the bank- ruptcy assignee of claimant becomes a party, the claim will be deducted from the counterclaim of the United States. (Boughton v. U. S., 13 Ct. of CI. 284; see Allen v. U. S., 17 WaU. 207.) ♦ § 661. Decree on accounts of paymasters, etc. — Whenever the court of ck\ims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other disbursing offi- cer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the treasury shall allow to such officer the amount so decreed as a credit in the settlement of his accounts. (Rev. Stats, sec. 1062.) Accounts of disbursing' oflB.cers, etc. — A disbursing officer is bound to exercise that degree of care aud diligence which a prudent man would require of his agent (Malone v. U. S., 5 Ct. of CI. 486); but what care and caution may require at one time may not be necessary at others. (Glenn v. U. S., 4 Ct. of CI. 501; Malone v. U. S., 5 Ct. of CI. 186.) If a disbursing of- ficer puts money in a safe which is captured by the enemy, he is entitled to relief (Christian v. U. S., 7 Ct. of CI. 431); or if his clerk, who has a key, steals it § 663 COUKT OF CLAIMS— J UEISDICTION. 1388 and absconds (Howell v. U. S., 7 Ct. of CI. 512); or a robber enters his quarters during his temporary ab- sence, and brealis open the safe (U. S. v. Clarlv, 9G U. S. 37; S. C. 11 Ct. of CI. 698); or if he leaves his safe or box in a fort, and it is stolen (Glenn v. U. S., 4 Ct. of CI. 501) ; or if he keeps money in a chest in a building where other disbursing otficers keep funds (Prune V. U. S., 3 Ct. of CI. 209); or if he puts his desk with money and vouchers on a transportation train which is captured by the enemy (Murphy v. U. S., 3 Ct. of CI. 212),; or if, while carrying money in his breast pocket in the way such officers carry it, andi he loses it, he is entitled to relief (Whittelsey v. U. S., 5 Ct. of CI. 452); or if he puts money in the room where he sleeps, and it is taken by burglars, he is en- titled to relief. (Malone v. U. S., 5 Ct. of CI. 486.) The words "fault" or "negligence" must be taken in their common and popular sense, the former as er- ror or mistake, and the latter as omission. (Malone V. U. S., 5 Ct. of CI. 486.) So a paymaster is guilty of negligence if he inti'usts a large amount of money to an orderly to take to bank instead of taking it him- self. (Holman v. U. S., 11 Ct. of CI. 642.) § 662. Claims referred by departments. — Whenever any claim is made against any executive department involving disputed facts or contro- verted questions of law, where the amount in con- troversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any executive department in the adjustment of a class of cases, without regard to the amount involved in the par- ticular case, or where any authority, right, priv- ilege, or exemption is claimed or denied under the constitution of the United States, the head 1389 COURT OF CLAIMS— JURISDICTION. § 663 of such department may cause such claim, with all the vouchers, papers, proofs, and documents pertaining thereto to be transmitted to the court of claims, and the same shall be there proceeded in as if originally commenced by the voluntary action of the claimant; and the secretary of the treasury may, upon the certificate of any auditor or comp- troller of the treasury, direct any account, matter, claim of the character, amount, or class described in this section to be transmitted, with all the vouchers, papers, documents, and proofs pertain- ing thereto, to the said court for trial and adjudi- cation; provided, that no case shall be referred by any head of a department unless it belongs to one of the several classes of cases which, by reason of the subject matter and character, the said court might, under existing laws, take jurisdiction of on such voluntary action of the claimant. (Eev. Stats, sec. 1063.) Reference of claims.— Claims involving disputed facts or controverted questions of law and where the amount in controversy exceeds $3,000. or in certain cases without regard to the amount involved may be transmitted to the court of claims, if not barred by time, and if such that the court of claims could take cognizance of at the suit of the claimant. (United Stafes V. State of New Yorlv, 160 U. S. 598.) A claim may be referred by the head of a department at any time before payment (Delaware Steamboat v. U. S., 5 Ct. of CI. 55), although previbusly referred to ac- counting officers (Winnisimmet Co. v. U. S., 12 Ct. of CI. 319); so of a claim for army transportation (Delaware Steamboat v. U. S., 5 Ct of CI. 55); or a claim for rent of land. (Bright v. U. S., 6 Ct. of CI. § 663 COURT OF CLAIMS— JURISDICTION. 1390 118.) It may be referred, although it involves a con- troversy between several claimants. (Bright v. U. S., G Ct. of CI. 118.) The head of a department, on re- ferring the cause, transmits the necessary papers. (Delaware Steamboat v. U. S., 5 Ct. of CI. 55.) The presentation of a claim for rent of rooms for postof- fice purposes is sufficient to talie the case referred under this section out of the operation of the statutes of limitations. (Warder v. United States, 25 Ct. of CI. 159.) A rule of the court of claims, which re- quired that the -claimant should have first gone through the department which might have enter- taineil tlie claim before he could prosecute in that court, is void. (United States v. Clyde, 13 Wall. 35.) Wliere a claim allowed by the accovinting officers and approved by the secretary was subsequently referred under the above section the court of claims has juris- diction. (Glynn's Case, 32 Ct. of CI. 82.) The juris- diction of the court of claims in a case founded on an officer's account will not be exercised where the account stands suspended for explanation in the treasury, but will be exercised when the comptroller refuses to act. (Cameron's Case, 30 Ct. of CI. 340.) Where a claim is referred under this section a demand for unliquidated damages is within the jurisdiction of the court. (Myerle's Case, 31 Ct. of CI. 105.) The secretary of the treasury, after determining every fact concerning an informer's claim, may transmit a question of law for the decision of the court of claims. (Morton's Case, 31 Ct. of CI. 148.) It is only by Aurtue of the pendency of a claim that an execu- tive department has power to refer it to the court of claims for adjudication. (Armstrong's Case, 29 Ct. of CI. 14«; Colton's Case, 29 Ct. of CI. 207.) Where a portion of an account is rejected and both the ac- counting officers and the claimant treat the ruling as final tlie claim for the balance cannot be trans- mitted. (Colton's Case, 22 Ct. of CI. 207.) The cer- 1391 COURT OF CLAIMS— JURISDICTION. §§ 663-664 tification of a war claim to the court of claims can- not give that court jurisdiction. (United States v. Winchester & P. R. Co., 163 U. S. 244.) § 663. Procedure in cases transmitted "by de- partments. — All cases transmitted by the head ot any department, or upon the certificate of any auditor or comptroller, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the court of claims, and shall, in all respects, be subject to the same rules and regulations. (Rev. Stats, sec. 1064.) Cases transmitted. — Where the claimants contest and one fails to appear, a citation may issue (Bright V. U. S., 6 Ct. of CI. 118); and the claimant must es- tablish his claim by legal proof. (Bright v. U. S., 8 Ct. of CI. 326.) Questions of law may be submitted for the decision of the court. (Amoskeag & C. Co. v. U. S., 6 Ct. of CI. 99; Broulautour v. U. S., 7 Ct. of CI. 555.) The allowance of the claim by accounting officers does not make out a prima facie case. (Mc- Knight V. U. S., 98 U. S. 179.) § 664. Judgments in cases transmitted by de- partments, how paid. — The amount of any final judgment or decree rendered in favor of the claim- ant, in any case transmitted to the court of claims under the two preceding sections, shall be paid out of any specific appropriation applicable to the case, if any such there be; and where no such appropria- tion exists, the judgment or decree shall be paid in the same manner as other judgments of the said court. (Rev. Stats, sec. 10C5.) Note.— Allowance of a judgment against a collector •of internal revenue, by the commissioner and the sec- § 665 COURT OF CLAIMS— JURISDICTION. 1392 retary of the treasury, makes it a claim against the United States; and a judgment creditor may recover thereon in the court of claims. (United States v. Frerichs, 124 U. S. 315.) Its payment satisfies the de- mand. (Id.) The jurisdiction of the court of claims to find the facts, make conclusions of law, and to give opinions in matters referred to it by heads of the executive departments, without entering judgments, is not restricted by the following section forbidding jurisdiction of claims dependent on a treaty, (Thing- valla Line v. U. S., 24 Ct. of CI. 255.) § 665. Judgments and claims subject to offsets. — That when any final judgment recovered against the United States or otlier claim duly allowed by legal authority shall be presented to the secretary of the treasury for payment, and the plaintiff or claimant therein shall be indebted to the United States in any manner, whether as principal or surety, it shall be the duty of the secretary to withhold payment of an amount of such judgment or claim equal to the debt thus due to the United States; and if such plaintiff or claimant asserts to such set off, and discharges his judgment, or an amount thereof equal to said debt or claim, the secretary shall execute a discharge of the debt due from the plaintiff to the United States. But if such plaintiff or claimant denies his indebtedness to the United States, or refuses to consent to the setoff', then the secretary shall withhold payment of such further amount of such judgment or claim as, in his opinion* will be sufficient to cover all legal charges and costs in prosecuting the debt of the United States to final judgment. And if such 1393 COURT OP CLAIMS— JURISDICTION. § 666 debt is not already in suit, it shall be the duty of the secretary to cause legal proceedings to be im- mediately commenced to enforce the same, and to cause the same to be prosecuted to final judgment with all reasonable dispatch. And if in such ac- tion judgment shall be rendered against the United States, or the amount recovered for debt and costs shall be less than the amount so withheld as before provided, the balance shall then be paid over to such plaintiff by such secretary, with six per cent interest thereon for the time it has been withheld from the plaintiff. (18 U. S. Stats. 481; 1 Sup. Rev. Stats. 185; Eev. Stats, sec. 1061 a.) Note.— If the clairrmnt consents that the debt be set off, accepts the balance, and discharges the judg- ment, he thereby waives his right to test its validity by legal proceedings. (Bounafin v. U. S., 14 Ct. of CI. 484.) §666. Claims growing out of treaties. — The jurisdiction of the said court shall not extend to any claim against the government not pending therein on December one, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign na- tions or with the Indian tribes. (Eev. Stats, sec. 1066.) Note.— This court has no jurisdiction over claims of foreign governments, assumed by treaty. (Ex parte Atocha, 17 Wall. 439.) So of a treaty with the In- dians. (Langford v. U. S., 12 Ct. of CI. 338.) Under this section, the court of claims has no jurisdiction of a claim against the United States for money awarded Fi-.D. Pkoc— 117. § 666 COURT OF CLAIMS— JUEISDICTION, 1394 by the mixed commission under the Mexican conven- tion of 1868. (Ailing v. United States, 114 U. S. 562.) Nor has it jurisdiction of a claim for a part of the money received from Great Britain in payment of the Geneva award. (Great West Ins. Co. v. United States, 112 U. S. 193; Paulson v. U. S., 112 U. S. 193. But compare United States v. Weld, 127 U. S. 51, distinguishing the last two cases.) The French and American claims commission possessed no autliority to consider any claims against the government of either the United States or of France, except as held, both at the time of their presentation and a judgment thereon, by citizens of the other country. (Burthe v. Denis, 133 U. S. 514.) The court of claims does not enter judgment in French spoliation cases, or deter- mine what persons are entitled to the money which Congress may thereafter appropriate. (The Ganges, 25 Ct. of CI. 110.) The obligation is founded on the law of nations, and the obligation on the offending government is perfect. (Emerson v. Hall, 13 Pet. 409.) The award of the French-American Commis- sion is conclusive upon the validity of the claim, but not upon conflicting rights. (De Circe's Succession, 41 La. Ann. 506.) When paid to the executor it will be distributed in the course of administration. (Id.) Where the contention of plaintiffs in error, that they are entitled to an award rendered by the French and American claims commission, is founded upon the French treaty of 1880, the decision of the supreme court of Louisiana against the rights thus asserted by them presents a question for the jurisdiction of the supreme court of the United States. (Burthe v. Denis, 13B U. S. 514.) Under the convention held in pursuance of the treaty between the United States and Mexico, awards by commissioners are final and conclusive as between the United States and Mexico, until set aside by agreement between tlie two gov- ernments, or otherwise. (Frelinghuysen v. Key, 110 U. S. 63.) 1395 COURT OF CLAIMS— JURISDICTION. g§ 667-668 § 667. Claims pending in other courts. — -No person shall hie or prosecute in the court of claims, or in the supreme court on appeal therefrom, any claims for or in respect to which he or any as- signee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose was, in respect thereto, acting or pro- fessing to act, mediately or immediately, under the authority of the United States. (Eev. Stats, sec. 1067.) § 668. Aliens. — Aliens, who are citizens or sub- jects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the court of claims, whereof such court, by reason of their subject matter and char- acter, might take jurisdiction. (Eev. Stats, sec. 1068.) Aliens — When may prosecute claims. — Aliens of governments contemplated in this section may prose- cute claims against the United States, although such governments may reserve the right to deny the remedy on a few sporndic cases. (U. S. v. O'Keefe, 11 Wall. 178; Carlisle v. U. S., 16 Wall. 147.) If an alien was naturalized l.ilure the adoption of this sec- tion he may prosecute his action (Bulwinkle v. U. S. 4 Ct. of CI. 395; Mentz v. U. S., 4 Ct. of CI. 471), and if naturalized before the plea of alienage, he may prosecute an action commenced before its adoption. (Scharfer v. U. S.. 4 Ct. of CI. ")29; Warner v. U. S.. 5 Ct. of CI. 637.) The right is granted fully under this § 669 COURT OF CLAIMS— JURISDICTION. 1396 section, although a citizen of the United States is re- quired to give security for costs. (Brown v. U. S., 5 Ct. of CI. 571.) The following governments accord to citizens of the United States the right to prosecute claims in their courts, to wit: Belgium: De Give v. U. S., 7 Ct. of CI. 577; Frajice: Rothchild v. U. S., 6 Ct. of CI. 204; Dauphin v. U. S., 6 Ct. of CI. 221; Great Britain: U. S. v. O' Keefe, 11 Wall. 178; Cai-lisle v. U. S., 16 Wall. 147; Italy: Fichera v. U. S., 9 Ct. of CI. 254; Prussia: Brown v. U. S., 5 Ct. of CI. 571; Spain: Nohing V. U. S., 6 Ct. of CI. 269; Switzerland: Lob- siger V, U. S., 5 Ct. of CI 6S7. The jurisdiction of a commission appointed under a treaty to pass upon a war claim of an alien is limited to the determination of the validity of the claim. (Bodemuller v. United States, 39 Fed. Rep. 437.) After it has been passed upon by a commission, a cause of action for a recov- ery of the amount awarded is not against the govern- ment of which the alien was a citizen, where it is not shown that the money was paid to that govern- ment for his benefit, (Bodemuller v. United States, Id.) Where a deduction is made on the ground that one of the heirs is a citizen of Louisiana, where there is no proof of his right to sue therefor, suit must be brought by the administratrix, and not by the heir. (Id.) § 669. Limitation. — Every claim against the United States, cognizable by the court of claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the secretary of the Senate or the clerk of the House of Eepresentatives, as pro- vided by law, within six years after the claim first accrues; provided, that the claims of married wo- men fi,rst accrued during marriage, of persons un- 1397 COUKT OF CLAIMS— JUKISDICTION. § 669 der the age of twenty-one years first accrued dur- ing minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. (Eev. Stats, sec. 1069.) Limitations.— This section provides that 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 within six years after the claim first ac- crues. (U. S. V. Taylor, 104 U. S. 221.) The claim is barred unless the petition is tiled within six years after it accrued (Bell v. U. S., 20 Wall. 179; McKnight V. U. S., 98 U. S. 179; Cross v. U. S., 4 Ct. of CI. 271; Carter v. U. S., 6 Ct. of CI. 31; Bulkeley v. U. S., 8 Ct. of CI. 517; Campbell v. U. S., 13 Ct. of CI. 108); but the petition may be amended although more than six years have elapsed. (Griflin v. U. S., 13 Ct. of CI. 257; Devlin v. U. S., 12 Ct. of CI. 266.) So it is not necessary that the limitation be pleaded, as the court is bound to talje cognizance of the statute, and in- quire whether it appears on the face of the pleadings and evidence that the period had not expired when the petition was filed. (Kendall v. U. S., 14 Ct. of CI. 122.) The court of claims has authority to hear and determine the claim of any disbursing officer for re- lief from responsibility on account of capture or other loss of funds while in the line of his duty. (U. S. v. Clark, 96 U. S. 37.) The limitation applies to the post- master for relief for money stolen from him when § 669 COURT OF CLAIMS— JURISDICTION. 1398 government has refused to allow his claim. (U. S. v. Smith, 105 TJ. S. 620.) The limitation does not apply to suits pending at the time of its adoption (Pai'lin v. U. S., 1 Ct. of CI. 174); nor to a claim which had been referred by the head of an executive department for its judicial determination, provided it was presented within six years after it accrued (U. S. v. Lippitt, 100 U. S. 603; Winnisimmet Co. v. U. S., 12 Ct. of CI. 319); nor does it apply to claims for proceeds of captured and abandoned property. (Tibbitts v. TJ. S., 1 Ct. of CI. 169; S. C, 2 Ct. of CI. 582.) No exception not found in the statute can be ingrafted. (Cross v. U. S., 4 Ct. of CI. 271.) If claimant dies before the claim is due the statute will not begin to run until an ad- ministrator is appointed (Falenweider v. U. S., 9 Ct. of CI. 403); but its operation is not suspended by his death if It accrued in his lifetime (Sierra v. U. S., 9 Ct. of CI. 224); nor will the payment of part of the debt take the claim out of the statute. (U. S. v. Wilder, 13 Wall. 254.) If claimant was an inhabi- tant of an insurrectionary State, and the claim ac- crued during the civil war, the statute runs from the time of the suppression of the rebellion (Sierra v. U. S., 9 Ct. of CI. 224), and not from the date of the proclamation of pardon and amnesty. (Kendall v. U. S.. 14 Ct. of CI. 374.) A collector of customs' claim for his salary accrues at the end of each fiscal year, and tlie statute runs from that time (Bachelor v. U. S.. 8 Ct. of CI. 235; Ellsworth v. U. S., 14 Ct. of CI. 582); and for money paid into the treasury which he is en- titled to retain the statute runs from its payment. (Lawson v. U. S., 14 Ct. of CI. 332.) So a cause of action accrues upon the refusal of the secretary of the treasury to pay money, the surplus proceeds of land sold for a district tax. (Taylor v. U. S., 14 Ct. of CI. 339.) A claim for money arises when it is paid into the treasury (Clark v. U. S., 99 U. S. 493); but for 1399 COURT OF CLAIMS— JURISDICTION. § 669 money lost by claimant the statute does not begin to run until the accounting officers of the treasury re- fuse to recognize the claim as a valid credit. (U. S. v. Clark, 90 U. S. 37; Smith v. U. S.. 14 Ct. of CI. 114.-) On a contract for sale of goods the statute runs from the time the price is payable. (Batelle v. U. S., 7 Ct. of CI. 297.) Where the court has jurisdiction of matter ottered in evidence the statute is no bar to a defense involving such matters. (U. S. v. Clark, 96 U. S. 43.) The statute of limitations begins to run against a claim for the surplus proceeds of lands sold for taxes, under the act of 1861, from the date of the demand luerefor upon the secretary of the treasury. (IT. S. V. Lawton. 110 U. S. 146; approving U. S. v. Taylor, 104 U. S. 216.) The general rule that limita- tion does not operate by its own force as a bar, but is a defense Avhich must be set up to be availed of, does not apply to suits in the court of claims against the United States. (Finn v. United States, 123 U. S. 227.) The limitation of six years in this section applies to a claim of the State for moneys due to it from the five per cent fund. (U. S. v. Ix)uisiana, 127 U. S. 182.) It applies to a claim for relief by a paymaster in the army for money stolen from him, and which he has replaced and paid over. (U. S. v. Smith, 105 U. S. 620; distinguishing U. S. v. Clark, 96 U. S. 43.) An action by the State to recover moneys received by the United States from sale of swamp-lands is not barred until six years after the amount is ascertained by the commissioner of the general land oflice. (United States V. Louisiana, 123 U. S. 32.) A claim on behalf of a United States marshal for the allowance by the government, of expenses incurred by him in the ser- vice for it of a distress warrant, which accrued more than forty-seven years before it was presented to the treasury department, is a stale claim, which the ac- counting officers have no right to receive, examine, or seittle. (Waddell v. U. S., 25 Ot. of CI. 323.) §§ 670-673 COURT of claims— jurisdiction. 1400 § 670. Rules of practice — Contempts. — The said court shall have power to establish rules for its government and for the regulation of practice therein, and it may punish for contempt in the manner prescribed by the common law, may ap- point commissioners, and may exercise such pow- ers as are necessary to carry into effect the powers granted to it by law. (Eev. Stats, sec. 1070.) Note.— A motion for an order upon the court of claims to make and return additional findings will l>e denied, unless it has first been submitted to such court in a written request, as required by the rule. (United States v. Driscoll, 96 U. S. 421.) § 671. Oaths and acknowledgments. — The judges and clerks of said court may administer oaths and affirmations, take acknowledgments of instruments in writing, and give certificates of the same. (Eev. Stats, sec. 1071.) § 672. Petition. — The claimant shall, in all cases, fully set forth in his petition the claim, tlie action thereon in Congress, or by any of the de- partments, if such action has been had; what per- sons are owners thereof or interested therein, when and upon what consideration such persons became so interested; that no assignment or transfer of said claim, or of any part thereof or interest there- in, has been made, except as stated in the petition; that said claimant is justly entitled to the amount therein claimed from the United States^ after al- lowing all just credits and offsets; that the claim- ant, and, where the claim has been assigned, the 1401 COURT OF CLAIMS— JURISDICTION. § 672 original and every prior owner thereof, if a citi- zen, 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. And the said petition shall be verified by the affi- davit of the claimant, his agent, or attorney. (Eev. Stats, sec. 1072.) Petition, what to contain.— The petition must set forth claimant's case with precision, and without am- biguity, and its allegations will be construed most strongly against the claimant. (Merch. Exch. Co. v. r. S., 1 Ct. of CI. 3.32; Guttman v. U. S., 6 Ct. of CI. 111.) It must set foii-tli the facts upon which the right to recover rests (Merch. Exch. Co. v. U. S., 1 Ct. of CI. 332; Brown v. U. S., 1 Ct. of CI. 377; Baird v. U. S.. 5 Ct. of CI. 348; 8 Ct. of CI. 13; Guttman v. U. S.. 6 Ct. of CI. Ill; Monk v. U. S., 12 Ct. of CI. 293; Morgan v. U. S., 14 Ct. of CI. 442); and an alien must aver that he never in any way aided, abetted, or en- couraged the rebellion (Hill v. U. S., 8 Ct. of CI. 470); or if he did, that he had been pardoned. (Pargoud v. U. S., 13 Wall. 1.5(5; contra, Brockett v. U. S., 2 Ct. of CI. 213.) It must state the amount of the claim or relief demanded (Patterson v. U. S., 6 Ct. of CI. GO); for money illegally exacted as duties it must aver tliat a protest was made as required by law (Schlessinger V. U. S., 1 Ct. of CI. 16; Nicoll v. U. S:, 1 Ct. of CI. 70); and if founded on an act of Congress, it must refer to the act. (Noble v. U. S., Dev. Ct. CI. 1.34.) It must set forth some legal disabilities to remove the bar of the statute where it shows the claim ac- crued more than six years before its filing (Kendall v. § 672 COURT OF CLAIMS— JURISDICTION. 1402 U. S., 14 Ct. of CI. 122; Kendall v. U. S.. 14 Ct. of CI. 374); but the disaliility of one who indorsed a drafi. and passed it away before the rebellion, will not avail the holder. (Pierce v. U. S., 1 Ct. of CI. 195.) It need not set forth the evidence to be used to prove the facts set forth. (Noble v. U. S., Dev. Ct. CI. 134.) If defective in its averments it may be amended (Jones V. U. S., 1 Ct. of CI. 183); but not without leave of court (Shaw v. U. S., 9 Ct. of CI. 301); as by substituting the assignor (Cote v. U. S., 3 Ct. of CI. 64); or so as to make a ward party on his coming of age. (Stanton v. U. S., 4 Ct. of CI. 456.) So on a petition to recover rent due on installments, a party may amend so as to include the entire rent. (Cross V. U. S., 14 Wall. 479.) If a claimant sets forth, by way of petition, a plain statement of the facts with- out technical formality, and prays relief, either in a general manner or in an altoi'uative or cumulative form, the court should give to hi.s statement a liberal interpretation, and afford him such relief a.s he may show himself substantially entitled to. (United States V. Behan, 110 U. S. 338; Clark v. United States, 9.> U. S. 539.) The court of claims, in deciding upon tlie rights of claimants, is not bound by any special rules of pleading. (United States v. Burns, 12 Wall. 246.) If the petition shows tliat plaintiff's claim is founded on acts of officers of the government, which are au- thorized by Congress, it is immaterial whether the petition claims compensation as upon an implied con- tract or for damages. (Chappell v. United States, 34 Fed. Kep. 673.) Who may petition.— If a chose in action has been assigned the assignor may sue for the l)enefit of the assignee (.lackson v. U. S., 1 Ct. of CI. 2(!0; Crowell v. Jackson, 6 Ct. of CI. 23); l)ut the assignee must be connected with the case (Silvciliill v. V. S., 5 Ct. of CI. 610); and the connection of the assignor may be 1403 COURT OF CLAIMS— JURISDICTION, § 673 shown by his verification, or by warrant of attorney, or by proof of the transfer. (Silverhill v. U. S., 5 Ct. of CI. 610.) A corporation created in an insurrection- ary State may petition (U. S. v. Insurance Co., 22 Wall. 99); and if joint owners join they may amend so as to serve in the prayer for relief, and asli for separate judgment on the merits. (Mott v. U. S., 3 Ct. of Ci. 218.) A feme covert under the laws of the State may file a petition in her own name. (Stanton v. U. S., 4 Ct. of CI. 456; Meriwether v. U. S., 13 Ct. of CI. 259.) A petition may be filed in the State by a guardian, where the ward has his domicile. (Stanton V. U. S., 4 Ct. of CI. 456.) A suit may be brought in the name of the party in whom the legal title is. to the use of the party to whom tlie real and substantial ownership has passed. (American Tobacco Co.'s Case, 32 Ct. of CI. 207.) A party possessing full title to a vessel in law is the proper party to maintain a suit though creditors may be beneficiaries and have a claim upon the recovery. (Ship Ganges, 31 Ct. of CI. 175.) The assignee of a chose in action not a commercial instrument cannot maintain an action in his own name. (U. S. v. Gillis, 95 U. S. 407; Atocha V. U. S., 17 Wall. 439; Jackson v. U. S., 1 Ct. of CI. 260; Sines v. U. S., 1 Ct. of CI. 12; Cote v. U. S., 3 Ci. of CI. 64; Johnston v. U. S.. 13 Ct. of CI. 217.) If the assignment merely transfers a part interest tlie suit cannot be brought to the use of assignee. (Rains v. U. S., 11 Ct. of CI. 048.) The provisions of this sec- tion have no application to a sale prior to seizure of captured and abandoned property. (Bates v. U. S.. 4 Ct. of CI. 569.) On an assignment for benefit of credi- tors the trustees may prosecute in the name of the as- signor. '(Morgan v. U. S., 14 Ct. of CI. 319.) If a claimant becomes banlsrupt the assignee may prose- cute the suit. (Persons v. U. S., 8 Ct. of CI. 542.) And a purchaser from the assignee is entitled to be sub- § 672 COURT OF CLAIMS— JURISDICTION. 1-IU4 stituted. (Burke v. U. S.. 13 Ct. of CI. 231.) A party who asserts a claim must prove the transfer, and the nature and extent of his right. (Tebbets v. U. S.. 5 Ct. of CI. 0)07; Crowell v. U. S., 6 Ct. of CI. 23.) A decree In a State court, appointing a receiver,' and au- thorizing him to sue in the court of claims, has no force in the latter court, and a suit by him will be dismissed.. (HoAves v. U. S.. 24 Ct. of CI. 170.) One who is not a party to a contract, either originally or by substitution, cannot maintain a claim before the court of claims for compensation under it. (Kellogg V. U. S., 7 Wall. 3G1.) Sovereignties, corporations, and individuals or aggregations of individuals may be parties litigant. (AVestern Cherokee Indian's Case, 27 Ct. of CI. 1.) Where the administrator of the original sufferer obtains the consent of the assignee in bank- ruptcy, he may be substituted as claimant. (Ship Concord, 27 Ct. of CI. 142.) The surety of a defaulting contractor who completes the Avork in the name of his principal may bring a suit in his own name for a balance earned by his principal. (Hitchcock's Case, 27 Ct. of Ol. 1S5.) In Congressional cases where there is no vested legal right a parent may prosecute on behalf of his child; and the infant on coming of age may be substituted to prosecute in his own name. (Kirtley's Case, 27 Ct. of CI. 348.) Tlie defendants by pleading a general traverse admit the competency of a claimant corporation to sue in its corporate ca- pacity. ^Southern Pacific Co.'s Case, 28 Ct. of CI. 77.) Interest of parties. — If a claimant proceeds alone when jointly interested he must show the extent of his interest (Headman v. U. S., 5 Ct. of CI. 640); and although there are two contracts yet one may 'file the petition alone if the other is disqualified. (U. S. v. P.uriis. 12 Wall. 240; Fain v. U. S., 4 Ct. of CI. 237; Mildrini v. U. S., 7 Ct. of CI. 595.) Several parties may join in a petition although they brought it in 1405 COURT OF CLAIMS— JURISDICTION. § 673 severalty. (Rutherford v. U. S., 1 Ct. of CI. 481.) All who have an interest should join (Hale v. U. S., Dev. 01. of CI. 137); but if they have separate interests they cannot join (Wilson v. U. S., 1 Ct. of CI. 318; Parish V. U. S., 1 Ct. of CI. 345), and a change of parties may be allowed to sustain and protect the original cause of action. (Bellocque v. U. S., 8 Ct. of CI. 493.) Where the party who brings the suit possesses some legal relation with the proper party the court has power to substitute the latter after the jurisdictional period. (Darenport's Case, 31 Ct. of CI. 430; Kelly's Case, 32 Ct. of CI. 227.) But where a person neglects to bring Eis action and suit is brought in mistake of fact by one purporting to be his administrator, he cannot take advantage of the unauthorized suit. (Tryon's Case, 32 Ct. of CI. 425.) If two persons join when only one is entitled to the claim, the petition may be amended by striking out the name of the other party. (Molina v. U. S., 6 Ct. of CI. 269.) If claim- ants are partners the disloyalty of one partner defeats the action. (Schreiner v. U. S., 6 Ct. of CI. 359.) A partner cannot intervene and claim the same property as that claimed by the firm. (Bellocque v. U. S., 8 Ct. of CI. 493.) Although one person is a member of two separate firms yet the firms cannot unite in one petition. (Parish v. U. S., 1 Ct. of CI. 345.) If a feme covert and her husband file a joint petition, and he dies, she may prosecute alone in her own name (Rod- din V. U. S., 6 Ct. of CI. 308); and where the husband is sole owner of the claim the name of the wife may be stricken out. (Benton v. U. S.. 5 Ct. of CI. 692.) If a person claims money not already claimed he may intervene in the pending suit. (Mezeix v. U. S., 6 Ct. of CI. 232; Turner v. U. S., 2 Ct. of CI. 390.) On a pe- tition by a firm claiming certain property a partner cannot intervene and claim the same property. (Bel- locque v. U. S., 8 Ct. of CI. 493.) If a person files a Fed. Proc— 118. § 672 COURT OF CLAIMS— JURISDICTION. 1406 petition to recover bonds alleged to be illegally held by others, the service of citation will not bring the parties within the jurisdiction unless they come in voluntarily and prosecute a cross-action. (Texas v. U. S.. 7 Ct. of CI. 301.) A contractor is bound by the settlement made with a party whom he permits to file a petition in his name. (Stowe v. U. S., 19 Wall. 13.) Claim by agent. — Although an agent makes a con- tract in his own name without disclosing his principal, yet the principal may petition in his own name (Ramsdell v. U. S.,' 2 Ct. of CI. 508) or the petition may be filed in the name of the agent for the use of the principal (Ramsdell v. U. S., 2 Ct. of CI. 508); and it may be amended to show that the action is prosecuted for the use of another (Shaw v. U. S., 9 Ct. of CI. 301); and when an action is brought in the name of one person for the use of another, the money is paid to the real party in interest. (Crowell v. U. S., 6 Ct. of CI. 23.) Attorneys in court of claims. — A partner of a firm cannot have his attorney associated with the attorney of the firm. (Bellocque v. U. S., 8 Ct. of CI. 493.) An assignee in bankruptcy succeeding a claimant may discharge an attorney upon paying his disbursements. (Johnson v. U. S., 11 Ct. of CI. 724.) If petitioner de- sires to change his attorney he must repay all dis- bursemei- s and give his attorney a lien for his fees (Desmare v. U. S., 9 Ct. of CI. 1; Carver v. U. S.. 7 Ct. of CI. 499); and an executor or administrator can only change the attorney on the usual terms. (John- son V. U. S., 11 Ct. of CI. 724.) A client may change his attorney and employ other counsel. (Carver v. U. S., 7 Ct. of CI. 499.) A court of claims "may authorize a compensation to counsel of an Indian tribe out of the amount recovered by it of the government. (United States v. Blackfeather, 155 U. S. 180.) Coun- 1407 COURT OF CLAIMS— JURISDICTION. § 672 sel are members of the bar retained by the attorney of record to assist in the preparation of a case or argue it before the court. Their services and respon> sibilities are individual; a law firm cannot be recog- nized as counsel. The attorney of record is the only agency recognized by the court in the control of the case. (Matter of Counsel, 32 Ct. of CI. 231.) A re- tired officer cannot act as attorney in suits against the government. (In re Winthrop, 31 Ct. of CI. 35.) Counsel can neither make motions in their own name nor in the name of the attorney of record without his authority. (Matter of Counsel, 32 Ct. of CI. 231.; Commingling of rights. — If the goods of several owners are commingled the claims of the several claimants may be consolidated. (U. S. v. Raymond, 92 U. S. G51; Woodrufe v. U. S., 4 Ct. of CI. 486.) So if assignees of vouchers under one contract bring separate suits they may be consolidated. (Crowell V. U. S., 6 Ct. of CI. 23.) If the suits of several claim- ants are united the first claimant will have to make out his claim against the United States only, and the junior claimant will have to make his title good against first claimant. (Woodrulf v. U. S., 4 Ct. of CI. 486.) If suits for the same fund are united no testimony can be used unless the party has had an opportunity to cross-examine the witness. (Woodruff V. U. S., 4 Ct. of CI. 486; Boyd v. U. S., 9 Ct. of CI. 419.) Pleading.— The pleadings need not present a single issue; the substance rather than the technicalities will be regarded. iPeirce v. U. S., 1 Ct. of CI. 195; Bentoa V. U. S., 5 Ct. of CI. 602; Baird v. U. S., 8 Ct. of CL 13.) Where the objection goes to the jurisdiction it should be taken by plea (Peirce v. U. S., 1 Ct. of CI. 195; Fenn. Co. v. U. S., 7 Ct. of CI. 401), and such plea may be filed after the general issue. (Peirce v. U. S., 1 Ct. of CI. 195); but where the objection goes § 673 COUKT OF CLAIMS— JURISDICTION. 1408 to the right of the claimant to recover, it should be talven by demurrer or plea (Penn. Co, v. U. S., 7 Ct. of CI. 401); and a special demurrer cannot allege a fact not stated in the petition. (Graham v. U. S., 1 Ct. of CI. 183.) If a traverse has been filed a plea to the jurisdiction should not be filed without leave of court. (Peirce v. U. S., 1 Ct. of CI. 195.) If the United States does not traverse an allegation of loy- alty it will be presumed true (Hill v. U. S., 8 Ct. of CI. 470); and if it files a general traverse that it is not verified it waives the want of verification. (Grif- fin V. U. S., 13 Ct. of CI. 257.) A traverse requires claimant to establish all material allegations by proof. (Calkins v. U. S., 1 Ct. of CI. 382.) Verification of petition.^If the petition is not ver- ified, a motion may be made to dismiss it (Griffin V. U. S., 13 Ct. of CI. 257); or an amended petition properly verified may be filed. (Griffin v. U. S., 13 Ct. of CI. 257.) If the assignor dies pendente lite the verification of his executor to an amended peti- tion sufficiently connects him with the case. (Pullen V, U. S., 7 Ct. of CI. 507.) If a petition presented by a firm avers a joint title, and is verified by one partner, judgment will be rendered in favor of the fii-m. (Pvichmond r. U. S., 7 Ct,of CI. 533.) Evidence. — If there is an omission to furnish cer- tain proof the case may be remanded for further proof even after final hearing (Kirby v. U. S., 3 Ct. of CI. 2G5; Daniels v. U. S., 5 Ct. of CI. 65; Malian v. U. S., 5 Ct. of CI. 331; Fendall v. U. S., 12 Ct. of CI. 80.5); but it would not be remanded where there is a confiict of testimony. (Crowell v. U. S., 6 Ct. of CI. 23; Shrewsbury v. U. S., 13 Ct. of CI. 1S3.) Where a case is remauded for further proof either party may take further testimony on every fact (Culliton v. U. S., 5 Ct. of CI. G27); and a witness may be re-exam- 1409 COUKT OF CLAIMS— JURISDICTION. §§ 673-674 ined. (Gaitlier v. U. S., 3 Ct. of CI. 191.) If there are documents that are not competent evidence the case may be remanded to give opportunity to stip- ulate concerning them. (Lender v. U. S., 5 Ct. of CI. 544.) Dismissal of suit.— The claimant cannot dismiss hi3 own suit until he has discharged his attorney with permission of the Court; and when he has wrongfully brought several actions for the same cause he can elect which one he will prosecute. (Kedfield's Case, 27 Ct. of CI. 473.) § 673. Petition, when dismissed. — The said al- legations as to true allegiance and voluntary aid- ing, 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. (Eev. Stats, sec. 1073.) Note.— Where a person struggling to maintain his legal right to his slaves voluntarily continued his domicile within the territory of the power devoted to the maintenance of slavery, it may be inferred that he desired its success and was not loyal in fact. (Aus- tin V. United States, 25 Ct. of CI. 437.) § 674. Burden of proof and evidence as to loy- alty. — Whenever it is material in any claim to ascertain whether any person did or did not give any aid or comfort to the late rebellion, the claim- ant asserting the loyalty of any such person to the United States during such rebellion shall be re- quired to prove affirmatively that such person did, during s^dd rebellion, consistently adhere to the § 674 couET or claims— jurisdiction. 1410 United States, and did give no aid or comfort to persons engaged in such rebellion; and the volun- tary residence of any such person in any place where, at any time during such residence, the rebel force or organization held sway, shall be prima facie evidence that such person did give aid and comfort to said rebellion, and to the persons en- gaged therein. (Eev. Stats, sec. 1074.) Note.— An express proviso iu a private act, that it be shown "to the' satisfaction of the court" that neither tEe owner nor any of his surviving represen- tatives gave any aid or comfort to the late rebellion, but "were throughout the war loyal to the govern- ment," means that tliey must have been loyal in fact, and not merely have legal loyalty derived from the proclamation of general amnesty. (Austin v. United States, 25 Ct. of CI. 437.) Aid and comfort.— To constitute "aid and comfort" to persons engaged in the rebellion the acts must have been committed with ihe intention of aiding the rebel- lion (Grossmeyer v. U. S., 4 Ct. of CI. 1); and that the aid and comfort was given must be shown (Hill v. U. S., 3 Ct. of CI. 470), and any acts which tend to assist, countenance, or encourage constitute the aid and comfort. (Bond v. U. S., 2 Gt. of CI. 528; Bates V. U. S., 4 Gt. of CI. 569.) So, engaging in the rebel- lion was aid to it (Ga-ossmeyer v. U. S., 65 Ct. of CI. 1); or serving on the reseiwed force if he could have avoided it (Kuper v. U. S.. 3 Ct. of CI. 74); or being voluntarily connected with a violation of the block- ade (Bates V. U. S., 4 Ct. of CI. 560); but not unless the adventure was put afloat. (Hill v. U. S., 8 Ct. of CI. 470.) So becoming surety on an official bond of a military officer of the rebellion is aid to the rebellion (U. S. v. Padelford, 9 Wall. 531), or selling goods to 1411 COURT OF CLAIMS— JURISDICTION. § 674 an agent of the rebel government (Carlisle v. U. S., 16 Wall. 147); but offers and acts of affection and humanity by persons to individuals engaged in the rebellion do not come within the interdiction of the statute. (Grossmeyer v. U. S., 4 Ot. of 01. 1.) A claimant is entitled to prosecute if the aid and com- fort were not voluntarily given (U. S. v. Padelford, 9 Wall. 531); so taxes paid under compulsion do not con- stitute aid and comfort to the rebellion. (Grossmeyer V. U. S., 4 Ct. of CI. 1.) If claimant is a mere trus- tee he must make proof of the loyalty of the bene- ficiaries of the trust (Stoddart v. U. S., 6 Ct. of CI. 230); but if an administrator was owner of the prop- erty at the time of capture or abandonment, his right to recover the proceeds depends on his own loyalty. (Carrol v. U. S., 13 Wall. 151.) Proof of loyalty.— Tills section does not essentially change the nature of proof required by prior statutes. (IT. S. V. Padelford, 9 Wall. 531; Grossmeyer v. U. S., 4 Ct. of CI. 1.) If claimant has not obtained a par- don he must prove his loyalty. (U. S. v. Bums, 12 Wall. 246; Patterson v. U. S., 6 Ct. of CI. 40; Deeson v. U. S., 6 Ct. of CI. 227; S. C, 5 Ct. of CI. 626.) And very slight evidence is sufficient to establish the loy- alty of a colored citizen of the rebel States. (Thomas V. U. S., 3 Ct. of CI. 52; Dereef v. U. S., 3 Ct. of CI. 1(53.) Evidence of any act which tended to support the rebellion where no other motive is apparent is evi- dence of bad intention. (Grossmeyer v. U. S., 4 Ct. of CI. 1.) An alien need not prove that he did not ad- here to the United States; it is sufficient that he ob- served a neutral course (Rothschild v. U. S., 6 Ct. of CI. 204), and his residence in a foreign county raises the presumption that he preserved his neutrality. (Hill V. U. S., 8 Ct. of Ol. 470.) The presumption of loyalty is in favor of one who was citizen and resi- § 674 COURT OF CLAIMS— JURISDICTION. 1412 dent of a loyal State. (Turner v. U. S., 3 Ct. of CI. 400.) In aJl congressional cases loyalty or disloyalty is a fact which may be shown by either party. In cases for stores and supplies loyalty is jurisdictional. When jurisdictional, the court cannot looli beyond the petition to ascertain whose loyalty must be estab- lished. If the loyalty of the right party is not estab- lished on the preliminary inquii'y, the case will fail when heard on the merits. (Kirtley's Oase, 27 Ct. of CI. 348. ) Effect of pardon.— The proclamation of pardon and amnesty relieves the claimant who is within its terms from the necessity to prove that he gave no aid to the rebellion. (Armstrong v. U. S., 13 Wall. 154; Pargoud v. U. S., 13 Wall. 156; Carlisle v. U. S., 16 Wall. 147; Haym v. U. S., 7 Ct. of CI. 443; Waring v. U. S., 7 Ct. of CI. 504; but see Mills v. U. S., 6 Ct. of CI. 253.) So taking the oath of amnesty blots out the ofeense. (U. S. v. PadeJford, 9 Wall. 531; U. S. v. Klein, 13 Wall. 128; Hamilton v. U. S., 7 Ct. of Ol. 444; Backer v. U. S., 7 Ct. of CI. 551; Hardie v. U. S., 8 Ct. of CI. 316; but see Brocket v. U. S., 2 Ct. of CI. ■ 213.) If the owner died before issuance of the proc- lamation, the administrator cannot recover unless he proves decedent did not give aid and comfort to the rebellion. (Meldran v. U. S., 7 Ct. of CI. 595; Scott v. U. S., 8 Ct. of CI. 457: Sierra v. U. S., 9 Ct. of CI. 224.) If the pardon is conditioned upon taking an oath, he is not entitled to its benefit until the oath is taken (Waring v. U. S., 7 Ct. of CI. 501), and taking it be- fore the granting of the pardon is not sufficient. (Haym v. U. S., 7 Ct. of CI. 443.) An alien domiciled within the United States is within the terms of the proclamation. (Carlisle v. U. S., 16 Wall. 147; Green V. U. S., 8 Ct. of CI. 412.) The pardon granted by the president prior to Revised Sta^tutes, section 3480, did not authorize payment of a claim to such person 1 1413 COURT OF CLAIMS— JUKISDICTION. § 675 wliich originated prior to April 13, 1861. Tlie court has no jurisdiction furtlier than to find the facts. (Hart V. United States, 118 U. S. 62.) A condition in a pardon forbidding a claim to any property, or the proceeds of any property, sold under the confiscation laws, does not preclude application to the court for the proceeds of a money bond secured by a confis- cated mortgage. (Osborn v. United States, 91 U. S. 474.) § 675. Commissioners to take testimony. — The court of claims shall have power to appoint com- missioners to take testimony to be used in the in- vestigation of claims which come before it; to pre- scribe the fees which they shall receive for their services, and to issue commissions for the taking of such testimony, whether taken at the instance of the claimant or of the United States. (Rev. Stats, sec. 1075.) Testimony admissible.— Testimony to be used in the court of claims must be taken by deposition (Hughes V. U. S., 4 Ot. of CI. 64); and ex parte affi- davits cannot be used (Wiggins v. U. S., 2 Ot. of CI. 345); although transmitted with the petition to Con- gress. (Clark V. U. S., 1 Ct. of CI. 246; McKee v. U. S., 1 Ct. of CI. 336; Wilde v. U. S., 7 Ct. of CI. 415.) In the court of claims the common-law rules govern unless a different rule be prescribed by statute. (Al- len's Case, 28 Ct. of CI. 141.) CommissiorL. — The application for the issue of a commission may be made at any time before the trial (Atocha V. U. S., 6 Ct. of CI. 95), and when made an order is entered by the clerk as of course (Gibbons V. U. S.. Dev. Ct. CI. 138; Mahan v. U. S., 6 Ct. of CI. 331), and whether its issuance will lead to a post- §675 COURT OF CLAIMS— J UKISDICTION. 1414 ponement is to be determined by the facts of the case. (Atocha V. U. S., 6 Ct. of CI. 95.) The court of claims may refer to a special commissioner to S'tate the ac- counts, marshal the assets, and adjust the losses be- tween the different owners of inter mingled cotton; and the judgment on such report and o.ther evidence is valid. (.Intermingled Cotton Cases, 92 U. S. 631.) When a witness lives in the District of Columbia, his testimony may be taken in court or before a commis- sioner; when at a distance it must be taken by com- mission. (Etling's'Case, 27 Ct. of Ol. 158.) Depositions. — The deposition must state what the witness testiflee to in the presence of all the pai-ties. and additions made in the absence of an attorney of one of the parties will be stricken out. (Shrewsbury V. U. S., 9 Ct. of CI. 333.) It should be read over to and be signed by the witness. (Martin v. U. S., 3 Ct. of CI. 384.) If the commissioner writes it out from his phonographic notes, and then attaches a loose sheet bearing the signature of the witness, it will be suppressed. (Martin v. U. S., 3 Ct. of CI. 3»4.) The sheets of a deposition should be so connected as that they cannot be tarai>ered with, and each sheet should be signed by the commissioner and the witness. (Mar- tin V. U. S., 3 Ct. of CI. 384.) Examination of witness. — Olijections which go merely to the form of a question should be taken at the examination (Hughes v. U. S., 4 Ct. of CI. &4); so of objections to parol evidence of the contents of a written instrument (Hughes v. U. S., 4 Ct. of CI. &4); but if the deposition is taken upon written inteiToga- tories. and the witness states the contents of a writ- ten paper, the objectiion may be made after tlie re- turn of the deposition (Hughes v. U. S., 4 Ot. of CI. 64); and oljjections which go merely to the manner of taking the testimony must be made before the hear- 1415 COURT OF CLAIMS— JURISDICTION. §§ 676-678 ing (Hughes v. U. S., 4 Ct. of CI. 64); but if they go to the competency or relevancy of the testimony, they may be taken at the hearing. (Hughes v. U. S., 4 Ct. of CI. 64.) The I'ig'ht to examine a witness is lost after one examination, and if a pai'ty requires a re-examination he must obtain leave of the court (Atocha V. U. S., 6 Ct. of CI. 95; Mahan v. U. S., 6 Ct. of CI. ool); and if he neglects to apply for leave, the admission of a second examination is within the dis- cretion of the court (Mahan v. U. S., 6 Ct. of CI. 331); and when leave is granted he cannot be examined on other than the particular point specified. (Sevier v. U. S., 7 Ct. of CI. 388.) § 676. Power to call upon departments for in- formation. — The said court shall have power to call upon any of the departments for any informa- tion or papers it may deem necessary, and shall have the use of all recorded and printed reports made by the committees of each house of Con- gress, when deemed necessary in the prosecution of its business. But the head of any department may refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injurious to the public inter- est. (Eev. Stats, sec. 1076.) § 677. When testimony not to be taken. — When it appears to the court in any case that the facts set forth in the petition of the claimant do no furnish any ground for relief, it shall not be the duty of the court to authorize the taking of any testimony therein. (Eev. Stats, sec. 1077.) § 678. Witnesses not excluded. — No witness § 678 COUKT OF CLAIMS— JUKISDICTION. 1416 shall be excluded in any suit in the court of claims on account of color. (Rev. Stats, sec. 1078.) Note.— Rev. Stats., sec. 1079, was repealed March 3, 1887, sec. 8; 24 U. S. Stats. 50(3. TMs section was held to restore the common-law rule as it existed before the adoption of section 858. (U. S. v. Olark, 96 U. S. 37.) But it does not prevent the United States from using as a witness to defeat a claim one whose inter- est is adverse to the claimant. (Bradley v. U. S., 104 U. S. 442.) Exclusion of witnesses.— The exclusion In this section reaches three classes of persons: the claim- ant, the person who has transferred the claim to the claimant, and any one interested in the event of the suit (U. S. V. Anderson, 9 Wall. 5G), unless he testifies against the claim. (Wood v. U. S., 10 Ct. of Ca. 395.) So a claimant cannot testify in his own favor (Mc- Kee V. U. S., 1 Ct. of CI. 330; Jones v. U. S., 1 Ct. of CI. 383; Stoddard v. U. S., 4 Ct. of CI. 511; Brooke v. U. S., 2 Ct. of CI. 180); and his deposition taken be- fore the adoption of this section cannot be used in the suit (Hubbell v. U. S., 4 Ct. of CI. 37; Waters v. TJ. S., 4 Ct. of CI. 389); but if a corporation is claim- ant, the trustees are competent witnesses (Hebrew Congregation v. U. S., 6 Ct. of CI. 241); and if the ti- tle or right of claimant to relief is established by other evidence, he is competent to prove the contents of a lost package, involved in his title and claim to reiief. (U. S. v. Clark, 96 U. S. 37; but see Christian V, U. S., 7 Ct. of CI. 431.) Assignor and assignee.— The United States may take the deposition of the assignee of a claim, or of a person interested in the event of the suit, but it can- not be used to support a claim against the United States. (Macauley v. U. S., 11 Ct. of CI. 575.) A 1417 COURT OF CLAIMS— JUKISDICTIOIS. § 679 person Avho sold property to a claimant before its capture may testify in favor of tlie claimant. (Gross- meyer v. U. S., 4 Ct. of CI. 1; Scliarfer v. U. S., 4 Ct. of Gl. 529; U. S. v. Anderson, 9 Wall. 56.) If a coun- terclaim Is filed by the United States for the breach of contract a surety on the land cannot testify. (Wood V. U. S., 10 Ct. of CI. 395.) § 679. Examination of claimant. — The court may, at the instance of the attorney or solicitor ap- pearing in behalf of the United States, make an order in any ease 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 examination shall be reduced to writing by said commissioner, and be returned to and filed in the court, and may, at the discretion of the attorney or solicitor of the United States appearing in the case, be read and used as evidence on the trial thereof. And if any claimant, after such order is made, and due and reasonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge material to the issue, the court may, in its discretion, order that the said cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises. (Rev. Stats. sec. 1080.) Note.— The claimant alone can be held responsible under this section. (McCauley v. U. S., 11 Ct. of CI. 575.) The provisions of this section shall apply to cases under the act of 24 U. S. Stats., supra. The Fbd. P.ijo.— l, . §3 680-683 COURT or claims— jurisdiction. 1418 right of the government to examine a claimant before trial extends to Indian depredation cases; the appli- cation for an order to examine a claimant may be ex parte, and no special ground need be set forth. (Truitt's Case, 30 Ct. of CI. 19.) § 680. Testimony taken where deponent re- sides. — Tlie testimony in cases pending before the court of claims shall he taken in the county where the witness resides, when the same can be conven- iently done. (Eev. Stats, sec. 1081.) § 681. Witnesses, how compelled to attend. — The court of claims may issue sultpoenas to re- quire the attendance of witnesses in order to be ex- amined before any person commissioned to take testimony therein, and such subpoenas shall have the same force as if issued from a district court, and compliance therewith shall be compelled un- der such rules and orders as the court shall estab- lish. (Rev. Stats, sec. 1082.) § 682. Cross-examination. — In taking testi- mony to lie used in support of any claim opportu- nity shall be given to the United States to file in- terrogatories, or by attorneys to examine witnesses, under such regulations as said court shall pre- scribe; and like opportunity shall be afforded the claimant, in cases where testimony is taken on be- half of the United States, under like regulations. (Rev. Stats, sec. 1083.) ^ 683. Witnesses, how sworn. — The commis- sioner taking tcstimtmy to be used in the court of 1419 COURT OF CLAIMS— JUKISDICTION. §§ 684-686 claims shall administer an oath or affirmation to the witnesses brought before him for examination, (Eev. Stats, sec. 1084.) § 684. Fees of commissioner. — When testi- mony is taken for the claimant, the fees of the commissioner before whom it is taken, and the cost of the commission and notice, shall be paid by such claimant; and when it is taken at the instance of the government, such fees, together with all postage incurred by the assistant attorney general, shall be paid out of the contingent fund provided for the court of claims, or other appropriation made by Congress for that purpose. (Eev. Stats, sec. 1085.) § 685. Claims forfeited for fraud. — Any per- son who corruptly practices or attempts to practice any fraud against the United Stales in the proof, statement, establishment, or allowance of any claim, or of any part of any claim against the Uni- ted States, shall ipso facto forfeit the same to the government; and it shall l)e the duty of the court of claims, in such cases, to find specifically that such fraud was practiced or attempted to be prac- ticed, and thereupon to give judgment that such claim is forfeited to the government, and that the claimant be forever barred from prosecuting the same. (Eev. Stats, sec. 1086.) § 686. New trial on motion of claimant. — When judgment is rendered against any claimaiit, the court may grant a new trial for any reason § 686 COURT OF CLAIMS— JURISDICTION. 1420 which, by the rules of common law or chancery in suits between individuals, would furnish suffi- cient ground for granting a new trial. (Rev. Stats, sec. 1087.) New trial— Claimant's motion. — A motion for a new trial suspends the judgment and continues the ease within the jurisdiction of the court. If the dei- cision is founded on a mistal^e of law claimant may file a motion for review. (Calhoun v. U. S., 14 Ct. of CI. 193.) So if judgment is entered on matters not properly in evidence. (Alvord v. U. S., 9 Ct. of CI. 133.) Where there has been no oversight or misap- prehension a decision must be regarded as final, un- less one of the judges desires a reargument. (Pen- dall V. U. S., 12 Ct. of CI. 305.) A new trial cannot be gi'anted merely because the amount involved is too small to allow an appeal (Deeson v. U. S., 6 Ct. of 01. 227); nor on the ground of newly discovered evidence, if it could have been discovered by the use of due diligence (Garrison v. U. S.. 2 Ct. of CI. 382; Arm- strong V. U. S., 6 Ct. of CI. 226; Deeson v. U. S., 6 Ct. of CI. 227; Bramhall v. U. S., 3 Ct. of CI. 2.38); or un- less it is made to appear that a different I'esult would probably be reached. (Garrison v. U. S., 2 Ct. of CI. 382; Bramhall v. U. S., 6 Ct. of CI. 238.) The mere fact that the supreme court has made decisions since ihe judgment that miglit entitle claimant to a judg- ment it is no ground for granting a new tinal. (Bram- hall v. U. S., 6 Ct. of CI. 238.) Although claimant has no right to demand a new trial for a mistake in the findings, yet the error may be corrected while the proceedings are under control of the court. (Cal- houn V. U. S., 14 Ct. of CI. 198; Neal v. U. S., 14 Ct. of CI. 477.) An order dismissing a petition will not be stricken out if the petition shows that there is no jurisdiction (Garcia v. U. S., 14 Ct. of CI. 121), or that 1421 COUET OF CLAIMS— JUKISDICTION. § 687 diligence to prosecute the claim has not been used (Sehuffelin t. U. S.. 8 Ct. of CI. 359; Pigh v. TJ. S., 3 Ct. of CI. 97); and a judgment will not generally be set aside after an intervening term. (Figh v. U. S., 3 Ct. of CI. 97.) If the record is in possession of the court an allowance of an appeal may be stricken out and motion for new trial entertained. (Ex parte Rob- erts, 15 Wall. .384; but see Stern v. U. S., 6 Ct. of CI. 280; Nutt V. U. S., 8 Ct. of CI. 185.) Where a new trial has been granted, but it appears from the new evidence that the same result will be reached, and the same findings of fact made, the court, instead of requiring a second trial, will vacate the order allow- ing it. (Grantham's Case, 28 Ct. of CI. 528.) § 687. New trial on motion of United States. — ■ The court of claims, at any time while any claim is pending before it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion on behalf of the United States, grant a new trial and stay the payment of any judgment therein, upon such evidence, cumu- lative 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. (Eev. Stats, sec. 1088.) New trial — ^Motion of government.— Injustice con- templated by this section is not that which results from mere judicial error; it must be such as Is discov- ered after rendition of judgment. (Child v. U. S., 6 Ct. of CI. 44.) Under this section the court of claims has power to grant a new trial, on motion on behalf of the United States, at a term subsequent to that at § 687 COL'RT OF CLAIMS— JURISDICTION. 1422 which the jiidjjnient Avas rendered. (Belknap v. Unit- ed States, 150 U. S. 588.) If a motdon for new trial is filed within two years after disposition of the claim, action may be talven thereon even after that time (Bellocq v. U. S., 13 Ct. of CI. 195); and the objection of the lapse of more than two years after entry of jiidg-ment cannot be made to a motion for a continu- ance. (U. S. V. Crusell, 12 Wall. 175.) The obligation to use diligence falls upon the officers of the govern- ment who are charged in law or in fact with its de- fense. (Silvey v. U. S., 7 Ct. of CI. 305.) The final disi)osition of the suit is to date from the final ter- mination on appeal, If appeal is talven, and if none is talien then from its final determination in the court of claims. (Ex parte Russell, 13 Wall. 6&4.) The mere filing of a motion for new trial is no ground for dismissing an appeal (U. S. v. Ayres, 9 Wall. 608); the case on appeal will be continued to await the deci- sion on the motion. (U. S. v. Crusell. 12 Wall. 175.) It may be made even after filing a mandate affirming the judgment of the court of claims (Ex parte Rus- sell, 13 Wall. 664; Ex parte United States, 16 Wall. 099); and if the new trial be granted, the appeal will be dismissed. (U. S. v. Ayres, 9 Wall. 608; U. S. v. Young, 94 U. S. 258.) A new trial will be granted if the new evidence is prima facie sufficient (Tait v. U. S., 5 Ct. of CI. 638; Ayers v. U. S., 5 Ct. of CI. 712; Douglass v. U. S., 11 Ct. of CI. 655); but it will not be granted unless there was due diligence to discover the evidence (Child v. U. S., 6 Ct. of CI. 44; Silvey v. U. S., 7 Ct. of CI. 305); nor if the new evidence would not affect the result (Child v. U. S.. 7 Ct. of CI. 305); nor for an error of 'aw where the party has ample remedy by appeal (Ealer v. U. S., 5 Ct. of CI. 708); nor merely to eonti-adict a witness upon an immaterial point. (Silvey v. U. S. 7 Ct. of CI. 305.) The evidence authorized by this section in a motion by the govern- J4-23 COURT OF CLAIirS— JURISDICTION. § 688 meut for a new trial, includes testimony taken in the form of question and answer. (In re McKay, 30 Ct. of CI. 1.) The court of claims has power to com- pel a witness to appear and testify in regard to a motion for a new trial. (In re McKay, 30 Ot. of CI. 1.) If one motion has been denied a second motion based on the same grounds will not be considered. (Child V. U. S., 6 Ct. of CI. 441.) The decision grant- ing- a new trial is not appealable. (Young v. U. S., 95 U. S. 641.) Where Congress directed the court of claims to rehear a claim which had been decided against on account of the informality of the papers, it intended that such court should wholly disregard such informality. (Cross v. United States, 14 Wall. 479.) Where the supreme court required the court of claims to proceed in the cause remanded, in conform- ity to law and justice, the court of claims may set aside the finding of facts made on the first trial, and try the case de novo. (Ex parte Medway, 23 Wall. 504.) Where the court of claims has revoked an or- der for the allowance of an appeal, it has power to hear, entertain, and decide a motion for a new trial. (Ex parte Roberts. 15 Wall. 384.) Public officers can- not open and re-examine claims against the govern- ment which were rejected by their predecessoi's in office, in the absence of fraud, mistake in matters of fact arising from eiToi's in calculations, or of newly discovered material evidence. (Waddell v. United States, 25 Ct. of CI. 000.) They have the right to pay into the treasury the disputed moneys, and then seek the coui-ts to adjust and deterainie their claims against their superior and sovereign. Such payment is not an estoppel against the claimant. (United States V. Mosby, 133 U. S. 273.) § 688. Payment of judgments. — In all cases of final judgments by the court of claims, or, on ap- § 689 COURT OF CLAIMS— JURISDICTION. 1424 peal, 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 appropri- ation made by law for the payment and satisfac- tion of private claims, on presentation to the secre- tary 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. (Eev. Stats, sec. 1089.) Note.— The payment of a judgment of the court of claims satisfies the demand of a judgment creditor against the United States, and he is only required to enter satisfaction on receipt of the money. (U. S. v. Frerichs, 124 U. S. 315.) Where two partners recov- ered a joint judgment against the United States, and it paid one-half thereof to one partner, and applied the other half to a judgment in its favor against the other partner, the United States cannot be compelled, to pay it over to them jointly. (Howes v. U. S., 24 Ct. of CI. 170.) Private claims construed.— (Sweeney v. U. S., 5 Ct. of CI. 285.) § 689. Interest. — In cases where the judgment appealed from is in favor of the claimant, and the same is affirmed by the supreme court, interest thereon at the rate of five per centum shall be al- lowed from the date of its presentation to the sec- retary of the treasury for payment as aforesaid, but no interest shall be allowed subsequent to the affirmance, unless presented for payment to the secretary of the treasury as aforesaid. (Eev. Stats. stc. 1090.) 1125 COUKT OF CLAIMS— JUKISDIcriON. §§ 690-691 Interest on judgments. — Provision is made in tiiis section for tlie payment by government of interest an its debts. (White v. Artliur, 10 Fed. Rep. 83.) Inter- est on judgments is not to be paid unless the United States has appealed. (White v. Arthui*, 10 Fed. Rep. 87; see U. S. v. Jones, 131 U. S. 1.) The provisions of sections 1090 and 1091 of the- Revised Statutes are not repealed or modified by section 10 of the act of March 3, 1887; and the latter act does not authorize the i-ecovery of interest on judgments from the time of their rendition until an appropriation is made for their payment. (United States v. Barber, 41 U. S. App. 424; 74 Fed. Rep. 483.) § 690. Interest on claims. — No interest shall be allowed on any claim up to tlie time of the ren- dition of judgment thereon by the court of claims, unless upon a contract expressly stipulating for the payment of interest. (Eev. Stats, sec. 1091.) Interest.— Unless a contract stipulates for interest, interest cannot be allowed against the United States (Tilson V. U. S., 100 U. S. 43; Todd v. U. S., Dev. Ct. CI. 175); but it may be allowed in the court of claims if allowed by Congress in the adjustment of like cases. (U. S. V. McKee, 91 U. S. 442.) Interest may be al- lowed on claims against proceeds of captured and abandoned property. (Villalonga v. U, S„ 23 Wall. 35.) No interest can be allowed except upon a con- tract expressly stipulating for interest. (Harvey v. U. S., 113 U. S. 243; Tilson v. U. S., 100 U. S. 43.) § 691. Payment of judgment a full discharge, etc. — The payment of the amount due by any judgment of the court of claims and of any in- terest thereon allowed by law, as hereinbefore pro- vided, shall be a full discharge to the United §§ 692-693 COURT of claims— jurisbiction. 14'2l> States of all claim and demand touching any of the matters involved in the controversy. (Rev. Stats, sec. 1U9^.) § 692. Final judgement a bar. — Any final judg- ment against the claimant on any claim prose- cuted as provided in this chapter shall forever bar any further claim or demand against the United States arising out of the maifers involved in the controversy. (Rev. Stats, sec. 1093.) The judgments of the court of claims, where no ap- peal is takeu to this cotirt. are absolutely conclusive of the rights of the parties, and are not subject to re- vision by any one of the executive depai'tnients. (United States v. O'Grady, 22 Wall. 641.) Final judgment. — The provisions of this section re- late only to judgments on the merits (Spicer v. U. S., 5 Ct. of CI. 34); but tliough erroneous a judgment is a bar to another suit (Osborn v. U. S., 19 Wall. 577): but it will not bar a subsequent suit for a different cause of action. (Shrewsbury v. U. S., 18 Wall. 664; 9 Ct. of CI. 263.) So a judgment on one petition will not bar another petition for rent due at another rime. (Cross V. U. S., 14 Wall. 479.) The judgment in an action by the holder of negotiable paper against in- dorsers is not a bar to a subsequent action against tlie maimer not notified of the prior suit. (HailrcAiid ('(I. V. National Bank. 102 U. S. 14; see United States V. Irwin, 127 U. S. 12,").) § 693. Claims, etc., pending before Congress. — Whenever a claim or matter is pending before anv committee of the Senate or House of Representa- tives, or before either house of Congress, which in- 1427 COUKT OF CLAIMS— JURISDICTION. v 694 Yolves the investigation and determination of facts, the committee or house may cause the same, witli the voucliers, papers, prooi's, and documents pertaining thereto, to be transmitted to the court of claims of tlie United States, and the same shall there be proceeded in under such rules as the court may adopt. When the facts shall have been found, the court shall not enter judgment thereon, but shall rejiort the same to the committee, or to the house by which the case was transmitted for its consideration. (22 V. S. Stats. 485, sec. 1.) Transmission under the "Bowman Act." — Where a petitioner in Congress seelts the passage of a law which will enable him to acquire realty whereof the legal title is vested in the government, upon the pay- ment of such sum as may be just and equitable, the matter may be transmitted to the court of claims, un- der the Bowman Act. (Taylor v. United States, 25 Ct. of CI. 75.) The court has jnrisdiiction to find the facts in a claim for infringement of a patent re- ferred to it by the committee on claims of the Sen- ate. (Forehand v. United States. Ct. of CI., 17 Wash. L. Rep. 37.) Where the primary purpose of a military order is not to supply the army, but to injure the ene- my, the taking is an act of war. which gives the own- ei's no right to relief for commissary supplies talven. (Conard v. United States, 25 Ct. of CI. 433.) Under the Bowman Act it is the duty of the court of claims to settle the ultimate facts so that Congress may as- sume them as a basis for its legislative judgment and discretion, and it need not give the details. (Moore V. United States, 25 Ct. of CI. 82.) § 694. Claims pending in executive depart- ments. — When a claim or matter is pending in any §§ 695-696 COURT of claims— jurisdiction. 142S of the executive departments which may involve controverted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, proofs and documents pertaining thereto, to said court, and the same shall there he proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall not enter judgment thereon, but shall report its findings and opinions to the department by which it was trans- mitted, for its guidance and action. (22 U. S. Stats. 485, sec. 2.) § 695. Claims not within jurisdiction of court. ■ — The jurisdiction of said court shall not extend to or include any claim against the United States growing out of tlie destruction or damage to prop- erty by the army or navy during the war for the suppression of the rebellion, or for the use and oc- cupation of real estate by any part of the military or naval forces of the United States in the opera- tions of said forces during the paid war at the seat of war; nor shall the said court have jurisdiction of any claim against the United States which is now barred by virtue of the provisions of any law of the United States. (22 U. S. Stais. 485, sec. 3.) § 696. Claims for supplies, etc. — In any case of a claim for sup])!i('S or stores taken by or furnished to any part of military or naval forces of the Uni- ted States for their use during the late war for the suppres.sion of the rebellion, the petition shall 1429 COUKT OF CLAIMS— JURISDICTION. §§ 697-698 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, anc? the same shall, without further proceedings, be dis- missed. (22 U. S. Stats. 485, sec. 4.) § 697. Defense, etc., for the United States. — The attorney general, or his assistants under his direction, shall appear for the defense and protec- tion of the interests of the United States in all cases which may be transmitted to the court of claims under this act, with the same power to in- terpose counter-claims, offsets, defenses for fraud practiced or attempted to be practiced by claim- ants, and other defenses, in like manner as he is now required to defend the United States in said court. (22 U. S. Stats. 485, sec. 5.) § 698. Parties in interest may testify, etc. — In the trial of such cases no person shall be ex- cluded as a witness because he or she is a party to or interested in the same. (22 U. S. Stats. 485, sec. 6.) Fkd. Proc— 120. §i 699-701 COURT or claims— jurisdiction. 1430 § 699. Reports of court may be continued, etc., for action. — iieports of the court of claims to con- gress under this act, if not finally acted upon dur- ing the session at which they are reported, shall be continued from session to session and from con- gress to congress until the same shall be finally acted upon. (Act approved March 3, 1883. 23 U. S. Stats. 485, sec. 7.) § 700. Spoliations committed by the French. — Claimants may apply by petition to the court of claims for indemnity for detentions, seizures, con- demnations, and confiscations prior to the ratifi- cation of the convention between the United States and the French republic concluded on Sep- tember 30, 1800, ratified July 31, 1801, within two years from the passage of this act; provided, that this act shall not extend to such claims as were embraced in that convention, nor to such claims growing out of the acts of France as were allowed and paid, in whole or in part, under the provisions of the treaty between the United States and Spain of Feljruairy 28, 1819; nor to such claims as were allowed, in whole or in part, under the treaty be- tween Ihe United States and France of July 4, 1831. (See 23 U. S. Stats. 283, sec. 1.) § 701. Court to make needful rules. — Tbe court is hereby authorized to make all needful rules and regulations, not contravening the laws of the land or the provisions of this act, for exocnt- ing the provisions hereof. (23 U. S. Stats. 283, sec. 22.) 1431 COUKT OF CLAIMS— JURISDICTION. §§ 702 704 § 702. Court to determine validity, amount, ownership of claims. — The court shall examine ana determine the validity and amount of all the claims included within the description above men- tioned, together with their present ownership, and if by assignee, the date of the assignment, with the consideration paid therefor; provided, that in the course of their proceedings they shall receive all suitable testimony on oath or affirmation, and all other proper evidence, historic and documen- tary, concerning the same; and they shall decide upon the validity of said claims according to the rules of law, municipal and international, and the treaties of the United States applicable to the same, and shall report all such conclusions of fact and law as in their judgment may affect the liabil- ity of the United States therefor. (23 U. S. Stats. 283, sec. 3.) §• 703. Attorney general, notice to and defense by. — The court shall cause notice of all, petitions presented under this act to be served on the attor- ney general of the United States, who shall be au- thorized, by himself or his assistant, to examine witnesses, to cause testimony to be taken, to have access to all testimony taken under this act, and to be heard by the court. He shall resist all claims presented under this act by all proper legal defenses. (23 U. S. Stats. 283, sec. 4.) § 704. Evidence and documents — How pro- cured and filed. — It shall be the duty of the secre- §§ 705-706 COURT OF claims— jurisdiction. 1432 tary of state to jjrocure^as soon as possible after the passage of this act^ through the American minister at Paris, or otherwise, all such evidence and docu- ments relating to the claims above mentioned as can be obtained from abroad; which, together with the like evidence and documents on file in the de- partment of state, or which may be filed in the de- partment, may be used before the court by the claimants interested therein, or by the United States, but the same shall not be removed from the files of the court; and after the hearings are closed, the record of the proceedings of the court and the documents produced before them shall be deposited in the department of state. (23 U. S. Stats. 283, sec. 5.) § 705. Court to report to Congress. — On the first MdiK'ay of December in each year the court shall report to Congress, for final action, the facts found by it, and its conclusions in all cases which it has disposed of and not previously reported. Such finding and report of the court shall be taken to be merely advisory as to the law and facts found, apd shall not conclude either the claimant or Con- gress; and all claims not finally presented to said court within the period of two years limited l)y this act shall be forever barred; and nothing in this act shall be construed as committing the United States to the payment of any such claims. (Ap- proved January 20, 1885. 23 U. S. Stats. 283, sec. 6.) § 706. Indian depredations. — In addition to 1433 COURT OF CLAIMS— JURISDICTION. § 706 the jurisdiction which now is, or may hereafter be, conferred upon the court of claims, said court sliall have and possess jurisdiction and authority to in- quire into and finally adjudicate, in the manner provided in this act, all claims of the following- classes, namely: all claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States, without just cause or pro- vocation on the part of the owner or agent in charge, and not returned or paid for. (26 U. S. Stats. 851, sec. 1, cl. 1.) Note. — The words "claims for pi'operty of citizens" means citizens at the time the property was taken. (Valk's Case, 28 Ct. of Gl. 241.) This section makes citizenship jurisdictional. (Johnson's Case, 29 Ct. of Cl. 1.) Ttie court of claims has no jurisdiction of a claim, under this section, for consequential damages. (Brice's Case. 32 Ct. of Cl. 23.) A corporation of a State is a '"citizen of the United States" within the meaning of the above section. (United States v. Northwestern Express Stage & T. Co.. 164 U. S. 68(5.) In claims for Indian depredations, the jurisdiction of the court of claims now supersedes that of the sec- retary of the interior. (.Jaeger's Case, 27 Ct. of Cl. 278.) The Indian depredation act is jurisdictional. The jurisdiction is commensurate with ana includes all legal liabilities of Indian defendants. (Love's Case. 29 Ct. of Cl. 332.) If the property wa.s not, when taken or desti'oyed, the pi'operty of a citizen, a claim therefor is clearly outside the statute, al- though the status of the claimant has since changed and he was a citizen at the passage of the act. (John- son V. United States, 160 U. S. 546.) §§ 707-709 COURT OF claims— jurisdiction. 1434 § 707. Examined claims. — Such jurisdiction sliall also extend to all cases which have been ex- amined and allowed by the interior department, and also to such cases as were authorized to be examined under the act of Congress making appro- priations for the current and contingent expenses of the Indian department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1886, and for other purposes (approved March 3, 1885; 23 U. S. Stats. 376), and under subsequent acts, Subject, however, to the limitations hereinafter provided. (26 U. S. Stats. 851, sec. 1, cl. 2.) §•708. Offsets and counterclaims. — All just offsets and counterclaims to any claim of either of the preceding classes which may be before such court for determination. (26 U. S. Stats. 851, sec. 1, cl. 3.) § 709. Waiver of limitations. — All questions of limitations as to time and manner of presenting claims are hereby waived, and no claim shall be excluded from the jurisdiction of the court be- cause not heretofore presented to the secretary of the interior, or other officer or department of the government; provided, that no claim accruing prior to July 1, 1865, shall be considered by the court unless the claim shall be allowed, or has been or is pending, prior to the passage of this act, be- fore the secretary of the interior or the Congress of the United States, or before any superintendent, 1435 COURT OF CLAIMS— JURISDICTION. § 710 agent, subagent, or commissioner, authorized un- der any act of Congress to inquire into such claims; but no case shall be considered pending unless evidence has been presented therein; and provided further, that all claims existing at the time of the taking effect of this act shall be presented to the court by petition, as hereinafter provided, within three years after the passage hereof, or shall be thereafter for ever barred; and provided, further, that no suit or proceeding shall be allowed under this act for any depredation which shall be com- mitted after the passage thereof. (26 U. S. Stats. 851, sec. 2.) § 710. Petition, etc. — All claims shall be pre- sented to the court by petition setting forth in or- dinary and concise language, without unnecessary repetition, the facts upon which such claims are based, the persons, classes of persons, tribe or tribes, or band of Indians by whom the alleged illegal acts were committed, as near as may be, the property lost or destroyed, and the value there- of, and any other facts connected with the trans- actions and material to the proper adjudication of the case involved. The petition shall be verified by the affidavit of the claimant, his agent, admin- istrator, or attorney, and shall be filed with the clerk of said court. It shall set forth the full name and residence of the claimant, the damages sought to be recovered, praying the court for a judgment upon the facts and the law. (26 U. S. Stats. 851, sec. 3.) §711 COURT OF CLAIMS— JURISDICTION. * J436 Parties in Indian cases.— In Indian depredation cases the court may bring in new Indian defendants after the statutory period for bringing such suits has expired. The court may bring in a tribe as de- fendant at any lime before judgment. (Duran's Case, 31 Ct. of CI. 353.) § 711. Service on and defense by attorney- general. — The service of the petition shall be made upon the attorney-general of the United States, in such manner as may be provided by the rules or orders of said court. It shall be the duty of the attorney-general of the United States to appear and defend the interests of the Government and of the Indians in the suit, and within sixty days after the service of the petition upon him, unless the time shall be extended by order of the court made in the case, to file a plea, answer, or demurrer, on the part of the Government and the Indians, and to file a notice of any counterclaim, set-off, claim of damages, demand, or defense whatsoever of the Government or of the Indians in the premises; provided, that should the attor- ney-general neglect or refuse to file the plea, an- swer, demurrer, or defense as required, the claim- ant may proceed with the case under such iniles as the court may adopt in the premises; but the claimant shall not have judgment for his claim, or for any part thereof, unless he sliall establish the same by proofs satisfactory to the court; provided^ that any Indian or Indians interested in the pro- ceedings may appear and defend, by an attorney employed by such Indian or Indians with the ap- 1437 COUBT OF CLAIMS— JURISDICTION. § 713 proval of the commissioner of Indian affairs, if he or they shall choose so to do. (26 U. S. Stats. 851, sec. 4, cl. 1.) Service on Indians. — The service of a petition in Indian depredation cases upon ttie attorney geuex-al is all that is required; the Indians are not entitled to notice. (Jaegei-'s Case, 27 Ct. of Cl. 278.) Attorney for Indians.— Fee of, how allowed. (Unit- ed States V. Blackfeather, 155 U. S. 180.) Defendant's pleading.— In Indian cases the court of claims may allow the defendants to file a plea after the time prescribed by the statute, even though the legal right of the defendants to file it expires at the time fixed. (Labadie's Case, 31 Ct. of Cl. 436.) The general traverse puts in issue evei'y allegation in the petition in an Indian depredation case. (.King's Case, 51 Ct. of Cl. 804; Gamel's Case, 31 Ct. of Cl. 321.) Claimants cannot have judgment by default. (King's Case, 31 Ct. of Cl. 304.) If either party asks a sev- erance of issues the jurisdictional issues must be tried first. (Gamel's Case, 31 Ct. of Cl. 321. § 712. Evidence — Priority of claims reopen- ing cases. — In considering the merits of claims presented to the court, any testimony, affidavits, reports of special agents or other officers, and such other papers as are now on file in the departments or in the courts, relating to any such claims, shall be considered by the court as competent evidence, and such weight given thereto as in its judgment is right and proper; provided, that all unpaid claims which have heretofore been examined, ap- proved, and allowed by the secretary of the in- § 713 COURT OF CLAIMS— JURISDICTION. 1438 terior, or under his direction, in pursuance of the act of Congress making appropriations for the current and contingent expenses of the Indian de- partment, and for fulfilling treaty stipulations with various Indian tribes, for the year ending June 30, 1886, and for other purposes, approved March 3, 1885, and subsequent Indian appropria- tion acts, shall have priority of consideration by such court, and judgments for the amounts there- in found due shall be rendered, unless either the claimant or the United States shall elect to reopen the case and try the same before the court, in which event the testimony in the case given by the witnesses, and the documentary evidence, in- cluding reports of department agents therein, may be read as depositions and proofs; provided, that the party electing to reopen the case shall assume the burden of proof. (26 U. S. Stats. 851, sec. 4 cl. 2.) Beopening' case.— Where defendants have not signi- fied their election whether they will reopen an Indian depredation case, a motion for judgment is premature. (Mitchell's Case, 27 Ct. of Cl. 31G.) When an Indian depredation case is reopened, the whole case is re- opened for trial de novo, subject only to the provision concerning the burden of proof. (Leighton's Case, 29 Ct. of Cl. 288.) § 713. Rules for taking testimony, etc. — The said court sliall make rules and regulations for taking testimony in the causes herein provided for, by deposition or otherwise, and such testi- mony shall be taken in the county where the wit- 1439 COURT OF CLAIMS— JUBISDICTION. § 714 ness resides, when the same can be conveniently done, and no person, shall be excluded as a wit- ness because he is party to or interested in said suit, and any claimant or party in interest may be examined as a witness on the part of the Gov- ernment; that the court shall determine in each case the value of the property taken or destroyed at the time and place of the loss or destruction, and, if possible, the tribe of Indians or other per- sons by whom the wrong was committed, and shall render judgment in favor of the claimant or claim- ants against the United States, and against the tribe of Indians committing the wrong, when such can be identified. (26 U. S. Stats. 851, sec. 5.) § 714. Judgment, how paid. — The amount of any judgment so rendered against any tribe of Indians shall be charged against the tribe by which, or by members of which, the court shall find that the depredation was committed, and shall be deducted and paid in the following manner: First, from annuities due said tribe from the Uni- ted States; second, if no annuities are due or available, then from any other funds due said tribe from the United States, arising from the sale of their lands or otherwise; third, if no such funds are due or available, then from any appro- priation for the benefit o± said tribe, other than appropriations for their current and necessary support, subsistence, and education; and fourth, if no such annuity, fund, or appropriation is due or available, then the amount of the judgment §§ 715-717 COURT OF CLAIMS— JURISDICTION. 1440 shall be paid from Llie treasury of the United States; provide'd, that any amount, so paid from the treasury of the United States shall remain a charge against such tribe, and shall be deducted from any annuity, fund, or appropriation herein- before designated which may hereafter become due from the United States to such tribe. (26 U. S. Stats. 851, sec. 6.) § 715. Judgments final — Appeal. — All judg- ments of said court shall be a tinal determination of the causes decided, and of the rights and obli- gations of the parties thereto, and shall not there- after be questioned unless a new trial or rehear- ing shall be granted by said court, or the judg- ment reversed or modified upon appeal as here- after provided. (26 U. S. Stats. 851, sec. 7.) § 716. List of judgments to be sent to Con- gress. — Immediately after the beginning of each session of Congress, tlie attorney-general of the United States shall transmit to the Congress of the United States a list of all final judgments rendered in pursuance of this act, in favor of claimants and against the United States, and not paid as hereinbefore provided, which shall there- upon be api)ropriated for in the proper appropria- tion bill. (26 U. S. Stats. 851, sec. 8.) § 717. Assignment of claims.— All sales, trans- fers, or assignments of any such claims hereto- fore or hereafter made, except such as have oc- curred in the due administration of decedents' 1441 COUKT OF CLAIMS— JUBISDICTION. § 718 estates, and all contracts heretofore made for fees and allowances to claimants' attorneys, are here- by declared void, and all warrants issued by the secretary of the treasury, in payment of such judg- ments, shall be made payable and delivered only to the claimant or his lawful heirs, executors, or administrators, or transferee under administra- tive proceedings, except so much thereof as shall be allowed the claimant's attorneys by the court for prosecuting said claim, which may be paid di- rect to such attorneys, and the allowances to the claimant's attorneys shall be regulated and fixed by the court at the time of rendering judgment in each case and entered of record as part of the findings thereof; but in no case shall the allow- ance exceed fifteen per cent of the judgment re- covered, except in case of claims of less amount than five hundred dollars, or where unusual ser- vices have been rendered or expenses incurred by the claimant's attorney, in which case not to ex- ceed twenty per cent of such judgment shall be al- lowed by the court. (26 U. S. Stats. 851, sec. 9.) Fees.— All fees are to be regulated by the court. (Tanner's Case, 32 Ct. of CI. 192.) § 718. Appeal. — The claimant, or the United States, or the tribe of Indians, or other party thereto interested in any proceedings brought un- der the provisions of this act, shall have the same rights of appeal as are or may be reserved in the statutes of the United States in other cases, and upon the conditions and limitations therein con- Fed. Peoc— 121. §g 719-721 COUKT OF CLAIMS— JUKISDICTION. 1442 tained. The mode of procedure in claiming and perfecting an appeal shall conform, in all respects, as near as may be, to the statutes and rules of court governing appeals in other cases. (36 U. S. Stats. 851, sec. 10.) § 719. All papers, etc., to be furnished the court. — All papers, reports, evidence, records and proceedings now on file or of record in any of the departments or the office of the secretary of the Senate, or the office of the clerk of the House of Eeprescntatives, or certified copies of the same, relating to any claims authorized to be prosecuted under this act, shall be furnished to the court upon its order, or at the request of the attorney-general. (26 U. S. Stats. 851, sec. 11.) § 720. Assistant attorney-general. — To facili- tate the speedy disposition of the cases herein pro- vided for, in said court of claims, there shall be appointed, in the manner prescribed by law for the appointment of assistant attorney-generals, one additional assistant attorney-general of the United States, who shall receive a salary of twenty-five hundred dollars per annum. (26 U. S. Stats. 851, sec. 12.) § 721. Investigation under present laws. — The investigation and examinations, under the provi- sions of the acts of Congress heretofore in force, of Indians depredation claims, shall cease upon the taking effect of this act, and the unexpended balance of the appropriation therefor shall be 1443 COUKT OF CLAIMS— JURISDICTION. §§ 722-723 covered into the treasury, except so rauch thereof as may be necessary for disposing of tlie unfinish- ed business pertaining to the claims now under investigation in the interior department, pending the transfer of said claims and business to the court or courts herein provided for, and for mak- ing such transfers and a record of the same, and for the proper care and custody of the papers and records relating thereto. (Approved, March 3, 1891; 26 U. S. Stats. 851, sec. 13.) § 722. Court to determine claim of Pottawa- tomies. — Full jurisdiction is conferred on the court of claims, subject to an appeal to the su- preme court, to hear and determine the question whether or not a citizen band of Pottawatomie In- dians purchased and paid the United States for the tract of country, under an agreement entered into between the United States and said band of Indians, pursuant to the Act of March 3, 1891. (See 26 U. S. Stats. 1021, sec. 12.) § 723. Private claim referred. — A claim of certain members of the Pottawatomie nation of Indians referred to the court of claims for adjudi- cation. (Appropriation Act of March 3, 1885; 23 U. S. Stats. 372.) (See Pam-to-Pee v. United States, 148 U. S. 691.) COUBT or PBIVATE LAND CLAIMS. 1444 CHAPTER XXV. COURT OF PRIVATE LAND CLArWS. S 724. Court of private land claims established. § 725. Powers, etc. § 726. Appointment of United States attorney^ § 727. Notice of organization of court in English and Spanish. § 728. Production of records, etc., in court. § 729. Competence, etc., of evidence as to claims. § 730. Claimants under certain unconfirmed grants may petition court in territory, etc. § 731. Form, etc., of petition. § 732. Jurisdiction, etc. — Procedure. § 733. Proceedings after p(?tition — Powers, etc., of adjudication. § 734. Certain other claimants claiming under com- pleted title may apply for confirmation — Pro- cedure. § 735. Confirmation of perfect title limited. § 736. Proceedings by the United States against cer- tain claimants, etc. § 737. Appeal— Retrial by supreme court on appeal- Final decree. § 738. Attorney-general to be notified by attorney of United States of judgment of confirmation. § 739. Certification of final decree of confirmation to commissioner of general land-office by clerk of decreeing court. § 740. Approval and forwarding to general land- office. S 741. Commissioner of general land-office to ti'ans- mit survey, etc., to court of final decisions. 1445 COUKT OF PRIVATE LAND CLAIMS. § 724 § 742. Scope of act as to claims— Legal claimants and representatives. § 743. Neglect to file petition in two years a bar- Provisos. § 744. Limitati(tos of right to proceed. § 745, No claim allowed unless tiitle lawfully and regularly derived, etc. § 746. No claim allowed interfering with Indian ti- tle, etc. § 747. No confirmation to confer title, etc., to mines of minerals. § 748. No claim allowed for right hitherto decided by Congress, etc. § 749. Private rights of persons between each other not concluded. § 750, Operation of decree as against United States. § 751. No confirmation, etc, for more than eleiven square leagues to original grantee, etc, § 752, Conditional grants, etc., barred if conditions imperformed, § 753, Lands decreed to claimant, but granted, etc., by United States to another. § 754. Ascertainment and report on Spanish and Mexican claims. § 755, Continuous adverse possession for twenty years recognized, etc. § 756, lieview by commissioner of general land-office —Patents. § 757. Where township surveys already made. § 758, Filing of claims under adverse possessiion— Time limit. § 759. Cessation, etc, of functions, etc., of court- Date, etc. § 724. Court of private land claims estab- lished. — There shall be, and hereby is, established a court to be called the court of private land § 725 COUET OF PRIVATE LAND CLAIMS. 1446 claims, to consist of a chief justice and four as- sociate justices, who shall be, when appointed, citi- zens and residents of some of the States of the United States, to be appointed by the President, by and with the advice and consent of the Senate, to hold, their offices for the term expiring on the thirty-first day of December, Anno Domini eigh- teen hundred and ninety-five; any three of whom shall constitute a quorum. Said court shall have and exercise jurisdiction in the hearing and de- cision of private land claims according to the pro- visions of this Act. The chief justice and the associate justices shall each receive a compensa- tion of five thousand dollars per year, payable monthly, and necessary traveling and personal ex- penses while engaged in the performance of their duties. The said court shall appoint a clerk, at a salary of two thousand dollars a year, who shall attend all the sessions of the court, and a deputy clerk, where regular terms of the court are held, at a salary of eight hundred dollars a year. The court shall appoint a stenographer, at a salary of fifteen hundred dollars a year, who shall attend all the sessions of the court and perform the duties required of him by the court. (26 TJ. S. Stats. 854, sec. 1, cl. 1.) § 725. Powers, etc. — The said court shall have power to adopt all necessary rules and regulations for the transaction of its business and to carry out the provisions of this act; to issue any pro- cess necessary to the transaction of the business ]447 COURT OF PRIVATE LAND CLAIMS. § 736 of said court, and to issue commissions to take depositions as provided in chapter seventeen of title thirteen of the. Eevised Statutes of the United States. Each of said justices shall have power to administer oaths and affirmations. It shall be the duty of the United States marshal for any district or territory in which the court is held to serve any process of the said court placed in his hands for that purpose, and to attend the court in person or by deputy when so directed by the court. The court shall hold such sessions in the States and Territories mentioned in this Act as shall be needful for the purposes thereof, and shall give notice of the times and places of the hold- ing of such sessions, by publication in both the English and Spanish languages, in one newspaper published at the capital of such State or Terri- tory, once a week for two successive weeks, the last of which publications shall be not less than thirty days next preceding the times of the hold- ing of" such sessions, but such sessions may be ad- journed from time to time without such publica- tion. (26 U. S. Stats. 854, sec. 1, cl. 2.) § 726. United States attorney, appointment, — There shall also be appointed by the President, by and with the advice and consent of the* Senate, a competent attorney, learned in the law, who shall when appointed be a resident and citizen of some State of tbe United States, to represent the United States in said court. Such attorney shall receive a compensation of three thousand five §§ 727-728 COURT of private land claims. 144S hundred dollars per year, payable montlily, and his necessary traveling and personal expenses while engaged in the discharge of his duties. And there shall be appointed by the said court a per- son who shall be when appointed a citizen and resident of some State of the United States, skill- ed in the Spanish and English languages, to act as interpreter and translator in said court, to at- tend all the sessions thereof, and to perform such other service as may be required of him by the court. Such person shall be entitled to a com- pensation of one thousand five hundred dollars per year, payable monthly, and his necessary trav- eling and personal expenses while engaged in the discharge of his duties. (26 U. S. Stats. 855, sec. 2.) § 727. Notice of organization of court. — Im- mediately upon the organization of said court, the clerk shall cause notices thereof, and of the time and place of the first session thereof, to be published for a period of ninety days in one news- paper at the city of Washington and in one pub- lished at the capital of the State of Colorado and of the Territories of Arizona and JTew Mexico. Such notices shall be published in both the Span- ish and English languages, and shall contain the substance of this Act. (26 U. S. Stats. 855, sec. 3.) § 728. Production of records, etc. — It shall be the duty of the commissioner of the general land- office of the United States, the surveyors-general 1449 COURT OF PRIVATE LAND CLAIMS. §§ 729-730 of such Territories and States, or the keeper of any public records who may have possession of any records and papers relating to any land grants or claims for land within said States and Terri- tories in relation to which any petition shall be brought under this Act, on the application of any person interested, or by the attorney of the United States, to safely transmit such records and papers to said court or to attend in person or by deputy any session thereof, when required by said court, and produce such records and papers. (26 TJ. S. Stats. 856, sec. 4.) * § 729. Competence, etc., of evidence as to claims. — The testimony which has been hereto- fore lawfully and regularly received by the sur- veyor-general of the proper Territory or State, or by the commissioner of the general landoffice, upon any claims presented to them, respectively, shall be admitted in evidence in all trials under this Act when the person testifying is dead, so far as the subject-matter thereof is competent evidence, and the court shall give it such weight as, in its judgment, under all the circumstances, it ought to have. (U. S. Stats. 856, sec. 5.) § 730. Claimants under unconfirmed grants. — It shall and may be lawful for any person or per- sons, or corporation, or their legal representatives, claiming lands within the limits of the Territory derived by the United States from the republic of Mexico, and now embraced within the Terri- § 731 COUKT OF PRIVATE LAND CLAIMS. 1450 tories of New Mexico, Arizona, or Utah, or with- in the States of Nevada, Colorado or Wyoming, by virtue of any such Spanish or Mexican grant, concession, warrant, or survey as the United States are bound to recognize and confirm by vir- tue of the treaties of cession of said country by Mexico to the United States which at the date of the passage of this Act have not been confirm- ed by Act of Congress, or otherwise finally de- cided upon by lawful authority, and which are not already complete and perfect, in every such case to present a petition, in writing, to the said court in the State or Territory where said land is situated and where the said court holds its ses- sions, but cases arising in the States and Terri- tories in which the court does not hold regular sessions may be instituted at such place as may be designated by the rules of the court. (26 U. S. Stats. 856, sec. 6, cl. 1.) § 731. Form of petition. — The petition shall set forth fully the nature of their claims to the lands, and particularly state the date and form of the grant, concession, warrant, or order of sur- vey under which they claim, by whom made, the name or names of any person or persons in pos- session of or claiming the same, or any part there- of, otherwise than by the lease or permission of the petitioner; and also the quantity of land claim- ed and the boundaries thereof, where situate, with a map showing the same, as near as may be, and whether the said claim has heretofore been con- 1451 COURT OF PRIVATE LAND CLAIMS. § 732 firmed, considered, or acted upon by Congress or the authorities of the United States, or been heretofore submitted to any authorities consti- tuted by law for the adjustment of land titles within the limits of the said Territory so acquired, and by them reported on unfavorably or recom- mended for confirmation, or authorized to be sur- veyed or not; and pray in such petition that the validity of such title or claim may be inquired into and decided. (36 U. S. Stats. 856, sec. 6, cl. 2.) § 732. Jurisdiction, etc. — Procedure. — And the said court is hereby authorized and required to take and exercise jurisdiction of all cases or claims presented by petition in conformity with the provisions of this Act, and to hear and deter- mine the same, as in this act provided, on the pe- tition and proofs in case no answer or answers be filed after due notice, or on the petition, and the answer or answers of any person or persons inter- ested in preventing any claim from being estab- lished, and tbe answer of the attorney for the United States where he may have filed an answer, and such testimony and proofs as may be taken; and a copy of such petition, with a citation to any adverse possessor or claimant, shall, immediately after the filing of the same, be served on such pos- sessor or claimant in the ordinary legal manner of serving such process in the proper State or Ter- ritory, and in like manner on the attorney for the United States; and it shall be the duty of the § 733 COURT or private land claims. 1452 attorney for the United States, as also any ad- verse possessor or claimant, after service of peti- tion and citation as hereinbefore provided, with- in thirty days, unless further time shall, for good cause shown, be granted by the court, or a judge thereof, to enter an appearance, and plead, an- swer, or demur to said petition; and in de- fault of such plea, answer, or demurrer being made within said thirty days, or within the fur- ther time which may have been granted as afore- said, the court shall proceed to hear the cause on the petition and proofs, and render a final decree according to the provisions of this Act, and in no case shall a decree be entered otherwise than upon full legal proof and hearing; and in every case the court shall require the petition to be sus- tained by satisfactory proofs, whether an answer or plea shall have been filed or not. (26 U. S. Stats. 856, sec. 6, cl. 3.) Jurisdiction of court of private land claims.— A case presented for adjudication to the court of pri- vate land claims must be clearly within the act of Congress creating such tribunal or relief cannot be given. (United States v. Sandoval, 1G7 U. S. 278.) The court cannot adjudge in favor of the validity of a gram unless satisfied by the evidence of the au- thority of the granting officer or body to convey the public domain, or that the exercise of that power if unwarranted, was subsequently lawfully ratified. (Hayes v. United States, 170 U. S. 637.) § 733. Proceedings after petition — Powers, etc. — All proceedings subsequent to the filing of 1453 COUKT OF PKIVATE LAND CLAIMS. § 733 said petition shall be conducted as near as may be according to the practice of the courts of equity of the United State, except that the an- swer of the attorney of the United States shall not be required to be verified by his oath, and ex- cept that, as far as practicable, testimony shall be taken in court or before one of the justices thereof. The said court shall have full power and authority to hear and determine all ques- tions arising in cases before it relative to the title to the land, the subject of such case, the extent, location, and boundaries thereof, and other mat- ters connected therewith fit and proper to be heard and determined, and by a final decree to settle and determine the question of the validity of the title and the boundaries of the grant or claim presented for adjudication, according to the law of nations, the stipulations of the treaty concluded between the United States and the republic of Mexico at the city of Guadalupe-Hidalgo, on the second day of February, in the year of our Lord eighteen hun- dred and forty-eight, or the treaty concluded be- tween the same powers at the city of Mexico on the thirtieth day of December, in the year of our Lord eighteen hundred and fifty-three, and the laws and ordinances of the government from which it is alleged to have been derived, and all other questions properly arising between the claimants or other parties in the case and the United States, which decree shall in all cases refer to the treaty, law, or ordinance under which such claim is con- firmed or rejected; and in confirming any such Fed. P roc— 122. §§ 734-735 COURT of private land claims. 1454 claim, in whole or in part, the court shall in its de- cree specify plainly the location, boundaries, and area of the land the claim to which is so confirmed. {26 U. S. Stats. 857, sec. 7.) §•734. Application by other claimants. — Any person or corporation claiming lands in any of the States or Territories mentioned in this act under a title derived from the Spanish or Mexican Gov- ernment, that was complete and perfect at the date when the United States acquired sovereignty there- in, shall have the right (but shall not be bound) to apply to said court in the manner in this act provided for other cases for a confirmation of such title; and on such application said court shall pro- ceed to hear, try, and determine the validity of the same and the right of the claimant thereto, its extent, location, and boundaries, in the same man- ner and with the same powers as in other cases in this act mentioned. (26 U. S. Stats. 857, sec. 8, el. 1.) § 735. Confirmation of perfect title, limited. — If in any such case, a title so claimed to be perfect shall be established and confirmed, such confirma- tion shall be for so much land only as such perfect title shall be found to cover, always excepting any part of such land that shall have been disposed of by the United States, and always subject to and not to affect any conflicting private interests, rights, or claims held or claimed adversely to any such claim or title, or adversely to the holder of any such claim or title. Aild no confirmation of 1455 COURT OF PKIVATE LAND CLAIMS. § 736 claims or titles in this section mentioned shall have any effect other or further than as a release of all claim of title by the United States; and no private right of any person as between himself and other claimants or persons^ in respect of any such lands, shall be in any manner affected thereby. (26 U. S. Stats. 857, sec. 8, cl. 2.) §• 736. Proceedings by the United States against certain claimants, etc. — It shall be lawful for and the duty of the head of the department of justice, whenever in his opinion the public interest or the rights of any claimant shall require it, to cause the attorney of the United States in said court to file in said court a petition against the holder or possessor of any claim or land in any of the States or Territories mentioned in this act who shall not have voluntarily come in under the pro- visions of this act, stating in substance that the title of such holder or possessor is open to ques- tion, or stating in substance that the boundaries of any such land, the claimant or possessor to or of which has not brought the matter into court, are open to question, and praying that the title to any such land, or the boundaries thereof, if the title be admitted, be settled and adjudicated; and there- upon the court shall, on such notice to such claim- ant or possessor as it shall deem reasonable, pro- ceed to hear, try, and determine the questions stated in such petition or arising in the matter, and" determine the matter according to law, justice, and the provisions of this act, but subject to all §§ 737-738 couKT of pkivate land claims. 1456 lawful rights adverse to such claimant or possessor, as between such claimant and possessor and any other claimant or possessor, and subject in this re- spect to all the provisions of this section applicable thereto. . (26 U. S. Stats. 858, see. 8, cl. 3.) § 737. Appeal — Retrial by supreme court. — The party against whom the court shall in any case decide — the United States, in case of the con- firmation of a claim in whole or in part, and the claimant, in case of the rejection of a claim in whole or in part — shall have the right of appeal to the supreme court of the United States, such ap- peal to be taken within six months from date of such decision, and in all respects to be taken in the same manner and upon the same conditions, except in respect of the amount in controversy, as is now provided by law for the taking of appeals from decisions of the circuit courts of the United States. On any such appeal the supreme court shall retry the cause, as well the issues of fact as of law, and may cause testimony to be taken in addition to that given in the court below, and may amend the record of the proceedings below as truth and jus- tice may require; and on such retrial and hearing every question shall be open, and the decision of the supreme court thereon shall be final and con- clusive. Should no appeal be taken as aforesaid, the decree of the court below shall be final and conclusive. (26 U. S. Stats. 858, sec. 9, cl. 1.) §• 738. Notice to attorney general of confirma- tion — Appeal. — Upon the rendition of any judg- 1457 COURT OF PRIVATE LAND CLAIMS. § 739 ment of the court confirming any claim, it shall be the duty of the attorney of the United States to notify the attorney general, in writing, of such Judgment, giving him a clear statement of the case and the points decided by the court, which state- ment shall be verified by the certificate of the pre- siding judge of said court; and in any case in which such statement shall not be received by the attor- ney general within sixty days next after the ren- dition of such judgment, the right of appeal on the part of the United States shall continue to exist until six months next after the receipt of such statement. And if the attorney general shall so direct, it shall be the duty of the clerk of the court to transmit the record of any cause in which final judgment has been rendered to the attorney general for his examination. In all eases it shall be the duty of the attorney general to ir struct the attorney for the United States what further course to pursue, and whether or not an appeal shall be taken. (26 U. S. Stats. 858, sec. 9, cl. 3.) § 739. Certificate of final decree of confirma- tion. — Whenever any decision of confirmation shall become final, the clerk of the court in which the final decision shall be had shall certify that fact to the commissioner of the general land office, with a copy of the decree of confirmation, which shall plainly state the location, boundaries, and area of the tract confirmed. The said commis- sioner shall thereupon, without delay, cause the tract so confirmed to be surveyed at the cost of the § 740 COURT OF PRIVATE LAND CLAIMS, 1458 United States. Wlien any such survey shall have been made and returned to the surveyor general of the respective Territory or State, and the plat thereof completed, the surveyor general shall give notice that same has been done, by publication once a week, for four consecutive weeks, in two newspapers, one published at the capital of the Territory or State, and the other (if any such there be) published near the land so surveyed, such notices to be published in both the Spanish and English languages; and the surveyor general shall retain such survey and plat in his office for public inspection for the full period of ninety days from the date of the first publication of notice in the newspaper published at the capital of the Territory or State. (26 U. S. Stats. 858, sec. 10, cl. 1.) § 740. Approval and forwarding to general landoffice. — If, at the expiration of such period, no objection to such survey shall have been filed with him, he shall approve the same and forward it to the commissioner of the general landoffice. If, within the said period of ninety days, objections are made to such survey, either by any party claim- ing an interest in the confirmation or by any party claiming an interest in the tract embraced in the survey or any part thereof, such objection shall be reduced to writing, stating distinctly the interest of tbe objector and the grounds of his objection, and signed by him or his attorney, and filed with the surveyor general, with such affidavits or other proofs as he may produce in support of his objec- 1159 COURT OF PRIVATE LAND CLAIMS. § 741 tion. At the expiration of the said ninety days the surveyor general shall forward such survey, with the objections and proofs filed in support of or in opposition to such objections, and his report thereon, to the commissioner of the general land office. (26 U. S. Stats. 859, sec. 10, cl. 2.) § 741, Transmission of survey, etc., to court of final decision — Approval. — Immediately upon receipt of any such survey, with or without objec- tions thereto, the said commissioner shall transmit the same, with all accompanying papers, to the court in which the final decision was made, for its examination of the survey and of any objections and proofs that may have been filed or shall be fur- nished; and the said court shall thereupon deter- mine if the said survey is in substantial accordance with the decree of confirmation. If found to be correct, the court shall direct its clerk to indorse upon the face of the plat its approval. If found to be incorrect, the court shall return the same for correction in such particulars as it shall direct. When any survey is finally approved by the court, it shall be returned to the commissioner of the general landoffice, who shall, as soon as may be', cause a patent to be issued thereon to the con- firmee. One-half of the necessary expenses of making the survey and plat provided for in this section, and in respect of which a patent shall be ordered to be issued, shall be paid by the claimant or patentee, and shall be a lien on said land, which may be enforced by the sale of so much thereof as §§ 742-743 cour.T of private land claims. 1460 may be necessary for that purpose, after a default of payment thereof for six months next after the approval of such survey and plat; and no patent shall issue until such payment. (26 U. S. Stats, 859, sec. 10, cl. 3.) §742. Scope of act as to claims. — The pro- visions of this act shall extend to any city lot, town lot, village lot, farm lot, or pasture lot claimed directly or mediately under any grant which may be entitled to confirmation by the United States, for the establishment of a city, town, or village by the Spanish or Mexican govern- ment, or the lawful authorities thereof; but the claim for said city, town, or village shall be pre- sented by the corporate authorities of the said city, town, or village; or where the land upon which said city, town, or village is situated was originally granted to an indivifhial, the claim shall be pre- sented by or in the name of said individual or his legal representatives. (26 U. S. Stats. 859, sec. 11-) ^ 743. Neglect to file petition in two years a bar. — All claims mentioned in section six of this act which are, by the provisions of this act, author- ized to be prosecuted, shall, at the end of two years from the taking effect of this act, if no petition in respect to the same shall have then been filed as hereinbefore provided, be deemed and taken, in all courts and elsewhere, to be abandoned, and shall be forever barred; provided, that in any case where 1461 COUKT OF PRIVATE LAND CLAIMS, J§ 744-745 it shall come to the knowledge of the court that minors, married women, or persons non compos mentis are interested in any land claim or matter brought before the court, it shall be its duty to appoint a guardian ad litem for such persons under disability and require a petition to be filed in their behalf, as in other cases, and, if necessary, to ap- point counsel for the protection of their rights. The Judges, respectively, of said court are hereby authorized in all cases arising under this act to grant in vacation all orders for taking testimony, and otherwise to hear and dispose of interlocutory motions not affecting the substantial merits of a case. And said court shall have and possess all the powers of a circuit court of the United States in preserving order, compelling the production of books, papers, and documents, the attendance of witnesses, and in punishing contempts. (26 TJ. S. Stats. 859, sec. 12.) § 744. Limitations of right to proceed. — All the foregoing proceedings and rights shall be con- ducted and decided subject to the following pro- visions as well as to the other provisions of this act, namely: § 745. ITo claim allowed unless title lav^fully and regularly derived, etc. — No claim shall be al- lowed that shall not appear to be upon a title law- fully and regularly derived from the government of Spain or Mexico, or from any of the States of the republic of Mexico having lawful authority to §§ 746-747 COURT of private land claims. 1462 make grants of land, and one that if not then com- plete and perfect at the date of the acquisition of the territory by the United States, the claimant would have had a lawful right to make perfect had the territory not been acquired by the United States, and that the United States are bound, upon the principles of public law, or by the provisions of the treaty of cession, to respect and permit to be- come complete and perfect if the same was not at said date already complete and perfect. (26 U. S. Stats. SCO, sec. 13, cl. 1.) § 746. No claim allowed interfering with In- dian title, etc. — No claim shall be allowed that shall interfere with or overthrow any just and un- extinguished Indian title or right to any land or place. (26 U. S. Stats. 860, sec. 13, cl. 2.) § 747. No confirmation to mines or minerals. — No allowance or confirmation of any claim shall confer any right or title to any gold, silver, or quicksilver mines or minerals of the same, unless the grant claimed effected the donation or sale of such mines or minerals to the grantee, or unless such grantee has become otherwise entitled there- to in law or in equity; but all such mines and min- erals shall remain the property of the United States, with the right of working the same, which fact shall be stated in all patents issued under this act. But no such mine shall be worked on any property confirmed under this act without the con- sent of the owner of such property until specially 1463 COURT OF PRIVATE LAND CLAIMS. §§ 748-751 authorized thereto by an act of Congress hereafter passed. (26 U. S. Stats. 860, sec. 13, cl. 3.) § 748. Right hitherto decided by Congress, etc. — No claim shall be allowed for any land, the right to which has hitherto been lawfully acted upon and decided by Congress, or under its au- thority. (26 U. S. Stats. 860, sec. 13, cl. 4.) § 749. Private rights of persons between each other. — No proceeding, decree, or act under this act shall conclude or affect the private rights of persons as between each other, all of which rights shall be reserved and saved to ine same effect as if this act had not been passed; but the proceedings, decrees, and acts herein provided for shall be con- clusive of all rights as between the United States and all persons claiming any interest or right in such lands. (26 U. S. Stats. 860, sec. 13, el. 5.) §• 750. Operation of decree as against United States. — No confirmation of or decree concerning any claim under this act shall in any manner oper- ate or have effect against the United States other- wise than as a release by the United States of its right and title to the land confirmed, nor shall it operate to make the United States in any manner liable in respect of any such grants, claims, or lands, or their disposition, otherw*ise than as is in this act provided. (26 U. S. Stats. 860, sec. 13, cl. 6.) § 751. No confirmation, etc., for more than eleven square leagues. — No confirmation in re- §§ 752-753 COURT of private land claims. WJi spect of any claims or lands mentioned in section six of this act, or in respect of any claim or title that was not complete and perfect at the time of the transfer of sovereignty of the United States as referred to in this act, shall in any case be made or patent issued for a greater quantity than eleven square leagues of land to or in the right of any one original grantee or claimant, or in the right of any one original grant to two or more persons joint- ly, nor for a greater quantity than was authorized by the respective laws of Spain or Mexico applic- able to the claim. (26 U. S. Stats. 861, sec. 13, el. 7.) § 752. Conditional grants, etc., barred if coii- ditions unperformed. — No concession, grant, or other authority to acquire land made upon any condition or requirement, either antecedent or subsequent, shall be admitted or confirmed unless it shall appear that every such condition and re- quirement was performed within the time and in the manner stated in any such concession, grant, or other authority to acquire land. (26 U. S. Stats. 861, sec. 13, cl. 8.) § 753. Lands decreed to claimant, but granted, etc., by United States to another. — If, in any case, it shall appear that the lands, or any part thereof, decreed to any claimant under the provisions of this act, shall have been sold or granted by the United States to any other person, such title from the United States to such other person shall re- main valid, notwithstanding such decree, and upon 1405 COUKT OF PRIVATE LAND CLAIMS. §§ 754-755 proof being made to the satisfaction of said court of such sale or grant, and tlie value of the lands so sold or granted, such court shall render judg- ment in favor of such claimant against the United States for the reasonable value of said lands so sold or granted, exclusive of betterments, not exceeding one 'dollar and twenty-five cents per acre for such lands; and such judgment, when found, shall be a charge on the treasury of the United States. Either party deeming himself aggrieved by such judgment may appeal in the same manner as pro- vided herein in cases of confirmation of a Spanish or Mexican grant. For the purpose of ascertain- ing the value and amount of such lands, surveys may be ordered by the court, and proof taken be- fore the court, or by a commissioner appointed for that purpose by the court. (26 U. S. Stats. 861, sec. 14.) § 754. Ascertainment and- report on Spanish and Mexican claims. — Section eight of the act of Congress, approved July 22, 1854, entitled "An act to establish the offices of surveyor general of ISTew Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein, and for other purposes," ana all acts amendatory or in extension thereof, or supplementary thereto, and all acts or parts of acts inconsistent with the provisions of this act, are hereby repealed. (26 U. S. Stats. 861, sec. 15.) ^ 755. Adverse possession for twenty years. — In township surveys hereafter to be made in the Fed. Proc— -3. § 756 COUBT OF PRIVATE LAND CLAIMS. 1466 Territories of Xew Mexico, Arizona, and Utali, and in the States of Colorado, Nevada, and Wyoming, if it shall be made to appear to the satisfaction of the deputy surveyor making such survey that any person has, through himself, his ancestors, gran- tors, or their lawful successors in title or posses- sion, been in the continuous adverse actual bona fide possession of any tract of land, or in connec- tion therewith of other lands, altogether not ex- ceeding one hundred and sixty acres in such to\vn- ship for twenty years next preceding the time of making such survey, the deputy surveyor shall recognize and establish the lines of such posses- sion and make the subdivision of the adjoining lands in accordance therewith. Such possession shall be accurately defined in the fieldnotes of the survey and delineated on the township plat, with the boundaries and area of the tract as a separate legal subdivision. The deputy surveyor shall re- turn with his survey the name or names of all per- sons so found to be in possession, with a proper description of the tract in the possession of each as shown by the survey, and the proofs furnished to him of such possession. (26 U. S. Stats. 861, sec. 16, cl. 1; as amended 27 TJ. S. Stats. 471.) § 756. Review by commissioner of general landoffice — Issue of patents. — Upon receipt of such survey and proofs, the commissioner of the general landoffice shall cause careful investigation to be made in such manner as he shall deem neces- sary for the ascertainment of the truth in respect 1467 COURT OF PKIVATE LAND CLAIMS. § 757 of such claim and occupation, and if satisfied upon such investigation that the claimant comes witliin the provisions of this section, he shall cause pat- ents, to be issued to the parties so found to be in possession for the tracts respectively claimed by them; provided, however, that no person shall be entitled to confirmation of, or to patent for, more than one hundred and sixty acres in his own right by virtue of this section; and provided further, that this section shall not apply to any city lot, town lot, village lot, farm lot, or pasture lot held under a grant from any corporation or town, the claim to which may fall within the provisions of section eleven of this act. (26 U. S. Stats. 861, sec. 16, cl. 2.) § 757. Where township surveys already made. — In the case of townships heretofore surveyed in the Territories of New Mexico, Arizona, and Utah, and the States of Colorado, Nevada, and Wyoming, all persons who, or whose ancestors, grantors, or their lawful successors in title or possession, be- came citizens of the United States by reason of the treaty of Guadalupe-Hidalgo (or the terms of the Gadsden purchase), and who have been in the actual continuous adverse possession of tracts of not to exceed one hundred and sixty acres each, for twenty years next preceding such survey, shall be entitled, upon making proof of such facts to the satisfaction of the register and receiver of the proper land district, and of the commissioner of the general landoffice upon such investigation as is § 757 COURT OF PRIVATE LAND CLAIMS. 14G8 provided for in section sixteen of this act, to enter without payment of purcliase money, fees, or com- missions, such legal subdivisions, not exceeding one hundred and sixty acres, as shall include their said possessions. After a claim of the character described shall have been filed as directed in sec- tion eighteen of this act, and it shall appear that a tract claimed as aforesaid is of such shape that the claimant cannot, readily secure his interests by an entry by legal subdivisions of the public sur- veys, •the commissioner of the general landoffice may cause such claim to be surveyed at the expense of the United States, but the deputy surveyor per- forming the work shall not be paid for his services more than five dollars per day in addition to hi.* necessary expenses. Before commencing such a survey the deputy surveyor shall post in at least three prominent places in the township in which such claim is situated a notice in both the English and Spanish languages, calling on all persons enti- tled to lands in said township under this section to submit to him, within a reasonable time, proofs of their rights in the lands by affidavit or otherwise. He shall then proceed to establish the lines of such possessions in the township as seem to him to be valid, properly connecting the lines thereof with the lines of public surveys, and he shall return the aforesaid proofs to the surveyor general with the fieldnotes of such claims and possessions. The surveyor general shall then, upon his approval of said proofs and fieldnotes of surveys, cause the said claim or claims to be platted, and numbered 1469 COUET OF PBITATE LAND CLAIMS. §§ 758-759 as a lot or lots of the section or sections in which such claim or claims are situated, and shall trans- mit a duplicate of the amended plat to the general land office and a triplicate thereof to the proper district landoffice, after which the land claimed as aforesaid may be entered as a lot or lots by the number or numbers designated upon the amended township plat; provided^ however, that no person shall be entitled to enter more than one hundred and sixty acres in one or more tracts in his own rights under the provisions of this section. (26 U. S. Stats. 863; sec. 17, as amended, 27 U. S. Stats. 471.) § 758. Filing of claims under adverse posses- sion. — All claims arising under either of the two next preceding sections of this act shall be filed with the surveyor general of the proper State or Territory, before the fourth day of March, nine- teen hundred and one, and no claim not so filed shall be valid. And the class of cases provided for in said two next preceding sections shall not be considered or adjudicated by the court created by this act, and no tract of such land shall be subject to entry under the land laws of the United States. (26 U. S. Stats. 862, sec. 18; as amended 27 U. S. Stats. 471, and 30 U. S. Stats. 495.) §759. Cessation, etc., of functions, etc., of court. — The powers and functions of the court es- tablished by this act shall cease and determine on the fourth day of March, eighteen hundred and § 759 COUBT OF PRIVATE LAND CLAIMS. 1470 ninety-nine, and all papers, files, and records in the possession of said court belonging to any other public office of the United States shall be returned to such office, and all other papers, files, and rec- ords in the possession of or appertaining to said court shall be returned to and filed in the depart- ment of the interior. (Approved March 3, 1891: 26 U. S. Stats. 862, sec. 19; as amended 29 U. S. Stats. 577.) LAW LIBRARY LTNIVERSITY OF CALIFORNU urn AtiQmm UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 799 340 5 ;.3a.