iiaratfall lEquttg CCollcttton (Sift of IE. 3(. MaraljaU. IC.2I. 1. 1B94 CORNELL UNIVERSITY LIBRARY 924 085 501 637 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501637 (6^37>^ Copyrteht 1911 by W. S. SIMKINS DEDICATION m LOVING MEMOEY OF MY BROTHER JUDGE E. J. SIMKINS PREFACE TO SECOND EDITION. The generous reception of the first edition of this work, and the fact that the edition is now exhausted, is my only excuse for issuing a second edition. While I have made few changes in the text of the original work, yet I have sought to improve it in many ways. The text has been expanded where it was deemed necessary to more fully explain the rules of equity practice, and the citations of authority have been brought down to date, giving the names of cases, which were omitted in the first edition. I have had two purposes in view in enlarging and improving the work: First, to make it a desirable text-book for law schools; and, second, to make it an efficient aid to the prac- titioner. As to whether I have succeeded must be determined by the profession. W. S. SiMKINS, Professor of Law in the University of Texas. V PREFACE TO FIRST EDITION. It is provided by an act of Congress that the practice, plead- ings, and forms and modes of proceeding existing at the time in like causes other than equity, and admiralty causes in the Circuit and District Courts of the United States, shall conform, as near as may be, to the practice, forms, and modes of proceed- ing existing at the time in like causes in the courts of record of the State within which such United States Circuit and District Courts are being held, any rule of the court to the contrary not- withstanding. On the law side of the Federal courts, then, it is presumed that the profession in each State would be reason- ably familiar with the practice, forms, and modes of proceeding required by this act. On the equity side, however, the practice, forms, and mode of procedure are governed, first, by acts of Congress; second, by rules promulgated by the Supreme Court in subordination to the acts of Congress ; and third, by such local rules as may be promulgated by the Circuit Court of Appeals, and the Circuit and District Courts, in subordination to the acts of Congress and rules promulgated by the Supreme Court. Whatever may be one's familiarity with the practice on the law side of the Circuit Court of the United States, he can de- rive very little aid or assistance if called upon to prosecute a suit on the equity side of this court. It was to meet this condition that I prepared a series of lec- tures "On a Suit in Equity in the Federal Courts" for the instruction of the Senior Classes in the Law Department of the University of Texas. I have been induced to publish them in book form, because I believe, in these lectures may be found a reasonable solution of vi PKEFACE. VH any doubt one may have as to any question of practice or pro- cedure in the prosecution of an equity suit in the Federal courts. I have sought to show, as briefly as possible, not only what should be done, but how to do it; that is, I have not only dis- crussed each step to be taken in a suit in equity, from filing the bill until it reaches the Supreme Court of the United States, but I have indicated forms which may be used in the successive steps to be taken in its progress. Much that has been written is the result of my personal ex- perience and observation in a practice of many years in the equity courts of the Federal system. In many instances it has been exceedingly difficult to extract the true rule to be applied, because of conflicting opinions of Federal judges, sometimes based on grounds reasonably calcu- lated to create dissent; while in many other cases conflict has been created by the refusal of the judges to follow the rules, or recognize any limitation to their discretion. In such cases doubt has been created as to the true rule, and it has tended to emphasize a somewhat prevalent idea that what you may or may not do in a Federal court of equity depends on the condition of the judge's conscience, and not on rule. However, in every instance when rules have been set aside to reach a conclusion, I have considered the decision as only the law of that particular case, and not as precedent; and, in >5uch cases, I have exercised my best judgment in reaching the correct rule of practice. In presenting this book to my brethren of the Bar, let it be borne in mind that it has no pretensions to cover the field of Federal practice, except in so far as the jurisdiction of the Federal courts may be involved, but it is sent forth only as a modest guide through the intricacies of a suit in equity in the Federal courts, and any fair criticism that will correct my errors will be sincerely appreciated by Your obedient servant, W. S. SlMKIKTS, Professor of Law in the University of Texas. TABLE OF CONTENTS. CHAPTER I. The Fedeeai, System 1 CHAPTEE II. Maxtms of Equity 9 Section 723, TJ. S. Eev. Stat., Discussed 11 CHAPTEE III. Remedy at Law 15 Federal Cominoii Law 19 CHAPTEE IV. '*Plaiit, Adequate, and Complete," Defined 22 CHAPTEE V. When a Couet of Equity will Enfoece a Pueely Legal Eemedy 27 CHAPTEE VL When Section 723 Must be Set up as a Defense .... 31 How Defense Made 34 ix X TABLE OF CONTENTS. CHAPTEE VII. JuEismcTiON U. S. CmcuiT Couet in Equity 35 What Courts were Created by Congress 38 OHAPTEK VIII. Limits of Teeeitoeial Jueisdiction 46 CHAPTER IX. Diveesity of Citizenship as Geound of Jueisdiction . . 4S CHAPTER X. Effect of Changing Citizenship Pending Suit 57 Transfer of Property to Create Diversity 69 CHAPTER XI. Shifting Parties to Ceeate Diveesity 62 CHAPTER XII. Sepaeable Conteoveesy 6T Joint and Several Liability 71 CHAPTER XIIL Citizenship of Coepoeations 73 Citizenship of Alien Corporations 81 CHAPTER XIV. Of Joint Stock Companies g2 Of National Banks §3 Of Married Women . . . . , g4. Of Aliens g^. TABLE OF CONTENTS. XI CHAPTEK XV. Tebbitortat. Jubisdiotion Disctjssed 89 Exceptions to the Rule 91 CHAPTER XVI. Rule of Venue Undek Other Provisions of Section 1 OF THE Judiciary Act and Exceptions 96 CHAPTER XVII. Section 8 of Judiciary Act Applied 99 Section 740 U. S. Rev. Stat. Discussed 101 CHAPTER XVIII. Where a Corporation May Be Sued 105 CHAPTER XIX. "Doing Business" by Corporation Discussed 112 Where Alien Corporations Sued 115 CHAPTER XX. Watveb of Jurisdsction 117 CHAPTER XXI. How Issue of Citizenship Raised and Proof 120 Forms Given 122 CHAPTER XXII. Want of Necessary Citizenship Appearing in the . Trial 127 Form for Objection 128 Xll TABLE OF CONTENTS, CHAPTER XXIIL Issue as to District of Suit 130 Forms Given 130, 131 CHAPTER XXIV. Fedeeal Question as Geound of Jurisdiction 133 What is a Federal Question Discussed 135 CHAPTER XXV. COEFOEATIONS OhAETEEED BY CoNGEESS ; EfFECT AS Raising a Federal Question 141 National Banks 145 CHAPTER XXVI. Impaieing Obligation as Illusteation of Federal Question 147 Privileges and Immunities 148 Due Process of Law 148 Equal Protection of the Laws 149 CHAPTER XXVII. Wheee the Federal Question Must Appear 152 Remedy When Federal Question not Raised in Bill . . 153 Sec. 709, TJ. S. Rev. Stat. Discussed 154 CHAPTER XXVIIL How the Federal Question Must Appear 158 Suit by Federal Receiver 162 TABLE OF CONTENTS. XUl CHAPTEK XXIX. Anticipating a Federal Question 164 Citizenship and Venue when Jurisdiction Rests upon a Federal Question 166 Form for Raising Issue 168 CHAPTER XXX. Amottnt, to Sustain Fedeeal Jurisdiction 169 Cases Classified 172 CHAPTER XXXI. Agoeegating Amounts 176 What May be Included in Amount 178 CHAPTER XXXII. Amount in Suits by and Against Federal Receivees . . 182 CHAPTER XXXIII. Amount in Injunction Suits 185 CHAPTER XXXIV. Value op Subject-Matter or Right in Issue in Equitable Remedies 191 Cases Sounding in Damages , . 195 CHAPTER XXXV. How Issue Raised as to Sufficiency of Amount 198 Forms Given 201 XIV TABLE OF CONTEITTS. CHAPTER XXXVI. How Issue as to Amottnt Tkied 203 CHAPTER XXXVIL Amending to Show Jueisdiction 206 CHAPTER XXXVIII. JtTEISDICTION BY ASSIGNMENT 208 CHAPTER XXXIX. Peomissoey Notes Payable to Beaeee Made by Coe- poeations 214 History of Assigament Clause of Act 1888 216 How Assignment Alleged 220 Form for Raising Issue 221 CHAPTER XL. Paeties to Equity Suits in Eedeeal Couets 223 CHAPTER XLI. Theee Classes ov Parties Discussed 229 Unknown Parties 235 CHAPTER XLII. When Paeties aee Numeeous 237 CHAPTER XLIII. Paeties in Special Cases 239 Married Women as Parties 239 Stockholders as Parties 239 Partnership Parties 243 Administrators as Parties 245 TABLE OF CONTENTS. XV CHAPTER XLIV. TETTSTEEa AS Paetibs 250 Beneficiaries as 252 Keceivera as 253 CHAPTEE XLV. Parties in Kemoving Cloud 257 CHAPTEE XLVI. Defect of Paeties and Issue 259 Eorms Given 260 CHAPTEE XLVII. The Bill 265 How Diversity of Citizenship Should be Stated .... 269 Statement of Case 272 How Federal Question Should Be Stated 275 How Amount Should be Stated 276 How Fraud and Laches Should be Stated 276 CHAPTEE XLVni. The Peatee 279 Signing the Bill 282 Verifying the Bill 283 CHAPTEE XLIX. Bills with Double Aspect 284 CHAPTEE L. DiSCOVEET 286 When Oath Waived to Answer 289 XVI TABLE OF CONTENTS. CHAPTER LI. MULTIFABIOUSNESS AND MiSJOINDEE 290 Form of Demurrer for 297 CHAPTER LII. Equity Rules and Rule Days 298 CHAPTER LIII. Oedee Book 303 Motions 304 CHAPTER LIV. Filing Bill and Seeving Peocess 306 Office of Subpoena 308 Service How Made 310 Service on the Attorney 311 CHAPTER LV. Seevioe of Peocess on Coepoeations 317 CHAPTER LVI. Appeaeanoe 325 Forms for 325, 327, 328 CHAPTER LVII. Gbneeal Appeaeanoe 332 CHAPTER LVIII. Seevioe Undee Section 8, Act 1875 334 Forms for 336, 337, 338 TABLE OF CONTENTS. XVll CHAPTER LIX. Scandal and Impertinence in bill 346 CHAPTER LX. Dismissal of Bill by Plaintiff 349 Form for 351 CHAPTER LXI. Amending bill 353 Eorins for 361, 362 CHAPTER LXII. Supplemental Bill 364 Eorm of Motion to Pile 368, 369 CHAPTER LXIII. Relation of Supplemental Bill to Original Bill . . 371 Eorm for Supplemental Bill 371 CHAPTER LXIV. Bill in Nature of Supplemental Bill 373 CHAPTER LXV. Bill of Revivor 376 Form of 382 CHAPTER LXVI. Decree pro Confesso 383 XVm TABLE OF CONTENTS, CHAPTER LXVIL Defenses 393 CHAPTER LXVin. Demueeee 398 Eorms for 400, 402 CHAPTER LXIX. Plea, and Office of, Discussed 407 Pleas in Abatement 409 CHAPTER LXX. Pleas in Bae 412 Eorm of Plea Given 414, 419 CHAPTER LXXL Setting Down Plea foe Heaeing 420 Yorm Given 421 CHAPTER LXXII. Answee Discussed 429 Forms Given 432 Verifying Answer 433 Form Given 433 CHAPTER LXXIII. Effect of Answee 435 Effect as Pleading 435 Effect as Evidence 437 TABLE OF CONTENTS. XIX CHAPTER LXXIV. Peocedttee Aftee Filing Answee 444 Setting Down for Hearing 446 CHAPTEE LXXV. Exceptions to Answee Discussed 448 Form of Given 451 CHAPTER LXXVL Amending Answee 455 Eorms of Application 456, 457 Supplemental Answer 460 CHAPTER LXXVII. Eeplication Discussed 462 Forms Given 463 CHAPTER LXXVIII. Dismissal of Case by Defendant 466 Forms of Application 466, 467 CHAPTER LXXIX. Ceoss Bill 469 Nature and Subject-Matter 469, 470 TTse of 471 Form of 477 Filing and Hearing 479 Effect of Dismissing 482 XX TABLE OF CONTENTS. CHAPTER LXXX. Intervention Discussed 484 Form of Application 486 Form of Order When Granted 487 CHAPTER LXXXI. Inteelocutoet Peoceedings 496 Injunctions 497 He Exeat 503 CHAPTER LXXXII. AxjxiLiABT Suits 505 Service in 508 Interpleader 512 CHAPTER LXXXIII. JiviDENCE IN Equity Suits 513 Depositions 513, 515, 516 Witnesses 515, 517 CHAPTER LXXXIV. Evidence in Equity Suits (Continued) 521 Time to Begin Taking Evidence 521 Time in Which it Must Be Taken 522 CHAPTER LXXXV. Ceetieicate or Officer When Taken de Bene Esse . . 527 Form of 527, 528 TABLE OF CONTENTS. Xxi CHAPTER LXXXVI. Depositions "in Rei Peepetuam" 532 Dedimus Potestatem 534 Form of Order for 537 CHAPTER LXXXVII. Depositions Aftee Issue Joined 539 Rules for Eramiiig 540 Appointment of Examiners 544 Form of Application and Order 544 Subpcena Duces Tecum 649 CHAPTER LXXXVIII. How Examination Conducted 554 How Authenticated and Transmitted 555 CHAPTER LXXXIX. Retuening and Piling Depositions 559 Depositions to Foreign Countries 561 Letters Rogatory 562 Letter Form of 562 CHAPTER XC. SuppEESsiNG Depositions 564 CHAPTER XCL Depositions on Law Side 570 CHAPTER XCIL Dismissal of the Cause by the Couet - 574 XXll TABLE OF COHTENTS. CHAPTEK XCIII. Final Heaeing 581 CHAPTER XCIV. Masters in Chancery 583 Object and Effect of Appointment 584 Form of Reference to 585 Authority and Duties of 588 Procedure Before 589 Form of Exceptions to Report 591 CHAPTER XCV. Exceptions to Report to be Specific 593 CHAPTER XCVI. Effect of Master's Report 600 When Reference by Consent 602 Compensation of Master 605 CHAPTER XCVII. Decree 606 Classified and Discussed 606 Framing of 608 CHAPTER XCVIIL Sales Under Decrees 619 CHAPTER XCIX. Rehearing 623 Form of Petition for 627 TABLE OF COSTTENTS. 2X111 CHAPTER C. Bill of Review Discussed 629 Form to be Used 635 CHAPTER CI. Vacating Deceee 640 CHAPTER CII. Appeal 644 Acts Governing 645 Times Within Which to Appeal Stated 648 CHAPTER cm. Pbactice as to Appeals 650 From Interlocutory Decrees 650 Acts Governing 651 CHAPTER CIV. Final Deceebs as Basis fob Appeals 657 CHAPTER CV. Appeals Wheee Taken 665 From Circuit to Supreme Court 665 Form of Certificate 676 CHAPTER CVI. Appeals Undee Clauses 4, 5, 6 of Section 5, Act 1891 677 XXIV TABLE OF CONTENTS. CHAPTEK CVIL Appeals to Ciectjit Couet of Appeals 685 Form of Petition for 691 Motion for Supersedeas 692 Porm of 692 Form of Order for 693 CHAPTER CVIII. Assignment of Eeeoes Discussed 695 Form of Given 697 CHAPTER CIX. Allowance of Appeal , YOl Bond for 704 Bond Form of 705 CHAPTER ex. Supersedeas Bond 710 Power to Grant 710 Effect of Supersedeas Bond 711 CHAPTER CXI. Citation in Appeal 716 Serving Citation 720 CHAPTER CXII. Who Mat Appeal 722 Cross Appeals 728 TABLE OF CONTENTS. XXV CHAPTEK CXIII. Teansceipt 730 Form of Certificate 736 CHAPTER CXIV. Peoceedings Aftee Teansceipt Deliveeed 739 Piling 740 Printing 741 CHAPTER OXV. Dismissing Appeal ; Causes Given 744 Form of Motion to Dismiss 747 Effect of Death on 747 CHAPTER CXVI. Submitting Case to Appellate Couet 751 Briefs 751 Practice of Court in Hearing 752 Keheariag 756 CHAPTER CXVII. Appeal feom Ciecuit Court of Appeals to Supeeme Couet 758 By Certifying Questions 759 By Certiorari and Form of Petition for 761, 762 CHAPTER CXVIII. Appellate Powee of Supeeme Couet in Oases not Final in the Circuit Couet of Appeals 765 Form of Petition for Appeal 768 XXVI TABLE OF CONTENTS. CHAPTER CXIX. Appeal feom State Couets to U. S. Supeeme Cottet 770 Procedure 779 Petition for Writ, Form of 781 Practice in these Appeals 781 Porm of Order of Allowance 783 Citation 786 Bond 787 When Supersedeas 788 CHAPTER CXX. Mandate Discussed 791 CHAPTER CXXI. Removals 798 CHAPTER CXXII. Peoceedings in State Couet 802 Order of Removal 808 Power of Federal Court Between Application and Filing Transcript 809 CHAPTER CXXIII. Status aftee Removal 813 CHAPTER CXXIV. Remanding gj5 Statutes Controlling g^g Causes for Remanding gjg TABLE OF CONTENTS, XXVll CHAPTER CXXV. Removal on Gbound of Diveesity of Citizenship .... 828 Fraudulent Joinder to Prevent 829 By Aliens 831 By Tort Feasors 839 Whole Case Removed 841 CHAPTER CXXVI. Removal on Geound of Fedeeal Question 843 CHAPTER CXXVII. Amount as Affecting Removal 845 Effect of Counterclaim 847 CHAPTER CXXVIII. Must be Suit of a Civil ISTatuee 848 One that could have been Originally Brought in the Federal Court 849 When Citizens of Different States Sue in Third State 852 CHAPTER CXXIX. Amending Petition foe Removal 855 CHAPTER CXXX. Seevice of Peocess in State Couets Affecting Re- moval 867 XXVm TABLE OF CONTENTS. CHAPTER CXXXI. Kemovai. on Ground of Local Pkejudice 861 Petition for 863 Issue and How Tried 865 Eemedy When Remand Refused 867 CHAPTER OXXXIL Removal by Receivers 869 Intervention for Removal 871 CHAPTER CXXXIII. Motion to Remand 874 By Whom Made 874 Eorm of Motion 876 CHAPTER CXXXIV. Recasting Pleadings aftee Removal 882 APPENDIX. JtrDiciAL Code 887 Jurisdictional Acts 988 Rules in Equity 997 Rules in Copyright Cases 1021 Practice Acts 1024 Circuit Courts of Appeals Act 1025 Rules of Supreme Court 1031 TABLE OF CASES. Abbey Press, Ee, 683. Abbott V. Stiff, 515. Abel V. Book, 823, 836. Ableman v. Booth, 308. Abraham v. North German F. Ins. Co. 509. Acme Flexible Clasp Co. v. Gary Mfg. Co. 625. Acord V. Western Pocahontas Corp. 25, 28, 31, 630, 631, 634, 635. Adams v. Bridgewater Iron Co. 432, 442, 448. V. Heckscher, 101, 343. T. House, 16. V. Howard, 394, 436. V. Murphy, 23. V. Republic County, 197, 217. V. Shirk, 121, 122, 126, 212, 697. V. Western Maryland E. Co. 447. V. Woburn, 230. Adams Exp. Co. v. Adams, 271. Adderson v. Southern E. Co. 841. Adee v. J. L. Mott Iron Works, 734, 738 Adelbert College v. Toledo, W. 4 W. E. Co. 478, 828. Adone v. Strahan, 258. Adriance, P. & Co. v. McCormick Harvesting Mach. Co. 91, 107, 115. ^tna Indemnity Co. v. J. E. Crowe Coal & Min. Co. 696, 728, 752. iEtna L. Ins. Co. v. Hamilton Coun- ty, 612. Ahlhauser v. Butler, 860. Aiken v. Smith, 722, 724, 725. Alabama v. Burr, 36. Alabama & G. Mfg. Co. v. Eiverdale Cotton Mills, 78. Alabama G. S. E. Co. v. Carroll, 58, 120, 121. V. Thompson, 140, 839, 880. Albright v. Oyster, 664. V. Teas, 161. Alden Electric Co. Re, 730, 739, 740. Alderson v. Dole, 15. Aldrich v. iEtna Ins. Co. 783. V. Campbell, 11, 508. Alexander v. United States, 688. Alexander Nat. Bank v. Willis C. Bates Co. 802-804, 826, 828, 842. Alexandra, The, 561. Alger V. Anderson, 4, 6, 12, 14-16, 23, 26, 28, 34, 236, 578. Alkire Grocery Co. v. Riehesin, 59, 173, 180, 203. Allen V. Arguimbau, 785. V. Fairbanks, 376, 379. V. Georgia, 578, 745. T. Lulce, 295. V. New York, 298, 299, 389, 625. V. O'Donald, 274, 437, 439. V. Pullman Palace Car Co. 25, 33. V. Southern P. E. Co. 772. V. Wilson, 391, 630, 640, 757. Allen B. Risley Co. v. George B. Rouse Soap Co. 270. Allen-West Commission Co. v. Brash- ear, 65, 250. Alley V. Nott, 814. Allgeyer v. Louisiana, 114, 148. Alliance, The, 670 Allis, Re, 548, 549. V. Stowell, 624, 625. Allmark v. Platte S. S. Co. 813, 860. A. L. Robertshaw Mfg. Co. Re, 729, 733. Altenberg v. Grant, 688, 689, 719, 721, 739, 740. Alton Water Co. v. Brown, 615, 617, 667, 682. Ambler v. Choteau, 26. V. Eppinger, 211. XXIX XXX TABLE OF CASES Amelia Mill Co. v. Tennessee Coal, Iron & R. Co. 188, 846. American & G. Mortg. & Invest. Corp. V. Marquam, 476, 480. American Asso. v. Hurst, 499. American Bell Teleph. Co. v. United States, 363, 754. V. Western U. Teleg. Co. 350. American Bonding Co. v. Mills, 817. American Book Co. v. Kansas, 756. American Box Mach. Co. v. Crosman, 284, 285. American Bridge Co. v. Hunt, 838, 839, 875. American Cereal Co. v. Eli Pettijohn Cereal Co. 315. 327, 330. American Clay Bird Co. v. Ligowski Clap-Pidgeon Co. 443. American Constr. Co. v. Jackson- ville, T. & K. W. K. Co. 743. 759, 761, 762. American Exch. Nat. Bank v. First Nat. Bank, 524, 528, 545, 565. American Fisheries v. Lennen, 188. American F. L. M. Co. v. Benson, 98, 334. V. Thomas, 392. American Graphophone Co. v. Edison Phonograph Works, 425, 427. V. Leeds & C. Co. 425, 426. American Lithographic Co. v. Werck- meister, 552. American Loan &, T. Co. v. Central Vermont R. Co. 184. V. Clark, 729. V. East & West R. Co. 453. American Locomotive Co. v. Dickson Mfg. Co. 91. American Nat. Bank v. National Ben. & Casualty Co. 873. V. Tappan, 83. American Nicholson Pav. Co. v. Eliz- abeth, 595. American Smelting & Ref. Co. v. Godfrey, 188. American Steel & VY. Co. v. Wire Drawers & Die Makers' Unions Nos. 1 & 3, 188, 227, 228, 237, 355, 861, 384, 401, 414. American Strawboard Co. v. Indian- apolis Water Co. 654. American Sugar Ref. Co. v. Johnson, 267, 680. V. New Orleans, 666, 677, 681- 683, 766, 768. American Sulphite Pulp Co. v. Dab- less Paper & Pulp Co. 429. American Surety Co. v. Choctaw Constr. Co. 579. V. Lawrenceville Cement Co. 507. V. North Packing & Provision Co. 712. American Teleph. & Teleg. Co. v. Decatur, 147, 148. American Waterworks & Guarantee Co. v. Home Water Co. 220. American Wooden-Ware Co. v. Stem, 113. American Wringer Co. v. Ionia, 171, 200. Ames V. Chicago, S. F. & C. R. Co. 836, 857. V. Holderbaum, 52-54, 100, 343. V. Kansas, 38, 60, 135. Ames Realty Co. v. Big Indian Mia. Co. 472, 476, 508. Amsden v. Norwich Union F. Ins. Soc. 105. Amy V. Manning, 864, 866. V. Watertown, 318, 322, 611, 640. Anderson v. Bassman, 38, 43, 49, 51, 186, 575, 576. V. Watt, 43, 48, 51, 57, 62, 66, 121, 122, 198. Anderson Land &, Stock Co. v. Mc- Connell, 625. Andes v. Millard, 642. Andrews v. Andrews, 162. V. Cole, 390. v. Connolly, 608. V. National Foundry & Pipe Works, 607, 654, 659, 696, 697, 717, 718, 720, 725, 760. V. Thum, 688, 719, 731, 740. Andrews Bros. Co. v. Youngstown Coke Co. 82. Angle V. Chicago, St. P. M. & O. R. Co. 399. Anglo-American Provision Co. v. Davis Provision Co. 149, 162, 666, 668. Anglo-Florida Phosphate Co. v. Mc- Kibben, 366, 506. Animarium Co. v. Neiman, 290, 291. Anniston v. Safe Deposit & T. Co. 697. Ansbro v. United States, 673. Anson Co. v. Blue Ridge R. Co. 707, 708. Anthony v. Campbell, 358, 495. Appell, Re, 281. Appleton V. Marx, 425-427. Appleton Waterworks Co. v. Central Trust Co. 500, 503. Arbuckle v. Blackburn, 767. Argonaut Min. Co. v. Kennedy Min. 4 Mill. Co. 160. TABLE OF CASES. XXXI Arkansas v. Choctaw & M. R. Co. 158, 843. V. Arkansas & T. Coal Co. 60, 133, 136, 152, 153, 161, 165. v. St. Louis & S. F. R. Co. 849. V. Schlierholz, 666, 668, 675. Arkansas Southeastern R. Co. v. Union Sawmill Co. 223. Armengaud v. Coudert, 412, 417, 418. Armstrong v. Chemical Nat. Bank, 442, 474. Armstrong Cork Co. v. Merchants' Refrigerating Co. 281, 306. Arndt v. Griggs, 98, 100, 343, 344. Arnold v. Cheeseborough, 545. V. Woolsey, 726. Arrowsmith v. Gleason, 249, 501. V. Nashville & D. R. Co. 830, 879. Arthurs v. Hart, 524. Ashe V. Union Cent. L. Ins. Co. 803, 805, 806. Ashley v. Presque Isle County, 59, 200, 204, 579. Ask, The, 357. Aspen Min. & Smelting Co. v. Bill- ings, 626, 627, 662, 688, 761, 792. Aspinwall, Re, 246, 848. Atchison v. Morris, 312, 860. Atchison, T. & S. F. R. Co. v. Sowers, 770, 776. Atlanta, K. & N. R. Co. v. Hooper, 793. V. Southern R. Co. 802, 814, 842. Atlantic & P. R. Co. v. Laird, 71, 72. Atlantic & V. Fertilizing Co. v. Car- ter, 841. Atlantic Coast Line R. Co. v. Bailey, 804, 805, 807, 840. V. Daniels, 879. V. North Carolina Corp. Com. 778. Atlantic, K. & N. R. Co. v. Southern R. Co. 819. Atlas Glass Co. v. Ball Bros. Glass Mfg. Co. 322. Audenreid v. East Coast Mill Co. 108. Augusta (City of) The, 6a. Auracher v. Omaha & St. L. R. Co. 825, 859. Austin V. Cahill, 250, 251. V. Gagan, 136, 802, 803, 819. V. Riley, 387, 388, 391, 640. Averv v. Popper, 155, 156, 159, 778. Axliiie v. Toledo W. V. & O. R. Co. 830. Avers v. Carver, 237, 477, 482. V. Chicago, 470. Ayers v. Polsdorfer, 665, 678, 723, 724, 764^766. V. Watson, 819, 856. V. Wiswall, 64, 68, 69, 827. B. Babbitt v. Finn, 706, 707, 714, 720. V. Shields. See Babbitt t. Finn. Babcock v. DeMott, 585, 600. Bache v. Hunt, 668. Bachtel v. Wilson, 772. Backraek v. Norton, 137. Bacon v. Felt, 69. v. Texas, 147, 148, 150, 154, 162, 771, 774. Badger Gold Min. & Mill. Co. v. Stockton Gold &. Copper Min. Co. 478, 482, Badger Silrer Min. Co. v. Drake, 260. Baggs V. Martin, 852. Bagneas v. Southern P. E. Co. 834. Bailey v. Mosher, 138, 161, 821, 822. V. Tillinghast, 225, 238. V. Willeford, 501, 642. Baiz, Re, 38. Baker v. Baldwin, 773. V. Cummings, 577, 579, 580. v. Duwamish Mill Co. 848. V. Old Nat. Bank, 661-663. Balch V. Haas, 794. Baldwin v. Chicago & N. W. R. Co. 79-81. V. Liverpool & L. & G. Ins. Co. 606, 608. Balfour v. San Joaquin Valley Bank, 287. Ball V. Tompkins, 246. Balliet v. United States, 751. Baltimore v. Maryland, 696, 697. v. Postal Teleg. Cable Co. 845. Baltimore & 0. R. Co. v. Adams Exp. Co. 82. V. Baugh, 20. V. Doty, 117. V. Ford, 805, 819. V. Harris, 108, 114, 694, 788, 789 V. Koontz, 74, 81, 105, 108, 809, 812, 824. V. Meyers, 680. V. Wabash R. Co. 500, 501, 502. Baltimore Bldg. & L. Asso. v. Alder- son, 614. Baltimore Trust & G. Co. v. Hofstet- ter, 424, 725. Ban V. Columbia Southern R. Co. 211, 220. Bane v. Keefer, 842. XXXll TABIxE OF CASES. Bangs V. Loveridge, 54, 56, 277. Bankers' Mut. Casualty Co. v. Min- neapolis, St. P. & S. Ste M. R. Co. 163, 183. Bank of Arapahoe v. David Bradley & Co. 168, 170-172, 174, 175, 195, 196, 198, 200. Bank of Bethel v. Pahquioque Bank, 256. Bank of British N. A. v. Barling, 213. Bank of Commerce v. Stone, 410. V. Tennessee, 796. Bank of Kentuelgr v. Stone, 22, 24. Bank of Lewisburg v. Sheffey, 627, 659. Bank of Maysville v. Claypool, 814. Bank of United States v. Ritchie, 244. V. White, 298, 385. Bank of Winona v. Avery, 90, 269. Banks v. Manchester, 444, 463. Banks Law Pub. Co. v. Lawyers' Co-op. Pub. Co. 365. Barber v. Barber, 22. V. Boston & M. R. Co. 821. Barber Asphalt Paving Co. v. Morris, 18, 45, 410, 854. Barcus v. Gates, 295. V. Sherwood, 653. Bardon v. Land & River Improv. Co. 19, 257. Barling v. Bank of British N. A. 658, 669, 672, 680. Barlow v. Chicago & N. W. R. Co. 85, 92, 115, 804, 834. Barnes v. Berry, 237. V. Western U. Teleg. Co. 108, 310, 326, 333. Barnesville & M. R. Co. Re, 810. Barney v. Baltimore, 97, 226, 229, 232, 233, 435. V. Latham, 68, 297, 841. V. New York, 149. Barnhard Bros. & Spindler v. Morri- son, 44. Barr v. New Brunswick, 683, 684. Barrel v. Western Transp. Co. 701. Barren v. The Mohawk, 701. Barrett v. Twin City Power Co. 430, 431, 444, 445, 448. 450. Barron v. Burnside, 108, i09. V. The Mt. Eden, 581. Barrow v. Hunton, 629. Barrow S. S. Co. v. Kane, 74, 75, 85, 109, 112, 116, 318, 324. Barry, Re, 47. V. Edmunds, 171, 173, 175, 179, 195, 196, 576. V. Missouri, K. & T. R. Co. 251. Bartemeyer v. Iowa, 782, 783, 785. Barth v. Coler, 68, 842. Bartlett v. Gates, 861, 866. V. Sultan of Turkey, 509. Barton v. Barbour, 182. Basey v. Gallagher, 405. Basket v. Hassell, 722. Bass V. Christian Fiegenspan, 282, 356-358, 455. Bate Refrigerating Co. v. Gillette, 583, 589. Bates V. Carpentier, 68, 69, 193, 835, 837, 838. Batey v. Nashville, C. & St. L. R. Co. 72, 838. Batt V. Procter, 98, 335, 336, 340. Battle V. Atkinson, 170, 171, 174. Bavmigardner v. Bono Fertilizer Co. 326. Baumgarten v. Alliance Assur. Co. 832. Bausman v. Denny, 29, 243, 255, 475, 506. V. Dixon, 183, 870. Baxter, S. & S. Const. Co. v. Ham- mond Mfg. Co. 574, 800, 850. Bay City Iron Works v. Reeves & Co. 319, 320. Bayne v. Brewer Pottery Co. 621. Bayonne, The, 675. Beach v. Mosgrove, 392. Beals V. Cone, 772. Beamer v. Werner, 332, 658. Bean v. Clark, 426. V. Smith, 14. Beard v. Burts, 631. Beardsley v. Arkansas & L. R. Co. 702, 708, 723. Beattie v. Wilkinson, 340. Beavers v. Richardson, 282, 354, 361, 481. Beck & P. Lithographing Co. v. Wacker & B. Brewing & Malting Co. 661. Bedford Quarries Co. v. Tomlinson, 245, 246, 248. V. Welch, 172. Beebe v. Louisville, N. 0. & T. R. Co 477. V. Russell, 607. Beers v. Chicago, M. & St. P. R. Co. 28. Bein v. Heath, 299, 300. Bell V. Donohoe, 233, 235. V. Morrison, 529. Bellaire v. Baltimore & 0. R Co 866. Belmont Nail Co. v. Columbia Iron & Steel Co. 181. TABLE OF CASES. XXXlll Keloit V. Morgan, 24. Bender v. Pennsylvania Co. 662. Benedict v. Moore, 403. V. Williams, 882. Benjamin v. New Orleans, 220. Benner v. Hayes, 726, 745. Bennett v. Butterworth, 5, 16, 17, 170, 191, 882. V. Devine, 847. V. Fen ton, 100, 343. V. Hoefner, 387. Bensiek v. Thomas, 726. Bensinger Self-Adding Cash Register Co. V. National Qa.sh Regis- ter Co. 53, 94. Bent V. Hall, 274. Bentlif v. London & C. Finance Corp. 859. Benton v. Mcintosh, 315, 327, 330. Bergman v. Inman, 178, 179. Berkey v. Cornell, 5, 882. Berliner Gramophone Co. v. Seaman, 354, 355, 365, 369, 385, 507, 651, 655, 717. Bernard v. Abel, 610. Bernards Twp. v. Stebbins, 59, 216. Bernheim v. Birnbaum, 216. Berry v. Knights Templars' & M. Life Indemnity Co. 108. V. St. Louis & S. F. R. Co. 858. V. Sawyer, 437, 438. Bertha Zinc & Mineral Co. v. Vaughan, 211, 212. Berthold v. Hoskins, 192. Berwind v. Canadian Co. 403. V. Canadian P. R. Co. 242, 274. Besson v. Goodman, 444, 445. Betzoldt V. American Ins. Co. 87, 206, 359. Bibb V. Allen, 565, 568. Bicycle Stepladder Co. v. Gordon, 93, 409. Bien v. Robinson, 666. Big Creek Gap Coal & I. Co. v. Am- erican Loan & T. Co. 472. Bigler V. Waller, 720, 787. Big Six Development Co. v. Mitchell, 613. Bill V. Donohoe, 243. V. Western U. Teleg. Co. 240. Bimber v. Calivada Colonization Co. 240. Bingham v. Morris, 740. Bird v. Halsy, 517, 527, 548, 561, 565, 567, 568, 570. Birdsboro Steel Foundry & Mach. Co. V. Keley Bros. 63i. Birdseye v. Heilner, 425. BischoflFscheim v. Baltzer, 525, 535, 538, 561, 562. Bishop V. Averill, 270. V. Boston &, M. R. Co. 56. v. York, 274. Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. 640, 655, 710, 792, 795. Black V. Caldwell, 612. v. Henry G. Allen Co. 283. Blackburn v. Blackburn, 835, 838. V. Crawford, 566. V. Portland Gold Min. Co. 159. V. Sehna, M. & M. R. Co. 4. Blacklock v. Small, 64. Blaffer v. New Orleans Water Supply Co. 484, 486, 687, 688, 701, 706, 708, 709. Blair v. Chicago, 216. V. Silver Peak Mines, 438, 626. Blake, Re, 795, 796. V. McKinn, 63. Blalock V. Equitable Life Assur. Soc. 356. Blanchard v. Bigelow, 119. Bland v. Fleeman, 62, 65, 223, 224, 232, 235. Blanks v. Klein, 733, 742. Blanton v. Chalmers, 347, 431, 444, 452. Blassengame v. Boyd, 602, 663. Blease v. Garlington, 518, 549, 554, ' 556, 558, 589, 734, 738. Bliss V. Anaconda Copper Min. Co. 591, 593, 598, 600. Block V. Atchison, T. & S. F. R. Co. 321. Blodgett V. Lanyon Zinc Co. 109. Blood V. Morrin, 531. Bloomingdale v. Watson, 721, 729. Blossom V. Milwaukee & C. R. Co. 621, 661. Blue Ridge Clay & Retort Co. v. Floyd-Jones, 464. Blue Stone Bros. Re, 499. Blumenthal v. Craig, 56. Blunt V. Southern R. Co. 51, 800, 838, 839, 850. Blythe v. Hinckley, 258, 310, 314, 360, 386, 391, 392, 467, 470, 477, 480, 482, 496, 607, 610, 633, 634, 637, 670. Boardman v. S. S. McClure Co. 108, 112. Board of Trade v. Cella Commission Co. 186, 187, 189, 190. V. Hammond Elevator Co. 317, 668, 669. V. National Board of Trade, 272, 452. Boatmen's Bank v. Fritzlen, 230, 410, 806, 807, 831, 861. XXXIV TABLE OF CASES. Boatner v. American Exp. Co. 830, 831 879 Bock V. Perkins, 136, 137, 139. Boeshore, Re, 548. Bdlilander v. Heikes, 573. Boise Artesian Hot & Cold Water Co. V. Boise City, 26, 30. Boise County v. Gorman, 788. Bolin V. St. Louis Southwestern E. Co. 512. Bolles V. Lehigh Valley R. Co. 208. Bonner v. Meikle, 863, 865. Book V. Justice Min. Co. 258, 443, 469, 476, 477. Boone v. Chiles, 10, 540. Booth V. Clark, 256. V. St. Louis Fire Engine Mfg. Co. 110. Borgmeyer v. Idler, 160. Born V. Schneider, 486, 687. Bors V. Preston, 38. Boston & A. R. Co. v. Parr, 274, 355, 361, 363, 404. Boston & M. Consol. Copper & S. Min. Co. V. Montana Ore Purchasing Co. 30, 164-166, 257, 849. Boston & M. R. Co. v. Gokey, 668, 669, 678, 680. V. Hurd, 79. Boston Safe Deposit & T. Co. v. Rasine, 65, 121. Bostwick V. American Finance Co. 90. 327. Boswell V. Otis, 508. Bosworth V. Hook, 600, 602. V. St. Louis Terminal E. Asso. 727. Botter V. Beal, 607. Bottom V. National R. Bldg. & L. Asso. 184, 256. Bottoms V. St. Louis & S. F. E. Co. 853. Bound V. South Carolina R. Co. 617, 694. Bowden v. Bumham, 178, 197, 205, 206, 356. Bowdoin College v. Merritt, 55, 65, 253, 805. Bowen v. Christian, 31], 509, 510. Bower Barff Rustless Iron Co. v. Wells Rustless Iron Co. 432 443, 451. Bowers v. Atlantic, G. & P. Co. 92. V. New York L. Ins. Co. 271. Bowker v. United States, 657, 665, 668, 670. Bowling Green Trust Co. v. Virginia Pass & Power Co. 250, 473. Bowman v. Chicago & N. W. R. Co. 171, 179. V. Harris, 184, 255. Boyce v. Concho Cattle Co. 480. V. Grundy, 13, 22. Boyd, Ex parte, 287, 449. V. Gill, 251-253. V. Nebraska, 399. V. Schneider, 295. Boyer v. Keller, 287, 288, 430. Boyle V. Zacharie, 12. Bracken v. Neill, 608. V. Rosenthal, 291. V. Union P. R. Co. 335, 341. Braddock v. Louchheim, 277. Bradford, Re, 703. V. Southern R. Co. 703. V. Union Bank, 443, 473, 477. Bradley v. Ohio River & C. E. Co. 141, 163. Bradshaw v. Miners' Bank, 506. Brady (United States use of) v. O'Brien, 52. Bragdon v. Perkins-Campbell Co. 813. Braken v. Union P. E. Co. 345. Brande v. Gilchrist, 469, 475. Brandies v. Cochrane, 702. Braxton v. Eich, 501. Braxton County Court v. West Vir- ginia, 773. Brazoria County v. Youngstown Bridge Co. 401. Brewster v. Lanyon Zinc Co. 23. Brickill v. New York, 605. Bridge Proprs. v. Hoboken Land & Improv. Co. 136. Bridges v. Sheldon, 312, 599. Brigel v. Tug Eiver Coal & Salt Co. 57. Briggs v. Neal, 583, 585. V. Stroud, 246, 408-410, 415, 427. V. Traders' Co. 574. Brigham City v. Toltec Ranch Co. 637. Brigham-Hopkins Co. v. Gross, 178, 213. Brinckerhoff v. Holland Trust Co. 479, 484. Brinkley v. Louisville & N. E. Co. 283, 692, 701. Bristol T. United States, 703. Broadis v. Broadis, 84, 506. Broadmoor Land Co. v. Ciirr, 854. Broadway Ins. Co. v. Chicago G. W. R. Co. 826, 827, 843, 875, 878. Broderick's Will, 17, 246. Bronson v. Keokuk, 336. TABLE OF CASES. XXXV Bronson v. La Crosse & M. R. Co. 441, 479. V. Schulten, 391, 611, 623, 640, 757. Brookfield v. Hecker, 506. Brooks V. Bailey, 50. V. Burlington &. S. W. R. Co. 757. V. Clark, 70, 836, 841, 857. V. Farwell, 312. V. Laurent, 211, 285, 470, 505, 507, 851. V. O'Hara, 642. Brown v. Allebach, 183, 505. V. Arnold, 22, 510. V. Beacon, 211. V. Buena Vista County, 642. V. Coxe Bros. & Co. 71. T. Denver, 176. V. Ellis, 528, 529, 530, 555, 559, 565-567. V. Evans, 711, 714, 789. V. Fletcher, 377, 468, 577. V. Grove, 584, 585. V. Guarantee Trust & S. D. Co. 224, 291-294. V. King, 605. V. Lanyon Zinc Co. 794. v. McConnell, 690, 692, 702, 708, 709. V. McDonald, 286, 287, 288. V. Murray, Nelson & Co. 229, 808, 859. V. Northwestern Mut. L. Ins. Co. 707, 713. V. Pegram, 343. V. Pierce, 429, 430, 437, 451. V. Pond, 316. V. Schleier, 356. V. Smith, 161. V. Trousdale, 68. V. Wheelock, 318. V. Worster, 539, 546, 554. Brown, B. & Co. v. Lake Superior Iron Co. 10, 31, 33. Broyles v. Buck, 573. Bruce v. Manchester &, K. E. Co. 170. Brun V. Mann, 23, 24, 247. Brush Creek Coal & Min. Co. v. Mor- gan-Gardner Electric Co. 312. Bryant v. Thompson, 813. Bryant Bros. v. Robinson, 137, 300, 393, 401, 436, 803, 881, 882. Bryce v. Southern R. Co. 72, 831, 880. Buchanan v. Adkins, 26, 30. Bucher v. Cheshire B. Co. 17. Buck V. Colbath, 137, 502. Buckgaher v. Moore, 84. Buckhannon & N. R. Co. v. Davis, 184, 254. Buckles V. Chicago, M. & St. P. R. Co. 305. Bucklev V. Crane, 713. BuckstafF v. Russell & Co. 781. Buddicum v. Kirk, 535. Budzisz v. Illinois Steel Co. 160. Buel v. Farmers' Loan & T. Co. 662, 727. Buerk v. Imhaeuser, 281. Buffalo Glass Co. v. Manufacturers' Glass Co. 322. Buffalo Sandstone Brick Co. v. Am- erican Sandstone Brick Ma- chinery Co. 323. Buffington v. Harvey, 630. Building & L. Asso. v. Logan, 728. Bunel V. O'Day, 470, 478. Bunker Hill & S. Min. & Concentrat- ing Co. V. Oberder, 700. V. Shoshone Min. Co. 416. Burch V. Southern P. Co. 117, 852. Burden v. Comstock, 28. Burden v. Burden, 346. Burger v. Grand Rapids & I. E. Co. 105. Burgess v. Graffam, 356. Burget V. Robinson, 639, 756. Burgunder v. Browne, 812. Burk v. McCaffrey, 410. Burke v. Davis, 594, 596, 617. Burlington, C. R. & N. E. Co. v. Dunn, 804, 815, 827. V. Simmons, 660. Burlington Sav. Bank v. Clinton, 295. Burnham v. First Nat. Bank, 871. V. North Chicago Street E. Co. 733, 734, 736, 743, 794. Burns v. Eosenstein, 663. Burrell v. Hackley, 420. Burt V. Smith, 775. Burton v. Driggs, 594. V. Huma, 612. V. Smith, 227. Busey v. Smith, 178, 195. Bushnell v. Cooke Min. & Smelting Co. 627 Bushnell v. Crook Min. & Smelting Co. 160, 757. V. Kennedy, 211. V. Park Bros. 82. Butchers' & D. Stockyards Co. v. Louisville & N. R. Co. 123, 189. Butler V. Gage, 782, 783. V. National Home, 273. V. Shafer, 160. XXXVl TABLE OF CASES. Butler Bros. Shoe Co. v. United States Rubber Co. 109, 463, 834. Butt V. United States, 687, 703. Butte & B. Consol. Min. Co. v. Mon- tana Ore Purchasing Co. 518 548 549. Butters v. Carney, 191, 200, 203, 205. Butterworth v. Hill, 329. Buzard v. Houston, 23, 26, 28. Byers v. McAuley, 41, 43, 245-249. V. Sugg, 480. C. Cabaniss v. Eeco Min. Co. 482. Cable V. Ellis, 871, 872. Cady V. Associated Colonies, 818, 859, 860. Caesar v. Capell, 113, 114. Cald&rhead v. Downing, 818, 821, 823, 836, 859. Caldwell v. Firth, 126, 284. Caledonian Coal Co. v. Baker, 309. California v. San Pablo & T. R. Co. 726. v. Southern P. Co. 38, 228, 229, 560. California Nat. Bank v. Stateler, 606, 660. California Oil & Gas Co. v. Miller, 136, 159, 160. 843. California T>r,\v.'nv ^^'orks v. Davis, 134, 153, 777. Calivada Colonization Co. v. Hays, 437, 440, 441. Callaghan v. Myers, 602. Callahan v. Hicks, 332, 350, 351. Calloway v. Dobson, 358. Camden v. Mayhew, 621. V. Stuart, 602. Cameron v. M'Roberts, 225. V. W. M. Jones & B. Mach. Works, 319. Cameron Lumber Co. v. Droney, 288. Cammeyer v. Durham House Drain- age Co. 391. Camors-McConnell Co. v. McConnell, 10, 45. Campbell v. Duluth, S. S. & A. E. Co. 86, 105, 115. V. Golden Cycle Min. Co. 505, 506, 670, 680, 682. V. James, 611. T. Milliken, 863. V. New York, 366, 373, 577. Campbell Printing Press & Mfg. Co. V. Manhattan Elev. R. Co. 446. Camp Mfg. Co. v. Parker, 631, 633, 634, 635, 638. Canadian P. R. Co. v. Wenham, 126, 129. Canadian Southern R. Co. v. Geb- hard, 75, 76. Canal & C. Streets R. Co. v. Hart, 802. Cannon v. United States, 796. Can Pon, Re, 682. Capital Nat. Bank v. First Nat. Bank, 154. Caples V. Texas & P. R. Co. 843. Carey v. Brown, 55, 250, 251, 259, 262, 435. V. Houston & T. C. R. Co. 492, 605, 506, 675, 677, 679, 680, 746, 747. Carey Case. See Caret v. Hottston & T. C. R. Co. Carino v. Insular Government, 644. Carlisle v. Sunset Teleph. & Teleg. Co. 803, 830, 836, 858, 865, 875, 878. Carlsbad v. Tibbetts, 281, 575. Carnegie v. Hurlburt, 82. Carnegie P. & Co. v. Hulbert, 206. Carnochan v. Christie, 475. Carothers v. McKinley Min. & Smelt- ing Co. 68, 193, 877. Carp V. Queen Ins. Co. 842, 850. Carpenter v. Chicago, M. & St. P. R. Co. 865. V. Northern P. R. Co. 163, 182, 183, 255, 506. V. Strange, 162, 613. V. Talbot, 98, 100. Carr v. Fife, 197, 204. V. Kansas City, 71. Carrara Paint Agency Co. v. Carrara Paint Co. 514. Carrau v. O'Calligan, 246. Carrick v. Landman, 846. Carroll v. Chesapeake & O. Coal Agency Co. 64. Carson v. Combe, 656, 756. v. Dunham, 133, 136, 155, 156, 272, 806, 826, 856, 865, 867. v. Hyatt, 827. Carson & R. Lumber Co. v. Holtz- claw, 865. Carter v. New Orleans, 489, 491. V. Roberts, 671, 672, 677, 681, 683. V. Texas, 3. V. Thompson, 258. Carter-Crume Co. v. Purrrni", 118 333. Carver, Re, 594. TABLE OF CASES. XXXVll Carver v. Jarvis-Conklin Mortg'. Trust Co. 837. Cary Mfg. Co. v. Acme Flexible Clasp Co. 646, 758, 767, 768. Case V. Olney, 823. V. Smith L. & Co. 859, 860. Casey v. Cavaroc, 10. Cass County v. Gibson, 700. Cassidy v. Atlanta & C. Air Line E. Co. 877. Caatello v. Castello, 342. Castillo V. McConnico, 772. Cates V. Allen, 5, 18, 19, 878, 886. V. Producers & C. Oil Co. 160. Cavanagh v. Manhattan Transit Co. 312. Cavender v. Cavender, 432, 439, 462, 465. Cay v. Vereen, 662. Caylor v. Cooper, 65, 229, 232, 250. Cedar Valley Land & Cattle Co. v. Coburn, 366. Cella V. Brown, 69, 277, 285, 291, 759, 760, 761, 814, 822, 826, 829, 837, 843. Celluloid Mfg. Co. v. Cellonite Mfg. Co. 594, 595, 598. Cely V. Griffin, 102, 311, 334. Central Appalachian Co. v. Buch- anan, 472. Central Grain & Stock Exchange v. Board of Trade, 322, 324, 755. Central Land Co. v. Laidley, 771. Central Nat. Bank v. Fitzgerald, 248, 249, 293. V. Stevens, 501. Central K. Co. v. McLendon, 150. V. Macon, 148. V. Railroad Commission, 150. Central Trust Co. v. Benedict, 234. V. Bridges, 508. V. Carter, 491, 492. T. Cincinnati, H. & D. K. Co. 478, 484. V. Continental Trust Co. 690, 717. V. East Tennessee Land Co. 601. V. East Tennessee, V. & G. R. Co. 182, 869. T. Evans, 638. V. Georgia P. K. Co. 604, 005, 725. y. Grant Locomotive Works, 633, 635, 725. T. McGeorge, 51, 94, 115, 117, 130, 333, 409. v. Madden, 488. V. Marietta & N. G. E. Co. 604. y. Richmond & T>. E. Co. 604. Central Trust Co. v. Sheffield & B. Coal, Iron & R. Co. 591. V. United States Flour Mill Co. 492. V. Virginia T. & C. Steel & I. Co. 50, 106, 115, 332. V. Western North Carolina E. Co. 364, 499, 500, 501. V. Worcester Cycle Mfg. Co. 625. Chadbourne v. Coe, 230, 232. Chadeloid Chemical Co. v. Chicago Wood Finishing Co. 589. Chadwick, Ex parte, 783. V. Kelly, 778. Chaffin V. Hull, 284. V. Taylor, 793, 794. Chamberlain v. Bittersohn, 315. V. Mensing, 307. V. Peoria, D. & E. E. Co. 630, 633, 634, 675. Chamberlain Transp. Co. v. South Pier Coal Co. 702, 719, 730. Chambers v. Baltimore & O. E. Co. 775. V. Cannon, 27. V. McDougal, 846. V. Prince, 93, 121, 126. Champlain Constr. Co. v. O'Brien, 813, 814, 819, 822. Chandler v. Pomeroy, 593, 601. Chapman v. Atlantic Trust Co. 727. V. Barney, 82, 356. V. Brewer, 19. V. Crane, 157. V. Goodnow, 157- V. Yellow Poplar Lumber Co. 365, 656, 792. Chapin v. Fye, 772, 775. V. Walker, 442, 472. Chappell V. United States, 665, 668, 673, 675, 679, 742, 743. V. Waterworth, 139, 143, 152, 153, 276, 826, 877. Charman v. Lake Erie & W. E. Co. 830, 841, 880. Chase v. Beech Creek R. Co. 873. V. Driver, 659-661. v. Sheldon Roller-Mills Co. 178, 213. Chase Electric Constr. Co. v. Colum- bia Constr. Co. 283, 354. Chatfield v. Bogle, 177. Chauncey v. Dyke Bros. 602. Chavent v. Schefer, 612. Cheney v. Bacon, 699. Cherokee Nation v. Blackfeather, 726. V. Southern Kansas E. Co. 28, 578. XXXVlll TABLE OF CASES. Chesapeake & D. Canal Co. v. Gring, 187. Chesapeake & 0. Coal Agency Co. v. Fire Creek Coal & Coke Co. 187. Chesapeake & 0. K. Co. v. DixoUj 72, 839, 84]. V. McDonald, 77.3, 774. V. McGabe, 807. V. White, 804. Chesapeake & O. S. W. E. Co. v. Smith, 869. Chester v. Life Asso. of America, 364, 374, 377, 379, 488, 489, 490. Chetwood, Re, 500, 762. Chiatovich v. Hanchctt, HOU, 820. Chicago, Ee, 849. V. Bigelow, 755. V. Mills, 578, 674. Chicago & A. Bridge Co. v. Anglo American Packing &. P. Co. 813. Chicago & A. R. Co. v. Union Rolling Mill Co., 349, 350. Chicago & N. W. R. Co. v. Whitton, 75, 79, 80. Chicago & 0. River R. Co. v. Mc- Cammon, 608. Chicago & P. R. Co. v. Blair, 717. Chicago, B. & Q. R. Co. v. Chicago, 3, 149, 150, 154, 157, 644. V. Williams, 759, 760. Chicago Dollar Directory Co. v. Chi- cago Directory Co. 708, 709, 731. Chicago Grain Door Co. v. Chicago, B. & Q. R. Co., 365. Chicago G. W. R. Co. v. Egan, 752. Chicago L. Ins. Co. v. Needles, 157, 167. Chicago Lumber Co. v. Comstock, 268. Chicago, M. & St. P. R. Co. v. Clark, 601. V. Evans, 683. V. Minnesota, 149. V. Third Nat. Bank, 473, 475, 481. Chicago R. Co. v. Chicago, 149. Chicago R. Equipment Co. v. Perry- side Bearing Co., 291. Chicago, R. I. & P. R. Co. v. Lud- wig, 150. V. Martin, 67, 140, 163, 183, 254, 646, 835, 838, 844. V. Stepp, 805, 809, 840. T. Swanger, 770. Chicago, St. L. & N. 0. R. Co. v. Macomb, 279, 401. Chicago, St. P. M. & 0. R. Co. r. Roberts, 662. Chickaming v. Carpenter, 217. Chicot County v. Sherwood, 399. Childs V. Ferguson, 378. V. N. B. Carlstein Co., 433, 437, 440, 441. Chishobn v. Georgia, 37. V. Johnson, 296, 413, 41G, 423. Choctaw, O. & G. R. Co. v. HoUoway, 756. Christian v. Atlantic & N. C. R. Co., 232. Christie v. Davis Coal & Coke Co., 321. Church V. Citizens' Street R. Co., 242, 290, 293. Church of Jesus Christ of L. D. S. V. United States, 849. Cilley, Re, 246, 826, 848, 850. V. Patten, 55, 63, 65, 246, 578. Cimiotti Unhairing Co. v. American Fur Ref. Co., 600, 601. V. Bowsky, 604. Cincinnati, H. & D. R. Co. v. ITiie- baud, 677, 678. Cincinnati, N. O. & T. P. K. Co. v. Bohon, 880. Cincinnati Street R. Ca v. Snell, 149. Citizens' Bank v. Cannon, 176-178, 186, 188, 580. Citizens' Sav. & T. Co. v. Belleville & S. L. R. Co., 11. Citizens' Sav. Bank v. Newburvport, 214. City Nat. Bank, Re, 706. V. Hunter, 796. City R. Co. V. Citizens Street R. Co., 135, 147, 167. Claasen, Re, 710. Claiborne v. Waddell, 63, 231. Clark V. Barnard, 81. v. Bernhard Mattress Co., 351. V. Guy, 247, 803. V. Keith, 797. V. McGhee, 656. V. Patton, 705. V. Smith, 19. V. Southern P. Co.. 853. V. Riemsdyk, 438, 439. V. Wells, 860. V. Wooster, 25, 27, 28. Clarke v. Eastern Bldg. & L. Asso., 241. V. Eureka County Bank, 4S8, 489, 403, 494, 709. V. McDade, 773. V. Mathewson, 377, 379. V. White, 438. TABLE OF CASES. XXXIX Clarkson v. Manson, 821, 847. Clason V. Morris, 388. Clausen v. American Ice Co., 48, 269. Clay V. Field, 176, 177, 186, 188, 194. Clearwater v. Meredith, 226. Cleaver v. Traders' Ins. Co., 813. Clement v. Louisville R. Co., 196. Clements v. Moore, 438. Cleveland v. Cleveland, C. C. & St. L. R. Co., 70, 71, 838, 862. V. Cleveland City R. Co., 148. V. United States, 584, 586. Cleveland Tel. Co. v. Stone, 224. Clews v. Woodstock Ins. Co., 114, 331. Cloud V. Sumas, 214. Clyde V. Richmond & D. R. Co., 253, 492, 605. Coates V. Merrick Thread Co., 525, 543. Coburn v. Cedar Valley Land & Cat- tle Co., 374, 443, 476, 803. Cochran v. Montgomery County, 850, 861, 862, 863. Cockcroft, Ex parte, 724. Cocke V. Copenhaver, 630, 633. Coe v. East & W. R. Co., 687. C(Eur D'Alene R. & Nav. Co. v. Spalding, 805, 810. Coffin V. Haggin, 59, 578, 579. V. Philadelphia, W. & B. R Co., 846, 847. Cohen, Re, 504. V. Portland Ix)dge No. 142 B. P. 0. E., 314. V. Virginia, 37, 133, 136. Coiron v. Milaudon, 232, 234. Coit V. North Carolina Grold Amal- gamating Co., 474. V. Sullivan-Kelly Co., 290. Coke V. Copenhaver, 687. Coker v. Monaghan Mills, 804, 806, 807, 809, 815, 840. Colburn v. Hill, 69, 70, 837, 878. Colby V. Cleaver, 109. Cole T. Cunningham, 614. Coler V. Grainger County, 211. V. Stanley County, 16, 24. Colgate V. Compagnie Francaise du Telegraphe, 286, 287, 441, 442, 450, 454. V. Western U. Teleg. Co., 625. Collier, Re, 702. V. Mutual Reserve Fund Life As- so., 318. Collin County Nat. Bank v. Hughes, 615. Collins V. American Spirit Mfg. Co., 322, 330, 331, 859. Collins V. Ashland, 57, 120, 121, 122, 126. V. Campbell, 864, 865. V. Stott, 118, 818, 819, 820, 875, 876. Collins Mfg. Co. v. Ferguson, 233, 435. Collinson v. Jackson, 181, 356. Colorado Cent. Consol. Min. Co. v. Turck, 134, 143, 165, 276, 766. Colorado Midland R. Co. v. Jones, 854. Colston v. Southern Home Bldg. & L. Asso., 177, 502. Colt v. Colt, 248. Coltrane v. Baltimore Bldg. & L. As- so., 620. Columb V. Webster Mfg. Co., 702. Columbia, The, 723. Columbian Equipment Co. v. Mercan- tile Trust & D. Co., 585. Columbia Real Estate Co., Re, 726. Columbia Valley R. Co. v. Portland & S. R. Co., 360, 361. Columbia Water Power Co. v. Co- lumbia Electric Street R., Light & P. Co., 155, 156, 772, 773. Columbia Wire Co. v. Boyce, 651, 652. Columbus Chain Co. v. Standard Chain Co., 689, 690, 691, 703. Columbus Constr. Co. v. Crane Co., 673. Columbus R. Co. v. Patterson, 556, 567. Columbus Safe Deposit Co. v. Burke, 699, 700. Columbus, S. & H. E. Co.'s Appeal, 593, 601. Columbus Watch Co. v. Robbins, 760. Colvin V. Jacksonville, 185, 673, 675, 676. Comer v. Felton, 161, 255. Comforts, The, 756. Comitis v. Parkerson, 84. Comly v. Buchanan, 392. Commercial & R. Bank v. Slocomb, 73. Commercial Bank v. Sandford, 293, 469, 476. Commercial Mut. Acci. Co. v. Davis, 112. 668, 669. Commonwealth Title Ins. * T. Co. v. Cnmmings, 429, 451, 472, 473, 475. Compania Azucarera Cubana v. In- graham, 535, 538, 570. xl TABLE OF CASES. Compton V. Jessup, 98, 101, 184, 255, 341, 476, 477, 491, 492, 494, 495, 505, 506, 725. Computing Scale Co. v. Moore, 400, 401, 415, 416, 420. Comstock V. Herron, 452. Concord Coal Co. v. Haley, 827, 872. Condon v. Central Loan & T. Co., 687, 688. Cone V. Tuscaloosa Mfg. Co., 113. Confectioners' Machinery & Mfg. Co. V. Racine Engine &, Mach. Co., 357, 612. Conley v. Mathieson Alkali Works, 322, 859. V. Nailor, 433, 437, 440. Conn V. Cliicago, B. & Q. R. Co., 211, 212. Connecticut ex rel. New York A N. E. R. Co. V. WoodruflF, 772, 774. Connecticut F. Ins. Co. v. Oldendorff, 687, 703. Connecticut Mut. L. Ins. Co. t. Sprat- ley, 108, 112, 113, 317, 320, 322, 323. V. Union Trust Co., 515. Connell v. Smiley, 69, 608, 818. Connolly v. Union Sewer Pipe Co., 666. Connor v. Alligator Lumber Co., 255, 506. V. Tennessee C. R. Co., 344. Conolly V. Taylor, 87. V. Wells, 226, 232, 249, 259. Conqueror, The, 761, 764. Consolidated C. & V. Min. go. v. Baker, 605. Consolidated Fastener Co. v. Colum- bian Button & Fastener Co., 546, 589. Consolidated Roller-Mill Co. v. Combs, 34. Consolidated Store-Service Co. v. Lamson Consol. Store-Serv- ice Co., 76. Consolidated Water Co. v. Babcock, 49, 51, 63, 224. V. San Diego, 149, 224, 241, 253. Consumers' Cotton Oil Co. v. Nichol, 724. Consimiers' Gas Co. v. Quinby, 242. Continental Adjustment Co. v. Cook, 119, 243. Continental L. Ins. Co. v. Rlioads, 56, 121, 196. Continental Nat. Bank v. Burford, 84, 755. V. Heilman, 248, 441, 442, 483. ' Continental Securities Co. v. Inter- borough Rapid Transit Co., 403. Continental Trust Co. v. Toledo, St. L. & K. C. R. Co., 256, 300, 470, 495, 505, 506, 507, 582, 637, 638, 640, 738, 794. Converse v. Michigan Dairy Co., 296. Conway v. Third National Bank, 725. Cook V. Burnley, 529, 555, 568. V. Lasher, 724. Cooke V. Avery, 135, 136, 148, 155, 156, 159. Cooley V. Luco, 38. V. McArthur, 832. Coon V. Abbott, 539. Coonrod v. Kelly, 437, 440, 441. Coop V. Sterling Electric Co., 420. Cooper V. Brazelton, 113. V. Newell, 501. V. Newton, 505. V. Preston, 193, 416. V. Reynolds, 502. Cooper Bros., Re, 394, 403, 422. Cooper Mfg. Co. v. Ferguson, 114. Co-operating Merchants' Co. v. Hal- lock, 655. Coosan Min. Co. v. Farmers' Min. Co., 539. Coosaw Min. Co. v. South Carolina, 882. Copeland v. Bruning, 246, 247, 629, 634, 635, 848. Copland v. Waldron, 723, 724, 754. Copies v. Texas & P. R, Co., 856. Copper River Min. Co. v. McClellan. 692, 695. Corbin v. Black Hawk County, 211, 212. v. Taussig, 28. Corbus V. Alaska Treadwell Gold Min. Co., 240. V. Leonhardt, 515. Corcoran v. Chesapeake & O. Canal Co., 476. Corkran Oil & Development Co. v. Arnaudet, 776. Cornell v. Green, 273, 312, 314, 399, 698. Cornett v. Williams, 572. Cortes Co. v. Thannhauser, 311, 509, 510, 561, 562. Corwin Mfg. Co. v. Henrici Washer Co., 875. Cosmopolitan Min. Co. v. Walsh, 666, 668. Cosmos Exploration Co. v. Gray Eagle Oil Co., 25, 28. Coster v. Parkersburg Branch E. Co , 183. TABLE OF CASES. xli Gotten V. Fidelity & C. Co., 358. Cottiag V. Kansas City Stock- Yards Co., 149. Cottle V. Krementz, 424. Coulliette v. Thomason, 688, 696, 703. Coulter V. Fargo, 185. Cound V. Atchison, T. & S. F. R. Co., 91, 767. Courtney v. Pradt, 668. Covel V. Chicago, R. I. &. P. R. Co., 126. Covert V. Waldron, 64, 467. Covington, Re, 593. V. First Nat. Bank, 607, 767. Covington Stock Yards Co. v. Keith, . 710. Cowell V. City Water-Supply Co., 94, 100, 169, 176, 177, 185, 192, 193, 851, 852. Cowley V. Northern P. E. Co., 18, 19, 825, 874. Cox V. Gilmer, 164. Crabtree v. McCurtain, 698. V. Madden, 680. Craig V. Dorr, 470, 476, 482, 508. V. Smith, 632. Craighead v. Wilson, 657, 660. Cramer v. Singer Mifg. Co., 91, 107. Crane v. Buckley, 713. Crane Co. v. Guanica Centrale, 827. Craven v. Canadian P. R. Co., 640, 642. Crawford v. Foster, 326, 329. v. Illinois C. E. Co., 830. V. McCarthy, 665, 667. V. Moore, 279. V. Neal, 59, 180, 221, 600, 601, 603. Creagh v. Equitable Life Assur. Soc, 71, 85, 86, 118, 126, 833, 852. Creath v. Sims, 10. Credit Co. v. Arkansas C. R. Co., 689, 703. Creditors' Commutation Co. v. Unit- ed States, 726, 727. Credits Commutation Co. v. United States, 484, 485, 486, 873. Crehore v. Ohio & M. R. Co., 220, 272, 804, 806, 807, 855. Creighton v. Kerr, 326, 332, 333. Crescent City L. S. L. & S. H. Co. v. Butchers' Union L. S. L. & S. H. Co., 393, 394. Crocker-Wheeler Co. v. Bullock, 518, 519, 549, 550, 551, 553. Crocket v. Lee, 609, 010. Cromwell v. Sac County, 612. Crosby v. Cuba R. Co., 269. Cross V. Allen, 59. V. De Valle, 470, 471. V. Evans, 57, 760. V. Morgan, 458. Crotts V. Southern R, Co., 801, 864, 865, 866. Crouch V. Kerr, 444, 445. Crowley v. Southern R. Co., 826. Crown Cork & Seal Co. v. Standard Brewery, 123. v. Standard Stopper Co., 654. Crump v. Thurber, 234. Crystal Springs Land & Water Co. V. Los Angeles, 160, 162, 165, 166. Cudahy v. McGeoch, 86, 832. Cudahy Packing Co. v. Sioux Nat. Bank, 601. Cumberland Lumber Co. v. Tunis Lumber Co., 615, 619. Climmings v. Chicago, 666, 667, 777. Cunningham v. Cleveland, 505, 507. V. German Ins. Bank, 734, 742. Curnow v. Phoenix Ins. Co., 864. Curran v. Campion, 224, 294. Curry v. MeCauley, 33. Curtis Davis & Co. v. Smith, 364, 373. Cutter v. Iowa Water Co., 280, 284, 285, 291, 293, 643. Cutting, Ex parte, 484, 724, 727. v. Florida R. & Nav. Co., 594. V. Tavares, O. & A. R. Co., 626, 736, 737. Cuyler v. Atlantic & N. C. R. Co., 654. Cyclone Min. Co. v. Baker Light & P. Co., 112. D. Dago, The, 757. Daincse v. Kendall, 608. Dakin v. Union P. R. Co., 28, 436. Dakota County v. Glidden, 726. Dalton V. Germania Ins. Co., 855. v. Milwaukee Mechanics Ins. Co., 267, 855. Dalzell V. Dueber Watch Case Mfg. Co., 425. Danahy v. National Bank, 84. Danceiger v. Wells, 90. Dancel v. Goodyear Shoe Machinery Co., 550-553, 608, 820. V. United States Shoe Machin- ery Co., 316, 883. Daniels v. Benedict, 249, 42], 427, 438. V. Chicago & R. I. R. Co., 38. xlii TABLE OF CASES. Danielson v. Northwestern Fuel Co., 787. Danville v. Brown, 648, 787. Darragh v. H. Wetter Mfg. Co., 19. Dartmouth College v. International Paper Co., 586, 590. Dashiel v. Grosvenor, 277. Dastervighes v. United States, 225. D. A. Tompkins Co. v. Catawba Mills, 18, 55, 253. Daugherty v. Bogy, 756. V. Sharp, 845, 849. V. Western U. Teleg. Co., 817, 818. Davenport v. Dowa, 241. V. Fletcher, 706. V. Prince, 253. V. Southern R. Co., 839, 840, 841, 842. Davidson v. Calkins, 258. v. Lanier, 708, 720. V. New Orleans, 2. Davidson Bros. Marble Co. v. United States, 92. Davie v. Heyward, 204. Davies v. Corbin, 194. ' v. Wells, 845. Davis V. Berry, 284. V. Cleveland, C. C. & St. L. E. Co., 665, 669, 674, 859. V. Davis, 17, 231, 247, 248, 546, 548, 550, 551, 882. v. Geissler, 668, 673. v. Gray, 18. V. Harris, 818. V. Kansas City, S. & M. B> Co., 206. V. Mercantile Trust Co., 234, 021, 722, 724, 729. V. Mills, 178, 208, 220. V. Patrick, 713, 714. V. St. Louis & S. F. R. Co., 813. T. Schwartz, 601, 603. V. South Carolina, 140. V. Speiden, 633. V. Wakelee, 708, 709, 720. Davis & F. Mfg. Co. v. Los Angeles, 148, 666, 678, 679, 683, 684. Davis & E. Bldg. & Mfg. Co. v. Bar- ber, 658, 665, 670, 673, 683. Dawson v. Columbia Ave. Sav. Fund S. D. Title & T. Co., 62, 64. V. Poston, 566. Day V. Woodworth, 196. Dayton v. Lash, 720, 786. Dean v. Nelson. See Thompson v. Dean, d' Auxy v. Porter, 97. DeCastro v. Compagnie Francaiee Du Telegraphe, 323. Deck V. WlMtmau, 100, 343. Decker v. Williams, 170. Dederick v. Fox, 31. Deepwater R. Co. v. Western Poca- hontas Coal & Lumber Co.^ 841. Deere v. Chicago, M. & 9t. P. E. Co., 72. Deering Harvester Co. v. Kelly, 697. Defer v. DeMay, 658. Defiance Water Co. v. Defiance, 148, 198,221,410, 755. Deford v. Mehaflfy, 803. De Forest v. Thompson, 30, 56, 248, 366. De Hierapolis v. Lawrence, 86, 100. L 'Deitcfi v.'staub,'606, 626~ Deitzseh v. Huidekoper, 805, 809. De Kuyper v. Witteman, 190. De Lamar's Nevada Gold Min. Co. v> Nesbitt, 159. De La Montanya v. De La Montayna, 855. Delaware & H. Co. v. Albany & S. B., Co., 240. Delaware City S. & P. S. B. Nav. Co> V. Eeybold, 154, 774. Delaware, L. & W. R. Co. v. Frank, 29, 62, 186, 187, 296, 837. DeLay v. Travelers Ins. Co., 267. Delbanco v. Singletary, 810, 818. Delmar Jockey Club v. Missouri, 778. Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 760. De Neufville v. New York & N. R Co., 242. Denison v. Shawmut Min. Co., 813. Denison Mfg. Co. v. Scharf Tag, Label & Box Co., 404. Dennison v. Brown, 865. Dennison Co. v. Thomas Mfg. Co.- 291, 295, 399. Denny v. Bennett, 305. V. Pironi, 269, 271. Densmore v. Three Rivers Mfg. Co.,. 161. Denton v. Baker, 256. V. International Co., 86, 115. Denver v. Sherrett, 126. Denver & R. G. E. Co. v. Ristine, 601. V. Roller. 318, 320, 321, 322. Denver City Tramway Co. v. Norton.. 172. Deprez v. Thompson Houston Elec- tric Co., 298. Deputron v. Young, 676. TABLE OF CASES. xliii Derk. P. Youkerman Co. v. Charles H. Fuller's Advertising Agency, 83. DeEoux V. Girard, 515, 554, 589. Desert King Min. Co. v. Wodekind, 34, 123, 305, 412. Deahler v. Dodge, 217. Despeaux v. Pennsylvania E. Co., 514, 530, 531, 571. Detroit v. Dean, 55, 240, 242, 578. V. Detroit City E. Co., 349, 350, 846, 866, 882, 884. *. Guaranty Trust Co., 723, 724, 729. Detroit, Ft. VV. & B. L E. Co. v. Osborn, 777. Detweiler v. Holderbaum. 97. De Valla Da Costa v. Southern P. Co., 853. Devere v. Delaware, L. & W. R. Co., 318. Devine v. Los Angeles, 159, 100, 166. Dewey v. Des Moines, 154, 158, 157. V. Stratton, 642. Dewey Min. Co. v. Miller, 135, 843. Dexter H. & Co. v. Say ward, 219, 220. Dial v. Eeynolds, 293. Diamond Coal & Coke Co. v. Allen, 569, 570. Diamond Drill & Mach. Co. v. Kelly Bros., 554. Diamond Glue Co. v. United States Glue Co., 114. Dibble v. Bellingbam Bay Laud Co., 775. Dick v. Foraker, 54, 100, 340. Dickerman v. Northern Trust Co., 216, 471, 476. Dickinson v. Consolidated Traction Co., 207, 243, 360. V. Union Mortgage Bkg. & T. Co., 192. V. United States, 758, 760. Diday v. New York P. & O. E. Co., 821, 836, 858. Dillard v. Central Virginia Iron Co., 376. Dillingham v. Hawk, 13, 254, 255. Dillon V. Barnard, 273, 399. Dinet v. Delavan, 855. Dinsmore v. Central E. Co., 412. V. Southern Exp. Co., 29. Dinzy v. Illinois C. E. Co., 91, 107, 108, 114, 317, 321. Dishon v. Cincinnati, N. 0. & T. P. E. Co., 836, 840. Dishong v. Finkbiner, 273. Dixon V. Western U. Teleg. Co., 819. Doan V. American Book Co., 097. Doane v. Glenn, 529, 568. Doctor V. Harrington, 240. Dodd V. Ghiselin, 56, 248, 249. V. Louisville Bridge Co., 78, 79. Dodge V. Knowles, 690, 716. V. Norlin, 647, 738. V. TuUays, 251. Dodson V. Fletcher, 722. Doe V. Waterloo Min. Co., 611, 640, 697. Dolan V. Jennings, 723, 725, 748. Dominion Nat. Bank v. Olympia Cot- ton Mills, 53, 119. Donahue v. Calumet Fire Clay Co., 326, 331, 817, 822. V. Roberts, 529. Donallan v. Tannage Patent Co., 744. Donnelly v. United States Cordagu Co., 269. Donovan v. Campion, 229, 230, 231. V. Di.vieland Amusement Co., 846. V. Salem & P. Nav. Co., 703. V. Wells F. & Co., 802, 806, 807. Doremus v. Root, 71, 72, 830, 858. Dormitzer v. Illinois & St. L. Bridge Co., 64. Doss V. Tyack, 623. Dougherty v. Atchison, T. & S. F. E. Co., 839. v. Yazoo & M. Valley E. Co., 69. Douglas V. Butler, 239. V. Wallace, 578. Douglas Co. V. Stone, 185, 193. Dover v. Greenwood, 569. Dow v. Bradstreet Co., 807, 815, 830. Dowagiac Mfg. Co. v. Brennan, 732. V. Lochren, 549, 583. V. McSherry Mfg. Co., 629, 632. Dowell V. Applegate, 44, 404. V. Mitchell, 28, 133. Dower v. Eichards, 134, 644. Dows V. Chicago, 482. Doyle V. Wisconsin, 788. Dr. Miles Medical Co. v. Snellen- burg, 452, 453. Draper v. Davis, 709, 789. V. Skerrett, 189. Dravo v. Fabel, 440. Dubuque & P. E, Co., Ex parte, 792, 794. Duchesse d'Auxy v. Porter, 232, 233. Dudgeon v. Watson, 263, 417. Dudley v. Lake County, 676. Duff V. Hopkins, 10. Dufour V. Lang, 603, 689, 696, 698. Dull V. Blackman, 613. xliv TABLE or CASES. Dulles V. H. D. Crippen Mfg. Co., 208, 210. Duncan v. Associated Press, 86, 94, 332 852 V. Atlantic, M. & O. R. Co., 620, 633, 688. V. Gegan, 813. Dundee Mortg. & T. Invest. Co. t. Cooper, 561. Dunlevy v. Dunlevy, 480, 634. Dunn, Ke, 104, 111, 143, 145, 868. Dunn V. Clarke, 509. Duplex Printing-Press Co. v. Camp- bell Printing-Press & Mfg. Co., 655. Du Pont V. Abel, 29, 343, 860, 886. Dupree v. Frank, 16. r. Leggette, 196, 401. V. Mansur, 162. Durant v. Essex Co., 351, 579, 038, 792, 794. V. Storrow, 638, 792, 794. Durkee v. Illinois C. R. Co., 831, 875. Dwight V. Central Vermont R. Co., 259, 417, 418. V. Merritt, 315, 316. E. Eachus V. Hartwell, 185, 189. Eagle Oil Co. v. Vacuum Oil Co., 426, 427. E. A. Holmes & Co. v. United States F. Ins. Co., 845. Earl V. Southern P. Co., 92. Earle v. Art Library Pub. Co., 438, 439. V. Chesapeake & 0. R. Co., 322. V. McCartney, 184, 612. V. McVeigh, 310, 314. Earll V. Metropolitan Street R. Co., 427. Eastern Bldg. & L. Asso. v. Denton, 290, 293. V. Welling, 776. East Lake Land Co. v. Brown, 139, 276. Easton v. Houston & T. C. R. Co., 607, 611, 623, 624. East Tennessee, V. & G. R. Co. v. At- lanta & F. R. Co., 102. V. Southern Teleg. Co., 720. Eaton V. Hoge, 176. Eau Claire v. Payson, 220, 607, 658, 659, 661. Ebell V. Bursinger, 252. Eberly v. Moore, 455. Ebner v. Zimmerly, 349. Ecaubert v. Appleton, 569. Eddy V. Casas, 832, 850. Eddy V. Eddy, 247, 248. V. Lafayette, 118, 332. Edgell V. Felder, 233, 243, 329, 586, 605, 661, 727. Edinburgh American Land Mortg. Co. V. Brigga, 330. Edison v. Thomas & Edison, Jr., Chemical Co., 398, 399. Edison Electric Co. v. Westinghouse, C. K. & Co., 543, 561. Edison Electric Light Co. v. United States Electric Lighting Co., 551. Edmonson v. Bloomshire, 313, 702, 708, 730, 750. Edmunds v. Illinois C. R. Co., 44, 92, 212. Edward Hines Lumber Co. (United States use of) v. Hender- long, 36. Edward P. Allis Co. v. Withlacoo- chee Lumber Co., 404, 428. Edward Thompson Co. v. American Law Book Co., 10. Edwards v. Bates County, 180, 215. V. Bay State Gas Co., 396, 403. V. Connecticut Mut. L. Ins. Co., 874. T. Mercantile Trust Co., 240. T. National Window Glass Job- bers Asso., 256. V. United States, 708. Egan V. Chicago G. W. R. Co., 713 714. Egbert v. Citizens' Ins. Co., 559, Eillert v. Craps, 560. Einstein v. Georgia S. & F. R. Co., 55. V. Schnebly, 274, 397. Eirich v. Donnelly Contracting Co., 323. Eisele v. Oddie, 121, 196. Eisenmann t. Delemar's Nevada Gold Min. Co., 804, 812, 824. Elder v. Colorado, 778. V. Wood, 778. Eldred v. American Palace Car Co., 241, 322, 341, 342, 391. V. Michigan Ins. Bank, 333. Electrical Accumulator Co. v. Brush Electric Co., 284, 371, 350, 365, 371, 374. Electrical Supply Co. v. Put-in Bay Waterworks. Light & R. Co., 492. Electric Goods Mfg. Co. v. Kolton- ski, 274, 284, 285. Electrolibration Co. v. Jackson, 346. Elgin Wind Power & Pump Co. v. Nichols, 425. 427. TABLE OF CASES. xlv Elgutter V. Northwestern Mut. L. Ins. Co., 584. Elk Fork Oil & Gas Co. v. Jennings, 258. Elk Garden Co. v. T. W. Thayer Co., 339, 848. Elkhart Nat. Bank v. Northwestern Guaranty Loan Co., 52, 94, 119, 232, 243, 259, 279, 579. Elkin V. Denver Engineering Works Co., 591, 603. Elkins V. Chicago, 240. V. Howell, 838, 842. Ellis V. Davis, 246. Ellison V. Louisville & N. R. Co., 865, 867. Ells V. St. Louis, K. & N. W. R. Co., 20. Ellsworth Trust Co. v. Parramore, 326, 328, 331. Elmendorf v. Taylor, 224. El Paso Water Co. v. El Paso, 185. Elton, The, 601. Elwell V. Fosdick, 724. Embry v. Palmer, 573. Emerson Co. v. Nimocks, 540. Emil Kiewert Co. v. Juneau, 601. Emmons v. National Mut. Sldg. & L. Assc, 290, 291, 296. Empire Circuit Co. v. Sullivan, 15. Empire Coal Sl Transp. Co. t. Empire Coal & Min. Co., 49, 106. Empire Distilling Co. v. McNulta, 487. Empire Min. Co. v. Propeller Tow- Boat Co., 62, 53, 94, 852, 859, 874. Empire-State Idaho Min. & Develop- ing Co. V. Hanley, 666, 767. Empire Trust Co. v. Egypt R. Co., 604. Emsheimer v. New Orleans, 209, 219, 221, 759, 760. Encyclopaedia Britannica Co. v. Werner Co., 525, 535, 543, 561, 589. Enders v. Lake Erie & W. K. Co., 821 English V. Foxall, 279. Ensminger v. Powers, 637. Equitable Life Assur. Soc. v. Brown, 26. V. Tolbert, 740. Erb V. Morasch, 254. Erie R. Co. v. Purdy, 775, 777. Ernst V. American Spirits Mfg. Co., 877. Erskine v. Forest Oil Co., 34. Estes T. Gunter, 177. Estis V. Trabue, 707, 723, 728, 754. E. T. Kenney Co., Re, 250. Eureka & K. R. Co. v. California & N. R. Co., 813. Eureka Consol. Min. Co. v. Rich- mond Consol. Min. Co., 50. Eustis V. Bolles, 134, 154, 156, 773, 774, 776. V. Henrietta, 663, 847. Evans v. Charles Scribner's Sons, 101, 342, 343. V. Dillingham, 822. V. Felton, 71, 827. V. Gorman, 499. V. State Nat. Bank, 702, 731, 737. V. Suess Ornamental Glass Co., 699. Evansburg v. Insurance, Stove, Range & Foundry Co., 830. Evanson v. Spaulding, 186, 189. Evans-Snider-Buel Co. v. McCaskill, 668, 670, 671, 683. Evanston v. Gunn, 593. Evansville Courier Co. v. United Press, 113. Eveleth v. Southern California R. Co., 413, 425, 427. Everette v. Independent School Dist., 505. Evers v. Watson, 44, 62, 63, 674. Everson v. Equitable Life Assur. Soc. 288. Ewing v. Seaboard Air Line R. Co., 472. Excelsior Pebble Phosphate Co. v. Brown, 49. 51, 53, 242. Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 574, 670, 674, 675. V. Seattle, 289, 441. Failey v. Talbee, 404. Fair Haven & W. R. Co. v. New Hav- en, 778. Fales V. Chicago, M. & St. P. R. Co., 332. Falls Wire Mfg. Co. v. Broderick, 847. Farley v. Kittson, 395, 396, 401, 408, 413, 415, 420, 423-426, 428. Farmers' & M. Nat. Bank v. Schus- ter, 863, 864, 872. Farmers' Bank v. Wright, 248. Farmers' Loan & T. Co., Re, 659. V. Cape Fear & Y. Valley R. Co., 491. xlvi TABLE OF CASES. Farmers Loan & T. Co. v. Chicago & N. P. R. Co., 182, 254, 420, 702, 709, 717, 731, 739, 786. V. Denver, L. & G. R. Co., 472, 608. V. Eaton, 735, 736. V. Houston & T. C. R. Co., 492, 495. V. Iowa Water Co., 640. V. Kansas City W. & N. W. R. Co., 491. V. Lake Street Elev. R. Co., 65, 251, 306, 500, 502, 503. v. Longworth, 729. V. McClure, 723. V. Northern P. R. Co., 432, 434, 492. V. San Diego Street-Car Co., 477. V. Waterman, 722. Farmington v. Pillsbury, 59, 127, 198, 221, 242, 574, 578. Farrand v. Land & River Improv. Co., 412. Farrar v. Bernheim, 594, 603. Farrell v. O'Brien, 245-247, 774. Farrer v. Churchill, 734. Farson v. Chicago, 135. v. Sioux City, 290, 293. Farvrell v. Colonial Trust Co., 22, 26. Faulk V. Gray, 852. Faulkner v. Hutchins, 723, 729. Fawkes v. American Motor Car Sales Co., 114. Fayervpeather v. Hamilton College, 415, 441. V. Ritch, 549, 738, 773. Fearing v. Glenn, 320. Federal Mfg. & Printing Co. v. In- ternational Bank Note Co., 288. Feilbelman v. Packard, 137, 138. Felch V. Travis, 193. Felix V. Scharnweber, 782, 785. Fellows V. Hall, 385. Felsenheld v. United States, 759. Fenn v. Holme, 5, 16. Feiino V. Primrose, 586. Fergus Falls v. Fergus Falls Water Co., 140, 152, 164, 166, 167, 276. Ferguson v. Consolidated Rubber Tire Co., 208, 210. Ferguson Contracting Co. v. Manhat- tan Trust Co., 481, 601, 603. F. G. Oxley Stave Co., v. Butler County, 156, 269, 773, 775. Fidelity & C. Co. v. Carter, 359. V. Hubbard, 817. v. St. Matthews Sav. Bank, 603. Fidelity & D. Co. v. Fidelity Trust Co., 292. V. Moshier, 192. Fidelity Ins. & S. D. Co. v. Shen- andoah Iron Co., 591, 595- 597 Fidelity Ins'. Trust & S. D. Co. v. Dickson, 352. V. Huntington, 70, 837. Fidelity Mut. L. Asso. v. Mettler, 767. Fidelity Trust & S. D. Co. v. Ar- cher, 243. Fidelity Trust & S. V. Co. v. Mobile Street R. Co., 470, 473, 474, 477, 480, 481, 490, 509, 510, 712. V. Newport News & M. Valley Co., 817, 820. Fidelity Trust Co. v. Gill Car Co., 826. Fiechtl, Re, 702, 717. Field v. Barber Asphalt Paving Co., 666, 678. V. Hastings & B. Co., 277, 287, 288, 429-431, 449, 450. V. Western Life Indemnity Co., 295. Fife V. Whittell, 820, 829, 855, 856. Files V. Brown, 405, 423, 426, 615, 644. V. Davis, 138, 158. Filhiol V. Maurice, 139. v. Torney, 139, 152, 160, 164. Filli V. Delaware, L. & W. R. Co., 86, 105, 106, 110, 115. Finance Committee v. Warren, 584, 587, 605. Findlay v. Pertz, 696, 697. Finegan v. Read, 224. Finney v. Guy, 152. First Littleton Bridge Co. v. Connec- ticut River Lumber Co., 817, 818. First Nat. Bank, Ex parte, 792. V. A. E. Appleyard & Co., 817, 818. V. Bridgeport Trust Co., 835, 837, 873. V. Cunningham, 333. V. Forest, 83, 554, 559. V. Hamor, 260. V. Merchants Bank, 234. V. Omaha, 690, 707. V. Peavey, 19, 292, 293. V. Prager, 802. V. Radford Trust Co., 63, 233, 253. V. Rush, 568. TABLE OF CASES, xlvii First Nat. Bank v. Salem Capital Flour Mills Co., 470, 473, 476, 507. V. Seidell, 84. V. Woodrum, 279, 623, 624, 627. First State Bank v. Shalleoberger, 148. Fischer v. Hayes, 447, 464, 539, 604. V. Neil, 593. Fish V. Henarie, 649, 801, 861-864, 866, 867. V. Ogdensburgh & L. C. E. Co., 492. Fishback v. Western U. Teleg. Co., 169, 171. Fisher v. Jloog, 284. Fisheries Co. v. Lennen, 665, 681, 683. Fisk, Ex parte, 514, 530. Fitch T. Creighton, 180. V. Richardson, 746, 753. Fitchburg E. Co. v. Nichols, 44, 363. Fitchel T. Barthel, 283. Fitchett V. Blows, 180, 296. Fitts V. McGhee, 37. Fitzgerald v. Missouri P. E. Co., 79, 80, 136, 826, 855. Fitzgerald & M. Constr. Co. v. Fitz- gerald, 312, 324. Fitzpatrick v. Domingo, 377. V. Graham, 723, 746. FitzSimmons v. Ogden, 10. Flagler v. Kidd, 697. Flahrity v. Union P. E. Co., 698. Fletcher v. Ann Arbor E. Co., 250, 491. T. Burt. 882. V. Hamlet, 823, 836. Flint V. CoflBn, 809. Flippen v. Kimball, 13, 600. Florida v. Charlotte Harbor Phos- phate Co., 165, 739, 807. V. Georgia, 37, 312. ' Florida, C. & P. E. Co. v. Bell, 159, 164, 263. V. Cutting, 696. Florida Constr. Co. v. Young, 663. Florida C. E. Co. v. Schutte, 705, 708, 715, 734, 742. Florida Mortg. & Invest. Co. v. Fin- layson, 431. Flour Inspectors v. Glover, 745. Flower v. MacGinniss, 519, 521-523, 531, 536. Flynn v. Fidelity & C. Co., 855. Fogarty v. Southern P. Co., 71, 72, 838. 839. Fogg V. Blair, 273, 399. Foley, Ee, 245-247, 848, 882. V. Hartley, 410. Foltz V. St. Louis & S. F. E. Co., 32, 35. Fondley v. Lavender, 248. Fontain v. Ravenel, 849. Foote V. Massachusetts Ben. Asso., 326. Forbes v. State Council, 776. Ford v. Taylor, 437. Fordyce v. Omalia, IC C. & E. E. Co., 593. V. Trigg, 722. Forest Oil Co. v. Crawford, 490, 495. Forgay v. Conrad, 659. Forrest v. Pittsburgh Bridge Co., 323, 327. V. Union P. E. Co., 329, 330. Forsyth v. Hammond, 759-762. V. Pierson, 98, 336, 337, 339, 508. Fosdick V. Schall, 10. Fosha V. Western U. Teleg. Co., 332. Foster v. Bank of Abingdon, 242. V. Cleveland, C. C. & St. L. E. Co., 121. V. Goddard, 540. V. Kansas, 788, 789. V. Lebanon Springs E. Co., 500. V. Mansfield, C. & L. M. E. Co., 240-242. V. Paragould Southeastern E. Co., 807. Fougeres v. Jones, 577. Foulk V. Gray, 799, 850-852, 876. Fountain v. Angelica, 60, 579. Fourth Nat. Bank v. New Orleans & C. R. Co., 232, 233, 435, 577. Fouvergne v. Municipality No. 2, 246. Fowler v. Hamill, 703. V. Lamson, 772, 776. V. Osgood, 256, 404, 405, 579. V. Palmer, 295. V. Stebbins, 412. Fox V. Southern E. Co., 802, 808. Foye V. Guardian Printing & Pub. Co., 315. Frame v. Portland Gold Min. Co., 698. Frank v. Leopold & F. Co., 136, 139. v. Union Cent. L. Ins. Co., 316. Frankfort v. Deposit Bank, 637-639, 644. Franklin Sav. Bank v. Taylor, 638, 729. Frank Parmelee Co. v. .lEtna L. Ins. Co., 314. Franz v. Wahl, 864. Fraser v. Jennison, 68. xlviii TABLE OF CASES. Frawley v. Pennsylvania Casualty Co., 108, 112, 114, 320, 323. Fred Macey Co. v. Macey, 83, 753- 755, 855. Fredway v. Sanger, 208. Free v. Western U. Teleg. Co., 830. Freeman v. American Surety Co., 52, 53, 75, 94. V. Butler, 828, 842. V. Clay, 630, 707, 716, 740, 746, 786. V. Howe, 506, 507. French, Ex parte, 705, 707. V. Gapen, 488. V. Hay, 360, 367, 370, 390, 805, 809, 818. V. Shoemaker, 607, 658, 694, 711. V. Stewart. See French v. Hay. Fretz V. Stover, 377, 379. Frick Co. v. Wright, 319. Friedman v. Empire L. Ins. Co., 323. Frisbie v. Chesapeake & O. E. Co., 333, 876. Frishman v. Insurance Cos., 805. Froment v. Duclos, 38. Frost V. Barber, 523, 570. V. Spitley, 257, 258. Frow V. De La Vega, 386, 388, 389, 391, 661, 662. Fuller v. Aylesworth, 710, 711. V. Knapp, 405, 451. V. Montague, 273, 396, 702. Furnald v. Glenn, 243. Furrer v. Ferris, 601. G. Gableman v. Peoria, D. & E. R. Co., 163, 183, 254, 835, 869, 870. Gaddie v. Mann, 65, 93, 126. Gage V. J. F. Smyth Mercantile Co., 608. V. Kaufman, 266. V. Riverside Trust Co., 49, 65, 87, 88, 240, 335, 510, 614. Gagnon v. United States, 610. Gaines v. Agnelly, 434. V. Chew, 292. V. Fuentes, 38, 40, 170. V. Miller, 25. V. New Orleans, 299, 594, 595. V. Relf, 298. V. Rock Spring Distilling Co., 420, 424. V. Rugg, 792, 796. Gale V. Southern Bldg. & L. Asso., 91, 269, 271, 318. Galliher v. Cadwell, 10. Gallot V. United States, 700. Galpin v. Page, 308. Galveston, H. & H. R. Co. v. Cow- drey, 490. Galveston, H. & S. A. R. Co. v. Gon- zales, 86, 91, 93, 106, 107, 111, 116. V. Texas, 143, 843. Gambee v. Rural Independent School Dist., 214. Gamble v. San Diego, 410. Gamewell Fire Alarm Teleg. Co., Re, 638, 640, 754, 756, 793, 794. V. Laporte, 11. V. Municipal Signal Co., 745. V. New York, 442, 450, 454. Gardner v. Brown, 65. V. Grossman, 458. V. Goodyear Dental Vulcanite Co., 796. Garinger v. Palmer, 584. Garneau v. Dozier, 736. Garner v. Second Nat. Bank, 351, 500, 612. V. Southern Mut. Bldg. & L. As- so., 44. Garrard v. Silver Peak Mines, 837. Garrett v. Boling, 246. Gartside Coal Co. v. Maxwell, 529, 530, 564. Gass V. Stinson, 595. Gassman v. Jarvis, 860. Gastonia Cotton Mfg. Co. v. W. L. Wells Co., 81. Qasquet v. Crescent City Brewing Co., 591, 594. V. Fidelity Trust & S. V. Co., 471, 473, 480, 490, 509. Gates V. Bucki, 410, 502, 657, 671, 675. V. Jones Nat. Bank, 161. Gates Iron Works v. James E. Pep- per & Co., 844. Gay V. Parpart, 706. Gay Mfg. Co. v. Camp, 585, 594-596, 601. Geer v. Mathieson Alkali Works, 67, 112, 442, 829, 837, 838. General Electric Co. v. Bullock Elec- tric Mfg. Co., 420, 445. V. Hurd, 615. V. New England Electric Mfg. Co., 420. V. Westinghouse Electric & Mfg. Co., 29, 399. General Fire Extinguisher Co. v. Lamar, 593. George v. Wallace, 83, 84. Gerling v. Baltimore & O. R. Co., 77 81, 105, 750, 814, 817-819, 856. TABLE OF CASES. xlix Germain v. Wilgus, 28. Germania F. Ins. Co. v. Francis, 75, 81. Germania Ins. Co. v. Wisconsin, 60. German Ins. Co. v. Frederick, 326. V. Hearne, 759, 760. German Nat. Bank v. Speckert, 868. German Sav. & L. Soc. v. Dormitz- er, 157, 162, 772, 775, 828, 835, 839. Gest V. Packwood, 488. Giant Powder Co. v. California Pow- der Works, 404. V. California Vigorit Powder Co., 623, 627. V. Safety Nitro Powder Co., 415. Gibbs V. Crandall, 136. Gibson v. Shufeldt, 176-178, 180, 780. Gilbert v. Murphy, 415, 416. V. South Carolina Interstate & W. I. Exposition Co., 315. Gilchrist v. Helena, H. S. & S. R. Co., 113, 114. Giles v. Harris, 668. V. Little, 162, 773. V. Paxson, 536, 538, 567. V. Teasley, 153, 154, 755. Gilfillan v. McKee, 722. Gillespie v. Pocahontas Coal & Coke Co., 802, 803, 826. Gillette v. Bate Refrigerating Co., 626. V. Doheny, 402. Gilman v. Fernald, 731. V. Grand Rapids, 610. Gilmore v. Bort, 349, 469, 470, 471, 476, 477. V. Herrick, 163, 182, 184, 255. Gillis V. Downey, 100, 257, 258. V. Stjnehfield, 160. Girard Life Ins. Annuity & T. Co. V. Cooper, 601. Glass, Re, 355, 359. V. Concordia Parish, 209. Gleason v. Florida, 783, 785. Glendale Elastic Fabrics Co. v. Smith, 663. Glover v. Patten, 10. V. Shepperd, 206, 272. Godchaux v. Morris, 615. Godd?j-d V. Mailler, 91, 94, 102, 334. V. Ordway, 611, 623, 627, 789. Goebel v. American R. Supply Co., 281. Goepfert v. Compagnie Generale Transatlantique, 113, 271, 859. Goff V. Kelly, 470, 474. Goldberg v. German Ins. Co., 817. Goldberg, B. & Co. v. German Ins. Co., 810-812, 824, 850, 881. Golden v. Bruniug, 223, 224. Goldey v. Morning News, 321, 322, 324, 331, 817, 859, 860. Goldsmith v. Gilliland, 260, 417, 418. Gombert v. Lyon, 258, 878, 886. Gonzalez, Re, 61. Good Hope Co. v. Railway Barb Fencing Co., 113, 114. Gooding v. Reid, M. & Co., 504. Goodlett V. Louisville & N. R. Co., 77. Goodman, Re, 702. V. Niblack, 97, 264, 343, 435. Goodnow V. Dolliver, 872. Goodrich v. Ferris, 773. Goodwin v. Boston & M. R. Co., 76, 79, 105. V. Fox, 718, 738. V. New York, N. H. & H. R. Co., 79, 80, 105. Goodyear Dental Vulcanite Co. v. Folsom, 497. Gordon v. Jackson, 257, 258. V. Smith, 192. V. Third Nat. Bank, 714. Gorham Mfg. Co. v. Emery-Bird- Thayer Dry Goods Co., 597, 700, 738, 756. Gorman v. Havird, 170, 781. Gorman-Wright Co. v. Wright, 208, 211, 746, 755. Gormley v. ]3unyan, 565. v. Clark, 15, 18, 257. Gormully & J. Mfg. Co. v. Bretz, 540. V. Pope Mfg. Co., 93, 111, 115. Goss Printing Press Co. v. Scott, 588. Gottschalk Co. v. Distilling & Cattle Feeding Co., 321. Gould v. Evansville & C. R. Co., 273, 399. Grace v. American Cent. Ins. Co., 44, 196, 197, 755. Graffam v. Burgess, 282, 358, 359. Graham v. Boston, H. & E. R. Co., 79, 81, 87. V. Chamberlain, 610. V. Coolidge, 6] 2, 617. V. La Crosse & M. R. Co., 608. V. Spencer, 329, 333. V. Swayne, 627, 640. Grainger v. Douglas Park Jockey Club, 652, 653. Grand County v. King, 737. Grand Island & W. C. R. Co. v. Sweeney, 722, 729. Grand Trunk R. Co. v. Ives, 696. V. Twitchell, 571, 856, 872. 1 TABLE OF CASES. Grand Trunk Western E. Co. v. Chi- cago & E. L K. Co., 29. V. Eeddick, 672, 682, 758. Grant v. East & West K. Co., 660. V. Phoenix Mut. L. Ins. Co., 539, 658. V. Spokane Nat. Bank, 137. Grape Creek Coal Co. v. Farmers' Loan & T. Co., 696, 697. Gravenberg v. Laws, 5, 493. Graver v. Faurot, 351, 579, 632, 639, 641, 642, 759, 760. Graves v. City & Suburban Teleg. AgoQ 71 TO V. Corbin, 89*, 70, 127, 220, 837, 838. Gray v. Blanchard, 172. V. Grand Forks Mercantile Co., 717. V. Havemeyer, 232. V. New York Nat. Bldg. & L. Asso., 594, 595, 597, 598. V. Schneider, 287, 288. Grayson v. Lynch, 603. Great Northern R. Co. v. Western U. Teleg. Co., 792. Great Southern Fire Proof Hotel Co. V. Jones, 82, 83, 244, 359, 746, 753, 755. Great Western Min. & Mfg. Co. v. Harris, 256. Great Western Teleg. Co. v. Burn- ham, 778. V. Purdy, 162, 622. Greeley v. Lowe, 19, 52-54, 98, 100- 102, 341, 344. Green v. Aurora R. Co., 448. V. Bogue, 425, 427, 428, 463, 594. V. Chicago, B. & Q. K. Co., 112, 113, 321, 323. V. Custard, 7. V. Elbert, 348. V. Fisk, 657. V. Lynn, 687, 701, 702, 728. V. Mills, 5, 680. V. Oemler, 147. V. Turner, 15, 16, 31, 275, 434. V. Underwood, 410, 483. T. Valley, 821, 822. V. Van Buskirk, 788. Green Bay & M. Canal Co. v. Nor- rie, 654, 712, 713. V. Patten Paper Co., 154, 156, 157, 772. Greene v. Aurora Co., 452. V. Compagnia Generale Italiana Di Navigation, 532, 533, 535, 537. V. United Shoe Machinery Co., 577, 579, 655, 744. (Jreene County v. Kortrecht, 179. Greene County Bank v. J. H. Teas- dale Commission Co., 170- 172, 204. Greenfield v^. United States Mortg. Co., 193. Greenvalt v. Tucker, 60, 579. Greenwalt v. Duncan, 471, 472. Greer v. Texas & P. E. Co.. 144. Greer M. & Co. v. StoUer, 232. Gregg T. Sanford, 82. Gregory v. Boston Safe Deposit & T. Co., 817, 818. V. Chicago, M. & St. P. E. Co., 552, 553. V. Hartley, 814. V. Pike, 117, 350, 466, 479, 480, 489, 491, 508, 509, 512, 734, 757, 852. V. Stetson, 224, 232, 233. v. Swift, 97, 233, 235. V. Van Ee, 492. Grether v. Wright, 12, 14, 19^ 444, 445. Griesa v. Mutual L. Ins. Co., 26. Griffith V. Shaw, 554, 568. Griswold v. Baeheller, 55, 251, 410. V. Hazard, 280, 281, 503. V. Hilton, 27. Groel V. United Electric Co., 241, 242, 827, 828, 829. Gross V. George W. Scott Mfg. Co., 226. V. Palmer, 562. Grosscup V. German Sav. Bank, 255. Grossmayer, Re, 309. Groton Bridge & Mfg. Co. v. Ameri- can Bridge Co., 109, 803, 808, 820. Grove v. Grove, 100, 206, 207, 343. Grover & B. Sewing Maeh. Co. v. Florence Sewing Maeh. Co. See Sewing Maeh. Co.'a Case, 37, 38, 53. Groves v. Sentell, 512. Gruetter v. Cumberland Teleph. A Teleg. Co., 848. Guarantee Co. v. Mechanics Sav. Bank & T. Co., 836. Guarantee Co. of N. A. v. Hanway, 137, 145, 819-822, 871. v. Phenix Ins. Co., 696, 728, 797. Guarantee Gold Bond Loan & Sav. Co. V. Edwards, 600-602 Guaranty Trust & S. D. Co. ,:. Gieen Cove Springs & M. R. Co.. 340, 344. Guardian Trust Co. v. WhitecliflFs Portland Cement &. Chalk Co., 251. TABLE OF CASES. li GubbiBs V. Laughtensehlager, 354- 356, 358, 359, 300, 455, 458, 576. Guernsey v. Cross, 813. Guggenheim v. Kirchhofer, 696. Guion V. Liverpool & L> & G. Ins. Co., 724. Gulf & B. Valley K, Co. v. Winder, 589. Gulf & S. I. E. Co. V. Hewes, 772, 777, 785. Gulf, C. & S. F. R. Co. V. James, 315. V. Rawlins, 319. V. Moore, 44. Gumbel v. Pitkin, 495. Gunbv V. Armstrong, 183, 184. Gunn-y. Black, 607, 694, 711. V. Brinkley Car Works & Mfg. Co., 585, 586. Gunne v. Bird, 431. Gunning System v. Buffalo, 424. Gustafson v. Chicago, R. I. & P. R. Co., 70, 71, 830, 831, 839, 840. Gutman, Re, 499. Gwin V. Breedlove, 739. H. Habana, The, 649, 667, 686, 779, 780. Haberman Mfg. Co., Re, 653, 654. Habich v. Folger, 333. Hackett v. Kuhne, 833. Haddock v. Taylor, 173. Hadfield v. Northwestern Life Assur. Co., 803, 855. Hagan v. Walker, 226, 227, 232. Hager v. Thomson, 10. Haggart v. Wilczinski, 280. Hagge V. Kansas City S. R. Co., 176, 188, 196. Haight & F. Co. v. We£»s, 107. Haire v. Rome R. Co., 862. Hakes v. Bums, 865. Haldane v. United States, 700, 752. Hale V. Allison, 243, 256. V. Anderson, 30. V. Coffin, 235, 245-248. V. Continental L. Ins. Co., 386, 442. V. Tyler, 245, 249. V. Wharton, 312, 515. Haley v. Breeze, 134, 154. Hall V. Bridgeport Trust Co., 347. V. Chattanooga Agri. Works, 864. V. Chicago, R. I. & P. R. Co., 843. Hall V. Gaftibrill, 722. V. Harris, 252, 253. V. Lanning, 244. Halpin v. Amerman, 667, 678. Halsey v. Goddard, 284, 293. Halstead v. Manning, 259. Halsted v. Buster, 196. V. Forest Hill Co., 624, 627, 633. Hambelton v. Duham, 271. Hamblin v. Western Land Co., 135, 136, 159, 161, 167, 578, 774. Hamilton v. Brown, 683, 688. V. Fowler, 804, 810, 811, 819. V. Savannah, F. & W. R. Co., 229, 231. V. Southern Nevada Gold & S. Min. Cq., 356, 459, 503, 597. Hamilton Gaslight & Coke Co. v. Hamilton, 165. Hamilton Mfg. Co. v. Massachusetts, 157. Hamlin v. Toledo, St. L. & K. C. R. Co., 431, 489, 662, 726, 727. Hamm v. J. Stone & Sons Live Stock Co., 594. Hammond v. Hopkins, 277. v. Johnston, 134, 773, 774. v. Whittredge, 777. Hampton Roads R. & Elec. Co. v. Newport News & O. P. R. Co., 182. Hampton Stave Co. v. Gardner, 171, 172. Hanchett v. Blair, 126, 396, 437, 438. Hancock v. Holbrook, 272. Handley v. Stutz, 177, 194. Hanford v. Davies, 44, 47, 147, 152, 160, 162, 196, 268. Hanks Dental Asso. v. International Tooth Co., 530, 531, 534, 541, 814. Hanover Nat. Bank v. Credit Com- mutation Co., 839. Hanrick v. Hanrick, 68, 863. V. Patrick, 722, 723. Hans V. Louisiana, 37, 60. Hapgood V. Berry, 31. Haracovic v. Standard Oil Co., 877. Hardee v. Wilson, 722, 729. Hardeman v. Harris, 431, 452. Hardenberg v. Ray, 57, 235, 309. Hardin v. Boyd, 280, 284, 285, 354, 355, 358, 300, 455, 459. V. Cass County, 174. Harding v. Com Products Eef. Co., 502. V. Guice, 19, 257, 258. lii TABLE OF CASES. Harding v. Hart, 646, 766. V. Illinois, 775. V. Standard Oil Co., 838, 854. Hardt v. Heidweyer, 278, 400. Harkness v. Hyde, 118, 326, 329, 331, 333. Harkrader v. Wadley, 500. Harley v. Home Ins. Co., 842. Harman v. Lewis, 623, 624. Harper v. Holman, 291. v. Norfolk & W. B, Co., 5S. Harriman v. Northern Securities Co., 656, 761. Harrington v. Great Northern R. Co., 826, 831. V. Union Oil Co., 462, 464. Harris v. Hardeman, 314, 344. V. Eosenberger,. 159, 666, 671, 682, 683. V. Schlinke, 480. Harrison v. Clarke, 607. V. Lokey, 501. V. Morton, 154, 157, 777. V. Perea, 346, 471. V. Remington Paper Co., 17, 147, 412. V. Rowan, 248. V. Stewart, 250. Hart V. Bowen, 697. V. Sansom, 614. Kartell v. Tilghman, 161. Harter Twp. v. Kernochan, 63, 828, 829 Hartford & C. W. R. Co. v. Mon- tague, 811. Hartford F. Ins. Co. v. Bonner Mer- cantile Co., 11. V. Erie E. Co., 176, 216. V. Perkins, 317. Hartman v. Feenaughty, 523, 541, 570. Hartog V. Memory, 87, 121, 198, 199, 575, 576, 579. Harton v. Hawley, 120. Hartz V. Cleveland Block Co., 425. Harvey v. Raleigh & G. R. Co., 177, 197, 242. V. Richmond & M. R. Co., 206, 262. Haskins v. St. Louis & S. E. R. Co., 690, 707, 717. Hastings v. Ames, 149, 677, 678, 684. Hatch Y. Bancroft-Thompson Co., 413, 419, 420, 434. V. Indianapolis & S. R. Co., 585, 595, 597. Hatcher v. Hendrie & B. Mfg. & Sup- ply Co., 813, 882. V. Wadley, 812, 824, 825. Hat-Sweat Mfg. Co. v. Waring, 350. Havnor v. New York, 785. Hawes v. Contra Costa Water Co., 240, 241. V. Oakland, 240, 241. Hawkeye Gold Dredging Co. v. State Bank, 31. Hawkins v. Cleveland, C. C. & St. L. R. Co., 793, 794. V. Peirce, 316, 860. Hayden \. Androscoggin Mills, 106. v. Brown, 161. V. Manning, 59, 578. V. Thompson, 290, 293. Hayes v. Dayton, 394. V. Pratt, 247, 249, 250. Haynes v. Brewster, 399. Haynor v. New York, 782, 783. Hay ward v. Andrews, 25. V. Nordberg Mfg. Co., 170-173, 179, 391, 576, 845, 846. Hazard v. Durant, 97, 251, 417. Hazeltine v. Mississippi Valley F. Ins. Co., 113, 114. Hazleton Co. v. Citizens' Street R. Co., 375. Hazleton Tripod-Boiler Co. v. Citi- zens' Street R. Co., 364, 366, 370, 373, 374, 375, 577. H. B. Claflin Co. v. Furtick, 15. Head v. Selleck, 838. Headrick v. Larson, 30. Healy v. McCormick, 855. Hecker v. Fowler, 590. Hedges v. Seibert Cylinder Oil Cup Co., 722, 723. Hefifelfinger v. Choctaw, 0. & G. R. Co., 143, 838, 839, 844. Hefner v. Northwestern Mut. L. Ins. Co., 389. Heidritter v. Elizabeth Oil Cloth Co., 502. Heinze v. Butte & B. Consol. Min. Co., 482, 651, 656. Hekking v. Pfaff, 501. Helena v. Helena Waterworks Co., 185. Helena Power Transmission Co. v. Spratt, 826, 838, 877, 881. Heller v. Ilwaco Mill & Lumber Co., 802. Helms V. Northern P. R. Co., 837, 840, 841. Henderson v. Cabell, 835, 858. V. Carbondale Coal & Coke Co., 176, 610, 623. V. Goode, 495. V. 300 Tons of Iron Ore, 367. V. Wadsworth, 178. TABLE OF CASES. liii Hendrickson v. Bradley, 241, 462, 464. Hendryx v. Perkins, 501, 632-635, 638, 643, 756, 757. Hennessey v. Hermann, 190. V. Richardson Drug Co., 85, 88, 270, 665, 668, 670. V. Taeotaa Smelting & Eef. Co., 410. Henning v. Boyle, 570. Henningsen v. United States Fidel- ity & G. Co., 758. Henrie v. Henderson, 43. Henrietta Min. & Mill Co. v. John- son, 321. Henry v. Alabama & V. R. Co., 719. V. Travelers' Ins. Co., 365, 367, 368, 371. Herbert v. Eainey, 175, 187, 196. Herndon v. Ridgeway, 99. V. Southern R. Co., 865. Herold v. Kahn, 796. Heiron v. Comstock, 247. Hershberger v. Blewett, 350. Hess V. Revnolds, 248. Hewitt V. Filbert, 690, 719, 720. V. Story, 263, 576. Heyman v. tlhlman, 326, 462, 464. Hicklin v. Marco, 97, 224, 226, 227, 230, 231, 356, 610. Hickman v. Missouri, K. & T. R. Co., 804. Hicks V. Otto, 459, 625. Higgins V. Baltimore & O. R. Co., 230, 243, 829, 837. Highland Boy Gold Min. Co. v. Strickley, 32. Hill V. Chicago & E. R. Co., 660, 661, 706, 731, 739. V. Empire State-Idaho Min. & Developing Co., 108. V. Gordon, 313, 314. V. Kuhlman, 507. V. Mutual L. Ins. Co., 794. V. Phelps, 608, 630, 631, 637. V. Ryan Grocery Co., 433, 442, 472. V. Walker, 199, 271, 827. Hilliker v. Hale, 256. Hilton V. Dickinson, 170-174, 179, 728. V. Guyott, 417, 418. Hinckley v. Gilman, C. & S. R Co., 727. V. Morton, 797. Hinds V. Keith, 757. Hipp V. Babin, 25. Hirschl v. J. I. Case Threshing Maoh. Co., 75. His Imperial Majesty v. Providence Tool Co., 23. H. L. Bruett & Co. v. F. C. Austin Drainage Excavator Co., 83. Hoadley v. Day, 212. Hoadly v. Chase, 849. Hobart v. Illinois C. R. Co., 863, 864. Hobbs V. State Trust Co., 633. Hobbs Mfg. Co. V. Gooding, 273, 347, 505. Hobe-Peters Land Co., v. Farr, 212. Hodge V. Chicago & A. R. Co., 855. Hodges V. Kimball, 356. V. Vaughan, 737. Hoe V. Kahler, 733. V. Scott, 584, 588, 589. Hoffman v. Knox, 630, 633. Hoge v. Canton Ins. Office, 841. V. Eaton, 477. v. Magnes, 697, 700. Hogg V. Hoag, 470, 473. Hohorst, Re, 85, 86, 92, 93, 115, 116, 321, 324. V. Hamburg-American Packet Co., 607, 658, 661-663. V. Howard, 27, 28. Holden v. Utah & M. Machinery Co., 170-172, 174, 175, 179, 191, 199, 204, 576. Holgate V. Eaton, 482. Holladay Case, The, 430, 438, 560, 566, 568. Holland v. Challen, 18, 19, 258. Hollander v. Baiz, 537, 561. Holliday v. Batson, 741. Hollingsworth v. Barbour, 344. V. Southern R. Co., 75, 76, 80, 81. Hollins V. Brierfield Coal & I. Co., 18. Holly Mfg. Co. V. New Chester Water Co., 252, 253. Holmes v. Goldsmith, 213, 219, 220. V. Oregon & C. R. Co., 93. V. Southern R. Co., 861, 863, 867. Holt V. Bergevin, 176. V. Indiana Mfg. Co., 169, 185. Holton V. Davis, 501, 642, 643. V. Guinn, 429, 434. v. Helvetia-Swiss F. Ins. Co., 271, 833. V. Wallace, 292. Holyoke & S. H. F. Ice Co. v. Amb- den, 311. Home & F. Invest. & Agency Co. v. Ray, 180. liv TABLE OF CASES. Home for Incurables v. New York, 785. Home Ins. Co. v. Morse, 806. V. Nobles, 197, 360. v. Virginia-Carolina Chemical Co., 295. Home Land & Cattle Co. v. Mc- Namara, 596, 598. Home L. Ins. Co. v. Dunn, 809. Home Street R. Co. v. Lincoln, 611, 629, 630. Hone V. Dillon, 377, 379. Honeyman t. Colorado Fuel & I. Co., 323. Hooe V. Jamieson, 51, 61, 231. Hook V. Ayers, 18. V. Mercantile Trust Co., 626, 722, 723, 729. Hooker v. Burr, 622. V. Los Angeles, 160, 166, 778. Hooper v. Kemmel, 684. Hooven, 0. & R. Co. v. Featherstone's Sons, 657, 661. Hope Ins. Co. v. Boardman, 73. Hopkins v. United States, 45. Hoppenstedt v. Fuller, 123. Horhorst, Re, 44. Horn V. Detroit Dry Dock Co., 408, 424, 425, 427. V. Lockhart, 64, 229, 231. V. Pere Marquette R. Co., 497. Home V. George H. Hammond Co., 49, 121, 122, 271. Horner v. United States, 677, 679. Horner-Gaylord Co. v. Miller, 295. Hornthall v. Keary, 580. V. The Collector, 580. Horst V. Merkley, 171, 198. Hoskin v. Fisher, 742. Hosmer v. Wyoming R. & I. Co., 30. Hostetter Co. v. Comerford, 625. V. E. G. Lyons Co., 415, 417. Houghton V. Whitin Mach. Works, 349. House V. Mullen, 259, 435. Houston V. Emery, 318. V. Filer & S. Co., 49, 312, 322, 733, 835. Houston & T. C. R. Co. v. Shirley, 872. V. Texas, 143, 152, 165. Hovey v. Elliott, 392. V. McDonald, 654, 712, 727, 764. Howard v. Gold Reefs, 802. V. Milwaukee & St. P. R. Co., 234. T. Stillwell & B. Mfg. Co., 529, 565, 568. V. United States, 138, 767. Howe V. Howe & 0. Ball Bearing Co., 230, 271, 575, 576. Howe & D. Co. V. Haugan, 49, 208, 347. Howth V. Owens, 249, 260, 351, 377, 380, 435, 750. H. Scherer & Co. v. Everest, 564, 573. Hubb V. Bid'well, 492. Hubbard v. Central R. Co., 813. V. Chicago, M. & St. P. R. Co., 850, 851, 853. V. Manhattan Trust Co., 234, 259, 260, 277, 358, 363, 396. V. Tod, 764. V. Urton, 280, 284. Hubbell V. DeLand, 408, 423. V. Lankenau, 380. Huber v. Texas & P. R. Co., 821. Hudgins v. Kemp, 694, 707, 714, 743, 754. Hudson V. Limestone Natural Gas Co., 687. V. Parker, 708. V. Randolph, 257, 258. V. Wood, 287, 289, 440, 615. Huff V. Bidwell, 181, 479, 758. V. Union Nat. Bank, 146, 158. Hughes V. Blake, 428. V. Green, 502. V. Northern P. R. Co., 283. V. Pepper Tobacco Warehouse Co., 847. Huguley Mfg. Co., Re, 796. V. Galeton Cotton Mills, 646, 666, 677, 678, 682, 683, 758, 765, 766, 768. Hukill V. Maysville & B. S. R. Co., 830, 831, 877, 880. Hulbert v. Chicago, 786. Hultberg v. Anderson, 100, 212, 295. Humane Bit. Co. v. Barnet, 306, 313, 503. Humes v. Ft. Smith, 186, 189. V. Little Rock, 18. v. Scruggs, 462, 464. V. Third Nat. Bank, 722. Hunt T. Illinois C. R. Co., 727. V. Kile, 732. V. New York Cotton Exch., 189. Hunter v. Bobbins, 54, 230. V. Russell, 308. Huntington v. Attrill, 156, 162. V. Laidley, 403, 418, 422, 436, 667, 668, 674, 676. V. Little Rock & Ft. S. R. Co., 629. V. Pinney, 826, 828, 835. V. Saunders, 289. TABLE OF CASES. Iv Huntington Nat. Bank v. Huntington Distilling Co., 515. Hurd V. Gere, 820. Hurst V. Cobb, 137. Hurt V. Hollingsworth, 19, 26, 882, 883. Hutcheaon v. Bigbee, 827. Hutchinson v. Beckham, 186, 189. Huttfg Sash & Door Co. v. Fuelle, 590, 601. Hutton V. Bancroft & S. Co., 241, 828, 829, 859. Hyams v. Federal Coal & Coke Co., 557 Hyde v. Ruble, 66, 67, 841. V. Victoria Land Co., 229, 825. Hyman v. Wheeler, 30. Hynes v. Brigga, 196. I. Idaho & O. Land Improv. Co. t. Bradbury, 736. Illinois V. Illinois C. R. Co., 792, 793. Illinois ex rel. Hunt v. Illinois C. R. Co., 641, 793, 794. Illinois C. R. Co. v. Adams, 35, 147, 167, 240, 241, 305, 684. V. Brown, 662. V. CafiFrey, 294, 298. V. Chicago, 158, 159. V. McKendree, 777. V. Waller, 847. Illinois L. Ins. Co. v. Shenehon, 126. Illinois Steel Co. v. Ramsey, 484, 488. V. San Antonio & G. S. R. Co., 318. Illinois Trust 152, 276, 835, 848. Indiana Southern R. Co. v. Liver- pool, L. & G. Ins. Co., 479. Indianapolis Gas Co. t. Indianapolis, 288, 442, 474, 483. Indianapolis Water Co. v. American Straw-Board Co., 543, 566. Indian Land & T. Co. v. Schoenfelt, 25. Indian Mountain Jellico Coal Co. v. Asheville Ice & Coal Co., 847. India Rubber Co. v. Consolidated Rubber Tire Co., 28, 882. Industrial & Min. Guaranty Co. v. Electrical Supply Co., 474, 482. IngersoU v. Coram, 247, 248, 296. Ingham v. Pierce, 573. Ingle V. Jones, 539. Inglehart v. Stansbury, 723. Inman v. New York Interurban Wa- ter Co., 290, 293. Insurance Co. v. Mordecai, 786. Insurance Co. of N. A. v. Delaware Mut. Ins. Co., 69, 833. V. Guardiola, 566. V. Svendson, 191, 230, 231, 235, 264, 354, 356, 359, 360. Interior Constr. & Improv. Co. v. Gibney, 52, 108, 117-119, 409, 674, 675. Internal Improv. Fund v. Green- ough, 661, 663. International & G. N. R. Co. v. Bradt, 254. V. Hoyle, 839, 870, 880. V. Wynne, 254. International Bank & T. Co. v. Scott, 121, 271. International Tooth Crown Co. v. Carter, 531. v. Hank's Dental Asso., 514, 531. International Trust Co. v. Norwich Union F. Ins. Co., 32. v. Weeks, 871. Interstate Bldg. & L. Asso. v. Edge- field Hotel Co., 171, 174, 472. Interstate Commerce Commission v. Baird, 667. v. Louisville & N. R. Co., 654. Interstate Land Co. v. Maxwell Land Grant Co, 399. Iowa V. Illinois, 445. v. Rood, 778. Iowa C. R. Co. V. Iowa, 149, 162. Iowa Lillooet Gold Min. Co. v. Bliss, 43, 67, 86, 834, 837, 839, 880. Iron Dyke Copper Min. Co. v. Iron Dyke R. Co., 312. Iron Mountain Co. v. Memphis, 148. Iron R. Co. v. Toledo, D. & B. R. Co., 623, 624, 662. Irving V. Smith, 828. Irvine Co. v. Bond, 59. Irwin V. Meyrose, 630, 631. Ivi TABLE OF CASES. Israel v. Israel, 573, 848. Ives, Re, 757. J. Jabine v. Gates, 644, 709, 710, 788, 789. Jackson v. Allen, 272. V. Ashton, 278. V. Chicago, R. I. & P. E. Co. 72. V. Delaware River Amusement Co. 322, 330. V. Hooper, 468. V. Simmons, 469, 472, 482, 483. Jackson & S. Co. v. Pearson, 211, 512, 861. Jacksonville, T. & K. W. R. Co. v. American Constr. Co. 735. Jacobi, Ex parte, 779. Jacobs V. George, 690, 716-721. V. Marks, 777. V. Mexican Sugar Co. 177-180. V. Van Sickle, 437, 440. Jaffrey v. Bear, 26. V. Brown, 594, 600. Jahn V. Champagne Lumber Co. 415. James v. Central Trust Co. 792, 795. V. Gray, 300. Jarboe v. Templer, 57. Jarnecke Ditch, Re, 69, 848, 854. Jaros Hygienic Underwear Co. v. Fleece Hygienic Underwear Co. 291. Jefferson v. Driver, 872. Jefferson Hotel Co. v. Brumbaugh, 602. Jellenik v. Huron Copper Min. Co. 101, 342. Jemison Mercantile Co. Re, 729. Jenkins v. York Cliffs Imp. Co. 52, 94, 123, 333. Jenks V. Brewster, 506. Jennes v. Landes, 84, 88, 281. Jennings v. Dolan, 595, 597, 604. V. Johnson, 335, 336. v. Menaugh, 571. Jerome v. McCarter, 705, 707, 709, 711-713, 715, 790. V. Rio Grande County, 217. Jesup V. Illinois C. R. Co. 468, 475, 482. Jetton V. University of the South, 147. Jewell V. State Life Ins. Co. 539. Jewett V. Bradford Sav. Bank & T. Co. 51, 119. 212. V. Garrett, 90, 99, 307, 309-312. V. Whitcomb, 137. Jewish Colonization Asso. v. Solo- mon, 83. J. L Case Plow Works v. Finks, 163, 254. J. L. Mott Iron-Works v. Standard Mfg. Co. 554, 559. John V. Champagne Lumber Co. 418. John Church Co. v. Zimmerman, 450. John D. Park & Sons Co. v. Bruen, 102-104, 187, 412, 430. V. Hartman, 187. Johnson, Re, 312. V. Bunker Hill & S. M. & C. Co. 61. V. Computing Scale Co. 323, 804, 846. V. F. C. Austin Mfg. Co. 272, 803, 855. V. Ford, 64. V. Meyers, 688. V. New York L. Ins. Co. 770, 771, 778. V. St. Louis, 54. V. Trust Co. 723, 724, 729. V. Union P. R. Co. 105. V. Waters, 248, 249, 709. V. Wells F. & Co. 806, 826, 845. V. Wilcox & G. Sewing Mach. Co. 274, 397. Johnson Railroad Signal Co. v. Union Switch & Signal Co. 480. Johnson Steel Street-Rail Co. v. North Branch Steel Co. 548, 550, 551, 552. Johnston v. Forsyth Mercantile Co. 406, 418. V. Fraser, 480. V. Pittsburg, 189. V. Roe, 17. V. Trippe, 192, 197. Johnston R. Frog & Switch Co. v. Buda Foundry & Mfg. Co. 837. Jones, Ex parte, 84, 766. V. Adams Exp. Co. 828, 842. V. Andrews, 326, 329, 507. V. Gould, 100, 101, 335, 341, 342, 344, 577. V. Hillis, 427, 428. V. Lamar, 430, 593. V. League, 58, 575. V. McCormick Harvesting Mach. Co. 173, 174. V. McMasters, 7. V. Mann, 739. V. Missouri-Edison Electric Co. 224, 242, 284, 294. V. Montague, 756. V. Mosher, 821. V. Mutual Fidelity Co. 11, 15 17, 18, 24, 176, 177, 194, 195. ' V. Oregon C. R. Co. 536. V. Rowley, 173, 200. V. Sands, 485. TABLE OF CASES. Ivii Jones V. Shapera, 209, 215, 219, 221. V. Subera, 121. Jordan, Ex parte, 591, 692. V. Brown, 626. V. Taylor, 245. Jorgenson v. Young, 631, 633. Joseph B. Thomas, The, 177. Joseph Dry Goods Co. v. Hecht, 64, 651, 656. Jourolmon v. Ewing, 630, 631, 632. Joy V. Adelbert College, 662. V. St. Louis, 139, 153, 164, 165. J. P. Jorgenson Co. v. Kapp, 781. J. S. Appel Suit & Cloak Co. v. Bag- gott, 51. J. S. Keator Lumber Co. v. Thomp- son, 465. Judson V. Courier Co. 357. Julian V. Central Trust Co. 500. Julius Kessler & Co. v. Perilloux, 114. Kail V. Wetmore, 706. Kaiser v. General Phonograph Sup- ply Co. 264. Kaitel v. Wylie, 863. Kalamazoo Railway Supply Co. v. Duff Mfg. Co. 738. Kalb & B. Mfg. Co. Ee, 183. Kalispell Lumber Co. v. Great Northern E. Co. 92. Kane v. Luckman, 33. Kansas v. Atchison, T. & S. F. E. Co. 152, 165, 276. V. Colorado, 4, 37, 38, 398. V. Meriwether, 732, 733, 742. Kansas City & T. R. Co. v. Inter- state Lumber Co. 810, 850, 851. Kansas City, Ft. S. & M. E. Co. v. Daughtry, 318, 802, 806, 807, 815, 827, 830, 878. V. Stoner, 528, 529, 564. Kansas City Northwestern E. Co. v. Zimmerman, 669, 670. Kansas City Southern R. Co. v. Prunty, 363, 755, 828, 855. V. Quigley, 34. Kansas City Star Co. v. Julian, 776. Kansas City Suburban Belt R. Co. v. Herman, 830, 858. Kansas Loan & T. Co. v. Electric R. Light & P. Co. 554, 584, 589. Katz V. San Antonio, 745. Kauffman v. Kennedy, 312, 860. Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 157. Kawailani, The, 739, 740, 744. Kaw Valley Drainage Dist. v. Union P. R. Co. 663, 699. Kearney County v. Vandriss, 170, 173, 174. Kearny County v. Irvine, 210, 214- 216. V. McMaater, 215. Keasbey & M. Co., Re, 50, 90-93, 106, 107, 115. Keasby, Re, 318. Keene v. Jleade, 536. Keene Five-Cent Sav. Bank v. Lyon County, 215. Keerl v. Montana, 770. Keith v. Alger, 632, 639. v. Clark, 435. Kell V. Trenchard, 663. Kellam v. Keith, 828. Kellar v. Craig, 257, 258. Keller v. Ashford, 262. V. Kansas City, St. L. & C. R. Co. 71, 839. Kelley v. Boettcher, 229, 230, 266, 286-288, 294, 346-348. Kelley Bros. v. Diamond Drill &, Match Co. 631. Kellner v. Mutual L. Ins. Co. 420, 421. Kelly v. Chicago & A. R. Co. 72, 824, 830, 841, 877, 887, 889. Kelly, M. & Co. v. Sioux Nat. Bank, 502. Kemmerer v. Haggerty, 242. Kemp V. National Bank, 658, 661. Kendall v. American Automatic Loom Co. 669. Kendig v. Dean, 234, 435, 577. Kennedy v. Bank of Georgia, 364. V. Creswell, 426. V. Custer, 277, 440. V. Elliott, 257. V. Solar Ref. Co. 576. Kent V. Bay State Gas Co. 363. V. Honsinger, 98, 194, 309, 310, 335, 338. V. Lake Superior Ship Canal E. & Iron Co. 250. Kentucky v. Chicago, I. & L. E. Co. 60, 850. V. Powers, 770. Kentucky State Bd. of Control v Lewis, 665, 681. Kenyon v. Knipe, 188. Kern v. Huidekoper, 804, 805, 809. Kerr v. Modern Woodmen, 855. Kerrison v. Stewart, 250, 252. Kessinger v. Vannatta, 877. Kessler & Co. v. Ensley Co. 241. Key, Ee, 723. Keyser v. Farr, 708. Iviii TABLE OF CASES. Keyser v. Lowell, 681, 682. Keystone Manganese &, Iron Co. v. Martin, 606, 658, 660, 663. Kibbler v. St. Louis & S. F. R. Co. 91, 112. Kidder v. Fidelity Ins. Trust & S. D. Co. 720, 722-724, 727, 729. V. Northwestern Mut. L. Ins. Co. 872, 873. Kieley v. McGlynn, 17, 246. Kilbourn v. Sunderland, 23, 31, 258, 436. Kilburn v. Hirner, 470, 474. Kilgore v. Norman, 126. Kilgour V. National Bank, 596, 601. Kilham v. Wilson, 579, 612. Killian v. Ebbinghaus, 26, 28, 512. Kimball v. Cedar Rapids, 242, 829. V. Kimball, 745. Kimberly v. Arms, 584, 598, 600, 602, 603, 632, 633, 635, 637, 642, 794. King V. Buskirk, 505. V. Cornell, 87, 832, 833. V. Davis, 310, 314, 315, 316, 611. V. Dundee Mortg. & Trust In- vest. Co. 631, 637. V. Inlander, 49, 290. V. McLean. Asylum, 680, 849. V. St. Louis, 160. V. Southern R. Co. 170, 191, 845. V. Thompson, 707, 708, 717, 724. V. Worthington, 515. King Iron Bridge & Mfg. Co. v. Otoe County, 44, 122, 128, 197, 272, 360, 575. Kingman v. Holthaus, 48, 58, 120. Kingman & Co. v. Western Mfg. Co. 626, 662, 688. Kingsbury v. Buckner, 638, 702, 704, 708, 792, 797. Kinne v. Lant, 312, 331. Kinney v. Columbia Sav. & L. Asso. 855. Kipley v. Illinois, 772. Kirby v. American Soda Fountain Co. 470, 476, 779, 780. V. Chicago & N. W. R. Co. 804, 854. V. Lake Shore & M. S. R. Co. 17. Kirchberger v. American Acetylene Burner Co. 756, 757. Kirk v. DuBois, 27, 378. V. United States, 308. Kirkpatrick v. Eastern Mill. & Ex- port Co. 710, 727. V. Pope Mfg. Co. 550, 551. Kirven v. Virginia-Carolina Chemi- cal Co. 114, 199, 204, 209. Kissinger Iron Co. v. Bradford Belt- ing Co. 573, 634. Kitchen v. Randolph, 694, 711, 712, 714, 786, 788, 789. Kittel v. Augusta T. & G. R. Co. 399. Kittredge v. Race, 246. Kizer v. Texarkana & Ft. S. R. Co. 773. Klein v. Southern P. R. Co. 627. Klenk v. Byrne, 123, 431, 436. Klever v. Seawall, 611. Klinger v. Missouri, 774. Knapp V. S. Jarvis Adams Co. 9. v. Troy & B. R. Co. 54, 55. Kneeland v. American Loan & T. Co. 622, 724, 725, 727, 729. Knight v. International & G. N. R. Co. 818. V. Lutcher & M. Lumber Co. 267, 837. V. Shelton, 148. Knopholler v. St. Paul, M. & M. R. Co. 274. Knott V. Evening Post Co. 500. Knox County v. Harsham, 318, 654. V. United States, 714. Knox Rock-Blasting Co. v. Eiardoa Stone Co. 415. Knoxville v. Africa, 655, 656. V. Knoxville Water Co. 600, 602. Knoxville Water Co. v. Knoxville, 148. Knuth V. Butte Electric R. Co. 830, 839-841, 879. Koenigsburger v. Richmond Silver Min. Co. 61. Kohn v. McNulta, 13. Koike V. Atchison, T. A S. F. E. Oo. 93, 269, 574. Kolze V. Hoadley, 212. Korn V. Wiebusch, 408, 417. Kountze v. Omaha Hotel Co. 705. Kramer v. Cohn, 33, 578. Kraus v. Congdon, 257. Kreider v. Cole, 216, 574, 575, 578. Kreigh v. Westinghouse, C. K. & Co. 830, 853. Krippendorf v. Hyde, 486, 491, 493, 494, 506. Krohn v. Williams, 29. Kuchler v. Greene, 224. Kunkel v. Brown, 170, 171, 173, 174, 179, 195, 200. Kunsemiller v. Hill, 601. Kyle V. Chicago, E. I. & P. R. Co. 855. TABLK OP CASES. lix L. Lackett v. Eumbaugh, 332, 512. Lacroix v. Lyons, 885. La Daw v. E. Bement & Sons, 473. Ladd V. Missouri Coal & Min. Co. 700. & Mfg. Co. 638. Lader v. Tennessee Copper Co. 122. Ladew v. Tennessee Copper Co. 100. Lady Pike, Tlie, 797. Lafayette Ins. Co. v. French, 267. Lafferty Mfg. Co. v. Acme R. Signal & Mfg. Co. 638. Laidly v. Huntington, 818. Laird v. Indemnity Mut. M. Assur- ance Co. 213. Lake County v. Dudley, 59, 214, 216, 221, 579. V. Piatt, 35, 612. V. Schradsky, 59, 221. Lake Erie & W. R. Co. v. Fremont, 601. T. Indianapolis Nat. Bank, 445. Lake Nat. Bank v. Wolfeborough Sav. Bank, 652, 653. Lake Sliore & M. S. R. Co. v. Felton, 438. Lake Street Elev. R. Co. v. Farmers' Loan & T. Co. 804, 806, 827. V. Zeigler, 229, 234, 243, 252, 253. Lamb v. Ewing, 492. Lambert v. Barrett, 778. Lamm v. Parrott Silver & Copper Co. 242. La Montague v. T. W. Harvey Lum- ber Co. 807, 847. Lampasas v. Bell, 669, 679. Lancaster v. Asheville Street R. Co. 52, 54, 98, 100, 343. Land Go. v. Elkins, 233, 357. Landers v. Felton, 831. Land Title & T. Co. v. Asphalt Co. 18, 484, 873. v. Tatnall, 484. Lang V. Choctaw, 0. & G. R. Co. 365. Langdon v. Hillside Goal & I. Co. 846. Lange, Ex parte, 611. Lanier v. Alison, 26. Lanning v. Osborn, 187. Lant V. Manley, 245, 246. Lantz V. Fretts, 818, 823. La Page v. Day, 808. Larabee v. Dolley, 146, 147. Lathrop-Shea & H. Co. v. Interior Constr. & Improv. Co. 838, 859. Lathrop-Shea & H. Co. v. Pittsburg, S. & M. R. Co. 71. Latta V. Kilbourn, 606, 660, 662. Lau Ow Bew, Re, 761, 762. V. United States, 646, 759, 761. Laurel Oil cfe Gas Co. v. Galbreath Oil & Gas Co. 738. Lauriat v. Stratton, 253. Lautz V. Gordon, 476. La Vega v. Lapsley, 453. Lavis V. Consumers' Brewing Co. 478. Lawrence v. Nelson, 247. V. Southern Pacific Co. 232, 828, 853. { V. Southern P. R. Co. 247, 253. v. Times Printing Co. 232. Lawton v. Blitch, 878. Layton v. Missouri, 775, 778. L. Bucki & Son Lumber Co. v. At- lantic Lumber Co. 40. League v. Scott, 501. Leahy v. Haworth, 264. Leas V. Merriman, 307. Leathe v. Thomas, 154, 499. Leather Mfg. Nat. Bank y. Cooper, 87L Lebensberger v. Scofield, 813, 860. Lebert v. Hunt, 271. Lederer v. Ferris, 92, 93. V. Rankin, 92. V. Sire, 857. Lee V. Atlantic Coast Line R. Co. 268, 834. V. Watson, 170, 179. Leeds Woolen Mills, Re, 29. Lehigh Min. & Mfg. Co. Re, 674, 675. V. Kelly, 48, 59, 197, 216, 221, 578. Lehigh Valley R. Co. v. Rainey, 826. Lehigh Zinc & I. Co. v. New Jersey Zinc & I. Co. 192, 193. Leigh V. Green, 776. V. Kewanee Mfg. Co. 606. Lem Hing Dun v. United States, 742, 744. Lengel v. American Smelting & Eef. Co. 94. L'Engle v. Gates, 332. Leonard v. Ozark Land Co. 710. Le Page v. Day, 804. Lerma v. Stevenson, 882. Leslie v. Leslie, 290, 292. Less v. English, 32, 118, 170, 178, 179, 200, 332. Levin v. United States, 42. Levinski v. Middlesex Bkg. Co. 175, 200, 847. Levy V. Superior Ct. 772. L. E. Waterman Co. v. Lockwood, 573. k TABLE OF CASES. Lewis V. Baltimore & L. R. Co. 485, 489, 662, 726. V. Cocks, 11, 25, 28, 32. V. Darling, 264. V. Hitchman Coal & Coke Co. 651, 652. V. Shainwald, 12, 280, 281, 300, 504. Lewis Blind Stitch Co. v. Arbetter Felling Mach. Co. 122. Lewis Pub. Co. v. Wyman, 37, 40, 462, 578, 606. Leyson v. Davis, 161. Lilienthal v. Drucklieb, 19. V. McCormick, 174, 180, 470, 476, 477, 478, 488, 495, 507, 508. V. Washburn, 582. Lincoln v. Sun Vapor Street Light Co. 751. Lincoln Nat. Bank v. Perry, 610, 611. Linder v. Lewis, 389, 391, 627. Lindsay v. First Nat. Bank, 16. Lindsley v. Natural Carbonic Gas Co. 150, 242. Linkswiler v. Schneider, 160. Linn v. Green, 277. Littell V. Erie Co. 269. Little V. Bowers, 726. V. Giles, 71. Little Rock Junction R. Co. v. Burke, 629. Little York Gold-Washing & Water Co. V. Keys, 135, 158, 159, 160, 167, 842. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 20. Liverpool & L. & G. Ins. Co. v. Clunie, 225, 295, 296. Livingston v. Story, 413, 792. Lloyd V. Pennie, 549. Lochner v. New York, 149. Lockhart v. Horn, 53, 386, 389, 391. V. Leeds, 608. Lockman v. Lang, 692, 695, 698, 673, 702, 716, 718. Lockwood V. Cleaveland, 442, 443, 477. V. Wickes, 745. Lodge V. Twell, 606, 660, 663. Loeb V. Columbia Twp. 214, 215, 674, 678, 732, 767, 775. Loeber v. Schroeder, 774, 776. Logan V. Goodwin, 694, 711, 789. Lomax v. Foster Lumber Co. 70. Lombard Invest. Co. v. Seaboard Mfg. Co. 488, 489, 490. Londoner v. Denver, 778. London P. & A. Bank v. Aronstein, 76. Long V. Long, 860, 874. Loomis V. Rosenthal, 126. Loop V. Winters, 803, 837, 858, 875. Lord V. DeWitt, 845. V. Lehigh Valley R. Co. 820. V. Veazie, 726. Los Angeles City Water Co. v. Los Angeles, 148. Lott V. King, 569. Louden Machinery Co. v. American Malleable Iron Co. 859. Louisiana v. Mississippi, 10. V. Pillsbury, 147. V. Texas, 37. Louisiana Nat. Bank v. Whitney, 662. Louisville v. Cumberland Teleph. & Teleg. Co. 149, 152. Louisville & N. C. R. Co. v. Smith H. & Co. 785. Louisville & N. R. Co. v. Bitterman, 187. V. Emerson, 319. V. Fisher, 94, 853, 876. V. Ide, 69. V. Mottley, 43. V. Railroad Commission, 6. V. Smith, 186, 187, 188, 225. V. Wangelin, 71, 838, 877, 879, 880. Louisville, C. & C. R. Co. v. Letson, 73. Louisville, E. & St. L. R. Co. v. Wilson, 725. Louisville, N. A. & C. R. Co. v. Louis- ville Trust Co. 57, 75, 76, 78, 79, 81, 105, 764. V. Ohio Valley Improv. & Con- tract Co. 29, 296. V. Pope, 705, 710, 722, 760. Louisville Trust Co. v. Knott, 502, 668, 670. V. Louisville, N. A. & C. R. Co. 75, 80. V. Stockton, 688. V. Stone, 134. Louisville Underwriters, Re, 116. Loung June, Ex parte, 351. Love V. Bush, 682, 730. v. Louisville & E. R. Co. 183. Loveless v. Ransom, 702, 722, 723, 724, 729. Lovell V. Johnson, 430. V. Prentice, 193. Low V. Durfee, 618. Lowe V. Dewharp, 173. Lownsdale v. Grav's Harbor Boom Co. 269, 270, 271, 653. TABLE OF CASES. Ixi Lowrey v. Kusworm, 523, 570. Lowry v. Chicago, B. & Q. R. Co. 135. V. Tile, Mantel & Grate Asso. 118, 119, 332, 333. Lucas V. Milliken, 829. Lucker v. Phoenix Assur. Co. 812, 824. Ludeling v. Chaffe, 162, 773. Lull V. Clark, 589, 593. Lumley v. Wabash E. Co. 273, 277, 399. Lund V. Chicago, E. I. & P. E. Co. 141, 804, 808. Lung Chung v. Northern P. K. Co. 326, 329. Lusk V. Kimball, 359. Luxton V. North Eiver Bridge Co. 662. Lynch v. Murphy, 343, 344. Lyon V. Perin & G. Mfg. Co. 351. Lyon County v. Keene Five Cent Sav. Bank, 214, 215. M. Maas V. Lonstorf, 607, 615, 658. McAleer v. Lewis, 463. McAlister v. Chesapeake & 0. R. Co. 806, 808, 809. McArthur v. Scott, 224, 237, 251. McBee v. Marietta & N. G. R. Co. 98. McBride v. Grand de Tour Plow Co. 332. McCabe v. Southern E. Co. 349, 839. McCafferty v. Celluloid Co. 664, 699. McCain v. Des Moines, 162. McCall V. Deuchler, 321. McCandless v. Pratt, 162. McCarley v. McGee, 721. McClaskey v. Barr, 314, 450, 529, 568. McClellan v. Pyeatt, 706, 707, 708, 719 721 752. McClelland v. McKane, 61. McClintock v. Pawtucket, 638. McCloskey v. Barr, 296, 412, 415, 416, 417, 429. V. Pacific Coast Co. 31. McComb V. Chicago, St. L. & N. 0. R. Co. 478. McConihay v. Wright, 15, 17. McConnell v. Dennis, 230. McCord Lumber Co. v. Doyle, 317. McCormick v. Illinois C. R. Co. 830. V. Walthers, 90. McCormick Harvesting Mach. Co. v. Walthers, 52, 91. McCorquodale v. Texas, 774, 776. McCourt V. Singers-Bigger, 594, 701, 710. McCoy V. Rhodes, 438, 439. McCuUough V. Virginia, 147. McDaniel v. Stroud, 702. V. Tray lor, 176, 177, 192, 193, 195. McDonald v. Cooper, 340, 341. V. Miller, 28. V. Nebraska, 359, 363. V. Salem Capital Flour Mills Co. 121, 416, 418, 419. V. Seligman, 505. V. Whitney, 634. McDonnell v. Jordan, 872. McDowell V. McCormick, 500. McDuffee v. Boston & M. R. Co. 703. McDuffie V. Montgomery, 56. McElroy v. Swope, 604. McFadden v. United States, 678. McFarland v. State Sav. Bank, 289, 391, 441. McFarlane v. GoUing, 697, 699. McFaul V. Ramsey, 7. McGeorge v. Bigstone Gap Improv. Co. 251. McGilvra v. Ross, 160, 680, 755. MaoGinnis v. Boston & M. Consol. Copper & S. Min. Co. 68, 838. McGorray v. O'Connor, 433, 437, 446, 539. McGourkey v. Toledo & 0. C. R. Co. 606, 658, 660-662. McGraw v. Woods, 280, 284, 285. McGregor v. Vermont Loan & T. Co. 426, 611, 640, 757. McGuire v. Great Northern R. Co. 830, 878, 880. V. Massachusetts, 155. Mcllwaine v. Ellington, 732. Mclntire v. Pryor, 277. Mackall v. Richards, 797. McKane v. Burke, 342. McKay v. Kalyton, 776. Mackaye v. Mallory, 468. McKee v. Brooks, 138. v. Chautauqua Assembly, 190, 242. V. Coffin, 138. McKemy v. Supreme Court A. O. U. W. 354. Mackenzie v. Barrett, 280. V. Pease, 758. Mackey v. Gabel, 223, 226, 227. McKinley v. Lloyd, 26. McKinney v. Big-Horn Basin Devel- opment Co. 606. Mackintosh v. Flint & P. M. R. Co. 368. Ixii TABLE OF CASES. McKnight v. Dudley, 305. V. James, 778. McKown V. Kansas & T. Coal Co. 847, 877. McLean v. Clark, 578. McLennan v. Kansas City, St. J. & C. B. R. Co. 514, 538. MacLeod v. Graven, 658. V. New Albany, 488, 623, 624, 625. McLish V. K6ff, 650 657, 670-672, 675, 680, 780. McManus v. Chollar, 6. McMillan v. Noyes, 71. McMillen v. Ferrun Min. Co. 160. McMonagle v. McGlinn, 278. McMullen v. Ritchie, 241, 569. McMullen Lumber Co. v. Strother, 11, 286-288, 295, 483, 585, 586. McNamara v. Dwyer, 504. V. Home Land & Cattle Co. 595, 598, 604. V. Provident Sav. Life Asaur. Soc. 512. McNulta V. Lockridge, 154, 155, 161, 183, 254, 255. V. West Chicago Park, 717, 724, 754. McNulty V. Wiesen, 429. Macomb v. Armstead, 741. Macon v. Georgia Packing Co. 652, 678, 684. Macon, D. & S. R. Co. v. Shailer, 240. Macon Grocery Co. v. Atlantic Coast Line R. Co. 853. McPhee & McG. Co. v. Union P. R. Co. 117, 118, 130. McPherson v. Mississippi Valley Trust Co. 245, 246. McQuade v. Trenton, 772. McQuiddy v. Ware, 10. McVeagh v. Denver City Water Works Co. 423. Madisonville Traction Co. v. St. Ber- nard Min. Co. 500, 809, 835, 848, 850, 854. Maeder v. BuflFalo Bill's Wild West Co. 243, 404. MaflFet v. Quine, 173, 187. Magniac v. Thompson, 11. Magone v. Colorado Smelting & Min. Co. 530, 535, 536, 541, 543, 557. Maher v. Tovper Hotel Co. 232, 817 866. Mahler v. Animarium Co. 611. Mahr v. Union P. R. Co. 298. Maine v. Gilman, 846. Mailers v. Commercial Loan & T. Co. 775, 776. Mallett v. North Carolina, 776. Mallory Mfg. Co. v. Fox, 618. Mallow V. Hinde, 224. Malone v. Richmond & D. R. Co. 861, 865. Mandeville v. Riggs, 227, 237. Mangels v. Donau Brewing Co. 49, 63, 64. Manhattan L. Ins. Co. v. Wright, 613, 756. Manhattan Medicine Co. v. Wood, 10. Manhattan Trust Co. v. Trust Co. of N. A. 612. Manitowoc Malting Co. v. Feucht- wanger 356. Mankato v. Barber Asphalt Pav. Co. 410. Mann v. Gaddie, 63. Manning v. Berdan, 101, 342, 509. V. German Ins. Co. 611, 640. Mansfield, C. & L. M. R. Co. v. Swan, 196, 272, 577, 755, 868, 874, 875. Manufacturers' Commercial Co. v. Brown Alaska Co. 838, 851 Marbury v. Madison, 38. March v. Romare, 651. Marden v. Campbell Printing-Press & Mfg. Co. 608, 647, 655. Marine & River Phosphate Min. & Mfg. Co. V. Bradley, 576. Marion v. Ellis, 180. Markell v. Kasson, 482. Marks v. Marks, 48, 56, 58, 93, 117, 118, 120, 126, 269, 500. V. Northern P. R. Co. 688. Markwood v. Southern R. Co. 77, 81, 105. Marmo, Re, 666. Marquez v. Frisbie. 277. Marrs v. Felton, 163, 182, 839, 870. Marsh v. Nichols, S. & Co. 161. Marshall v. Baltimore & 0. R. Co. 74. V. Holmes, 249, 501, 639, 641, 643, 806. V. Otto, 263, 352, 409, 411, 413, 436. V. Turnbull, 274. Marten v. Holbrook, 150. Marthinson v. King, 33, 192. V. Winyah Lumber Co. 359. Martin v. Baltimore & O. R. Co. 77, 81, 105, 750, 814, 817-819. 856. v. Carter, 819. V. Hazard Powder Co. 653. V. Rainwater, 194. TABLE OF CASES. Ixiii Martin v. St. Louis Southwestern E. Co. 844. V. Snyder, 833. Martin & H. Cash-Carrier Co. v. Mar- tin, 754. Jlartindale v. Waas, 299, 624. Marvin v. Ellis, 59, 578. Maryland Trust Co. v. Kirby Lum- ber Co. 543. Mason v. Crosby, 594. V. Dullaghan, 64, 229. V. Hartford P. & F. K. Co. 355, 367, 379, 381, 422, 424, 464. V. Pewabic Min. Co. 796. Massachusetts & S. Constr. Co. v. Cane Creek Twp. 233. Massachusetts Ben. Life Asso. v. Lohmiller, 18. Massachusetts Loan & T. Co. v. Kan- sas City & A. R. Co. 485, 489, 873. Massachusetts Mut. Ii. Ins. Co. v. Chicago & A. K. Co. 236. Massenberg v. Denison, 738. Massie v. Buck, 500. ilasterson v. Howard, 391. Matheson v. Hanna-Schoelkopf Co. 573, 605. Mathews Slate Co. v. Mathews, 877, 881. Mathieson v. Craven, 229, 232. Matthews v. Puffer, 312, 315. Mattingly v. Northwestern Virginia E. Co. 717, 828. Maxim-Nordenfelt Guns & Ammuni- tion Co. V. Colt's Patent Fire Arms JIfg. Co. 549, 554, 738. Maxwell v. Atchison, T. & S. F. E. Co. 171, 174, 195, 198, 320. V. Federal Gold & Copper Co. 61. May V. St. John, 8o8. Mayer v. Ft. Worth & D. C. E. Co. 820. Mayhew v. West Virginia Oil & Oil Land Co. 621. Maynard v. Green, 357, 358, 366, 371. V. Heeht, 673, 674. Mayo V. Dockerv, 138, 139, 153, 815, 843, 877. Mays V. Newlin, 804, 806, 808. Meagher v. Minnesota Thresher Mfg. Co. 608, 658, 663. Mears v. Lockhart, 557, 558, 738. Mechanics' Bank v. Seton, 262. Mechanics' Ins. Co. v. C. A. Hoover Distilling Co. 30. Mecke " Valley Town Mineral Co. 323, 324, 331, 804, 808, 815, 820, 859. Medsker v. Bonebrake, 593. MehrhofF v. Mehrhofl, 239. Meissner v. Buck, 473, 481. Mellen v. Moline Malleable Iron Works, 98, 101, 343. Mellor V. Smither, 353, 365, 367. Memphis v. Postal Teleg. Cable Co. 846. Memphis & C. E. Co. v. Alabama, 77, 78. Memphis Keeley Institute v. Leslie E. Keeley Co. 662. Memphis Sav. Bank v. Houchens, 194, 852. Menard v. Goggan, 57, 93, 121, 197, 359. Mendenhall v. Hall, 717. Menefee v. Frost, 64, 65. Menge v. Warriner, 659. Mercantile Nat. Bank v. Barron, 813. V. Carpenter, 354, 404. Mercantile Trust & D. Co. v. Collins Park & Belt E. Co. 147. V. Columbus, 147. V. Ehode Island Hospital Trust Co. 403. V. Eoanoke & S. E. Co. 488, 500. Mercantile Trust v. Atlantic & P, E. Co. 478. V. Chicago, P. & St. L. E. Co. 606, 660. V. Missouri, K. & T. E. Co. 346, 403, 422, 430, 436. V. Portland & 0. E. Co. 336. Merchants' Cotton Press & Storage Co. V. Insurance Co. of N. A. 49, 68, 87, 231, 251, 828, 833. Merrihew v. Fort, 100, 335. Merrill v. Floyd, 742. Merriman v. Chicago & E. I. R. Co. 284, 285, 290, 358, 757. V. Chicago, D. & V. E. Co. 732. Merritt v. American Steel Barge Co. 342, 491, 500, 501, 502. Mersman v. Werges, 217. Messinger v. Anderson, 793. Metcalf V. American School Furni- ture Co. 29, 240. V. Watertown, 44, 143, 145, 153, 164, 165, 203, 207, 212, 360, 575, 795. Metropolitan L. Ins. Co. v. McNall, 109. Metropolitan Nat. Bank v. St. Louis Dispatch Co. 357. Metropolitan R. Eeceivership, Ee, 484, 578. Metropolitan Trust Co. v. Columbus S. & H. E. Co. 255, 293. Lxiv TABLE or 4:ases. Mexican C. R. Co. v. Duthie, 356, 363. V. Eckman, 55, 665, 667, 668, 670. V. Pinkney, 49, 107, 268, 269, 317, 320, 321, 330, 331. Mexican Nat. Constr. Co. v. Reusens, 705, 707. Mexican Nat. R. Co. v. Davidson, 208-211, 216, 332, 850, 852. Mexican R. Co. v. Eckman, 55. Meyer v. Consolidated Ice Co. 548. V. Hot Springs Imp. Co. 687, 688. V. Kuhn, 335, 341, 471, 480. V. Mansur & T. Implement Co. 735, 736. V. Pennsylvania Lumbermen's Mut. F. Ins. Co. 324. V. Richmond, 154, 156, 774. Michigan C. R. Co. Re, 607, 663, 727. Michigan Ins. Bank v. Eldred, 738. Michigan Sugar Co. v. Dix, 771, 777. V. Michigan, 771, 777. Middleton v. Bankers & M. Teleg. Co. 605. Middleton Paper Co. v. Rock River Paper Co. 307. Midland Contracting Co. v. Toledo Foundry & Mach. Co. 118. Miles V. New South Bldg. & L. Asso. 252. Miller v. Ahrens, 343. V. Cliflford, 69, 838. V. Cornwall R. Co. 775. V. LeMars Nat. Bank, 839. V. New York C. & H. R. R. Co. V. Norfolk & W. R. Co. 322. V. Pennsylvania R. Co. 90, 270. V. Rickey, 394, 398, 401, 413, 415, 416, 423, 476, 614. V. Rogers, 370, 373, 374. V. Steele, 22, 515. V. Texas, 776. V. Wattier, 577. Miller-Magee Co. v. Carpenter, 122. Millingar v. Hartupee, 157. Mills V. Chicago, 29, 240, 242, 579. V. Green, 726, 745, 750, 756. V. Knapp, 26, 33. V. Newell, 810. V. Provident Life & T. Co. 499. Milwaukee v. Shailer & S. Co. 751. Milwaukee & M. R. Co. v. Chamber- lain, 473, 483, 507. V. Milwaukee & St. P. R. Co. 311, 367, 371,482. V. Soutter. See Milwaukee R. Co. V. Milwaukee & St. P. R. Co. Milwaukee R. Co. v. Milwaukee & St. P. R. Co. 367. Miner v. Markham, 312. Minford v. Old Dominion S. S. Co. 107. Minneapolis 17. If incorporated in several States, a citizen of each State of its incorporation cannot sue it in the Federal court of that State of which he is a citizen, but may sue it in a Federal court in a State of which he is a nonresident, Goodwin v. New York, N. H. & H. R. Co. 124 Fed. 358 ; Burger v. Grand Rapids & I. R. Co. 22 Fed. 563 ; Goodwin v. Boston & M. R. Co. 127 Fed. 986 ; Johnson v. Union P. R. Co. 145 Fed. 252. But a railroad operated in several States by license or lease has no citizenship in such States, and may be sued by citizens of the States in which it so operates, in the Federal Courts. Louis- ville, N. A. & C. R. Co. V. Louisville Trust Co. 174 U. S. 562, 563, 43 L. ed. 1086, 1087, 19 Sup. Ct. Rep. 817; Martin v. Baltimore & O. R. Co. (Gerling v. Baltimore & O. R. Co.) 151 U. S. 677, 38 L. ed. 313, 14 Sup. Ct. Rep. 533; Baltimore & O. R. Co. V. Koontz, 104 U. S. 5, 26 L.'ed. 643; Markwood V. Southern R. Co. 65 Fed. 823; Western & A. R. Co. v. Rob- erson, 9 C. C. A. 646, 22 U. S. App. 187, 61 Fed. 596, 597; 105 106 WnEKE A COEPOEATION MAY BE SUED. Morgan v. East Tennessee & V. E. Co. 48 Fed. 705. Such are the general rules as established since 1888. Prior to the passage of the judiciary act of that year, a cor- poration could be sued in any State where found; that is, in any State where it accepted the conditions prescribed by the State and had by its agents established its business. Hayden V. Androscoggin Mills, 1 Fed. 93-95 ; Ex parte Sch'ollenberger, 96 U. S. 375, 376, 24 L. ed. 854; United States v. Southern P. R. Co. 49 Fed. 302 ; Southern P. Co. v. Denton, 146 U. S. 207, 208, 36 L. ed. 945, 13 Sup. Ct. Eep. 44; Ee Keasbey & M. Co. 160 TJ. S. 228, 40 L. ed. 404, 16 Sup. Ct. Eep. 273, and authorities cited; Piatt v. Massachusetts Eeal Estate Co. 103 Fed. 707 ; United States v. S. P. Shotter Co. 110 Fed. 2. By the act of 1888, we have seen, the words of the previous judiciary act, to wit, "or in which he shall be found at the time of serving process or commencing proceedings," were re- pealed, and the following language substituted: "But when 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 plaintiff or defendant." So that now we have established both as to corporations as well as individuals, that if jurisdiction be founded on the diverdity of citizenship, the plaintiff, whether an individual or a cor- poration (Central Trust Co. v. Virginia, T. & C. Steele &. I. Co. 55 Fed. 773; Empire Coal & Transp. Co. v. Empire Coal & Min. Co. 150 U. S. 164, 37 L. ed. 1039, 14 Sup. Ct. Eep. 66), can sue a nonresident corporation either in plaintiff 'b district, when the defendant corporation is doing business; in the State (United States v. Bell Teleph. Co. 29 Fed. 17), or in the State and district of which defendant corporation is an inhabitant, which, as we have seen, can only be the State of its organization. Wolff v. Choctaw E. Co. 133 Fed. 602; St. Louis & S. F. E. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Eep. 982; Ee Keasbey & M. Co. 160 U. S. 229, 40 L. ed. 405, 16 Sup. Ct. Eep. 273; Galveston, H. & S. A. E. Co. V. Gonzales, 151 U. S. 497, 38 L. ed. 248, 14 Sup. Ct. Eep. 401 ; Southern P. Co. v. Denton, 146 U. S. 202, 36 L. ed. 942, 13 Sup. Ct. Eep. 44; Piatt v. Massachusetts Eeal Estate Co. 103 Fed. 705-707; Filli v. Delaware, L. & W. E. Co. 37 Fed. 66; K K. Fairbank & Co. v. Cin.hinati, "WHEEE A COKPOEATION MAY BE SUED. 107 K O. & T. P. E. Co. 4 C. C. A. 403, 9 U. S. App. 212, 54 Fed. 421; Dinzy v. Illinois C. E. Co. 61 Fed. 51; Minford v. Old Dominion S. S. Co. 48 Fed. 1. From the above authorities we have the rule briefly stated as follows: A nonresident corporation cannot be sued in the Federal courts, without its consent, in a State in which it is merely doing business (Shaw v. Quincy Min. Co. 145 U. S. 450, 36 L. ed. 771, 12 Sup. Ct. Eep. 935; Southern P. Co. V. Denton, 146 U. S. 205, 36 L. ed. 945, 13 Sup. Ct. Eep. 44), except by a citizen of that State in the district of which he is an inhabitant; or, to state the rule more fully. A corpora- tion incorporated in one of the States of the Union cannot be compelled to answer to a civil suit at law or in equity in a circuit court of the United States held in another State or dis- trict, even if the corporation has a iisual place of business in that district, unless the plaintiff is a citizen and resident of the district. Ibid. ; Mexican C. E. Co. v. Pinkney, 149 U. S. 204, 37 L. ed. 703, 13 Sup. Ct. Eep. 859; Eust v. United Waterworks Co. 17 C. C. A. 16, 36 U. S. App. 167, 70 Fed. 136, 137 ; Galveston H. & S. A. E. Co. v. Gonzales, 151 U. S. 496, 38 L. ed. 248, 14 Sup. Ct. Eep. 401; Wange v. Public Service E. Co. 159 Fed. 190; Haight & F. Co. v. Weiss, 84 C. C. A. 224, 156 Fed. 328. Bear in mind, this rule only applies when jurisdiction depends on diversity of citizenship ; on any other ground, as the existence of a Federal question, the corporation can only be sued, without its consent, in the Federal courts in the State of. its incorporation and district of its habitation. Ibid. ; Adriance, P. & Co. v. McCormick Harvesting ilach. Co. 55 Fed. 287, 288; Cramer v. Singer Mfg. Co. 59 Fed. 75 ; Ee Keasbey & M. Co. 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Eep. 273; Shaw v. Quincy Min. Co. 145 U. S. 449, 36 L. ed. 771, 12 Sup. Ct. Eep. 935. The provision of the judiciary act fixing venue as above set forth is not fundamental, or essential to the exercise of judicial power by the Federal courts, and therefore a corporation sued in the Fed- eral courts of any State may by general appearance waive the right to object that the suit is not brought in a district of its, or the plaintiff's, residence. Ee Keasbey & M. Co. 160 U. S. 229, 40 L. ed. 405, 16 Sup. Ct. Eep. 273 ; Interior Constr. & Improv. Co. V. Gibney, 160 U. S. 219, 40 L. ed. 401, 16 Sup. 108 WHERE A COEPOKATION MAY' BE SUED. Ct. Eep. 272; Southern P. Co. v. Denton, 146 U. S. 206, 36 L. ed. 945, 13 Sup. Ct. Eep. 44; St. Louis & S. F. E. Co. V. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Eep. 982. In United States v. American Bell Teleph. Co. 29 Fed. 17, and Mecke v. Valley Town Mineral Co. 89 Fed. 114, it was held that, in the absence of a voluntary appearance, three conditions must concur in order to give a Federal court juris- diction in personam over a corporation in a State other than of its organization. First. It must appear that the defendant corporation is carrying on business in such State or district where suit is brought. Barnes v. Western U. Teleg. Co. 120 Fed. 550; Con- necticut Mut. L. Ins. Co. V. Spratley, 172 U. S. 602, 43 L. ed. 569, 19 Sup. Ct. Eep. 308 ; Southern P. Co. v. Denton, 146 U. S. 202, 36 L. ed. 942, 13 Sup. Ct. Eep. 44; Boardman v. S. S. McClure Co. 123 Fed. 614; Frawley v. Pennsylvania Casualty Co. 124 Fed. 263, and authorities cited. Auden- reid v. East Coast Mill. Co. 124 Fed. 697. Second. That it is managed by some officer or agent ap- pointed by and representing the corporation in such State. Ibid. Third. The existence of some local law making foreign cor- porations generally amenable to suit in the State as a condi- tion precedent to doing business in the State, either express or implied. Williams v. Gold Hill Co. 96 Fed. 457; Dinzy v. Illinois C. E. Co. 61 Fed. 49 ; Frawley v. Pennsylvania Cas- ualty Co. 124 Fed. 259 ; Berry v. Knights Templars' & M. Life Indemnity Co. 46 Fed. 441 ; Hill v. Empire State-Idaho Min. & Developing Co. 156 Fed. 797; Mutual Eeserve Fund Life Asso. V. Phelps, 190 U. S. 157, 47 L. ed. 994, 23 Sup. Ct. Eep. 707; Barron V. Burnside, 121 U. S. 200, 30 L. ed. 919, 1 Inters. Com. Eep. 295, 7 Sup. Ct. Eep. 931 ; New England Mut. L. Ins. Co. V. Woodworth, 111 TJ. S. 146, 28 L. ed. 381, 4 Sup. Ct. Eep. 364; Baltimore & 0. E. Co. v. Koontz, 104 U. S. 10, 26 L. ed. 644; Mooney v. Buford & a. Mfg. Co. 18 C. C. A. 421, 34 U. S. App. 581, 72 Fed. 32 ; Ex parte SchoJlen- berger, supra; Baltimore & O. E. Co. v. Harris, 12 Wall. 81, 20 L. ed. 358. Under this third ground it may be stated that the States, in fixing the conditions under which foreign corporations can do WHEEE A COEPOEATIO:7 MAY BE SUED. 109 business, generally providing for issuing process, and service on foreign corporations. It may be further stated as to the third condition, that the statutes of States cannot abiidge or impair the jurisdiction of Federal courts over foreign corporations (Blodgett V. Lanyon Zinc Co. 58 C. C. A. 79, 120 Fed. 894) ; that no limitation of suability fixed in such local statutes can affect Federal jvirisdiction, it otherwise appearing (Barrow S. S. Co. V. K&ne, 170 TJ. S. Ill, 42 L. ed. 968, 18 Sup. Ct. Kep. 526), and while Federal courts will follow the statutory conditions of States, it will not be bound by them, if in their opinion they obstruct the due administration of justice, or are in conflict with the constitution and laws of the United States. Barron v. Burnside, supra ; Metropolitan L. Ins. Co. v. Mc- ISTall, 81 Fed. 896; Groton Bridge & Mfg. Co. v. American Bridge Co. 151 Fed. 874; Butler Bros. Shoe Co. v. United States Rubber Co. 84 C. C. A. 167, 156 Fed. 18; Colby v. Cleaver, 169 Fed. 206, 207. In a word, such statutes are not essential to the jurisdiction of the Federal court. Barrow S. S. Co. V. Kane, supra; Wilson Packing Co. v. Hunter, 8 Biss. 429, Fed. Cas. JSTo. 17, 852. Let us now illustrate the rules as above stated. In Southern P. Co. V. Denton, 146 U. S. 205, 36 L. ed. 945, 13 Sup. Ct. Hep. 44, jurisdiction rested upon diversity of citizenship. Den- ton, a citizen of Red Eiver county in Texas, and therefore an inhabitant of the Eastern District of Texas, sued the Southern Pacific Railway Company, a Kentucky corporation, in the United States court at Austin, which is in the western district of Texas, alleging that the defendant was doing business in the western district of Texas, having an agent there, one Jessup, etc. The corporation filed a demurrer to the jurisdiction, thus admitting the facts, but claiming that no jurisdiction was shown. The Supreme Court of the United States sustained the demurrer, holding that since the act of 1888 had repealed the provision in the act of 1875, permitting suit where the de- fendant may be found, and required the suit to be brought in the district in which plaintiff was an inhabitant, or in the district and State of which defendant was an inhabitant (in this case Kentucky) that the suit in this case could only have been brought in the eastern district of Texas or in Kentucky. Shaw V. Quincy Min. Co. 145 U. S. 444, 36 L. ed. 768. 12 Sup. Ct. 110 WHEEE A COEPOEATION MAY BE SUED. Rep. 935; Pacific Mut. L. Ins. Co. v. Tompkins, 41 C. C. A. i88, 101 Fed. 545; Piatt v. Massachusetts Eeal Estate Co. 103 Fed. 707 ; Stonega Coal & Coke Co. v. Louisville & M. R. Co. 139 Fed. 271, 272. The contention was that doing busi- ness in the western district of Texas, and having an agent there, was equivalent to consenting to be sued in the western district, under the statute of 1887 of Texas, requiring a for- eign corporation transacting business in Texas to file with the secretary of state a certified copy of its articles of incorpora- tion, and authorizing service of process on any of its agents and officers in the State. The Supreme Court said that such a statute might subject the corporation to suit in any of the districts under the statutes of 1789 and 1875 (Ex parte Schollenberger, 96 TJ. S. 375, 24 L. ed. 854; Piatt v. Massachusetts Real Estate Co. 103 Fed. 706, 707; New England Mut. L. Ins. Co. v. Woodworth, 111 TJ. S. 138-146, 28 L. ed. 379-382, 4 Sup. Ct. Rep. 364), but such an agreement between the State and corporation since 1888, as interpreted in Shaw v. Quincy Min. Co. supra, could not compel the defendant to be sued other than in the State and district of its residence, or the residence of the plaintiff. Ibid. ; Southern P. Co. v. Denton, 146 U. S. 208, 36 L. ed. 945, 13 Sup. Ct. Rep. 44. See Wange v. Public Service R. Co. 159 Fed. 190. The case of Shaw v. Quincy Min. Co. supra, referred to, raised the question whether a nonresident could sue a corpora- tion doing business in the State where sued, such corporation being chartered by and a citizen of another State. The plea to the jurisdiction was sustained because it presented a case where neither plaintiff or defendant were citizens of the State of suit. You will find in Zambrino v. Galveston, H. & S. A. R. Co. 38 Fed. 449, and in Riddle v. New York, L. E. & W. R. Co. 39 Fed. 290, both cases tried shortly after the act of 1888 was passed, it was held that a foreign corporation could be sued in the district of a State in which it was doing business through its agents ; but in Filli v. Delaware, L. & W. R. Co., 37 Fed. 66 ; Booth V. St. Louis Fire Engine Mfg. Co. 40 Fed. 1; My- ers V. Murray, N. & Co. 11 L.R.A. 216, 43 Fed. 695, and Na- tional Typographic Co. v. New York Typographic Co. 44 Fed. WHERE A COKPOEATION MAY BE SUED. Ill 711, a different conclusion was reached, which conclusion was sustained by the Supreme Court in the cases above referred to. What District is the Doniicil of a Corporation. But the question often arises, when a corporation is "doing business" in various Federal districts of a State, as to which of the districts it is an inhabitant. The rule may be stated, that it is an inhabitant of the district in which it has its prin- cipal office or headquarters, and having its principal office in one district, it cannot be considered an inhabitant of another Federal district. Ee Dunn, 212 U. S. 375, 53 L. ed. 558, 29 Sup. Ct. Eep. 299; Weed v. Centre & C. Street E. Co. 132 Fed. 151; Wolff v. Choctaw, O. & G. E. Co. 133 Fed. 601; Galveston, H. & S. A. E. Co. v. Gonzales, supra ; Gorraully & J. Mfg. Co. V. Pope Mfg. Co. 34 Fed. 818 ; :Nr. K. Fairbank & Co. V. Cinncinnati, N. 0. & T. P. E. Co. 4 C. C. A. 403, 9 U. S. App. 212, 54 Fed. 421; Weller v. Pennsylvania E. Co. 113 Fed. 503. Thus, in Galveston, H. & S. A. E. Co. v. Gonzales, supra, it was held that a corporation organized under the laws of a State in which there are four Federal districts, and hav- ing its principal office in one of the districts, must be sued there, though it operates its line of railway through the other districts ; and this rule applies whether the suit be brought by an alien or nonresident. CHAPTER XIX. DOING BUSINESS. A foreign corporation to be sued in a State other than the State of its organization must be "doing business" in the State where sued. Green v. Chicago, B. & Q. E. Co. 147 Fed. 767 ; Commercial Mut. Acci. Co. v. Davis, 213 U. S. 255, 53 L. ed. 787, 29 Sup. Ct. Rep. 445, and authorities cited; Barrow S. S. Co. T. Kane, 170 U. S^ 100, 42 L. ed. 964, 18 Sup. Ct. Rep. 526; Connecticut Mut. L. Ins. Co. v. Spratley, 172 U. S. 602, 43 L. ed. 569, 19 Sup. Ct. Rep. 308; Pennsylvania Lumbermen's Mut. P. Ins. Co. v. Meyer, 197 U. S. 407, 49 L. ed. 810, 25 Sup. Ct. Rep. 483 ; Peterson v. Chicago, R. I. & P. R. Co. 205 U. S. 364, 51 L. ed. 841, 27 Sup. Ct. Rep. 513 ; Swann v. Mutual Reserve Fund Life Asso. 100 Fed. 922 ; Frawley v. Pennsylvania Casualty Co. 124 Fed. 263, and authorities cited; Boardman v. S. S. McClure Co. 123 Fed. 614; Kibbler v. St. Louis & S. F. R. Co. 147 Fed. 882. (See service of process on corporations.) If not "doing business," legal service cannot be had, even though State laws authorize it. Ibid. ; Swann v. Mutual Reserve Fund Life Asso. supra ; Rust V. United Waterworks Co. 17 C. C. A. 16, 36 U. S. App. 167, 70 Fed. 130; Geer v. Mathieson Alkali Works, 190 U. S. 428, 47 L. ed. 1122, 23 Sup. Ct. Rep. 807. See also Bar- row S. S. Co. V. Kane, supra. This question is one of general, not local, law. Frawley v. Pennsylvania Casualty Co. 124 Fed. 259; Barrow S. S. Co. V. Kane, supra. A State may prescribe conditions, except as to interstate matters, permitting business, but it canuot pre- scribe in advance what acts will be considered as doing busi- ness. Ibid. ; Cyclone Min. Co. v. Baker Light & P. Co. 165 Fed. 996 ; Tennis Bros. Co. v. Wetzel & T. R. Co. 140 Fed. 196. It is therefore sometimes difficult to determine whether a foreign corporation is doing business in a State so that it 113 DOING B0SINESS. 113 may be sued there, and I can only suggest through illustration when service can be perfected so as to give jurisdiction on a foreign corporation in another State. A New York corporation collecting and distributing news, but with no office or place of business in a State, is not doing business (Evansville Courier Co. V. United Press, 74 Fed. 918), but a paper having an agent in another State soliciting advertisements and making contracts can be sued by service on such agent (Palmer v. Chi- cago Herald Co. 70 Fed. 886). A bank receiving premiums d\ie to an insurance company for the convenience of policy hold- ers does not constitute doing business so as to be bound by serv- ice on the officers of the bank. Swann v. Mutual Eeserve Fund Life Asso. 100 Fed. 923; Cooper v. Brazelton, 68 C. C. A. 188, 135 Fed. 476. A corporation selling goods through a drummer does not make service on the drummer good. Ameri- can Wooden-Ware Co. v. Stem, 63 Fed. 676. But a manu- facturing corporation outside of the State where sued, employ- ing another corporation to sell goods for them, is doing busi- ness in such State, and service on its agents is good. Cone v. Tuscaloosa Mfg. Co. 76 Fed. 891 ; United States Kubber Co. V. Butler Bros. Shoe Co. 132 Fed. 398. Lending money in a State by a foreign corporation to one who contracts to pay in the foreign State is not doing business so that service would be good in the State where the money is loaned. Gilchrist v. Helena, H. S. & S. E. Co. 47 Fed. 595 ; Csesar v. Capell, 83 Fed. 412-414. Collecting dues, premiums, and assessments on policies in a State is doing business, though State license is withdrawn. Mutual Reserve Fund Life Asso. v. Phelps, 190 U. S. 157, 47 L. ed. 994, 23 Sup. Ct. Rep. 707; Sparks V. National Masonic Acci. Asso. 73 Fed. 285 ; Connecticut Mut. L. Ins. Co. v. Spratley, supra. Effecting insurance through correspondence is not doing business. Hazeltine v. Mississippi Valley F. Ins. Co. 55 Fed. 749 ; Good Hope Co. v. Railway Barb Fencing Co. 23 Blatchf. 43, 22 Fed. 637. A railroad company having no tracks in the district is not doing business because it hires an office and maintains an agent in the district to solicit business. Green v. Chicago, B. & Q. R. Co. 205 U. S. 530, 534, 51 L. ed. 916, 917, 27 Sup. Ct. Rep. 595, and authorities cited. Goepfert v. Compagnie Generale Transatlantique, 156 Fed. 196. So, having an agent in a State S. Eq.— 8. ■ti4 DOING BUSINESS. soliciting orders for a foreign manufacturer, but not making contracts, is not doing business within the rule permitting serv- ice of process to be made. Fawkes v. American Motor Car Sales Co. 176 Fed. 1010; Kirven v. Virginia-Carolina Chemi- cal Co. 76 C. C. A. 172, 145 Fed. 293, 7 A. & E. Ann. Cas. 219. So sales of goods by a foreign corporation through sales- men to citizens of another State, belonging to the operation of interstate commerce, are not affected by restrictive laws af the States requiring conditions precedent to "doing business" in a State. Kirven v. Virginia-Carolina Chemical Co. supra; Julius Kessler & Co. v. Perilloux, 127 Fed. 1011. However, it is held that the interstate commerce clause does not apply to a foreign corporation maintaining a continuous agency in a State from which orders are solicited and the goods deliv- ered to purchasers. Diamond Glue Co. v. United States Glue Co. 187 U. S. 611, 47 L. ed. 328, 23 Sup. Ct. Eep. 206. Nor are isolated contracts of this character between indi- viduals of a State and foreign corporations "doing business" in the State. Kirven v. Virginia-Carolina Chemical Co. su- pra; Oakland Sugar Mill Co. v. Fred W. Wolf Co. 55 C. C. A. 93, 118 Fed. 239; Cooper Mfg. Co. v. Ferguson, 113 U. S. 734, 28 L. ed. 1139, 5 Sup. Ct. Eep. 739 ; Frawley v. Penn- sylvania Casualty Co. supra; Allgeyer v. Louisiana, 165 U. S. 592, 41 L. ed. 836, 17 Sup. Ct. Rep. 427; Csesar v. Capell, 83 Fed. 409, 413 ; Clews v. Woodstock Iron Co. 44 Fed. 31 ; Hazeltine v. Mississippi Valley F. Ins. Co. supra; Gilchrist v. Helena, H. S. & S. E. Co. 47 Fed. 593 ; Good Hope Co. v. Eailway Barb Fencing Co. supra ; Eobinson v. American Lin- seed Co. 147 Fed. 886. It has been stated as a test, that if a corporation of one State engages in business in another State under such circumstances that by the law of the latter State the corporation may be sued in the courts thereof, then it may be sued in the Federal courts in that State, if the case would be otherwise within the Federal jurisdiction. Dinzey v. Illinois C. E. Co. 61 Fed. 51 ; New England Mut. L. Ins. Co. v. Woodworth, 111 U. S. 146, 28 L. ed. 381, 4 Sup. Ct. Eep. 364; Baltimore & O. E. Co. v. Harris, 12 Wall. 81, 20 L. ed. 358 ; Ex parte Schollenberger, 96 U. S. 375, 24 L. ed. 854. DOING BUSINESS. 115 Corporations doing business in a State other than that of its incorporation can only be sued in a Federal court by citizens of that State, and not by citizens of another State. Shaw v. Quiney Min. Co. 145 U. S. 4-44, 36 L. ed. 768, 12 Sup. Ct. Eep. 935; St. Louis E. Co. V. Pacific E. Co. 52 Fed. 771 ; Adriance, P. & Co. V. McCormick Harvesting Mach. Co. 55 Fed. 287 ; Cen- tral Trust Co. V. Virginia, T. & C. Steel & I. Co. 55 Fed. 769 ; Southern P. Co. v. Denton, 146 U. S. 205, 36 L. ed. 945, 13 Sup. Ct. Eep. 44; Central Trust Co. v. McGeorge, 151 U. S. 134, 38 L. ed. 100, 14 Sup. Ct. Eep. 286 ; Ee Keasbey & M. Co. 100 U. S. 228, 229, 40 L. ed. 404, 405, 16 Sup. Ct. Eep. 273. Neither nonresidents nor aliens can thus sue a foreign corporation, whether doing business in the State or not, out of the State of its incorporation. Denton v. International Co. 36 Fed. 1 ; Campbell v. Duluth S. S. & A. E. Co. 50 Fed. 241, 242; Ee Hohorst, 150 U. S. 662, 37 L. ed. 1214, 14 Sup. Ct. Eep. 221 ; ISTational Typographic Co. v. New York Typographic Co. 44 Fed. 711 ; Gormully & J. Mfg. Co. v. Pope Mfg. Co. 34 Fed. 820 ; Filli v. Delaware, L. & W. E. Co. 37 Fed. 65 ; Barlow v. Chicago & X. W. E. Co. 164 Fed. 768. Alien Corporations. "What has hitherto been said about "foreign" corporations and the rules applicable to jurisdiction over them applies wholly to corporations created and organized imder the au- thority and laws of one of the United States "doing business" in another State than that of its organization. I come now to speak of the rules of jurisdiction applicable to "alien" cor- porations, or such as have been organized under the laws of a foreign country, "doing business" in the United States through its agencies. Alien corporations are not citizens of or inhabitants of any State within the jurisdictional acts (Shaw v. Quiney Min. Co. 145 U. S. 453, 36 L. ed. 772, 12 Sup. Ct. Eep. 935), and therefore jurisdiction cannot be based on diversity of citizen- ship, but under the provision of the statute giving jurisdiction where there shall be a controversy between citizens of a State and foreign States, citizens or subjects. The provision of the 116 DOING BUSINESS. statute providing the place of suit does not apply to aliens, and therefore they may be sued in any Federal district where they may be found. In Barrows S. S. Co. v. Kane, 170 U. S. 103, 42 L. ed. 965, 18 Sup. Ct. Eep. 526, an action was brought in the circuit court of the United States for the Southern District of New York by Kane, a citizen of New Jersey, against the steamship company, a corporation of Great Britain, for injuries received as a passenger on a voyage from Ireland. The contention was that, being a corporation organized in Great Britain, no suit in personam could be brought in this country without its con- sent. That the statutes of ISTew York made no provision for nor conferred on any court the power to issue process in an action by a nonresident; therefore the circuit court of the United States could acquire no jurisdiction; that is, a citizen of New Jersey could not bring in a Federal court in New York a suit against an alien corporation. The corporation had an agent, an oifice in New York city, upon whom service was made. The court answering the contention said: First. That the courts of the United States were not de- pendent on State statutes for perfecting service and acquiring jurisdiction. Second. That the conferring of jurisdiction by the Consti- tution where citizens and aliens had a controversy was suffi- cient to support the process and judgment. Third. That, the defendant being an alien corporation, the subsequent provisions of the judiciary act of 1888, providing for the place of suit, did not apply, and therefore an "alien" can be sued in any district in which valid service can be made or where found. Re Hohorst, supra ; He Louisville Underwrit- ers, 134 U. S. 488, 33 L. ed. 991, 10 Sup. Ct. Eep. 587 ; Gal- veston, H. & S. A. R. Co. V. Gonzales, 151 U. S. 497, 38 L. ed. 248, 14 Sup. Ct. Rep. 401. See Service of Process on Cor- porations. CHAPTEE XX. WAIVER OP JURISDIGTIOIT. In closing the subject as to the locus of the suit, I wish again to state that the right or privilege to be sued in the district of which one is an inhabitant is not jurisdictional in the sense of being fundamental. If the jurisdiction of the Federal court otherwise exists, then as to where the suit shall be brought may be waived by entering a general appearance or by an- swer. It is a personal exemption to be pleaded in order to be avail- able (St. Louis & S. F. E. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Eep. 982 ; Baltimore & 0. E. Co. v. Doty, 67 C. C. A. 38, 133 Fed. 869 ; Burch v. Southern P. Co. 139" Fed. 350; Piatt v. Massachusetts Eeal Estate Co. 103 Fed. 705 ; McPhee & McG. Co. v. Union P. E. Co. 87 C. C. A. 619, 158 Fed. 8, and authorities cited; United States Fi- delity Co. V. Woodson County, 76 C. C. A. 114, 145 Fed. 144; Van Doren v. Pennsylvania E. Co. 35 C. C. A. 282, 93 Fed. 260; Ex parte Schollenberger, 96 U. S. 378, 24 L. ed. 855; Eodgers v. Pitt, 96 Fed. 676, and authorities cited; Gregory v. Pike, 15 C. C. A. 33, 21 U. S. App. 658, 33 U. S. App. 76, 67 Fed. 847) ; but where it is apparent in the bill a demurrer is sufficient, and it is not necessary to file a plea in abatement (Southern P. Co. v. Denton, 146 U. S. 206, 36 L. ed. 942, 13 Sup. Ct. Eep. 44; Susquehanna & W. Valley E. & Coal Co. V. Blatchford, 11 Wall. 172, 20 L. ed. 179). Acts of Waiver. A general appearance by defendant, whether individual or corporation, waives the privilege (Interior Constr. & Improv. Co. V. Gibney, 160 U. S. 219, 220, 40 L. ed. 401, 402, 16 Sup. Ct. Eep. 272 ; Central Trust Co. v. McGeorge, 151 U. S. 133, 134, 38 L. ed. 100, 101, 14 Sup. Ct. Eep. 286; McPhee 117 118 WAIVER OF JUEISDICTION. & TVTcG. Co. V. Union P. R. Co. supra ; Ee Moore, 209 U. S. 506, 507, 52 L. ed. 911, 912, 28 Sup. Ct. Eep. 585, 706, 14 A. & E. Ann. Gas. 1164; Marks v. Marks, 75 Fed. 332; Eodgers v. Pitt, 96 Fed. 676, 677, and authorities cited; Southern P. Co. V. Denton, supra; Texas & P. E. Co. v. Cox, 145 U. S. 603, 36 L. ed. 832, 12 Sup. Ct. Eep. 905. See Eeinstadler r. Eeeves, 33 Fed. 308, for exceptions. Smith v. Lyon, 133 U. S. 315, 33 L. ed. 635, 10 Sup. Ct. Eep. 303) ; or by pleading to the merits (Ibid.; Southern Exp. Co. v. Todd, 5 C. C. A. 432, 12 U. S. App. 351, 56 Fed. 104; Collins v. Stott, 76 Fed. 613; Eddy v. Lafayette, 1 C. C. A. 441, 4 U. S. App. 247, 49 Fed. 810; Car- ter-Crume Co. v. Peurrung, 30 C. C. A. 174, 58 U. S. App. 388, 86 Fed. 442; Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237 ; Van Doren v. Pennsylvania E. Co. supra ; Midland Con- tracting Co. V. Toledo Foundry & Mach. Co. 83 C. C. A. 439, 154 Fed. 798 ; Creagh v. Equitable Life Assur. Soc. 83 Fed. 850; Less v. English, 29 C. C. A. 275, 56 U. S. App. 16, 85 Fed. 477). A demurrer to the bill waives. Ibid. ; St. Louis & S. F. E. Co. V. McBride, 141 U. S. 130, 35 L. ed. 660, 11 Sup. Ct. Eep. 982 ; Scott v. Hoover, 99 Fed. 247. As a gen- eral demurrer to the bill goes to merit. Lowry v. Tile, ^lan- tel & Grate Asso. 98 Fed. 817. If the demurrer raises the issue that the bill shows on its face want of jurisdiction, then it does not waive. Southern P. Co. v. Denton, supra ; Shaw V. Quincy Min. Co. 145 U. S. 453, 36 L. ed. 772, 12 Sup. Ct. Eep. 935. And where the demurrer is overruled, answer- ing over does not waive right to object to jurisdiction on ap- peal. Southern P. Co. v. Denton, supra ; Stonega Coal & Coke Co. V. Louisville & N. E. Co. 139 Fed. 272. The rule, then, is that the failure of defendant to present the issue as to want of jurisdiction by plea, demurrer, or answer before filing an answer to the merits is a waiver of jurisdiction of the court, because of being sued in the wrong district. Less v. Engl is! i, supra, and authorities; Interior Constr. & Improv. Co. v. Gib- ney, 160 U. S. 217, 40 L. ed. 401, 16 Sup. Ct. Eep. 272. Talcing of Depositions as Waiver. In Stonega Coal & Coke Co. v. Louisville & IST. E. Co. 139 Fed. 271, it was held that defendant did not waive objection ■WAIVER OF JURISDICTION. 119 to jurisdiction by appearing and participating in taking depo- sitions on the suit before issues made up (Pacific Mut. L. Ins. Co. V. Tompkins, 41 C. C. A. 488, 101 Fed. 539), but not wliere the case has proceeded beyond the pleading. Removal as Waiver. A petition for removal, and bond duly filed veaives the right to challenge the jurisdiction of the court on the ground of not filing the suit in the district of which the defendant is an in- habitant. Creagh v. Equitable Life, 83 Eed. 851 ; Gregory v. Pike, 67 Fed. 847; Sherwood v. Newport News Co. 55 Fed. 4 (see "Eeniovals"). WJio may Object. When there are several defendants, some of whom are not inhabitants of the district in which suit is brought, the ques- tion has arisen whether the defendants who are inhabitants of the district may not take the objection that others are not. The rule may be stated that the resident defendant cannot ob- ject, that his codefendant is sued out of his district. Smith v. Atchison T. & S. F. E. Co. 64 Fed. 1 ; Jewett v. Bradford Sav. Bank & T. Co. 45 Fed. 801. The joinder is not jurisdictional unless the nonresident chooses to make it so. Schultz v. High- land Gold Mines Co. 158 Fed. 341 ; Dominion Nat. Bank V. Olympia Cotton Mills, 128 Fed. 182; Lowry v. Tile, Man- tel & Grate Asso. supra. It is intimated in Interior Constr. Co. V. Gibney, 160 U. S. 220, 40 L. ed. 402, 16 Sup. Ct. Kep. 272, that under certain conditions the resident defendant may object to answering without the presence of the nonresident indispensable party. Elkhart Nat. Bank v. Northwestern Guaranty Loan Co. 84 Fed. 77, id., 30 C. C. A. 632, 58 U. S. App. 83, 87 Fed. 252; Blanchard v. Bigelow, 109 Fed. 275; Continental Adjustment Co. v. Cook, 152 Fed. 655. CHAPTEE XXL HOW ISSUE OF CITIZENSHIP EAISED AND PEOOF THEEEOTT. If the diversity of citizenship is not apparent, the issue can be raised by demurrer; if apparent, but not true, it may be raised by plea or answer. To properly understand how to for- mulate the plea or answer, and the character of proof neces- sary, we must bear in mind that citizenship, so far as the ju- risdictional act is concerned, must be that character of citizen- ship that identifies itself with a particular State ; and citizen- ship as defined in the 14th Amendment to the Constitution of the United States does not affect the rule. Morris v. Gilmer, 129 U. S. 315, 32 L. ed. 690, 9 Sup. Ct. Eep. 289 ; Shaw v. Quincy Min. Co. 145 U. S. 447, 36 L. ed. 770, 12 Sup. Ct. Eep. 935; Marks v. Marks, 75 Fed. 324. Again, you must distinguish between judicial and political citizenship. Marks v. Marks, 75 Fed. 327-332. As soon as a citizen moves to a State aniino manendi, he becomes a ju- dicial citizen, and may sue or be sued instanter in a Federal court and in the Federal district in which he may for the time reside, though he cannot vote. For jurisdictional purposes, then, citizenship requires : First, residence ; second, intention of permanency. State citizenship and "domicil" are the same thing (Marks V. Marks, 75 Fed. 324; Alabama G. S. E. Co. v. Carroll, 28 C. C. A. 207, 52 U. S. App. 442, 84 Fed. 779, 780) ; for domi- cil means residence animo manendi. Collins v. Ashland, 112 Fed. 178 ; Pacific Mut. L. Ins. Co. v. Tompkins, 41 C. C. A. 488, 101 Fed. 543 ; Harton v. Hawley, 155 Fed. 493 ; Marks v. Marks, 75 Fed. 331. Eesidence may exist animo revertendi, and for this reason the allegation of residence, as will hereafter be seen, is not sufficient. Citizenship and residence are not convertible terms. Sharon v. Hill, 26 Fed. 337-342; Eob- 120 HOW ISSUE OF CITIZENSHIP BAISED AND PROOF THEEEON. 121 ertson v. Cease, 97 U. S. 648, 24 L. ed. 1058 ; Pacific Mut. L. Ins. Co. V. Tompkins, supra, and authorities cited; Steig- leder v. McQuesten, 198 U. S. 141, 49 L. ed. 986, 25 Sup. Ct. Eep. 616 ; Chambers v. Prince, 75 Fed. 177 ; McDonald v. Salem Capital Plour-Mills Co. 31 Fed. 579 ; Eisele v. Oddie, 12S Fed. 945; Jones v. Subera, 150 Fed. 464; Menard v. Gog- gan, 121 U. S. 253, 30 L. ed. 914, 7 Sup. Ct. Eep. 873; Home V. George H. Hammond Co. 155 U. S. 393, 39 L. ed. 197, 15 Sup. Ct. Eep. 167; Wolfe v. Hartford Life & An- nuity Ins. Co. 148 U. S. 389, 37 L. ed. 493, 13 Sup. Ct. Eep. 602. A person may have several residences, but only one domi- cil. Tambrino v. Galveston, H. & S. A. E. Co. 38 Fed. 453, and authorities cited. "Eesidence," however, is an element of citizenship. McDonald v. Salem Capital Flour-Mills Co. 31 Fed. 577 ; Anderson v. Watt, 138 U. S. 695, 34 L. ed. 1078, 11 Sup. Ct. Eep. 449. See Eobertson v. Cease, supra. Burden of Proof. The burden of proof is on the defendant to defeat jurisdic- tion when the issue is raised. Foster v. Cleveland, C. C. & St. L. E. Co. 56 Fed. 436; Collins v. Ashland, supra; National Masonic Acci. Asso. v. Sparks, 28 C. C. A. 399, 49 U. S. App. 681, 83 Fed. 225; Adams v. Shirk, 55 C. C. A. 25, 117 Fed. 801 ; Alabama G. S. E. Co. v. Carroll, 28 C. G. A. 207, 52 U. S. App. 442, 84 Fed. 779, 780 ; Eucker v. Bolles, 25 C. C. A. 600, 49 U. S. App. 358, 80 Fed. 504; Hartog v. Memory, 116 U. S. 590, 591, 29 L. ed. 726, 6 Sup. Ct. B&p. 521. (See "Plea, Burden of Proof.) How tJi^ Issue is Raised. With these observations as to the character of citizenshij) necessary to jurisdiction, I will proceed to discuss how the is- sue is raised and proved. It wiU be seen, in discussing the bill in equity, that the diversity of citizenship must appear in the bill with certainty, as it will not be inferred from allegations. International Bank & T. Co. V. Scott, 86 C. C. A. 248, 159 Fed. 59 ; Boston Safe- Deposit & T. Co. V. Eacine, 97 Fed. 817; Stuart v. Easton, 156 U. S. 46, 39 L. ed. 341, 15 Sup. Ct. Eep. 268 ; Continen- tal L. Ini. Co. v. Ehoads, 119 U. S. 239, 30 L. ed. 380, 7 Sup. Ct. Eep. 193 ; Anderson v. Watt, 138 U. S. 702, 34 L. ed. 1081, 122 HOW ISSUE OF CITIZENSHIP EAISED AND PROOF THEEEOIT. 11 Sup. Ct. Eep. 449; Timmons v. Elytown Land Co. 139 TJ. S. 378, 35 L. ed. 195, 11 Sup. Ct. Eep. 585 ; Eoberts v. Lewis, 144 U. S. 656, 36 L. ed. 582, 12 Sup. Ct. Eep. 781. If it does not appear the appellate courts presTime the court below acted without jurisdiction. King Bridge Co. v. Otoe County, 120 U. S. 226, 30 L. ed. 623, 7 Sup. Ct. Eep. 552 ; Parker v. Ormsby, 141 U. S. 83, 35 L. ed. 655, 11 Sup. Ct. Eep. 912; Home v. George H. Hammond Co. 155 U. S. 394, 39 L. ed. 197, 15 Sup. Ct. Eep. 167. If it does not so appear ^in the bill, you may demur (Southern P. Co. v. Denton, 146 U. S. 202, 36 L. ed. 942, 13 Sup. Ct. Eep. 44), plead, or move to dismiss (Tice v. Hurley, 145 Fed. 391 ; Sanbo v. Union P. Coal Co. 146 Fed. 80; Eobertson v. Cease, supra; Miller-Magee Co. V. Carpenter, 34 Fed. 433). Being fundamental, there is no particular or exclusive way of raising the issue. Adams v. Shirk, 55 C. C. A. 25, 117 Fed. 801; Collins v. Ashland, 112 Fed. 175. Or it may be raised by motion when clearly apparent in the record. Lewis Blind Stitch Co. v. Arbetter Felling Mach. Co. 181 Fed. 974; Lader v. Tennes- see Copper Co. 179 Fed. 245; Steigleder v. McQuesten, 198 U. S. 141, 49 L. ed. 986, 25 Sup. Ct. Eep. 616. See Wright v. Skinner, 136 Fed. 694, suggesting that a motion is the only proper way under equity rule 20. Raising Issue hy Demurrer. The demurrer or motion is based purely on the record, and is a sufficient suggestion to the court of its want of jurisdiction. If a demurrer can be filed it should be in the following form : A. B. \ In Circuit Court of the United States vs. (. In Equity. for the District of C. D. J jSitting at Title as in bill. The demurrer of C. D., defendant (or the joint and several demurrer of C. D. and E. F., defendants). This defendant (or these defendants), not confessing all or any of the matters in the bill of complaint to be true, as herein alleged, demurs to said bill, and for cause of demurrer shows that it appears from said bill that jurisdiction of this court is dependent on diversity of citizenship, and that said diversity is not shown, for that plaintiff and defendant, or HOW ISSUE OF CITIZENSHIP EAISED AND PROOF THEEEON. 123 one of the defendants (naming him), are, as appears, citizens of the same, and not different States '(or that it appears that both plaintiff and defend- ant are aliens; or that there are aliens on both aides of the controversy with citizens of States; or that neither plaintiff or defendant are citizens of the State in which suit is brought; or citizens of the same State suiny in a third State, or two or more citizens of different States suing a de- fendant from a third State, or any other form of objection to the fact of the bill appearing unde' the rules of jurisdiction heretofore given ; but be specific in j'our statement). Wherefore defendant (or defendants) prays the judgment of the court whether he shall be compelled to answer further said bill, and further prays to be dismissed with his costs, etc. R. F., Solicitor, etc. See form, Stonega Coal & Coke Co. v. Louisville & N. R. Co. 139 Fed. 271. The demurrer, to be available, must be certified to by coun- sel, and sworn to by the defendant, as will be shown hereafter under "Demurrer." The demurrer, of course, is tried by the record. But the record may show a sufficient allegation of diversity of citizenship, which allegation may be untrue ; when this is the case, you must raise the issue by plea, as a proper allegation of citizenship is confessed if not denied. Hoppen- stedt V. Fuller, 17 C. C. A. 623, 36 U. S. App. 271, 71 Fed. 99. In Crovm Cork & Seal Co. v. Standard Brewery, 174 Fed. 252, it is said that a proper allegation of citizenship, though denied in the answer, is admitted unless a plea is filed. This is true in equity, whatever it may be at law, citing equity rule 39. Butchers' & D. Stockyards Co. v. Louisville & 'E. E. Co. 14 C. C. A. 290, 31 U. S. App. 252, 67 Fed. 35-40; Desert King Min. Co. v. Wedekind, 110 Fed. 873-877, and authorities cited. Sharon v. Hill, 26 Fed. 723. See Jen- kins V. York Cliffs Improv. Co. 110 Fed. 807, and South- west Missouri Light Co. v. Joplin, 101 Fed. 23 ; Stichtenoth V. Central Stock & Grain Exch. 99 Fed. 1 ; York County Sav. Bank v. Abbot, 131 Fed. 980 ; Klenk v. Byrne, 143 Fed. 1008. Raising Issue by Plea. As said above, where the record sufficiently alleges citizen- ship, but tlie allegations are not true, then you may raise the 124 HOW ISSUE OF CITIZENSHIP RAISED AND PEOOF THEEEON. issue by plea or answer. If by plea, it should be in the fol- lowing form: The title as in bill; heading as in the demurrer. ( Plea to Jurisdiction. ) The plea of C. D., defendant (or the joint and several plea of C. D. and E. F., defendants in the above cause), to the bill of complaint. This defendant (or these defendants) not confessing any or all of the matters in the said bill to be true, as therein alleged, for plea to said bill aver and say, that it appears from said bill that the jurisdiction of the court is dependent on diversity of citizenship of the parties to the suit, and that so much of the allegations of said bill as avers said diversity of citizenship is not true, for defendant avers that the plaintiff, A. B., is not a citizen or resident of the State of , as alleged by liim, but was at the commencement of this suit, and is now, a citizen and resi- dent of the State of , of which State the defendant C. D. or E. F. was at the commencement of this suit a citizen and resident (or that plaintiff and defendant are citizens of different States from the one in which the suit is brought, or allege in the plea that one of the plaintiffs and one of the defendants have such citizenship as would defeat jurisdic- tion, under the rules given, if their citizenship had been truthfully alleged, or any other grounds of objection you can prove as to citizenship or parties affecting the jurisdiction in the Federal court.) All of which matters and things this defendant or these defendants aver to be true and plead the same in bar of complainant's bill, and pray the judgment of the court whether they shall be compelled to further answer said bill, and pray to be hence dismissed with costs. R. F., Solicitor, etc. The plea, like the demurrer, must be certified to by coun- sel and sworn to by the defendant, as will be explained under "Plea." If the defendant be a corporation, this form may be used: Title and commencement as before. And now comes the C. D. Company, defendant in the above cause, and appearing for the purpose of this plea says that it is not a corporation organized under the laws of the State of , nor is it a citizen of the State of or inhabitant thereof, nor does it reside therein ; but it is a corporation organized under the laws of the State of , and an inhabitant and citizen of said State of , and in the district of , where the corporate meetings are held and the cor- porate business transacted, and defendant doth further aver that it appears from said bill that jurisdiction is dependent on diversity of citizenship and it is not true as averred, that plaintiff is a citizen of the State of , as alleged by him, but was at the commencement of this suit, and now is, a citizen and resident of the State of , being the same State of HOW ISSUE OF CITIZENSHIP RAISED AND PEOOF THEEEON. 123 defendant's residence as alleged aforesaid (or that plaintiff is a certain citizen and resident of the district of , and not of the district of ) where this suit is brought (or any fact which shows want of diversity of citizenship as by the rules heretofore is neces- sary to jurisdiction by diversity of citizenship). All of which matters and things this defendant avers to be true, and pleads the same in bar of this suit, and prays the judgment of tlic court whether it shall be corapolled to further answer said bill, and prays to be hence dismissed with costs. To be signed, certified, and sworn to as above. If the objection be that plaintiff is not suing the foreign corporation in the district of plaintiff's residence, tlien say, after "defendant does further aver that it appears from said bill that jurisdiction depends on diversity of citizenship," the following : That it is not true that plaintiff at the commencement of this suit was, nor now ia, a resident and citizen of the district of , where this suit is brought, but he was at the commencement of this suit, and now is, a. citizen and resident of the district of , all of which matters and things this defendant alleges to be true, wherefore he says not this court, but the Circuit Court of the United States for the district of , of which plaintiff is a citizen and inhabitant, has juris- diction, and not this court. After prayer to be dismissed, sign, certify and verify the plea. Tlie plea tendering the issue of fact must be met by replica- tion by the plaintiff, as will be more fully explained under "Eeplication," after which the issue is said to be joined. Evi- dence must then be taken by deposition upon the issue and set down for hearing, as will also be explained hereafter. If the issue is made by the answer, then the evidence on jurisdiction is taken in connection with the evidence on the merits of the whole case, and the issue may be submitted with the whole case on final hearing. The court generally determines the is- sue of jurisdiction at once, and it is better to submit it in ad- vance of the issues on the merits, as it saves time and expense. Issue of Citizenship and Burden of Proof under Plea. As said above, when citizenship is properly alleged in the bill, but it is desired to show the alleg.vtions untrue, it is bet- ter to raise the issue by plea and have the matter decided be- 126 HOW ISSUE OF CITIZENSHIP EAISED AND PllOOF THEEEON. fore going into the merits. Gaddie v. Mann, 147 Fed. 955- 950. See Kilgore v. JSTorman, 119 Fed. 1008 j Sticliteuoth V. Central Stock & Grain Exch. supra. Burden of Proof. As before said, the burden of proof is on tlie defcndiint to prove to a "legal certainty" facts relied upon to defeat tlio jurisdiction. Ibid. ; Wiemer v. Louisville Water Co. 130 Fed. 244; Adams v. Shirk, supra; Chambers v. Prince, 75 Fed. 176, fact cases; Canadian P. K. Co. v. Wenham, 146 Fed. 207; Marks v. Marks, 75 Fed. 324; Collins v. Ashland, 112 Fed. 175 ; Hanchett v. Blair, 41 C. C. A. 76, 100 Fed. 817 ; Southern Electric E. Co. v. Hageman, 57 C. C. A. 348, 121 Fed. 262; Loomis v. Rosenthal, 67 Fed. 369; Covel v. Chi- cago, R. I. & P. R. Co. 123 Fed. 452; Illinois L. Ins. Co. v. Shenehon, 109 Fed. 674; Pacific Mut. L. Ins. Co. v. Tomp- kins, 41 C. C. A. 488, 101 Fed. 539 ; Caldwell v. Firth, 33 C. C. A. 439, 62 U. S. App. 594, 91 Fed. 177; Creagh v. Equitable Life Assur. Soc. 88 Fed. 1 ; Denver v. Sherrett, 31 0. C. A. 499, 60 U. S. App. 104, 88 Fed. 226; Rucker v. BoUes, supra; "Kingman v. Holthaus, 59 Fed. 305, 309. CHAPTEE XXII. WANT OF NECESSARY CITIZENSHIP APPEARING IN TRIAL. But you may not be aware of the true facts of citizenship so as to raise the issue by plea or answer, and the true state of the citizenship may be developed by your evidence when the depositions on the merits are read, or from instruments filed in evidence. Eemembering, as has been stated, that jurisdic- tion by diversity of citizenship is fundamental, that is, if the Federal jurisdiction is based upon it, and it does not exist, the court should not proceed further (act of 1875, sec. 5), you may therefore meet it by motion to dismiss at any stage of the pro- ceeding, if it should appear. It is really the duty of the court sua sponte to dismiss the case without either motion or sug- gestion, if the want of jurisdiction clearly appears. However, vou may take the initiative by filing a motion. Pacific Hut. L. Ins. Co. V. Tompkins, 41 C. C. A. 488, 101 Ped. 541, 542; Williams V. Xottawa, 104 U. S. 212, 26 L. ed. 719; Parming- ton V. Pillsbury, 114 U. S. 144, 29 L. ed. 116, 5 Sup. Ct. Rep. 807; Graves v. Corbin, 132 U. S. 590, 33 L. ed. 468, 10 Sup. Ct. Rep. 196; Morris v. Gilmer, 129 U. S. 315, 33 L. ed. 690, 9 Sup. Ct. Rep. 289 ; Simon v. House, 46 Fed. 319 ; Rogers v. Penobscot Min. Co. 83 C. C. A. 380, 154 Fed. 606. This duty upon the part of the court to dismiss the case is made obliga- tory by the fifth section of the act of 1875. Prior to that time the jurisdiction of the court had to be raised by plea or answer when properly alleged in the bill, but this rule was changed by the act of 1875, sec. 5, which is as follows: "That in any suit commenced in a circuit court or removed from a State court, it shall be made to appear to the satisfac- tion of said court, at any time after such suit has been brought or removed, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdic- tion of said court, or that the parties to said suit have been 127 128 WANT OF NECESSAEY CITIZENSniP APPEARING IN TRIAL. improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall pro- ceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may re- quire, and shall make such order as to costs as shall be just." It is seen that the circuit courts cannot escape the duty it imposes. The Supreme Court has frequently enforced this section on appeal, though no issue whatever was raised in the court below, or the Supreme Court. Ibid. ; Turner v. Farm- ers' Loan & T. Co. 106 U. S. 555, 27 L. ed. 274, 1 Sup. Ct. Eep. 519 ; King Bridge Co. v. Otoe County, 120 U. S. 226, 30 L. ed. 624, 7 Sup. Ct Eep. 552. It is said that if the evidence discloses the want of jurisdic- tion, or that the jurisdiction of the Federal court has been im- posed upon, you should file a motion to dismiss. This may generally be discovered in advance of the trial in equity, from the fact that all the evidence is usually taken by depositions in advance of the trial, and the opportunity to examine them given. This examination should disclose the want of juris- diction if it exists, and a motion be made to dismiss if so dis- closed, which should be submitted at the earliest moment. If a motion becomes necessary you may prepare it as follows : A. B. "» In Circuit Court of the United States vs. y In Equity for the D'strict of C. D. j , sitting at And now comes C. X>., the defendant, and moves the court to dismiss this suit and that he go hence with his costs in this behalf incurred, for that it appears by the evidence or instruments taken and filed in the cause that (naming him) is not a citizen of the State of , as alleged ( or whatever may be the fact affecting the jurisdic- tion), and therefore no diversity of citizenship exists as alleged and upon which jurisdiction in this suit is based. Wherefore defendant prays that because the suit does not really and substantially involve a controversy properly within the jurisdiction of the court, that the same be dismissed. R. F. Solicitor, etc. Wetmore v. Eymer, 169 U. S. 120, 121, 42 L. ed. 684, 18 Sup. Ct. Eep. 293. Of course, on the common-law side of the court, where the evidence may be entirely oral, you will have to await its devel- WANT OF NECESSARY CITIZENSHIP APPEARING IN TRIAL. 129 opment at the trial before a motion can be filed or a sugges- tion made. Here I must caution you that if there be suspicion that the jurisdiction is imposed upon, that you should raise the issue by plea or answer, because if no issue is raised, and you trust to its development in the evidence, you place yourself at a disadvantage as to the proof, as the court will not infer a want of jurisdiction unless it affirmatively appears in the legitimate evidence taken on the substantial issues in the case. To illustrate: If you have no plea or answer raising the issue, the mere fact that you have asked questions as to citi- zenship in some of your depositions, the responses to such questions, not being on any issue in the case, would not be con- sidered, as it would not be legitimate evidence taken on a sub- stantial issue; but if you plead it, all the evidence remotely tending to prove the issue made will be considered. How Tried. When the issue is raised, the judge may try the issue or sub- mit it to a jury. Wetmore v. Eymer, 169 U. S. 120-122, 42 L. ed. 684, 685, 18 Sup. Ct. Rep. 293. See Canadian P. E. Co. V. Wenham, 146 Fed. 206, 207. S. Eq.— 9. CHAPTEE XXIII. ISSUE AS TO DISTRICT OF SUIT OE VENUE. What has been said as to the issue of jurisdiction, and the forms given by which it is presented, has had reference to fun- damental conditions which could not be waived. I will now discuss the district of suit; how the issue is raised; and the forms applicable. The requirement that a civil suit cannot be brought in any other district than that whereof the defendant is an inhabi- tant, except when the suit is based on a diversity of citizenship, then it may be brought in the district of the residence of either the plaintiff, or defendant, is only a personal exemption which must be pleaded in order to be available. Piatt v. Massachu- setts Real Estate Co. 103 Fed. 705 ; Central Trust Co. v. Mc- George, 151 IT. S. 129, 132, 38 L. ed. 98, 99, 14 Sup. Ct. Eep. 286 (see "Territorial Jurisdiction," p. 2) ; Wolff v. Choctaw, 0. & G. R. Co. 133 Fed. 602, and authorities cited; McPhee & McG. Co. V. Union P. R. Co. 87 C. C. A. 619, 158 Fed. 8. If the suit is not brought in the district of which defendant is an inhabitant, or in case of diversity of citizenship in the resi- dence district of the plaintiff or defendant, the issue should be raised at once by demurrer, plea, or answer. If apparent on the record, demurrer is the proper pleading to raise the issue; you may use the form for demurrer heretofore given. If not apparent, then it must be raised by plea, or answer. If by plea you may use the following form: In Circuit Court of the United States for the District of , sitting at (Title as in bifl-)' And now comes the defendant (naming him) and specially appearing under protest for the purpose of this plea, and for no other purpose, says that at the commencement of this suit he was not, and is not now, an inhabitant of, nor does he reside in the district of , where this suit is brought (or if objection be to the division of the district use the words division of the district of , in which this suit is brought ) , but says that at the commencement of this suit, and now, he was and is an inhabitant of and resided and now resides in 130 ISSUE AS TO DISTEICT OF SUIT OE VENUE. 131 county, which is in the district of the State of , and not in the district of , where this suit is brought (or that at the commencement of this suit he was and is now an inhabitant of and resident citizen of the county of in the division of the district of , that all process issuing to said county, of which he is an inhabitant and resident citizen, out of the Circuit Court of the United States, is returnable to the division of said district of and not to the division of said district where this suit is brought). Wherefore defendant pleads his privilege to be sued in the dis- trict of , of which he is a resident citizen and inhabitant (or to be sued in the division of the district of to which county, of which he is a resident citizen and inhabitant, is at- tached ) , and insists upon his exemption from suit in this court because he says the Circuit Court of the United States for the district of (or the division of the Circuit Court of the United States for the district of ) has jurisdiction in the premises and not this court. Prayer to be dismissed. R. F., Solicitor, etc. Certificate of counsel and affidavit of defendant to be attached. If the defendant is a corporation and sued in the State of its organization, and not in the district of its residence, then plea may be in this form : Title and commencement as before. And now comes the C. D. Company, the defendant in the above cause, and specially appearing under protest for the purpose of this plea, and for no other purpose, says that at the commencement of this suit and now it was and is an inhabitant of, and resided in county in the district of , where its principal office, or headquarters, is situated, its corporate meetings held and its corporate business transacted, and is not an inhabitant, etc. (See form above given.) Wherefore insisting on its exemption it says not this court, but the Cir- cuit Court of the United States for the district of , has jurisdiction in the premises. Prayer to be dismissed, signed, certified and sworn as before. It has been the practice in some of the Federal districts, that where the defendant was an inhabitant of the district in which suit was brought, though not a resident citizen of the division of the district in which suit was brought, that the suit on motion would be transferred to the division of the district of which defendant was a resident citizen, and this was done on motion of the plaintiff in answer to a plea of privilege. 132 ISSUE AS TO DISTEICT OF SUIT OE VENUE. Uiider the acts of 1879 and 1902, rearranging certain dis- tricts, it is doubtful whether the court should permit this practice. As a matter of law the defendant is entitled to be sued in the division of the district of which he is an inhabitant, and when sued out of his division is entitled under his plea of privilege to have the suit dismissed. By the acts above referred to, Congress created these sub- divisions and designated the counties attached to each division to which process from that division could issue, and to which the process was returnable. Section 5 of the act of 1902 pro- vides that if there be more than one defendant residing in different subdivisions, you may sue in either ; but if a single de- fendant, you must return the process to the subdivision to which the county of his residence is attached. By act of May 4, 1898, Congress provided that in case of removals from State to Federal courts, the case must be removed to the subdivision to which the county of defendant's residence is attached. See sec. 53, 'New Code, chap. 4, embodying the act of May 4th, 1898. The foregoing statutes clearly confined the suit in personal actions to the subdivision having the county of defendant's residence in its jurisdiction, and distinctly indicates the court in which suit must be brought. It gives to each subdivision a distinct jurisdiction confining its process to the counties at- tached to it, unless there be two or more defendants living in different subdivisions. Such being the case, the defendant served with process out of his subdivision, under circumstances not authorized by the statute, has as much right to have the suit dismissed as if served out of his district. After Jan. 1st, 1912, the jurisdiction in such cases will be controlled by sec. 53, of the New Code; and by sec. 58, transfers of cases from one division to another by consent, or order of the court will be regulated. Of course the defendant may waive by appearance or an- swer this privilege, or he may by motion remove the suit to his subdivision, but his right to a dismissal may be of vital interest, and it is a legal right under the act of 1879 and sub- sequent acts, which he may enforce if he does not wish to waive it. Acts 1879, 1898, 1902; The L. B. X. 88 Fed. 292; International Bank & T. Co. v. Scott, 86 C. C. A. 248, 159 Fed. 58. However, this refers only to personal actions. The L. B. X. 88 Fed. 295 (see "Territorial Jurisdiction," \ CHAPTEE XXIV. FEDERAL QUESTION. We have been discussing the jurisdiction of the Federal courts as based upon the situation and citizenship of the par- ties, and I will now take up jurisdiction as based on the char- acter of the subject-matter of the suit. The statute of 1888 provides that the circuit courts of the United States shall have jurisdiction of all cases at law or in equity arising under the Constitution and laivs of the United States^ or treaties made or to be made, if the amount or value in dispute exceeds two thousand dollars exclusive of interest and costs. While the Constitution of the United States left to Congress the power to declare the extent and distribute the jurisdiction among the Federal courts in this class of cases, ISTashville v. Cooper, 6 Wall. 252, 18 L. ed. 852, yet from 1789 to 1875 the power was never exercised by Congress, except as to jurisdiction rest- ing upon diversity of citizenship, and suits between aliens and citizens. The courts were organized for the benefits of non- residents and aliens, that they may escape the local influences of a State court. ISTashville, C. & St. L. E. Co. v. Taylor, 86 Fed. 174. The changed conditions created by the war between the States, and the strong tendency during that period to central- ize power in the Federal government, inspired the judiciary act of 1875, in which the limit of constitutional power was reached by Congress in granting jurisdiction to the Federal courts. It was deemed necessary that the supremacy of the laws and Constitution of the United States (U. S. Const, art. 6, cl. 2) must hereafter be enforced by the subordinate courts of its creation. Nashville, C. & St. L. E. Co. v. Taylor, 86 Fed. 171; Osbom v. Bank of United States, 9 Wheat. 818, 6 L. ed. 223 ; Cohen v. Virginia, 6 Wheat. 264, 5 L. ed. 257. It sought a speedier way of construing and enforcing rights aris- 133 134 FEDEEAL QUESTION. ing under the Constitution and laws of the United States than the old method through the State courts, and then by writ of error from the Suprem^e Court of the United States to the State court finally passing upon the Federal question; and then only when the State court had decided against the right claimed under laws or Constitution of the United States. U. S. Rev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575 ; Nashville, C. & St. L. R. Co. V. Taylor, 86 Fed. 175. Even the examination by the Supreme Court of the United States related only to the Federal question, and not to the is- sues of a non-Federal character. Ibid. ; Murdock v. Memphis, 20 Wall. 590-626, 22 L. ed. 429-441; Dower v. Richards, 151 U. S. 666, 38 L. ed. 308, 14 Sup. Ct. Rep. 452, 17 Mor. Min. Rep. 704; Hammond v. Johnston, 142 U. S. 73, 35 L. ed. 941, 12 Sup. Ct. Rep. 141. For if the judgment of the State court rested on grounds independent of the Federal ques- tion sufficient to sustain it, the writ of error would be refused. Haley v. Breeze, 144 U. S. 130, 36 L. ed. 373, 12 Sup. Ct. Rep. 836; California Powder Works v. Davis, 151 U. S. 393, 38 L. ed. 207, 14 Sup. Ct. Rep. 350; Union Nat. Bank v. Louisville, N. A. & C. R. Co. 163 U. S. 330, 41 L. ed. 178, 16 Sup. Ct. Rep. 1039 ; Eustis v. BoUes, 150 U. S. 361-366, 37 L. ed. 1111, 1112, 14 Sup. Ct. 131. On March 3, 1875, Congress passed a jurisdictional and re- moval act, providing that all suits of a civil nature at common law or in equity, where the matter in dispute exclusive of costs exceeded the sum of five hundred dollars, and arising under the Constitution and laws of the United States, or treaties made or to be made, shall be heard in the circuit courts of the United States. Colorado Cent. Consol. Min. Co. v. Turck, 150 U. S. 142, 37 L. ed. 1031, 14 Sup. Ct. Rep. 35. And thus for the first time this jurisdiction was conferred on the subor- dinate courts, and when the jurisdiction attached by reason of the Federal question, it extended to the whole case, with all the issues, Federal or non-Federal. ISTashville, C. & St. L. R. Co. V. Taylor, 86 Fed. 177, and authorities. Louisville Trust Co. V. Stone, 46 C. C. A. 299, 107 Fed. 309 ; Tennessee V. Union & Planters' Bank, 152 U. S. 454-456, 38 L. ed. 511, 512, 14 Sup. Ct. Rep. 654. With this brief view of the his- fedekaij question. 135 tory of this jurisdiction the first question that presents itself is — What is a Federal Question? A case presents a Federal question when it becomes neces- sary to construe the Constitution, laws, or treaties of the United States in order to reach a correct decision of the ma- terial issues, or to decide as to the existence of some right, title, privilege, claim, or immunity asserted under the Federal Constitution and laws, or when plaintiff relies upon them, in whole or in part, for a recovery. Dewey Min. Co. V. Miller, 96 Fed. 2; Arkansas v. Kansas & T. Coal Co. 96 Fed. 355, 356; Starin v. New York, 115 U. S. 257, 29 L. ed. 390, 6 Sup. Ct. Eep. 28 ; Ames v. Kansas, 111 U. S. 462, 28 L. ed. 487, 4 Sup. Ct. Eep. 437 ; Lowry v. Chicago, B. & Q. E. Co. 46 Fed. 83 ; Minnesota v. Duluth & I. E. Co. 87 Fed. 497 ; Cooke v. Avery, 147 U. S. 385, 37 L. ed. 212, 13 Sup. Ct. Eep. 340; Nashville, C. & St. L. E. Co. v. Taylor, 86 Fed. 181 ; Tennessee v. Davis, 100 U. S. 257, 25 L. ed. 648 ; United States V. Old Settlers, 148 U. S. 468, 37 L. ed. 524, 13 Sup. Ct. Eep. 650; Hamhlin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Eep. 353 ; Little York Gold-Wash- ing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656 ; City E. Co. V. Citizens' Street E. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Eep. 653. The Constitution, laws, or trea- ties must be directly involved. Ibid. ; Carson v. Dunham, 121 U. S. 421, 426, 30 L. ed. 992, 993, 7 Sup. Ct. Eep. 1030; Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & S. Min. Co. 35 C. C. A. 1, 93 Fed. 274r-278. It may be stated in another form, thus:. The suit must be such that some right, privilege, immunity, or title on which re- covery depends will be defeated by one construction of the Con- stitution or laws, or sustained by a contrary construction. Cooke V. Avery, 147 U. S. 384, 37 L. ed. 212, 13 Sup. Ct. Eep. 340; Little York Gold- Washing & Water Co. v. Keyes, supra; New Orleans v. Benjamin, 153 U. S. 411-424, 38 L. ed. 764, 14 Sup. Ct. Eep. 905 ; Farson v. Chicago, 138 Fed. 186 ; Tennessee v. Union & Planters' Bank, 152 U. S. 460, 38 136 FEDEEAL QtrESTION. L. ed. 513, 14 Sup. Ct. Eep. 664; Starin v. New York, supra; Gibbs V. Crandall, 120 U. S. 106, 30 L. ed. 590, 7 Sup. Ct. Eep. 497; Shreveport v. Cole, 129 U. S. 41, 32 L. ed. 591, 9 Sup. Ct. Rep. 210. It must really and substantially involve a controversy, the determination of v/hich depends on the con- struction of the Federal law. Nashville, C. & St. L. E. Co. v. Taylor, 86 Fed. 174; California Oil & Gas Co. & v. Mil- ler, 96 Fed. 12; New Orleans v. Benjamin, 153 U. S. 424, 38 L. ed. 769, 14 Sup. Ct. Eep. 905 ; Myrtle v. Nevada, C. • & O. E. Co. 137 Fed. 196; Bridge Proprs. v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571 ; Hamblin v. West- ern Land Co. supra; Carson v. Dunham, 121 U. S. 426, 30 L. ed. 993, 7 Sup. Ct. Eep. 1030. It must be a question of law as stated by the plaintiff in his complaint. Myrtle v. Nevada, C. & O. E. Co. 137 Fed. 193 ; Austin v. Gagan, 5 L.E.A. 476, 39 Fed. 626; California Oil & Gas Co. v. Miller, supra; not an issue of fact. Ibid. Fitzgerald v. Missouri P. Co. 45 Fed. 812. And it may not only be a demand for something conferred by the Federal law (Ibid. ; Cohen v. Virginia and Tennessee V. Davis, supra), but it may be a right, claim, defense, or pro- tection, in whole or in part, growing out of the Federal legis- lation or constitutional provisions. Sowles v. Witters, 43 Fed. 700; Nashville, C. & St. L. E. Co. v. Taylor, 96 Fed. 178; Minnesota v. Duluth & I. E. Co. supra ; Arkansas v. Kansas & T. Coal Co. 96 Fed. 357; Cooke v. Avery and Starin v. New York, supra; Bock v. Perkins, 139 U. S. 630, 35 L. <3d. 315, 11 Sup. Ct. Eep. 677; Frank v. Leopold & F. Co. 169 Fed. 923 ; New Orleans, M. & T. E. Co. v. Mississippi, 102 U. S. 135, 26 L. ed. 96. Thus it is seen that the Federal question arises not only when the claim is based on Federal law, but also when it appears that the right of recovery may be defeated by a construction which may fairly be contended for. Ibid. Judge Shiras, in his Equity Practice, page 17, says the jurisdiction in the phrase, "Cases arising under the Constitu- tion, laws and treaties made," etc., is divided into two classes. First. Where the cause of action springs directly from some provision of the Federal laws, as when the right claimed is directly given by Federal law, or where the cause of action arises out of some act of a Federal officer, based on Federal FEDERAL QUESTION. 137 law, as in cases of United States marshals. This is designated as jurisdiction direct and primary. Second. When causes of action are based on or supported by the laws of a State thought to be in conflict with some right, duty, power, or franchise created or conferred by the Consti- tution of the United States, or its laws and treaties. This may be designated as derivative, or secondary, jurisdiction. Direct and Primary. Under this first head, suits by and against officers of the Federal government must fall under the control of the Federal courts when the acts complained of were done in their official capacity, and must necessarily be suits arising under the laws of the United States. Bryant Bros. Co. v. Robinson, 79 C. C. A. 259, 149 Fed. 321 ; Feibelman v. Packard, 109 U. S. 424, 27 L. ed. 985, 3 Sup. Ct. Rep. 289 ; Baekrack v. Nor- ton, 132 U. S. 338, 33 L. ed. 377, 10 Sup. Ct. Rep. 106 ; Son- nentheil v. Christian Moerlin Brewing Co. 172 U. S. 404, 43 L. ed. 494, 19 Sup. Ct. Rep. 233; Bock v. Perkins, supra; Wood V. Drake, 70 Fed. 881. Thus in 70 Fed. 881, supra, it was held that an action for damages for false imprisonment against a United States marshal acting under process from the Federal courts was within the Federal jurisdiction and could be removed, although the complaint is drawn to conceal the official character of the officer. This case, however, was sub- sequently modified, as will be seen hereafter. An action against Federal officers as such, growing out of acts in executing Federal process, is within the jurisdiction of the Federal courts, regardless of citizenship or the absence of any disputed question of Federal law. Ibid. ; Buck v. Col- bath, 3 Wall. 334, 18 L. ed. 257 ; Bock v. Perkins and Wood V. Drake, supra; Feibelman v. Packard, 109 U. S. 421, 27 L. ed. 984, 3 Sup. Ct. Rep. 289; Guarantee Co. v. Hanway, 44 C. C. A. 312, 104 Fed. 371 ; Grant v. Spokane ISTat. Bank, 47 Fed. 673; Jewett v. Whitcomb, 69 Fed. 417; Hurst v. Cobb, 61 Fed. 2. The rule has thus been laid down, and belongs to a line of Federal cases that hold all actions which bring into question the acts of officials or corporations created by, or representing. 138 FEDERAL QUESTION. the national government, are cases arising under the Consti- tution and laws of the United States. Texas & P. R. Co. v. Cox, 145 TJ. S. 602, 36 L. ed. 832, 12 Sup. Ct. Rep. 905: Walker v. Windsor Nat. Bank, 5 C. C. A. 421, 5 U. S. App 423, 56 Fed. 80; Bailey v. Mosher, 11 C. C. A. 304, 27 U. S App. 339, 63 Fed. 491; National Bank v. Wade, 84 Fed. 12 As said, the national government must be permitted to exer- cise its powers in the States through its own appointed agen- cies, and national courts must be the arbiters as to the lawful- ness of the acts of its agents. In McKee v. Brooks, 64 Tex. 255, the supreme court of the State says that to determine the liability of a United States marshal sued upon his bond for a trespass committed while acting in his official capacity, resort must be had to section 783 of the United States Revised Statutes, U. S. Comp. Stat. 1901, p. 607; and as to the extent of the damage to be allowed, section 784 of the United States Revised Statutes is applica- ble, and that a suit which cannot be prosecuted and determined without resort to the acts of Congress becomes a suit arising under the laws of the United States, and therefore within Fed- eral jurisdiction, following Feibelman v. Packard, supra, be- fore cited, Howard v. United States, 184 U. S. 676, 46 L. ed. 754, 22 Sup. Ct. Rep. 543 ; Files v. Davis, 118 Fed. 465, 466. There is no question that the rule as above given is the true rule when the Federal officer is sued as such, or when suit is upon his bond given by Federal law for a proper performance of duty, but the question arises, Suppose the Federal officer is not sued as such, nor is he sued upon his bond, but as a sim- ple trespasser in seizing property under Federal process, then what is the rule ? In McKee v. Coffin, 66 Tex. 307, 1 S. W. 276, a United States marshal was sued to recover the value of certain prop- erty alleged to have been illegally seized and converted by him. The United States marshal justified the seizure under Federal process, and sought to remove the case into the Federal court. The suit was not upon the bond of the marshal, nor was he sued as United States marshal. The court denied the right of removal on the ground that he was United States marshal only shown by his own pleading. The same condition of case arose in Mayo v. Dockery, 108 FEDERAL QUESTION-. 139 Fed. 898, and the issue of jurisdiction arose ou the motion tn remand to the State court, and the case was remanded back to the State court. The court laid down as the basis of its action, that since the jurisdictional act of 1888 the petition of plain- tiff must set forth the fact that the defendant is sued as United States marshal; that the rule prior to the act of 1888 as illus- trated in Bock v. Perkins, supra, has been changed; and that now the Federal question must appear in the petition (Ten- nessee V. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Pep. 654), or the Federal court cannot take juris- diction, and that the defense that an act was performed in an oiRcial capacity could not give the Federal court jurisdiction (Walker v. Collins, 167 U. S 58, 42 L. ed. 76, 17 Sup. Ct. Pep. 738 ; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Pep. 34; Postal Teleg. Cable Co. v. United States [Postal Teleg. Cable Co. v. Alabama] 155 U. S. 482, 39 L. ed. 231, 15 Sup. Ct. Pep. 192). The rule then may be stated, that if the petition shows the defendant is sued as United States marshal, or that the act complained of was done in his official capacity, the case would present a Federal question and within the jurisdiction of the Federal courts, without reference to citizenship of parties (Sonnenthiel v. Christian Moerlin Brewing Co. 172 U. S. 401-405, 43 L. ed. 492-494, 19 Sup. Ct. Pep. 233 ; Mayo v. Dockery, 108 Fed. 899; Frank v. Leopold & F. Co. 169 Fed. 922), but if the defendant is sued as an individual, with- out reference in the petition to his official position, then the case cannot be removed to the Federal courts. People's United States Bank v. Goodwin, 160 Fed. 728 ; Tennessee v. Union & Planters' Bank, 152 U. S. 460, 38 L. ed. 513, 14 Sup. Ct. Pep. 654; Walker v. Collins and Chappell v. Waterworth, supra; Oregon Short Line & U. IsT. R. Co. v. Skottowe, 162 U. S. 494, 495, 40 L. ed. 1049, 1050, 16 Sup. Ct. Pep. 869 ; East Lake Land Co. v. Brown, 155 U. S. 488, 39 L. ed. 233, 15 Sup. Ct. Rep. 357 ; Filhiol v. Torney, 194 U. S. 356, 48 L. ed. 1014, 24 Sup. Ct. Pep. 698 ; Joy v. St. Louis, 201 U. S. 332, 50 L. ed. 776, 26 Sup. Ct. Rep. 478 ; Filhiol v. Mau- rice, 185 U. S. 108, 46 L. ed. 827, 22 Sup. Ct. Pep. 560. These cases clearly modify the broad statements in Wood V. Drake, supra, and is due to the difference between the juris- 14:0 FEDERAL QUESTION. dictional acts of 1875 and 1888 as shown in Tennessee v. Union & Planters' Bank, supra ; People's United States Bank v. Good- win, 160 Fed. 729. While the undoubted rule as stated in the foregoing cases requires the Federal question to appear in the plaintiff's statement of his own claim, and if it does not so appear the want cannot be supplied in the subsequent plead- ings or petition for removal, yet we have a line of cases that seek to evade this rule of Federal jurisdiction, where the in- genuity of counsel has suppressed the facts that would have given jurisdiction. Wood v. Drake, 70 Fed. 882. But as said in Fergus Falls v. Fergus Falls Water Co. 19 C. C. A. 212, 36 U. S. App. 480, 72 Fed. 873, the plaintiff has a right to set up his case as he pleases, and is not required to state mat- ters not essential to his cause of action, and which would more properly come from the other side. As long as he sets up his claim in legal and logical form, and specifically states his cause of action resting upon the common law of the land, the courts have no right to go behind it to uncover motive. People's United States Bank v. Goodwin, 160 Fed. 730 ; Wash- ington V. Island Lime Co. 117 Fed. 778; Chicago, R I. & P. E. Co. V. Martin, 178 U. S. 248, 44 L. ed. 1056, 20 Sup. Ct. Eep. 854 ; Oregon Short Line & U. K K. Co. v. Skottowe, 162 U. S. 495, 496, 40 L. ed. 1050, 16 Sup. Ct. Eep. 869; Alabama G. S. E. Co. v. Thompson, 200 U. S. 206-216, 50 L. ed. 441-446, 26 Sup. Ct. Eep. 161, 4 A. & E. Ann. Cas. 1147. By section 643 of the United States Eevised Statutes, U. S. Comp. Stat. 1901, p. 521, it is provided that any civil or crimi- nal suit commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States, now or hereafter enacted, shall be removed to the Federal court. This act is held to cover United States marshals, deputies, and assistants engaged in the service of process for arrest, or otherwise within the purview of the law. Davis V. South Carolina, 107 U. S. 600, 27 L. ed. 575, 2 Sup. Ct. Rep. 636 ; Tennessee v. Union & Planters' Bank, 152 U. S. 463, 38 L. ed. 514, 14 Sup. Ct. Eep. 654. CHAPTER XXV. COEPOEATIONS CHAETEEED BY CONGEESS. Under this head may be classed corporations chartered by Congress, as it is held that a suit against a Federal corporation necessarily involves some exercise of corporate power received under a Federal law, and therefore the suit arises under the laws of the United States. See Pacific Railroad Removal Cases, 115 U. S. 1, 29 L. ed. 319, 5 Sup. Ct. Rep. 1113 ; Texas & P. R. V. Cox, 145 U. S. 601, 36 L. ed. 832, 12 Sup. Ct. Rep. 905 ; Texas & P. R. Co. v. Cody, 166 U. S. 609, 41 L. ed. 1134, 17 Sup. Ct. Rep. 703 ; Bradley v. Ohio River & C. R. Co. 119 N. C. 918, 78 Fed. 387 ; Texas & P. R. Co. v. Bar- rett, 166 U. S. 617, 618, 41 L. ed. 1136, 1138, 17 Sup. Ct. Rep. 707 ; Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 494, 40 L. ed. 1049, 16 Sup. Ct. Rep. 869. In a word, if the bill shows that the defendant is a corporation acting under a Federal charter, it may be removed from the State to the Federal court, or if the congressional corporation be com- plainant, and it is alleged as such in the bill, a Federal court will take jurisdiction, as such allegation presents a Federal question. United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 470, 61 U. S. App. 13, 89 Fed. 769; Oregon Short Line & U. IST. R. Co. v. Skottowe, 162 U. S. 494, 495, 40 L. ed. 1049, 1050, 16 Sup. Ct. Rep. 869; Texas & P. R. Co. V. Beckwith (Tex. Civ. App.) 118 S. W. 729; Lund V. Chicago, R. L & P. R. Co. 78 Fed. 385 ; Texas & P. R. Co. V. Watson (Tex. Civ. App.) 43 S. W. 1060; Speckart v. German ISTat. Bank, 85 Fed. 12. (See "Removals on ground of Federal question.") This seems to be an exception to the rule that the bill of complaint must show that the Federal question must affect a material issue in the case, and I mention it here because of the immunity given by the exception to a great corporation operat- 141 142 COEPOEATIONS CHAETEEED BY CONGEESS. ing within a State from being sued in the State courts, if the claim exceeds two thousand dollars exclusive of interest and costs, and said corporation elects not to be sued in the State courts. The right rests upon its Federal charter, and not upou any issue in the cause depending upon the construction of the Federal Constitution or laws. The Supreme Court, in Texas & P. E. Co. v. Cody, 166 TJ. S. 606-616, 41 L. ed. 1132-1136, 17 Sup. Ct. Rep. 703; Pacific R. Removal Cases, supra, held that the Texas & Pacific Railway Company, operating under a Federal charter, may remove all suits begun in the State courts, involving, of course, the jui-isdictional amounts, to the Federal courts for trial. Chief Justice Fuller bases this great privilege upon the fact that the breath of life having been breathed into the corpora- tion by Federal limgs, that it moves, acts, and has its being in that source, and necessarily all of its faculties and capaci- ties are derived from the national fiat; consequently all of its acts, good, bad and indifferent, though wholly within the State of Texas, could only have been inspired by its national life. So, then, suits of any nature against or by this corporation arise under the laws of the United States, whether it be for damages for personal injuries, or the failure to transport a car of cattle shipped from one point in the State to another. The Chief Justice says that it does not even require an allegation of its Federal charter nor a hint of its national life, nor is it necessary to show upon what Federal law its liability for in- juries to men, or cattle, or nondelivery of freight rests. Its common-law and statutory liability for carriage with the State is overshadowed by its congressional charter. In the Cody Case, 166 U. S. 608, 41 L. ed. 1133, 17 Sup. Ct. Rep. 703, suit was brought by Cody for damages for per- sonal injury. The petition set forth that the Texas & Pacific Railway was a corporation created by the laws of Texas and operating a line of railway in that State, and upon the line in that State the injury happened. The suit was brought in the State court of Tarrant county, and was removed to the Federal court upon a petition setting up the Federal charter of the de- fendant, and consequently the suit arose under the laws of the United States. There is in the petition no suspicion of a Fed- eral question, and the petition for removal raises none other COEPOEATIOKS CHAETEKED BY CONGEESR. 143 than the organization of the corporation by Congress. Yo)i will further laotice that a Federal question was not raised by plaintiff, but by the defendant corporation, which was appre- hensive that the decisions in Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Eep. 654, and cases preceding and following it, had overruled 115 U. S. 1, 29 L. ed. 319, 5 Sup. Ct. Rep. 1113, known as the "Re- moval Cases." You will see from the conclusions of the Su- preme Court in Metcalf v. Watertown, 12S U. S. 588, 32 L. ed 544, 9 Sup. Ct. Rep. 173 ; Colorado Cent. Consol. Min. Co. v Turck, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Rep. 35 Tennessee v. Union & Planters' Bank, supra ; Chappell v. Wat erworth, 155 U. S. 107, 39 L. ed. 87, 15 Sup. Ct. Rep. 34 Oregon Short Line & U. IST. R. Co. v. Skottowe, 162 U. S. 490 40 L. ed. 1048, 16 Sup. Ct. Rep. 869; Postal Teleg. Cable Co^ V. United States (Postal Teleg. Cable Co. v. Alabama) 155 U. S. 482, 39 L. ed. 231, 15 Sup. Ct. Rep. 192; since fol- lowed in Galveston, H. & S. A. R. Co. v. Texas, 170 U. S. 226, 42 L. ed. 1017, 18 Sup. Ct. Rep. 603 ; Houston & T. C. R. Co. V. Texas, 177 U. S. 66, 44 L. ed. 673, 20 Sup. Ct. Rep. 545; Walker v. Collins, 167 U. S. 57, 42 L. ed. 76, 17 Sup. Ct. Rep. 738, that there was grave cause for apprehension that 115 U. S. 1, and kindred cases, had been overruled. In all of these cases it was decided that if the Federal question did not appear in plaintiff's petition, the Federal court had no jurisdiction. The court in the Cody Case substantially concedes that these cases establish this rule,' but says they do not apply to the Texas & Pacific Railway, and that, even if the petition had described the defendant as the Texas & Pacific Railway Company by name, and no more, there would have been no question that the court's judicial knowledge of the Fed- eral character of the corporation would have been sufficient to supply all that was necessary to give the Federal court juris- diction. It seems that whenever the Texas Pacific Railway has sought to remove a case on the ground of its Federal char- ter, and without reference to the nature of the cause of action, the courts have adhered to the decision in the Cody Case. Ro Dunn, 212 U. S. 386, 53 L. ed. 563, 29 Sup. Ct. Rep. 299; Heffelfinger v. Choctaw, 0. & G. R. Co. 140 Fed. 77; see 144 COEPOEATIONS CHAETEEED BY CONGEESS. Scott V. Choctaw, 0. & G. E. Co. 112 Fed. 180 ; Greer v. Texas & P. E. Co. 17 Tex. Civ. App. 359, 42 S. W. 1038. We have then, as a result of these decisions, that a removal cannot be had from a State to a Federal court, nor can a suit be brought originally in the circuit court of the United States, based on a Federal question or removed by a Federal corpora- tion, unless the Federal question appears in the statement of plaintiff's case as made by himself, except in suits brought against or by the Texas & Pacific Eailway Company. The Cody suit clearly justifies this statement, and I think it will be emphasized by reading carefully Oregon Short Line & U. N. E. Co. V. Skottowe, 162 U. S. 490, 40 L. ed. 1048, 16 Sup. Ct. Eep. 869, which the Chief Justice declares to be in har- mony with his views. In 162 U. S. 490, the court was dealing with a corporation organized under similar conditions preceding the chartering of the Texas & Pacific Eailway Company ; that is, in the one case the corporation was created by Congress by consolidating cor- porations created under the laws of the States of Utah, Wyom- ing, and ITevada; in the other case the Southern Pacific & Transcontinental Eailways of Texas were consolidated by Con- gress and incorporated as the Texas & Pacific Eailway Com- pany, supra; and yet in 162 U. S. 490, the court insists that the Federal character of the corporation must appear in the petition of plaintiff to give the Federal courts jurisdiction, and not in the subsequent pleadings of the defendant. The removal cases in 115 U. S. upon which the conclusions reached in the Cody Case were based, rested solely on the old case of Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204. ISTo distinction seems to have been drawn between the powers and operations of a fiscal agent of the government, chartered by Congress, and the powers and operations of a railroad company chartered by Congress, having law and statu- tory duties as a common carrier. I have thus dwelt on this Cody Case to show an exception was made to the -unbroken line of decisions since 1888, that a Federal question must appear in the plaintiff's petition to give the Federal courts jurisdiction, and not in the petition for removal or subsequent pleadings. In Tennessee v. Union & Planters' Bank, 152 U. S. 463 38 OOBPOEATIONS CHAKTEEED BY CONQEESS. 145 L. ed. 514, 14 Sup. Ct. Kep. 654, the court says that the rule as thus laid down, in Metcalf v. Watertown, 128 U. S. 586, 32 L. ed. 543, 9 Sup. Ct. Rep. 173, applies more comprehen- sively to the act of 1888 than the act of 1875, because the cor- responding clause in section 2 of the act of 1888 allows re- movals from a State court to be made only by nonresident de- fendants and in suits of which the circuit courts of the United States are given original jurisdiction by section 1, thus limit- ing removals by defendant from State courts to such suits as might have been brought in the circuit court by plaintiff un- der the first section. To further emphasize the fact that under the act of 1888 the Federal question could not be set up by subsequent plead- ings if not apparent in the petition, section 6 of the act of 1888 specially repealed section 640 of the United States Revised Statutes, which authorized any suit commenced in a State court against a Federal corporation upon the petition of the defend- ant, that its defense arose under the laws and constitution of the United States, Tennessee v. Union & Planters' Bank, supra, can be removed to the Federal court. Your attention is called to the fact that in Re Dunn, 212 U. S. 384, 53 L. ed. 562, 29 Sup. Ct. Rep. 299, some stress seems to be laid on a clause in the charter of the Texas & Pacific Railway Company, giving it a right to sue and be sued in the Federal courts. Under chap. 3, sec. 28, of the New Code, no suit brought in a State court under the employer's liability act of 1908 and amendments, can be removed to a Federal court. National Banles. In chapter 14, I discussed the citizenship of ISTational banks as affecting jurisdiction, and we saw that these Federal cor- porations were placed on the same footing with the State Cor- porations, except in cases where Federal officers were wind- ing up the affairs of the institution. Act 1888, sec. 4 (see Appendix) ; Speckart v. German Nat. Bank, 85 Fed. 12 ; same case, 38 C. C. A. 682, 98 Fed. 153 ; Guarantee Co. of K A. v. Hanway, 44 C. C. A. 312, 104 Fed. 372; chap. 2, sec. 16, New Code. In cases, however, where a Federal question is involved, S. Eq.— 10. 146 NATIONAL BANKS. they may enter the Federal courts without reference to citizen- ship, if the proper amount is involved. The Federal charter is not the basis of the right, but the Federal question must appear in the statement of the case (Larabee v. DoUey, 1Y5 Fed. 367- 382), and it does appear whenever the controversy touches their rights under the law of their creation. Ibid. 384; Huff V. Union Nat. Bank, 173 Fed. 336. So in all proceedings by any national banking association to enjoin the Comptroller of the Currency under provisions of the national banking law, suit may be brought in the district in which such association is located. Chap. 4, sec. 49, New Code. CHAPTEE XXVI. IMPAIRING OBLIGATION. The most frequent and familiar illustrations of the Federal question arise under alleged conflicts of State legislation with section 10, article 1, and the provisions of the 14th Amend- ment to the Constitution of the United States. As where it is claimed that State legislation has impaired the obligation of a contract. American Teleph. & Teleg. Co. v. Decatur, 176 Fed. 133 ; Jetton v. University of the South, 208 U. S. 489, 52 L. ed. 584, 28 Sup. Ct. Rep. 375 ; Illinois C. E. Co. v. Adams, ISO U. S. 28, 45 L. ed. 410, 21 Sup. Ct. Eep. 251 ; Hanford V. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Eep. 1051 ; Bacon v. Texas, 163 U. S. 216, 41 L. ed. 136, 16 Sup. Ct. Eep. 1023; Whitman College v. Berryman, 156 Fed. 112- 117; Green v. Oemler, 151 Fed. 936; Larabee v. Dolley, 175 Fed. 368; Harrison v. Eemington Paper Co. 3 L.E.A.(N.S.) 954, 72 C. C. A. 405, 140 Fed. 391, 392, 5 A. & E. Ann. Cas. 314; Eiverside & A. E. Co. v. Eiverside, 118 Fed. 736; Wil- son V. Brochon, 95 Fed. 82 ; City E. Co. v. Citizens' Street E. Co. 166 U. S. 563, 41 L. ed. 1116, 17 Sup. Ct. Eep. 653; MeCuUough v. Virginia, 172 U. S. 116, 43 L. ed. 387, 19. Sup. Ct. Eep. 134; Louisiana v. Pillsbury, 105 U. S. 294, 26 L. ed. 1095 ; Underground E. Co. v. New York, 193 U. S. 416, 48 L. ed. 733, 24 Sup. Ct. Eep. 494; National Mut. Bldg. & L. Asso. V. Brahan, 193 U. S. 635, 48 L. ed. 823, 24 Sup. Ct. Eep. 532. xlnd such effect may arise from a by-law or ordi- nance of a municipal corporation. Missouri K. & I. E. Co. v. Olathe, 156 Fed. 632, and authorities cited; Mercantile Trust & D. Co. V. Columbus, 203 U. S. 311, 51 L. ed. 198, 27 Sup. Ct. Eep. 83 ; Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 46 L. ed. 808, 22 Sup. Ct. Eep. 585 ; St. Paul Gaslight Co. V. St. Paul, 181 U. S. 142, 45 L. ed. 788, 21 Sup. Ct. Eep. 575 ; Mercantile Trust & D. Co. v. Collins Park & Belt E. Co. 99 Fed. 812 ; Davis & F. Mfg. Co. v. Los Angeles, 189 147 148 IMPAIRING OBLIGATION. U. S. 207, 47 L. ed. 778, 23 Sup. Ct. Eep. 498; Knoxville Water Co. v. Knoxville, 200 U. S. 22, 50 L. ed. 353, 26 Sup. Ct. Eep. 224 ; Bacon v. Texas, supra ; Pacific Electric K. Co. V. Los Angeles, 194 U. S. 112, 48 L. ed. 896, 24 Sup. Ct. Kep. 586; Cleveland v. Cleveland City K. Co. 194 U. S. 517, 48 L. ed. 1102, 24 Sup. Ct. Eep. 756; Walla Walla v. Walla Walla Water Co. 172 U. S. 2, 43 L. ed. 342, 19 Sup. Ct. Eep. 77; People's Gaslight & Coke Co. v. Chicago, 194 U. S. 1, 48 L. ed. 851, 24 Sup. Ct. Eep. 520 ; Defiance Water Co. v. De- fiance, 191 U. S. 191, 48 L. ed. 143, 24 Sup. Ct. Eep. 63; American Teleph. & Teleg. Co. v. Decatur, supra, and eases cited; Los Angeles City Water Co. v. Los Angeles, 103 Fed. 711; Southern Bell Teleph. & Teleg. Co. v. Eichmond, 44 C. C. A. 147, 103 Fed. 31 ; Savannah v. Hoist, 65 C. C. A. 449, 132 Fed. 901 ; Iron Mountain Co. v. Memphis, 37 C. C. A. 410, 96 Fed. 113. Privileges and Immunities. Again, when one has been deprived by such legislation of certain privileges and immunities of citizenship. United States v. Moore, 129 Fed. 632; Cooke v. Avery, 147 U. S. 384, 37 L. ed. 212, 13 Sup. Ct. Eep. 340; Knight v. Shelton, 134 Fed. 426 ; Starin v. ^&w York, 115 U. S. 248, 29 L. ed. 388, 6 Sup. Ct. Eep. 28; First State Bank v. Shallenberger, 172 Fed. 1000; Slaughter-House Cases, 16 Wall. 36, 116, 122, 21 L. ed. 394, 421, 423 ; AUgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Eep. 427 ; SwafEord v. Templeton, 108 Fed. 310, S. C. 185 U. S. 487, 46 L. ed. 1005, 22 Sup. Ct Eep. 783 ; Skinner v. Garnett Gold Min. Co. 96 Fed. 735. It will be seen in these cases that the protection thus committed to the Federal government is the right or privilege granted in terms by some provision of the Constitution, or appropriate to the enjoyment of a right, etc., conferred on the citizen by the Constitution. Due Process of Law. Or of some right or interest without due process of law. Central E. Co. v. Macon, 110 Fed. 865; San Joaquin & K. IMPAIRING OBLIGATION. 149 River, Canal & Irrig. Co. v. Stanislaus County, 90 Fed. 516 ; Consolidated Water Co. v. San Diego, 35 C. C. A. 631, 93 Fed. 849 ; Ex parte Young, 209 U. S. 144, 52 L. ed. 722, 13 L.RA. (]Sr. S.) 932, 28 Sup. Ct. Eep. 441, 14 A. & E. Ann. Cas. 764; Hastings v. Ames, 15 C. C. A. 628, 32 U. S. App 485, 68 Fed. 728 ; Barney v. New York, 193 U. S. 430, 48 L. ed. 737, 24 Sup. Ct. Rep. 502 ; United States v. New York, N. H. & H. R. Co. 165 Fed. 742-746; Savannah v. Hoist, supra; Ozark- Bell Teleph. Co. v. Springfield, 140 Fed. 666; Louisville v. Cumberland Teleph. & Teleg. Co. 84 C. C. A. 151, 155 Fed. 725, 12 A. & E. Ann. Cas. 500; Chicago R. Co. v. Chicago, 142 Fed. 845 ; Lochner v. New York, 198 U. S. 63, 49 L. ed. 944, 25 Sup. Ct. Rep. 539, 3 A. & E. Ann. Cas. 1133 ; Chi- cago B. & Q. R. Co. V. Chicago, 166 U. S. 235, 41 L. ed. 984, 17 Sup. Ct. Rep. 581; White v. Tacoma, 109 Fed. 32; South- em R. Co. V. North Carolina Corp. Commission, 97 Fed. 513. Equal Protection of the Laws. Or of some deprivation of the equal protection of the laws. Ibid. ; Ex parte Young, supra ; United States v. New York, N. H. & H. R. Co. 165 Fed. 746 ; Cincinnati Street R. Co. v. Snell, 193 U. S. 30, 37, 48 L. ed. 604, 607, 24 Sup. Ct. Rep. 319 ; Iowa C. R. Co. v. Iowa, 160 U. S. 389, 393, 40 L. ed. 467, 469, 16 Sup. Ct. Rep. 344; St. Louis, I. M. & S. R. Co. v. Davis, 132 Fed. 629 ; Anglo American Provision Co. v. Davis Provision Co. 105 Fed. 536; Nashville, C. & St. L. R. Co. v. Taylor, 86 Fed. 169 ; Cotting v. Kansas City Stock Yards Co. 183 U. S. 79, 102, 46 L. ed. 92, 106, 22 Sup. Ct. Rep. 30; Raymond v. Chicago Union Traction Co. 207 U. S. 36, 52 L. ed. 87, 28 Sup. Ct. Rep. 7, 12 A. & E. Ann. Cas. 757; Williamson v. Liverpool L. & G. Ins. Co. 72 C. C. A. 542, 141 Fed. 54, 5 A. & E. Ann. Cas. 402. Again we have innumer- able cases in which the railroads of the land have sought Fed- eral protection from alleged unreasonable rates, upon the ground that they were being deprived of their property with- out "due process of law," and thus deprived of "the equal pro- tection of laws." Ex parte Young, supra; Chicago M. & St. P. R. Co. V. Minnesota, 134 U. S. 418, 33 L. ed. 970, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702; Poor v. Iowa 0. 150 IMPAIRING OBLIGATION. E. Co. 155 Fed. 226, 227; Perkins v. JSTorthern P. E. Co. 155 Ped. 445, and cases cited therein, illustrate the application of these clauses of the Federal Constitution creating the "Fed- eral question." The provisions of the 14th Amendment in protecting rights of property and privileges and immunities of citizenship has been applied not only to annual adverse legislation, but to execu- tive and judicial acts, as well, affecting individual rights as stated. Raymond v. Chicago Union Traction Co. 20Y U. S. 20-3e, 52 L. ed. 78-87, 28 Sup. Ct. Eep. 7, 12 A. & E. Ann. Cas. 757; Scott v. McJSTeal, 154 U. S. 45, 38 L. ed. 901, 14 Sup. Ct. Eep. 1108; United States v. Cruikshank, 92 U. S. 542-545, 23 L. ed. 588-590 ; Nashville, C. & St. L. E. Co. v. Taylor, 86 Fed. 184, 185 ; Chicago, B. & Q. E. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Eep. 581. We see, then, the 14th Amendment is directed against a State and its agencies, and not individuals. Chicago, E. I. & P. E. Co. V. Ludwig, 156 Fed. 152 ; Western U. Teleg. Co. V. Andrews, 154 Fed. 95 ; Morrill v. American Eeserve Bond Co. 151 Fed. 305 ; St. Louis & S. F. R. Co. v. Hadley, 161 Fed. 421; Lindsley v. Natural Carbonic Gas Co. 162 Fed. 954 ; Western U. Teleg. Co. v. Julian, 169 Fed. 166 ; Marten V. Holbrook, 157 Fed. 716; Central E. Co. v. McLendon, 157 Fed. 961; Central E. Co. v. Eailroad Commission, 161 Fed. 925 ; Southern E. Co. v. McNeill, 155 Fed. 757. So a Federal question may arise when right of recovery restb upon unconstitutionality of an act of Congress. Patton v. Brady, 184 U. S. 608, 46 L. ed. 713, 22 Sup. Ct. Ct. Eep. 493. I have thus set forth the prolific source of Federal jurisdic- tion. It would serve no useful purpose in this work to review the cases, but they have been selected to illustrate the various phases and conditions under which the Federal courts have given or refused relief under the provisions of the Constitution, as above stated. It is apparent that "due process of law" and "the equal pro- tection of the laws" is the familiar refuge of those whose rights are alleged to have been impaired by laws from whatever source they emanate (Bacon v. Texas, supra), and that the word 'law" as used in this Amendment means both the general law IMPAIEING OBLIGATION. 151 of the land, wliich protects life, liberty, property, and im- munities, and the laws of procedure. Twining v. New Jersey, 211 U. S. 78, 53 L. ed. 97, 29 Sup. Ot. Eep. 14; United States V. New York, N. H. & H. K. Co. supra. CHAPTEE XXVII. ■WHERE THE FEDERAL QUESTION MUST APPEAR. Whether a case presents a Federal question or not must be determined from the face of the bill. That is, it must appear in plaintiff's statement of his own claim, not by mere averment. New Orleans v. New Orleans Water Works Co. 142 U. S. 79- 87, 35 L. ed. 943-946, 12 Sup. Ct. Eep. 142; St. Joseph & G. I. E. Co. V. Steele, 167 XJ. S. 662, 42 L. ed. 316, 17 Sup. Ct. Eep. 925 ; nor from inference or argument. Han- ford V. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Eep. 1051. But it must appear in the plain logical state- ment of plaintiff's case. Western TI. Teleg. Co. v. Ann Arbor E. Co. 178 U. S. 244, 44 L. ed. 1054, 20 Sup. Ct. Eep. 867 ; Louisville v. Cumberland Teleph. & Teleg. Co. 155 Fed. 725-730, 12 A. & E. Ann. Cas. 550. San Joaquin & K. Eiver Canal & Irrig. Co. v. Stanislaus County, 90 Fed. 520 ; Houston & T. C. E. Co. v. Texas, 177 U. S. 66-78, 44 L. ed. 673-680, 20 Sup. Ct. Eep. 545; Chappell v. Water- worth, 155 TJ. S. 102, 39 L. ed. 85, 15 Sup. Ct. Eep. 34; Ten- nessee V. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Eep. 654; Arkansas v. Kansas & T. Coal Co. 183 U. S. 185, 46 L. ed. 144, 22 Sup. Ct. Eep. 47 ; Fin- ney V. Guy, 189 U. S. 335, 47 L. ed. 839, 23 Sup. Ct. Eep. 558; Oregon Short Line & U. N. E. Co. v. Skottowe, 162 TJ. S. 495, 40 L. ed. 1050, 16 Sup. Ct. Eep. 869 ; Indiana use of Delaware County v. Alleghany Oil Co. 85 Fed. 872 ; Pratt v. Paris Gaslight & Coke Co. 168 TJ. S. 255, 42 L. ed. 458, 18 Sup. Ct. Eep. 62 ; Kansas v. Atchison, T. & S. F. E. Co. 77 Fed. 341 ; Fergus Falls v. Fergus Falls Water Co. 19 C. C. A. 212, 36 TJ. S. App. 480, 72 Fed. 877; Montana Ore-Purchas- ing Co. V. Boston & M. Consol. Copper & S. Min. Co. 35 C. C. A. 1, 93 Fed. 274; S. C. 188 U. S. 644, 47 L. ed. 633, 23 Sup. St. Eep. 434; Filhiol v. Torney, 119 Fed. 976; Joy v. St 152 WHEEE THE FEDEKAL QUESTION MUST APPEAR. 153 Louis, 122 Fed. 524; St. Louis, I. M. & S. K. Co. v. Davis, 132 Ted. 632. These conditions were true under the act of 1875 in suits originally brought in the circuit court (Metcalf v. Watertown, 128 U. S. 586, 32 L. ed. 543, 9 Sup. Ct. Eep. 173) ; but under this act, in removals from State to Federal courts, the Federal question could be presented in the plea, answer, or petition for removal. Tennessee v. Union & Planters' Bank, 152 U. S. 460, 38 L. ed. 513, 14 Sup. Ct. Kep. 654, and authorities cited; Mayo v. Dockery, 108 Fed. 898. But this is not true under the act of 1888. Ibid. The authorities above cited show that the Federal question must appear in the bill, and not in any subsequent pleading. Wise v. Nixon, 78 Fed. 204 ; Tennessee v. Union & Planters' Bank and Chappell v. Water- worth, supra; Postal Teleg. Cable Co. v. United States (Postal Teleg. Cable Co. v. Alabama) 155 U. S. 482, 39 L. ed. 231, 13 Sup. Ct. Eep. 192 ; Arkansas v. Kansas & T. Coal Co. 96 Fed. 355 ; Walker v. Collins, 167 U. S. 57, 42 L. ed. 76, 17 Sup. Ct. Kep. 738. Remedies if Federal Question Not Raised in Bill. This fact, however, that the Federal question cannot be raised by the answer or subsequent pleading to give Federal jurisdiction, does not deprive the defendant of the right of having the question finally passed upon by the Supreme Court of the United States. Minneapolis & St. L. E. Co. v. Minne- sota, 193 U. S. 53, 48 L. ed. 614, 24 Sup. Ct. Kep. 396. If you set up the Federal qiiestion in the answer in the State court, you place yourself in a position to appeal from the high- est State tribunal having jurisdiction to finally pass upon the issue, which in some State may be the supreme court or one of the lower courts, to the Supreme Court of the United States, provided the decision of the State court of last resort has been against the right claimed under the Federal Constitution or laws. U. S. Eev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575; Nashville, C. & St L. R. Co v. Taylor, 86 Fed. 175; California Powder Works v. Davis, 151 U. S. 393, 38 L. ed. 207, 14 Sup. Ct. Kep. 350 ; Giles v. Teasley, 193 U. S. 160, 48 L. ed. 658, 24 Sup. Ct. Kep. 359; Chicago, B. & Q. K. Co. 154 WHEEE THE FEDERAL QUESTIOIir MUST APPEAB. V. Chicago, 166 U. S. 232, 41 L. ed. 983, 17 Sup Ct. Eep. 581; Meyer v. Kichmond, 172 U. S. 92, 43 L. ed. 377, 19 Sup. Ct. Eep. 106 ; Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 68, 43 L. ed. 368, 19 Sup. Ct. Eep. 97; Har- rison V. Morton, 171 U. S. 47, 43 L. ed. 66, 18 Sup. Ct. Eep. 742; Eustis v. Bolles, 150 U. S. 366, 37 L. ed. 1112, 14 Sup. Ct. Eep. 131. In the event the Federal issue is declared against you by the judgment of the State court, and the judgment of the State court does not rest on any other ground than is involved in the Federal question, then you may sue out a writ of error from the Supreme Court of the United States to the State court of final resort deciding against the Federal question, and have the question determined by the Supreme Court of the United States. MclSTulta v. Lockridge, 141 U. S. 331, 35 L. ed. 799, 12 Sup. Ct. Eep. 11 ; Sayvirard v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Eep. 777; Capital Nat. Bank V. First Nat. Bank, 172 U. S. 425, 43 L. ed. 502, 19 Sup. Ct. Eep. 202; Dewey v. Des Moines, 173 U. S. 199, 43 L. ed. 666, 19 Sup. Ct. Eep. 379. But if the judgment of the State court rests wholly on grounds of a non-Federal character, the writ of error will not be granted, though there be a Federal question in issue. Leathe v. Thomas, 207 U. S. 93, 98, 52 L. ed. 118, 120, 28 Sup. Ct. Eep. 30 ; Delaware City S. & P. S. B. Nav. Co. V. Eeybold, 142 U. S. 637, 35 L. ed. 1142, 12 Sup. Ct. Eep. 290 ; Haley v. Breeze, 144 U. S. 130, 36 L. ed. 373, 12 Sup. Ct. Eep. 836; Giles v. Teasley, 193' U. S. 160, 48 L. ed. 658, 24 Sup. Ct. Eep. 359 ; Sauer v. New York, 206 U. S. 536-546, 51 L. ed. 1176-1181, 27 Sup. Ct. Eep. 686; Mur- dock V. Memphis, 20 Wall. 590, 22 L. ed. 429 ; Seeberger v. McCormick, 175 U. S. 280, 44 L. ed. 163, 20 Sup. Ct. Eep. 128 ; Bacon v. Texas, 163 U. S. 227, 41 L. ed. 139, 16 Sup. Ct. Eep. 1023; Eemington Paper Co. v. Watson, 173 U. S. 443, 43 L. ed. 762, 19 Sup. Ct. Eep. 456; Nashville, C. & St. L. E. Co. V. Taylor, supra. Section 709, United States Revised Statutes. This power of revision of the decision of the State courts by the Supreme Federal Court is given by the United States "WHEBE THE TEDEEAL QUESTION MUST APPEAE. 155 Eevised Statutes, § 709, U. S. Comp. Stat. 1901, p. 575, which provides for the writ of error to the State court of last resort : — First. When the State court decides against the right claimed under the Federal law, or the validity of a treaty, or an authority exercised under the United States, when drawn in question in the cause so decided. Second. When there is drawn in question the validity of a statute, or an authority exercised under a State, on the ground of repugnancy to the Constitution, treaty, or laws of the United States, and the decision of the State court is in favor of their validity. Third. When any right, title, privilege, or immunity is claimed under the Constitution, laws, or treaties of the United States, or commission held, or authority exercised under the United States, and the decision of the State court is against the right, title, privilege, or immunity set up or claimed by either party, under the Constitution, laws, treaties, commis- sion, or authority. U. S. Kev. Stat. § 709, is embodied in sec. 237 of the ISTew Judicial Code. This statute is much more comprehensive than the sections of the judiciary act of 1875 and 1888, giving to the circuit courts of the United States jurisdiction when the Constitution, laws, and treaties of the United States are to be construed in -determining the material issues in a case, in that it gives a fur- ther right to Federal supervision, as when the cause of action arises under a commission held or authority exercised under the United States (Columbia Water Power Co. v. Columbia Electric Street E. Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Eep. 247; Carson v. Dunham, 121 U. S. 428, 30 L. ed. 994, 7 Sup. Ct. Eep. 1030; Mutual L. Ins. Co. v. Mc- Grew, 188 U. S. 307, 47 L. ed. 484, 63 L.E.A. 33, 23 Sup. Ct. Eep. 375; McGuire v. Massachusetts, 3 Wall. 385, 18 L. ed. 165 ; Cooke v. Avery, 147 U. S. 385, 37 L. ed. 212, 13 Sup. Ct. Eep. 340 ; Yazoo & M. Valley E. Co. v. Adams, 180 U. S. 14, 15, 45 L. ed. 404, 21 Sup. Ct. Eep. 240; Avery v. Popper, 179 U. S. 309, 45 L. ed. 204, 21 Sup. Ct. Eep. 94), and creates a different mode in which a Federal question may arise (Nashville, C. & St. L. E. Co. v. Taylor, 86 Fed. 175, 176; McISTulta v. Lockridge, 141 U. S. 330, 331, 35 L. ed. 798, 799, 12 Sup. Ct. Eep. 11) ; as, where a suit is brought 156 WHERE THE FEDEKAL QUESTION MUST APPEAIt. in a State court on a Federal judgment obtained in another State, while such suit could not be removed to the United States circuit court, yet a writ of error would lie to the Su- preme Court of the United States, if the State court of last resort should fail to give full effect to the authority exercised under the United States as shown by the judgment, because it comes within the letter of section 709. Provident Sav. Life Assur. Soc. V. Ford, 114 U. S. 641, 29 L. ed. 263, 5 Sup. Ct. Kep. 1104; Carson v. Dunham, 121 U. S. 428, 429, 30 L. ed. 994, 995, 7 Sup. St. Eep. 1030; Avery v. Popper, 179 U. S. 314, 45 L. ed. 206, 21 Sup. Ct. Rep. 94; Nashville, C. & St. L. E. Co. V. Taylor, 86 Fed. 175. So where a suit enforcing a property right acquired under a judgment of a Federal court, if the highest court of a State should fail to give effect to the authority exercised under the United States, as shown by the judgment and decrees of their courts, then its decision may be subjected to revision under sec- tion 709. Ibid.; Huntington v. Attrill, 146 U. S. 666, 36 L. ed. 1127, 13 Sup. Ct. Rep. 224; Cooke v. Avery, 147 U. S. 375, 37 L. ed. 209, 13 Sup. Ct. Rep. 340. Thus we see there are issues presenting a Federal question, but only to be revised by the Supreme Court of the United States and not within the acts of 1875 and 1888, giving juris- diction to the circuit courts of issues resting upon the existence of a Federal question. To take advantage of this statute, you will see by the third clause that it must be specially set up and claimed by either party, that is, the right, title, or immunity claimed must be pleaded. Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240 ; F. G. Oxley Stave Co. V. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Columbia Water Power Co. v. Columbia Electric Street R. Light & P. Co. 172 U. S. 476, 43 L. ed. 521, 19 Sup. Ct. Eep. 247 ; Dewey v. Des Moines, 173 U. S. 198, 43 L. ed. 666, 19 Sup. Ct. Rep. 379; Eustis v. Bolles, supra; See Roby V. Colehour, 146 U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47. See Meyer v. Richmond, 172 U. S. 83, 43 L. ed. 374, 19 Sup. Ct. Rep. 106 ; Green Bay & M. Canal Co. v. Patten Paper Co. supra; But where the validity of a statute or treaty of the United States is raised in any suit brought in a WHEEE THE FEDEEAL QUESTION MUST APPEAE. 157 State court, and the decision is against it, or where the validity of a State statute is drawn in question as being repugnant to the Constitution or laws of the United States, and the validity of the State statute is sustained, then if the Federal question appears in the record and was necessarily involved and de- cided, or if the case could not be decided without deciding the Federal question, then the fact that it was not specially set up does not prevent a review of the question in the Supreme Court of the United States. Ibid. ; German Sav. & L. Soc. v. Dor- mitzer, 192 U. S. 127, 48 L. ed. 376, 24 Sup. Ct. Kep. 221 ; Wright V. Nagle, 101 U. S. 791, 25 L. ed. 921; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 269, 35 L. ed. 1009, 12 Sup. Ct. Eep. 173 ; Chapman v. Good- now (Chapman v. Crane) 123 U. S. 548, 31 L. ed. 238, 8 Sup. Ct. Eep. 211 ; Green Bay & M. Canal v. Patten Paper Co. 172 U. S. 58-68, 43 L. ed. 364-368, 19 Sup. Ct. Eep. 97 ; Harrison v. Morton, supra ; Chicago L. Ins. Co. v. Needles, 113 U. S. 579, 28 L. ed. 1086, 5 Sup. Ct. Eep. 681; Missouri, K & T. E. Co. V. Haber, 169 U. S. 622, 42 L. ed. 881, 18 Sup. Ct. Eep. 488 ; Millingar v. Hartupee, 6 Wall. 262, 18 L. ed. 830. No particular form of words is necessary to raise the Fed- eral question, within the meaning of the clause of the section under consideration, yet there must be something in the case before the State court w^hich at least would call its attention to the Federal question as one relied upon by the party claim- ing it, and then even if the court did not notice the question, but the effect of its decision was a denial of the right claimed, it would be sufficient (Dewey v. Des Moines, supra ; Chicago, B. & Q. E. Co. V. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Eep. 581) ; but it is not enough that there be somewhere hidden away in the record a question which if raised would be of a Federal nature. Hamilton Mfg. Co. v. Massachusetts, 6 Wall. 632, 18 L. ed. 904 (see Appeal from State to Supreme Court of the United States, infra, chapter 94). CHAPTER XXVIII. HOW THE FEDERAL QUESTION MUST APPEAE. We have discussed where the Federal question must appear, and I now propose to briefly state how it must appear. In St. Paul, M. & M. E. Co. v. St. Paul & N. P. R. Co. 15 C. C. A. 167, 32 U. S. App. 372, 68 Fed. 2, it was held that if, from the plaintiff's bill or petition, it appears that in any aspect the case may assume the right of recovery may de- pend on the construction of a Federal statute, and such right is not a mere colorable claim, but rests on a reasonable founda- tion, then a Federal question is involved adequate to confer jurisdiction, though the case may be finally decided on other grounds. St. Louis, I. M. & S. R. Co. v. Davis, 132 Fed. 632; Arkansas v. Choctaw & M. R. Co. 134 Fed. 107 ; Illinois C. R. Co. V. Chicago, 176 U. S. 646, 44 L. ed. 622, 20 Sup. Ct. Rep. 509 ; Huff v. Union Nat. Bank, 173 Fed. 336 ; Files v. Davis, 118 Fed. 469, 470; Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 695, 42 L. ed. 630, 18 Sup. Ct. Rep. 223. Whether the claim that a Federal question exists is well founded, when tried on its merits, does not affect jurisdiction, if as a matter of fact the statement in the case presented the Federal question as a real substantial issue. The court must take jurisdiction to determine whether the claim is valid or not, and having jur- isdiction may decide all the issues (Ibid. ; ISTashville, C. & St. L. R. Co. V. Taylor, 86 Fed. 168-178; Yazoo & M. Valley R. Co. V. Adams, 180 U. S. 45, 45 L. ed. 417, 21 Sup. Ct. Rep. 256), though it should appear at the trial there was no Fed- eral question. Ibid. ; Little York Gold-Washing & Water Co. V. Keyes, 96 U. S. 199, 24 L. ed. 656. But it is not to be understood that a mere reference in a bill to a Federal statute, and setting up a mere colorable claim thereunder, or the fact that it may be found necessary to con- sult or refer to some Federal statute to ascertain the meanin" 158 ° HOW THE FEDEKAL QUESTION MUST APPEAK. 159 of a contract, sets up a Federal question. Illinois C. E. Co. V. Chicago, 176 U. S. 656, 44 L. ed. 626, 20 Sup. Ct. Eep. 509 ; Sawyer v. Piper, 189 U. S. 154, 47 L. ed. 757, 23 Sup. St. Eep. 633; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Eep. 353 ; Swafford v. Terapleton, 185 U. S. 487-493, 46 L. ed. 1005-1008, 22 Sup. Ct. Eep. 783; Little York Gold-Washing & Water Co. v. Keyes, 96 U. S. 203, 24 L. ed. 658 ; Wise v. Nixon, 78 Fed. 203 ; Cali- fornia Oil & Gas. Co. v. Miller, 96 Fed. 18 ; New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 764, 14 Sup. Ct. Eep. 905 ; St. Paul, M. & M. E. Co. v. St Paul & N. P. E. Co. supra; Harris v. Eosenberger, 13 L.E.A.(]Sr.S.) 762, 76 C. C. A. 225, 145 Fed. 452 ; Devine v. Los Angeles, 202 U. S. 313-332, 50 L. ed. 1046-1053, 26 Sup. Ct. Eep. 652. To illustrate: Title to land may be derived from the Fed- eral government, yet unless a construction of the granting power was necessary to decide a material issue in the case there would be no Federal question. St. Paul, M. & M. E. Co. V. St. Paul & N. P. E. Co. supra ; California Oil & Gas Co. V. Miller, 96 Fed. 17. Thus in a sale on execution issu- ing out of a Federal court, if only the title of the defendant, when the execution was levied, was assailed, there would be no Federal question, but otherwise if the validity of the writ is assailed. Shoshone Min. Co. v. Eutter, 177 U. S. 505-507, 44 L. ed. 864, 865, 20 Sup. Ct. Eep. 726 ; Avery v. Popper, 179 U. S. 314, 45 L. ed. 206, 21 Sup. Ct. Eep. 94; Black- burn V. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Eep. 222, 20 Mor. Min. Eep. 358; De Lamar's Nevada Gold Min. Co. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Eep. 715 ; Florida, C. & P. E. Co. v. Bell, 17G U. S. 321-328, 44 L. ed. 486-490, 20 Sup. Ct. Eep. 399; Myrtle v. Nevada, C. & O. E. Co. 137 Fed. 195-196. See Florida, C. & P. E. Co. v. Bell, 31 C. C. A. 9, 59 U. S. App. 189, 87 Fed. 369. Or the validity of the lien of the judgment is in issue. Cooke v. Avery, 147 U. S. 375-390, 37 L. ed. 209-214, 13 Sup. Ct. Eep. 340. Or the title acquired under the lien. Pierce v. Molliken, 78 Fed. 196. Again, where plaintiff claims lands from a grant by Con- gress, which is not denied, but the defense is that the lands in dispute are not covered by the grant, there is no Federal 160 HOW THE FEDEEAL QUESTION MUST APPEAE. question, but otherwise if the title is put in issue. St. Paul, M. & M. R. Co. V. St. Paul & N. P. R. Co. supra ; Southern P. R. Co. V. Whittaker, 47 Fed. 529 ; Murray v. Bluebird Min. Co. 45 Fed. 385. See Butler v. Shafer, 67 Fed. 161. So where there are conflicting claims to entries of public lands a Federal question is raised. Linkswiler v. Schneider, 95 Fed. 203. Or where there is a conflict of riparian rights in lands granted by the United States. King v. St. Louis, 98 Fed. 641 ; Pacific Gas Improv. Co. v. Ellert, 64 Fed. 429-430. See Mc- Gilvra v. Ross, 90 C. C. A. 398, 164 Fed. 604. So conflicting claims to mining lands granted by the Federal government (Cates V. Producers & C. Oil Co. 96 Fed. 8), but where there is no dispute as to the meaning of the Federal law, but only as to which claim was first made, there is no Federal question. California Oil & Gas. Co. v. Miller, supra; Crystal Springs Land & Water Co. v. Los Angeles, 82 Fed. 114; Hooker v. Los Angeles, 188 U. S. 318, 47 L. ed. 491, 63 L.R.A. 471, 23 Sup. Ct. Rep. 395. See Devine v. Los Angeles, 202 U. S. 388, 50 L. ed. 1055, 26 Sup. Ct. Rep. 652; Montana Ore Pur- chasing Co. V. Boston & M. Consol. Copper & S. Min. Co. 29 C. C. A. 462, 57 U. S. App. 13, 85 Fed. 867; Argonaut Min. Co. V. Kennedy Min. & Mill. Co. 84 Fed. 1; Bushnell v. Crooke Min. & Smelting Co. 148 IT. S. 683, 37 L. ed. 611, 13 Sup. Ct. Rep. 771 ; Budzisz v. Illinois Steel Co. 170 U. S. 41, 42 L. ed. 941, 18 Sup. Ct. Rep. 503 ; Filhiol v. Torney, 119 Fed. 974; Gillis v. Stinchfield, 159 U. S. 658, 40 L. ed. 295, 16 Sup. Ct. Rep. 131 ; McMillen v. Ferrun Min. Co. 197 U. S. 343, 49 L. ed. 784, 25 Sup. Ct. Rep. 533. The mere fact that in the progress of a cause it becomes necessary to construe the Federal Constitution or laws does not make a Federal question ; it must appear that the recovery sought is based on the construction to be given, and it is the substantial issue. Tennessee v. Union & Planters' Bank, 152 U. S. 460, 38 L. ed. 513, 14 Sup. Ct. Rep. 654 ; Little York Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; St. Joseph & G. L R. Co. v. Steele, 167 U. S. 659, 42 L. ed. 315, 17 Sup. Ct. Rep. 925; Hanford v. Davies, 163 U. S. 273-279, 41 L. ed. 157-159, 16 Sup. Ct. Rep. 1051; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777 ; Borgmeyer v. Idler, 159 U. S. 408, 40 L. ed. 199, HOW THE FEDEEAL QUESTION MUST APPEAE. 161 16 Sup. Ct. Eep. 34 ; Hamblin v. Western Land Co. 147 U. S. 532, 37 L. ed. 268, 13 Sup. Ct. Eep. 353; Wise v. Mxon, supra; Arkansas v. Kansas & T. Coal Co. 96 Fed. 355, 356. Cases involving the infringement of patents or copyrights raises a Federal question, but suits merely to recover the price if sold or the right to manufacture and sell the patented or copyrighted articles under a contract, and not involving the validity of the patent or copyright, does not raise a Federal question. St. Paul Plough Works v. Starling, 127 U. S. 378, 32 L. ed. 252, 8 Sup. Ct. Eep. 1327 ; Pratt v. Paris Gaslight & Coke Co. 168 U. S. 260, 42 L. ed. 460, 18 Sup. Ct. Eep. 62 ; Kartell v. Tilghman, 99 U. S. 555, 25 L. ed. 360 ; Marsh V. Nichols, S. & Co. 140 U. S. 356, 35 L. ed. 417, 11 Sup. Ct. Eep. 798 ; Albright v. Teas, 106 U. S. 617, 27 L. ed. 297, 1 Sup. Ct. Eep. 550; Densmore v. Three Elvers Mfg. Co. 38 Fed. 750 ; Montgomery Palace Stock-Car Co. v. Street Stable- Car Line, 43 Fed. 331; Silver v. Holt, 84 Fed. 811. So ■with reference to national banks, a suit against directors for money loaned, alleged in a petition, raises no Federal ques- tion. Bailey v. Mosher, 74 Fed. 15, S. C. 95 Fed. 224, 46 C. C. A. 471, 107 Fed. 561. See Gates v. Jones Nat. Bank, 206 U. S. 158, 51 L. ed. 1002, 27 Sup. Ct. Eep. 638 ; Bailey v. Mosher, 11 C. C. A. 304, 27 U. S. App. 339, 63 Fed. 488. Xor title to national bank stock. Leyson v. Davis, 170 U. S. 40, 41, 42 L. ed. 941, 18 Sup. Ct. Eep. 500. But a suit on a bond of a cashier of a national bank is a Fed- eral question. Walker v. Windsor Nat. Bank, 5 C. C. A. 421, 5 TJ. S. App. 423, 56 Fed. 80. So a suit by a receiver of a national bank against stockholders for stock assessment, does raise a Federal question. liayden v. Brovsm, 94 Fed. 15. And such receiver may sue without reference to amount or citizen- ship. Brown v. Smith, 88 Fed. 565. A suit against a Fed- eral receiver for acts of a former receiver does not raise a Fed- eral question, McNulta v. Lockridge, 141 U. S. 329, 35 L. ed. 797, 12 Sup. Ct. Eep. 11, but suing a receiver without per- mission where required does raise a Federal question. Comer V. Felton, 10 C. C. A. 28, 22 U. S. App. 313, 61 Fed. 736, 737. When full faith and credit are not given to the judgment of a sister State a Federal question is involved. U. S. Const. S. Eq.— 11. 162 HOW THE FEDERAL QUESTION MUST APPEAR. art. 4, § 1; Great Western Teleg. Co. v. Purdy, 162 U. S. 334, 40 L. ed. 989, 16 Sup. Ct. Eep. 810; Andrews v. An- drews, 188 U. S. 14, 47 L. ed. 366, 23 Sup. Ct. Rep. 237; German Sav. & L. Soc. v. Dormitzer, 192 U. S. 125, 48 L. ed. 373, 24 Sup. Ct. Eep. 221 ; Huntington v. Attrill, 146 U. S. 683, 684, 36 L. ed. 1133, 1134, 13 Sup. Ct. Eep. 224; Anglo- American Provision Co. v. Davis Provision Co. 105 Fed. 536; Carpenter v. Strange, 141 U. S. 103, 35 L. ed. 646, 11 Sup. Ct. Eep. 960. The construction of a State statute of limitation does not raise a Pederal question. Ludeling v. Cliafle, 143 U. S. 305, 36 L. ed. 314, 12 Sup. Ct. Eep. 439 ; Dupree v. Mansur, 214 U. S. 161, 53 L. ed. 950, 29 Sup. Ct. Eep. 548 ; Slide & S. Gold Mines v. Seymour, 153 U. S. 509, 38 L. ed. 802, 14 Sup. Ct. Eep. 842. Nor the refusal of a trial by jury. Iowa C. E. Co. V. Iowa, 160 TJ. S. 393-394, 40 L. ed. 469, 16 Sup. Ct. Eep. 344. Nor whether a party acquired a right under a State land law before its withdrawal. Bacon v. Texas, 163 U. S. 209-219, 41 L. ed. 133-137, 16 Sup. Ct. Eep. 1023. Nor whether an ordinance of a city conforms to its charter. Savannah v. Hoist, 65 C. C. A. 449, 132 Fed. 901-903 ; Mc- Cain V. Des Moines, 174 U. S. 168, 43 L. ed. 936, 19 Sup. Ct. Eep. 644. The Federal right claimed to raise a Federal question must be that of the plaintiff, and not a third person. Ludeling v. Chaffe, supra; Giles v. Little, 134 U. S. 645-649, 33 L. ed. 1062, 1063, iO Sup. Ct. Eep. 623 ; McCandless v. Pratt, 211 U. S. 437, 53 L. ed. 271, 29 Sup. Ct. Eep. 144. And in alleging the Federal question it is not necessary that the bill must show the particular clause of the Constitution, but the allegation must be positi7e, not argumentative. Crystal Springs Land & Water Co. v. Los Angeles, 76 Fed. 148, 153, 154; Hanford V. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Eep. 1051. But if the whole theory of the case shows an impairment by statute of a contract, the Federal question may appear with- out mentioning the Constitution. Receivers. Receivers appointed by Federal courts have heretofore been HOW THE FEDEEAL QUESTION MUST Al'PEAJl, 163 held to have been fully within the class of Federal officers necessarily exercising i)owers derived from Federal authority, and could sue or be sued in the Federal courts by virtue of the Federal appointment. Thompkius v. MacLeod, 96 Fed. yi'T ; J. I. Case Plow Works v. Finks, 26 C. C. A. 49, note; Gil- more V. Herrick, 93 Fed. 525 ; Carpenter v. Northern P. R. Co. 75 Fed. 850; Gableman v. Peoria, D. & E. E. Co. 101 Fed. 6, 7; Bradley v. Ohio Eiver & C. R Co. 119 K C. 918, 78 Fed. 387. But it has now been fully determined that the ap- pointment of a receiver by a Federal judge does not by virtue of his appointment raise a Federal question, so that if sued in a State court the case would be removable to a Federal court on the ground of a Federal question. Pope v. Louisville, N. A. & C. E. Co. 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Eep. 500; Gableman v. Peoria, D. & E. E. Co. 179 U. S. 335, 45 L. ed. 220, 21 Sup. Ct. Eep. 171, S. C. 41 C. C. A. 160, 101 Fed. 6, 7 ; Chicago, E. I. & P. E. Co. v. Martin, 178 U. S. 245, 44 L. ed. 1055, 20 Sup. Ct. Eep. 854; Marrs v. Fel- ton, 102 Fed. 778 ; Yarnell v. Felton, 104 Fed. 163 ; Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S. Ste. M. E. Co. 192 U. S. 384, 48 L. ed. 490, 24 Sup. Ct. Eep. 325 ; Pepper v. Eogers, 128 Fed. 988. See "Eemoval by Eeceivers." Prior to the act of 1888, section 3, a Federal receiver could not be sued out of the court appointing him, without special permission of the appointing court, but since said act a receiver may be sued in any court of competent jurisdiction, State or Federal, in respect to any act or transaction of the receiver in carrying on the business connected with the property held as receiver. Ibid. The act of 1888, section 3, is discussed here- after under "Jurisdictional Amount" in suits by and against receivers, so I pass to another phase of the question. CHAPTEE XXIX. ANTICIPATINQ FEDERAT. QUESTION. Having shown what is a Federal question, where and how it must appear, and how alleged, and its effect in giving juris- diction to the Federal courts, — first, by writ of error to the Supreme Court of the United States; second, by original ju- risdiction of the circuit courts, and by removal from State courts, — let us now discuss the right of the plaintiff to obtain jurisdiction in the Federal courts, by anticipating in his bill the defense of a Federal question upon which defendant will rest his case. Cox v. Gilmer, 88 Fed. 346 ; Joy v. St. Louis, 122 Fed. 524; Filhiol v. Torney, 119 Fed. 974; Florida, C. & P. E. Co. V. Bell, 176 U. S. 321, 44 L. ed. 486, 20 Sup. Ct. Eep. 399; Filhiol v. Torney, 194 U. S. 356, 360, 48 L. ed. 1014, 1017, 24 Sup. Ct. Eep. 698 ; Boston & M. Consol. Cop- per & S. Min. Co. V. Montana Ore Purchasing Co. 188 U. S. 639, 47 L. ed. 631, 23 Sup. Ct. Eep. 434. We have seen, to give jurisdiction to the Federal courts by reason of a Federal question, the Federal question must appear in plaintiff's statement of his own case. Ibid. The rule is fixed that plaintiff cannot invoke Federal jurisdiction by anticipating in his bill the defense of a Federal question, as, for instance, to set up that defendant will claim that a State statute is invalid under the Federal Constitution. This is not necessary to plaintiff's case. Metcalf v. Watertown, 128 U. S. 589, 32 L. ed. 544, 9 Sup. Ct. Eep. 173. See, also, Bos- ton & M. Consol. Copper & S. Min. Co. v. Montana Ore Pur- chasing Co. 188 U. S. 646, 47 L. ed. 635, 23 Sup. Ct. Eep. 440. Judge Sanborn of the Eighth Circuit strongly combatted this position, and quotes in support of his dissenting opinion in Fergus Falls v. Fergus Falls Water Co. 19 C. C. A. 212, 36 TJ. S. App. 480, 72 Fed. 876, Saginaw Gaslight Co. v. 164 ANTICIPATING PEDEEAL QUESTION. 165 Saginaw, 28 Fed. 529; Smith v. Bivens, 56 Fed. 352, and other cases, 72 Fed. 880, which he contends clearly show that the plaintiff may raise the Federal question by anticipating the defense; and he claimed that 152 U. S., relied upon by the majority of the court, does not sustain the majority opinion. If it is true, as broadly stated by some of the cases hereto- fore referred to, in discussing how the Federal question should appear, that if in any aspect the case may assume the right of recovery may depend on the construction of a Federal statute, a Federal question appears, then it seems Judge Sanborn has a basis for his conclusion. St. Paul, M. & M. R. Co. v. St. Paul & K P. E. Co. 15 C. C. A. 167, 32 U. S. App. 372, 68 Fed. 2-12. See Crystal Springs Land & Water Co. v. Los Angeles, 76 Fed. 151-153; Hamilton Gaslight & Coke Co. V. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Eep. 90. But the rule is otherwise. The Federal question, to sus- tain jurisdiction, must be an existing one upon which plaintiff depends to sustain Ms suit, and not one that may or may not arise in the progress of the cause, as before said, to defeat his case. Joy v. St. Louis, supra. He cannot rest on the doubt as to whether it will be relied on or not. Ibid. ; Walker v. Collins, 167 U. S. 57, 42 L. ed. 76, 17 Sup. Ct. Eep. 738; Arkansas v. Kansas & T. Coal Co. 183 U. S. 185, 46 L. ed. 144, 22 Sup. Ct. Eep. 47 ; New Orleans v. Benjamin, 153 tr. S. 430, 38 L. ed. 771, 14 Sup. Ct. Eep. 905 ; Kansas v. Atchison, T. & S. F. E. Co. 77 Fed. 339, 341; Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 639, 47 L. ed. 631, 23 Sup. Ct. Eep. 434; Houston & T. C. E. Co. v. Texas, 177 U. S. 78, 44 L. ed. 680, 20 Sup. Ct. Eep. 545; Peabody Gold Min. Co. v. Gold Hill Min. Co. 49 C. C. A. 637, 111 Fed. 822, 21 Mor. Min. Eep. 591. The jurisdictional allegation must be in the case made in the bill. Ibid. ; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Eep, 654; Wise v. Nixon, 78 Fed. 204; Florida v. Charlotte Harbor Phosphate Co. 20 C. C. A. 538, 41 U. S. App. 405, 74 Fed. 578 ; Met- calf V. Watertown, 128 U. S. 586, 32 L. ed. 543, 9 Sup. Ct. Eep. 173 ; Colorado Cent. Consol. Min. Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Eep. 35. But whatever may be the rule in a case of anticipation of the Federal question, when the answer comes in not setting up the Federal question, 166 ANTICIPATING FEDEEAL QUESTION. the case should be dismissed at once. Robinson v. Anderson, 121 U. S. 522-524, 30 L. ed. 1021, 1022, 7 Sup. Ct. Rep. 1011; Crystal Springs Land & Water Co. v. Los Angeles, 82 Fed. 114, 177 U. S. 169, 44 L. ed. 720, 20 Sup. Ct. Rep. 573 ; Hooker v. Los Angeles, 188 U. S. 318, 47 L. ed. 491, 63 L.R.A. 471, 23 Sup. Ct. Rep. 395 ; Boston & M. Consol. Copper & S. Min. Co. V. Montana Ore Purchasing Co. 188 U. S. 643, 47 L. ed. 633, 23 Sup. Ct. Rep. 434 ; Devine v. Los Angeles, 202 U. S. 338, 50 L. ed. 1055, 26 Sup. Ct. Rep. 652. Citizenship and Venue When Jurisdiction Rests on a Federal Question. Citizenship. — When the Federal question is a basis of ju- risdiction, the citizenship of parties is not material. Citizens of the same State may sue each other where the recovery is based on a Federal question. Fatten v. Brady, 184 U. S. 611, 46 L. ed. 715, 22 Sup. Ct. Rep. 493; San Joaquin & K. River Canal & Irrig. Co. v. Stanislaus County, 90 Fed. 520. The same rule applies to suits arising under treaties made by the United States (Owings v. Norwood, 5 Cranch, 344, 3 L. ed. 120) ; that is, where a right is given or protected by treaty. Venue. — The suit can only be brought in the district where- of the defendant is an inhabitant (sec. 1, act 1888, see chapter 15) and this is true where the suit shows diversity of citi- zenship and a Federal question (Newell v. Baltimore & 0. R. Co. 181 Fed. 698), and though the Federal question be added by amendment (Ibid., 700, and cases cited). Issue, How Raised. The want of a Federal question in the statement of the case may be raised by demurrer, plea, or answer. Fergus Falls V. Fergus Falls Water Co. supra. Of course, if it does, not appear, then a demurrer is proper to raise the issue. But if the Federal question appears in the bill, then you must raise the issue by plea or in your answer; however, it seems that unless in the trial of the plea it appears that the allegation of the Federal question was fraudulently made to acquire juris- diction, that it will not affect the- final jurisdiction to deter- ANTICIPATIire FEDEEAL QUESTION. 167 mine the case, though it appears upon the merits of the plea that no actual Federal question was involved. Pacific Elec- tric E. Co. V. Los Angeles, 194 U. S. 112, 48 L. ed. 896, 24 Sup. Ct. Rep. 586; Illinois C. E. Co. v. Adams, 180 U. S. 38, 45 L. ed. 413, 21 Sup. Ct. Eep. 251. The theory is that there is a distinction between the exist- ence of a Federal question for the purpose of jurisdiction, and the actual decision of that question on its merits. Wheth- er the hill presents a Federal question, and whether it is well founded when considered on its merits, are different questions, and the court must take jurisdiction to determine whether it is well founded. Nashville, C. & St. L. E. Co. v. Taylor, 86 Fed. 178. In Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct. Eep. 681, it was held that the jurisdiction on the ground of a Federal question being asserted, jurisdic- tion is not defeated because in the trial it does not appear; wherefore a motion to dismiss because no Federal question ex- ists cannot prevail. Southern P. E. Co. v. California, 118 U. S. 112, 30 L. ed. 104, 6 Sup. Ct. Eep. 993; Nashville, C. & St. L. E. Co. V. Taylor, supra. In Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 695, 42 L. ed. 630, 18 Sup. Ct. Eep. 223, it was held that jurisdiction must be taken to determine the fact as to whether the claim of the existence of a Federal question is meritorious ; that is, it depended on the allegations in the bill, and not on the facts appearing subsequently. Little York Gold-Washing & Water Co. V. Keyes, 96 U. S. 204, 24 L. ed. 659. Of course, the claim must be real and colorable, not fictitious and fraudu- lent. Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Eep. 353. It is saidiin City E. Co. v. Citi- zens' Street E. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Eep. 653, that all that is necessary to establish jurisdiction is to show that complainant had in good faith asserted the claim. Fergus Falls v. Fergus Falls Water Co. 12 0. C. A. 212, 36 U. S. App. 480, 72 Fed. 883 ; St. Paul, M. & M. E. Co. V. St. Paul, & N. P. E. Co. supra. So then, to raise the is- sue by plea or answer it must be alleged that the allegation is fictitious and fraudulent, and it must be shown, or jurisdiction is not affected. In the light of the fact that the Federal court is one of 168 ANTICIPATING FEDERAL QUESTION. limited jurisdiction, I cannot appreciate the soundness of the reasoning that makes a mere statement of a Federal question, though not true, sufficient to sustain jurisdiction. If it is a fundamental ground of jurisdiction, its existence, and not a mere allegation, should be shown. While the allegation and issue thereon may bring it within the jurisdiction to deter- mine the particular issue, upon what rests the further power of the court to proceed after determining the fundamental ground does not exist? The decisions which hold that the suit should be dismissed seems to me to be the true construc- tion, as it is the logical conclusion from the conditions (see Bank of Arapahoe v. David Bradley & Co. 19 C. C. A. 206, 36 U. S. App. 519, 72 Fed. 872 ; St. Paul, M. & M. E. Co. V. St. Paul & ISr. P. K. Co. supra) ; that is, a want of power in a court of limited jurisdiction. Act Mch. 3d, 1875, § 5. If you desire to demur, you may use the form given under diversity of citizenship. If the allegation of the Federal question is sufficient, then you may plead or answer as follows: A. B. J In Circuit Court of the United States vs. L In Equity for the District of CD) , sitting at And now comes C. D., defendant (or C. D. and E. F., defendants, jointly and severally), and by protestation not confessing any of the matters in said bill contained, do plead thereto, and for cause of plea aver and say that this court should not take jurisdiction of this suit, for that the said suit does not really and substantially involve a suit or controversy proper- ly vcithin its jurisdiction, for that said suit is vcholly based on the alleged existence of a Federal question, and the allegations that said suit is de- pendent on a construction of the constitution and laws of the United States (or whatever may he the allegations as to the Federal question), are not truly and in good faith made, but on the contrary, the averments in the bill as aforesaid are stated with the false and fraudulent purpose of im- posing on the jurisdiction of this court. Wherefore defendant says that the allega-tions are fictitious and fraudulent. All of which he avers to be true, and pleads the same in bar of com- plainant's said bill, and prays the judgment of this court whether ha should answer, further pray to be hence dismissed with costs. R. F., Solicitor, etc. Certificate of counsel and affidavit of defendants. The same form may be used if the Federal question is de- nied in the answer. CHAPTEE XXX. AMOUNT. Equally important and fundamental as one of the elements of jurisdiction of the Federal courts is the amount or value of the subject-matter in litigation, and it is essential, though there be diversity of citizenship, or a Federal question. Holt V. Indiana Mfg. Co. 176 U. S. 72, 73, 40 L. ed. 376, 377, 20 Sup. Ct Rep. 272 ; United States v. Sayward, 160 U. S. 493, 40 L ed. 50S, 16 Sup. Ct. Rep. 371; Tupino v. La Compania General De Tabacos De Filipinas, 214 U. S. 268, 53 L. ed. 992, 29 Sup. Ct. Rep. 610 ; Shewalter v. Lexington, 143 Fed. 161 ; Fishback v. Western U. Teleg. Co. 161 U. S. 99, 40 L. ed. 631, 16 Sup. Ct. Rep. 506. The amount or value of the subject-matter or right being litigated must, under the act of 1888, exceed the sum of two thousand dollars, exclusive of interest and costs. Prior to this act the amount was only five hundred dollars, exclusive of costs. It was the purpose of Congress, in the act of 1888, to curtail the jurisdiction of the Federal courts. Under this act amoxmt is material, except when the United States is a party, or citizens of the same State are claiming under a grant from a different State. United States v. Reid, 90 Fed. 522; United States v. Sayward, supra; Risley v. Utica, 168 Fed. 744; Turner v. Jackson Lumber Co. 87 C. C. A. 103, 159 Fed. 923-925 ; Purnell v. Page, 128 Fed. 496. See JSTew Code, chap. 2, sec. 24, par. 2, to 25, specifying cases in which amount is not essential to jurisdiction. "Matter in Dispute." "The matter in dispute," as used in the statute, means the matter for which the suit in good faith is brought, and issue joined. Smith v. Adams, 130 U. S. 167-175, 32 L. ed. 895- 898, 9 Sup. Ct. Rep. 566; Cowell v. City Water Supply Co. 57 0. C. A. 393, 121 Fed. 53-55; Bruce v. Manchester '& K. 169 170 AMOUNT. R. Co. 117 JJ. S. 514, 29 L. ed. 990, 6 Sup. Ct. Eep. 849 Eisley v. Utica, 168 Fed. 747; Union P. E. Co. v. Cunning- ham, 173 Fed. 92; Lee v. Watson, 1 Wall. 339, 17 L. ed. 558 Turner v. Southern Home Bldg. & L. Asso. 41 C. 0. A. 379 101 Fed. 313; Ung Lung Chung v. Holmes, 98 Fed. 323 Kunkel v. Brown, 39 C. C. A. 665, 99 Fed. 593 ; Postal Teleg. Cable Co. v. Southern E. Co. 88 Fed. 803; Gorman v. Ha- vird, 141 U. S. 206, 35 L. ed. 717, 11 Sup. Ct. Eep. 943. And ■when jurisdiction depends on it, the matter in dispute must be capable of estimation in money (Gaines v. Fuentes, 92 U. S". 10-20, 23 L. ed. 524-528; Schunk v. Moline, M. & S. Co. 147 U. S. 504, 37 L. ed. 258, 13 Sup. Ct. Eep. 416), for when the matter is entirely incapable of pecuniary estimation, there can be no jurisdiction, as in a suit for the custody of a child. Amount in dispute and amount involved have the same legal significance. Decker v. Williams, 73 Fed. 310 ; Eeynolds v. Burns, 141 U. S. 117, 35 L. ed. 648, 11 Sup. Ct. Eep. 942. When the suit is for a money demand, the amount demand- ed in the body of the petition fixes the jurisdiction. Peeler v. Lathrop, 1 C. C. A. 93, 2 U. S. App. 40, 48 Fed. 780 ; Bank of Arapahoe v. David Bradley & Co. 19 C. C. A. 206, 36 U. S. App. 519, 72 Fed. 870; Greene County Bank v. J. H. Teas- dale Commission Co. 112 Fed. 801 ; Hilton v. Dickinson, 108 U. S. 165-174, 27 L. ed. 688-691, 2 Sup. Ct. Eep. 424; Hay- ward V. ISTordberg Mfg. Co. 29 C. C. A. 438, 54 U. S. App. 639, 85 Fed. 9 ; Holden v. Utah & M. Machinery Co. 82 Fed. 210; Lee v. Watson, supra; Less v. English, 29 C. C. A. 275, 56 U. S. App. 16, 85 Fed. 473; Kunkel v. Brown, supra; Kearney County v. Vandriss, 53 C. C. A. 192, 115 Fed. 872 ; Tennent-Stribling Shoe Co. v. Eoper, 36 C. G. A. 455, 94 Fed. 742, 743; Turner v. Southern Home Bldg. & L. Asso. 41 C. C. A. 379, 101 Fed. 313 ; State Bank v. Cox, 74 C. C. A. 285, 143 Fed. 92. When property is sued for, and the petition shows the value, it is taken as prima facie correct (Bennett v. Butterworth, 8 How. 128, 12 L. ed. 1015), and until it is in some way shown in the record that the sum stated is not the matter in contro- versy, it will be sufiicient for jurisdiction. King v. Southern E. Co. 119 Fed. 1016; Hilton v. Dickinson, 108 U. S. 174, 27 L. ed. 691, 2 Sup. Ct. Eep. 424; Battle v. Atkinson, 115 AMODNT. 171 Fed. 38i, 385. In a word, the court is governed by tlie claim made, provided there is no reason to believe that it was false- ly made to obtain jurisdiction. Ibid. ; Holden v. Utah & M. Machinery Co. 82 Fed. 209 ; Hayward v. Nordberg Mfg. Co. 29 C. C. A. 438, 54 U. S. App. 639, 85 Fed. 6, 7; Postal Teleg. Cable Co. v. Southern E. Co. 88 Fed. 806 ; Barry v. Edmunds, 116 U. S. 561, 29 L. ed. 732, 6 Sup. Ct. Eep. 501. It is not essential to state the amount or value if it appears from the allegations or record or from evidence taken in the case before hearing on the jurisdiction. Robinson v. Suburban Brick Co. 62 C. C. A. 484, 127 Fed. 804, 806. If apparent- ly fraudulent, no jurisdiction will be taken. American Wring- er Co. V. Ionia, 76 Fed. 6, 7; Maxwell v. Atchison, T. & S. F. E. Co. 34 Fed. 286 ; Green County Bank v. J. H. Teas- dale Commission Co. 112 Fed. 802 ; Simon v. House, 46 Fed. 321 ; Bowman v. Chicago & N. "W. E. Co. 115 F. S. 614, 29 L. ed. 503, 6 Sup. Ct. Eep. 192; Fishback v. Western U. Teleg. Co. 161 U. S. 100, 40 L. ed. 631, 16 Sup. Ct. Eep. 506 ; Vance v. W. A. Vandercook Co. 170 U. S. 472, 42 L. ed. 1112, 18 Sup. Ct. Eep. 645 ; Hampton Stave Co. v. Gardner, 83 C. C. A. 521, 154 Fed. 806. The court looks to the record, which must create a legal certainty of want of jurisdictional amount. Barry v. Edmonds, 116 U. S. 559, 29 L. ed. 732, 6 Sup. Ct. Eep. 501 ; Waite v. Santa Cruz, 184 TJ. S. 327, 46 L. ed. 568, 22 Sup. Ct. Eep. 327; Kunkel v. Brown, supra; Interstate Bldg. & L. Asso. V. Edgefield Hotel Co. 109 Fed. 692, 693 ; Battle V. Atkinson, 115 Fed. 385 ; Bowman v. Chicago & IST. W. E. Co. 115 U. S. 611-613, 29 L. ed. 502, 503, 6 Sup. Ct. Eep. 192; Banlc of Arapahoe v. David Bradley & Co. supra; Hampton Stave Co. v. Gardner, 83 C. C. A. 521, 154 Fed. 805. And if less than jurisdictional amount cannot be le- gally inferred from the bill the case must go to trial. Hold- en V. Utah & M. Machinery Co. 82 Fed. 210. But the case should be dismissed if the evidence shows fraudulent state- ment of value to give jurisdiction (Horst v. Merkley, 59 Fed. 502 ; Simon v. House, 46 Fed. 318 ; Bank of Arapahoe v. Brad- ley & Co. supra) ; or that plaintiff cannot legally be permitted to sustain his claim (North American Transp. & Trading Co. V. Morrison, 178 U. S. 262, 44 L. ed. 1061, 20 Sup. Ct. Eep. 869). 172 AMOUNT. Cases Classified. With tbese general observations I will now discuss the three classes of cases in which the question of amount as affecting jurisdiction has been raised. First. Where a specific amount is sued for. Second. When the value of the subject-matter or right in issue has been disputed. Third. When the case sounds in damages. When a Specific Amount is Sxied For. Under this head the specific amount sued for, or the amount recoverable under the allegations, is liquidated by the terms of the alleged agreement, and about this class of contracts there can be no difficulty (Peeler v. Lathrop ; Greene County Bank v. J. H. Teasdale Commission Co. ; Hampton Stave Co. V. Gardner ; and Bank of Arapahoe v. David Bradley & Co. — su- pra ; Vance v. W. A. Vandercook Co. 170 U. S. 468, 42 L. ed. 1111, 18 Sup. Ct. Eep. 645 ; Denver City Tramway Co. v. Nor- ton, Y3 C. C. A. 1, 141 Eed. 599 ; Ung Lung Chung v. Holmes, and Simon v. House, supra; Gray v. Blanchard, 97 U. S. 565, 24 L. ed. 1109 ; Schacker v. Hartford F. Ins. Co. 93 U. S. 241- 242, 23 L. ed. 862), unless the question arises when the origi- nal amount sued for had been reduced below the jurisdiction of the court by a payment of valid set-off. In such cases, if the plaintiff before bringing suit knew that his claim had been reduced by a valid payment, or some valid set-off, so that its extreme limit did not fall within the amount giving jurisdic- tion, then there is no jurisdiction, as it may be concluded that the amount as stated was for the sole purpose of getting juris- diction. Bedford Quarries Co. v. Welch, 100 Fed. 513 ; Pick- ham V. Wheeler-Bliss Mfg. Co. 23 C. C. A. 391^ 46 U. S. App. 605, 77 Fed. 663 ; Stillwell-Bierce & S. V. Co. v. Williamston Oil & Fertilizer Co. 80 Fed. 68 ; Schunk v. Moline, M. & S. Co. 147 U. S. 500, 37 L. ed. 255, 13 Sup. Ct. Rep. 416; Hay- ward v. Wordberg Mfg. Co. 29 C. C. A. 438, 54 U. S. App. 639, 85 Fed. 7. So, where land is sued for, over the value of ■two thousand dollars, and defendant disclaims as to all but a small portion under the value of two thousand dollars, it AMOUNT. 173 would not affect the jurisdiction (Way v. Clay, 140 Fed. 352 ; Alkire Grocery Co. v. Richesin, 91 Fed. 84) ; but the facts must create a legal certainty of that conclusion (Wetmore v. Eymer, 169 U. S. 115, 42 L. ed. 682, 18 Sup. Ct. Rep. 293 ; Holdeu V. Utah & M. Machinery Co. supra; Barry v. Ed- munds, 116 U. S. 561, 29 L. ed. 732, 6 Sup. Ct. Rep. 501: Maffet V. Quine, 95 Fed. 199; Kunkel v. Brown, supra). It is not to be understood that jurisdiction is ousted because some defense may be made, or is made, which reduces the amount set up in the bill. United States v. Swift, 71 C. C. A. 351, 139 Fed. 227; Kearny Coimty v. Vandriss, supra; Washington County v. Williams, 49 C. C. A. 621, 111 Fed. 801-811 ; Turner v. Southern Home Bldg. & L. Asso. 41 C. C. A. 379, 101 Fed. 314; Ung Lung Chung v. Holmes, 98 Fed. 326; Kunkel v. Brown, and Tennent-Stribling Shoe Co. V. Roper, supra ; Jones v. McCormick Harvest- ing Mach. Co. 27 C. C. A. 133, 53 U. S. App. 408, 82 Fed. 295; Jones v. Rowley, 73 Fed. 288, 289. In fact, it was held, in Schunk v. MoHne, M. & S. Co. supra, that a valid defense, although apparent on the face of the petition, does not diminish the amount that is claimed, nor determine the matter in dispute, for who can say in advance that the de- fense will be insisted on, or, if presented, will be sustained by the court ? The rule may be stated, that if it is necessary, to ascertain the amount, to consider conflicting evidence as to claim of payment or set-off, or to decide disputed questions of law affecting the amount, then the court will take jurisdiction, even though on trial a less amount be found. Ibid. ; Hay- ward V. Is^ordberg Mfg. Co. 29 C. C. A. 438, 54 U. S. App. 639, 85 Fed. 7-9 ; Stillwell-Bierce & S. V. Co. v. Williamston Oil & Fertilizer Co. 80 Fed. 69. Thus, in a suit in which various accounts have been aggre- gated to give jurisdiction, a court will take jurisdiction, even though some of the accounts be successfully attacked and the claim reduced below the jurisdiction. Tennent-Stribling Shoe Co. V. Roper, supra. In Texas, as decided in Lowe v. Dowbarn, 26 Tex. 507, and Haddock v. Taylor, 74 Tex. 216, 11 S. W. ]093, it seems that if exceptions be taken to certain aggregated items, and they be sustained, and the amount is left below the jurisdiction, 174 AMOUNT. the case will be dismissed. Missouri, K. & T. E. Co. v. Kolbe, 95 Tex. 76, 65 S. W. 34, see also Times Pub. Co. v. Hill, 36 Tex. Civ. App. 389, 81 S. W. 806, 808. When the amoimt is reduced below the jurisdiction by the plea of limitations to certain of the aggregated items, this will not affect the juris- diction, as limitation is a plea of privilege, which may or not be pleaded. Hardin v. Cass County, 42 Fed. 652-657; Water- field V. Eice, 49 C. C. A. 504, 111" Fed. 625 ; Kearny County V. Vaudriss, 53 C. C. A. 192, 115 Fed. 867. It appears, then, from the cases cited that it is not the amount plaintiff is able to prove when the jurisdictional amount is alleged, but was the demand made in good faith, and he has simply been mistaken as to the fact or the law. Inter- state Bldg. & L. Asso. V. Edgefield Hotel Co. 109 Fed. 692; Kunkel V. Brown, 39 C. C. A. 665, 99 Fed. 594; Washing- ton County V. Williams, 49 C. C. A. 621, 111 Fed. 801; Put-in-Bay Waterworks, Light & E. Co. v. Eyan, 181 U. S. 432, 433, 45 L. ed. 938, 21 Sup. Ct. Eep. 709 ; Lilienthal v. McCormick, 54 C. C. A. 475, 117 Fed. 89 ; Ung Lung Chung V. Holmes, 98 Fed. 325. By good faith is meant that the sum demanded is the real matter put in dispute (Hilton v. Dickinson, 108 U. S. 174, 27 L. ed. 691, 2 Sup. Ct. Eep. 424; Holden v. Utah & M. Machinery Co. 82 Fed. 210), and not so manifestly fictitious as to make it legally certain that the amount alleged was only to get jurisdiction (Jones v. McCormick Harvesting Mach. Co. supra; Battle v. Atkinson, 115 Fed. 384), because clearly beyond a reasonable expectation of recovery (Holden v. Utah & M. Machinery Co. 82 Fed. 209 ; Bank of Arapahoe v. David Bradley & Co. 19 C. C. A. 206, 36 U. S. App. 519, 72 Fed. 867; Kunkel v. Brown, supra; Vance v. W. A. Vandercook Co. 170 U. S. 468, 42 L. ed. 1111, 18 Sup. Ct. Eep. 645; Maxwell v. Atchison, T. & S. F. E. Co. 34 Fed. 286). Of course, in determining the bona fides of the allegation of amount, a plaintiff can be held to the knowledge of well-settled principles of law. So if an attempt is made to add an addi- tional amount, which, under rules of law, would not be admis- sible, or something is set up easily susceptible of proof, and none is offered, or no satisfactory explanation given, then such a claim must be held to be fictitious. Bank of Arapahoe v. AMOUNT. 175 David Bradley & Co. supra. But in Holden v. Utah & M. Machinery Co. supra, it is said it would require a very strong case to justify a court in finding that a plaintiff had no rea- sonable expectation of recovery of the amount as alleged. Hay- ward V. Nordberg Mfg. Co. supra; Wetmore v. Kymer, 169 U. S. 115, 42 L. ed. 682, 18 Sup. Ct. Eep. 293 ; see Simon v. House, 46 Fed. 318, collecting cases. If, however, the action is for a trespass, or otherwise sounding in damages, where no limitation is prescribed by law to the amount that may be re- covered, then the estimate that plaintiff puts as his damages must control, as this fixes the demand in dispute, whatever may be the simi recovered. Barry v. Edmunds, 116 U. S. 561, 29 L. ed. 732, 6 Sup. Ct. Eep. 501; Herbert v. Kainey, 54 Fed. 251 ; Levinski v. Middlesex Bkg. Co. 34 C. C. A. 452, 92 Fed. 458 ; Smith v. Greenhow, 109 U. S. 671, 27 L. ed. 1081, 3 Sup. Ct. Eep. 421. (See "Amount in Cases Sounding in Damages".) CHAPTEK XXXI. AGGEEGATING AMOUNTS. When several persons have a common and undivided inter- est in a claim, and join in a suit, the amount of the joint claim fixes the jurisdiction. Holt v. Bergevin, 60 Ted. 2 ; Wheless v. St. Louis, 180 U. S. 379, 45 L. ed. 583, 21 Sup. Ct. Rep. 402, 96 Eed. 867 ; Clay v. Field, 138 U. S. 464, 34 L. ed. 1044, 11 Sup. Ct. Rep. 419 ; McDaniel v. Traylor, 196 U. S. 416, 49 L. ed. 535, 25 Sup. Ct. Rep. 369; Thomas v. Green County, 89 C. C. A. 405, 159 Fed. 341 ; Hagge v. Kan- sas City S. R. Co. 104 Fed. 393 ; Shields v. Thomas, 17 How. 3, 15 L. ed. 93; Gibson v. Shufeldt, 122 TJ. S. 30-33, 30 L. ed. 1084, 1085, 7 Sup. Ct. Rep. 1066; Tennent-Stribling Shoe Co. V. Roper, 36 C. C. A. 455, 94 Fed. 739. See Hart- ford F. Ins. Co. V. Erie R. Co. 172 Fed. 899, 902; Eaton v. Hoge, 72 C. C. A. 74, 141 Fed. 66, 5 A. & E. Ann. Cas. 487. But if the interests are distinct, then they cannot join for con- venience the several amounts due each, if the separate inter- ests be less in amount than is necessary for jurisdiction. To join distinct interests, each interest must reach the jurisdic- tional amount. Ibid. ; Jones v. Mutual Fidelity Co. 123 Fed. 510; Walter v. Northeastern R. Co. 147 U. S. 370, 37 L. ed. 206, 13 Sup. Ct. Rep. 348; Risley v. Utica, 168 Fed. 744; McDaniel v. Traylor, 123 Fed. 338; Washington County v. Williams, 49 C. C. A. 621, 111 Fed. 814; Henderson v. Car- bondale Coal & Coke Co. 140 U. S. 25, 35 L. ed. 332, 11 Sup. Ct. Rep. 691 ; Cowell v. City Water Supply Co. 57 C. C. A. 393, 121 Fed. 53 ; Northern P. R. Co. v. Walker, 148 U. S. 391, 37 L. ed. 494, 13 Sup. Ct. Rep. 650 ; Citizens' Bank v. Cannon, 164 U. S. 322, 41 L. ed. 452, 17 Sup. Ct. Rep. 89 ; Wheless v. St. Louis, supra; Waite v. Santa Cruz, 184 U. S. 328, 46 L. ed. 568, 22 Sup. Ct. Rep. 327 ; Brown v. Denver, 186 U. S. 480, 46 L. ed. 1259, 22 Sup. Ct. Rep. 943; The 176 AGGEEGATING AMOUNTS. 177 Joseph B. Thomas, 78 C. 0. A. 428, 148 Ted. 767. And this is true, though they join a class or party whose rights and liabilities arose out of the same transaction, or related to a common fund sought to be administered. Ibid. ; Clay v. Field, supra; Smithson v. Hubbell, 81 Fed. 593, 594; Cowell v. City Water Supply Co. 57 C. C. A. 393, 121 Fed. 56; Chatfield V. Bogle, 105 ¥. S. 233, 26 L. ed. 945 ; Kussell v. Stansell, 105 U. S. 304, 26 L. ed. 990 ; Seaver v. Bigelow, 5 Wall. 210, 211, 18 L. ed. 595, 596; Putney v. Whitmire, 66 Fed. 387. It may be a common fund involved in the litigation which ex- ceeds the jurisdictional amount, but if each creditor can only recover the amount due him out of the fund, and said amounts are less than the jurisdictional amount, then the case should be dismissed. Gibson v. Shufeldt, 122 U. S. 35, 30 L. ed. 1086, 7 Sup. Ct. Eep. 1066 ; Kussell v. Stansell, 105 U. S. 303, 26 L. ed. 989. There is a conflict of authorities on this propo- sition. See Jacobs v. Mexican Sugar Co. 130 Fed. 591. Thus, a bill by a stockholder in behalf of himself and others must show the value of the stock held by him equals the jursidiction- al amount, or exceeds it. Smithson v. Hubbell, 81 Fed. 593 ; Harvey v. Ealeigh & G. K. Co. 89 Fed. 117, 118. The rule, however, does not apply to assignments for the benefit of creditors, if the application is to protect the fund and enforce an execution of the trust, as in such cases the fund, and not plaintiff's demand, gives the jurisdiction. Handley V. Stutz, 137 U. S. 366, 34 L. ed. 706, 11 Sup. Ct. Eep. 117 ; Jones V. Mutual Fidelity Co. 123 Fed. 513-515 ; Towle v. American Bldg. Loan & Invest Soc. 60 Fed. 131 ; Putnam v. Timothy Dry Goods & Carpet Co. 79 Fed. 454; Colston v. Southern Home Bldg. & L. Asso. 99 Fed. 305 ; Estes v. Gun- ter, 121 IT. S. 183, 30 L. ed. 884, 7 Sup. Ct. Eep. 854. So in proceeding against insolvent corporations. Taylor v. De- catur Mineral & Land Co. 112 Fed. 450; Jones v. Mutual Fidelity Co. 123 Fed. 506. (See "Creditors Suit.") A single plaintiff cannot join several defendants, against whom he has claims of a similar character, in order to reach the jurisdictional amount. The claim against each defend- ant must be of the jurisdictional amount to be joined if a joint judgment cannot be taken. McDaniel v. Traylor, 123 Fed. 339, see 196 U. S. 415-427, 49 L. ed. 533-538, 25 Sup. Ct. S. Eq.— 12. 178 AGGEEGATING AMOUNTS. Eep. 369 ; Busey v. Smith, 67 Fed. 15, 16 ; Henderson v. Wads- worth, 115 U. S. 276, 29 L. ed. 379, 6 Sup. Ct. Eep. 140; Walter v. ISTortheastern R Co. 147 U. S. 376, 37 L. ed. 208, 13 Sup. Ct. Eep. 348; Seaver v. Bigelow, 5 Wall. 208, 18 L. ed. 595 ; Gibson v. Shufeldt, 122 U. S. 27, 30 L. ed. 1083, 7 Sup. Ct. Eep. 1066; Shewalter v. Lexington, 143 Fed. 163, 164; Northern P. E. Co. v. \falker, 148 U. S. 391, 37 L. ed. 494, 13 Sup. Ct. Eep. 650; Citizens' Bank v. Cannon, 164 U. S. 319, 41 L. ed. 451, 17 Sup. Ct. Eep. 89 ; Ex parte Phoe- nix Ins. Co. 117 U. S. 367-369, 29 L. ed. 923, 924, 6 Sup. Ct. Eep. 772. Thus, you cannot aggregate amount against several insurance companies. Wisconsin C. E. Co. v. Phoe- nix Ins. Co. 123 Fed. 989. The rule applicable to several plaintiffs having separate claims that each must be in the juris- dictional amount is applicable v^hen several defendants were sued. Walter v. JSTortheastern E. Co. 147 U. S. 370, 37 L. ed. 206, 13 Sup. Ct. Eep. 348. When claims of various parties have been assigned to one party such party can aggregate the amounts for the purpose of jurisdiction, provided the assignors, by reason of diversity of citizenship, could have sued in the Fed- eral courts, if the amount had been jurisdictional. Chase v. Sheldon Eoller Mills Co. 56 Fed. 625 ; Bowden v. Burnham, 8 C. C. A. 248, 19 U. S. App. 448, 59 Fed. 752 ; Bergman v. Inman, 91 Fed. 294; Brigham-Hopldns Co. v. Gross, 107 Fed. 769; Davis v. Mills, 99 Fed. 40. (See "Jurisdiction by As- signment.") What may he Included in Amount to Give Jurisdiction. As stated by the judiciary act, the matter in dispute must exceed, exclusive of interest and costs, the sum or vahie of two thousand dollars. In making up the amount it has been de- cided that you cannot add mere items of expense in connec- tion with the cause of action, unless it was agreed between the parties that the expense was to be incurred, or from the na- ture of the contract could be reasonably implied. Less v. Eng- lish, 29 C. C. A. 275, 56 U. S. App. 16, 85 Fed. 471. There was, however, a vigorous dissenting" of opinion to the appli- cation of the rule in this particular case. You can add attor- AGGKEGATING AMOUNTS. 179 neys' fees wlien a part of the contract. Rogers v. Riley, 80 Fed. 762 ; Swofford v. Cornucopia Mines, 140 Fed. 958. You cannot, however, sue on a bond or other written instru- ment to pay money, and add to it damages for a breach, in or- der to make the amount jurisdictional. Less v. English, 29 C. C. A. 275, 56 U. S. App. 16, 85 Fed. 473; Hilton v. Dick- inson, 108 U. S. 165, 27 L. ed. 688, 2 Sup. Ct. Rep. 424. The rule seems to be that where the law gives no rule that fixes the damage in any particular case, then the plaintiff's demand must furnish the basis of jurisdiction; but when the law does give a rule, as interest, then the cause of action must control, and not the demand. Hayward v. ISTordberg Mfg. Co. 29 C. C. A. 438, 54 U. S. App. 639, 85 Fed. 4; Barry v. Ed- munds, 116 U. S. 550-556, 29 L. ed. 729-731, 6 Sup. Ct. Rep. 501 ; Simon v. House, 46 Fed. 321. Thus in cases o^ debt evidenced by written instruments, interest is the damage permitted by law, and the character of demand cannot be add- ed to by alleging any further damage in order to increase the amount. Holden v. Utah & M. Machinery Co. 82 Fed. 210 ; Barry v. Edmunds, 116 U. S. 550, 29 L. ed. 729, 6 Sup. Ct. Rep. 501. So in cases of contract where the amount recoverable is liquidated by the terms of the agreement, the limit of recovery is fixed, and you cannot add to it to obtain jurisdiction. Lee V. Watson, 1 Wall. 339, 17 L. ed. 558 ; Bergman v. Inman, 91 Fed. 293 ; Kunkel v. Brown, 39 C. C. A. 665, 99 Fed. 595. In this character of cases the sum demanded beyond what the law or parties have fixed as the limit of recovery is clearly the matter in dispute (Bowman v. Chicago & IST. W. R. Go. 115 TJ. S. 614, 29 L. ed. 503, 6 Sup. Ct. Rep. 192 ; Barry v. Edmunds, 116 U. S. 550-556, 29 L. ed. 729-731, 6 Sup. Ct. Rep. 501), but you may bring suit on notes due, and those not due, arising out of the same transaction, and thus acquire the jurisdictional amount. In suits upon bonds and coupons, the interest on them cannot be added. Greene County v. Kort- recht, 26 C. C. A. 381, 52 U. S. App. 250, 81 Fed. 241, and authorities cited. But it seems you may include matured cou- pons in making jurisdictional amount, as they are separable independent promises, and not interest within the meaning of 180 AGGEEGATING AMOUNTS. the Statute. Edwards v. Bates County, 163 U. S. 269, 41 E. ed. 155, 16 Sup. Ct. Eep. 967; Home & F. Invest. & Agency Co. V. Eay, 69 Fed. 657, — overruled ; Independent School Dist V. Eeid, 55 L.K.A. 364, 49 C. C. A. 198, 111 Fed. 4. Foreclosure of Mortgage. Falling within the rule, the specific amount sued for controls the jurisdiction on foreclosures of chattel mortgages, and not the value of the property mortgaged. Stillwell-Bierce & S. V. Co. V. Williamston Oil & Fertilizer Co. 80 Fed. 68 ; Wakeman v. Throckmorton, 124 Fed. 1010 ; Gibson v. Shufeldt, 122 U. S. 29, 30 L. ed. 1084, 7 Sup. Ct. Eep. 1066 ; Lilienthal v. McCor- mick, 54 C. C. A. 475, 117 Fed. 89 ; New England Mortg. Secur. Co. v. Gay, 145 U. S. 130, 36 L. ed. 640, 12 Sup. Ct. Eep. 815. But you may aggregate several notes and mortgages against the same party. Fitchett v. Blows, 20 C. C. A. 286, 36 U. S. App. 597, 74 Fed. 49 ; Fitch v. Creighton, 24 How. 159, 16 L. ed. 596 ; O'Connel v. Eeed, 5 C. C. A. 586, 12 U. S. App. 369, 56 Fed. 531. The rule has been declared otherwise in Texas, that is, the value of the property upon which foreclosure is sought determines jurisdiction. Texas & N. O. E. Co. v. Eucker, 38 Tex. Civ. App. 591, 88 S. W. 816. Creditors' Suits. The amount claimed by the creditor, and not the value of the property, determines jurisdiction. Alkine Grocery Co. v. Eichesin, 91 Fed. 84 and authorities cited; Jacobs v. Mexican Sugar Co. 130 Fed. 591; Werner v. Murphy, 60 Fed. 769; Putney v. Whitmire, 66 Fed. 387. The only interest of the creditor is his individual claim, for if paid it destroys his in- terest, and this must test the matter in controversy. Ibid. Creditors cannot unite their interests to make the jurisdic- tional amount (Stewart v. Dunham, 115 U. S. 61, 29 L. ed. 329, 5 Sup. Ct. Eep. 1163), but may in good faith assign their interests to one who may aggregate the claims to obtain the jurisdictional amount (Alkire Grocery Co. v. Eichesin, supra; Putney v. Whitmire, 66 Fed. 385 ; Crawford v. IsTeal, 144 U. S. 585, 36 L. ed. 552, 12 Sup. Ct. Eep. 759 ; Marion v. Ellis, AGGREGATING AMOUNTS. 181 10 Fed. 410 ; Collinson v. Jackson, 8 Sawy. N. Y. 357, 14 Fed. 309). But if one complainant in a creditors' suit has recov- ered a judgment for over two thousand dollars, other credit- ors holding smaller judgments may unite with him in the suit. Huff V. Bidwell, 81 C. C. A. 43, 151 Fed. 564, 103 Fed. 363 ; Stanwood v. Wishard, 134 Fed. 959 ; Belmont l^ail Co. V. Columbia Iron & Steel Co. 46 Fed. 337. CHAPTER XXXII. BT AND AGAINST FEDERAL EECEIVEES. Prior to the act of 1888, section 3, suits could only be brought against Federal receivers by permission of the court appointing the receiver. Barton v. Barbour, 104 U. S. 128, 26 L. ed. 674. Such suits were considered purely ancillary to the main suit (Porter v. Sabin, 36 Fed. 477 ; Missouri P. E. Co. V. Texas P. E. Co. 41 Fed. 313 ; Gilmore v. Herriek, 93 Fed. 526), and fell v^ithin the jurisdiction of the appoint- ing court, without reference to amount or citizenship. (Car- penter V. ISTorthern P. E. Co. 75 Fed. 850 ; Farmers' Loan & T. Co. V. Chicago & K P. R. Co. 118 Fed. 204; Hampton Eoads E. & Electric Co. v. Newport News & 0. P. E. & Elec- tric Co. 131 Fed. 534.) But since the act of 1888, section 3, which permits suits against a Federal receiver in any court of competent jurisdic- tion, without the consent of the appointing court, in respect to any act or transaction of the receiver in carrying on the busi- ness connected with such property, the right of plaintiff to select his own court having jurisdiction of the subject-matter (except as modified by the removal act, Tompkins v. Mac- Leod, 96 Fed. 927 ; Marrs v. Felton, 102 Fed. 775, 776) was secured. See sec. 66, New Code, chap. 4, embodying sec. 3, act of 1888. Federal courts could no longer draw to themselves jurisdic- tion of suits against their receivers by process of contempt, or injunction. Central Trust Co. v. East Tennessee, V. & G. E. Co. 59 Fed. 523 ; Gilmore v. Herriek, supra. And suits thus brought were no longer in the class of ancillary suits, but be- came original suits against the receiver, in which the amount, and some Federal ground of jurisdiction, became material to jurisdiction. Ibid. ; Eay v. Pierce, 81 Fed. 881, 882 ; Pitkin V. Cowen, 91 Fed. 599; Tompkins v. MacLeod, supra; Gable- 182 BY AND AGAINST FEDERAL EECEIVEES. 183 man v. Peoria, D. & E. E. Co. 179 U. S. 335, 45 L. ed. 220, 21 Sup. Ct. Rep. 171 ; Pepper v. Eogers, 128 Fed. 988 ; Carpen- ter V. Northern P. E. Co. supra ; and Sullivan v. Barnard, 81 Ped. 886, held a contrary doctrine, but it is not the rule as now administered. You will notice, however, that the language of the act is, that where the suit is in respect of any act or transaction of the receiver (McNulta v. Lochridge, 141 U. S. 331, 35 L. ed. 799, 12 Sup. Ct. Eep. 11) in the administration of the trust, then the receiver can be sued in any court of competent juris- diction, and it is in such cases amount is important. Coster v. Parkersberg Branch E. Co. 131 Fed. 115 ; Pitkin v. Cowen, 91 Fed. 602; Eoyal Trust Co. v. Washburn, B. & I. E. E. Co. 113 Fed. 532; Ee Kalb & B. Mfg. Co. 165 Fed. 896; Love V. Louisville & E. E. Co. 178 Fed. 507. An action in a State court against a receiver for damages for personal injuries arises under the general law of liability for damages, and comes within the above rule. Ibid. ; Gable- man V. Peoria, D. & E. E. Co. 179 U. S. 340, 341, 45 L. ed. 223, 224, 21 Sup. Ct. Eep. 171, 41 C. C. A. 160, 101 Fed. 6 ; Shearing v. Trumbull, 75 Fed. 33 ; Bausman v. Dixon, 173 U. S. 113, 114, 43 L. ed. 633, 634, 19 Sup. Ct. Eep. 316; Bank- ers' Mut. Casualty Co. v. Minneapolis, St. P. & S. Ste. M. E. Co. 192 U. S. 384, 48 L. ed. 490, 24 Sup. Ct. Eep. 325 ; Chi- cago, E. I. & P. E. Co. V. Martin, 178 U. S. 245, 44 L. ed. 1055, 20 Sup Ct. Eep. 854. So, where an action is brought by a re- ceiver in a Federal court, other than that of its appointment, then amount is jurisdictional. Sullivan v. Swain, 96 Fed. 259. There are still many suits that arise in the administration of a Federal receivership that are only ancillary, and which are not suits in respect of any act or transaction of the receiv- er. In such suits the matter of amount and citizenship does not affect the jurisdiction of the Federal court appointing the receiver. Thus, where a receiver in administering his trust, brings an action in the court appointing him in aid of his trust, the matter of amount is not important, neither is citi- zenship. White V. Ewing, 159 U. S. 36, 40 L. ed. 67, 15 Sup. Ct. Eep. 1018 ; Brown v. Allebach, 156 Fed. 697 ; Eause v. Letcher, 156 U. S. 49, 53, 39 L. ed. 342, 343, 15 Sup. Ct. Eep. 266; Gunby v. Armstrong, 66 C. C. A. 627, 133 Fed. 184 BY AND AGAIKST FEDEEAL EECKIVEES. 417; Pope v. Louisville, K A. & C. K. Co. 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Eep. 500 ; Bottom v. National E; Bldg. & L. A&so. 123 Fed. 745 ; Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 263 ; Bowman v. Harris, 95 Fed. 917; Gilmore v. Herrick, supra. Thus, a receiver may recover assets in the handg of others, if there is no right asserted by the party in, possession adverse to the claim of the receiver without reference to the value of the asset. Ibid. Or when he seeks to foreclose a mortgage in behalf of the fund by order of the court. Gunby v. Armstrong, supra; American Loan & T. Co. v. Central Vermont E. Co. 86 Fed. 390; Myers v. Hettinger, 37 0. C. A. 369, 94 Fed. 370; Toledo, St. L. & K. C. E. Co. v. Continental Trust Co. 36 C. C. A. 155, 95 Fed. 497. Or when it is sought to deal with the property in the hands of the court to subject it to sale, or because of some claim or right in and to the property thus situated. Gilmore v. Her^ rick, supra; Minot v. Mastin, 37 C. C. A. 234, 95 Fed. 735; Compton V. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 279; Wabash E. Co. v. Adelbert College, 208 U. S. 38, 52 L. ed. 379, 28 Sup. Ct. Eep. 182 ; New Orleans v. Howard, 87 C. C. A. 345, 160 Fed. 393. Or on any cause of action not arising out of any act of the receiver in carrying on the business of the receivership. Por- ter V. Sabin, 149 U. S. 479, 37 L. ed. 818, 13 Sup. Ct. Eep. 1008 ; Compton v. Jesup, supra ; Buckhannon & !N". E. Co. v. Davis, 68 C. C. A. 345, 135 Fed. 707. So in receiverships of national banks, where jurisdiction is specially reserved by the act of 1888, where amount is not im- portant when necessary to sue. Sec. 4, act 1888 ; Earle v. McCartney, 109 Fed. 13 ; Myers v. Hettinger, 37 C. C. A. 369, 94 Fed. 370. (See Smithson v. Hubbell, 81 Fed. 593). (See "Eeceivers as Parties"). CHAPTEE XXXIII. AMOUNT IN INJUNCTIONS. So far the preceding chapters have dealt with the amount or value of the subject-matter in issue that could he recovered by law as the measure of jurisdiction; but this is not the gen- eral rule applicable to injunctions; while there is a large class of cases where the direct pecuniary loss sought to be prevented by injunction would be the measure, and not contingent loss, — as, where one seeks to enjoin an execution for an amount less than two thousand dollars as in Ross v. Prentiss, 3 How. 772, 11 L. ed. 824, where jurisdiction was denied. New England Mortg. Secur. Co. v. Gay, 145 U. S. 130, 131, 36 L. ed. 648, 649, 12 Sup. Ct. Eep. 815 ; Cowell v. City Water Supply Co. 57 C. C. A. 393, 121 Eed. 53. Or where the individual taxpayer seeks to restrain the issue of bonds by a city, and his personal interest is less than the jurisdictional amount, the jurisdiction fails. Purnell v. Page, 128 Fed. 496, 498, and authorities cited; Colvin v. Jackson- ville, 158 U. S. 456, 39 L. ed. 1053, 15 Sup. Ct. Eep. 866; El Paso Water Co. v. El Paso, 152 U. S. 157, 38 L. ed. 396, 14 Sup. Ct. Eep. 494. See Ottumway v. City Water Supply Co. 59 L.E.A. 604, 56 C. C. A. 219, 119 Eed. 318 ; Helena v. Helena Waterworks Co. 97 C. C. A. 320, 173 Fed. 18 ; Holt v. Indiana Mfg. Co. 176 TJ. S. 72, 44 L. ed. 376, 20 Sup. Ct. Eep. 272; Coulter v. Fargo, 62 C. C. A. 444, 127 Eed. 912. So where the tax sought to be enjoined is on land, it would be the amount of the tax, and not the value of the land, neces- sary to support jurisdiction. Ibid. ; Douglas v. Stone, 110 Fed. 812, 815; Eachus v. Hartwell, 112 Fed. 564; Turner v. Jack- son Lumber Co. 87 C. C. A. 106, 159 Eed. 926, and authori- ties cited. So, where adjoining owners of lots unite to enjoin the tax 185 186 AMOUNT IN INJUNCTIONS. upon their lots, the assessment of each must be over two thou- sand dollars. Ibid. ; Wheless v. St. Louis, 180 U. S. 379, 45 L. ed. 583, 21 Sup. Ct. Eep. 402, 96 Fed. 866 ; Northern P. E. Co. V. Walker, 148 U. S. 391, 37 L. ed. 494, 13 Sup. Ct. Eep. 650 ; Walter v. Northeastern E. Co. 147 TJ. S. 370, 37 L. ed. 206, 13 Sup. Ct. Eep. 348 ; Citizens' Bank v. Cannon, 164 U. S. 319, 41 L. ed. 451, 17 Sup. Ct. Eep. 89 ; Ogden City ■V. Armstrong, 168 U. S. 224, 42 L. ed. 444, 18 Sup. Ct. Eep. 98. So where it is sought to enjoin the payment of a dividend, the amount of plaintiff's claim must govern. Sraithson v. Hub- bell, 81 Fed. 593 ; Clay v. Field, 138 U. S. 464-483, 34 L. ed. 1044-1051, 11 Sup. Ct. Eep. 419. So, a stockholder suing must rest upon his individual hold- ing for jurisdiction, where he is seeking to recover a personal judgment against a corporation. But there is a class of injunctions where the value of the right to be protected is much greater than the value of the property about which the dispute originated, and in which the value of the right to be protected or the extent of the injury to be prevented fixes the jurisdiction without reference to the amount that may be recovered by law. Nashville, C. & St. L. E. Co. V. McConnell, 82 Fed. 65 ; Louisville & N. E. Co. v. Smith, 63 C. C. A. 1, 128 Fed. 1 ; Delaware, L. & W. E. Co. v. Frank, 110 Fed. 689; Anderson v. Bassman, 140 Fed. 14; Evenson v. Spaulding, 9 L.E.A.CKS.) 904, 82 C. C. A. 263, 150 Fed. 517; Board of Trade v. Cella Commission Co. 76 C. C. A. 28, 145 Fed. 28, 29 ; Hutchinson v. Beckham, 55 C. C. A. 333, 118 Fed. 399; Humes v. Ft. Smith, 93 Fed. 857; Eiverside & A. E. Co. v. Eiverside, 118 Fed. 743. To illustrate : In Texas & P. E. Co. v. Kuteman, 4 C. C. A. 503, 13 U. S. App. 99, 54 Fed. 547, the railroad company sought to enjoin one Kuteman from prosecuting in a state court a number of small suits for penalties for overcharges for freight. The court held the maintenance of the schedule rate was a right to be protected, and being the real matter in dispute, and of a value exceeding two thousand dol- lars, the court had jurisdiotinn. The value of the obiect to bn obtained and the risrht to be nrotected cnutrols, snys the no-irt. Louisville & K E. Co. v. Smith, 63 C. C. A. 1, 128 Fed. 5. AMOUNT IN INJUNCTIONS. 187 So we have had many suits to enjoin railroad companies from establishing a new schedule of rates, where the value of the right was only considered as the basis of jurisdiction, as in Northern P. K. Co. v. Pacific Coast Lumber Mfrs. Asso. 91 C. C. A. 39, 165 Fed. 2-11 ; Chesapeake & D. Canal Co. v. Gring, 86 C. C. A. 539, 159 Fed. 662; Southern P. Co. v. Bartine, 170 Fed. 765. So the property right of a board of trade in its market quo- tations is the basis of jurisdictional value, when an injunc- tion is sought to protect it. Board of Trade v. Cella Commis- sion Co. supra ; John D. Park & Sons Co. v. Hartman, 12 L.RA.(KS.) 135, 82 C. C. A. 158, 153 Fed. 31. So in restraining brokerage in railway tickets. ISTashville, C. & St. L, E,. Co. V. McConnell, supra; Delaware, L. & W. R. Co. V. Frank, 110 Fed. 689 ; Chesapeake & O. Coal Agency Co. V. Fire Creek Coal & Coke Co. 119 Fed. 948; Louisville & X. R. Co. V. Bitterman, 128 Fed. 176, I78n, 75 C. C. A. 192, 144 Fed. 44, 207 U. S. 222, 223, 52 L. ed. 182, 183, 28 Sup. Ct. Eep. 91, 12 A. & E. Ann. Cas. 693; Pennsylvania Co. V. Bay, 138 Fed. 203. In Lanning v. Osborn, 79 Fed. 661, it was held that in a suit to enjoin the interference with the water rates of a city, the right to fix rates and its value determined jurisdiction, and not the difference between the annual rate contended for by the defendant and that asserted by the plaintiff. Board of Trade v. Cella Commission Co. 145 Fed. 28. So where injunctions are sued out to prevent destruction or injury to property, the jurisdiction is ordinarily fixed by the value of the property to be protected. Louisville & N. E. Co. V. Smith, 63 C. C. A. 1, 128 Fed. 1 ; Maffet v. Quine, 95 Fed. 199 ; Scott v. Donald, 165 U. S. 107, 41 L. ed. 648, 17 Sup. Ct. Eep. 262. But the allegations of damage, actual or exemplary, in such cases, will sustain jurisdiction. Maffet v. Quine, 95 Fed. 200 ; Von Schroeder v. Brittan, 93 Fed. 9, 10; Herbert v. Eainey, 54 Fed. 248. In a suit to prevent a permanent injury to land, the value of the land determines amount. Ee Turner, 119 Fed. 231. So in a suit for an injunction to restrain diversion of water from plaintiff's land, against several defendants, the injury 188 AMOUNT IN INJUNCTIONS. as a Avhole to the land, and not the claim for damages against each individual defendant, was the test of the jurisdictional amount. Pacific Live-Stock Co. v. Hanley, 98 Fed. 327. See Union Mill & Min. Co. v. Dangberg, 81 Fed. 73. Morris v. Bean, 146 Fed. 423-429, placed the jurisdiction on the value of the right. 123 Fed. 618. So the owner of a house has a distinct right of property in streets; and any interference with the right may he enjoined, and the value of the right determines jurisdiction. American Steel & Wire Co. v. Wire Drawers & D. M. Unions Nos. 1 & 3, 90 Fed. 608-613. So in any interference with easements. Louisville & "N. E. Co. V. Smith, 63 C. C. A. 1, 128 Fed. 3, and authorities cited. The owner of a large body of land sought to protect it from stock owners and neighborhood cattle, and the value of the pasturage to be protected, and not the claims against each owner, was the basis of jurisdiction. ISTorthern P. R. Co. v. Cunningham, 103 Fed. 708; Smith v. Bivens, 56 Fed. 352. But where property is injured by the overflow of a stream caused by unlawful or negligent construction, the landowners may unite in a suit for injunctive relief, but the injury to each must be of the jurisdictional amount. Hagge v. Kansas City, S. E. Co. 104 Fed. 391; Kenyon v. Knipe, 46 Fed. 310; Clay V. Field, 138 U. S. 464, 34 L. ed. 1044, 11 Sup. Ct. Eep. 419; Citizens' Bank v. Cannon, 164 U. S. 319, 41 L. ed. 451, 17 Sup. Ct. Eep. 89. An injunction was sought to protect the alleged right of pJaintiff to import liquors into South Carolina, the right be- ing valued over the value of liquors sought to be imported, the jurisdiction was taken on the Value of the right. Scott v. Don- ald, 165 U. S. 107, 41 L. ed. 648, 17 Sup. Ct. Rep. 262. An injunction having for its object the abatement of a nuis- ance or removal of an obstruction, the jurisdictional amount is based on the right, and not the amount of damage suffered by the complainant. American Fisheries v. Lennen, 118 Fed. 872; Mississippi & M. E. Co. v. Ward, 2 Black, 485, 17 L. ed. 311 ; American Smelting & Eef. Co. v. Godfrey, 89 C. C. A. 139, 158 Fed. 225, 14 A. & E. Ann. Cas. 8; Amelia Mill Co. v. Tennessee Coal, Iron & E. Co. 123 Fed. 811 ; Wash- ington Market Co. v. Hoffman, 101 U. S. 112, 25 L. ed. 782; AMOUlfT IN INJUNCTIONS. 189 Whitman v. Hubbell, 30 Fed. 81 ; Kainey v. Herbert, 5 C. C. A. 183, 3 U. S. App. 592, 55 Fed. 443. An injunction to restrain interference with a contract would be the value of the right to be protected, and not the amount involved in the contract; as, enjoining ticket brokers from buying and selling tickets issued by railroads, as before stated, and authorities cited. So in a suit by a property owner and taxpayer against a city and bidder to prevent a contract, it would be the value of the contract, and not amount of tax, that would give jurisdiction. Johnston v. Pittsburg, 106 Fed. 753. See Murphy v. East Portland, 42 Fed. 308. Again, the value of the right to pursue one's business with- out being subjected to an onerous tax, and a multiplicity of suits for penalties, and not the amount of the illegal tax, fixes the jurisdictional amount for injunction. Hutchinson v. Beck- ham, 55 C. C. A. 333, 118 Fed. 399, 402; Whitman College v. Berryman, 156 Fed. 112-114; Humes v. Ft. Smith, 93 Fed. 857. The last cases cited must be differentiated from those where it is apparent that the complainant can sustain uo other dam- age than the payment of the tax, and the amount of the tax must be the basis for jurisdiction, as in Walter v. Xortheast- em E. Co. 147 IJ. S. 370, 37 L. ed. 206, 13 Sup. Ct. Eep. 348 ; Northern P. E. Co. v. Walker, 148 U. S. 391, 37 L. ed. 494, 13 Sup. Ct. Eep. 650; Eachus v. Hartwell, 112 Fed. 564; Purnell v. Page, 128 Fed. 498 ; Turner v. Jackson Lumber Co. 159 Fed. 923. In the rule under consideration and the cases sustaining it, the injunction sought was to protect a right which was the "matter in dispute," and not the particu- lar tax. In protecting a business by injunction, past and prospec- tive injury fixes the jurisdictional amount. Draper v. Sker- rett, 116 Fed. 206; Evenson v. Spaulding, 9 L.R.A.(N".S.) 904, 82 C. C. A. 263, 150 Fed. 517; Butchers' & D. Stock- Yards Co. v. Louisville & N. E. Co. 14 C. C. A. 290, 31 U. S. App. 252, 67 Fed. 35; Eocky Mountain Bell Teleph. Co. v. Montana Federation of Labor, 156 Fed. 809; Board of Trade v. Cella Commission Co. 76 C. C. A. 28, 145 Fed. 29 ; Hunt v. New York Cotton Exch. 205 U. S. 322, 51 L. ed. 821, 27 Sup. Ct. Eep. 529, 144 Fed. 511. 190 AMOUNT IN INJUNCTIONS. So in enjoining a business that parties agreed not to carry on, the value of the right to be protected, and not the loss that may have been occasioned, fixes the jurisdiction. Ibid. ; Mc- Kee V. Chautauqua Assembly, 124 Fed. 808-811; Board of Trade v. Cella Commission Co. supra. So, on enjoining infringement of a trademark, the value of the trademark, and not the damage sustained, is the jurisdic- tional amount. Hennessy v. Herrmann, 89 Fed. 669 ; De Kuy- per V. Witteman, 23 Fed. 871. See Winchester Repeating Arms Co. v. Butler Bros. 128 Fed. 978, holding that the amount of the damages claimed would be the jurisdictional amount. Symonds v. Greene, 28 Fed. 834. CHAPTEE XXXIV. VALUE OF SUBJECT-MATTER OR RIGHT IN ISSUE ITS SPECIFIC REMEDIES. To ascertain the value of tlie "matter in dispute" or sub- ject-matter of the litigation, where jurisdiction depends on amount in controversy, resort must be had to the character of the action. Simon v. House, 46 Fed. 318. In all suits for the specific recovery of property, the value of the property in issue is the measure of jurisdiction, and or- dinarily presents no practical difficulty. Thus, in trying title to land or the interest of plaintiff in property, real or personal, the value of the property or interest is easily ascertained (Ben- nett V. Butterworth, 8 How. 128, 129, 12 L. ed. 1015, 1016 ; Simon v. House, supra ; Way v. Clay, 140 Fed. 352 ; King v. Southern E. Co. 119 Fed. 1016; Insurance Co. of N. A. v. Srendson, 74 Fed. 347 ; Vicksburg, S. & P. E. Co. v. Smith, 135 U. S. 195, 34 L. ed. 95, 10 Sup. Ct. Eep. 728; Smithers V. Smith, 204 U. S. 642, 51 L. ed. 660, 27 Sup. Ct. Eep. 297 ; Butters v. Carney, 127 Fed. 623), and the value alleged con- trols, unless so grossly excessive as to evidence a want of good faith in the allegation (Ibid. ; Vance v. W. A. Vandercook Co. 170 H. S. 468, 42 L. ed. 1111, 18 Sup. Ct. Eep. 645 ; Hay- ward V. ISTordberg Mfg. Co. 29 C. C. A. 438, 54 U. S. App. 639, 85 Fed. 4; Holden v. Utah & M. Machinery Co. 82 Fed. 210). Some difficulty arises, however, in enforcing purely equi- table remedies, such as injunctions, specific performance, can- celation, and rescission, quieting title, or removing cloud, and in appointing receivers, in ascertaining the value of the right claimed as controlling jurisdiction. Specific Performance. In a suit to enforce performance of a contract to convey 191 192 VALUE OF SUBJECT-MATIEE OE EIGHT IN ISSUE. land, the value of the land to be conveyed as alleged fixes the jurisdictional amount, unless fraudulent and fictitious. John- ston V. Trippe, 33 Fed. 530. See Marthinson v. King, 82 C. C. A. 360, 150 Fed. 49. Cancelation and Rescission. In Simon v. House, 46 Fed. 317, it is held that a suit brought to cancel certain instruments conveying real estate casting a cloud on title, that the amount considered in deter- mining jurisdiction is the value of the land affected ; it is based on the theory that the whole value of the property, the posses- sion and enjoyment of which is imperiled, is involved in the controversy, and not limited to the pecuniary value of the in- strument in controversy. Lehigh Zinc & I. Co. v. New Jer- sey Zinc & I. Co. 43 Fed. 545. See Gordon v. Smith, 10 C. C. A. 516, 23 U. S. App. 451, 62 Fed. 503 ; and see "Quiet- ing Title." Stinson v. Dousman, 20 How. 466, 15 L. ed. 969. When suit is brought to cancel a mortgage, the amount in dispute is the amount or value which complainant claims to recover, or which defendant will lose if plaintiff recovers. Cowell V. City Water Supply Co. 57 C. 0. A. 393, 121 Fed. 53, reversing 96 Fed. 770; Fidelity & D. Co. v. Moshier, 151 Fed. 807 ; Eiggs v. Clark, 18 C. C. A. 242, 37 U. S. App. 626, 71 Fed. 560; Dickinson v. Union Mortgage Bkg. & T. Co. 64 Fed. 895. But this would not be the rule if complainant owned the whole property and was contesting claims against it, for then the value of the property to be protected would be the amount in dispute. Berthold v. Hoskins, 38 Fed. 772 ; Smith V. Adams, 130 U. S. 167, 32 L. ed. 895, 9 Sup. Ct. Eep. 566. See Cowell v. City Water Supply Co. supra, for distinction drawn by Judge Thayer. So, to cancel judgments rendered by a court against differ- ent defendants, they cannot aggregate the judgments to come within the jurisdiction, no one judgment exceeding two thou- sand dollars ; nor can the value of the real estate upon which the judgments are liens be taken into consideration. McDaniel V. Traylor, 123 Fed. 338, reversed in 196 TJ. S. 416, 49 L. ed. 535, 25 Sup. Ct. Eep. 369; Walter v. ISTortheastern E. Co. VALUE OF STJBJECT-MATTEE OE EIGHT IN ISSUE. 193 147 U. S. 373, 37 L. ed. 208, 13 Sup. Ct. Kep. 348. As to amount in canceling a lease, see Eeese v. Zinn, 103 Fed. 97. Quieting Title or Removing Cloud. In quieting title or removing cloud, the amount in dispute is the actual value of the land affected, and not the value of de- fendant's claim. Smith v. Adams, supra; Woodside v. Ci- ceroni, 35 C. C. A. 177, 93 Fed. 4; Shewalter v. Lexington, 143 Fed. 166 ; Greenfield v. United States Mortg. Co. 133 Fed. 785 ; McDaniel v. Traylor, 196 U. S. 416, 49 L. ed. 535, 25 Sup. Ct. Rep. 369; Cowell v. City Water Supply Co. supra; Union P. E. Co. v. Cunningham, 173 Fed. 90; Simon v. House, 46 Fed. 318 ; Lehigh Zinc & I. Co. v. New Jersey Zinc & I. Co. supra; Lovett v. Prentice, 44 Fed. 459. In Cooper v. Preston, 105 Fed. 403, it is said that a suit to quiet title, against a number of defendants, of land of the ju- risdictional value, it must appear that all defendants have a privity of interest derived from a common source of title, or the separate claim of each must be of the jurisdictional amount. Bates V. Carpentier, 98 Fed. 452. See Parker v. Morrill, 106 U. S. 1, 27 L. ed. 72, 1 Sup. Ct. Eep. 14, as to the value of the interest of plaintiff. In setting aside a tax title the value of the land, not the tax involved,, fixes the jurisdiction. Felch v. Travis, 92 Fed. 210. But to enjoin the tax, as we have seen, would be the amount of tax, and not value of land. Douglas Co. v. Stone, 110 Fed. 814; Purnell v. Page, 128 Fed. 496; Shewalter v. Lexington, 143 Fed. 161. If, however, the suit is against various defendants having distinct claims of title to a parcel of land, then the value of each distinct parcel must exceed two thousand dollars. Cooper V. Preston, supra ; Bates v. Carpentier, 98 Fed. 452 ; Stemm- ler V. MclN'eill, 102 Fed. 660. See Carothers v. McKinley Min. & Smelting Co. 116 Fed. 947. The rule that each plaintiff must be competent to sue, and each defendant competent to be sued, is applied (Ibid.), but if the interest of the various defendants is undivided and com- mon, thou"-h spnarate as between themselves, the aggregate of S. Eq.— 13. 194 VALUE OF SUBJECT-MATTEE OK EIGHT IN ISSUE. the common interest fixes the jurisdiction. Ibid. ; Clay v. Field, 138 U. S. 479, 34 L. ed. 1049, 11 Sup. Ct. Kep. 419. Dissolution of Partnerships or Corporations. In the dissolution of a partnership or corporation, it is the value of the estate to be distributed that fixes the jurisdiction (Kent V. Honsinger, 167 Fed. 620; Taylor v. Decatur Mineral & Land Co. 112 Fed. 449 ; Jones v. Mutual Fidelity Co. 123 Fed. 506; Towle v. American Bldg. Loan & Invest. Soc. 60 Fed. 131), and not individual claims of creditors joining in bill (Ibid.), provided the claims of all exceed two thousand dollars. It rests upon the fact that while each creditor has a distinct claim, yet they have a common interest in the insol- vent estate to be administered in the court, in order to ascer- tain the amount each shall receive ; in a word, they have a joint interest in a controversy involving a fund within the jurisdic- tion. Davies v. Corbin, 112 U. S. 36, 28 L. ed. 627, 5 Sup. Ct. Rep. 4 ; Shields v. Thomas, 17 How. 3, 15 L. ed. 93 ; Put- nam V. Timothy Dry Goods & Carpet Co. 79 Fed. 454; Jones v. Mutual Fidelity Co. 123 Fed. 514; Martin v. Eainwater, 5 C. C. A. 398, 12 U. S. App. 232, 56 Fed. 10; Handley v. Stutz, 137 IT. S. 366, 34 L. ed. 706, 11 Sup. Ct. Eep. 117 ; Memphis Sav. Bank v. Houchens, 52 C. C. A. 176, 115 Fed. 96. Partition Suits. It is ordinarily true that parties having distinct interests in property cannot join or aggregate the interests to obtain juris- dictional amounts, yet the representatives of a deceased per- son bringing suit against an administrator under the same title, and for a common or undivided interest, may obtain jur- isdiction on the value of the whole property, and not the value of the interests of each (Shields v. Thomas, 17 How. 3, 15 L. ed. 93; Prince v. Towns, 33 Fed. 162), but when two or more heirs sue for their respective interests, and unite to avoid a multiplicity of suits, then the interest of each must ex- ceed two thousand dollars. Rich v. Bray, 2 L.R.A. 225, 37 Fed. 276 ; "Walter v. Northeastern R. Co. 147 U. S. 373, 37 VALUE OF SUBJECT-MATTEK OE EIGHT IN ISSUE. 195 L. ed. 208, 13 Sup. Ct. Eep. 348 ; Southern Land & Timber Co. V. Johnson, 156 Fed. 246 ; Parker v. Morrill, 106 U. S. 2, 27 L. ed. 72, 1 Sup. Ct. Eep. 14. So where suit is brought to enforce the liability of heirs for debts of a decedent, the distributive share of each heir must exceed two thousand dollars to be suable in the Federal courts. Busey v. Smith, 67 Fed. 14. See McDaniel v. Traylor, 123 Fed. 339 ; Jones v. Mutual Fidelity Co. 123 Fed, 610, 511. Suits for an Office. When the matter in dispute is the deprivation of an office, the salary fixes the amount. Simon v. House, supra, citing Smith V. Adams, 130 U. S. 175, 32 L. ed. 898, 9 Sup. Ct. Rep. 566, and Smith v. Whitney, 116 U. S. 167, 29 L. ed. 601, 6 Sup. Ct. Eep. 570. Amounts in Cases Sounding in Damages. While this branch of the subject is not exactly within equi- table cognizance, yet it is useful in discussing Federal jurisdic- tion based on amount. The general rule is that in suits sound- ing in damages the damages claimed gives the jurisdiction (Barry v. Edmunds, 116 U. S. 550, 29 L. ed. 729, 6 Sup. Ct. Eep. 501 ; Smith v. Greenhow, 109 TJ. S. 671, 27 L. ed. 1081, 3 Sup. Ct. Eep. 421 ; Von Schroeder v. Brittan, 93 Fed. 9 ; Bank of Arapahoe v. David Bradley & Co. 19 C. C. A. 206, 36 U. S. App. 519, 72 Fed. 871 ; Kunkel v. Brown, 39 0. C. A. 665, 99 Fed. 594, 595) ; for the law gives no rule and the demand must furnish it, but, as in other cases, there must be manifest good faith (Bank of Arapahoe v. David Bradley & Co. 19 C. C. A. 206, 36 U. S. App. 519, 72 Fed. 872 ; Von Schroeder v. Brittan, 93 Fed. 10) ; and the fact that the amount stated is not recovered is not a test, unless the evi- dence shows that the amount stated was clearly to get juris- diction (Bank of Arapahoe v. David Bradley & Co. supra; Simon v. House, 46 Fed. 320), as, where the damages are so trivial as to rebut good faith. Maxwell v. Atchison, T. & S. F. E. Co. 34 Fed. 290, is an illustrative case. See Smith- 196 VALUE OF SUBJECT-MATTEK OE EIGHT IN ISSUE. ers V. Smith, 204 U. S. 642, 51 L. ed. 660, 27 Sup. Ct. Eep. 297, and Clement v. Louisville R. Co. 153 Fed. 979. Of course, where damages are set up in tort or wilful tres- pass or personal injuries, it is difficult for a court to decide what a jury may do in giving actual or exemplary damage, and they are therefore not inclined to question the good faith of the claim, or to decide it only colorable. Where the law gives no rule, the demand of plaintiff must furnish one. Barry v. Ed- munds, 116 U. S. 561, 29 L. ed. 732, 6 Sup. Ct. Rep. 501; Simon v. House, 46 Ted. 321 ; Hynes v. Briggs, 41 Fed. 468 ; Herbert v. Rainey, 54 Fed. 251 ; Eisele v. Oddie, 128 Fed. 942. Exemplary damages claimed in loss of property rights through fraud will not ordinarily be considered; it is only in cases of wilful injury to person or property, or in slander, libel, seduction, false imprisonment, etc. Bank of Arapahoe v. David Bradley & Co. 19 C. C. A. 206, 36 TJ. S. App. 519, 72 Fed. 870; Day v. Woodworth, 13 How. 363, 14 L. ed. 181; Barry v. Edmunds, 116 U. S. 562, 29 L. ed. 733, 6 Sup. Ct. Rep. 501. Again, in action for detention of property, damages to be a part of amount fixing jurisdiction must arise from the de- tention, and not consequential, as injury to business (Vance v. W. A. Vandercook Co. 170 U. S. 480, 481, 42 L. ed. 1115, 1116, 18 Sup. Ct. Rep. 645), or loss of trade and credit (Ibid.; Watson V. Sutherland, 5 Wall. 74, 18 L. ed. 580). How Amount Alleged in Bill. The facts upon which jurisdiction rests inust always be clearly alleged in the bill, that is, affirmatively appear because of the limited jurisdiction of the court. Hagge v. Kansas City S. R. Co. 104 Fed. 393 ; Dupree v. Leggette, 140 Fed. 776, S. C. 124 Fed. 700 ; Hanford v. Davies, 163 U. S. 279, 41 L. ed. 159, 16 Sup. Ct. Rep. 1051; Simon v. House, 46 Fed. 318; Grace v. American Cent. Ins. Co. 109 U. S. 283, 27 L. ed. 934, 3 Sup. Ct. Rep. 207; Continental L. Ins. Co. v. Rhoads, 119 TJ. S. 237, 30 L. ed. 380, 7 Sup. Ct. Rep. 193 ; Halsted v. Bus- ter, 119 U. S. 341, 30 L. ed. 462, 7 Sup. Ct. Rep. 276 ; Mans- field. C. & L. M. R. Co. V. Swan, 111 U. S. 379, 28 L. ed. 462, VAXUS OF SUBJECT-MATTER OE EIGHT IN ISSUE. 197 4: Sup. Ct. Rep. 510; Morris v. Gilmer, 129 U. S. 315, 32 L. ed. 690, 9 Sup. Ct Eep. 289; Menard v. Goggan, 121 U. S. 253, 30 L. ed. 914, 7 Sup. Ct. Eep. 873. And the presumption is that the cause is without jurisdiction unless it affirmatively ap- pears in the bill. Ibid. ; United States v. Southern P. R. Co. 49 Fed. 297. Grace v. American Cent. Ins. Co. supra; King Iron Bridge & Mfg. Co. v. Otoe County, 120 U. S. 226, 30 L. ed. 624, 7 Sup. Ct. Eep. 552 ; Adams v. Eepublic County, 23 Fed. 212 ; Lehigh Min. & Mfg. Co. v. Kelly, 160 U. S. 337, 40 L. ed. 448, 16 Sup. Ct. Eep. 307. With this formula, then, before us in statutory jurisdictional facts, the matter of amount must be shown by allegation to exceed two thousand dollars, exclusive of interest and costs. Harvey v. Ealeigh & G. E. Co. 89 Fed. 115 ; Sturgeon Eiver Boom Co. V. W. H. Sawyer Lumber Co. 89 Fed. 113. However, in Eobinson v. Suburban Brick Co. 62 C. C. A. 484, 127 Fed. 806, it is said, that it is not essentially necessary that the amount in controversy should be stated if it appears from the bill, or in any part of the record citing many cases. Affidavits to Show Amount. However, if the amount is defectively stated, or in some cases when not stated, as in suits for land when value has been omitted, affidavits have been allowed to show the value to sus- tain jurisdiction (Carr v. Fife, 156 U. S. 494, 39 L. ed. 508, 15 Sup. Ct. Eep. 427 ; Eobinson v. Suburban Brick Co. supra ; Eed Eiver Cattle Co. v. ISTeedham, 137 U. S. 633, 34 L. ed. 800, 11 Sup. Ct. Eep. 208 ; Eichmond v. Milwaukee, 21 How. 391, 16 L. ed. 72), and consequently you may amend the bill in this particular (Home Ins. Co. v. JSTobles, 63 Fed. 641 ; Whalen v. Gordon, 37 C. C. A. 70, 95 Fed. 305 ; Johnston v. Trippe, 33 Fed. 530; Ee Plymouth Cordage Co. 68 C. C. A. 434, 135 Fed. 1000-1003 ; Thompson v. Automatic Fire Pro- tection Co. 151 Fed. 945, and cases cited. See Bowden v. Burnham, 8 0. C. A. 248, 19 U. S. App. 448, 59 Fed. 754, 75^) ; so if amount sufficient, but there was a failure to plead it (Whalen v. Gordon, 37 C. C. A. 70, 95 Fed. 307). CHAPTER XXXV. HOW ISSUE IS KAISED. Under the act of 1789 the issue of jurisdiction could only be raised by plea in abatement and proof, where the jurisdic- tion was properly averred. The court was powerless to dismiss the cause, and could only punish by costs when it was deter- mined in the trial that the jurisdiction had been imposed upon. By the act of 1875, section 5, Congress provided that in any suit commenced in or removed to the circuit courts of the United States, if it shall appear to the satisfaction of the court that such suit does not really and substantially involve a dispute or controversy properly in the jurisdiction of the court, etc., the court shall proceed no further. (See chapter 92). Simon v. House, 46 Ted. 319 ; Anderson v. Watt, 138 U. S. 694-701, 34 L. ed. 1078-1081, 11 Sup. Ct. Eep. 449; Ore- gon E. & ISTav. Co. V. Shell, 143 Fed. 1006 ; Williams v. JSTot- towa, 104 U. S. 212, 26 L. ed. 720 ; Hartog v. Memory, 116 U. S. 588, 29 L. ed. 725, 6 Sup. Ct. Rep. 521 ; Morris v. Gil- mer, 129 U. S. 315-326, 32 L. ed. 690-694, 9 Sup. Ct. Rep. 289 ; Pacific Mut. L. Ins. Co. v. Tompkins, 41 C. C. A. 488, 101 Fed. 542 ; Defiance Water Co. v. Defiance, 191 U. S. 184, 48 L. ed. 140, 24 Sup. Ct. Rep. 63 ; Farmington v. Pillsbury, 114 U. S. 138, 29 L. ed. 114, 5 Sup. Ct. Rep. 807. The act, as is seen, is mandatory and it should be construed according to its spirit and intent, and it becomes the manifest duty of the Federal courts to protect their jurisdiction from imposition at any stage of the proceeding and whenever made apparent. Ibid. ; Bank of Arapahoe v. David Bradley & Co. 19 C. C. A. 206, 36 U. S. App. 519, 72 Fed. 867 ; Maxwell v. Atchison, T. & S. F. R. Co. 34 Fed. 286 ; Horst v. Merldey, 59 Fed. 503 ; Terry v. Davy, 46 C. C. A. 141, 107 Fed. 52. The courts, in construing this statute and applying it, exer- cise a legal, not a personal, discretion. Mere receiving an im- 198 HOW ISSUE IS EAISED. 199 pression that a substantial controversy within the jurisdiction of the court is not involved is not sufficient. It must be a legal certainty, and not a personal conviction, created by facts which justify the conclusion. It will be seen that the statute does not prescribe any mode by which it should be made to appear that the jurisdiction has been imposed upon, or how the ob- jection should be interposed. Wetmore v. Rymer, 169 U. S. 120, 42 L. ed. 684, 18 Sup. Ct. Eep. 293; Morris v. Gilmer, 129 U. S. 326, 32 L. ed. 694, 9 Sup. Ct. Eep. 289; Simon V. House, supra. ISTo doubt the court may from any source be advised or led to suspect imposition, and it may cause the necessary inquiry to be made, and have the issue raised in such form as it may direct (Ibid.), and tried as an independent is- sue (Hartog V. Memory, 116 U. S. 591, 29 L. ed. 726, 6 Sup. Ct. Eep. 521 ; Wetmore v. Eymer, 169 U. S. 122, 42 L. ed. 684, 18 Sup. Ct. Eep. 293; Terry v. Davy, supra; Kirven v. Virginia-Carolina Chemical Co. 76 C. C. A. 172, 145 Fed. 291, 7 A. & E. Ann. Cas. 219 ; Hill v. Walker, 92 C. C. A. 633, 167 Fed. 245, 246) ; but the evidence must create a legal certainty (Wetmore v. Eymer, supra) ; and if the court acts sua sponte the plaintiff is entitled to a hearing. (Hartog v. Mem- ory, supra). But usually the issue is raised as follows: First. By demurrer, if apparent, or in such case, the court may dismiss sua sponte. Second. By plea, answer, or affidavit. Morris v. Gilmer, supra; Simon v. House, 46 Fed. 319, 320; Hartog v. Memory, 116 H. S. 588, 29 L. ed. 725, 6 Sup. Ct. Eep. 521. Third. By motion or suggestion, or the court may, of his own accord, act if it appears by evidence pertinent to the issue. Ibid. ; Wetmore v. Eymer, supra. The trial court is not bound by the pleadings of the parties, and even though the amount may be alleged, yet if from the allegations of the bill it may be determined as a matter of law the amount could not be recovered, the court would dismiss. Holden v. Utah & M. Machinery Co. 82 Fed. 209. Such was the character of the case just cited, and it was so held on the principle suggested in Simon v. House, 46 Fed. 321, and other cases, that the subject-matter may be so far below the allega- tions of amount as to raise the inference that the statement as made showed knowledge or inexcusable ignorance. Ten- 200 HOW ISSUE IS RAISED. nent Stribling Shoe Co. v. Eoper, 36 C. C. A. 455, 94 Fed. 742 ; American Wringer Co. v. Ionia, 76 Fed. 7 ; Vance v. W. A. Vandercook Co. 170 U. S. 468, 42 L. ed. 1111, 18 Sup. Ct. Eep. 645 ; Levinski v. Middlesex Bkg. Co. 34 C. C. A. 452, 92 Fed. 463; Kunkel v. Brown, 39 C. C. A. 665, 99 Fed. 595. By Plea or Answer. If, however, the jurisdiction is properly alleged, and it is not apparent that the court has been imposed upon, then you must raise the issue by plea or answer. If raised by plea, and the allegations of the amount are shown not to have been raised in good faith, the bill will be dismissed unless an amendment can be fairly made to bring the case within the jurisdiction. Jones V. Rowley, 73 Fed. 286 ; Bank of Arapahoe v. David Bradley & Co. supra; Less v. English, 29 C. C. A. 275, 56 U. S. App. 16, 85 Fed. 477 ; Oregon E. & Nav. Co. v. Shell, 143 Fed. 1005; TJng Lung Chung v. Holmes, 98 Fed. 323; Butters v. Carney, 127 Fed. 623, see Ashley v. Presque Isle County, 27 C. C. A. 585, 54 U. S. App. 450, 83 Fed. 534. But when made in good faith the fact that plaintiff may not be able to recover all he sues for will not affect jurisdiction. Ibid. It is said you can raise the issue of jurisdiction by plea or answer when the absence of jurisdiction is not apparent on the bill. Where you are certain of your proof, and that the plea will be sustained, and that there is no reasonable ground for amendment, then the plea should be interposed, as it presents a single issue to which your evidence can be confined; but if there is a reasonable ground for amendment so as to bring the case within the jurisdiction of the court, then it is best to raise the issue by answer ; because if you sustain your plea, and the amendment is made, by which the court retains jurisdiction, you have lost the time in bringing the plea to issue, taking the evidence and trial, which could have been used in bringing the whole case to issue and trial, including the issue of juris- diction. Equity rule 35. Second. Because if your plea is overruled you are left to the mercy of the court. HOW ISSUE IS RAISED. 201 (a) Upon the question of costs incurred in bringing the plea to issue and trial. Equity rule 34. (b) If you are permitted to answer over, the court may arbitrarily fix the time for answer. (c) You are debarred from setting up in your answer the matter set up in the plea. (d) In making your issues by answer you can take the evidence on all the issues in your case, including the issue of jurisdiction, at the same time, and after you strengthen the plea to the jurisdiction by the general evidence taken in the case in support of the answer. But the nature and effect of pleas will be discussed here- after, and therefore so I pass on to the forms of demurrer and plea that are to be used when necessary. Demurrer. A. IB. ■) In Circuit Court of the United States vs. y In Equity for the District of C. D. 1 sitting at Title as in bill. The demurrer of C, defendant {or the joint and several demurrer of C. D. and E. F., defendants). This defendant, not confessing any of the matters in the bill of com- plaint to be true, demur to said bill, for that, it appears on the face of said bill that this case does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court, in that the amount (or value of the subject-matter) in dispute, as appears from the bill, does not exceed the sum of two thousand dollars, exclusive of interest and costs; wherefore the judgment of the court is prayed whether he shall be compelled to further answer said bill, and prays to be dismissed with costs. E- F.J Solicitor. Certificate of counsel and affidavit of defendant. If the issue is by plea, then use the following form: Title as in bill. Beginning as in demurrer (mutatis mutandis). For plea to said bill of complaint, aver and say, that the court should not take jurisdiction of this suit for that the said suit does not really and substantially involve a dispute or controversy properly within the jurisdic- tion of this court, in that the amount sued for (or the value of the sub- ject matter), as alleged in the complaint, is not truly stated, or alleged in good faith, and this defendant says that the amount (or value of the 202 HOW ISSUE IS BAISED. subject matter), really and substantially involved in the suit does not exceed the sum of two thousand dollars, exclusive of interest and costs; all of which he avers to be true and pleads the same in bar of the complaint in said bill, and prays the judgment of the court whether he should answer further, and prays to be dismissed hence with his costs. R. F., Solicitor. Certificate of counsel and affidavit of defendant. When the issue is set up in the answer you may use the same form of words as in the plea. While these forms are ordinarily sufficient, yet the language to be used must, in view of the allegations of the bill and the nature of the controversy, be such as to substantially raise the issue. Simon v. House, 46 Fed. 318. If neither plea nor answer raises the issue of jurisdiction, but it should appear in the trial of the cause that the amount actually involved (or value of the subject-matter in issue), is not in excess of two thousand dollars, exclusive of interest and costs, but in fact the jurisdiction has been imposed upon, and from the evidence it seems that the allegations were not made in good faith, then you may by suggestion, or a simple motion in writing, ask the court to dismiss the case; but, as before said, the disclosure must arise out of legitimate evidence on the material issues of the case, and in the absence of a plea or answer raising the issue, the court will not hear direct evidence upon the question of amount. Wetmore v. Eymer, 169 U. S. 122, 42 L. ed. 684, 18 Sup. Ct Kep. 293. CHAPTER XXXVI. HOW THE ISSUE IS TRIED. When the Issue is raised by demurrer, the plaintiff must set down the demurrer for hearing, as will be hereafter explained under demurrer. If the issue is raised by plea, and plaintiff file a replication, and thereby joins issue with you, then evi- dence must be taken by deposition on the merits of the plea, or it may be taken by parol, if the court so directs, at the hear- ing. As soon as the time for hearing evidence has expired, the plaintiff must set it down for hearing as early as possible. (See "Demurrer" and "Plea, Hearing on.") Alkire Grocery Co. V. Kichesin, 91 Ped. 79-82. If the issue is a part of your answer to the bill, the evidence is taken in connection with the evidence on the merits of the whole bill, and is heard upon the final hearing, or may be sub- mitted in advance of the hearing on the whole case, which is the better practice, and to that end you may set down the issue and evidence taken thereon for hearing, without reference to the merits of the case, using all the depositions taken in the case which may tend to throw light on the issue. Butters v. Carney, 127 Fed. 623. If the issue has not been raised by plea or answer, but the depositions taken show a want of jurisdiction, as said, you may call the attention of the court to the fact by motion or other suggestion, and use the depositions taken to show it, or if you do not raise the question the court may order the issue made and tried, and it is its duty to do so if the evidence taken shows imposition on the jurisdiction. Morris v. Gilmer, 129 U. S. 315-326, 32 L. ed. 690-694, 9 Sup. Ct. Eep. 289; Metcalf v. Watertown, 128 U. S. 586, 32 L. ed. 543, 9 Sup. Ct. Eep. 173. In whatever way the issue is raised it should be tried at once, as an independent issue in advance of the merits. Playford v. Lockard, 65 Ped. 870 ; Terry v. Davy, 46 C. C. A. 203 204 HOW THE ISSUE IS TRIED. 141, 107 Ped. 52, and cases cited; Ashley v. Pi'esque Isle County, 8 C. C. A. 455, 16 U. S. App. 656, 709, 60 Fed. 55-68 ; Kirven v. Virginia-Carolina Chemical Co. 76 C. C. A. 172, 145 Fed. 291, 292, 7 A. & E. Ann. Cas. 219. By Affidavits. The practice of permitting affidavits to be filed in the Su- preme Court to show jurisdiction arose from instances of ac- cidental omission of allegation in the pleadings, and no issue of value raised in the court below. If there was a real con- troversy as to value, it must be settled in the first instance and upon notice and trial. Holden v. Utah & M. Machinery Co. 82 Fed. 210 ; Red River Cattle Co. v. Needham, 137 U. S. 635,. 34 L. ed. 800, 11 Sup. Ct. Rep. 208; Carr v. Fife, 156 U. S. 494, 39 L. ed. 508, 15 Sup. Ct. Rep. 427; Rector v. Lipscomb, 141 U. S. 558, 559, 35 L. ed. 857, 858, 12 Sup. Ct. Rep. 83. See Talkington v. Dumbleton, 123 U. S. 745, 746, 31 L. ed. 313, 314, 8 Sup. Ct. Rep. 335 ; Robinson v. Suburban Brick Co. 62 C. C. A. 484, 127 Fed. 806 ; Greene County Bank v. J. H. Teasdale Commission Co. 112 Fed. 803, and cases cited ; United States v. Trans-Missouri Freight Asso. 166 U. S. 310, 41 L. ed. 1017, 17 Sup. Ct.Rep. 540. In Wilson V. Blair, 119 U. S. 387, 30 L. ed. 441, 7 Sup. Ct. Rep. 230, it was declared to be good practice for the circuit court to allow affidavits and counter-affidavits in determining amount for appeal. Davie v. Heyward, 33 Fed. 95 ; Morris v. Gilmer, 129 U. S. 326, 32 L. ed. 694, 9 Sup. Ct. Rep. 289. In Talkington v. Dumbleton, 123 U. S. 745, 31 L. ed. 313, 8 Sup. Ct. Rep. 335, the court states the result of all the cases, as to permitting affidavits to show the jurisdiction of the Su- preme Court, as follows: First. When demand not for money, and the value of the thing demanded is required to be stated, you cannot vary by affidavits the statement as made. Green County Bank v. J. H. Teasdale Commission Co. 112 Fed. 803. Second. Nor when evidence is offered below on the ques- tion of value. Third. But when an appeal is taken without any question HOW THE ISSUE IS TRIED. 205 of value, and it is nowhere disclosed in the record, affidavits will be heard. (Authorities above.) Burden of Proof. The burden is on the defendant, when raised by plea or answer. Butters v. Carney, 127 Ted. 622 ; contra, Oregon R. & iTav. Co. v. Shell, 143 Fed. 1005. CHAPTEK XXXVII. AMENDING TO SHOW JURISDICTION. Having now discussed the fundamental grounds of Federal jurisdiction, and when, where, and how it must be shown, as well as how the issue, if any, is to be made and tried, I will now briefly speak of the right of amendment of jurisdictional allegations. We have just said one may amend his bill to show jurisdiction as to amount, where the facts warrant the exercise of jurisdiction. Bowden v. Burnham, 8 C. C. A. 248, 19 U. S. App. 448, 59 Fed. T54, 755 ; Whalen v. Gor- don, 37 C. C. A. 70, 95 Fed. 307; Carnegie, P. & Co. v. Hul- bert, 16 C. C- A. 498, 36 U. S. App. 81, 70 Fed. 218; Weller V. Hanaur, 105 Fed. 194; Davis v. Kansas City, S. & M. E. Co. 32 Fed. 863; Ee Plymouth Cordage Co. 68 C. C. A. 434, 135 Fed. 1003. And when an amendment is necessary, the jurisdiction is established from the beginning of the suit, and not date of amendment. Bowden v. Burnham, 8 C. C. A. 248, 19 U. S. App. 448, 59 Fed. 754; Betzoldt v. American Ins. Co. 47 Fed. 707. And this rule applies to any jurisdictional allegation that can be amended, as, where an allegation that a plaintiff is a citizen of a State, when in fact he was an alien, upon which status the jurisdiction depended; plaintiff may amend his pleading and allege he was an alien when the action was brought. Grove v. Grove, 93 Fed. 865 ; Woodridge v. Me- Kenna, 8 Fed. 679 ; Glover v. Shepperd, 11 Biss. 572, 15 Fed. 838 ; Thompson v. Automatic Fire Protection Co. 151 Fed. 945. Or where there is a failure to give the residence of the parties, it may be amended on motion without delay. Harvey V. Eiehmond & M. E. Co. 64 Fed. 20; Eiggs v. Brown, 172 Fed. 637. So you may strike out by amendment the name of a party not indispensable, if the presence of such party affects the jurisdiction, — as, when it is necessary to create diversity of 206 AMENDIIJG TO snow JUEISDICTION. 207 citizenship. Union Mill & Min. Co. v. Dangberg, 81 Fed. 89 ; Grove V. Grove, 93 Fed. 867 ; Equity Rule 47. Amendments will not be allowed after trial to confer jurisdiction which did not, in fact, exist at the time suit was begun. Thus, a plaintiff whose citizenship deprived the court of jurisdiction cannot as- sign his interest after trial to a coplaintiff of proper citizenship, and hold jurisdiction by setting up that fact by amendment. Weller v. Hanaur, 105 Fed. 193. So an amendment of this character cannot be made on ap- peal, but the appellate court will reverse where the record is defective in its jurisdictional allegations, and remand the cause for amendment in this respect. Preferred Acci. Ins. Co. v. Barker, 32 C. C. A. 124, 58 U. S. App. 171, 88 Fed. 814; Van Doren v. Pennsylvania Co. 35 C. C. A. 282, 93 Fed. 272, and cases cited; Grove v. Grove, supra; Metcalf v. Watertown, 128 U. S. 590, 32 L. ed. 544, 9 Sup. Ct. Eep. 173. Where, as under equity rule 94, the jurisdictional facts are required to be alleged and sworn to, a failure to allege them as required cannot be amended. Dickinson v. Consolidated Traction Co. 114 Fed. 242, 243. CHAPTEE XXXVIII. JUEISDICTION BY ASSIGNMENT. Section 11 of the judiciary act of 1789 provided as follows : "Not shall any circuit or district court have cognizance of any suits to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court if no assignment had been made. Except in cases of foreign bills of exchange." This re- striction over assigned claims was intended to prevent the crea- tion of jurisdiction by simply assigning choses in action to a citizen of another State. New Orleans v. Quinlan, 1Y3 TJ. S. 191, 43 L. ed. 664, 19 Sup. Ct. Eep. 329 ; Davis v. Mills, 99 Fed. 40, and cases cited ; Tiemey v. Helvetia Swiss F. Ins. Co. 163 Fed. 82; Utah-l^evada Co. v. De Lamar, 66 0. 0. A. 179, 133 Fed. 113, 75 0. C. A. 1, 145 Fed. 506 ; Mexican Nat. R. Co. V. Davidson, 157 U. S. 206-208, 39 L. ed. 674, 675, 15 Sup. Ct. Eep. 563; Smith v. Fifield, 33 0. C. A. 681, 63 IT. S. App. 531, 91 Fed. 561 ; Stimson v. United Wrapping Mach. Co. 156 Fed. 298, 299 ; BoUes v. Lehigh Valley E. Co. 127 Fed. 884; Ferguson v. Consolidated Eubber Tire Co. 169 Fed. 888, and cases cited; DuUes v. H. D. Crippen Mfg. Co. 156 Fed. 708 ; Gorman-Wright Co. v. Wright, 67 C. C. A. 345, 134 Fed. 365, cases cited; State Nat. Bank v. Eureka Springs Water Co. 174 Fed. 828. However where the court has juris- diction of one claim it may determine the whole matter though other claims sued on were assigned to the plaintiff by persons that could not sue. Howe & D. Co. v. Hangan, 140 Fed. 183. The act of 1875 provided : "No circuit or district court shall have cognizance of any suit founded on contract in favor of an assignee, unless suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant, and bills of exchange." Ibid. ; Tredway v. Sanger, 107 U. S. 324, 208 JtJEISDICTION BY ASSIGNMENT. 209 27 L. ed. 582, 2 Sup. Ct. Eep. 691 ; Emsheimer v. New Oi- leans, 186 U. S. 43, 46 L. ed. 1046, 22 Sup. Ct. Rep. 770, S. C. 56 C. C. A. 189, 119 Fed. 1019 ; Glass v. Concordia Par- ish, 176 U. S. 209, 44 L. ed. 437, 20 Sup. Ct. Eep. 346. By the act of 1888, now in force, the language was some- what changed as follows: "Nor shall any district or circuit court of the United States have cognizance of any suits, ex- cept on foreign bills of exchange, to recover the contents of any promissory notes, or other choses in action in favor of any assignee, or of any subsequent holder, if such instrument be payable to hearer, and be not made hy any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made." U. S. Eev. Stat. § C29, U. S. Conip. Stat. 1901, p. 508 ; New Code, § 24. The act means that a circuit court of the United States shall not have jurisdiction over a suit by an assignee of a promissory note, or other chose in action (except a foreign bill of ex- change), unless the suit could have been maintained on the in- strument in said court before the assignment; and that a sub- sequent holder of a promissory note, or other chose in action, "payable to bearer" (except a foreign bill of exchange, or an instrument made by a corporation), cannot sue in the circuit court of the United States unless the suit might have been brought upon such instrument in said court before the transfer was made to the subsequent holder. Thus we see that Federal courts have not jurisdiction of a suit brought by the assignee of a promissory note, or chose in action, when the assignor could not have maintained it in said court, when the suit was brought. Emsheimer v. New Orleans, 186 U. S. 44, 46 L. ed. 1047, 22 Sup. Ct. Eep. 770; Noyes V. Crawford, 133 Fed. 796; Jones v. Shapurn, 57 Fed. 457; New Orleans v. Benjamin, 153 U. S. 433, 38 L. ed. 772, 14 Sup. Ct. Eep. 905, 71 Fed. 758 ; Sullivan v. Ayer, 174 Fed. 199 ; Skinner v. Barr, 77 Fed. 816. When the original bene- ficial owner could sue in the Federal courts, then the assignee can sue though the nominal payee could not, by reason of his citizenship. Kirvin v. Virginia-Carolina Chemical Co. 76 C. C. A. 172, 145 Fed. 290, 7 A. & E. Ann. Cas. 219, and cases cited. It is not necessary that the assignor should have been a resident of the assignee's district in which the suit ia S. Eq.— 14. 210 JUEISDICTION BY ASSIGNMENT. brought. Stinson v. United Wrapping Mach. Co. 156 Fed. 298. See Dulles v. H. D. Crippen Mfg. Co. 156 Fed. 706, and Ferguson v. Consolidated Rubber Tire Co. supra. The clause, "if such instrument be payable to bearer, and be not made by a corporation," operates as an exception to the general rule, and gives jurisdiction to assignees, when the in- strument is made by a corporation, and payable to bearer, that is, negotiable by mere delivery. So an assignee of a foreign bill of exchange, or promissory notes "payable to bearer," executed by corporations, may sue in the Federal courts unrestricted by this section of the judiciary act. ITewgass v. ISTew Orleans, 33 Fed. 196 ; EoUins v. Chaf- fee County, 34 Fed. 91 ; Wilson v. Knox County, 43 Fed. 481 ; Steel v. Rathbun, 42 Fed. 390; Kearny County v. Irvine, 61 C. C. A. 607, 126 Fed. 694. With these exceptions, all choses in action which required an assignment to give a right of action, and promissory notes payable to bearer and passing by delivery, are within the act. Ibid. Effect of Reassignment, If original assignor could sue, the fact the note has been re- assigned by one who could not, by reason of his citizenship, sue in the Federal court, would not affect right of the original as- signor to sue in the Federal courts. Moore Bros. Glass Co. V. Drevet Mfg. Co. 154 Fed. 737. Objection to the jurisdic- tion, that it does not appear that the assignor could sue in the Federal courts can be raised at any time. Utah-lTevada Co. V. De Lamar, 66 C. C. A. 179, 133 Fed. 117. What Are Choses in Action Within the Statute? In determining what is included in the words "choses in action," as used by the statute, it was early stated that the words comprehended all causes of action that could be equitably or legally assigned. Mexican Nat. E. Co. v. Davidson, 157 IJ. S. 201-206, 39 L. ed. 672-674, 15 Sup. Ct. Eep. 563; and Utah- Nevada Co. V. De Lamar, 66 C. 0. A. 179, 133 Fed. 119-123, JURISDICTION BY ASSIGNMENT. 211 review the cases construing the several acts of 1Y89, 1875, and 1888. Gorman-Wright Co. v. Wright, 61 C. C. A. 345, 134 Fed. 364; Brown v. Beacon, 174 Fed. 814, 815; Jackson & S. Co. V. Pearson, 60 Fed. 117. It will be seen by these cases that the words include all char- acter of contracts, covenants, and promises which confer the right to recover a personal chattel, or sum of money, except when transferred by operation of law. Assignments by opera- tion of law creating legal representatives are not within the statute. Ibid. In Mexican ISTat. E. Co. v. Davidson, 157 U. S. 201-209, 39 L. ed. 672, 15 Sup. Ct. Eep. 563, the court holds that the words, "if the instrument be payable to bearer, and be not made by a corporation," did not limit the comprehensiveness of the words "ehoses in action," as construed above. Ibid. ; Sheldon V. Sill, 8 How. 449, 12 L. ed. 1151 ; Ban v. Columbia South- ern K. Co. 54 C. C. A. 407, 117 Fed. 21 ; Coler v. Grainger County, 20 C. C. A. 267, 43 U. S. App. 252, 74 Fed. 2122 ; Corbin v. Black Hawk County, 105 U. S. 664, 665, 26 L. ed. 1138 ; Plant Invest. Co. v. Jacksonville, T. & K. W. K. Co. 162 U. S. 77, 38 L. ed. 360, 14 Sup. Ct. Eep. 483 ; Shoecraft v. Bloxham, 124 TJ. S. 735, 31 L. ed. 576, 8 Sup. Ct. Eep. 686 ; Ambler v. Eppinger, 137 U. S. 482, 34 L. ed. 766, 11 Sup. Ct. Eep. 173 ; Bertha Zinc & Mineral Co. v. Vaughan, 88 Fed. 569, 570. "Choses in action" do not include rights of action founded on a wrongful act or neglect of duty causing damages, but are limited to suits founded upon contracts containing within themselves some promise or duty to be performed. Ambler v. Eppinger, 137 U. S. 480, 34 L. ed. 765, 11 Sup. Ct. Eep. 173 ; Bushnell v. Kennedy, 9 Wall. 387, 19 L. ed. 736; Conn v. Chicago, B. & Q. E. Co. 48 Fed. 178 ; MuUer v. Chicago, I. & L. R Co. 149 Fed. 940. Illustrations. A parol contract falls within the words "choses in action." Utah-Nevada Co. v. De Lamar, 66 C. C. A. 179, 133 Fed. 120. So does an assignment of a lease. Brooks v. Laurent, 212 JUEISDICTIOJN^ BY ASSIGNMENT. 39 C. C. A. 201, 98 Fed. 651 ; See Adams v. Shirk, 44 C. C. A. 653, 105 Fed. 659-663. So does a judgment. Walker V. Powers, 104 U. S. 248, 26 L. ed. 730 ; Mississippi Mills v. Colm, 150 U. S. 208, 37 L. ed. 1054, 14 Sup. Ct. Rep. 75; Metcalf T. Watertown, 128 U. S. 588, 32 L. ed. 543, 9 Sup. Ct. Eep. 173. See Hulthberg v. Anderson, 170 Fed. 657, for exception. So does a contract for specific performance. Cor- bin V. Black Hawk County, 105 U. S. 659, 26 L. ed. 136; Shoecraft v. Bloxham, 124 U. S. 735, 31 L. ed. 576, 8 Sup. Ct. Eep. 686. And a contract to convey land. Plant Invest. Co. V. Jacksonville, T. & K. W. R. Co. 152 U. S. 76, 38 L. ed. 360, 14 Sup. Ct. Rep. 483. It includes non-negotiable instru- ments also. Smith v. Fifield, 33 C. C. A. 681, 63 U. S. App. 531, 91 Fed. 561. So in a suit to foreclose a mortgage. Hoad- ley v. Day, 128 Fed. 302 ; Kolze v. Hoadley, 200 U. S. 76, 50 L. ed. 377, 26 Sup. Ct. Eep. 220; Nelson v. Eaton, 13 C. C. A. 523, 27 U. S. App. 677, 66 Fed. 376. But not to a pur- chaser under foreclosure seeking to remove cloud. Hobe-Peters Land Co. v. Farr, 170 Fed. 644. A claim for overcharge in freight was held not to come within the statute. Conn v. Chicago, B. & Q. R. Co. 48 Fed. 177 ; Edmunds v. Illinois E. Co. 80 Fed. 78. So, a nonresi- dent assignee of a share in an estate, who sues the administra- tor on his bond, is not an assignee of a chose in action. Bertha Zinc & Mineral Co. v. Vaughan, 88 Fed. 566. So, a suit by an assignee to force a transfer of stock is not within the statute. Jewett V. Bradford Sav. Bank & T. Co. 45 Fed. 802. A pur- chaser under a decree of foreclosure is not an assignee within the statute. Portage City Water Co. v. Portage, 102 Fed. 769 ; Hobe-Peter Land Co. v. Farr, supra. Having seen what character of obligations are included in the words "choses in action," I will now illustrate by cases the jurisdiction of the Federal court as limited by the first sec- tion of the act of 1888. In ISTewgass v. New Orleans, 33 Fed. 196, the statute was construed shortly after its passage in 1887, and it was held that when the transfers of "choses in action" required an assign- ment, the court had no jurisdiction of a suit by the assignee, if the assignor could not sue in the Federal court; and where transfers were made by delivery, the obligation being paid to JUEISDICTION BY ASSIGNMENT. 213 bearer, such choses in action were also excluded unless made by a corporation, and the statute was constrtied as follows: (a) When suits were on foreign bills of exchange. (b) ^^^len suits were such that the original payee in the instrument could sue in the Federal courts. (c) When suits were upon "choses in action" payable to bearer, executed by a corporation, then such suits could be brought in the Federal court; otherwise a Federal court had no jurisdiction of a suit brought by an assignee. The construc- tion was followed in EoUins v. Chaffee County, 34 Fed. 91 ; Wilson V. Knox County, 43 Fed. 481, and approved by the Su- preme Court in iN'ew Orleans v. Quinlan, 1Y3 U. S. 191, 43 L. ed. 664, 19 Sup. Ct. Eep. 329, 92 Fed. 695 ; Laird v. In- demnity Mut. M. Assur. Co. 44 Fed. 112 ; Bank of British IST. A. V. Barling, 46 Fed. 357; Thompson v. Searcy County, 6 C. C. A. 674, 12 U. S. App. 618, 57 Fed. 1036. In Holmes v. Goldsmith, 147 U. S. 156, 37 L. ed. 120, 13 Sup. Ct Rep. 288, a note was made by a citizen of Oregon and payable to a citizen of Oregon, it seems for accommodation. The payee discounted the note in New York, and the New York parties sued in the Federal courts of Oregon. Court held juris- diction in the case, but placed it on the ground that the note being made for the accommodation of the indorser, he was in legal effect the maker, and had no cause of action against the maker, and was not an assignor of a cause of action within the meaning of the statute. But, as stated before, the section of the act was intended to prevent assignments by citizens of the same State with the debtor, so as to give jurisdiction to Fed- eral courts. New Orleans v. Benjamin, 153 IT. S. 433, 38 L. ed. 772, 14 Sup. Ct. Kep. 905; Brigham-Hopkins Co. v. Gross, 107 Fed. 770; Chase v. Sheldon Roller-Mills Co. 56 Fed. 625. See South Dakota v. North Carolina, 192 U. S. 287, 48 L. ed. 448, 24 Sup. Ct. Rep. 269, holding a citizen of one State can assign to his State bonds of another State, and suit may be brought by the assignee State in the Supreme Court of the United States, but this is a clear evasion of the 11th Amend- ment to the Constitution of the United States, as shown by the dissenting opinion of Mr. Justice White, pp. 329 et seq. CHAPTEE XXXIX. PEOMISSOET NOTES PAYABLE TO BEAEEK MADE BY COEPOEA- TIONS. The evident purpose of this provision of the act was to rer tain jurisdiction in the Federal courts of a large class of se- curities made by corporations which are sold in open market and pass by delivery. Wilson v. Knox County, supra. Municipal bonds payable to , or order, and originally sold to a citizen of Iowa, from whom the plaintiff, a citizen of New Hampshire, purchased them, were held in legal effect payable to beai;er (Independent School Dist. V. Hall, 113 U. S. 135, 28 L. ed. 954, 5 Sup. Ct. Eep. 371; Eeynolds v. Lyon County, 97 Fed. 155), and, being executed by a corporation, were within the jurisdiction of a Federal court. Lyon County v. Keene Five Cent Sav. Bank, 40 C. C. A. 391, 100 Fed. 337; Citizens' Sav. Bank V. ISTewburyport, 95 C. C. A. 232, 169 Fed. 766 ; Lake County V. Dudley, 173 F. S. 243-250, 43 L. ed. 684-687, 19 Sup. Ct. Eep. 398 ; Gambee v. Eural Independent School Dist. 132 Fed. 514. Contra Thomson v. Elton, 100 Fed. 145 ; Kearny County v. Irvine, 61 C. C. A. 607, 126 Fed. 694. In Quinlan v. New Orleans, 92 Fed. 695, it is held that if the proper diversity of citizenship exists, the holder of a note payable to bearer, executed by a corporation, may sue in the Federal courts, but not so if not payable to bearer. New Or- leans V. Quinlan, 173 U. S. 192, 43 L. ed. 664, 19 Sup. Ct. Eep. 329 ; Cloud v. Sumas, 52 Fed. 177 ; Loeb v. Columbia Twp. 179 U. S. 485, 486, 45 L. ed. 288, 289, 21 Sup. Ct. Eep. 174. You see, a distinction is made between bonds and notes, exe- cuted by a corporation, payable to bearer, and not payable to bearer; only those payable to hearer can be sued upon by an assignee, whether the assignor could sue or not; that is, it is 214 PEOMISSOEY NOTES PAYABLE TO BEAEEE. 215 not necessary to show diversity of citizenship between the origi- nal parties to the instrument in order for an assignee to main- tain the suit in a Federal court. See Keene Five-Cent Sav. Bank V. Lyon County, 90 Fed. 530, 531 ; Jones v. Shapera, 6 C. C. A. 423, 13 U. S. App. 481, 57 Fed. 462. In ISTew Orleans v. Benjamin, 158 TJ. S. 411, 38 L. ed. 764, 14 Sup. Ct. Kep. 905, suit was brought upon warrants executed by a corporation, payable to the order of a certain person, and other warrants simply stating an indebtedness to certain per- sons, not being payable to bearer. The Supreme Court held the assignee must show the assignor could sue in a Federal court. In Thomson v. Elton, 100 Fed. 145, it was held that the holder of a municipal bond payable to a person named, or order, and indorsed in blank, could only maintain an action in the Federal court when payee could do so, as the title comes through him. However, though bonds cannot be sued upon, you may sue on coupons payable to bearer. Independent School Dist. V. Eew, 55 L.RA. 364, 49 C. C. A. 198, 111 Fed. 2 ; Eeynolds V. Lyon County, supra. But in Lyon County v. Keene Five- Cent Say. Bank, supra, the court held that a municipal bond payable to , or order, is in legal effect payable to bearer and within the exception made by the statute, it hav- ing been executed by a corporation. Keene Five-Cent Sav. Bank v. Lyon County, 90 Fed. 523. In Loeb v. Columbia Twp. 91 Fed. 37, townships issued bonds ; held issued by a corporation, so that assignee may sue. Kearny County v. Irvine, 61 C. C. A. 607, 126 Fed. 689. In Wilson v. Knox County, 43 Fed. 481, held, county war- rants not payable to bearer must show original payee could sue. See Kearny County v. Irvine, 61 C. C. A. 607, 126 Fed. 694. Citizens of another State brought suit on coupons payable to bearer purchased after detached. Held, their right to sue in the Federal court was not affected by the citizenship of the holder of the bonds, though payable to citizens of the county. Eeynolds v. Lyon County and Independent School Dist. v. Eew, supra; Edwards v. Bates County, 163 U. S. 269, 41 L. ed. 155, 16 Sup. Ct. Eep. 967 ; JSTesbit v. Independent Dist. 144 U. S. 610, 36 L. ed. 562, 12 Sup. Ct. Eep. 746. County warrants payable "to bearer" can be sued in the Federal courts by assignee if nonresident. Kearny County v. McMaster, 15 216 PEOMISSOET NOTES PAYABLE TO BEAEEE. C. C. A. 353, 32 TJ. S. App. 367, 68 Fed. 177; Kearny County V. Irvine, 126 Fed. 694. Ibid. Coupons also are primary causes of action. Ibid. Of course, a fictitious trajisfer of bonds or coupons to obtain jurisdiction would be a fraud on the court. Bernard Twp. v. Stebbins, 109 U. S. 355 ; Hartford F. Ins. Co. v. Erie E. Co. 172 Ted. 902, and cases cited; Kreider v. Cole, 79 C. C. A. 339, 149 Fed. 647; Dickerman v. Northern Trust Co. 176 U. S. 181, 44 L. ed. 423, 20 Sup. Ct. Eep. 311. See Bernheim V. Birnbaum, 30 Fed. 885; Lake County v. Dudley, 173 U. S. 251, 43 L. ed. 688, 19 Sup. Ct. Eep. 398 ; Lehigh Min. & Mfg. Co. V. Kelly, 160 TJ. S'. 335, 40 L. ed. 447, 16 Sup. Ct. Eep. 307; Waite v. Santa Cruz, 184 TJ. S. 326, 46 L. ed. 567, 22 Sup. Ct. Eep. 327 ; Williams v. ISTottawa, 104 F. S. 212, 213, 26 L. ed. 720, 721. But assignment without consideration, for purposes of suit, would not be collusive if the assignor could have brought suit. Hartford F. Ins. Co. v. Erie E. Co. 172 Fed. 899-902. See Blair v. Chicago, 201 TJ. S. 400, 50 L. ed. 801, 26 Sup. Ct. Eep. 427, and cases cited. The rule above applies to removals, as well as causes origi- nally brought in the Federal courts. Mexican ISTat. E. Co. v. Davidson, 157 TJ. S. 205, 39 L. ed. 674, 15 Sup. Ct. Eep. 563. History of the Assignment Clause in Act of 1888. Having stated the rule of jurisdiction as affected by assign- ments of choses in action, I will give a brief history of this clause in the act of 1888, sec. 1, as it will enable you to bet- ter understand the construction given it, and in a measure ac- count for conflicting decisions in the Federal courts. Section 1 of the act of 1789 provided that the assignee of the instruments named could not recover the contents of any such instruments, unless the original payee could sue in the Federal courts ; that is, unless there existed a diversity of citizenship be- tween the maker and payee ; but foreign bills of exchange were excepted. Between 1789 and 1875 there are numerous deci- sions construing the clause. First. We find the words, "assignee of a promissory note or other causes of action," strictly construed, and instruments payable to bearer, or to a named person, excepted from the rule, PEOMISSOEY NOTES PAYABLE TO BEARER. 217 because the instrument was not technically assigned, but passed by simple delivery. Thompson v. Perrine, 106 U. S. 593, 27 L. ed. 300, 1 Sup. Ct. Eep. 564, 668 ; Adams r. Kepublie Coun- ty, 23 Fed. 213 ; New Orleans v. Quinlan, supra ; Jerome v. Eio Grande County, 5 McCrary, 639, 18 Fed. 874; Chick- aming v. Carpenter, 106 U. S. 666, 27 L. ed. 308, 1 Sup. Ct. Eep. 620. Second. We find an indorsee could sue his immediate in- dorser if diversity of citizenship existed between them, and without reference to the citizenship of the immediate parties to the instrument, hecause the claim was derived through a new contract, and not through an assignment. Parker v. Ormsbji, 141 U. S. 85, 35 L. ed. 656, 11 Sup. Ct. Eep. 912, and cases cited. Third. Many cases drew the distinction between the recov- ery of the "contents" of a note or other chose in action, and the recovery of the notes or instruments themselves (but this lan- guage is retained in the act of 1888, and will be noticed here- after). Deshler v. Dodge, 16 How. 631, 14 L. ed. 1088; New Orleans v. Benjamin, 153 U. S. 433, 38 L. ed. 772, 14 Sup. Ct. Eep. 905 ; Plant Invest. Co. v. Jacksonville, T. & K. W. E. Co. 152 U. S. 76, 38 L. ed. 360, 14 Sup. Ct. Eep. 483; Shoecraft v. Blaxham, 124 U. S. 730, 31 L. ed. 574, 8 Sup. Ct. Eep. 686. March 3, 1875, Congress, with a view of increasing the jur- isdiction of the Federal courts, excepted from the rule notes negotiable by the law merchant, as well as bills of exchange, leaving out the word "foreign" before bills of exchange, in the act of 1789. Here all the hars to entering Federal courts were let dovra as to commercial paper, and exceptions evolved out of the act of 1789 in the various decisions became of no im- portance whatever. Tredway v. Sanger, 107 U. S. 323, 27 L. ed. 582, 2 Sup. Ct. Eep. 691; New Orleans v. Quinlan, supra; Mersman v. Werges, 112 U. S. 143, 28 L. ed. 643, 5 Sup. Ct. Eep. 65. In 1888 Congress, with a view of restricting again the juris- diction of the Federal courts, changed the whole clause so as to read, "Nor shall any circuit or district court have cognizance of any suits (except upon foreign bills of exchange) to recover the contents of any promissory note, or other chose in action, 218 PEOMISSOEY NOTES PAYABLE TO BEAEBE. in favor of any assignee or of any subsequent holder, if such instrument be made payahle 'to hearer and be not made hy any corporation, unless tbe suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made." The italicized words show the difference be- tween the acts of 1789 and 1888. It appears then — (a) That the word "foreign" was restored, as in the act of 1789, before "bills of exchange." Morgan v. Gay, 19 Wall. 81, 22 L. ed. 100. (b) That a note excluded by construction from the act of 1789 was now expressly included in the act of 1888, unless made by a corporation. (c) That the word "transfer" was evidently intended to enlarge the scope given by the construction to the word "as- signee," under the act of 1789, and was intended to cover every case in which title to negotiable paper, the contents of which might be the subject of suit, had vested by acts of parties or by operation of law. (d) That the exception made under the act of 1789, by which an indorsee could sue his immediate indorser, if di- versity of citizenship existed, was abrogated by the act of 1888. There being no question about the proposition (a), I will now examine a few cases illustrating the propositions desig- nated by (b), (c), and (d). Proposition (b) has been fully illustrated in discussing "promissory notes payable to bearer made by corporations." Proposition (c), relating to the intention of Congress in us- ing the word "transfer" in the act of 1888. There is no ques- tion that the word so used was intended to enlarge the scope of the word "assignee," and to cover all methods, whether by acts of parties or operation of law, by which title to choses in action passed, and to annul the construction given to the word "as- signment" under the act of 1789. United States Nat. Bank v. McNair, 56 Fed. 326, 327. Under proposition (d), the construction given to the act of 1789, whereby an assignee could sue his immediate assignor if diversity of citizenship existed, was abrogated by the act of 1888. The language of the act of 1888 clearly shows the mind of Congress to place the right of suit by the assignee, or subse- quent holder, upon the citizenship existing between the malier PEOMISSOBY NOTES PAYABLE TO BEAEEE. 219 and the payee of the instrument assigned ; that is, the assignee of a chose in action under the present act, or any subsequent holder of the assigned instrument, cannot sue in the Federal courts unless such suit might have been maintained between the original parties to the instrument, or, as stated in the act, "as if no assignment or transfer had been made. Portage City Water Co. v. Portage, 102 Fed. 769; Emsheimer v. ISTew Or- leans, 116 Fed. 893 ; Utah-lSrevada Co. v. De Lamar, 133 Fed. 119. But if suit could be maintained between original holders, then citizenship of intermediate assignees is not important. In Skinner v. Barr, 77 Fed. 816, a note was executed by one Price to Knap, and indorsed by one Barr, all of Pennsylvania. One Skinner, of New Jersey, became the assignee, and sued Barr in the Federal court. Held, the original payee not being able to sue in the Federal court. Skinner could not sue there. United States ITat. Bank v. McNair, 56 Fed. 325. In Superior v. Eipley, 138 U. S. 96, 97, 34 L. ed. 916, 11 Sup. Ct. Eep. 288, it was held that a draft drawn by a citizen of a State on a corporation of the same State, but in favor of a citizen of another State, does not come within the statute, for at the moment of acceptance the acceptor becomes the primary debtor, and it is a new contract between the acceptor and non- resident, and the latter may sue without tracing title through the drawer. In note payable "to order" and transferred, assignee cannot sue in a Federal court unless the assignor could. United States Nat. Bank v. McNair, 56 Fed. 324; Parker v. Ormsby, 141 U. S. 83, 35 L. ed. 655, 11 Sup. Ct. Eep. 912. See Jones v. Shapera, 6 C. C. A. 423, 13 U. S. App. 481, 57 Fed. 462. And the record must show that the suit could have been main- tained in the name of the assignor when brought. Emsheimer V. jSTew Orleans, 186 U. S. 33, 46 L. ed. 1042, 22 Sup. Ct. Eep. 770 ; Dexter H. & Co. v. Sayward, 84 Fed. 300 ; United States Nat. Bank v. McNair, 56 Fed. 327. So an assignee of a State judgment depends for jurisdiction on the citizenship of the assignor (Mississippi Mills v. Cohn, 150 U. S. 208, 37 L. ed. 1054, 14 Sup. Ct. Eep. 75), and so as to all non- negotiable instruments (Smith v. Fifield, 33 C. C. A. 681, 63 U. S. App. 531, 91 Fed. 561 ; Holmes v. Goldsmith, 147 U. S. 157, 37 L. ed. 120, 13 Sup. Ct. Eep. 288; Wilson v. Knox 220 PEOMISSOEY NOTES PAYABLE TO BEAREK. CouDty, 43 Fed. 482). So when assigned by partnership by one partner. Ban v. Columbia Southern Co. 54 C. C. A. 407, 117 Fed. 21, U. S. Eev. Stat. 629, reversing 109 Fed. 499. So a trustee as assignee of a contract between citizens of same State cannot sue. Eau Claire v. Payson, 46 C. C. A. 466, 107 Fed. 552, 48 C. C. A. 608, 109 Fed. 676; American Waterworks & Guarantee Co. v. Home Water Co. 115 Fed. 171. How Assignments Alleged in Bill. If the citizenship of the original payee is material to the jurisdiction it is essential to show it in the bill. Act 1888, sec. 1 ; Holmes v. Goldsmith, supra ; Parker v. Ormsby, 141 U. S. 85, 35 L. ed. 656, 11 Sup. Ct. Eep. 912 ; Benjamin v. New Orleans, 169 U. S. 163, 42 L. ed. 702, 18 Sup. Ct. Rep. 298 ; North American Transp. & Trading Co. v. Morrison, 178 U. S. 268, 44 L. ed. 1064, 20 Sup. Ct. Eep. 869 ; Murphy v. Payette Alluvial Gold Co. 98 Fed. 321; United States Nat. Bank v. McNair, 56 Fed. 324; Dexter, H. & Co. v. Sayward, supra, and cases cited. And the citizenship must be distinctly alleged and not inferentially. Thus an allegation by an as- signee, that each of said persons, etc., are now and were, on the day of , citizens of States other than the State of , and competent to maintain suit, as if no such assignment had been made, is insufficient to confer jurisdiction; must state citizenship of each party. Benjamin V. New Orleans, 20 C. C. A. 591, 41 U. S. App. 178, 74 Fed. 417, 71 Fed. 758. So in an action on claims aggregating the jurisdictional amount, which have been acquired by assignment, the bill must show the citizenship of the assignors; and the same rule ap- plies in removals. Murphy v. Payette Alluvial Gold Co. supra ; Davis V. Mills, 99 Fed. 39-41; North American Transp. & Trading Co. v. Morrison, 178 U. S. 269, 44 L. ed. 1064, 20 Sup. Ct. Eep. 869 ; Fife v. Whittell, 102 Fed. 539, 540. You cannot amend after removal to show it. Crehore v. Ohio & M. E. Co. 131 U. S. 240, 33 L. ed. 144, 9 Sup. Ct. Eep. 692; Graves v. Corbin, 132 U. S. 590, 591, 33 L. ed. 468, 469, 10 Sup. Ct. Eep. 196. PEOMISSOEY ITOTES PAYABLE TO BEAEEE. 221 Subsequent Changes. Subsequent changes are not considered if jurisdiction existed when the suit was brought. Emsheimer v. New Orleans, 116 Fed. 893, 186 U. S. 44, 46 L. ed. 1047, 22 Sup. Ct. Eep. 770; Jones V. Shapira, 57 Fed. 457. Citizenship of subsequent holders not considered. Ibid. Assignment Must Be Genuine. The assignment must not be colorable, and when it is a suit at law, jury may pass upon it if evidence conflicting. Act 1888, sec. 5 ; Williams v. Nottawa, 104 U. S. 209, 26 L. ed. 719 ; Lake County v. Schradsky, 38 C. C. A. 17, 97 Fed. 1 ; Farmington v. Pillsbury, 114 U. S. 138, 29 L. ed. 114, 5 Sup. Ct. Eep. 807; Lake County v. Dudley, 173 TJ. S. 253, 43 L. ed. 688, 19 Sup. Ct. Eep. 398 ; Lehigh Min. & Mfg. Co. v. Kelly, 160 U. S. 327, 40 L. ed. 444, 16 Sup. Ct. Eep. 307 ; Crawford V. Neal, 144 TJ. S. 593 ; Waite v. Santa Cruz, 184 U. S. 325 ; Morris v. Gilmer, 129 U. S. 327. How the Issue is Raised. When the assignor not entitled to sue, defendant may dis- miss. Ibid.; Farmington v. Pillsbury, 114 U. S. 144; Wet- more V. Eymer, 169 U. S. 120, 42 L. ed. 684, 18 Sup. Ct. Eep. 293 ; Defiance Water Co. v. Defiance, 191 U. S. 194, 48 L. ed. 144, 24 Sup. Ct. Eep. 63. And the issue is raised by demurrer if apparent in the bill, and by plea or answer if not apparent. If raised by demurrer you may use form given under the issue of diversity of citizenship, which see. If by plea, then use the following form : Title and commencement as before given in pleas to jurisdiction, then proceed — That it appears from said bill that the diversity of citizenship to sus- tain the jurisdiction of this court is sought through the assignment of the (cause of action) to complainant, and that so much of the allegation of said bill as avers that E. F., the payee and assignor, through whom com- plainant derives title, was a citizen of the State of is not true, for defendant avers that he was at the time of the execution and delivery of the (cause of action), and is now, a citizen of the State of , 222 PEOMISSOEY KOTES PAYABLE TO BEAEEE. and not of the State of ,as alleged in the bill, and that no diver- sity of citizenship on which to base the jurisdiction of this court exists in this suit. All of \rhich matters and things this defendant avers to be true, and pleads the same in bar of complainant's said bill. Wherefore defendant prays the judgment of the court whether he shall answer further, and asks to be dismissed hence with his cost. R. F., Solicitor, etc. Certificate of counsel ; affidavit of defendant. If the jurisdiction is based on the fact that it is alleged the instrument was executed by a corporation and payable to bearer, and you wish to raise the issue by plea or answer, use the same form mutatis mutandis. You must deny specifically that it was executed by a corporation, or that the chose in action is payable to bearer. If raised in answer you may use the same form of allegation. CHAPTEE XL. PARTIES. I have now discussed so much of the general and territorial jurisdiction of the circuit courts of the United States as is necessary to be known in order to intelligently prepare a bill in a Federal equity suit. It is only a general treatment of the subject, but my purpose is to stimulate and direct your inves- tigation along lines that will lead to correct conclusions, as to whether you have jurisdiction under the Constitution and laws of the United States, and, having determined that fact, then to correctly state it in your bill. In what has been already said, it is seen that Federal juris- diction depends largely upon who are to be parties to the bill, for the Federal statutes create limitations on Federal jurisdic- tion over parties. Bland v. Fleeman, 29 Fed. 672. I will therefore now discuss parties generally, and how they are af- fected by the limitation created by Federal laws, and the rules of equity. It is a cardinal principle in courts of equity generally, that all persons interested in a suit, or to be affected by the results, should be made parties (Ibid.; Minnesota v. Northern Securi- ties Co. 184 U. S. 199, 235, 46 L. ed. 499, 515, 22 Sup. Ct. Kep. 308 ; Stevens v. Smith, 61 C. C. A. 624, 126 Fed. 711 ; Weidenfeld v. Northern P. E. Co. 63 C. C. A. 537, 129 Fed. 311 ; Arkansas, Southeastern E. Co. v. Union Sawmill Co. 83 C. C. A. 224, 154 Fed. 304; Golden v. Pruning, 72 Fed. 4) ; either plaintiff or defendant (Ibid.) because it is the aim of courts of equity to do complete justice, and to settle the rights of all parties interested in the subject-matter in one suit, in order that litigation may end, and a multiplicity of suits be avoided (Ibid. ; Union Mill & Min. Co. v. Dangberg, 81 Fed. 86 ; Mackay v. Gabel, 117 Fed. 878 ; Oberlin College v. Blair, 70 Fed. 419). This rule, however, is open to exceptions and relaxation and modification, which sometimes become neces- 223 224 PARTIES. sary to preserve the ends of justice. Smith v. Lee, 11 Fed. 782 ; Perkins v. Hendryx, 127 Fed. 449 ; Watson v. Bonfils, 53 C. C. A. 535, 116 Fed. 159, 160; Cleveland Tel. Co. v. Stone, 105 Fed. 794; Union Mill & Min. Co. v. Dangberg, 81 Fed. 87; McArthur v. Scott, 113 U. S. 392, 28 L. ed. 1031, 5 Sup. Ct. Eep. 652; Shields v. Barrow, 17 How. 139, 15 L. ed. 160; Kuchler v. Greene, 163 Fed. 98. The necessity for relaxation and modification of the rule is more frequently ap- parent in Federal courts of equity, where the enforcement of the rule would often oust the jurisdiction of these courts. El- mendorf v. Taylor, 10 Wheat. 168, 6 L. ed. 294; Mallow v. Hinde, 12 Wheat. 198, 6 L. ed. 600. In applying the rule to the Federal courts, it may be stated that if all the parties in- terested in the suit are within the jurisdiction of the court, then the rule applies, and all the parties materially interested in the subject-matter, or object of the suit, should be brought be- fore the court as plaintiffs or defendants, so that the matter may be settled by one decree. Gregory v. Stetson, 133 U. S. 579, 33 L. ed. 792, 10 Sup. Ct. Eep. 422 ; Consolidated Water Co. V. San Diego, 35 C. C. A. 631, 93 Fed. 851, 852 ; Bland V. Fleeman, 29 Fed. 673 ; Consolidated Water Co. v. Babcock, 76 Fed. 243 ; Eibon v. Chicago, E. I. & P. E. Co. 16 Wall. 450, 21 L. ed. 368; Golden v. Bruning, supra; Hicklin v. Marco, 6 C. C. A. 10, 15 U. S. App. 55, 56 Fed. 553, 554. In stating this general rule it must not be understood that all the parties must have an interest in all the matters involved in the suit, but each party must have an interest in some of the material matters connected with the others. Brown v. Guarantee Trust & S. D. Co. 128 U. S. 403, 412, 32 L. ed. 468, 470, 9 Sup. Ct. Eep. 127 ; Golden v. Bruning, supra ; Finegan v. Bead, 8 Tex. Civ. App. 36, 27 S. W. 261, and cases cited; Jones V. Missouri-Edison Electric Co. 75 C. C. A. 631, 144 Fed. 780 ; Curran v. Campion, 29 C. C. A. 26, 56 U. S. App. 383, 85 Fed. 67-70. If the cause of suit is entire in itself, and the relief sought does not consist in separate, unconnected things, all the defend- ants connected therewith and to be affected thereby should be made parties. It is not necessary that the interest of each de- fendant should extend to the whole subject-matter in litigation. Pacific Live-Stock Co. v. Hanley, 98 Fed. 329 ; Bailey v. Til- PARTIES. 225 linghast, 40 C. C. A. 93, 99 Fed. 801 ; Dastervignes v. United States, 58 C. C. A. 346, 122 Fed. 36 ; Louisville & K K. Co. V. Smith, 63 C. C. A. 1, 128 Fed. 6, 7 ; Wyman v. Bowman, 62 C. C. A. 189, 127 Fed. 264. It is not essential that there should be a community of in- terest between parties defendant, but when a common question of law arising under similar facts is involved between plaintiff and each defendant, equity has jurisdiction. Nor it is neces- sary that there should be a common interest in the claims and rights of action against the defendant, when they all arise from some common cause, and are governed by the same legal rule, and involve similar facts, and the whole matter may be settled in one suit brought by those uniting as plaintiffs. Osborne v. Wisconsin C. R. Co. 43 Fed. 824; Liverpool & L. & G. Ins. Co. v. Clunie, 88 Fed. 160 ; Sang Lung v. Jackson, 85 Fed. 502 ; Pillsbury Washburn Flour Mills Co. v. Eagle, 41 L.R.A. 162, 30 C. 0. A. 386, 58 U. S. App. 490, 86 Fed. 629 ; Scott V. Donald, 165 U. S. 108, 41 L. ed. 648, 17 Sup. Ct. Eep. 262. There will be an illustration of these rules affecting parties, hereafter, when I discuss "the rule of parties when numerous." Thus far I have stated only the general rule of parties in equity. We have seen that the Federal courts were incapaci- tated to proceed against a person not a citizen of and residing in the State and district in which the suit is brought, nor could they proceed in the absence of a Federal question, unless all the parties on one side were citizens of a different State from all the parties on the other side. We have further seen, except in a certain class of cases, the Federal courts were unable to bring in a defendant living beyond the territorial jurisdiction of the court. These conditions, of course, must have seriously affected the general rule of equity as to parties, and confined these courts within very narrow limits, and even within these limits the question of parties became burdensome to litigants. The Federal courts early sought to escape this incapacity imposed upon them, and began to apply the rule that where the real merits of the cause could be determined without essentially affecting the interests of absent persons, though they may be interested, they would dispense with their presence and pro- ceed. Eussell V. Clark, 7 Cranch, 98, 3 L. ed. 281; Cameron V. M'Eoberts, 3 Wheat. 594, 4 L. ed. 467 ; Vattier v. Hiude. S. Eq.— 15 226 PAETIES. 7 Pet. 262, 8 L. ed. 679 ; Payne v. Hook, 7 Wall. 425, 17 L. ed. 260; Hagan v. Walker, 14 How. 36, 14 L. ed. 315. In 1839 Congress embodied these decisions in a statute (sec- tion 737, United States Eevised Statutes, U. S. Comp. Stat. 1901, p. 587), which substantially provided that when there were several defendants in any suit at law or equity, and one or more of them were not inhabitants of, or found in the dis- trict of suit, and do not voluntarily appear, the court could entertain jurisdiction, and proceed with the parties who were properly before it, but the decree was not to affect the absent defendants, and, further, that the nonjoinder of parties who could not be reached by process should not be pleaded in abate- ment. Equity rule 47; Mackay v. Gabel, 117 Ped. 878; Hicklin v. Marco, 6 C. C. A. 10, 15 U. S. App. 55, 56 Fed. 553, 554; Gross v. George W. Scott Mfg. Co. 48 Fed. 39, 40; Barney v. Baltimore, 6 Wall. 287, 18 L. ed. 827 ; Clearwater V. Meredith, 21 How. 489, 16 L. ed. 201. This act related only to persons without the territorial juris- diction of the court, and did not affect cases in which persons having an interest were in reach of the court's process, and whose joinder would not have defeated jurisdiction because of citizenship. Ibid. ; Barney v. Baltimore, 6 Wall. 284, 18 L. ed. 826; ConoUy v. Wells, 33 Fed. 204^214; Shields v. Barrow, 17 How. 130, 15 L. ed. 158; Williams v. Bankhead, 19 Wall. 571, 22 L. ed. 184; Sioux City Terminal R. & Warehouse Co. V. Trust Co. of K A. 27 C. C. A. 73, 49 U. S. App. 523, 82 Fed. 126. In 1842 the Supreme Court promulgated equity rule 47, embodying this act of Congress, and provided for cases where a joinder of parties would oust jurisdiction because of citizen- ship, and it was in substance as follows: In all eases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties, by reason of their being out of the jurisdiction of the court, or otherwise incapable of being made parties, or because their joinder would oust the jurisdiction of the court, the court may at its discretion proceed with the case without making such persons parties ; and it was provided that the decree should be without prejudice to the absent defendants. PAETIES. 227 Appendix; Hicklin v. Marco, 6 C. C. A. 10, 15 U. S. App. 55, 56 Fed. 553 ; Mackay v. Gabel and Hagan v. Walker, supra. About the same time equity rule 22 was promulgated by the Supreme Court, providing that if any persons other than those named in the bill as defendants shall appear to be necessary or proper parties, the bill must aver the reason why they are not made parties, by showing that they are out of the jurisdic- tion, or could not be made parties without ousting jurisdiction as to those before the court. Again, in the same year, equity rule 48 was promulgated as follows: That where parties plaintiff and defendant were numerous, and could not, without manifest inconvenience and oppressive delays, be all brought in before the court, then the court may in its discretion dispense with making all parties, and may proceed with the suit, if there are sufficient parties to represent all adverse interests, but the decree was to be with- out prejudice to absent parties. This, however, was only an affirmance of an old equity rule. Williams v. Bankhead, 19 Wall. 563, 22 L. ed. 184; American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions N"os. 1 & 3, 90 Fed. 606. The above act of Congress, and rules of court having the force and effect of an act of Congress (Ex parte Whitney, 13 Pet. 404, 10 L. ed. 221 ; Burton v. Smith, 13 Pet. 472, 10 L. ed. 252), created well-defined exceptions to the general rule of parties, and I will here succinctly state the effect of these exceptions. First. That persons not inhabitants of or found in the district in which suit is brought need not, though they be proper and necessary parties, be made parties unless they voluntarily appear. Second. That where making parties, though they be neces- sary and proper, would oust the jurisdiction of the court by destroying diversity of citizenship upon which jurisdiction rests, you may omit them. Sioux City Terminal K. & Ware- house Co. V. Trust Co. of K A. supra. Third. When parties are numerous, so that bringing them all in would create delay, inconvenience, and extraordinary ex- pense, you may bring in only so many as will fairly represent the adverse interest to be litigated. Mandeville v. Kiggs, 2 Pet. 228 PASTIES. 487, 7 L. ed. 494 ; American Steel & Wire Co. v. Wire Drawers' & Die Makers' Union Nos. 1 & 3, supra. But see 90 Fed. 606, where parties may be numerous and representatives not found. It will be further seen that neither the statutes nor rule 47 authorizes the court to take jurisdiction in the absence of an in- dispensable party. California v. Southern P. Co. 157 U. S. 250, 251, 39 L. ed. 691, 15 Sup. Ct Kep. 591. CHAPTEE XLI. THEEE CLASSES OF PARTIES. You -will notice in the exceptions as stated, that both the classes of parties known to equity as "proper" and "necessary" may be omitted in the Federal courts. This brings us to the discussion of a third class of parties, which Federal courts of equity have been compelled to recognize, to wit, "indispensable parties." Barney v. Baltimore, 6 Wall. 280, 18 L. ed. 825 ; California v. Southern P. Co. 157 U. S. 249, 250, 39 L. ed. 690, 691, 15 Sup. Ct. Eep. 591 ; Hamilton v. Savannah, F. & W. K. Co. 49 Fed. 418; Caylor v. Cooper, 165 Fed. 758; Mathieson v. Craven, 164 Fed. 471 ; Lake Street Elev. R. Co. v. Ziegler, 39 C. C. A. 431, 99 Fed. 122 ; Tug Eiver Coal & Salt Co. V. Brigel, 30 C. C. A. 415, 58 U. S. App. 320, 86 Fed. 821 ; Mason v. DuUagham, 27 C. C. A. 296, 53 U. S. App. 539, 82 Fed. 689 ; Horn v. Lockhart, 17 Wall. 570, 21 L. ed. 657; Shields v. Barrow, 17 How. 139, 15 L. ed. 160. In Barney v. Baltimore, supra, you will find clear defi- nitions of the three classes of parties recognized by Federal courts of equity. First. There is a class with such relation to the subject- matter that while they may be parties the court may dispense with them if so made, and the plaintiff may or may not make them parties, without making his bill objectionable in either event. These are proper or formal parties. Lake Street Elev. E. Co. V. Ziegler, supra; Donovan v. Campion, 29 C. C. A. 30, 56 TJ. S. App. 388, 85 Fed. 72, 73, 19 Mor. Min. Eep. 247; Kelley v. Boettcher, 29 C. C. A. 14, 56 U. S. App. 563, 85 Fed. 56; Sioux City Terminal E. & Warehouse Co. v. Trust Co. of K A. 27 C. C. A. 73, 49 U. S. App. 523, 82 Fed. 126 ; Brown v. Murray, IST. & Co. 43 Fed. 617 : Hyde v. Vic- toria Land Co. 125 Fed. 973; Wallin v. Eeagan, 171 Fed. 764; White Swan Mines Co. v. Balliet, 134 Fed. 1004; Wood 229 230 THEEE CLASSES OF PAETIES. V. Davis, 18 How. 469, 15 L. ed. 461; Higgins v. Ealtimore & 0. E. Co. 99 Fed. 641. Tbus, when the party is not inter- ested in the controversy between the immediate litigants, but has an interest in the subject-matter which may be convenient- ly settled in the suit, he is a proper party. Ibid. ; Hicklin v. Marco, 6 C. C. A. 10, 15 U. S. App. 55, 56 Fed. 553, 554; Wilson V. Oswego Twp. 151 tJ. S. 64, 38 L. ed. 74, 14 Sup. Ct. Eep. 259. Second. There is another class of parties who, if their inter- est in the subject-matter is called to the attention of the court, it would require them to be brought in, if within the jurisdic- tion, and if bringing them in would not oust the jurisdiction of the court, but who are not so indispensable to the relief asked as would prevent the court from entering a decree in their absence. This class are called "necessary parties." Chad- bourne V. Coe, 2 C. C. A. 327, 10 U. S. App. 78, 51 Fed. 481; Williams v. Bankhead, 19 Wall. 571, 22 L. ed. 184; Donovan V. Campion, 29 C. C. A. 30, 56 U. S. App. 388, 85 Fed. 72, 19 Mor. Min. Kep. 247 ; Kelley v. Boettcher, 29 C. C. A. 14, 56 U. S. App. 363, 85 Fed. 56, 64; Sioux City Terminal E. & Warehouse Co. v. Trust Co. of iN". A. supra; Union Mill & Min. Co. V. Dangberg, 81 Fed. 73, 90; Morrison v. Burnette, 83 C. C. A. 391, 154 Fed. 617; Howe v. Howe & 0. Ball Bear- ing Co. 83 C. C. A. 536, 154 Fed. 828 ; Hunter v. Eobbins, 117 Fed. 921. Thus, where a party is interested in the con- troversy, or entitled to litigate the same question, but a de- cree can be made between the litigants properly before the court determining their interests without affecting his, then he is a necessary party, and may be omitted if his presence would be obnoxious to jurisdiction. Ibid. ; Boatmen's Bank v. Fritz- len, 68 C. C. A. 288, 135 Fed. 658 ; North Carolina Min. Co. V. Westfeldt, 151 Fed. 296 ; McConnell v. Dennis, 82 C. C. A. 501, 153 Fed. 549, 550 ; Eogers v. Penobscot Min. Co. 83 C. C. A. 380, 154 Fed. 610; Adams v. Woburn, 174 Fed. 194; Union Mill & Min. Co. v. Dangberg, 81 Fed. 90; Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Insurance Co. of N. A.' V. Svendsen, 74 Fed. 346. Under this class are placed all parties having a "separable interest," as before explained. This fact is the test in deter- mining whether a party with an interest in the subject-matter THREE CLASSES OF PARTIES, 231 may be omitted, so as to retain jurisdiction in the Federal court. Ibid.; Omaha Hotel Co. v. Wade, 9Y U. S. 20, 24 L. ed. 918. It is proper here to call your attention to the fact that this rule may sometimes be controlled by the complainant, as in cases where contracts are joint and several and the complainant elects to sue jointly, whereby diversity of citizenship is de- stroyed, when he could have sued separately and retained the diversity of citizenship. Hooe v. Jamieson, 166 U. S. 398, 41 L. ed. 1050, 17 Sup. Ct. Eep. 596; Merchant's Cotton Press & Storage Co. v. Insurance Co. of IST. A. 151 U. S. 384, 38 L. ed. 204, 4 Inters. Com. Rep. 499, 14 Sup. Ct. Eep. 367; Peninsular Iron Co. v. Stone, 121 U. S. 631, 30 L. ed. 1020, 7 Sup. Ct. Rep. 1010 ; Raphael v. Trask, 118 Fed. 779. Necessary parties may not only be dismissed to retain juris- diction, but such parties defendant may be dismissed at any time before judgment, if a question of jurisdiction is raised. Equity rule 47 ; Hicklin v. Marco, 6 C. C. A. 10, 15 U. S. App. 55, 56 Fed. 553; Insurance Co. of IST. A. v. Svendsen, supra; Sioux City Terminal R. & Warehouse Co. v. Trust Co. of JST. A. 27 C. C. A. 73, 49 U. S. App. 523, 82 Fed. 124; Claiborne V. Waddell, 50 Fed. 369; North Carolina Min. Co. v. West- feldt, 151 Fed. 296 ; Slater Trust Co. v. Randolph-Macon Coal Co. 166 Fed. 178 ; Davis v. Davis, 89 Fed. 538 ; Horn v. Lock- hart, 17 Wall. 579, 21 L. ed. 660; Donovan v. Campion, 29 C. C. A. 30, 56 U. S. App. 388, 85 Fed. 72, 73, 19 Mor. Min. Rep. 247. And this right to dismiss or dispense with parties is tested by the subject-matter. Scott v. Donald, 165 U. S. 116, 41 L. ed. 654, 17 Sup. Ct. Rep. 262 ; Hamilton v. Sa- vannah, F. & W. R. Co. 49 Fed. 417, 418 ; Pillsbury-Washburn Flour Mills Co. v. Eagle, 41 L.R.A. 162, 30 C. C. A. 386, 58 U. S. App. 490, 86 Fed. 629. Third. There is a class of parties whose interests are so bound up in the subject-matter of litigation and the relief sought, that the court cannot proceed without them, or proceed to a final decree without affecting their interests ; that is, their rights must be unavoidably passed upon in reaching a final de- cree. These are called "indispensable parties," and must be made parties, even though the effect would be to oust the juris- diction of the court. Sioux City Terminal R. & Warehouse 232 THEEE CLASSES OF PABTIES. Co. V. Trust Co. of N. A. supra ; Eogers v. Pencibscot Min. Co. 83 C. C. A. 380, 154 Ted. 607, 610 ; Shields v. Barrow, su- pra; Wallin V. Eeagan, 171 Fed. 763, 764; New Chester Water Co. v. Holly Mfg. Co. 3 C. C. A. 399, 3 U. S. App. 264, 53 Fed. 27; Williams v. Bankhead, 19 Wall. 571, 22 L. ed. 187 ; Chadbourne v. Coe, 2 C. C. A. 327, 10 U. S. App. 78, 51 Fed. 480; Morrison v. Burnette, supra; ONeil v. Walcott Min. Co. 27 L.E.A.(]Sr.S.) 200, 98 C. C. A. 309, 174 Fed. 536 and case cited; Lawrence v. Southern P. Co. 165 Fed. 241; Mathieson v. Craven, 164 Fed. 471; Caylor v. Cooper, 165 Fed. 758 ; Lawrence v. Times Printing Co. 90 Fed. 28. If then the issue arises, that parties who are indispensable have not been made, or it should appear during the trial, the court must either dismiss the case or hold it until they are made parties; and if to make them parties would destroy the diversity of citizenship, and thereby oust the jurisdiction of the court, then the court cannot entertain jurisdiction of that case, and should dismiss at once (Shields v. Barrow, 17 How. 142, 15 L. ed. 161; Christian v. Atlantic & K C. E. Co. 133 U. S. 241, 33 L. ed. 592, 10 Sup. Ct. Eep. 260; Barney v. Baltimore, 6 Wall. 280-291, 18 L. ed. 825-828 ; Swan Land & Cattle Co. v. Frank, 148 U. S. 611, 37 L. ed. 580, 13 Sup. Ct. Eep. 691 ; Elkhart Nat. Bank v. JSTorthwestern Guaranty Loan Co. 30 C. C. A. 632, 58 U. S. App. 83, 87 Fed. 254; Sioux City Termi- nal E. & Warehouse Co. v. Trust Co. of N. A. supra; Greer, M. & Co. V. StoUer, 77 Fed. 5 ; Eaphael v. Trask, 118 Fed. 678 ; Northern Indiana E. Co. v. Michigan C. E. Co. 15 How. 246, 14 L. ed. 680) ; for the court cannot proceed if absent defendants are indispensable. Authorities above; Bland v. Fleeman, 29 Fed. 669 ; Gregory v. Stetson, 133 U. S. 579, 33 L. ed. 792, 10 Sup. Ct. Eep. 422 ; Gray v. Havemeyer, 3 C. C. A. 497, 10 U. S. App. 456, 53 Fed. 178 ; Oberlin College v. Blair, 70 Fed. 419 ; Fourth Nat. Bank v. New Orleans & C. E. Co. 11 Wall. 624, 20 L. ed. 82 ; Hagan v. Walker, 14 How. 29, 14 L. ed. 312. Section 737, U. S. Eev. Stat, U. S. Comp. Stat. 1901, p. 587, and equity rule 47 do not affect this rule of parties. Shields v. Barrow, 17 How. 139, 15 L. ed. 160; Duchesse d'Auxy v. Porter, 41 Fed. 69 ; Barney v. Baltimore, 6 Wall. 285, 18 L. ed. 826 ; Coiron v. MiUaudon, 19 How. 115, 15 L. ed. 575; ConoUy v. Wells, 33 Fed. 205; Gregory v. THREE CLASSES OF PARTIES. 233 Swift, 39 Fed. 708 and cases cited; Collins Mfg. Co. v. Fer- guson, 54 Fed. 721; Gregory v. Stetson, 133 U. S. 587, 33 L. ed. 794, 10 Sup. Ct. Eep. 422. If then you have all the indispensable parties before the court, you may proceed -with- out reference to proper or necessary parties. Tug River Coal & Salt Co. V. Brigel, 30 C. C. A. 415, 58 U. S. App. 320, 86 Fed. 818 ; Smith v. Lee, 77 Fed. 782. It may be stated, then, that in testing the class to which the party belongs, the inquiry should be: Can the interest of the present and absent be separated ? If not, the absent are indis- pensable parties, and the court cannot proceed without them. Ibid. ; Eibon v. Chicago, E. I. & P. E. Co. 16 Wall. 450, 21 L. ed. 368 ; Land Co. v. Elkins, 22 Blatchf. 204, 20 Fed. 545 ; Fourth ISTat. Bank v. New Orleans & C. E. Co. supra. Or it may be asked if the interest of the absent parties will be af- fected by the decree ; if so, they are indispensable. Shields v. Barrow, 17 How. 139, 15 L. ed. 160; Northern Indiana E. Co. v. Michigan C. E. Co. 15 How. 246, 14 L. ed. 680. To illustrate : If no relief can be given without accounting with an absent defendant, then you cannot proceed without him. Fourth ISTat. Bank v. New Orleans & C. E. Co. 11 Wall. 630, 20 L. ed. 83; Bell v. Donohoe, 8 Sawy. 435, 17 Fed. 711 ; Eaphael v. Trask, 118 Fed. 779 ; Edgell v. Felder, 28 C. C. A. 382, 52 U. S. App. 417, 84 Fed. 69 ; Duchesse d'Auxy V. Porter, 41 Fed. 68 ; Perrin v. Lepper, 26 Fed. 545. So in partition among joint owners (Barney v. Baltimore, 6 Wall. 280, 18 L. ed. 825 ; Torrence v. Shedd, 144 U. S. 527, 36 L. ed. 528, 12 Sup. Ct. Eep. 726), and also in case of cancelation of mortgage for fraud, mortgagor is an indispensable party. So stockholders, or parties in possession of real or personal property, are indispensable when the right to property is liti- gated. Ibid. ; Massachusetts & S. Constr. Co. v. Cane Creek Twp. 155 V. S. 285, 39 L. ed. 153, 15 Sup. Ct. Eep. 91; Wilson V. Oswego Twp. 151 U. S. 56, 38 L. ed. 70, 14 Sup. Ct. Eep. 259 ; Scoutt v. Keck, 20 C. C. A. 103, 36 U. S. App. 586, 73 Fed. 904; First Nat. Bank v. Eadford Trust Co. 26 C. C. A. 1, 47 U. S. App. 692, 80 Fed. 569. So a trustee in a mortgage in a suit by bondholders. Ibid. ; Missouri use of Public School Fund v. New Madrid County, 73 Fed. 300. .".07 ; Thayer v. Life Association of America, 112 U. S. 717, 28 L. 234 THREE CLASSES OF PAETIES. ed. 864, 5 Sup. Ct. Eep. 355. See Lake Street Elev. K. Co. v. Ziegler, 39 C. C. A. 431, 99 Ted. 122 ; Smith v. Lee, Y7 Ted. 779. (See "Trustees as Parties.") The pledgee of a chose in action having an equitable inter- est should be made a party, and the pledgor is an indispensable party where the pledge is involved. Hubbard v. Manhattan Trust Co. 30 C. C. A. 520, 57 U. S. App. 730, 87 Ted. 57 ; Smith V. Lee, 77 Ted. 783. So, a bailee, where the possession sued for is held to await the performance of a condition (Wilson v. Oswego Twp. 151 TJ. S. 65, 38 L. ed. 74, 14 Sup. Ct. Eep. 259 ; see Lake Street Elev. E. Co. v. Ziegler, 39 C. C. A. 431, 99 Fed. 122) ; but not a mere depository or stake holder (Scoutt v. Keck, 20 C. C. A. 103, 36 "U. S. App. 586, 73 Fed. 904; Eeeves v. Corning, 51 Fed. 778; Central Trust Co. v. Benedict, 24 C. C. A. 56, 49 U. S. App. 35, 78 Fed. 202; First ISTat. Bank v. Merchants' Bank, 2 L.E.A. 469, 37 Fed. 658 ; but see Perrin v. Lepper, 26 Fed. 545) ; or agent having no personal interest (Overman Wheel Co. v. Pope Mfg. Co. 46 Fed. 577). In a suit to cancel a note, by the maker against the holder, an endorsee for collection is not a necessary party. New York Constr. Co. v. Simon, 53 Fed. 4; Wood v. Davis, 18 How. 469, 15 L. ed. 461. So, in foreclosure of a mortgage, the mortgagor and mort- gagee are indispensable (Davis v. Mercantile Trust Co. 152 U. S. 594, 38 L. ed. 565, 14 Sup. Ct. Eep. 693; Coiron v. Mil- laudon and Tug Eiver Coal & Salt Co. v. Brigel, supra) ; and subsequent judgment and lien creditors are indispensable, if relief goes beyond simple foreclosure, and their interests would be affected by the decree (Ibid.; Wabash, St. L. & P. E. Co. V. Central Trust Co. 23 Fed. 514 ; Howard v. Milwaukee & St. P. E. Co. 101 U. S. 845, 849, 25 L. ed. 1083-1085). So a corporation is indispensable in transfer of stock on the books (Kendig v. Dean, 97 U. S. 425, 24 L. ed. 1062 ; Crump v. Thurber, 115 U. S. 56, 29 L. ed. 328, 5 Sup. Ct. Eep. 1154; but see Williamson v. Krohn, 13 C. C. A. 668, 31 U. S. App. 325, 66 Fed. 661) ; or when corporate rights are affected (Swan Land & Cattle Co. v. Frank, 148 U. S. 611, 37 L. ed. 580, 13 Sup. Ct. Eep. 691) ; or when creditor sues a part of the stock- THEEE CLASSES OF PARTIES. 235 holders of a corporation (Hale v. CofBn, 114 Fed. 573, 148 U. S. 610—611). So are all partners in an action to vacate part- nership transaction. Bell v. Donohue, 8 Sawj. 435, 17 Fed. 711. So all heirs in suit for fraudulent conversion by an ad- ministrator. Bland v. Fleeman, 29 Fed. 672. So adverse claimants in suits for conversion of notes. Gregory v. Swift, 39 Fed. 712. The bill must set forth indispensable parties under all con- ditions, and it must set forth "necessary^' parties, if within the jurisdiction, or it is objectionable, which may be reached by demurrer, plea, or answer. If, however, the parties set forth are not indispensable, that is, if their interest in the cause of action, is separable, and they are not within reach of the court's process, the court may proceed without them. Or if they be not indispensable, and within reach of the court's process, the court should bring them in, unless it would oust jurisdiction. Equity rule 22 ; Sioux City Terminal E. & Warehouse Co. v. Trust Co. of IST. A. 27 C. C. A. 73, 49 U. S. App. 523, 82 Fed. 124 ; Ins. Co. of K A. v. Svendsen, 74 Fed. 346. I will here call your attention to the fact that after jurisdic- tion has attached with proper parties before the court, then parties who if originally made parties would be dismissed to protect jurisdiction may on their ovra petition come into the case without affecting the jurisdiction of the court. Tug River Coal & Salt Co. v. Brigel, 14 C. C. A. 577, 31 U. S. App. 665, 67 Fed. 629 ; Hardenbergh v. Eay, 151 U. S. 112, 38 L. ed. 93, 14 Sup. Ct. Rep. 305 ; Equity Rule 47 ; U. S. Rev. Stat. 737-738, TJ. S. Comp. Stat. 1901, p. 587; Sioux City Ter- minal R. & Warehouse Co. v. Trust Co. of N. A. supra, and cases cited; Society of Shakers v. Watson, 15 C. C. A. 632, 37 U. S. App. 185, 68 Fed. 736. This exception is based on the fact that such petition would only be ancillary to the main suit, in which diversity of citizenship is not necessary to give jurisdiction, as will be seen hereafter. Unknown Parties. When the bill sets forth that the parties are unknown, the cause must proceed in the absence of a denial by answer. 236 THEEE CLASSES OF PAETIES., Equity rule 48; Alger v. Anderson, 78 Ted. 729. See Tug River Coal & Salt Co. v. Brigel, supra, where the allegation that parties are unknown defeated jurisdiction. From the discussion of partiefe so far to a bill, the following rules may be deduced and considered in framing a bill: First. You may join all proper parties if you desire to do so. Second. You must join all necessary parties if in the juris- diction of the court, unless fatal to jurisdiction. Third. You must join all indispensable parties without any exception. It is proper to here call your attention again to section 8 of act of 1875, providing that in a certain class of cases, to wit, where suit is commenced to enforce a lien or claim, legal or equitable, or to remove any cloud or encumbrance on the title to real estate or personal property within the district where the suit was brought, the defendant or defendants not being inhabitants of or found within the district of said suit could be brought in by a "warning order," or by publication, the de- cree, however, only to affect the property, no personal judg- ment being allowed. In this character of cases you may now bring in a "necessary" or indispensable party who is beyond the territorial limits of the court's jurisdiction. Massachusetts Mut. L. Ins. Co. V. Chicago & A. E. Co. 13 Fed. 857. The "necessary parties," being brought within the reach of process, though beyond the territorial jurisdiction of the court, by this act, should be made parties, as I think the act takes the character of cases mentioned therein out of the rule that "necessary" parties beyond the territorial jurisdiction of the court may be dispensed with. CHAPTEE XLII. WHEN PARTIES ARE NUMEROUS. Under the third exception to the general rule of parties, as stated in equity rule 48, referring to the condition where par- ties are numerous, it is submitted: That when parties are numerous, or if the question be one of general interest, and only a few may sue for the many, or when the parties from a voluntary association fairly represent the interests of all, the court will permit the few to sue for the many. Watson v. Na- tional Life & Trust Co. 88 C. C. A. 380, 162 Fed. 7-12; United States v. Old Settlers, 148 U. S. 480, 37 L. ed. 529, 13 Sup. Ct. Eep. 650; Barnes v. Berry, 156 Fed. 73; American Steel & Wire Co. v. Wire Drawers' & Die Makers' Union Nos. 1 & 3, 90 Fed. 606 ; Society of Shakers v. Watson, 15 C. C. A. 632, 37 U. S. App. 141; 68 Fed. 730; McArthur v. Scott, 113 U. S. 340, 28 L. ed. 1015, 5 Sup. Ct. Eep. 652; Ayres v. Carver, 17 How. 591, 15 L. ed. 179 ; Smith v. Swormstedt, 16 How. 302, 14 L. ed. 948. The interest, however, must be in the subject-matter. Scott V. Donald, 165 U. S. 108, 41 L. ed. 648, 17 Sup. Ct. Eep. 262 ; United States v. Coal Dealers' Asso. 85 Fed. 252. This rule is a very convenient one, because where parties are numerous their rights and liabilities are subject to change and fluctuations, by death and assignment, which would greatly im- pede the orderly progress of a suit under equity rules, which are provided only for reaching an issue, and preparing an equity case for hearing on its merits. For these reasons courts of equity have sought to eliminate the probability of these in- conveniences. Mandeville v. Eiggs, 2 Pet. 482, 7 L. ed. 493. Mr. Justice Story laid down many years ago the rules gov- erning parties when numerous, as follows: First. When the object of the bill and the questions arising are of common or general interest to all. 237 238 WHEN PARTIES AEE NUMEROUS. Second. In cases where parties have formed a voluntary association for public or private purpose, and those who sue fairly represent the interest of all. Third. Where parties are very numerous, and, though there may have been separate and distinct interests, yet it is impos- sible to bring them before the court without manifestly imped- ing the cause and ends of justice ; but in those cases, where the rights and interests are distinct and separate, the rule would not apply unless the bill discloses a common interest or right sought to be established, enforced, or protected. Bailey v. Tillinghast, 40 C. C. A. 93, 99 Fed. 801. Though the interests be separate, the suit must be for an object common to all, or against numer- ous parties representing a common interest. The few selected as parties must fairly represent the inter- ests of all, so that a full and honest trial may be had. Smith V. Swormstedt, supra. Thus, a creditor may sue for the bene- fit of all having like interests. Lastly, in considering the rule of parties, much depends on the prayer of the bill. The ques- tion is. Who are to be directly affected by the prayer, or have to act under it? Equity rule 54 provides that when no account, payment, con- veyance, or other direct relief is sought against a party to a suit not being an infant, the party need not appear unless re- quired to do so by the prayer of the bill. The plain meaning of the rule is that no one should be made plaintiff who has no interest in the relief sought, and no one defendant from whom nothing is demanded. A person may be interested in the subject-matter, but if his rights are not put in issue so that some relief must be asked in your prayer, it is not necessary to make him a party. Payne v. Hook, Y Wall. 432, 19 L. ed. 262; Smith v. Lee, 77 Fed. 780; Union MiU & Min. Co. v. Dangberg, 81 Fed. 89, 90. CHAPTEE XLIII. PARTIES IN SPECIAL CASES. Married Women as Parties. In suits by married women, the husband must join in all cases, unless their interests are antagonistic, or he refuses to join, then he must be made defendant; and in such cases the wife must sue by next friend. Equity rule 8Y; Douglas v. Butler, 6 Fed. 228; Taylor v. Holmes, 14 Fed. 498; United States V. Pratt Coal & Coke Co. 18 Fed. 708. Thus rule must be observed, as Federal courts will not follow State practice or State statutes creating a different rule in equity suits. Wills V. Pauly, 51 Fed. 257; United States v. Pratt Coal & Coke Co. supra. But they do follow State practice on the law side. Texas & P. K. Co. v. Humble, 38 C. C. A. 502, 97 Fed. 837 ; Morning Journal Asso. v. Smith, 4 C. C. A. 8, 1 U. S. App. 270, 56 Fed. 141 ; Mehrhoff v. Mehrhoff, 26 Fed. 13. Joint and Several Parties. Equity rule 51 provides that in all cases in which the plain- tiff has a joint and several demand against several persons, either as principal or surety, it shall not be necessary to bring before the court all persons liable thereto, but the plaintiff may proceed against one or more of the parties severally liable, but plaintiffs must join as a general rule. Stockholders as Parties. Equity rule 94 provides that every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may be properly asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, and that the suit 239 240 STOCKHOLDEES AS PAETIES. is not a collusive one to confer on a court of the United States jurisdiction of a case of ■which it otherwise would not have cognizance. It must also set forth with particularity the effort to secure by plaintiff such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the cause of his failure to obtain such ac- tion. (Jan., 1882.) The rule was promulgated to give effect to the decision in Hawes v. Oakland (Hawes v. Contra Costa Water Co.) 104 TJ. S. 450, 26 L. ed. 827. It is self-explana- tory and states under what conditions stockholders may become parties plaintiff in a bill in equity, and the conditions are im- perative. Venner v. Great Northern R. Co. 153 Ted. 411 and cases cited ; Delaware & H. Co. v. Albany & S. E. Co. 213 U. S. 435, 53 L. ed. 862, 29 Sup. Ct. Eep. 540 ; Poor v. Iowa C. E. Co. 155 Fed. 226; Mills v. Chicago, 127 Fed. 732; Waller V. Color, 125 Fed. 821 ; Gage v. Eiverside Trust Co. 156 Fed. 1006 ; Doctor v. Harrington, 196 TJ. S. 579, 49 L. ed. 606, 25 Sup. Ct. Eep. 355 ; Foster v. Mansfield, C. & L. M. E. Co. 36 Fed. 628; Corbus v. Alaska Treadwell Gold Min. Co. 187 U. S. 459-463, 47 L. ed. 258, 259, 23 Sup. Ct. Eep. 157. Failure to comply with rule does not raise a question of jurisdiction, but of authority of plaintiff to maintain the bill. Illinois C. E. Co. v. Adams, 180 U. S. 35, 45 L. ed. 412, 21 Sup. Ct. Eep. 251. In Bill V. Western U. Teleg. Co. 16 Fed. 14, it was de- clared that the individual stockholder could only maintain suit against the corporation, when it was made to appear that he had exhausted all means to obtain redress in the corporation itself, and that he has made proper effort to get other stock- holders to take action. Ibid. ; Macon, D. & S. E. Co. v. Shail- er, 72 C. C. A. 631, 141 Fed. 585; Edwards v. Mercantile Trust Co. 124 Fed. 381, 382; Taylor v. Decatur Mineral & Land Co. 112 Fed. 451; Squair v. Lookout Mountain Co. 42 Fed. 732 ; Quincy v. Steel, 120 TJ. S. 248, 30 L. ed. 626, 7 Sup. Ct. Eep. 520 ; Detroit v. Dean, 106 TJ. S. 537-542, 27 L. ed. 300-302, 1 Sup. Ct. Eep. 500 ; Porter v. Sabin, 149 TJ. S. 478, 37 L. ed. 818, 13 Sup. Ct. Eep. 1008 ; Savings & T. Co. V. Bear "Valley Irrig. Co. 112 Fed. 704 ; Metcalf v. Ameri- can School Furniture Co. 108 Fed. 911 ; Elkins v. Chicago, 119 Fed. 957; Bimber v. Calivada Colonization Co. 110 Fed. 58. STOCKHOLDERS AS PARTIES. 241 See Kessler & Co. v. Ensley Co. 129 Fed. 397, where majority approved the refusal of the company to act, and it was held that the minority stock could not sue; nor when directors act under the advice of an attorney. Hendrickson v. Bradley, 29 C. C. A. 303, 55 U. S. App. 715, 85 Fed. 508. An individual stockholder bringing suit must show that the rights of the corporation are involved, and the corporation should be made a party to the suit, or the bill is demurrable. Porter v. Sabin, supra; Eldred v. American Palace Car Co. 44 C. C. A. 554, 105 Fed. 458 ; Davenport v. Dows, 18 Wall. 626, 21 L. ed. 938; Groel v. United Electric Co. 132 Fed. 252; Mc- Mullen V. Ritchie, 64 Fed. 262. In Hawes v. Oakland (Hawes v. Contra Costa Water Co.) 104 TJ. S. 450-462, 26 L. ed. 827-832, it is held that a stock- holder must show: First. Some action done or threatened, by the directors or trustees which is beyond the authority con- ferred by the charter or the law; or a fraudulent transaction done or threatened among themselves, or with some other par- ties or the shareholders, which will result in injury to the company, or the other shareholders; or that a majority of the shareholders are illegally pursuing in the name of the com- pany a course which is violating the rights of other share- holders, which can only be redressed in a court of equity, and under any of these grounds it must further be alleged that the complainant made an earnest effort to obtain redress from the directors and shareholders of the company; that he owned the stock when the transactions of which he complained oc- curred, or it was thereafter transferred to him by operatioti of law. Ibid. ; Ziegler v. Lake Street Elev. R. Co. 22 C. C. A. 465, 46 U. S. App. 242, 76 Fed. 663 ; Clarke v. Eastern Bldg. & L. Asso. 89 Fed. 7S1 ; Consolidated Water Co. v. San Diego, 89 Fed. 272 ; Hutton v. Joseph Bancroft & Sons Co. 83 Fed. 17. As to allegation of ownership, see Robinson v. West Vir- ginia Loan Co. 90 Fed. 772, and cases cited. These conditions setting up the right of a stockholder to sue are not jurisdictional, but go simply to plaintiff's right to maintain the bill (Illinois C. R. Co. v. Adams, 180 U. S. 34—35, 45 L. ed. 413, 21 Sup. Ct. Rep. 251), and should be complied with under equity rule 94. Ziegler v. Lake Street Elev. R. Co. supra; Eldred v. American Palace Car Co. 99 S. Eq.— 16. 242 STOCKHOLDEHS AS PAETIES. Fed. 168; Church v. Citizens' Street E. Co. 78 Fed. 526; Eyan v. Williams, 100 Fed. 172. There must be no collusion. Equity rule 94; Kemmerer v. Haggerty, 139 Fed. 693; Groel v. United Electric Co. 132 Fed. 252 ; Detroit v. Dean, 106 U. S. 541, 27 L. ed. 302, 1 Sup. Ct. Eep. 500; Farmington v. Pillsbury, 114 U. S. 146, 29 L. ed. 117, 5 Sup. Ct. Eep. 807. See Mills v. Chicago, 127 Fed. 732 ; Consumers Gas Co. v. Quinby, 70 C. C. A. 220, 137 Fed. 882 ; ISTew Albany Waterworks v. Louisville Bkg. Co. 58 C. C. A. 576, 122 Fed. 776. The suit must show amount of stock held by the stockholder, though suing in behalf of others. Harvey v. Ealeigh & G. E. Co. 89 Fed. 115. As to the relation of the stockholders to the corporation, and when minority may sue, see Jones v. Missouri-Edison Electric Co. 75 C. C. A. 631, 144 Fed. 765 ; Foster v. Bank of Abingdon, 88 Fed. 606, 607. The rules above given do not apply when a suit is brought by depositors against directors who have wrecked the bank. Fos- ter V. Bank of Abingdon, 88 Fed. 604-607. Nor when the directors are charged with wrecking the bank (Ibid. ; Excelsior Pebble Phosphate Co. v. Brown, 20 C. C. A. 428, 42 U. S. App. 55, 74 Fed. 323 ; De ITeufville v. New York & N. E. Co. . 26 C. C. A. 306, 51 U. S. App. 374, 81 Fed. 10 ; Eogers v. Nashville, C. & St. L. E. Co. 33 C. C. A. 517, 62 U. S. App. 49, 697, 91 Fed. 299) ; or with being guilty of fraudulent acts causing irreparable injury to corporate interests (Foster v. Mansfield, C. & L. M. E. Co. 36 Fed. 628 ; McKee v. Chau- taqua Assembly, 124 Fed. 811). Nor when the demand would be useless. Zeigler.v. Lake Street Elev. E. Co. 22 C. C. A. 465, 46 U. S. App. 242, 76 Fed. 662 ; Weir v. Bay State Gas Co. 91 Fed. 940 ; Universal Sav. & T. Co. v. Stoneburner, 51 C. C. A. 208, 113 Fed. 255 ; Watson v. United States Sugar Eefinery, 15 C. C. A. 662, 34 U. S. App. 81, 68 Fed. 769-772 ; Lamm v. Parrot Silver & Copper Co. Ill Fed. 241 ; Mumford v. Ecuador Development Co. Ill Fed. 639 ; Berwind v. Ca- nadian P. E. Co. 98 Fed. 158. Nor when the bill seeks a dis- solution of the corporation and a distribution of its assets. Tay- lor V. Decatur Mineral & Land Co. 112 Fed. 449. Nor when the jurisdiction depends on a Federal question. Lindsley v. Natural Carbonic Gas Co. 162 Fed. 957 ; Kimball v. Cedar STOCKHOLDEES AS PABTIES. 243 Eapids, 99 Fed. 130; Dickinson v. Consolidated Traction Co. 114 Fed. 241. Nor when the cause of action antedates the right as stockholder. Eogers v. Penobscot Min. Co. 154 Fed. 606. The provision requiring a bill to be sworn to does not apply to cases removed. Maeder v. Buffalo Bill's Wild West Co. 132 Fed. 280. In a suit by a creditor to enforce the individual liability of stockholders, the corporation and stockholders must be made parties. Elkhart Nat. Bank v. Northwestern Guaranty Loan Co. 30 C. C. A. 632, 58 U. S. App. 83, 87 Fed. 252, 84 Fed. 76 ; Continental Adjustment Co. v. Cook, 152 Fed. 652 ; Fur- nald V. Glenn, 12 C. C. A. 27, 26 U. S. App. 202, 64 Fed. 49 ; Sidway v. Missouri Land & Live Stock Co. 116 Fed. 382. Of national banlvs, see Williamson v. American Bank, 109 Fed. 36. Stockholders need not be made parties to adjust the lia- bilities of the corporation. A bill asking a receiver and seeking to make the stockholders liable must make the corporation a party. Elkhart Nat. Bank V. Northwestern Guaranty Loan Co. 84 Fed. 76, 87 Fed. 252. A receiver can bring an action against all stockholders, though he has a separate suit against each. Bausman v. Denny, 73 Fed. 70, but see Hale v. AUinson, 188 U. S. 56, 47 L. ed. 380, 23 Sup. Ct. Eep. 244, and Fidelity Trust & S. D. Co. v. Archer, 179 Fed. 32. The corporation need not be a party to a suit against a stockholder to try title to stock. Higgins v. Baltimore & O. E. Co. 99 Fed. 640. And when suit is brought by the corpora- tion to cancel stock the trustee need not be made a party. Lake Street Elev. E. Co. v. Ziegler, 39 C. C. A. 431, 99 Fed. 114. Partnership — Parties. As a general rule, partnership rights and liabilities cannot be determined unless all the partners are parties to the bill (Bill V. Donohoe, 17 Fed. 711; Eaphael v. Trask, 118 Fed. 779, 194 U. S. 277, 48 L. ed. 978, 24 Sup. Ct. Eep. 647), and they are indispensable parties. Ibid. But sometimes one member of a partnership may desire to file a bill in which the others refuse to join, in which case those who refuse to join must be made defendants. Edgell v. Felder, 28 C. C. A. 382, 52 U. S. App. 417, 84 Fed. 69. 244 EEPEESENTATIVE PASTIES. Sometimes, also, it occurs that because of the citizenship of one or more of the partners the jurisdiction of the Federal court would be ousted, and, being indispensable parties, they cannot be dismissed so as to give jurisdiction. (See "Citizen- ship of Partners.") Euble v. Hyde, 1 McCrary, 513, 3 Fed. 331; Ealya Market Co. v. Armour & Co. 102 Fed. 532-533; see Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 458, 44 L. ed. 845, 20 Sup. Ct Eep. 690; see, also. Hall v. Lanning, 91 U. S. 160, 23 L. ed. 271. I think this is the true rule, but in Smith v. Consumers Cotton Oil Co. 30 C. C. A. 103, 52 TJ. S. App. 603, 86 Fed. 359, it was held that in an action against a firm having a member whose presence would oust the jurisdiction of the Federal court, the court could dis- miss as to him. This ruling seems to be based on section 737 of the United States Revised Statutes, U. S. Comp. Stat 1901, p. 587, authorizing dismissal of such defendants who are neither inhabitants of nor found in the district, but this section has never before been applied to nonresident defendants who are indispensable parties, as in partnerships. Where a nonresident partner dies it is held that his repre- sentatives are not indispensable. Perkins v. Hendryx, 127 Fed. 448. Representative Parties. I will now briefly discuss parties who appear in the record, not in their own, but in the interest of others, such as trustees, executors and administrators, and guardians ad literrij and re- ceivers. Guardians ad Litem. Equity rule 87 provides that guardians ad litem to defend a suit may be appointed by the court, or by a judge thereof, for infants or other persons under guardianship, or otherwise in- capacitated for suing for themselves; and the same character of persons may sue by guardian, if any, or next friend, sub- ject to such orders as the court may direct for the protection of these persons. Bank of United States v. Ritchie, 8 Pet. 144, 8 L. ed. 897 ; Woolridge v. McKenna, 8 Fed. 600. See in Re EEPEESENTATIVE PARTIES. 245 Moore, 209 U. S. 496-497, 52 L. ed. 907, 28 Sup. Ct. Eep. 585, 706, 14 A. & E. Ann. Cas. 1164. Executors and Administrators as Parties. In discussing executors and administrators as parties in a Federal court, I will briefly speak of the jurisdiction of the Federal courts in probate matters. The determination of the jurisdiction in cases of this char- acter, as said in Jordan v. Taylor, 98 Fed. 645, is not free from difficulty. There has been conflict of opinion as to how far the Federal courts can interfere with the properties and rights of parties in an estate in due course of administration under the probate laws of the respective States. Farrell v. O'Brien (O'Callaghan v. O'Brien), 199 U. S. 89, 50 L. ed. 101, 25 Sup. CL Rep. 727; Underground Electric R. Co. v. Owsley, 169 Fed. 671, 99 C. C. A. 500, 176 Fed; 26; Thiel Detective Service Co. v. McClure, 130 Fed. 55 ; Byers v. Mc- Auley, 149 U. S. 608, 37 L. ed. 867, 13 Sup. Ct. Rep. 906 ; Moore v. Fidelity Trust Co. 70 C. C. A. 663, 138 Fed. 1; Yonley v. Lavender, 21 Wall. 279, 22 L. ed. 537; Re Foley, 80 Fed. 949; Simmons v. Saul, 138 U. S. 439-460, 34 L. ed. 1054-1063, 11 Sup. Ct. Rep. 369; Hale v. Coffin, 114 Fed. 575; Bedford Quarries Co. v. Tomlinson, 36 C. C. A. 272, 95 Fed. 210 ; Lant v. Manley, 71 Fed. 7. There is one prin- ciple connected with the subject which has been firmly estab- lished, and that is, when property is in possession of the pro- bate court it cannot be taken or disturbed by another court. Ibid. ; Byers v. McAuley, 149 U. S. 615, 37 L. ed. 871, 13 Sup. Ct. Rep. 906 ; Yonley v. Lavender, 21 Wall. 284, 22 L. ed. 539 ; Jordan v. Taylor, 98 Fed. 646 ; Hale v. Coffin, 114 Fed. 575; McPherson v. Mississippi Valley Trust Co. 58 C. C. A. 455, 122 Fed. 367, 368 ; Hale v. Tyler, 115 Fed. 835, and cases cited. An administrator appointed by a State court is an officer of that court, and his possession of the assets of the estate is the possession of the court. Byers v. McAuley, 149 IT. S. 615, 37 L. ed. 871, 13 Sup. Ct. Rep. 906; Williams v. Benedict, 8 How. 112, 12 L. ed. 1008 ; McPherson v. Missis- sippi Valley Trust Co. 58 C. C. A. 455, 122 Fed. 367, 368. The States have conclusive control over estates of deceased per- 246. EXECUTOES AND ADMINISTRATORS AS PARTIES. sons in their limits. Ibid. ; Yonley v. Lavender, supra ; Under- ground Electric E. Co. v. Owsley, 169 Fed. 671 ; Kittredge v. Eaee, 92 U. S. 121, 23 L. ed. 490 ; Ball v. Tompkins, 41 Fed. 490; Lant v. Manley, 71 Fed. 12; Underground Electric R. Co. V. Owsley, 99 C. C. 'A. 500, 176 Fed. 26. Thus, a non- resident creditor having judgment in a Federal court against a deceased person whose estate is being administered in a pro- bate court of a State, cannot by process reach such estate (Yon- ley V. Lavender, supra ; Perry v. Bank of Cape Fear, 20 Fed. 775 ; Ee Foley, 76 Fed. 395, 80 Fed. 950, 951 ; Ball v. Tomp- kins, 41 Fed. 490; Hale v. Tyler, 115 Fed. 835) ; nor by bill to compel administrators to satisfy debt (Bedford Quarries Co. V. TomlinSon, supra; McPherson v. Mississippi Valley Trust Co. 58 C. C. A. 455, 122 Fed. 367). Nor will a bill lie in equity to dispossess administrators of control over decedent's estate. Lant v. Manley, 71 Fed. 12; Ee Foley, 80 Fed. 951, and cases cited. Nor can jurisdiction be obtained by removal. Wahl V. Franz, 49 L.E.A. 62, 40 C. C. A. 638, 100 Fed. 680; Ee Aspinwall, 83 Fed. 852; Copeland v. Bruning, 72 Fed. 8. Nor can a Federal court probate a will (Ee Foley, 80 Fed. 951; Ee Cilley, 58 Fed. 984; Tarver v. Tarver, 9 Pet. 174-180, 9 L. ed. 91-93; Fouvergne v. Municipality No. 2, 18 How. 470, 15 L. ed. 399 ; Ball v. Tompkins, 41 Fed. 486 ; Hale V. Coffin, 114 Fed. 574 ; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006, 3 Sup. Ct. Eep. 327, discussed in Wahl v. Franz, 49 L.E.A. 62, 40 C. C. A. 638, 100 Fed. 683-684. See Cilley v. Patten, 62 Fed. 498) ; or determine question of testamentum vel non (Copeland v. Bruning, 72 Fed. 8; Oakley V. Taylor, 64 Fed. 245; Eeed v. Eeed, 31 Fed. 53) ; but may entertain contest after probate (Eiehardson v. Green, 9 C. 0. A. 565, 15 U. S. App. 488, 61 Fed. 423 ; Sawyer v. White, 58 C. C. A. 587, 122 Fed. 223-227 ; Wart v. Wart, 117 Fed. 766. See Underground Electric E. Co. v. Owsley, 169 Fed, 671) ; or set aside the probate. Carrau v. O'Calligan, 60 C. C. A. 347, 125 Fed. 657; Farrell v. O'Brien (O'Callaghan v. O'Brien), 199 U. S. 103, 50 L. ed. 108, 25 Sup. Ct. Eep. 727; Broderick's Will (Kieley v. McGlynn), 21 Wall. 509-517, 22 L. ed. 602-604; Briggs v. Stroud, 5'8 Fed. 720; Simmons v. Saul, 138 U. S. 450-459, 34- L. ed. 1059-1062, 11 Sup. Ct. Eep. 369 ; Garrett v. Boling, 15 C. C. A. 209, 37 U. S. App. EXECUTOES AND ADMINISTEATOES AS PAETIES. 247 42, 68 Fed. 56. Nor can a Federal court administer an estate of a deceased person, either by original proceeding or removal (Clark V. Guy, 114 Fed. 783; Byers v. McAuley, 149 U. S. 608, 37 L. ed. 867, 13 Sup. Ct. Eep. 906 ; Ke Foley, 80 Fed. 950; Copeland v. Bruning, supra) ; but the rule of noninter- ference is not applicable to property in hands of Federal court when owner dies (Rio Grande R. Co. v. Gomila [Rio Grande R. Co. V. Vinet], 132 U. S. 478, 33 L. ed. 400, 10 Sup. Ct. Rep. 155; Hale v. Tyler, 115 Fed. 835). We thus see that the prohibition of any interference by Fed- eral courts in probate matters, and in matters where the local courts have taken jurisdiction, rests upon the principle of non- interference with the res when State courts have assumed juris- diction, as well as on the fact that Congress has not conferred on the circuit courts any probate powers. When, however, a suit can be brought originally against an executor or administra- tor in the courts of the State, with which the Federal courts have concurrent jurisdiction, then the suit may be brought in the Federal court, if the grounds of jurisdiction otherwise exist. Farrell v. O'Brien (O'Callaghan v. O'Brien), 199 F. S. 110, 50 L. ed. Ill, 25 Sup. Ct. Rep. 727; IngersoU v. Coram, 132 Fed. 172, 127 Fed. 418; Brun v. Mann, 12 L.R.A.(]Sr.S.) 154, 80 C. C. A. 513, 151 Fed. 145; Wart v. Wart, 117 Fed. 766; Williams v. Crabb, 59 L.R.A. 425, 54 C. C. A. 213, 117 Fed. 193 ; Richardson v. Green, 9 C. C. A. 565, 15 U. S. App. 488, 61 Fed. 423 ; Eddy v. Eddy, 93 C. C. A. 586, 168 Fed. 598 ; Lawrence v. Nelson, 143 IT. S. 215, 36 L. ed. 130, 12 Sup. Ct. Rep. 440 ; Davis v. Davis, 89 Fed. 537 ; see Underground Elec- tric R. Co. V. Owsley, 99 ,C. C. A. 500, 176 Fed. 26. But a suit cannot be instituted in a Federal court in a State other than the State in which the estate is being administered, against an executor. Lawrence v. Southern P. R. Co. 177 Fed. 547. If the administration has been completed, and the property has passed out of the control of the probate courts, the Federal courts can avail themselves of their jurisdiction in law or equity, in reference thereto. Hale v. Coffin, 114 Fed. 575 ; Herron v. Comstock, 71 C. 0. A. 466, 139 Fed. 371, 378; Hayes v. Pratt, 147 U. S. 570, 37 L. ed. 284, 13 Sup. Ct. Rep. 503 ; Spencer v. Watkins, 94 C. C. A. 659, 169 Fed. 379 ; or when State court has not taken possession of res. Hale v. Ty- 248 EXECUTOES AND ADMINISTRATOES AS PABTIES. ler, ]15 Fed. 838, 839. Or when the suit is one of acknowl- edged equity jurisdiction, as, when specific enforcement of a contract is brought against the heirs and administrator of a de- ceased person, — a Federal court of equity will enforce it, though the contract relates to property of an estate in process of ad- ministration. Spencer v. Watkins, supra; Davis v. Davis, 89 Fed. 537; and authorities. Spencer v. Watkins, 94 C. C. A. 659, 169 Fed. 379. So, an heir may establish his right to a distributive share of the estate (Byers v. McAuley, 149 U. S. 620, 37 L. ed. 873, 13 Sup. Ct. Eep. 906; Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; O'Callahan v. O'Brien, 116 Fed. 934; Kich v. Bray, 2 L.E.A. 225, 37 Fed. 273), or the possession of real estate devised by will (Harrison v. Eowan, 4 Wash. G. C. 202, Fed. Gas. 'No. 6,143). So, a creditor may establish in a Fed- eral court a debt against an estate (Fondley v. Lavender, 21 Wall. 276, 22 L. ed. 536; Hess v. Eeynolds, 113 U. S. 73, 28 L. ed. 927, 5 Sup. Gt. Eep. 377 ; Hale v. Goffin, 114 Fed. 568; see Farmers' Bank v. Wright, 158 Fed. 841; Bedford Quarries Co. v. Thomlinson, 36 G. G. A. 272, 95 Fed. 208; Johnson v. Waters, 111 U. S. 668-675, 28 L. ed. 556-559, 4 Sup. Gt. Eep. 619 ; Gentral Nat. Bank v. Fitzgerald, 94 Fed. 16 ; Payne v. Hook, 7 Wall. 431, 19 L. ed. 262) ; or a lien on the undivided shares (IngersoU v. Goram, 127 Fed. 418 ; Con- tinental Nat Bank v. Heilman, 81 Fed. 42—43 ; see Schurmeier V. Connecticut Mut L. Ins. Go. 60 G. G. A. 51, 124 Fed. 865, s. c. 69 G. G. A. 22, 137 Fed. 42) ; but the classification of claims by probate law binds the Federal courts (Dodd v. Ghiselin, 27 Fed. 407). Or a suit after final account rendered may be brought against the administrator or executor who holds in trust. Colt v. Colt, 111 U. S. 566, 28 L. ed. 520, 4 Sup. Ct. Eep. 553. Or a court of equity may decree a discovery and accounting against an executor. Plume & A. Mfg. Go. v. Baldwin, 87 Fed. 785 ; Pulliam v. Pulliam, 10 Fed. 23 ; Davis V. Davis, 89 Fed. 537 ; Eddy v. Eddy, 93 G. G. A. 586, 168 Fed. 591. So, a bill in equity will lie, in the enforcement of a trust, to compel an administrator to account for and distribute assets wrongfully withheld (Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Johnson v. Waters, 111 U. S. 640, 28 L. ed. 547, 4 Sup. EXECUTOBS AND ADMINISTRATORS AS PARTIES. 2 JO Gt. Eep. 619 ; Hayes v. Pratt, 147 U. S. 570, 37 L. ed. 284, 13 Sup. Ct. Eep. 503) ; but not to disturb the possession of an administrator rightfully holding the assets (Eyers v. Mc- Auley, 149 U. S. 608, 37 L. ed. 867, 13 Sup. Ct. Eep. 906). When praying an account against executors, all must be joined if more than one (Howth v. Owens, 29 Fed. 724; Conolly v. Wells, 33 Fed. 210) ; unless one be nonresident (Plume & A. Mfg. Co. V. Baldwin, 87 Fed. 785), and may be dispensed with under U. S. Eev. Stat § 737, U. S. Comp. Stat. 1901, p. 587, or if the executor has not administered (Providence Eubber Co. V. Goodyear, 9 Wall. 791, IQ L. ed. 567; Conolly v. Wells, 83 Fed. 210, 211). When Fraud Intervenes. A court of equity will take jurisdiction of a suit by a non- resident to set aside a decree of a probate court for fraud (Ar- rowsmith v. Gleason, 129 U. S. 99-100, 32 L. ed. 635, 9 Sup. Ct Eep. 237; Johnson v. Waters, 111 U. S. 668-675, 28 L. ed. 556, 559, 4 Sup. Ct Eep. 619 ; Dodd v. Ghiselin, 27 Fed. 405 ; Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Arrowsmith v. Gleason, 46 Fed. 256) ; or to set aside a fraudulent conveyance made by the decedent, if the probate court has not taken pos- session (Hale V. Tyler, 115 Fed. 834) ; or to set aside fraudu- lent allowances by an administrator (Central JTat. Bank v. Fitzgerald, 94 Fed. 16; and authorites; Dodd v. Ghiselin, 27 Fed. 407) ; or fraudulent conveyances by the administrator (Ehino V. Emery, 18 C. C. A. 600, 37 U. S. App. 575, 72 Fed. 386 ; Terry v. Bank of Cape Fear, 20 Fed. 775 ; Marshall V. Holmes, 141 U. S. 599, 35 L. ed. 874, 12 Sup. Ct Eep. 62; Hale V. Tyler, 115 Fed. 838; Payne v. Hook, 7 Wall. 430, 19 L. ed. 261 ; ITorthem P. E. Co. v. Kurtzman, 82 Fed. 243 ; Daniels v. Benedict, 50 Fed. 354; Dodd v. Ghiselin, supra; Central JSTat Bank v. Fitzgerald, 94 Fed. 19, and cases cited). CHAPTEE XLIV. TEUSTEES AS PARTIES, Equity rule 49 provides that when real estate is vested in trustees, with power to sell and receive the purchase money and rents and profits of the estate, such trustee may sue alone, without mating persons beneficially interested parties to the bill. Allen-West Commission Co. v. Brashear, 176 Eed. 121, and cases cited; Harrison v. Stewart, 93 U. S. 160, 23 L. ed. 845; Ee E. T. Kenney Co. 136 Fed. 455, and cases cited; Bowling Green Trust Co. v. Virginia Pass. & P. Co. 132 Fed. 921 ; Hayes v. Pratt, 147 U. S. 570, 37 L. ed. 284, 13 Sup. Ct. Eep. 503; Shaw v. Little Eock & Ft. S. E. Co. 100 U. S. 611, 25 L. ed. 758 ; Eitcher v. Jerome, 123 U. S. 246, 31 L. ed. 137, 8 Sup. Ct. Eep. 106, 207; Austin v. Cahill, 99 Tex. 172, 88 S. W. 548, 89 S. W. 552 ; Kerrison v. Stewart, 93 U. S. 155, 23 L. ed. 843; Caylor v. Cooper, 165 Fed. 757; Allen- West Commission Co. v. Brashear, 176 Fed. 119. So, benefi- ciaries are bound by judgments against the trustee in such cases. Eichter v. Jerome, 123 U. S. 246, 31 L. ed. 137, 8 Sup. Ct. Eep. 106 ; Kent v. Lake Superior Ship Canal E. & Iron Co. 144 U. S. 90, 36 L. ed. 357, 12 Sup. Ct. Eep. 650 ; Eumsey V. Peoples E. Co. 154 Mo. 215, 55 S. W. 624; Fletcher v. Ann Arbor, 53 C. C. A. 647, 116 Fed. 481; Woods v. Woodson, 40 C. C. A. 525, 100 Fed. 519. And it is held that such trustees, in respect to litigation touching the trust property, have the same relative position to the property that executors and ad- ministrators hold to the personal estate of the decedent in litiga- tion. Carey v. Brown, 92 TJ. S. 171, 23 L. ed. 469; Allen- West Commission Co. v. Brashear, 176 Fed. 121, and cases cited. When the subject-matter of a trust is in controversy, all trus- tees should be made parties, notwithstanding section 737, U. S. Eev. Stat., U. S. Comp. Stat. 1901, p. 587. This statute 250 TEUSTEES AS PABTIES. 251 does not apply to trustees in the classes of suits provided in equity rule 49, nor in restraining trustees from certain acts in reference to the trust, or for breach of duty not involving actual fraud. Wall v. Thomas, 41 Fed. 621 ; Boyd v. Gill, 21 Blatchf. 543, 19 Fed. 146 ; Hazard v. Durant, 19 Fed. 476. So, one of three trustees has no authority to institute a suit without the others or their knowledge. McGeorge v. Bigstone Gap. Improv. Co. 88 Fed. 599. Trustees are always necessary parties in a suit to defeat the trust (McArthur v. Scott, 113 TJ. S. 396, 28 L. ed. 1033, 5 Sup. Ct. Rep. 652; Farmers' Loan & T. Co. v. Lake Street Elev. E. Co. 122 Fed. 921 ; Eejall v. Greenhood, 35 C. C. A. 97, 92 Fed. 945; Merchants' Cotton Press &, Storage Co. v. Insurance Co. of K A. 151 U. S. 382, 383, 38 L. ed. 203, 4 Inters. Com. Eep. 499, 14 Sup. Ct. Rep. 367; Thayer v. Life Asso. of America, 112 U. S. 717, 28 L. ed. 864, 5 Sup. Ct. Rep. 355; Old Colony Trust Co. v. Wichita, 123 Fed. 762- 767; Guardian Trust Co. v. Whitecliffs Portland Cement & Chalk Co. 109 Fed. 527 ; Vetterlein v. Barnes, 124 U. S. 172. 31 L. ed. 401, 8 Sup. Ct. Rep. 441); or to enjoin a sale of property under the trust (Ibid.; Moody v. Flagg, 125 Fed. 819 ; Old Colony Trust Co. v. Wichita, 123 Fed. 762) ; unless fraud charged only against the beneficiary. So, when suit is brought to recover the property, or to reduce it to possession by the trustee, and his relations to the benefi- ciary are not affected, then he should sue alone. Griswold v. Bacheller, 21 C. C. A. 428, 40 U. S. App. 142, 75 Fed. 473 ; Carey v. Brown, 92 U. S. 172, 23 L. ed. 469 ; Sullivan v. Thur- mond, (Tex. Civ. App.) 45 S. W. 394; Eoss v. Ft. Wayne, 11 C. C. A. 288, 24 U. S. App. 113, 63 Fed. 466 ; Austin v. Ca- hiU, 99 Tex. 172, 88 S. W. 548, 89 S. W. 552 ; Thompkins v. Thompkins, 123 Fed. 207 ; Dodge v. TuUays, 144 U. S. 451, 36 L. ed. 501, 12 Sup. Ct. Eep. 728 ; Smith v. Portland, 30 Fed. 737. But otherwise, beneficiaries should be made parties. So, seeking to reach the income of a trust estate through the rights and powers of a trustee, he must be made a party. Spies V. Chicago & E. I. E. Co. 30 Fed. 398 ; Morgan v. Kansas P. E. Co. 21 Blatchf. 134, 15 Fed. 55 ; Barry v. Missouri, K. & T. E. Co. 22 Fed. 631. So, a trustee of bondholders refusing to sue must be made a 252 BENEFICIAEIES AS PAETIES. party defendant, or when a trustee holds securities of a cor- poration to secure outstanding bonds, he should be made a party in a suit to wind up a corporation. Miles v. New South Bldg. & L. AsHo. 99 Fed. 4. So in a suit to cancel a mortgage made by a trustee wrong- fully. So in suit to foreclose a trust deed, the trustee should be party defendant. Maher v. Tower Hotel Co., 94 Fed. 225. So in suits against trustees by a stranger seeking to defeat the trust, and the trustee represents the beneficiaries in all things relating to their common interests, the beneficiaries need not be made parties. Kerrison v. Stewart, 93 U. S. 160, 23 L. ed. 845. Equity rule 50 provides that in a suit to execute the trusts of a will it is not necessary to make the heir at law a party, unless the plaintiff is seeking to establish the will against the heir at law. Beneficiaries as Parties. In suits respecting trust property brought by or against trustees, the beneficiaries are as a general rule, parties with the trustee, except as stated in equity rule 49, and when a trustee brings suit to recover the property, as heretofore stated. Ebell V. Bursinger, 70 Tex. 122, 8 S. W. 77; Sawyer v. First Nat. Bank, 41 Tex. Civ. App. 486, 93 S. W. 153 ; Kerrison V. Stewart, 93 U. S. 155, 23 L. ed. 843 ; Preston v. Carten Bros. 80 Tex. 391, 16 S. W. 17 ; Hall v. Harris, 11 Tex. 303. In all suits to wind up the trust and distribute the proceeds the beneficiaries should be made parties. Wescott v. Wayne Agri. Works, 11 Fed. 303. In a suit by beneficiaries to compel a corporation to fulfil an agreement in a deed of trust, and not seeking to reach the security, the trustee need not be made a party. Spies v. Chi- cago & E. I. R. Co. 30 Fed. 397. So a trustee of a corporation mortgage need not, in a siiit by the beneficiaries, not affecting the lien, be made a party (Holly Mfg. Co. V. ISTew Chester Water Co. 48 Fed. 880), when all the beneficiaries are substantially before the court; and this is especially true when the joinder of the trustee may oust the jurisdiction. Equity rule 47; Lake Street Elev. E. BEITEFICIABIES AS EAETIES. 253 Co. V. Ziegler, 39 C. C. A. 431, 99 Fed. 114. See Lawrence V. Southern P. Co. 165 Fed. 241. So beneficiaries may sue without making the trustee a party, when the trustee is without power over the trust property (D. A. Tompkins Co. v. Catawba Mills, 82 Fed. 780), or a naked trustee, and when no relief is demanded against him. Lake Street Elev. R. Co. v. Ziegler, 39 C. C. A. 431, 99 Fed. 120. Holly Mfg. Co. v. Chester Co. 48 Fed. 880-891). In a suit by beneficiaries a nonresident trustee may not be made a party if four out of five trustees are parties. Stewart V. Chesapeake & O. Canal Co. 4 Hughes, 41, 1 Fed. 361. Ben- eficiaries having a separate interest in a trust fund may join in an action against the trustee for its loss. Davenport v. Prince, 41 Fed. 323. When one of several beneficiaries sue to declare and enforce an implied trust, all parties claiming an interest in the trust estate must be made parties. Hall v. Harris, 11 Tex. 303. When a full investigation of the management of the trust fund is sought, all the beneficiaries must be made parties. Lauriat v. Stratton, 6 Sawy. 339, 11 Fed. 107. When a trustee refuses to sue, the beneficiaries may sue, "but must make the trustee a party defendant, unless the suit comes within one of the exceptions as above stated. Consolidated Water Co. v. San Diego, 92 Fed. 759; First Nat. Bank v. Eadford Trust Co. 26 C. C. A. 1, 47 U. S. App. 692, 80 Fed. 569 ; Bowdoin College v. Merritt, 63 Fed. 213 ; Clyde v. Eich- mond & D. R. Co. 55 Fed. 448. Or when the trustee neglects to defend the trust the bene- ficiaries may do so. Thus they may sue to remove cloud, though trustee has uncontrolled possession for five years. Bowdoin College V. Merrett, 54 Fed. 55. A beneficiary may bring a suit when the trustee has acquired an adverse right Webb v. Vermont C. R. Co. 9 Fed. 793. And where fraud has been committed by the trustees, or some of them, the beneficiary may sue some or all ; that is, the tort may be considered joint or several. Wall v. Thomas, 41 Fed. 621 ; Boyd v. Gill, 21 Blatchf. 543, 19 Fed. 145. Receivers as Parties. I have already alluded to the cases in which the fundamental 254 EECEIVEES AS PASTIES. grounds of jurisdiction as in citizenship, Federal questions, and amount, arise to affect the right of the receiver to sue, or his lia- bility to be sued, in a Federal court. Section 3 of the judiciary act of 1888, embodied in sec. 66, chap. 4, New Code, has already been referred to, in which it is provided that every receiver or manager of any prop- erty, appointed by any court of the United States, may be sued in respect of any act or transaction of his in carry- ing on the business connected with such property, without the previous leave of the court appointing him, but such suit shall be subject to the equity jurisdiction of the appointing court, if necessary to the ends of justice. McNulta v. Lochridge, 141 U. S. 330-332, 35 L. ed. 798-799, 12 Sup. Ct. Kep. 11 ; Gable- man V. Peoria, D. & E. E. Co. 179 U. S. 335-340, 45 L. ed, 220-223, 21 Sup. Ct. Eep. 171 ; Buckhannon & IST. R Co. v. Davis, 68 C. C. A. 345, 135 Fed. 710 ; Chicago, K. I. & P. K. Co. V. Martin, 178 U. S. 245, 44 L. ed. 1055, 20 Sup. Ct. Kep. 854; International & G-. N. E. Co. v. Wynne (Tex. Civ. App.) 122 S. W. 50 ; International & G. N. E. Co. v. Bradt (Tex. Civ. App.) 122 S. W. 59; J. J. Case Plow Works v. Finks, 26 C. C. A. 46, 52 U. S. App. 253, 81 Fed. 529; Dillingham v. Hawk, 23 L.E.A. 517, 9 C. C. A. 101, 23 U. S. App. 273, 60 Fed. 494; St. Louis S. W. E. Co. v. Holbrook, 19 C. C. A. 385, 41 U. S. App. 33, 73 Fed. 112; Erb v. Morasch, 177 U. S. 585, 44 L. ed. 898, 20 Sup. Ct. Eep. 819 ; Farmers' Loan & T. Co. V. Chicago & JST. P. E. Co. 118 Fed. 205. And the judgment obtained is conclusive on the Federal court as to the right to recover, but time and manner of payment rests with the Federal court. Willcox v. Jones, 101 C. C. A. 84, 177 Fed. 870. Prior to this act, as has been said, it was a well-settled rule, and is now, except as limited by this section of the act of 1888, that a receiver could not be made a party defendant without leave of the court appointing him. The rule now is, a receiver can be made a party defendant in any court, State or Federal, without leave of the appointing court, whenever the cause of action is based on some act or transaction of the receiver in administering the trust. If the cause of action does not come within the terms of the act, then you must obtain permission of the appointing court to. make EECEIVEES AS PAKTIES. 255 him a party defendant, or you subject your case to dismissal, or the judgment obtained to be declared void. Comer v. Eel- ton, 10 C. C. A. 28, 22 U. S. App. 313, 61 Fed. TST; Minot V. Mastin, 37 C. C. A. 234, 95 Fed. 734; Grosscup v. German Sav. Bank, 162 Fed. 951. U. S. Eev. Stat. § 614, does not authorize suit without permission, as to such acts and trans- actions as come -within the rule. See Dillingham v. Hawk, 23 L.K.A. 517, 9 C. C. A. 101, 23 U. S. App. 273, 60 Fed. 496, and authorities. See McNulta v. Lochridge, 141 U. S. 329- 331, 35 L. ed. 797-799, 12 Sup. Ct. Eep. 11, where any act or transaction of his was held to extend to the acts of his pre- decessors. As to such acts and transactions the suits against receivers are taken out of the class of ancillary suits, and become original suits against receiver (Gilmore v. Herrick, 93 Fed. 526 ; Pit- kin V. Cowen, 91 Fed. 599) ; and, as we have seen, the ground of Federal jurisdiction is important (Ibid). When the receiver, however, is winding up an insolvent es- tate, and he sues for property belonging to the fund, or the fore- closure of a mortgage in behalf of the fund (Myers v. Het- tinger, 37 C. C. A. 369, 94 Fed. 370 ; Bowman v. Harris, 95 Fed. 917; Pope v. Louisville, N. A. & C. E. Co. 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Eep. 500; Toledo, St. L. & K C. E. Co. V. Continental Trust Co. 36 C. C. A. 155, 95 Fed. 497; Metropolitan Trust Co. v. Columbus, S. & H. E. Co. 93 Fed. 689 ; Compton v. Jessup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 280) ; or when permission is given by the court appointing the receiver, to sue him as to some claim or right in and to the property in the hands of the court (Minot V. Mastin, 37 C. C. A. 234, 95 Fed. 735 ; Compton v. Jessup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 279-280) ; or on a cause of action not arising out of any act or transaction of the receiver, as a bill in equity to collect assessments on stock (Myers v. Hettinger, 37 C. C. A. 269, 94 Fed. 372 ; Bausman V. Denny, 73 Fed. 69) ; or filing bill to quiet title (Connor v. Alligator Lumber Co. 98 Fed. 155), then the receiver may sue or be sued in the court appointing him, without reference to amount or citizenship, as the suit in such cases would be only ancillary to the main suit. White v. Ewing, 159 U. S. 39, 40 L. ed. 68, 15 Sup. Ct. Eep. 1018 ; Carpenter v. JSIorthem P. 256 RECEIVERS AS PARTIES. K. Co. 75 Fed. 850; Eay v. Pierce, 81 Fed. 882; Bottom v. National E. Bldg. & L. Asso. 123 Fed. 744; Eoot v. Wool- worth, 150 U. S. 413, 37 L. ed. 1126, 14 Sup. Ct. Eep. 136; Eouse V. Letcher, 156 U. S. 49-50, 39 L. ed. 842, 15 Sup. Ct. Eep. 266; Pope v. Louisville, K A. & C. E. Co. 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Eep. 500. A receiver of a national bank is not a necessary party to a suit to enforce a claim against the bank. Denton v. Baker, 24 C. C. A. 476, 48 U. S. App. 235, 79 Fed. 189 ; Speckert V. German Nat. Bank, 38 C. C. A. 682, 98 Fed. 153 ; Bank of Bethel v. Pahquioque Bank, 14 Wall. 384, 20 L. ed. 840. A receiver need not be made a party when an ancillary suit is filed to foreclose a mortgage on property in the hands of a receiver (Continental Trust Co. v. Toledo, St. L. & K. C. E. Co. 82 Fed. 642) ; nor when he has surrendered the property sued for (Phelps v. Elliott, 29 Fed. 53). Power to Sue in a Foreign Jurisdiction. The appointing court cannot give a receiver power to sue in another court of foreign jurisdiction, or go there and take possession of property (Booth v. Clark, 17 How. 328, 15 L. ed. 166; Great Western Min. & Mfg. Co. v. Harris, 198 U. S. 561, 49 L. ed. 1163, 25 Sup. Ct. Eep. 770 ; Hale v. Allinson, 188 U. S. 56-68, 47 L. ed. 380-388, 23 Sup. Ct. Eep. 244; Edwards v. National Window Glass Jobbers Asso. 139 Fed. 797; Fowler v. Osgood, 4 L.E.A.(N.S.) 824, 72 C. C. A. 276, 141 Fed. 20; Hilliker v. Hale, 54 C. C. A. 252, 117 Fed. 220) ; even though ordered by the appointing court. (Great Western Min. & Mfg. Co. v. Harris, supra). CHAPTEE XLV. PARTIES IIT EEMOVING CLOUD AND QUIETING TITLE. Removing cloud from title has already been discussed in my lectures on Equity Jurisprudence, and I will simply state the ride of parties as applied in the Federal courts. First. The bill can be filed by the party in possession hav- ing the legal title (Wehrman v. Conklin, 155 U. S. 325, 39 L. ed. 173, 15 Sup. Ct. Eep. 129 ; Kellar v. Craig, 61 C. C. A. 366, 126 Fed. 630; Bardon v. Land & Eiver Improv. Co. 157 U. S. 327, 39 L. ed. 719, 15 Sup. Ct. Eep. 650 ; Gormley v. Clark, 134 U. S. 338, 33 L. ed. 909, 10 Sup. Ct. Eep. 554; Kraus v. Congdon, 88 C. C. A. 182, 161 Fed. 18; Kennedy V. Elliott, 85 Fed. 832 ; Union Mill & Min. Co. v. Warren, 82 Fed. 519 ; Frost v. Spitley, 121 U. S. 556, 30 L. ed. 1012, 7 Sup. Ct. Eep. 1129 ; Harding v. Guice, 25 C. C. A. 352, 42 U. S. App. 411, 80 Fed. 163, and cases cited; United States Min. Co. V. Lawson, 115 Fed. 1007), because, being in posses- sion, he cannot bring trespass to try title, and therefore has no adequate remedy at law to protect his enjoyment. (Harding V. Guice, supra). Second. It cannot be filed by a party having the legal title and out of possession, notwithstanding State statutes permit it (Hudson V. Eandolph, 13 C. C. A. 402, 23 U. S. App. 681, 66 Fed. 217; Whitehead v. Shattuck, 138 U. S. 146, 34 L. ed. 873, 11 Sup. Ct. Eep. 276 ; Boston & M. Consol. Copper & S. Min. Co. V. Montana Ore Purchasing Co. 188 U. S. 642, 47 L. ed. 633, 23 Sup. Ct. Eep. 434 ; Northern P. E. Co. v. Am- acker, 1 C. C. A. 345, 7 U. S. App. 33, 49 Fed. 537 ; Gordon V. Jackson, 72 Fed. 89) ; except in cases where there is no ade- quate remedy at law and relief in equity is necessary, as in cases of wild lands clouded by tax titles, and purchasers not in actual possession (Gordon v. Jackson, 72 Fed. 88; Gillis v. Downey, 29 C. C. A. 286, 56 U. S. App. 567, 85 Fed. 483, 19 Mor. Min. Eep. 253; Wehrman v. Conklin, 155 U. S. 328, S. Eq.— 17. 257 258 PARTIES IN EEMOVING CLOUD AND QUIETING TITLE. 39 L. ed. 174, 15 Sup. Ct. Eep. 129; Hudson v. Eandolph, 13 C. C. A. 402, 23 U. S. App. 681, 66 Fed. 216; Kilbourn V. Sunderland, 130 U. S. 505-515, 32 L. ed. 1005-1009, 9 Sup. Ct. Eep. 594; Harding v. Guice, 25 C. C. A. 352, 42 TJ. S. App. 411, 80 Ted. 165 ; Holland v. Challen, 110 U. S. 15, 28 L. ed. 52, 3 Sup. Ct. Eep. 495 ; Frost v. Spitley, 121 U. S. 557, 30 L. ed. 1012, 7 Sup. Ct. Eep. 1129 ; See David- son V. Calkins, 92 Fed. 231) ; or as to mining lands (Willitt V. Baker, 133 Fed. 937; Gillis v. Downey, 29 C. C. A. 286, 56 U. S. App. 567, 85 Fed. 483, 19 Mor. Min. Eep. 253; Carter v. Thompson, 65 Fed. 329, 18 Mor. Min. Eep. 134) ; or oil lands (Elk Fork Oil & Gas Co. v. Jennings, 84 Fed. 839. See Kellar v. Craig, 61 C. C. A. 366, 126 Fed. 630). So it may be stated. Third. That the bill can be filed when neither party is in possession and plaintiff has the legal title, because there can be no controversy in law if neither party is in possession. Hol- land V. Challen, 110 U. S. 15-26, 28 L. ed. 52-56, 3 Sup. Ct. Eep. 495 ; United States Min. Co. v. Lawson, 67 C. C. A. 587, 134 Fed. 769 ; Southern P. E. Co. v. Goodrich, 57 Fed. 880 ; Southern P. E. Co. v. Stanley, 49 Fed. 264, 265. Fourth. The bill cannot be filed against the defendant in possession (Taylor v. Clark, 89 Fed. 7 ; Gordan v. Jackson, 72 Fed. 89 ; Whitehead v. Shattuck, 138 U. S. 146, 34 L. ed. 873, 11 Sup. Ct. Eep. 276 ; Gombert v. Lyon, 80 Fed. 305 ; Davidson v. Calkins, 92 Fed. 232-236 ; Adoue v. Strahan, 97 Fed. 692), whether permitted by the State law or not, because ejectment is an adequate remedy at law. Ibid. Eudland v. Mastic, 77 Fed. 689; Whitehead v. Shattuck, 138 U. S. 146, 34 L. ed. 873, 11 Sup. Ct. Eep. 276 ; Blythe v. Hinckley, 84 Fed. 256 ; Davidson v. Calkins, 92 Fed. 239. Then in these cases the bill must show that either the plain- tiff is in possession, or that neither party is in possession ; other- wise it cannot be filed. Southern P. E. Co. v. Goodrich, 57 Fed. 880; Davidson v. Calkins, 92 Fed. 239. But it seems that, though an action at law was the proper remedy because of the position of the parties as to the property, yet where a bill was filed and both parties treated it as an equity suit, a decree will be enforced and not set aside. Book V. Justice Min. Co. 58 Fed. 828, 829. CHAPTER XLVI. DEFECT OF PARTIES AND ISSUE. It has been seen that the principle on which a court ol fhan- eery acts is to dispose of the whole subject-matter in on*! suit . and bind the rights of all persons interested in it. So a "de- fect of parties" is a good defense, unless under equity rult^ 22> providing that if any person other than those named as de- fendants shall be necessary or proper parties, the bill shall aver the reason they are not made parties, by showing they are out of the jurisdiction, or cannot be joined without ousting the jurisdiction of the Federal court as to other parties, and if out of the jurisdiction, the bill should further ask that they should be made parties if they should come within the juris- diction. Sheffield & B. Coal, Iron & K. Co. v. Newman, 23 C. C. A. 459, 41 U. S. App. 766, 77 Fed. 791 ; Story v. Livingston, 13 Pet. 375, 10 L. ed. 207. So if necessary parties that can be reached, and their pres- ence does not oust jurisdiction, or indispensable parties, whether they can be reached or not, are wanting in the bill, and it is apparent, you should object by demurrer, and if not apparent, by plea or answer. Story v. Livingston, supra ; Moore v. Bank of the Metropolis, 13 Pet. 311, 10 L. ed. 177 ; Carey v. Brown, 92 U. S. 173, 23 L. ed. 470 ; Hubbard v. Manhattan Trust Co. 30 C. C. A. 520, 57 U. S. App. 730, 87 Fed. 51. If raised by demurrer (Hubbard v. Manhattan Trust Co. supra), then the demurrer must name the proper parties, and of course the same rule applies if the issue is raised by plea or answer (Dwight v. Central Vermont E. Co. 9 Fed. 785). So the rule must be applied if there be a misjoinder of parties, or parties are made who have no interest. Ibid. ; Sheffield & B. Coal, Iron & R. Co. v. Newman, supra; ConoUy v. Wells, 33 Fed. 205 ; Halstead v. Manning, 34 Fed. 565 ; Elkhart Nat. Bank v. Northwestern Guaranty Loan Co. 84 Fed. 76 ; House V. Mullen, 22 Wall. 46, 22 L. ed. 839. However, the addition 259, 260 DllFECT OF PAETIES AND ISSUE. of a party having no interest may be struck out on motion, or striking out on demurrer is an answer to the demurrer. Hub- bard V. Manhattan Trust Co. supra; Badger Silver Min. Co. V. Drake, 31 C. C. A. 378, 58 U. S. App. 129, 88 Fed. 52. If a demurrer is interposed because of defect of parties, it must be filed by the rule day next succeeding the entry of ap- pearance, as will be hereafter fully explained. Form of Demurrer. A. B. "J In the United States Circuit Court V8. C In Equity. , sitting at • C. D. ) for the District of The demurrer of C. D., the defendant (or the joint and several demur- rers, etc.) to the bill of complaint. This defendant (or these defendants) not confessing any or all of the matters set forth in the bill of complaint to be true, demurs to said bill and says, that it appears by the bill that one G. H., mentioned in said bill is a necessary party to the complaint (or indispensable party), for that (here point out briefly the allegations of the bill showing the person named is a, necessary or indispensable party and should be joined). Wherefore defendant prays the judgment of the court whether he shall further answer said bill, and prays to be dismissed with costs. R. F., Solicitor, etc. Certificate of counsel; affidavit of defendant. If demurrer goes to misjoinder, use same form, changing allegations to suit facts. If the bill does not show a want or parties, but the fact exists, then it must be met by a plea or suggested in the answer (First ISTat. Bank v. Hamor, 1 C. C. A. 153, 7 TJ. S. App. 69, 49 Fed. 45 ; United States v. Gillespie, 6 Fed. 803 ; Hubbard V. Manhattan Trust Co., and Sheffield & B. Coal, Iron & R. Co. V. Newman, supra) ; setting out who should be made par- ties. (Ibid. ; Howth v. Owens, 29 Fed. 722 ; Goldsmith v. Gil- liland, 10 Sawy. 606, 24 Fed. 154; Sheffield & B. Coal, Iron & R. Co. V. Newman, supra). The plea, if filed, must be filed on the next succeeding rule day after entering appearance, and you may use the following form : Title and commencement as before, and proceed as follows: And for plea to said bill aver and say that one E. G. is a necessary (or indispensable) DEFECT OF PAIITIES AND ISSUE. 261 party (if necessary, allege that he is a citizen of and residing in , showing he is within the jurisdiction of court) to said bill, because (here state why he is a necessary or indispensable party) ; all of which matters this defendant avers to be true, and pleads the same in abatement (or in bar) of complainant's bill, and prays judgment, etc. (as before). R. F., Solicitor. Certificate of counsel; aflBdavit of defendant. 29 Fed. 723. While this is the regular course of pleading in equity, and may be used in case of defect of parties, yet the Supreme Court of the United States has promulgated two rules making such speedy disposition of all objections and suggestions as to parties that nothing but time is gained, or rather, wasted, in filing a plea in such cases. United States v. Gillespie, supra. Equity rule 52 provides that where the defendant shall by his answer suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, in fourteen days after answer filed, to set down the cause for argument on the objection only, and the purpose for which the same is so set down shall be notified by an entry to be made in the clerk's order book to the effect following: "Set down for hearing on defendant's ob- jection for want of parties." This action is taken by plaintiff by simply addressing a note to the clerk to enter the order as above stated in the order book. This should be done, for the rule proceeds, "and when the plaintiff shall not set down his cause and proceed to a hearing, then, if defendant's objection be allowed, the plaintiff will not be entitled, as a matter of course, for an order to amend by adding parties, but the court is at liberty to dismiss his bill." Equity rule 53 provides that if the defendant shall at the hearing of a cause object that a suit is defective for want of parties, not having made the objection by plea or answer, and therein specified by name or description of parties to whom the objection applies, the court may, in its discretion, make a de- cree saving the rights of the parties not joined. By these rules it is seen that a suggestion in the answer of a defect of parties is all that is necessary to raise the issue, and instead of having to wait the ordinary time under the rules for a hearing, the plaintiff may, in fourteen days from filing the answer, settle the preliminary matter of parties, having those 262 DEFECT OF PARTIES AND ISSTTE. added that should be joined, or eliminating those improperly joined. To induce the plaintiff to pursue tliis rule, it is de- clared on failure to do so that he loses his right of amendment as of course, and subjects his bill to dismissal by the court should it appear that the suggestion of the defendant as to parties should be found true at the final hearing. On the other hand, equity rule 53, in order to induce the defendant to make the suggestion of a want of parties by answer, the court can, if the defendant waits until the final hearing to raise the question, proceed in disregard of the suggestion then, and enter a decree on the case, saving the rights of absent parties. Mechanics' Bank v. Seton, 1 Pet. 299-306, 7 L. ed. 152-155; Keller v. Ashford, 133 U. S. 626, 33 L. ed. 674, 10 Sup. Ct. Eep. 494. This rule, however, cannot apply when the absent parties are indispensable, but only when necessary parties or proper parties. The absence of indispensable parties prevents the court from proceeding, except to dismiss without prejudice, as before seen. Young v. Gushing, 4 Biss. 456, Fed. Cas. No. 18,156; Mechanics' Bank v. Seton, 1 Pet. 299, 7 L. ed. 152. It is further apparent by these rules that any objection for want of parties or misjoinder of parties, whether raised by de- murrer, plea, or by suggestion in the answer, must point out and name the persons not joined or mis joined, and give reasons for the objection. See equity rule 20. Sheffield & B. Coal, Iron & R. Co. v. Newman, supra; Carey v. Brown, 92 U. S. 171, 23 L. ed. 469 ; Harvey v. Eichmond & M. E. Co. 64 Fed. 20 ; United States v. Pratt Coal & Coke Co. 18 Fed. 708. But there are other grounds than those of non- joinder or misjoinder, the existence of which creates a defect of parties, and which should be raised and settled in limine by demurrer, plea, or suggestion in the answer. Any person having an equitable right or remedy may, if sui juris, sue in his own name, and if not, may sue in the name of another, and the defendant has the right to have on the record some person sui juris who would be answerable for costs and bound by a decree. So, infancy, coverture, lunacy, or the non- existence of the character or capacity in which the party is su- ing, or the parties are sued, such as partners, executors, ad- DEFECT OF PAETIES AND ISSUE. 263 ministrators, trustees, or heirs, should be met by demurrer, plea, or answer at once, and settled in limine. You will find equity rule 39 provides that the defendant shall be entitled, in all cases by answer, to insist on all matters of defense not being matters in abatement, or to the character of the parties, or matters of form, thus clearly indicating that these matters in abatement touching character and capacity must be settled in limine. Sharon v. Hill, 10 Sawy. 666, 26 Fed. 723; Hewitt v. Story, 39 Fed. 158; Marshall v. Otto, 59 Fed. 252. -Aiany of the Federal districts have local rules requiring all matters in abatement to be set up by preliminary answer in the nature of a plea, and upon issue joined the court determines it before the defendant is required to answer to the merits. Mar- shall V. Otto, supra. If any of these objections be raised by the defendant, you may use the form given in the demurrer or plea for want of parties, except the stating part must present the specific ob- jection, thus : Where the bill is exhibited by an infant without next friend, you insert: "Tliat said plaintiff, before and at the tlm° of filing his said bill, was and now is an infant under the age of twenty-one years, wherefore judg- ment is prayed," etc. In the case of lunacy say : "That plaintiff has been declared a lunatic by virtue of inquiry duly and legally made and judgment thereon, to which defendant asks leave to refer; tliat said judgment has never been set aside and remains in full force and effect," etc. Florida C. & P. E. Co. v. Bell, 31 C. C. A. 9, 59 U. S. App. 189, 87 Fed. 369 ; Dudgeon v. Watson, 23 Blatchf. 161, 23 Fed. 161. Or in case plaintiff or defendant are not administrators, etc., being the capacity in which they sue, or are being sued, the plea by the defendant must set up the fact clearly. You must set up : 264 DEFECT OF PARTIES AND ISSUE, "That at the time of bringing the suit the so-called intestate was not dead and plaintiff could not be an administrator, or that letters of admin- istration had been revoked. If they ever existed." Or if defendant is sued as administrator, and is not, he muiEt set lip: "That he was not at the time of filing the suit nor prior thereto ( if such is the fact), nor is he now, administrator of A. B., as alleged, but the allegations seeking to charge him as administrator are not true," etc. If it is a case of coverture, you may set up: "That A. B. at the time of exhibiting the bill was then, and is now, a married woman, one being then, and is now, her husband, and fully capacitated to institute this suit in her behalf." Or, if sued, she may reply her coverture in the same way. In each case the title, commencement, and form as given in the plea may be used. Making New Parties hy Amendment. ITew parties may be made by amendment by plaintiff (In- surance Co. of ]Sr. A. V. Svendsen, 74 Fed. 348), so may strike out; and defendant may force new parties by plea of non- joinder (Goodman v. Niblack, 102 U. S. 563, 26 L. ed. 232 ; Shields v. Barrow, 17 How. 145, 15 L. ed. 162 ; Lewis v. Darl- ing, 16 How. 8, 14 L. ed. 822 ; Leahy v. Haworth, 4 L.E.A. (KS.) 657, 73 C. C. A. 84, 141 Fed. 855; Kaiser v. General Phonograph Supply Co. 171 Fed. 432). CHAPTEK XLVII. THE BILL. The bill is the petition to the court containing the complaint and relief desired. In the old forms the complainant was styled "orator" or "oratrix," but this has gone into disuse, al- though occasionally used in some of the States, and the custo- mary phrase, "plaintiff," is used. The historical development of the present bill in equity, while interesting, is of no practical importance; I will there- fore briefly alhide to only two stages in its development, and the causes for tlie form it now assumes. Anciently the complainants made to the chancellor their complaints verbally, and the defendant brought in and compelled to answer under oath the charges made. In process of time the charges were reduced to writing, and questions formulated in the petition for the defendant to answer. The petition thus framed was called a bill, and the defendant was required to answer in writing to each specific question, without evasion. In this way the conscience of the defendant, through fear of ecclesiastical punishment, was purged, discovery had, and the answer thus made performed the double function of plead- ing and proof. With the gradual development of the chancery practice, the bill assumed a stated form and was divided into nine parts : First. Title and address to court. Second. Names and places of abode of plaintiff and de- fendant. Third. Stating part of bill, or statement of case. Fourth. Confederacy clause. Alleging unlawful combina- tion of the defendant to injure, etc., the plaintiff. Fifth. Charging part of the bill, so called, because the plaintiff, by anticipation, charged that the defendant would set up certain excuses and pretenses to defeat plaintiff's right, which plaintiff denied or avoided in his bill. 265 266 THE BILL. Sixth. Jurisdiction clause. That plaintiff was remediless at law. Seventh. Interrogatory part, in which the plaintiff sought, by questions based on the stating part of his bill, to make dis- covery by purging the conscience of the defendants as to the truth of the statements made. Eighth. Prayer for relief. Ninth. Prayer for process. It was long necessary to adhere to these formal divisions to sustain a bill in equity, but as the perplexity of business in- creased with an advancing civilization, and greater breadth of jurisdiction was acquired, it was found that adherence to these divisions unduly lengthened the bill and rendered them very obscure. Lord Chancellor Campbell declared that he remem- bered when bills in equity told the same story over and over again, and each time more obscurely. Prolixity, tautology, scandal, and impertinence became the leading features in a bill in equity. It was sought to overcome this fault in England by confining the bill to fifteen sheets, but the chancery lawyer met this rule by enlarging the sheets, and this evasion carried to such an extent that a further order was promulgated allowing only fif- teen lines to a sheet. Kelley v. Boettcher, 29 C. C. A. 14, 56 U. S. App. 363, 85 Fed. 57; Story Eq. PI. § 226. These con- ditions may be said to have existed when the practice of the High Court of Chancery of England was adopted in our Fed- eral system. The Supreme Court of the United States, to overcome these cumbersome methods promiilgated rules practically reducing the form of the bill to four divisions, and otherwise greatly simplifying its structure. By equity rule 21 you could omit the confederacy clause, the charging part of the bill, and the jurisdictional clause. Gage V. Kaufman, 133 U. S. 471, 33 L. ed. 725, 10 Sup. Ct. Eep. 406. So the parts retained were : Eirat. Title of case and address to the court. Second. Names of parties and citizenship of plaintiff and defendant. Third. Statement of the case. Eourth. The prayer for relief and process. THE BIUU 267 Each of these parts I will now discuss. Equity rule 20 re- quires that the introductory part of the bill shall contain the names, places of abode, and citizenship of all the parties, plain- tiffs and defendants, by and against whom the hill is brought. United States v. Pratt Coal & Coke Co., 18 Fed. 708. The form should be substantially as follows : A. B. ^ In the Circuit Court of the United vs. V In Equity. States for the District C. D. J of , sitting at To tlie Judges of the Circuit Court of the United States for the District of Texas: A. B., a citizen of the State of , residing in county, in said State, brings this his bill against C. D., a citizen of the State of , and residing in county, in said State. And therefore complainant (or plaintiff or your orator) complains and says that, etc. If the bill is by a corporation, or against a corporation, you may say: The (name of corporation), a corporation duly organized by and existing under the laws of the State of , and having its principal place of business at , in said State, and a citizen of said State, humbly complains, etc. If the suit be against a corporation, proceed and say, "humbly complains of the (name of corporation), a corporation organ- ized and existing under the laws of the State of , and having its principal place of business at , in said State, and a citizen and inhabitant of the District, in same State." The simple allegation that a corporation is a citizen of a State is not sufficient (Swafford v. Templeton, 108 Fed. 309) ; you must set forth a corporate name, followed by the averment that the same is a corporation created under the laws of the State of and having its principal place of business at Shiras, Eq. Pr. § 34 ; Knight v. Lutcher & M. Lumber Co. 69 C. C. A. 248, 136 Fed. 404 ; Mueller v. Dows, 94 U. S. 444, 24 L. ed. 207 ; Dalton v. Mil- waukee Mechanics Ins. Co. 118 Fed. 876 ; Lafayette Ins. Co. V. French, 18 How. 404, 1.5 L. ed. 451 ; Sun Printing & Pub. Asso. V. Edwards, 194 U. S. 377, 48 L. ed. 1027, 24 Sup. Ct. Rep. 696; DeLay v. Travelers Ins. Co. 59 Fed. 319; Ameri- 268 THE BILL. can Sugar Eef. Co. v. Johnson, 9 C. C. A. 110, 13 U. S. App. C81, 60 Fed. 504; Lee v. Atlantic Coast Line R. Co. 150 Fed. 800 ; Winkler v. Chicago & E. L E. Co. 108 Fed. 305 ; St. Louis, L M. & S. E. Co. v. Newcom, 6 C. C. A. 172, 12 U. S. App. 503, 56 Fed. 951 ; Tug Eiver Coal & Salt Co. v. Brigel. 14 C. C. A. 577, 31 U. S. App. 665, 67 Fed. 627. See Chi- cago Lumber Co. v. Comstock, 18 C. C. A. 207, 34 U. S. App. 414, 71 Fed. 480. In New York & N. E. E. Co. v. Hyde, 5 0. C. A. 461, 5 U. S. App. 443, 56 Fed. 192 and United States v. Harsha, 6 C. C. A. 178, 16 U. S. App. 13, 56 Fed. 953, "Corporation duly incorporated by law, having principal place of business in Massachusetts," held, not good. "That defendant is a corpora- tion conducting a railroad in another State," held, not good. It has always been required in bills in equity that the names and places of residence of the plaintiff should be carefully set forth, but its purpose was to prevent fictitious persons from bringing suit, and that the defendant might show where to re- sort to compel obedience to any order of the court, such as to pay costs that may be awarded ; but the accurate statement re- quired in the Federal system is essential to show jurisdiction, when dependent on diversity of citizenship, as heretofore ex- plained. The great majority of cases brought into the circuit courts of the United States are dependent for jurisdiction on diversity of citizenship, and whether brought into said courts originally or by removal from State courts, or citizenship and alienage, it is a universal rule that the jurisdiction of these courts must appear in the bill. Wolfe v. Hartford Life & Annuity Ins. Co. 148 U. S. 389, 37 L. ed. 493, 13 Sup. Ct. Eep. 602 ; United States V. Harsha, supra; Hanford v. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Eep. 1051; St. Joseph & G. I. E. Co. v. Steele, 167 U. S. 662, 42 L. ed. 316, 17 Sup. Ct. Eep. 925 ; Mexican C. E. Co. v. Pinkney, 149 U. S. 194, 37 L. ed. 699, 13 Sup. Ct. Eep. 859 ; Eoberts v. Lewis, 144 U. S. 656, 36 L. ed. 582, 12 Sup. Ct. Eep. 781 ; Sharon v. Hill, 10 Sawy. 634, 23 Fed. 353, 355. When dependent on diversity of citizenship the bill must not only show diversity of citizenship, but it must affirmatively show that it is brought in a Federal district of the State in THE BILL. 269 which either the plaintiffs or defendants are resident citizens, as before explained. Authorities above; Donnelly v. United States Cordage Co. 66 Fed. 613 ; Banlc of Winona v. Avery, 34 Fed. 81. (See "Federal District of Suit.") And it is not to be inferred. Wolfe v. Hartford Life & Annuity Ins. Co. and United States v. Harsha, supra; Lownsdale v. Gray's Harbor Boom Co. 117 Fed. 983. See Tonopah Traction Min. Co. v. Douglass, 123 Fed. 936. You cannot allege that "parties were citizens of states other than the State of ," or that one claims to be a citizen of ," etc. (Lownsdale v. Gray's Harbor Boom Co. supra) ; or that defendants are citizens of (a) or (b) (Van Horn v. Kittitas County, 112 Fed. 1). It is not necessary to repeat jurisdictional averments in an amendment to the bill. Mexican C. E. Co. v. Pinkney, 149 U. S. 200, 37 L. ed. 701, 13 Sup. Ct. Eep. 859 ; Third Street & Suburban R. Co. V. Lewis, 173 U. S. 459, 460, 43 L. ed. 767, 19 Sup. Ct. Eep. 451. It is the party named in the bill that controls, not those that may be proper or even necessary. Ee Stutsman County, 88 Fed. 337. As said above, you cannot infer citizenship and residence, nor can you allege that their State residence is un- known; they must be citizens of a named State. Tracy v. Morel, 88 Fed. 801; Tug Eiver Coal & Salt Co. v. Brigel, supra. You can allege, it seems, that a defendant is a citizen of the United States and a resident of a State. Littell v. Erie Co. 105 Fed. 539; Clausen v. American Ice Co. 144 Fed. 723. Citizenship Not Residence. You cannot aver simply residence; it must be citizenship. Citizenship is the test. Sun Printing & Pub. Asso. v. Edwards, 194 U. S. 382, 48 L. ed. 1029, 24 Sup. Ct. Eep. 696 ; Gale v. Southern Bldg. & L. Asso. 117 Fed. 732; Denny v. Pironi, 141 U. S. 123, 35 L. ed. 657, 11 Sup. Ct. Eep. 966 ; Shaw v. Quincy Min. Co. 145 U. S. 447, 36 L. ed. 770, 12 Sup. Ct. Eep. 935 ; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 655, 41 L. ed. 1151, 17 Sup. Ct. Eep. 709 ; Timmons v. Ely- town Land Co. 139 U. S. 379, 35 L. ed. 195, 11 Sup. Ct. Eep. 585 ; Sharon v. Hill, 26 Fed. 342 ; Koike v. Atchison, T. & S. F. E. Co. 157 Fed. 623 ; Marks v. Marks, 75 Fed. 321 ; Wolfe V. Hartford Life & Annuity Ins. Co. supra ; Crosby v. Cuba E. 270 THE BILL. Co. 158 Fed. 145-152; Sanbo v. Union P. Coal Co. 72 C. C. A. 24, 140 Fed. 713; New York & IST. E. K. Co. v. Hyde, 5 C. C. A. 461, 5 U. S. App. 443, 56 Fed. 188. If only allega- tion of residence, the Supreme Court would reverse the case, though no objection taken. Preferred Acci. Ins. Co. v. Bar- ker, 32 C. C. A. 124, 58 U. S. App. 171, 88 Fed. 814. The term "inhabitant" cannot be substituted for "citizenship." Allen B. Risley Co. v. George E. Rouse Soap Co. 32 C. C. A. 496, 62 U. S. App. 240, 90 Fed. 6. As to sufficient allegation of citizenship, see authorities above; United States v. Harsha, supra ; Sun Printing & Pub. Asso. v. Edwards, 194 U. S. 377, 48 L. ed. 1027, 24 Sup. Ct. Eep. 696. (See chapter 21.) Must be alleged. Lownsdale v. Gray's Harbor Boom Co. 117 Fed. 983. So in regard to an allegation of alienage. An alle- gation that a party is a resident of London does not show juris- diction. Bishop V. Averill, 76 Fed. 387; Stewart v. Easton, 156 U. S. 46, 39 L. ed. 341, 15 Sup. Ct. Eep. 268. May be, and not be an alien. But an allegation that parties are all of Cognac, France, and citizens of the Republic of France, is good. Hennessey v. Richardson Drug Co. 189 U. S. 25, 47 L. ed. 697, 23 Sup Ct. Rep. 532 ; Von Voight v. Michigan C. R. Co. 130 Fed. 398. Federal District of Suit. The statute in ease of diversity of citizenship only fixes the venue of suit in the district of plaintiff's residence, or in the district of defendant's residence. It is necessary to specifically allege the venue as required, and it must be shown that the suit is brought in the district court of the residence of plaintiff, or defendant, if you are depending on diversity of citizenship alone for jurisdiction. Miller v. Pennsylvania R. Co. 91 Fed. 298; United States v. S. P. Shotter Co. 110 Fed. 2; Southern P. Co. V. Denton, 146 U. S. 205, 206, 36 L. ed. 954, 13 Sup. Ct. Rep. 44. If, however, the county of plaintiff's or defendant's residence and citizenship is alleged, the court will take judicial notice of the district to which the county belongs. But bear in mind that allegations of "residence" only in the county or district is not equivalent to citizenship. Wolfe v. Hartford Life & An- THE BILL. 271 nuity Ins. Co. supra; Denny v. Pironi, 141 U. S. 121-123, 35 L. eJ. 657, 658, 11 Sup. Ct. Eep. 906; Gale v. Southern Bldg. fe L. Asso. 117 Fed. 733. Diversity of residence does not give jurisdiction. Southwestern Teleg. & Teleph. Co. v. Kobinson, 1 C. C. A. 91, 2 U. S. App. 148, 48 Fed. 769 ; Texas & P. E. Co. V. Eogers, 6 C. C. A. 403, 13 U. S. App. 547, 57 Fed. 378 ; Tinsley v. Hoot, 3 C. C. A. 612, 2 U. S. App. 548, 53 Fed. 682. Necessity of Accuracy. The jurisdiction of the court depending on the accuracy and fullness of the statement of the grounds upon which the juris- diction rests, especially as to citizenship and residence, a fail- ure so to do is fatal to jurisdiction, as every case is without the jurisdiction not affirmatively appearing to be in it. Goeppert V. Compagnie Generale Transatlantique, 156 Fed. 196-199 ; Eobertson v. Cease, 97 U. S. 646-649, 24 L. ed. 1057-1059 ; United States v. S. P. Shotter Co. 110 Fed. 2, 3 ; Lownsdale V. Gray's Harbor Boom Co. supra ; Turner v. Jackson Lumber Co. 87 C. C. A. 103, 159 Fed. 923; International Bank & T. Co. V. Scott, 86 C. C. A. 248, 159 Fed. 59-61. This rule ap- plies only when jurisdiction is dependent upon diversity. Wright V. Skinner, 136 Fed. 694. And when a proper allega- tion is made it makes a prima facie case (Hill v. Walker, 92 C. C. A. 633, 167 Fed. 241), which continues until overcome by evidence creating a legal certainty. Where the allegation of citizenship was upon information and belief, it was held in- sufficient, in Wolff V. Archibald, 14 Fed. 369; Hambleton v. Duham, 10 Sawy. 489, 22 Fed. 465. See Holton v. Helvetia- Swiss F. Ins. Co. 163 Fed. 661. However, it is said in Sun Printing & Pub. Asso. v. Edwards, 194 U. S. 382, 48 L. ed. 1029, 24 Sup. Ct. Eep. 696, that the whole record may be looked to for the purpose of curing defective averment of citi- zenship, and facts constituting such allegations in legal intend- ment are sufficient, citing Home v. George H. Hammond Co. 155 U. S. 393, 39 L. ed. 197, 15 Sup. Ct. Eep. 167; Howe v. Howe & 0. Ball Bearing Co. 83 C. C. A. 536, 154 Fed. 822 and cases cited. Bowers v. New York L. Ins. Co. 68 Fed. 785 ; Lebert v. Hunt, 108 Fed. 450. In Adams Exp. Co. v. Adams, 159 Fed. 62, the defect was held to be cured by answer. 272 THE BILL. In the appellate courts the case will be dismissed if juris- diction does not appear in the record, even though the question was not raised in the lower courts. The docket of the Supreme Court of the United States is strewn with wrecks of this char- acter. Mansfield, C. & L. M.'K. Co. v. Swan, 111 U. S. 382- 384, 28 L. ed. 463, 464, 4 Sup. Ct. Kep. 510 ; Hancock v. Hol- brook, 112 U. S. 231, 28 L. ed. 715, 5 Sup. Ct. Kep. 115; Neel V. Pennsylvania Co. 157 U. S. 154, 39 L. ed. 654, 15 Sup. Ct. Eep. 589; King Iron Bridge & Mfg. Co. v. Ottoe County, 120 U. S. 226, 30 L. ed. 624, 7 Sup. Ct. Rep. 552 ; Parker v. Ormsby, 141 U. S. 83, 35 L. ed. 655, 11 Sup. Ct. Eep. 912 ; Torrence v. Shedd, 144 U. S. 533, 36 L. ed. 532, 12 Sup. Ct. Rep. 726. An amendment will not be permitted in the appellate courts when the record nowhere shows juris- diction. " Jackson v. Allen, 132 U. S. 29, 33 L. ed. 249, 10 Sup. Ct. Rep. 9 ; Crehore v. Ohio & M. R. Co. 131 U. S. 242, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; Johnson v. F. C. Austin Mfg. Co. 76 Fed. 616, and cases cited. However if the aver- ment be made insufficiently it may be amended. Johnson v. F. C. Austin Mfg. Co. supra; Carson v. Dunham, 121 U. S. 427, 30 L. ed. 994, 7 Sup. Ct. Rep. 1030 ; Glover v. Shepperd, 11 Biss. 572, 15 Fed. 833. In stating the riecessity of accuracy it is not intended that there must be certainty to a certain intent, but general certainty without minute detail is sufficient. Statement of the Case. Equity rule 26 requires that the statement of the case shall be expressed in as brief and succinct a manner as possible (Nevada Nickel Syndicate v. National Nickle Co. 86 Fed. 488 ; Kelley v. Boettcher, 29 C. C. A. 14, 56 U. S. App. 363, 85 Fed. 57), and shall contain no unnecessary recitals of deeds, documents, instruments, or contracts in haec verba, or any other impertinent matter. If it does, it may on exception be referred to a master to be stricken out at the cost of the pleader. Board of Trade v. National Bd. of Trade, 154 Fed. 239. Equity rule 25 provides that, in order to promote brevi:^ and directness of allegation in the bill and answer, the regnla . taxable costs for every bill and answer shall not exce. 1 three THE BILL. 273 dollars. So it appears that every inducement is held out for a brief, succinct, and direct allegation in the statement. There are four component parts to make a complete case. First. The bill must show that the complainant is the per- son entitled to relief. Second. That the facts entitle complainant to relief. Third. That the defendant is the person from whom the complainant should recover. Fourth. That the claim set up is equitable. To these may be added that if the case rests upon a Federal question, it must be shown in the statement of the case, and the amount, or value, of the subject-matter must be such as to give the jurisdiction. These requirements of "statement" express a general formula in stating the case. I will now discuss them in detail and in the order stated. Hobbs Mfg. Co. v. Gooding, 100 C. C. A. 83, 176 Fed. 264, 265; United States v. American Bell Teleph. Co. 32 Fed. 593. First. You must show the plaintiff has a right to the thing demanded, or such interest in it that he may sue. The bill must set forth some title or interest in the property, contract or right which is the subject-matter of the litigation, and in respect of which he is about to suffer the injury com- plained of. If it be tangible property, he must show title, right, ownership, or possession. If it be a contract, he must show that he is a party to it originally, or by assignment. If it be a right out of which flows a duty, he must show a right to the performance of the duty. Taylor v. Holmes, 14 Fed. 499; Savage v. Worsham, 104 Fed. 18 ; Selz v. Unna, 6 Wall. 334, 18 L. ed. 801. In setting forth the title, interest, or claim, facts, not infer- ences, must be alleged, nor can you rest upon conclusions of law. Mere averment of legal conclusion not good pleading. Fuller v. Montague, 8 C. C. A. 100, 16 U. S. App. 391, 59 Fed. 215; Dillon v. Barnard, 21 Wall. 437, 22 L. ed. 676; Gould V. Evansville & C. K. Co. 91 U. S. 536, 23 L. ed. 419 ; Cornell v. Green, 43 Fed. 107 ; Dishong v. Finkbiner, 46 Fed. 17 ; Lumley v. Wabash K. Co. 71 Fed. 28 ; Butler v. National Home, 144 U. S. 74, 36 L. ed. 352, 12 Sup. Ct. Eep. 581; Fogg V. Bldir, 139 U. S. 127, 35 L. ed. 107, 11 Sup. Ct. Kep. 476^ « Eq.— ]8. 274 THE BILL. To illustrate: You should not allege simply that you are entitled to an equitable interest by virtue of an instrument, but you must state so much of the instrument as shows the inter- est or claim set up, and let the court determine the effect or character of the interest claimed. Marshall v. Turnbull, 34 Fed. 827; Electric Goods Mfg. Co. v. Kiltonski, 171 Fed. 552, 553. Set up always your facts; then there is no objection to drawing conclusions in your bill, which you think legitimate. Berwind v. Canadian P. R. Co. 98 Fed. 158 ; Allen v. O'Don- ald, 23 Fed. 576. However, in this you must bear in mind equity rule 26, providing that no unnecessary recitals of writ- ten instruments will be permitted. Much must be left to the discretion and good sense of the pleader. Of course, if your right depends on the construction of the whole instrument, you may set it up in your bill in haec verba, without making your pleading obnoxious to the rule. Einstein v. Schnebly, 89 Fed. 541-549; Nevada Nickel Syndicate Co. V. National Nickel Co. 86 Fed. 486. The interest thus to be stated applies to every plaintiff, if there be more than one, and must be an actual existing interest, and not a probability; and whenever conditions precedent to the maturing of the interest appear, you must allege performance or tender of per- formance. Ibid. The statement should not be uncertain ; if it is, the objection should be raised by demurrer, and not by motion. Einstein v. Schnebly, 89 Fed. 547; Johnson v. Wil- cox & G. Sewing Mach. Co. 25 Fed. 373. Second. It must appear that plaintiff is entitled to relief. Mr. Heard remarks that this requirement in the stating part of the bill does not involve so much a question of pleading, but rather covers the whole subject-matter of equitable jurisdic- tion. This is true, and all that can be said by way of general direction is that when the title or interest claimed appears in the bill, then you must state the injury or deprivation of right clearly and accurately (Savage v. Worsham, supra; Boston & A. E. Co. V. Parr, 44 C. C. A. 139, 104 Fed. C95 ; KnophoUer v. St. Paul, M. & M. R. Co. 1 McCrary, 299, 2 Fed. 302 ; Bent V. Hall, 56 C. C. A. 246, 119 Fed. 342 ; Bishop v. York, 118 Fed. 352) ; that the court may see that the relief you ask is not only equitable, but consistent with the claim set up. A plaintiff may sue in equity on a promise to a third per- THE BILL. 275 son. Green v. Turner, 30 C. C. A. 427, 59 U. S. App. 252, 86 Fed. 838, and cases cited; Willard v. Wood, 135 U. S. 309, 34 L. ed. 210, 10 Sup. Ct. Eep. 831. In showing that you are entitled to relief you may anticipate in your bill the defense that may be set up to defeat your case, either by answering or in the form of confession and avoidance. Equity rule 21. Third. It must appear that the defendant is the party from whom the plaintiff should recover. The bill must show that the defendant is liable. Of course, if he is in possession of the property sued for; or if the sub- ject-matter of his suit is based on contract to which he is a party ; or if he owe a duty, which in equity of good conscience he should perform, — ^then the statement of these conditions would be sufficient to show liability, if plaintiff shows an inter- est or right. The rule of precision in allegation is not applicable when it is necessary to show what claims the defendant sets up, or what interest, if any, he claims, as plaintiff cannot be supposed to know always the nature of the defendant's interest, especially when it can only be reached by discovery. It sometimes happens that while plaintiff may have an inter- est in property in the hands of another, yet there is not that privity between them that will sustain a suit, so it must appear from the bill, not only that the interest exists, but that the status of the defendant to plaintiff and the subject-matter is such that the suit will lie, and the defendant is the party from whom the plaintiff should recover. Fourth. That the claim set up is an equitable one. This requirement has been fully discussed in the application of section 723, U. S. Eev. Stat., U. S. Comp. Stat. 1901, p. 583, in bringing suits in equity. It is a fundamental rule that a bill in equity must state a case within the jurisdiction of a court of equity, and this, as you have seen, is shown either where the interest claimed is cognizable in equity, or what- ever be the nature of the claim, if the complainant is entitled to relief in equity, because the remedy at law is inadequate. Allegation of the Federal Question. When the jurisdiction depends on a Federal question, the 276 THE BILL. stating part of the bill must show that the suit arises under the Constitution and laws of the United States or treaties made, as has been before fully explained (see "Federal Questions," Chaps. 27, 28). Kansas v. Atchison, T. & S. F. E. Co. 77 Fed. 341-344; Fergus Falls v. Fergus Falls Water Co. 19 C. C. A. 212, 36 U. S. App. 480, 72 Fed. 877; Indiana use of Delaware County v. Alleghany Oil Co. 85 Fed. 872 ; Tennessee V. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Eep. 654; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Eep. 34; Postal Teleg. Cable Co. v. United States (Postal Teleg. Cable Co. v. Alabama), 155 U. S. 482, 39 L. ed. 231, 15 Sup. Ct. Eep. 192 ; East Lake Land Co. V. Brown, 155 U. S. 488, 39 L. ed. 233, 15 Sup. Ct. Eep. 357; Walker v. Collins, 1C7 U. S. 57, 42 L. ed. 76, 17 Sup. Ct. Eep. 738. The rule is that the Federal question must appear in the bill itself (Colorado Cent. Consol. Min. Co. t. Turek, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Eep. 35, and au- thorities above), and the bill must show a reliance upon it (Pacific Gas Improv. Co. v. Ellert, 64 Fed. 421). See United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 470, 61 U. S. App. 13, 89 Fed. 769 where the allegation of a Federal charter was held sufficient. Allegation of Amount. In the statement of the case the allegation of amount should show that the value of the subject-matter or amount in dispute is within Federal jurisdiction, that is, exceeds the sum of two thousand dollars, exclusive of interest and coats, and this must appear whether the jurisdiction be based on diversity of citizen- ship, or a Federal question, or between a citizen and an alien. (See Chaps. 30 to 36.) ISTew Code effective Jan. 1, 1912, raises jurisdictional amount, and inserts "three" in place of "two" as above stated. Allegation of Fraud. Where relief is sought because of imposition or fraudulent devices, the fraud should be alleged in the statement of the THE BILL. 277 case. It must distinctly state the particular act of fraud, mis- repres-entation, or concealment, and should specify how, when, and in what manner created. Such charges must be definite and reasonably certain, capable of proof, because they must be clearly proved. Kennedy v. Custer, 98 C. C. A. 584, 174 Fed. 981; Cella v. Brown, 75 C. C. A. 608, 144 Eed. 754; Marquez v. Frisbie, 101 U. S. 473, 25 L. ed. 800 ; Hammond V. Hopkins, 143 U. S. 251, 36 L. ed. 145, 12 Sup. Ct. Eep. 418 ; St. Louis & S. F. E. Co. v. Johnston, 133 U. S. 577, 33 L. ed. 686, 10 Sup. Ct. Eep. 390 ; Braddock v. Louchheim, 87 Fed. 287 ; Field v. Hastings & B. Co. 65 Fed. 279 ; Lumley v. Wabash E. Co. 71 Fed. 21 ; Bangs v. Loveridge, 60 Fed. 966. And the charge would not of itself be sufScient unless injury shown. Linn v. Green, 5 MeCrary, 380, 637, 17 Fed. 407. You cannot find fraud if allegations do not sustain the find- ing. Dashiel v. Grosvenor, 27 L.E.A. 67, 13 C. C. A. 593, 25 U. S. App. 227, 66 Fed. 334. Laches. Often in the statement of a case in a bill it appears some length of time has elapsed between the accrual of the right and the filing of the bill, so that the bill would be demurrable be- cause of laches. This is an equity which ordinarily stays the hand of a court of equity in granting the relief asked, though an equitable cause of action has been properly stated. When- ever delay in bringing the suit appears, you must, to properly state your case, anticipate this defense, and reasonably excuse the delay, such as the existence of some disability, or a fraudu- lent concealment of the facts by the defendant, or it must be shown that in the nature of things the cause of action or fraud perpetrated could not sooner have been discovered. There must be distinct averments when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether by the exercise of ordinary diligence the discovery might not have been sooner made. Hubbard v. Manhattan Trust Co. 30 C. C. A. 520, 57 TJ. S. App. 730, 87 Fed. 59 ; Hammond v. Hopkins, 143 U. S. 251, 36 L. ed. 145, 12 Sup. Ct. Eep. 418 ; Mclntire v. Fry- er, 173 U. S. 57, 43 L. ed. 613, 19 Sup. Ct. Eep. 352 ; Eoot 278 THE BILL, V. Woolworth, 150 U. S. 414, 37 L. ed. 1126, 14 Sup. Ct. Kep. 136 ; McMonagle v. M'Glinn, 85 Fed. 92 ; Hardt v. Heidmeyer, 152 U. S. 560, 38 L. ed. 552, 14 Sup. Ct. Kep. 671 ; Whitney V. Fox, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Kep. 713. See Ritchie v. Sayers, 100 Fed. 537. Lastly, equity rule 21 provides that if in connection with the statement of the case it is desired to have relief by injunc- tion, ne exeat, or any other special order pending the suit, it shall be specially asked for, but the stating part of the bill must contain the necessary allegations upon which to base the special relief, and the relief must accord with the case thus made. I have thus pointed out in a general way the provisions of the stating part of a bill in equity. The stating part is the germ of the bill, for it is the plaintiff's case, and shows his title to relief. It should be positive and free from inference, looseness, and uncertainty of expression. The equity of your case must be shown there, for you cannot refer to other parts of the bill for it. If it omits material allegations you can- not supply them by proof (Jackson v. Ashton, 11 Pet 249, 9 L. ed. 706), and its further importance is shown from the follow- ing facts: First. That the defendant is not bound to answer any aver- ments not contained in the stating part of the bill. Second. If a plea is filed, the validity of it is determined by the stating part of the bill. Third. It cannot be enlarged by the prayer for relief. In a word, the stating part must be complete in itself, so that if admitted by the answer or proved by the evidence, the court can enter a decree disposing of the subject-matter. CHAPTEK XL VIII. THE PRATER. We now come to the prayer of the bill for relief and process. Prayer for relief must include both general and special relief. Equity rule 21. The prayer shall ask the special relief to which the complainant supposes himself entitled, and shall also contain a prayer for general relief out of abundant caution, as a general prayer for relief and sufficients facts alleged saves the bill from a general demurrer. Walden v. Bodley, 14 Pet. 164, 10 L. ed. 401 ; Wiggins Eerry Co. v. Ohio & M. E. Co. 142 U. S. 397, 35 L. ed. 1056, 12 Sup. Ct. Eep. 188 ; Stevens V. Gladding, 17 How. 455, 15 L. ed. 158; Patrick v. Isen- hart, 20 Eed. 339. And if any injunction or other auxiliary writ is required and justified by the stating part of the bill, it must be specially prayed for. Chicago, St. L. & N. O. R. Co. v. Macomb, 2 Eed. 19. The usiial form is as follows: "And plaintiff prays that upon final hearing of this cause that it be ordered and decreed (here insert special relief required) and for such other general relief as may to the court be deemed just and equitable." As to a proper prayer for an accounting see Elkhart Nat Bank v. Northwestern Guaranty Loan Co. 84 Eed. 78. The general prayer cannot broaden relief beyond the plead- ings, and care should be taken to ask all relief in the special prayer. Eirst Nat. Bank v. Woodnim, 86 Eed. 1005, 1006; Texas v. Hardenberg (Texas v. White), 10 Wall. 68-85, 19 L. ed. 839-841 ; Savings & Loan Soc. v. Davidson, 38 C. C. A. 365, 97 Eed. 702, 703. While this is the general rule, yet, un- der the general prayer the court can grant the relief according to the case made. Ilnderground Electric R. Co. v. Owsley, 169 Eed. 671 ; Tyler v. Savage, 143 U. S. 98, 36 L. ed. 90, 12 Sup. Ct. Rep. 340 ; Crawford v. Moore, 28 Eed. 824 ; English V. Eoxall, 2 Pet. 612, 7 L. ed. 537; Swope v. Missouri Trust 279 280 THE PEATEB. Co. 26 Tex. Civ. App. 133, 62 S. W. 950; Haggart v. Wil- czinski, 74 C. C. A. 176, 148 Fed. 22-28 ; Patrick v. Isenhart, 20 Fed. 339. Where you are not certain of your specific relief, it is per- missible to frame your prayer in the alternative, such relief being consistent with the case made. Virginia-Carolina Chemi- cal Co. V. Home Ins. Co. 51 C. C. A. 21, 113 Fed. 5, 6; Hub- bard V. Urton, 67 Fed. 419; Hardin v. Boyd, 113 U. S. 763, 28 L. ed. 1143, 5 Sup. Ct. Kep. 771; Eigney v. DeG-raw, 100 Fed. 213; McGraw v. Woods, 96 Fed. 56. Thus in a suit to recover property procured by fraud, you may pray for the re- turn or value. Hubbard v. Urton, 67 Fed. 425-426 ; Hardin V. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Kep. 771. But a bill vi^ould be multifarious that contains prayers in the alternative that are antagonistic. Cutter v. Iowa Water Co. 96 Fed. 777. If an injunction is desired and your allegation will support it, you may add to the prayer for process a special prayer for the injunction, as follows: "Complainant prays the court to grant him a writ of injunction enjoin- ing and restraining the said C. D., defendant, his attorneys, agents and representatives, from (insert act or special matter to be enjoined), uniil the further order of this court." Ne Exeat. Equity rule 23 and U. S. Eev. Stat. § 717, U. S. Comp. Stat. 1901, p. 580, provide for issuing a writ ne exeat regno, as well as an injunction. Lewis v. Shainwald, 48 Fed. 492 ; Griswold V. Hazard, 141 U. S. 260, 35 L. ed. 678, 11 Sup. Ct. Eep. 972, 999. The writ of ne exeat is applied for if the defendant de- signs to quietly leave the United States, and there is a personal suit pending against him. It rests upon the allegation that his departure will produce a denial of justice and irreparable in- jury, or defeat the purpose of the suit. When proof is made, the judge will grant the prayer and issue a writ forbidding the departure of the defendant unless he gives security to abide the decree. See Mackenzie v. Barrett, 73 C. C. A. 280, 141 Fed. 965, 5 A. & E. Ann. Cas. 651, and cases cited; also in THE PEATEE. 281 Ee Appel, 20 L.E.A.(]Sr.S.) 76, 90 C. C. A. 172, 163 Fed. 1002. Wherefore complainant prays the court to grant him a writ of "ne exeat," forbidding and restraining the said C. D., de- fendant herein, from departing beyond the limits of the United States without leave of the court first had ajid obtained, etc. Eev. Stat. § 717; Griswold v. Hazard, 141 U. S. 260, 35 L. ed. 678, 11 Sup. Ct. Eep. 972, 999 ; Lewis v. Shainwald, 48 Fed. 492. See ISTew Code, sec. 261, chap. 11. Prayer for Process. The prayer for process should be carefully stated, Equity rule 7, being one of the component parts of the bill (Goebel v. American E. Supply Co. 55 Fed. 826; Carlsbad v. Tibbetts, 51 Fed. 852-855 ; Armstrong Cork Co. v. Merchants' Eefrig- erating Co. 171 Fed. 778; United States v. Agler, 62 Fed. 824) ; and equity rule 23 requires prayer for process of sub- poena to contain the names of the defendants set forth in the introductory part of the bill, and if any of them are known to be infants, or otherwise under guardianship, the fact shall be stated, that the court may take order therein upon the re- turn of the process. However, where both in the caption and body of the bill the defendants who were required to answer were named and plainly designated, the omission of the prayer for process is not demurrable. The strictness of the ancient rule has been relaxed in this country. Jennes v. Landes, 84 Fed. 73-74; Buerk v. Imhaeuser, 8 Fed. 457 (waived by ap- pearance). Form of Prayer for Process. To the end that complainant may obtain the relief prayed for herein, he further prays the court to grant him process by subpcena directed to C. D. and E. ¥., etc., defendants herein named, commanding them to appear and answer under oath (or not under oath, the same being waived), all of the allegations of the bill herein filed, etc. If any of the defendants are minors or under guardianship, or non compos, the fact should be stated, in order that proper service should be had and such action taken as is necessary to protect the interests of the parties. Equity rule 23., 282 THE PEAYEE. Amendment of Prayer. When the prayer is not consistent with the case made in the bill, it has been held that in some cases an amendment will be permitted at the hearing. ISTeale v. Neale, 9 Wall, 1, 19 L. ed. 590; Graffam v. Burgess, 117 U. S. 194, 29 L. ed. 843, 6 Sup. Ct. Eep. 686; Ee Wellhouse, 113 Fed. 962; Pendery V. Carleton, 30 C. C. A. 510, 59 U. S. App. 288, 87 Fed. 41 ; Eichmond v. Irons, 121 U. S. 47, 30 L. ed. 870, 7 Sup. Ct. Eep. 788 ; Wiggins Ferry Co. v. Ohio & M. E. Co. 142 U. S. 415, 35 L. ed. 1061, 12 Sup. Ct. Eep. 188 ; See Eigney v. De Gra-vv, 100 Fed. 213; Bass v. Christian Feigenspan, 82 Fed. 261. Amend After Replication. But after replication an effort to enlarge the claim, and to change the character and quantity of the relief sought, was refused. Equity rule 29 ; Bass v. Christian Feigenspan, 82 Fed. 261; Beavers v. Eichardson, 118 Fed. 320. The court in discussing equity rule 29, providing for amendments after replication upon proof that the matter of the proposed amend- ment is material, says that the purpose of amendment must not be to enlarge the case nor to change the character and quantity of relief asked, but when a case for relief is made out, but not that shown by specific request in the prayer, an amendment will be allowed, even on final hearing. It seems, then, that this amendment is allowed when plaintiff is entitled to different relief than asked for in the special prayer, but never to expand the claim or enlarge it beyond what is set out in the bill. (See "Amendment of Bills," and authorities above.) Shields v. Barrow, 17 How. 143, 144, 15 L. ed. 161, 162. Signing Bills. The bill must be signed by counsel, as it is considered an affirmation of good faith on his part, that there is ground for the suit in the manner which it is alleged and filed. Equity rule 24. The ancient rule of examining the bill by the chan- SIGNING AND VERIFYING BILL. 283 cellor before permitting it to be filed was in process of time discontinued, and it was left to the honor of the Bar that the bill would be framed without scandal or impertinence, and the relief is sought in good faith, which was evidenced by his signature. Brinkley v. Louisville & IST. E. Co. 95 Fed. 349, 350; United States v. American Lumber Co. 29 0. C. A. 431, 56 U. S. App. 655, 85 Fed. 829, 830. Verifying Bill. It is not necessary, unless an injunction or some special order or process is asked, to preserve some right pending the suit, or when specially required by some rule of equity, as in equity rule 94, when a stockholder brings a bill against the corporation, or required by statute. Hughes v. Northern P. K. Co. 18 Fed. 110; see, also, Black v. Henry G. Allen Co. 9 L.E.A. 433, 42 Fed. 622. Nor need an amendment to the bill be verified. Chase Electric Constr. Co. v. Columbia Constr. Co. 136 Fed. 699. Form of Verification. State or ) County of j Personally appeared before the undersigned authority, A. B., the plain- tiff in the above cause, who, being duly sworn as to the truth of the allega- tions made in the above bill, says that he has read the foregoing bill (or heard it read) and knows the contents thereof, and that the same is true of his own knowledge, except as to matters therein stated on information and belief, and as to those matters he believes them to be true. [SEAL.] Officer's signature. In Fitchel v. Barthel, 1Y3 Fed. 491 it is said a bill neither signed or verified is not demurrable, as neither are required by the rules. CHAPTER XLIX. BILLS WITH DOUBLE ASPECT. While a bill in equity should be single in purpose, yet it sometimes becomes necessary to draw it with a double aspect, or state an alternative case; however, it must be the founda- tion for precisely the same relief, and consistent with the case made (Shackleton v. Baggaley, 95 G. C. A. 505, 170 Fed. 57; Shields V. Barrow, 17 How. 144, 15 L. ed. 162 ; Electric Goods Mfg. Co. V. Koltonski, 171 Eed. 550; Jones v. Missouri-Edi- son Electric Co. 75 C. C. A. 631, 144 Fed. 767 ; McGraw v. Woods, 96 Fed. 56; Davis v Berry, 106 Fed. 761; Hal- sey V. Goddard, 86 Fed. 28; American Box Mach. Co. V. Crosman, 57 Fed. 1025; Caldwell v. Firth, 91 Fed. 177). As to recover specific property, or its value (Hubbard v. Urton, 67 Fed. 425 ; Hardin v. Boyd, 113 IJ. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Eep. 771), or set aside fraudulent deed on two grounds (Fisher v. Moog, 39 Fed. 665). The double aspect is not objectionable, and it is largely discre- tionary with the court to permit it in the particular suit ( Chaf- fin V. Hull, 39 Fed. 891), where there is no alternative prayer for inconsistent relief. Authorities above; Shields v. Barrow, supra ; Merriman v. Chicago & E. I. R. Co. 12 C. C. A. 275, 24 U. S. App. 428, 64 Fed. 550, 551; McGraw v. Woods, supra; Cutter V. Iowa Water Co. 96 Fed. 777. Thus, there may be alternative grounds upon which a plaintiff may be entitled to an estate (Halsey v. Goddard, supra) ; such as where one claims as heir and devisee (Stephens v. McCargo, 9 Wheat. 502, 6 L. ed. 145 ; DeForest v. Thompson, 40 Fed. 381 ; Chaffin v. Hull, 39 Fed. 887) ; but the Federal court will not tolerate in- consistent grounds and prayers in the same bill (Ritchie v. Sayers, 100 Fed. 520; Cutter v. Iowa Water Co. 96 Fed. 777; Electrical Accumulator Co. v. Brush Electric Co. 44 Fed. 607). To illustrate: You cannot make a case that a party has a 284 BILLS WITH DOUBLE ASPECT. 285 title, and has no title, and ask relief according to either con- dition. Merriman v. Chicago & E. I. E. Co. supra. You can- not ask that a certain agreement of compromise be set aside because induced by fraud, and have an alternative prayer for performance if not set aside. St. Louis, V. & T. H. R. Co. v. Terre Haute & I. E. Co. 33 Fed. 448. See Hardin v. Boyd, 113 U. S. 763, 28 L. ed. 1143, 5 Sup. Ct. Eep. 771 ; McGraw V. Woods, 93 Fed. 58. Tou cannot ask to set aside a release negligently executed by a trustee, and treat it as both void and valid. St. Louis, V. & T. H. E. Co. v. Terre Haute & I. E. Co. supra; Williams v. Jackson, 107 U. S. 484, 27 L. ed. 531, 2 Sup. Ct. Eep. 814; Brooks v. Laurent, 39 C. C. A. 201, 98 Fed. 655, 656. Nor can you so treat a judgment. Brooks v. Laurent and Cutter v. Iowa Water Co. supra. You cannot file a bill to cancel a mortgage because the debt is illegal, and at the same time, if you are mistaken, you be allowed to redeem. Merriman v. Chicago & E. I. E. Co. supra; see Eigney v. De Graw, 100 Fed. 213. If plaintiff is in doubt as to whether he is entitled to one kind of relief or another, he may frame a bill for relief in the alternative, and so pray, if the state of facts upon which the relief is prayed is not inconsistent. Cella v. Brown, 75 C. C. A. 608, 144 Fed. 742 ; Eitchie v. Sayers, 100 Fed. 536 ; Virginia- Carolina Chemical Co. v. Home Ins. Co. 51 C. C. A. 21, 113 Fed. 5, 6, but either of the aspects must be set out distinctly in order to be cognizable in equity. Electric Goods Mfg. Co. V. Koltonski, 171 Fed. 553. Sometimes the bill may have a double sound, that is, may be interpreted in two ways ; in such case the defendant may elect what construction to put on it, and as he treats it plaintiff will be bound. American Box Mach. Co. v. Crosman, 57 Fed. 1026 ; Shields v. Barrow, 17 How. 144, 15 L. ed. 162. Forms of Bills. I have endeavored to so discuss the "bill in equity" as clear- ly to suggest to one who understands the facts of his case how the bill should be drawn ; if forms of bills must be referred to, they may bo found in many books of forms now published. CHAPTEE L. DISCOVEEY. Having discussed the component parts of a bill now recog- nized as essential, I will briefly speak of bills of discovery. They were discussed in my lectures on Equitable Remedies, and we saw that their origin was found in a want of power in the common-law courts to compel a discovery of the truth, either through the oath of the party to the suit, or by any process of its own to compel the production of written evidence in the possession of an adverse party. Colgate v. Compagaie Francaise du Telegraphe, 23 Blatehf. 86, 23 Eed. 84. This right to demand information only known to your antagonist in aid of your suit was permitted in equity on filing a bill for that purpose, known as bills of discovery. McMullen Lumber Co. V. Strother, 69 C. C. A. 433, 136 Eed. 301 and authorities cited; Kelley v. Boettcher, 29 C. C. A. 14, 56 U. S. App. 363, 85 Fed. 56-66 ; Brown v. McDonald, 68 L.R.A. 462, 67 C. C. A. 59, 133 Fed. 898. The ancient practice of seeking discovery was through interrogatories following the statement of your case, and this method was maintained until a comparatively recent period in the Federal courts. In 1850 the Supreme Court, with a view of shortening the bill, promulgated equity rule 40, providing that it shall not be necessary to interrogate a defendant specially and particularly on any statement of the bill, unless the complainant desired to do so, and in case it was so desired a short form of interroga- tion was prescribed, cutting ofF much of the reiteration and prolixity that usually preceded interrogatories in the old forms. Equity rule 43 gives the form to be used. Tillinghast v. Chace, 121 Fed. 436, and cases cited. In 1864 Congress passed an act embodied in section 858 of the Eevised Statutes of the United States, IT. S. Comp. Stat. 1901, p. 659, providing that no witness should be excluded in 286 DISCOVEEY. 287 any civil action because he is a party or interested in the issue tried. This statute created a complete revolution in the com- mon-law rules affecting the competency of parties as vs^itnesses, and at once ended the necessity for a bill of discovery as auxil- iary to a common-law suit. Field v. Hastings & B. Co. 65 Fed. 279. In United States v. McLaughlin, 24 Fed. 825, the court says that in view of this statute it is very doubtful if a pure bill of discovery will lie at this day, and no prudent counsel will file a bill purely for discovery, or call for discovery in a bill for relief. The court gives as a reason certain disadvan- tages arising from it, and quotes in support of his view Ex parte Boyd, 105 U. S. 657, 26 L. ed. 1204, see, also. Brown v. McDonald, 130 Fed. 969, and cases cited; see Safford v. En- sign Mfg. Co. 56 C. C. A. 630, 120 Fed. 482; Hudson v. Wood, 119 Fed. 764; United States v. Bitter Eoot Develop- ment Co. 66 C. C. A. 652, 133 Fed. 280 and cases cited; Pres- ton V. Smith, 26 Fed. 885 ; Eindskopf v. Platto, 29 Fed. 130. In Colgate v. Compagnie Francaise du Telegraphs, supra, the court says the change made in the common-law rules of evi- dence, permitting a party to testify in his case, does not ne- cessitate a court of equity foregoing the exercise of its an- cient jurisdiction of discovery. See Boyer v. Keller, 113 Fed. 580. In National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co. 83 Fed. 26, the court thinks the right of dis- covery by bill in equity a valuable one, and when sought by interrogatories in the bill they must be answered. Balfour v. San Joaquin Valley Bank, 156 Fed. 500 ; Victor G. Bloede Co. V. Joseph Bancroft & Sons Co. 98 Fed. 176 ; Gray v. Schnei- der, 119 Fed. 474. Equity rules 41, 42, 43, and 44 are still in force, and have never been repealed or modified since section 858, United States Eevised Statutes, was passed. So then, whether you seek dis- covery through a bill in equity in aid of a suit at law, or through interrogatories in your bill for relief, is entirely with- in the discretion of the pleader, which must be guided by the character of the case. Kelley v. Boettcher, and McMullen Lum- ber Co. V. Strother, supra; Eyder v. Bateman, 93 Fed. 31; Brown v. McDonald, 68 L.K.A. 462, 67 C. C. A. 59, 133 Fed. 288 DISCOVEEY. 898; Indianapolis Gas Co. v. Indianapolis, 90 Fed. 197; Ever- son V. Equitable Life Assur. Soc. 18 C. C. A. 251, 39 U. S. App. 34, 71 Fed. 570. There is no question that bills purely for discovery in aid of a suit at law have fallen into innocuous desuetude, as said by Judge Brewer in Preston v. Smith, 26 Fed. 889; Field V. Hastings & B. Co. 65 Fed. 280. And it is clearly not neces- sary, when the purpose is to examine books as sec. 724, U. S. Eev. Stat. U. S. Comp. Stat. 1901, p. 583, sec. 858, U. S. Comp. Stat. 1901, p. 659, confer authority on courts of law to require their production. Cameron Lumber Co. v. Droney, 132 Fed. 304 ; Gray v. Schneider, 119 Fed. 474 ; Victor G. Bloede Co. V. Joseph Bancroft & Sons Co. 98 Fed. 175 ; Ore Water Light & P. Co. V. Oroville, 162 Fed. 975, and cases cited; Brown v. McDonald, supra. In the last case it is said the trend of the decisions even in equity is to the effect that such bills are no longer necessary in view of the act permitting par- ties to be witnesses. IT. S. Eev. Stat. sec. 858. However, there is no question that the power to enforce discovery in equity suits is one of the original and inherent powers of a court of chancery and one that may be exercised by any party having an equitable right or equitable remedy; and it is certain that the right has not been abridged by statutory enactment or any change in the rules. Rules 40 to 44 ; McMullan Lumber Co. v. Strother, supra. There is often a practical advantage to be de- rived by an ex parte examination of the defendant through in- terrogatories in the bill, or of the complainant through inter- rogatories in a cross bill pertinent to the subject-matter, in developing the defense, and otherwise aiding the cause of ac- tion, and purpose of the bill. If inserted in the bill or cross bill, and the interrogatories are material, the rule requires them to be definitely and fully answered by the defendant or com- plainant. Equity rule 43 ; Indianapolis Gas Co. v. Indian- apolis, 90 Fed. 196; Federal Mfg. & Printing Co. v. Interna- tional Bank ITote Co. 119 Fed. 385 ; Boyer v. Keller, 113 Fed. 581; Playford v. Lockhard, 65 Fed. 870; Kelley v. Boettcher and Oro Water, Light & P. Co. v. Oroville, supra. This you may force by proper exceptions, and when definitely answered, you may be enabled to set down the case on bill and answer without further delay or expense, or you may reduce the issu- DISCOVEET. 289 able facts to a minimum by admissions elicited tbrougb your interrogatories in tbe bill, and thereby requiring but little ad- ditional evidence to be obtained by you, but prayer for discov- ery may be disregarded if there are no interrogatories in bill. Excelsior Wooden Pipe Co. v. Seattle, 55 C. C. A. 156, 117 Fed. 144 ; Hunting-ton v. Saunders, 120 U. S. 78, 30 L. ed. 580, 7 Sup. Ct. Eep. 356. These are important considerations in view of the time and expense usually necessary in maturing an equity suit for trial on its merits. When Oath Waived to Answer. It is said that when oath is waived to the answer, the plain- tiff cannot have discovery, Tillinghast v. Chase, 121 Fed. 435— 437, and when sought in a bill, it may be disregarded, if oath waived. Huntington v. Saunders, 120 U. S. 80, 30 L. ed. 582, 7 Sup. Ct. Eep. 356; Excelsior Wooden Pipe Co. v. Seattle, supra; McFarland v. State Sav. Bank, 132 Fed. 401, 402. However, in a creditors' suit, where discovery is prayed in re- spect to defendant's indebtedness, he cannot object to making discovery though answer under oath is waived. Hudson v. Wood, 119 Fed. 764. So in a suit for accounting and to fore- close a lien, the fact that the bill waives an answer under oath does not waive the right to discovery, Utah Constr. Co. v. Montana K. Co. 146 Fed. 981-986. S. Eq.— 19. CHAPTEK LI. MULTIFARIOUSNESS AND MISJOINDEE. Multifariousness arises from a misjoinder of parties or causes of action. Animarium Co. v. Neiman, 98 Fed. 15 ; Schell V. Alston Mfg. Co. 149 Fed. 440 ; King v. Inlander, 133 Fed. 416. It consists, first, in stating separate and distinct claims, or two or more independent causes of action, against the same de- fendant in the same bill ; that is, the union of causes of action which, or parties whose claims, it would be impracticable and inconvenient to adjudicate in a single suit. Westinghouse Air Brake Co. v. Kansas City Southern K. Co. Yl C. C. A. 1, 137 Fed. 31, 32, and cases cited. See United States v. Clark, 129 Fed. 243. Thus, one plaintiff's suing on one or more causes of action against a part of the defendants, and another cause of ac- tion against other defendants, or several plaintiffs joining in one bill against a defendant on matters distinct and separate, would be multifarious. Emmons v. iNTational Mut. Bldg. & L. Asso. 68 C. 0. A. 327, 135 Fed. 689 ; State Trust Co. v. Kansas City, P. & G. E. Co. 128 Fed. 129 ; Hayden v. Thompson, 67 Fed. 273 ; Church v. Citizens' Street E. Co. 78 Fed. 529 ; United States V. Guglard, 79 Fed. 24; Eastern Bldg. & L. Asso. v. Denton, 13 C. C. A. 44, 31 U. S. App. 187, 65 Fed. 570; Farson v. Sioux City, 106 Fed. 278 ; Security Sav. & L. Asso. V. Buchanan, 14 C. C. A. 97, 31 U. S. App. 244, 66 Fed. 802 ; Leslie v. Leslie, 84 Fed. 70 ; Inman v. I^ew York Interurban Water Co. 131 Fed. 997 ; Merriman v. Chicago & E. I. E. Co. 12 C, C. A. 275, 24 U. S. App. 428, 64 Fed. 552. So, join- ing an action at law against one party and a suit in equity against another in same suit is multifarious. Thornton 'N. Motley Co. v. Detroit Steel & Spring Co. 130 Fed. 396; Walk- er V. Powers, 104 U. S. 250, 26 L. ed. 731 ; Coit v. Sullivan- Kelly Co. 84 Fed. 724. So, relying upon and seeking to avoid 290 MTJLTIFAEIOUSNESS AND JIISJOINDEE. 291 a decree is multifarious. Cutter v. Iowa Water Co. 96 Fed. 779; Cella v. Brown, 75 C. C. A. 608, 144 Fed. 742. These are errors of frequent occurrence because of the necessity in framing a bill to seek to determine all matters between parties. The tendency is to add too many parties and join subject-mat- ters of litigation that are distinct in their natures. Authorities above. In Shields v. Thomas, 18 How. 253, 15 L. ed. 368, the court says there has been no rule of equity where less certainty of ap- plication exists, and it results from the variety and degree of interests entering into ordinary transactions. It is said that the Supreme Court has never reversed a case for multifariousness ; it is considered so much a matter of dis- cretion in the lower court as not to be reversible on appeal. Bracken v. Eosenthal, 151 Fed. 136 ; Ulman v. laeger, 67 Fed. 985; Emmons v. National Mut. Bldg. & L. Asso. 68 C. C. A. 327, 135 Fed. 692 ; Dennison Mfg. Co. v. Thomas Mfg. Co. 94 Fed. 652; Harper v. Holman, 84 Fed. 223; Weir v. Bay State Gas Co. 91 Fed. 940 ; Jaros Hygienic Underwear Co. v. Fleece Hygienic Underwear Co. 60 Fed. 622 ; it may be waived. Chicago R. Equipment Co. v. Perryside Bearing Co. 170 Fed. 969. The rule has been treated as one of convenience, and used to prevent parties from being harassed and vexed in litigating matters in which they have no interest, and joining parties with no interests to be litigated, and, on the other hand, to protect the complainant from having to bring several suits when one will suffice. Animarium Co. v. IN'eiman, 98 Fed. 14; Brown V. Guarantee Trust & S. D. Co. 128 U. S. 415, 32 L. ed. 471, 9 Sup. Ct. Rep. 127. It is thus seen that no rule can be laid down which would determine in all cases whether the bill be multifarious or not; and I can only briefly refer to cases stating conditions under which bills have been declared multifarious. In Von Auw v. Chicago Toy & Fancy Goods Co. 69 Fed. 450, the court, quoting from Beach, Mod. Eq. Pr. says : First. To be multifarious two or more causes of action must be joined against two or more defendants. Security Sav. & L. Asso. V. Buchanan, 14 C. C. A. 97, 31 U. S. App. 244, 66 Fed. 802 ; Brown v. Guarantee Trust & S. D. Co. 128 U. S. 403-412, 32 L. ed. 468-470, 9 Sup. Ct. Rep. 127. 292 MULTIFAEIOtrSNESS AND MISJOINDEK. Second. The causes must have no connection or common origin. Ziegler v. Lake Street Elev. E. Co. 22 C. 0. A. 465, 46 U. S. App. 242, 76 Fed. 662. Third. Evidence supporting one cause must be wholly im- pertinent to the other. Fourth. One or more of the causes must be capable of being fully determined without bringing in the other cause to adjust the equities between the parties to the bill. Fidelity & D. Co. V. Fidelity Trust Co. 143 Fed. 156. Fifth. The relief in the two causes must be distinct so that the satisfaction in one would not be a satisfaction of the other. As stated in First ISTat. Bank v. Peavey, 75 Fed. 155 ; Erown v. Guarantee Trust & S. D. Co. 128 U. S. 403, 32 L. ed. 468, 9 Sup. Ct. Eep. 127, the ground of the causes of action must be different, and each ground must be sufficient to sup- port a bill. Ziegler v. Lake Street Elev. K. Co. 22 C. C. A. 465, 46 U. S. App. 242, 76 Fed. 662. Mr. Heard, in his Pleading with Precedents, lays down the rule as follows : "Can the defendant say, I am called to answer a bill containing two distinct subject-matters, with one of which I am concerned, and there are other defendants not con- cerned with me in that matter." He illustrates by a bill brought against several infringers of patents, each infringer having no concern with the wrong done by others. So, selling different lots of land out of the same tract to different individuals cannot be enforced by one bill against all the purchasers, nor can they unite in a bill to demand specific performance. Gaines v. Chew, 2 How. 619, 11 L. ed. 402. So, a bill setting up alleged liability of an assignee for un- paid stock to a corporation, and the liability of five others for colluding to defraud the creditors of the corporation, and a fraudulent sale of a railroad, is multifarious. Holton v. Wal- lace, 66 Fed. 409. So, you cannot join an action against officers of a corporation for deceit, and against the corporation for dissolution and ac- counting. Watson V. United States Sugar Refinery, 15 C. C. A. 662, 34 U. S. App. 81, 68 Fed. 769 ; Morse v. Bay State Gas Co. 91 Fed. 944, So, you cannot ask to enforce a trust in real estate and quiet title of one of the complainants in the property (Leslie v. Les- MULTIFAEIOUSNESS AND MISJOINDEE. 293 lie, 84 Fed. 71 ; see First Nat. Bank v. Peavey, supra) ; but a trustee may set up a right in himself as well as trustee (Met- ropolitan Trust Co. V. Columbus S. & H. E. Co. 93 Fed. 689). So, a suit by a stockholder, which seeks for himself to can- cel stock and be relieved from the ownership, and in behalf of other stockholders to set aside fraudulent transfers of property, is multifarious. Church v. Citizens' Street E. Co. 78 Fed. 529; Inman v. New York Interurban K. Co. 131 Fed. 997. So, where one gives to another two mortgages on separate lots, covering separate loans on each lot, and the lots have been conveyed to different persons, who are made defendants, the effort to foreclose both mortgages in one suit would be multi- farious. Eastern Bldg. & L. Asso. v. Denton, 13 C. C. A. 44, 31 U. S. App. 187, 65 Fed. 569; see Commercial Bank v. Sandford, 99 Fed. 154. So, antagonistic alternative prayers make the bill multi- farious. Cutter V. Iowa Water Co. 96 Fed. 777 ; see Halsey v. Goddard, 86 Fed. 25. These cases in a measure illustrate the rule that joining in one bill distinct and unconnected matters against one defendant or several matters of a distinct and in- dependent nature against several defendants, so that the parties are liable respectively, and not as connected with each other, makes the bill multifarious. Brown v. Guarantee Trust & S. D. Co. 128 U. S. 403, 32 L. ed. 468, 9 Sup. Ct. Eep. 127. Then a bill to be free from this vice must relate to matters of the same nature having a connection with each other, and in which all of the defendants are more or less concerned. Thus, a cause of action against a corporation to foreclose, and one against stockholders to recover dividends because of wrongful distribution, would be multifarious if joined. New Hamp- shire Sav. Bank v. Eichey, 58 C. C. A. 294, 121 Fed. 956; Central Nat. Bank v. Fitzgerald, 94 Fed. 16 ; Dial v. Eeynolds, 96 TJ. S. 340, 24 L. ed. 644; Hayden v. Thompson, 67 Fed. 273. For while courts of equity are averse to a multiplicity of suits, yet they will not permit parties and causes of action to be united in one suit, where the grounds of complaint are wholly distinct and unconnected and parties have no common interest in them. Farson v. Sioux City, 106 Fed. 278. While multi- fariousness must depend on the facts of each case, and therefore must necessarily depend on the discretion of the chancellor, yet 294 MULTIFAEIOUSirKSS AITD MISJOIKDEH. the judicial discretion has been largely controlled by the case of Brown v. Guarantee Trust & S. D. Co. 128 U. S. 412, 32 L. ed. 470, 9 Sup. Ct. Eep. 127, wherein the following formula was stated: First. The grounds of the suit must be different. Second. Each ground must be sufficient as stated in the bill. Third. It is not indispensable that all the parties should have an interest in all the matters contained in the suit, but will be sufficient if each party has an interest in some material matter in the suit and they are connected with the others. Cur- ran V. Campion, 29 C. C. A. 26, 56 U. S. App. 383, 85 Fed. 70. It may be said, then, that no bill is multifarious that pre- sents a common point of litigation and the decision of which will affect the whole subject-matter and settle the rights of all parties to the suit. Eogers v. Penobscot Min. Co. 83 C. C A. 380, 154 Fed. 608; Illinois C. E. Co. v. Caffrey, 128 Fed. 770 ; Kelley v. Boettcher, 29 C. C. A. 14, 56 U. S. App. 363, 85 Fed. 64 ; Westinghouse Air Brake Co. v. Kansas City South- ern E. Co. 71 C. C. A. 1, 137 Fed. 26; Pennsylvania Co. v. Bay, 150 Fed. 770. To illustrate: Two persons cannot unite distinct titles, al- though against the same person; but a party claiming through different titles the same property may unite the titles in the same bill. Stephens v. McCargo, 9 Wheat. 504, 6 L. ed. 146 ; Westinghouse Air Brake Co. v. Kansas City Southern E. Co. 71 C. C. A. 1, 137 Fed. 32, 33, reviewing cases. The rule may be further illustrated as follows: A claim of a minority stockholder on his own behalf and in behalf of the corporation, founded on same facts, may be joined. Jones v. Missouri-Edison Electric Co. 75 C. C. A. 631, 144 Fed. 767. See Eyan v. Seaboard & E. E. Co. 89 Fed. 397. So, a bill for specific performance of an agreement to de- liver coal for money advanced, with alternative prayer for fore- closure of a mortgage securing the loan, would not be multi- farious. Peale v. Marian Coal Co. 172 Fed. 639. So, a bill by a judgment creditor to subject property fraudu- lently conveyed, because brought against different persons hold- MULTIFAEIOUSNESS AND MISJOINDER. 295 ing the property by different conveyances, is not multifarious. Fowler v. Palmer, 87 C. C. A. 157, 160 Fed. 1 ; Hultberg v. Anderson, 170 Fed. 657; United States v. Allen, 171 Fed. 907. So, a bill to require an accounting is not multifarious be- cause of different and separate transactions set out, even though as to some of them there was a remedy at law. United Cigar- ette Mach. Co. V. Wright, 132 Fed. 195; McMullen Lumber Co. V. Strother, 69 C. C. A. 433, 136 Fed. 296. So, where a bill is filed against several persons involving mat- ters of the same nature, making up a series of acts intended to defraud the complainant, in which all the defendants were con- cerned, is not multifarious. Horner-Gaylord Co. v. Miller, 147 Fed. 295; Field v. Western Life Indemnity Co. 166 Fed. 607 ; Sipe v. Columbia Eef. Co. 171 Fed. 295. So, a bill filed by a receiver against a number of directors to recover money lost through misconduct is not multifarious. Allen V. Luke, 141 Fed. 694 ; Boyd v. Schneider, 65 C. C. A. 209, 131 Fed. 223. So, joining two or more complainants having separate inter- ests, but dependent on the same issues, requiring the same evi- dence, and leading to the same decree, is not multifarious. Den- nison Mfg. Co. v. Thomas Mfg. Co. 94 Fed. 651 ; see South Penn. Oil Co. v. Calf Creek Oil & Gas Co. 140 Fed. 508; Home Ins. Co. v. Virginia-Carolina Chemical Co. 109 Fed. 682, S. C. 51 C. C. A. 21, 113 Fed. 5 ; Barcus v. Gates, 32 C. C. A. 337, 61 U. S. App. 596, 89 Fed. 783; Liverpool & L. & G. Ins. Co. V. Clunie, 88 Fed. 160. So, a biU to enjoin diverting waters would not be multifari- ous because portions of the water are claimed by different rights. Eincon Water Co. v. Anaheim Union Water Co. 115 Fed. 544; Pacific Live-Stock Co. v. Hanley, 98 Fed. 327. A bill is not multifarious because it seeks to enforce two series of bonds against a city, though to be paid for different- ly. Burlington Sav. Bank v. Clinton, 106 Fed. 270. So, a bill to set aside a will and also a deed made by the same person, and alleged to have been procured by fraud of one of the defendants, would not be multifarious (Williams v. Crabb, 59 L.E.A. 425, 54 C. C. A. 213, 117 Fed. 193), provided the rights of the other defendants will not be prejudiced thereby 296 MTJLTIFABIOUSNESS AND MISJOINDEE. (Ibid.). IN^or where the bill alleges the infringement of two separate patents but both being processes having a single ob- ject. United States Mineral Wool Co. v. Manville Covering Co. 101 Fed. 145. See "Multifariousness in Patent Cases;" Wilkins Shoe-Button Fastener Co. v. Webb, 89 Fed. 989 ; Chis- holm V. Johnson, 106 Fed. 191. Again, it has been held that where a person has a number of separate claims against the same party, but all arising from a common cause governed by the same law and facts, a court will entertain the bill. This is permitted to avoid a multi- plicity of suits, which is a distinct ground of equitable juris- diction. Watson V. ISTational Life & T. Co. 88 C. C. A. 380, 162 Fed. 7; Illinois C. E. Co. v. Caffrey, and Liverpool & L. & G. Ins. Co. V. Clunie, supra ; Sang Lung v. Jackson, 85 Fed. 502 ; Louisville, N. A. & C. E. Co. v. Ohio Valley Improv. & Contr. Co. 57 Fed. 42 ; Union & Planters' Bank v. Memphis, 49 C. C. A. 455, 111 Fed. 561; Virginia-Carolina Chemical Co. V. Homa Ins. Co. 51 C. C. A. 21, 113 Fed. 5 ; Delaware, L. & W. E. Co. V. Frank, 110 Fed. 695. See People's Xat. Bank V. Marye, 107 Fed. 570 ; Fitchett v. Blows, 20 C. C. A. 286,. 36 U. S. App. 597, 74 Fed. 50. So, to establish a lien and personal indebtedness. Inger- soU V. Coram, 127 Fed. 418. Why and How Multifariousness Should he Set Up. The objection of misjoinder and multifariousness, if raised and shoTild prevail, avoids the separate proofs and pleadings rendered necessary by joining unconnected matters. Again, if not objected to, and you undertake to answer the multifarious bill, it is possible you may have one of the matters ripe for hearing and the other awaiting proofs, and at all events, you would be subjected to the delay and expense of providing proofs on unconnected matters, which a reasonable objection in time may have prevented. If you desire to raise the issue, it must be done in limine, by demurrer, or motion to strike out, or it is waived. Emmons v. National Mut. Bldg. & L. Asso. 68 C. C. A. 327, 135 Fed. 689 ; McCloskey v. Barr, 38 Fed. 166; Fitchett v. Blows, supra; Converse v. Michiaran Dairy Co. 45 Fed. 18; Eanger v. Campion Cotton-Press Co. ilULTIFAEIOTJSXESS AXD MISJOIjSDEE. 'Ji) I 52 Fed. 611; Barney v. Latham, 103 U. S. 215, 26 L. ed. 51S; Uuited States v. Agee, 47 C. C. A. 152, 108 Fed. 10. Form of Demurrer. Title as In bill, and court in which filed, as given before. And now comes the defendant and demurs to bill herein filed, because it appears from said bill that the same is exhibited against this defendant and others (naming them) for several distinct matters and causes of action, In some of which, as appears by the bill, this defendant is in no way interested, that by thus joining the causes of action as therein contained, which are independent of each other, the proceedings will be unnecessarily intricate and prolix, and this defendant will be put to unnecessary costs in matters in which in no way relates to or concerns him. Wherefore the defendant prays the judgment of the court whether he shall be compelled to answer further, and prays to be dismissed with his costs in this behalf incurred. R. F., Solicitor, etc. Certificate of counsel; affidavit of defendant. The same form is sufficient for the motion if objection is made by motion, except that you begin, by,- "now comes the de- fendant and moves the court to dismiss the bill for multifari- ousness, for that it appears," etc. CHAPTEE Ln. EQUITY EUUES A2fD ECI^ DATS. We have now reached a point where the hill is prepared ready for filing, but before proceeding with the manner and effect of filing the bill, it is necessary to speak of the rules governing the preparation of a case in equity for final hearing in the Federal courts, and of the "rule days,"' and the purposes for which they are set apart. From the time of filing the biU until the final hearing, every step taken is governed by rules established by the Supreme Court of the United States, as well as by the circuit and dis- trict courts ; the rules established by the two last courts being only for convenience and entirely local in effect The object and purpose of the rules thus promidgated is to speed and ma- ture the cause for final hearing on its merits (Allen v. Xew York, IS Blatchf. 239, 7 Fed. 4S3), and they must be fol- lowed (Washington, A. & G. E. Co. v. Bradley [Washington, A. &: G. E. Co. V. Washington], 10 Wall. 307,' 19 L. ed. S95; Bank of United States v. '^Tiite, S Pet. 269, S L. ed. 941; Gaines v. Eelf, 15 Pet. 9, 10 L. ed. 612), unless insistence upon them would cause great injustice. The authority to pro- mulgate these rules is found in sec. 913 (U. S. Comp. Stat. 1901, p. 6S3). act of 1792, and sec. 917, act of 1S12, of the United States Eevised Statutes, which provides that the Su- preme Court of the United States may from time to time pre- scribe, in any manner not inconsistent with any law of the United States, the forms of writs, etc. * * * gj^j ^^ regu- late the whole practice to be used in suits in equity. Steam Stone Cutter Co. v. Jones, 21 Blatchf. 13S, 13 Fed. 577; Mahr V. Union P. E. Co. 140 Fed. 925 ; Deprez v. Thomson Hous- ton Electric Co. 66 Fed. 23. By section 91S, U. S. Eev. Stat, it is provided that the sev- eral circuit and districts courts of the United States mav, in a 295 EQUITY EULES AND RUI^ DAYS. 299 manner not inconsistent with a law of the United States or with a rule of the Supreme Court, make rules and orders di- recting the return of writs and process, filing pleading, tak- ing of rules, and otherwise regulate their o^vn practice as may be convenient for the advancement of justice or prevention of delay in proceedings. In accordance with the above provisions the Supreme Court in promulgating its rules in 1S42 provided by equity rule 89 for the circuit and district judges concurring, to prescribe rules by them for their judicial districts not to be inconsistent with the rules prescribed by the Supreme Court. Equity rule S9 was amended in 1894, and now a rule can only be adopted regulating the practice of the Federal courts of equity in any particular district by a concurrence of a ma- jority of the judges of the circuit and the district judge of the district seeking to have the rule established, and the jus- tice of the Supreme Court assigned to the circuit. 152 U. S. 710, 38 L. ed. 1096. So, then, we have the equity practice in the Federal courts regulated : First. By the laws of Congress. Second. By the rules promulgated by the Supreme Court under the authority of Congress, now ninety-four in num- ber. Third. By such local rules in particular districts as have been promulgated by a majority of the judges, as provided by the act of 1891, above referred to. Eev. Stat. sees. 913- 918. Steam Stone Cutter Co. v. Jones, supra; Gaines v. Xew Orleans, 27 Fed. Ill; Bein v. Heath, 12 How. 178, 13 L. ed. 943; Osbom v. Detroit, 28 Fed. 385; Allen v. Xew York, supra; Martindale v. Waas, 3 ilcCrary, 637, 11 Fed. 551; Xorthwestem Mut. L. Ins. Co. v. Keith, 23 C. C. A. 196, 40 U. S. App. 706, 77 Fed. 374-375. The practice in equity, then, is regulated by the Federal judiciary, if not provided for by Congress, as experience de- velops necessity ; and when rules are thus established, they have the full force of an act of Congress, if not in conflict with some previous law of Congress. United States v. Barber Lumber Co. 169 Fed. 180-187; Xorth western Mut. L. Ins. Co. v. 300 EQUITY EULES AJTD ECLE DATS. Keith, supra; Bryant Bros. v. Kobinson, 79 C. C. A. 259, 149 Fed. 321 ; Bein v. Heath, supra. If any question of practice should arise not provided for by these rules thus promulgated, then equity rule 90 pro- vides that the practice in the circuit court in equity shall be regulated by the practice of the High Court of Chancery in England as far as it may be reasonably applied ; not as a posi- tive rule, but as furnishing a just analogy. Lewis v. Shain- wald, 48 Fed. 492 ; Continental Trust Co. v. Toledo, St. L. & K. C. E. Co. 82 Fed. 646. It is, however, only the remedy that must be pursued; the equitable right must be given by local law. James v. Gray, 1 L.K.A.(X.S.) 321, 65 C. C. A. 385, 131 Fed. 409, 410. Prior to the promulgation of the rules of practice by the Supreme Court, the practice of the High Court of Chancery of England furnished the only analogy and guide for equity procedure. Xational Folding Box & Paper Co. v. Dayton Paper Xovelty Co. 91 Fed. 825. Mr. Justice Bradley in Thomson v. Wooster, 114 C S. 112, 29 L. ed. 107, 5 Sup. Ct. Eep. 788, said that the English edi- tion of Daniel's Chancery Practice, published in 1840, con- tained the best exposition of the practice of the High Court of Chancery of England up to the time the equity rules were adopted in 1842. The courts have power to suspend these rules, and except a particular case from their operation if jus- tice requires it, especially as to the time and manner of ap- pearing and answering. Poultney v. La Fayette, 12 Pet. 475, 9"l. ed. 1162. So much, then, for the sources of authority and effect of the equity rules. As to the history of the rules and amend- ments thereto see 210 TT. S. beginning at p. 508. Rule Days. The circuit courts are always open for the purpose of filing bills, demurrers, pleas, answers and other pleadings: also for the issuance of process and for making all interlocutorv mo- tions, orders, rules, and directions necessary to mature the case for trial on its merits. Equity rule 1. It became necessarv to fix stated times when motirms, rules, orders, and other pro- EQUITY EULES AND EULE DATS. 301 ceedings, grantable of course, could be entered, as well as to fix periods controlling service and return of process, and for entry of appearance and filing responsive pleadings ; so the first Mon- day in each month was selected as the stated time -n-hen the proceedings as above set forth could be had, and were called ''rule days." The clerk's ofiice is open on these days, and the clerk is re- quired to be present for the purpose of receiving, entering, en- tertaining, and disposing of all motions, rules, orders, and other proceedings applied for and grantable of course, which may be had by parties, or their solicitors, in all causes pending in equity in pursuance of the prescribed rules. Equity rule 3. Equity Tvle 3 prescribes that any judge of the circuit court may on a rule day in term time, or in vacation at chambers, make and direct all such interlocutory orders, rules, and other proceedings, not grantable of course, preparatory to hearing all causes on their merits, in the same manner and with the same effect as the circuit court could make and direct the same in term time, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary at the next rule day thereafter, un- less some other time is assigned by the judge for the hearing. U. S. Eev. Stat. sec. 63S, U. S. Comp. Stat. 1901, p. 519. Thus we see that applications may be made on rule days for all orders grantable of course, to the clerk of the circuit court, but for orders not grantable of course, application must be made to the court. Orders Grantable of Course. Equity rule 5 provides that all motions and applications in the clerk's office for the issuing of mesne process; also final process to enforce and execute decrees ; also for filing bills, an- swers, pleas, and demurrers; also for making amendment to bills and answers; for taking bills pro confesso; for filing ex- ceptions and for other proceedings in the clerk's office, which do not by the rules established by the Supreme Court require an allowance or order of court, or any judge thereof, shaU be deemed motions grantable of course by the clerk of the court. Thus, then, we have set apart rule days when all these mat- n02 EQUITY EULES AND EtTLE DATS. ters grantable of course by the clerk of the court must be filed and taken, and which are intended to promote the orderly con- duct of procedure in an equity suit, and the more speedily bringing it to final hearing on its merits. Special motions, rules, orders, and other proceedings not grantable of course that is, those which require the action of the court or judge under equity rule 3 may be granted by the judge at chambers, in vacation, or in term time, or on the rule days at the clerk's oifice, if the judge be there; but in these cases reasonable notice must be given to the adverse party, or his so- licitor, if he have one, to show cause by the next succeeding rule day why the order asked for should not be granted. The judge, however, may appoint such time to answer as he deems best, and is not boimd to hearing on a ruJe day; how- ever, all rules, orders, motions, or other proceedings not grant- able of course, or without notice, shall, imless a different day be assigned by a judge, be made at the rule day next after that on which the motion is made ; and it is provided by equity rule 6 that where notice of the application for matters not grantable of course has been given, and the adverse party, or his solicitor, does not appear or show good cause against the same, the motion may be heard ex parte by the judge, and granted or refused iu his discretion. CHAPTEE Lin. OKDEE BOOK. In order to keep a proper docket of all motions, orders, and other proceedings had in an equity case, and which have been made and directed on rule days, or in chambers, and grantable of course by the clerk, or by the court or a judge thereof with or -without notice, the clerk of the circuit court is required to keep a book called an order book, in which every proceeding had is entered on the day when made and directed. Thus a complete history of the case is kept from its filing to its final hearing. This book is open at all hours for the inspection of parties to equity suits, or their counsel. Equity rule 4. Entry as Notice. These entries thus required have been given the effect of no- tice as follows: That except in cases where personal or other notice is not specially required or directed by the equity rules, or by a statute of the United States, or by a judge before whom the motion or application is made, then such entry of the ap- plication or motion in the order book shall be deemed sufficient notice to the parties and their solicitors, without further serv- ice thereof, of all orders, rules, acts, or other proceedings en- tered in such order book touching any and all matters in the suits to and in which they are parties and solicitors. If a rule shall require notice of any proceeding, it is essential to a hear- ing, and when the rule is silent as to personal notice, then the entry in the order book is sufficient. Xotice to the solicitors is notice to the parties in all cases where personal notice to the parties is not otherwise required. The question of notice is under the complete control and discretion of the judge, both as to time, form, and manner of service. A motion requiring no notice to the opposite party may be 303 304 OEDEE BOOK. presented to the judge at any time, or may be sent to the judge with the request to indorse the order granting it upon the ap- plication, but if personal notice is required, then the motion must be served on the adverse party, and then you can get the judge to indorse upon it what day it would be most convenient to hear it, and notice of the day must be given at once to the adverse party or his solicitor, and only the grounds set out in the motion will be considered. Nevada Co. v. Farnsworth, 89 Fed. 167. Orders in Chambers. As seen, any judge of a circuit court may, in his circuit, either on rule days at the clerk's office, or at any time in cham- bers, in term time or vacation, hear any matters not grantable of course upon interlocutory motions, and grant interlocutory orders or decrees touching the preparation of a suit in equity for final hearing, or to preserve the status of the parties or sub- ject-matter involved. Equity rule 3 ; U. S. Eev. Stat. Sec. 638, TJ. S. Comp. Stat. 1901, p. 519. The orders in chambers niay be granted on any other day than a rule day; the time of hearing the application rests en- tirely with the court, who may, and generally does, select a time convenient to court and counsel. If the court fixes a day other than one agreed to by counsel, it is necessary to give the adverse counsel notice of the day as fijxed by the court, unless adverse counsel is present when the court indicates the day for hearing the application. The authority of the judge at chambers is the authority of the court (Walters v. Anglo-American Mortg. & T. Co. 50 Fed. 317), where any order may be made in a case, except a final judgment. This practice in chambers is necessary to facilitate the trial of causes by preventing delays in obtaining orders not grantable of course, but necessary to the preparation for hearing on its merits. Motions. We have seen that much of the preparation of a case re=ts upon motions to be made during its progress, so I wish to brief- OEDEE BOOK. 305 Ij allude to these informal applications for some action, or order of the court deemed necessary to facilitate a hearing of the case. They must state the parties in whose favor and against whom the relief is asked, and they should state accurately the particular relief required, with a prayer for the relief as stated. They are of two kinds, ex parte and on notice, and under which class your motion falls depends upon the rules of court, and the court's discretion. While in many instances they may be verbal, where no notice to your adversary is required, yet it is best to reduce them to writing in all cases, and have the order granting them indorsed upon the motions. Whether in writing or Uxjt they must be entered in the order book in the clerk's office. Motions as they become necessary in developing the progress of a suit in equity will be noticed, and forms from time to time given. And it will be seen that motions are only appropriate in the absence of remedy by regular pleadings (Illinois C. R. Co. V. Adams, 180 U. S. 29, 38, 45 L. ed. 410,' 413, 21 Sup. Ct. Rep. 251), and should not be used to settle important ques- tions of law or to dispose of the merits of the case. Equity rules 4, 5. Thus questions of jurisdiction should generally be raised by demurrer, plea, or answer. Scully v. Bud, 209 U. S. 486, 52 L. ed. 902, 28 Sup. Ct. Eep. 597 ; Desert King Min. Co. V. Wedekind, 110 Fed. 873; McKnight v. Dudley, 103 Fed. 918. In Peacock v. United States, 60 C. C. A. 389, 125 Fed. 586, a motion to strike out portions of pleadings subject to de- murrer was held appropriate but this was an action for a pen- alty, and would not be good practice in equity. However, when fundamental, then the issue may be raised by suggestion, ver- bal or written, or the court may of its own accord act. Eomaine V. Union Ins. Co. 28 Fed. 633; see Interlocutory Orders, chap. 81; Buckles v. Chicago, M. & St. P. E. Co. 53 Fed. 566. When judgment on motion in the progress of a case held to be res judicata, and when not, see Denny v. Bennett, 128 U. S. 499, 32 L. ed. 495, 9 Sup. Ct. Eep. 134. Buckles v. Chicago, K. & St. P. E. Co. supra. The general rule, however is, mo- tions are not applicable except in the absence of a remedy by regular proceeding. Virginia, T. & C. Steel & L Co. v. Harris, 80 0. C. A. 658, 151 Fed. 435. S. Eq.— 20. CHAPTEK LIV. TTLIITG THE BILL AND SEEVING PEOCESS. By equity rule 1 the circuit courts of the United States as courts of equity are always open for the purpose of filing bills, answers, and other pleadings, for issuing mesne and final pro- cess, and commissions to take depositions, and for making and directing all interlocutory motions, orders, rules, and other pro- ceedings preparatory to hearing all cases on their merits. You may file your bill under this rule at any time in the clerk's office, and upon filing it you are entitled to the process of subpoena. By equity rule 7 the process of subpoena shall con- stitute the proper mesne process in all suits in equity in the first instance, to require the defendant to appear and answer the exigency of the bill. By equity rule 11 it is provided that no process of subpoena shall issue from the clerk's office until the bill is filed in said office, but by equity rule 16 it is not until the subpoena is returned served (as hereafter explained) that the clerk can enter the suit on the docket as pending in court, and the clerk shall state the time of entry. Wheeler v. Walton & W. Co. 65 Fed. 722 ; United States v. American Lum- ber Co. 29 C. C. A. 431, 56 U. S. App. 655, 85 Fed. S27; United States v. Miller, 164 Fed. 444. See Himiane Bit. Co. V. Barnet, 117 Fed. 318, declaring that the filing of the bill is the beginning of the suit, citing Farmers' Loan & T. Co. v. Lake Street Elev. E. Co. 177 U. S. 51, 44 L. ed. 667, 20 Sup. Ct. Eep. 564; Armstrong Cork Co. v. Merchants' Eefrigerat- ing Co. 171 Fed. 778. Subpeena. The process of subpoena issues as a matter of course -R-hen the bill is filed in the clerk's office and not before upon the appli- cation of the plaintiff (equity rule 12), and the application is 306 FiriNG THE BILL AND SEKVING PROCESS. 307 ityled the "precipe," which is in the following form and should be filed with the bill : Title as in bill. To the Clerk of the Circuit Court of the United States, District of You will please issue summons for the defendant (or defendants) named in the bill returnable to the rule day in (state month) . R. F., Solicitor, etc. If there is more than one defendant the plaintiff may order subpoenas for each one, except in case of husband and wife, or he mav order a joint subpoena for all. Equity rule 12. The plaintiff in his precipe may order the subpoena made returnable by the next rule day occurring after twenty days from the time of issuing thereof, or he may at his election order it returnable the next rule day but one, occurring after twenty days from the time of issuing the subpoena. By the next rule day is meant the first Monday in the next month after the issuing of the subpoena, provided twenty days will have elapsed between issuing the subpoena and said first Monday. If twenty days will not elapse before the first Mon- day in the next month after issuing the subpoena, the next rule day will be the first Monday of the next succeeding month. Equity rule 12. A printed form of subpoena, provided by the clerk, is issued in the name of the President of the United States, and tested as follows: Witness the Hon , Chief Justice of the United States, this day of 19... and in the year of the Independence of the United States of America. Attest: E. M., [SEAL.] Clerk, etc. U. S. Eev. Stat. Sees. 911, 912, U. S. Comp. Stat. 1901, p. 683 ; Middleton Paper Co. v. Eock Eiver Paper Co. 19 Fed. 2.52; Chamberlain v. Mensing, 47 Eed. 436; United States v. Turner, 50 Eed. 734; Leas v. Merriman, 132 Eed. 512, and cases cited ; Jewett v. Garrett, 47 Fed. 627. Eule 12 also provides that at the bottom of the subpoena shall. 308 PILING THE BrLL A^TJ SEEVIXG PEOCES3. be placed a memoranduin by the clerk that the defendant is to enter an appearance in the suit at the clerk's office on or before the day on •which the writ is returnable, otherwise the bill will be taken pro confesso. The memorandum follows the precipe. By equity rule li if the subpoena is returnable not served, the plaintiff is entitled to another imtil service is had. Ojjice of SuipcBTia. We have seen by equity rule 7 that the subpoena is the proper mesne process in equity to appear and answer the exigency of the bill. Its sole office is to bring the defendant into court to give jurisdiction. Seattle L. S. A: E. R. Co. v. Union Trust Co. 24 C. C. A. 512. 4S U. S. App. 255, 79 Fed. 179; Wheeler v. Walton & W. Co. supra; Eodgers v. Pitt. 96 Ted. 673, 674; Wilmer v. Atlanta & E. Air-Line E. Co. 2 Woods, 409, Fed. Cas. Xo. 17.775. It has no extraterritorial effect, so if issued to be served out of the district it is a nullity, unless permitted by statute, as in sections 740, 741 and 742, of U. S. Eev. Stat. U. S. Comp. Stat. 1901, pp. 5S7, 5SS. or in the act organizing the Federal district in which the suit is brought. In aU of the acts of organization of these districts the territorial extent of the process is generally stated. United States v. American Lumber Co. SO Fed. 311," S. C. 29 C. C. A. 431, 56 U. S. App. 655, So Ted. S27 : United States ex rel. Mcintosh v. Crawford, 47 Ted. 561; United States v. Stem, 177 Fed. 479; Hunter v. Eussell, 59 Fed. 966; Kirk v. United States. 124 Fed. 336; Eomaine v. Union Ins. Co. 2S Fed. 625; Galpin v. Page, IS Wall. 368, 21 L. ed. 963 ; Treadwell v. Seymour, 41 Fed. 580. Sections 740, 741 and 742 have been before set forth, pro- viding for service of process when there were several districts in one State and defendants in different districts, or when the action was local, or the land sued for lies in different districts. It was permitted in these eases to direct subpcenas to the United States marshals of the several districts in the same State. With these exceptions the subpoena cannot go beyond its district within which it is issued, and service in personal action can only be perfected upon the defendant within the district of the court's jurisdiction from whence the process issue?. Ableman V. Booth, 21 How. 524, 16 L. ed. 176; Toland v. Sprasue. 12 FILING THE BILL AXD SEEVIXG PROCESS. 309 Pet 32S-330, 9 L. ed. llOi, 1105. If not thus served the court has no jurisdiction over the defendant unless he volun- tarily appears. U. S. Rev. Stat. Sec. 739 ; Hardenberg v. Eay, 33 Fed. S14; Jewett v. Garrett, 47 Fed. 630. Delivery to Marshal. The subpoena, being thus prepared, must be delivered to the United States marshal of the district where issued. Legisla- tion does not provide how it is to be delivered, further than to harmonize with the delivery of writs of that character in the State. U. S. Eev. Stat. Sec. 911, TJ. S. Comp. Stat. 1901, p. i-iS3. It is no doubt the policy of the law to keep the process of the court under the supervision and control of the court; it should therefore be delivered by the clerk to the United States marshal for service. See Jewett v. Garrett, 47 Fed. 625. In the act reorganizing the districts of Texas, it was pro- vided that when process was issued to defendants residing in several districts, that duplicate writs were to be indorsed by plaintiff or his attorney that such duplicates were true copies of the process sued out of the proper district. This seems to contemplate that the process was to be delivered to the plaintiff or his attorney, to be sent to the marshals of other districts, but, as stated, this practice has not been pursued in Texas. See Ibid. Service of the Subpcma. Jurisdiction is only acquired by service of subpoena or vol- untarv appearance. Jewett v. Garrett, 47 Fed. 630 ; Ee Gross- maver, 177 U. S. 50, 44 L. ed. 666, 20 Sup. Ct. Eep. 535; Caledonian Coal Co. v. Baker, 196 U. S. 444, 49 L. ed. 545, 25 Sup. Ct. Eep. 375, and eases cited; Kent v. Honsinger, 167 Fed. 625. Bv equity rule 15 it is provided that the service of all mesne and final process shall be by the marshal of the district, or his deputv, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case the person serving the process must make affidavit thereof. U. S. Eev. Stat, sec." 787, U. S. Comp. Stat. 1901, p. 60S, makes 310 PILING THE BILL AISD SEEVISG PROCESS. it the duty of United States marshals to serve throughout his district all lawful precepts directed to him and issued under the authority of the United States. See sec. 790, U. S. Comp. Stat. 1901, p. 609. Except when, as provided in section 922, U. S. Comp. Stat. 1901, p. 686, the marshal is a party to the suit, then the court must on application name a person to whom the process must be directed for service. But it is held in Barnes v. Western U. Teleg. Co. 120 Fed. 550, that if the deputy marshal serves the writ upon the marshal it is waived by appearance. See Piatt v. ilanning, 34 Fed. 817. Jewett V. Garrett, 47 Fed. 625. Service; How Blade. The service of subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant per- sonally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member or resident in the family. Equity rule 13 ; King V. Davis, 137 Fed. 206 ; United States v. American Lum- ber Co. 29 C. C. A. 431, 56 U. S. App. 655, 85 Fed. 831; Phoenix Mut. L. Ins. Co. v. Wulf, 9 Biss. 2S5, 1 Fed. 775 ; Blythe v. Hinckley, 84 Fed. 228 ; Von Eoy v. Blackman, 3 Woods, 98, Fed. Cas. ifTo. 16,997. Usual place of abode mean- ing present residence, and not last place of abode. Earle v. McVeigh, 91 U. S. 508, 23 L. ed. 400 ; Swift v. ileyers, 37 Fed. 42 ; Blythe v. Hinckley, supra. The method thus pro- vided for the service of process must be followed in equity. State statutes have no control. Kent v. Honsinger, supra; U. S. Rev. Stat, sec 914 has no application to equity. O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840. The service is governed by the judiciary acts and rule 13. Service; Where Made. The service must be made within the district, or it is void. U. S. Eev. Stat. sees. 740, 741, 986, U. S. Comp. Stat. 1901, pp. 587, 58S, 707. It has already been stated that the sub- poena has no extraterritorial effect, and authorities given. See further to same effect. Waters v. Central Trust Co. 62 C. C. ^ILI^'G THE BILL AND SEEVI^'G PEOCESS. 311 A. 45, 12G Fed. 471; Cely v. Griffin, 113 Fed. 981; Toland V. Sprague, 12 Fet. 300, 9 L. ed. 1093. It may be served on party while in transit through district (Jewett v. Garrett, 47 Fed! 625; Holyoke & S. H. F. Ice Co. v. Ambden, 21 L.E.A. 319, 55 Fed. 593), when suit filed in plaintiff's district as provided for in act of ISSS; and if not made personally must be left with an adult person who is a member of the family, or residing with the family. Von Eoy v. Blackman and Fhoenix Mut. L. Ins. Co. v. Wulf, supra. If a person declines to re- ceive the paper from the officer, he may deposit it in any con- venient place in the presence of the party, and the service will be good. And the service of process may be made by the mar- shal after removal, or an expired term. U. S. Rev. Stat. sec. 790, F. S. Comp. Stat. 1901, p. 609. Fnder equity rule 13 service on the husband and wife was held good if only served on husband, but since the amended rule of IS 74 it must be served on both. O'Hara v. MacCon- nell, supra. Service on Attorney. When the suit is auxiliary in its nature, as when brought to sustain an action at law or in cases of cross bills, service on attorneys who appeared for the parties in the action at law or in the original bill has been held to be valid, or then in such cases such substituted service is not allowed. Shainwald v. Davids, 69 Fed. 702. 703; Cortes Co. v. Thaunhauser, 20 Blatchf. 59, 9 Fed. 227; Bowen v. Christian, 16 Fed. 729. (See ''Substituted Service.") So when suit is brought to ob- tain a new trial at law. Milwaukee & 'M. E. Co. v. Milwaukee & St. P. E. Co. (Milwaukee & M. E. Co. v. Soutter) 2 Wall. 633, 17 L. ed. 895; Oglesby v. Attrill, 14 Fed. 214. Service on Agent. Service on any agents or employees having charge or control of the inclosure of public lands of the United States will be sufficient when injunctions are sued out by the United States to restrain any violation of the laws of the United States in oc- cupying said lands. Chap. 2 sec. 24, par. 21, New Code, ef- fective January 1st, 1912. 312 FILING THE BILL AKD SEKVING PEOCESS. Service on Executor or Gtuirdian. Service on in official capacity is sufficient as personal serv- ice. Cornell v. Green, 37 C. C. A. 85, 95 Fed. 334. Service on a State, When process issues against a State, tlie subpoena should be served on the executive and attorney general. Eule 5. Process must be directed to the State. Florida v. Georgia, 11 How. 293, 13 L. ed. 702; Ehode Island v. Massachusetts, 7 Pet. 651, 8 L. ed. 816 ; Xew Jersey v. Xew York, 3 Pet 461, 7 L. ed. 741; S. C. 5 Pet. 289, 8 L. ed. 129. When Suhpcena Cannot be Served. A defendant may be privileged from service, though within the jurisdiction of the court issuing the service; and in such cases service, if made, can be quashed on motion. Matthews V. Puffer, 20 Blatchf. 233, 10 Fed. 606. Thus, a party en- ticed into the district for the purpose of serving him cannot be legally served with process. Ke Johnson, 167 U. S. 126, 42 L. ed. 105, 17 Sup. Ct. Eep. 735 ; Steiger v. Bonn, 4 Fed. 17 ; Cavanagh v. Manhattan Transit Co. 133 Fed. 818 ; Jewett V. Garrett, 47 Fed. 631 ; Fitzgerald & M. Constr. Co. v. Fitz- gerald, 137 TJ. S. 105, 34 L. ed. 608, 11 Sup. Ct. Eep. 36. Or when attending a judicial hearing as party or witness. Brooks V. Farwell, 1 McCrary. 132. 2 McCrary, 220, 4 Fed. 166; Kinne v. Lant, 68 Fed. 436; Kauffman v. Kennedy, 25 Fed. 785 ; Morrow v. Dudley, 144 Fed. 441 ; Bridges v. Shel- don, 18 Blatchf. 295, 7 Fed. 19: Jewett v. Garrett, supra; Plimpton V. Winslow, 20 Blatchf. 82, 9 Fed. 365 ; Atchison v. Morris, 11 Biss. 191, 11 Fed. 582 ; Hale v. Wharton, 73 Fed. 741 ; but see Iron Dyke Copper Min. Co. v. Iron Dyke E. Co. 132 Fed. 208, for exception. The privilege is limited to a rea- sonable time. Miner v. Markham, 2S Fed. 387. And it does not apply to one voluntarily coming withiu the jurisdiction of the court Brush Creek Coal &: Min. Co. v. Morgan-Gardner Electric Co. 136 Fed. 505; Houston v. Filer k S. Co. 85 Fed. 758. FILING THE BILL AND SERVING PROCESS. 313 Service Before Return Day. The writ is functus officio if not served before return day. Edmonson v. Bloomshire, 7 Wall. 310, 19 L. ed. 92. If served after return day, all proceedings thereafter, in the absence of appearance by defendant, are void. Equity rule 12; equity ruel 14 . Effect of Valid Service. The jurisdiction of the Federal courts attaches when service is perfected, and not on filing bill. United States v. Miller, 164 Fed. 444 ; United States v. American Lumber Co. 29 C. C. A. 431, 56 U. S. App. 655, 85 Fed. 827 ; Owens v. Ohio C. E. Co. 20 Fed. 10-12; Kodgers v. Pitt, 96 Fed. 668-673; United States v. Eisenbeis, 50 C. C. A. 179, 112 Fed. 196; TTheeler v. Walton & W. Co. 65 Fed. 722. And this applies when the issue arises between courts of concurrent jurisdiction a§ to which court first took jurisdiction. Ibid. ; and Pitt v. Rodgers, 43 C. C. A. 600, 104 Fed. 389. (See "Conflict be- tween State and Federal courts.") In Armstrong Cork Co. V. Merchants' Refrigerating Co. 184 Fed. 200, it is said if no delay in issuing subpcEna, filing the bill begins the suit. Beturn of Subpoena. By equity Tule 12 it is provided that the subpcena shall be returnable to the clerk's office the next rule day, or the next rule day save one, as already explained. By equity rule 16 it is provided that upon the return of the subpoena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of entry. Humane Bit Co. v. Bamet, 117 Fed. 316. U. S. Rev. Stat sec. 660, U. S. Comp. Stat. 1901, p. 542, provides that no process in any circuit court shall abate or be rendered invalid by reason of any act changing the time of holding the court, but the same shall be deemed returnable to the term next after the return day thereof. The return must be made by the marshal or deputy or by the court's appointee by affidavit (Hill v. Gordon, 45 Fed. 278 ; see United States V. Gayle, 45 Fed. 107) ; and it must show that the subpoena 314 FIXIIfG THE BrLL AND SEEVING PEOOESS. has been served in pursuance of the requirements of equity rule 13, as previously given. When the service is not made by a delivery of a copy of the subpoena to the person named, but by leaving a copy at the dwelling house or usual place of abode of each defendant, with some adult person who is a member or resident in the family, the return must show that the provision of the statute was exactly pursued. Von Roy v. Blackman, 3 Woods, 98, Fed. Gas. Xo. 16,997. Thus, a return stating that a copy was de- livered to an adult who was a resident of the place of abode was held insufficient. Blythe v. Hinckley, S-i Fed. 228 ; Harris V. Hardeman, 14 How. 334, 14 L. ed. 444; United States v. American Bell Teleph. Co. 29 Fed. 32. Service may be made at door outside of dwelling, not necessarily "in the dwelling." Phurts in trdns the suf- APPEARANCE. 331 ficiency of service, and so in Federal courts legality of service is not waived by special appearance to set it aside, nor even after such motion lias been denied will it be waived by answer- ing to the merits, for it may be reviewed on appeal. Wall v. Chesapeake & O. E. Co. 37 C. C. A. 129, 95 Fed. 398; Hark- ness V. Hyde, 98 U. S. 476, 25 L. ed. 237; Mexican C. K. Co. V. Pinkney, 149 U. S. 209, 37 L. ed. 705, 13 Sup. Ct. Eep. 859; Southern P. Co. v. Denton, 146 U. S. 202, 36 L. ed. 942, 13 Sup. Ct. Eep. 44 ; Ellsworth Trust Co. v. Parramore, 48 C. C. A. 132, 108 Fed. 906. jSTor does a special appearance for petition to remove waive objection to service. Clews v. Woodstock Ins. Co. 44 Fed. 31 ; Morris v. Graham, 51 Fed. 53; Southern P. Co. v. Denton, 146 U. S. 206, 36 L. ed. 942, 13 Sup. Ct Eep. 44; Goldey v. Morning jSTews, 156 U. S. 522, 523, 39 L. ed. 518, 519, 15 Sup. Ct. Eep. 559 ; Eeifsnider v. American Imp. Pub. Co. 45 Fed. 433 ; Wabash Western E. Co. V. Brow, 164 U. S. 276, 41 L. ed. 433, 17 Sup. Ct. Eep. 126; Kinne v. Lant, 68 Fed. 436; Donahue v. Calumet Fire Clay Co. 94 Fed. 26; Collins v. American Spirit Mfg. Co. 96 Fed. 133 ; Mecke v. Valley Town Mineral Co. 89 Fed. 114; Sharkey V. Indiana D. & W. E. Co. 186 U. S. 479, 46 L. ed. 1266, 22 Sup. Ct. Eep. 941. CHAPTER LVII. GEITEEAI, APPEABAJfCE. Having seen how a general appearance is entered, its effect, as said, is to waive all questions of irregularities of process as well as the privileges of venue. See authorities cited in chap. 56 ; Fosha v. Western II. Teleg. Co. 114 Fed. 702 ; Calla- han V. Hicks, 90 Fed. 539; Lowry v. Tile, Mantel & Grate Asso. 98 Fed. 822; Scott v. Hoover, 99 Fed. 250; Whitcomb V. Hooper, 27 C. C. A. 19, 53 U. S. App. 410, 81 Fed. 946 Creighton v. Kerr, 20 Wall. 8-12, 22 L. ed. 309, 310 ; Seattle L. S. & E. R. Co. V. Union Trust Co. 24 C. C. A. 512. 48 U. S, App. 255, 79 Fed. 187; Eddy v. Lafayette, 1 C. C. A. 441 4 U. S. App. 247, 49 Fed. 809 ; St. Louis & S. F. E. Co. v, McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Ptep. 982 Again, it converts a suit in rem into a personal suit. Beamer V. Werner, 159 Fed. 101 ; L'Engle v. Gates, 74 Fed. 515. Of course it does not waive matters touching the fundamen- tal jurisdiction of the court, as want of diversity of citizen- ship, or the absence of a Federal question, or the insufficiency of amount, as these defects can be raised at any time during the progress of the cause, as we have seen, by demurrer, plea, or suggestion. They go to the power of the court, whereas the matters waived by general appearance or exercised by consent are but the means whereby the power is exercised. Ibid. ; Lackett v. Rumbaugh, 45 Fed. 31 ; Fales v. Chicago, M. & St. P. E. Co. 32 Fed. 673; Eodgers v. Pitt. 96 Fed. 676; Re Stutsman County, 88 Fed. 341, 342 : Duncan v. Associated Press, 81 Fed. 417; Central Trust Co. v. Virginia, T. & C. Steel & I. Co. 55 Fed. 769 : McBride v. Grand de Tour Plow Co. 40 Fed. 162 : Mexican Xat. R. Co. v. Davidson, 157 U. S. 201. 39 L. ed. 672. 15 Sup. Ct. Rep. 563 ; Less v. English, 29 C. C. A. 275. 56 U. S. App. 16. 85 Fed. 477, 478. A general appearance is sometimes entered without author- ity, and if so a defendant may appear and explain, by setting up and showing his solicitor had no authority to do so, and that 332 6ENEEAL APPEARANCE. 333 his employment was to object to the vaKdity of process or claim the privilege of venue. Shelton v. Tiffin, 6 How. 163, 12 L. ed. 387; Graham v. Spencer, 14 Fed. 603; Jenkins v. York Cliffs Imp. Co. 110 Fed. 807. Again, a general appearance may be withdrawn (Creighton V. Kerr, 20 Wall. 8-13, 22 L. ed. 309-311) ; but a withdrawal without leave of court, or by leave and "without prejudice to plaintiff," leaves the record in a condition to take judgment by default for want of appearance (Rio Grande Irrig. & Coloniza- tion Co. V. Gildersleeve, 174 U. S. 606, 43 L. ed. 1104, 19 Sup. Ct. Rep. 761 ; First !N"at. Bank v. Cunningham, 48 Fed. 517) ; or the court may proceed as if the defendant was still in its presence (Graham v. Spencer, 14 Fed. 607). So when a defendant has filed a plea to the merits, a with- drawal of the plea does not affect the general appearance (El- dred v. Michigan Ins. Bank, 17 Wall. 551, 21 L. ed. 686; Habich v. Folger, 20 Wall. 1-8, 22 L. ed. 307-309); but withdrawing both plea and general appearance, and defendant has not been served with process, then the court cannot pro- ceed (Graham v. Spencer, 14 Fed. 606, 607). Filing any character of defensive pleading is equivalent to a general appearance. Central Trust Co. v. McGeorge, 151 U. S. 133, 38 L. ed. 100, 14 Sup. Ct. Rep. 286 ; Scott v. Hoover, 99 Fed. 250 ; St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Rep. 982; Barnes v. Western TJ. Teleg. Co. 120 Fed. 555 ; Lowry v. Tile, Mantel & Grate Asso. 98 Fed. 823; Carter-Crume Co. v. Peurrung, 30 C. C. A. 174, 58 U. S. App. 388, 86 Fed. 442 ; Southern Exp. Co. v. Todd, 5 C. C. A. 432, 12 U. S. App. 351, 56 Fed. 108 ; Fris- bie V. Chesapeake & O. R. Co. 57 Fed. 2. Except when want of jurisdiction is apparent and met by special demurrer (Southern P. Co. v. Denton, 146 U. S. 206, 36 L. ed. 945, 13 Sup. Ct. Rep. 44) ; and except, as we have seen, where an an- swer after objection to the jurisdiction has been ovc-ruled (Ibid.; Harkness v. Hyde, 98 U. S. 476-479, 25 L. ed. 237, 238). Substituted Service. There is a service of process known as substituted service, which will be discussed under "Auxiliary Proceedings." CHAPTEE LVIIL SECTIO]^^ 8, ACT 1875. What has been said about process has referred to the process of subpoena and its limited scope within the district of suit, and those cases where it could reach beyond to other districts in the same State. Cely v. Griffin, 113 Fed. 981. I now pro- pose to discuss section 8 of the act of March 3, 1875. This section was passed in 1872 (U. S. Rev. Stats.) but was enlarged in 1875 and specially retained in the act of 1883 by section 5 of that act. American F. L. il. Co. v. Benson, 33 Fed. 456. The act did not enlarge the jurisdiction of the court, but gave greater scope to its process, and was of great importance, as it gave, for the first time in the history of the Federal system, the power and authority to reach nonresidents claiming an interest or right in and to property within the jurisdiction of the court. Special process was provided by this section to be sent beyond the limits of the State, and to require nonresidents to appear and answer. Goddard v. Mailler, 80 Fed. 423 ; United States v. American Lumber Co. 80 Fed. 313. I have heretofore alluded to this act in its relation to venue of suits, but I will now discuss it as an additional process, and give forms for its use. The act is as follows : "When in any suit commenced in any circuit court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any encumbrance, or lien, or cloud upon the title to real or personal property within the district where the suit is brought, one or more of the defendants shall not be an inhabitant of or found vrithin the district, or shall not vol- untarily appear thereto ; it shaE be lawful for the court to make an order, directing such defendants to appear, plead, answer, or demur, by a day certain, to be designated, which order shall be served on such absent defendants if practicable, wherever found, and also on the person or persons in possession or charge of said property, if any there be ; or. when such personal service is 33i SECTION 8, ACT IS 75. 335 not practicable, such order shall be jDublished in such manner as the court may direct, not less than once a week for six suc- cessive weeks, and in case such absent defendant shall not ap- pear and plead, answer, or demur within the time limited or within such further time as mav be allowed by the court in its discretion, and on proof of the service or publication of such order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction and proceed to the hearing and adjudication of said suit in the same manner as if the absent defendants had been served with process in the said district, but such adjudication shall as re- gards such absent defendant without appearance affect only the property which shall have been subject to the suit and under the jurisdiction of the court therein within such district, and when a part of such property shall be within another district of the same State, the suit may be brought in either district. Provided that the defendant or defendants not personally noti- fied may, upon entering his appearance within one year from the judgment, obtain an order setting aside the judgment and permitting him to defend on the payment of costs." U. S. Eev. Stat. sec. 738. The special retention of this act in the act of 1888 was con- gressional recognition of the right of service personally or by publication, where title, claim, or encumbrance in, to, and upon property located in the district of suit was involved (Morris V. Graham, 51 Fed. 56, 57), and whether the suit be in law or equity. Shainwald v. Lewis, 6 Sawy. 585, 5 Fed. 517; Jones V. Gould, SO C. C. A. 1, 149 Fed. 158 ; Merrihew v. Fort, 98 Fed. 899 ; Woods v. Woodson, 40 C. C. A. 525, 100 Fed. 515. A strict compliance with its provisions is exacted by the courts. Jennings v. Johnson, 78 C. C. A. 329, 148 Fed. 337 ; Meyer v. Kuhn, 13 C. C. A. 298, 25 TJ. S. App. 174, 65 Fed. 705; Batt v. Procter. 45 Fed. 515; Gage v, Riverside Trust Co. 156 Fed. 1002; Jones v. Gould, 141 Fed. 698; Bracken V. Union P. R. Co. 5 C. C. A. 548, 12 U. S. App. 421, ."G Fed. 447. The notice must be one authorized by law, or it is void. United States v. American Lumber Co. 80 Fed. 313; Kent V. Honsinger, 167 Fed. 627. See sec. 57, chap. 4, Xew Code, embodying sec. 8 of the act of 1875, and the practice thereunder. 336 SECTION 8, ACT 1875. Warning Order. The order issued by the court requiring the appearance of the absent defendant to plead, answer, or demur is called the ""warning order,"' and must be personally served unless imprac- ticable, and this must be shown before publication is authorized. Batt T. Procter, 45 Fed. 516, 517; Jennings v. Johnson, 78 C. C. A. 329, 148 Fed. 337; Forsyth v. Pierson, 9 Fed. 801. The essential difference between a "warning order" and a subpoena is that the subpoena issues as of course, but has no force beyond the district of suit, unless othern-ise provided by statute, as before stated, while the warning order can only is- sue upon application to the court, and only in cases covered by the statute (United States v. American Lumber Co. 80 Fed. 313) ; and may be directed wherever the nonresident can be found. It is not necessary to issue a subpoena and return "not foim^d" as a basis for the warning order (Forsyth v. Pierson, 9 Fed. 801; Batt v. Procter, 45 Fed. 515), although this has been intimated in Bronson v. Keokuk, 2 Dill. 498, Fed. Cas. Xo. 1,92S : and see United States v. American Lumber Co. 80 Fed. 314. The allegation of the bill as to nonresidence is a sufficient predicate upon which to make the application to the court for a warning order or special order of service (United States v. American Lumber Co. SO Fed. 309; Mercantile Trust Co. v. Portland t O. R Co. 10 Fed. 605, note ; Woods v. Woodson, 40 C. C. A. 525, 100 Fed. 515 : Batt v. Procter, 45 Fed. 516) ; but not when affidavit as to nonresidence made four months before application. Spreen v. Delsignore, 94 Fed. 71. The proper practice is to apply for the order of service as the first process, if the allegations of your biE as to the nonresidence of the defendant sought to be served are sufficient, and your cause of action falls within the provisions of the statute, but if the nonresidence of the defendant sought to be served is not shown in the bill, then subpoenas may be issued, and upon a return "not found" you may predicate an application for the 'Seam- ing order." The forms to be used are as follows : A. B. ) In TTnited States Circuit Court for \-3. C In EqnitT. the District of C. D. I sitting at SECTION 8, ACT 1875. 337 Now comes A. B., plaintiff in the above cause, and shows to the court that on the day of A. D. 19. ., he commenced suit in this court, the same being a bill to remove cloud, etc. (or an action to try title; or any of the causes mentioned in section of the act authorizing the service) as is shown by the bill (or petition, if at common law) filed in the said court to enforce his equitable (or legal) right to certain real estate therein described (or personal property therein set forth), lying and being situated in the county of in the district of the State of , and which real estate (or personal property) is therein described as part of the (if land here describe as in petition ) , against C. D., defendant, the said C. D. being citizen of (or can be found in ), the State of of the United States of America. That said C. D. resides in (or can be found in) county, in the said State of (State as particularly as you can the resi- dence of the nonresident or where he can be found, as the warning order must be addressed to the United States marshal of the Federal district of the residence, or the Federal district of the State, where the nonresident can be found.) Plaintiff further shows that he is a resident citizen and an inhabitant of the State of (or that he is a citizen of the State of and a resident and inhabitant of the district of said State ) . That the said defendant is not to be found' within the State of where the suit is brought, nor has he voluntarily appeared to answer, plead or demur to the bill filed by plaintiff. Wherefore plaintiff moves the court that its order be granted, entered and served as provided by law, directing the defendant to appear and answer, plead or demur in said cause by a day certain to be designated by this court. R. F., Solicitor, etc. If there be several nonresident defendants, the specific resi- dence or place where to be found must be stated as to each. If the defendant be a corporation, then say: And the , a corporation created, organized and existing under the laws of the State of , of which said corporation one M is president, who is a citizen of (or can be found in) the State or and one N is secretary, who is a citizen or (or can be found in) the State of , and that the said corporation and the said M and the said N are all residents and inhabitants of (or can be found in) the county of in the State of , etc. There is nothing in the act requiring the motion or applica- tion to be sworn to, but in Forsyth v. Pierson, 9 Fed. 803, it is intimated that it should be supported by affidavit as to the S. Eq.— 22. 338 SECTION 8, ACT 1875. truth of the allegations made. Woods v. Woodson, 40 C. C. A. 565, 100 Fed. 518. With the motion prepare and present an order as follows: Title and commencement as in motion. On this day at the division of the Circuit Court of the United States in and for the district of , came on to be heard the application of A. B., plaintiflF in the above styled and numbered cause, for an order directing the absent defendant C. D. (or defendants C. D. and E. F., or , a. corporation, etc., describe as in motion, stating presi- dent and secretary, etc. ) to appear and plead, answer or demur herein by a day certain to be designated by the court. And it appearing to the court that this suit is commenced by plaintiff, who is a resident citizen and inhabitant of the State of (or of as stated in the motion), to enforce an equitable (or legal, if at law) claim to land situated in the county of , in the State of , being in the district of said State, the said suit being to remove cloud (or whatever it may be) and the said C. D., defendant therein named, is not an inhabitant of the said district of , nor is he to be found in said State and has not voluntarily appeared in said suit. And the court being of opinion that said application should be granted, it is ordered that the said C. X>., defendant, shall appear, plead, answer or demur to the bill (or petition) of plaintiff on or before the day of A. D. 19.., the same being the first Monday (or whatever day it may be in the term) at the next term of this court (or the term now in session ) at the court room thereof in the city of , in the county of , in the State of That certified copies of this order and plaintiff's bill (or petition) be served on the said CD days before the date above named and that service be made on said defendant C. D. by the United States marshal for the District of the State of This order should always be obtained in open court, and should the suit be pending in one division of a district, you may apply to the court in session in any other division of the district, for the order. If you should apply out of the division of the district where the suit is pending, you should add to the order granted by the court the following: It is further ordered that the clerk of this court enter this order of rec- ord and certify the same to the division at for record and observance. Done in open court in the city of , in the State of , this the day of A. D. 19... I. M., United States Judge. See Kent v. Honsinger, 167 Fed. 624. SECTION 8, ACT 1875. 339 The clerk of the court where suit is pending should de- liver certified copies of the order to plaintiff's counsel, who should forward them to the marshal of the district set forth in the order, and copies of the order are to be delivered hy the clerk of the court to the marshal of the district where the suit is pending, to be served on the parties in charge of or in pos- session of the property in suit, if any such person or persons be in possession or charge. The United States marshal serving the order on the nonresi- dent makes the service and return as provided by statute and rules of equity, in serving and returning subpoenas, and must retttrn the order, with return of service thereon, to the clerk of the court in which the suit is pending. Forsyth v. Pierson, 9 Fed. 801 ; Woods v. Woodson, 40 C. C. A. 565, 100 Fed. 51Y ; Elk Garden Co. v. T. W. Thayer Co. 179 Fed. 558. If upon the return of the order it appears that service was made the full number of days before the day of appearance des- ignated in the order, then the cause may proceed under the rules of equity. If the cause be at common law and the parties do not ap- pear, you may take judgment by default, and if in equity you may enter a decree pro confesso^ and proceed ex parte under the rules of equity. Tug Kiver Coal & Salt Co. v. Brigel, 14 C. C. A. 577, 31 U. S. App. 665, 67 Fed. 625. How Served. Must be served by the marshal or his deputy of the Federal district where defendant resides. Forsyth v. Pierson, 9 Fed. 801. Pvblication, Service By. It often happens that you do not know where the defendants, or defendant, resides or can be found, so that it is impracticable to apply for, or get, personal service of the warning order. In such case the statute permits service by publication. In this case your petition or motion must bo drawn with this view and in the form already given, except that it must be stated that personal service is impracticable because the 340 SECTION 8, ACT 1875. residence or place where the defendant may be found is un- known; that you have used due diligence to discover the resi- dence or whereabouts of the unknown defendant, stating what diligence you have used. In a word, the facts must show the impracticability of personal service mentioned in the statute. Eatt V. Procter, 45 Fed. 516; McDonald v. Cooper, .32 Fed. 745. You must ask an order of publication as to the defendant whose residence and citizenship is unknown. The court may direct the manner of publication of the "warning order," though it cannot be for less than six weeks, as prescribed by the statute; that is, once each week for six successive weeks. Dick V. Foraker, 155 U. S. 411, 412, 39 L. ed. 204, 15 Sup. Ct. Eep. 124 ; United States v. American Lumber Co. SO Fed. 314, 315; Beattie v. Wilkinson, 36 Fed. 649; Guaranty Trust & S. D. Co. V. Green Cove Springs & M. E. Co. 139 U.'s. 137, 35 L. ed. 116, 11 Sup. Ct. Eep. 512. The warning order mu^t be published as directed by the court, and if the defendant does not appear in obedience to its mandate, and answer, plead, or demur within the time stated in the order, then, upon proof of the publication of the order made in the manner ordered, the court will proceed to adjudicate the case; provided, however, that the defendant may within one year from the judgment enter his appearance and set it aside on payment of costs. The courts have strictly construed the act, and held that personal service of the "warn- ing order" must be made if practicable. Batt v. Procter, 45 Fed. 515. The advantage of personal service is of great value to plaintiff, if it can be possibly obtained, as in such case the decree has the ordinary effect from entry, while by publication you have only a conditional decree for one year from entry, and within the time preventing any disposition of the property involved in the suit. It sometimes happens, when there are several defendants, that the residence of some may be known and others unknown ; in such case you should file separate motions or petitions, and prepare separate orders, as the substance and prayer in each case are entirely different, as seen above. When publication is ordered the court designates the news- paper and time of publication, not less than six weeks, and the manner of publication must be strictly pursued; no other SECT102J 8, ACT 1875. 341 method than that designated would be legal. Ibid. ; McDonald V. Cooper, supra; Meyer v. Kuhn, 13 C. C. A. 298, 25 U. S. App. 174, 65 Fed. 712. This method of service, as will be seen, is somewhat similar to that prescribed by the statutes of Texas (Batts' Eev. Stat. 1230 to 1235) providing for service on nonresident defendants and defendants whose residence is unknown. By the State statute any disinterested citizen of the State where the nonresident citizen resides or may be found may serve the notice of suit, and make affidavit of its delivery as a proper return of service, but in the Federal courts the order must be served by a United States marshal of the district of which the citizen to be served is a resident, or can be found. Batts' Eev. Stat. 1231. Again, in the State statutes, four weeks' (Batts' Kev. Stat. 1235) consecutive publication is sufficient, while six weeks is the minimum in the Federal court. The mode provided by Congress is exclusive. U. S. Supp. 1874, 91, p. 84; Bracken V. Union P. K. Co. 5 C. C. A. 548, 12 U. S. App. 421, 56 Fed. 449. Having thus given the act and the form that may be used in effecting service under it, I will now briefly refer to a few cases interpreting the act. As stated, the act does not enlarge the jurisdiction, but gives greater scope to the process of the courts in a certain class of cases of which the Federal courts have jurisdiction. Greeley V. Lowe, 155 U. S. 65, 39 L. ed. 70, 15 Sup. Ct. Kep. 24; Compton V. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 285 ; Tug Kiver Coal & Salt Co. v. Brigel, 14 C. C. A. 577, 31 U. S. App. 665, 67 Fed. 625; Eldred v. American Palace Car Co. 103 Fed. 211. The act includes suits to en- force any legal or equitable claim to, or lien upon, or to re- move cloud from the title of real or personal property within the district where unit is brought. Ibid. ; Spencer v. Kansas City Stockyards Co. 56 Fed. 745 ; Jones v. Gould, 80 C. C. A. 1, 149 Fed. 157; York County Sav. Bank v. Abbot, 131 Fed.'983, see S. C. 139 Fed. 993; Winter v. Koon, 132 Fed. 273 ; Seybert v. Shamokin & Mt. C. Electric E. Co. 110 Fed. 810. It was not intended to cover anything but real and tangible property susceptible of being reduced to actual posses- 342 SECTION 8, ACT 1875. sion, and not incoi-poreal and intangible interests (Xon-Mag- netic Watch Co. v. Association Horlogere Suisse, 44 Fed. 6), as patent right. Ibid. ; York County Sav. Bank v. Abbot, 139 Fed. 993 ; Eldred v. American Palace Car Co. 45 C. C. A. 1, 105 Fed. 455. Title to Stock. In Jellenik v. Huron Copper Min. Co. 177 U. S. 1, 44 L. ed. 647, 20 Sup. Ct. Rep. 559, suit was brought in Michigan Fed- eral district against a corporation of Michigan and citizens of Massachusetts holding certificates of stock. Plaintiff claimed title to the shares of stock so held, and sought a decree remov- ing cloud from the title. It was held that the certificates of stock were only evidence of the ownership of the shares, and the interest represented by the shares was held by the company for the benefit of the true owner; that suit could be brought against the company in its residence district, and nonresident parties claiming ownership of the certificates of stock could be brought in under section 8 to try the title. Ibid. 177 U. S. 13, 82 Fed. 778, overruled; Eyan v. Seaboard & E. R Co. 83 Fed. 889. But not where the stock is not held by a defend- ant who resides within the State where the suit is brought. :McKane v. Burke, 132 Fed. 688. See Jones v. Gould, 80 C. C. A. 1, 149 Fed. 153. The statute applies to establish a lien on stock. Merritt v. American Steel-Barge Co. 24 C. C. A. 530, 49 U. S. App. 85, 79 Fed. 228. Suit to Cancel for Fraud. In Evans v. Charles Scribner's Sons, 58 Fed. 303, it was held that service under section 738 to cancel a deed for fraud to property within the district of suit could be had, but not to set aside transfers of life policies not within the district issued by a foreign company. Castello v. Castello, 4 MeCrary, 543, 14 Fed. 207. So may cancel a note for fraud. Manning v. Berdan, 132 Fed. 382-385. Or contract to convey. Specific Performance. It has been held that the act does not apply to a suit for SECTION 8, ACT 1875. 343 specific performance of a contract to convey land, Municipal Invest. Co. v. Gardiner, 62 Fed. 954, unless the State statute provided for constructive service in such cases, and that the judgment therein shall be in effect a conveyance. Single v. Scott Paper ilfg. Co. 55 Fed. 553; Bennett v. Fenton, 10 L.E.A. 500, 41 Fed. 283; Arndt v. Griggs, 134 U. S. 316, 33 L. ed. 918, 10 Sup. Ct. Kep. 557. But in a suit by a vendee for specific performance, if there is a condition precedent that an abstract of title shall be furnished, and upon failure dam- age is to be given, then the statute does not apply. See Adams V. Heckscher, 83 Fed. 281, 282, S. C. 80 Fed. 742. Suit to Remove Cloud. A suit to remove cloud (Morris v. Graham, 51 Fed. 53 ; Arndt v. Griggs, supra), comes within the statute (Lynch v. Murphy, 161 IT. S. 251, 252, 40 L. ed. 689, 16 Sup. Ct. Eep. 523 ; Brown v. Pegram, 143 Fed. 701 ; Miller v. Ahrens, 150 Fed. 644) ; or by a creditor to set aside a conveyance (Mellen V. Moline Malleable Iron Works, 131 U. S. 352, 33 L. ed. 178, 9 Sup. Ct. Eep. 781 ; Evans v. Charles Seribner's Sons, supra) ; or to cancel a land patent (United States v. American Lum- ber Co. 80 Fed. 309). Foreclosure of Liens. Suits to foreclose liens (York County Sav. Bank v. Abbot, 131 Fed. 980, but see 139 Fed. 993; Ames v. Holderbaum, 42 Fed. 341; Deck v. Whitman, 96 Fed. 890; Grove v. Grove, 93 Fed. 865 ; Lancaster v. Asheville Street E. Co. 90 Fed. 132), or to enjoin foreclosure (Dupont v. Abel, 81 Fed. 534), come within the statute ; or to cancel a mortgage (Mellen v. Moline ^lalleable Iron Works, supra). So a lien on a specific fund (Goodman v. Mblack, 102 U. S. 556, 26 L. ed. 229). So in a suit to establish a trust, service may be had on a nonresident though there be a prayer for accounting (Porter Land & Water Co. V. Baskin, 43 Fed. 323). Trying Title. Actions to try title at law are within the statute (Spencer 344 SECTION 8, ACT 1875. V. Kansas City Stock- Yards Co. 56 Fed. 741) ; or a suit to partition land (Greeley y. Lowe, 155 U. S. 58, 74, 39 L. ed 69, 75, 15 Sup. Ct Eep. 24). "Title" in the act is explained in Jones v. Gould, supra. Unknown Heirs. We see, then, by virtue of section S of the act of 1875, where it is impracticable to get personal service on an absent de- fendant, as where the residence or habitation of the defendant is unknown, you may serve by publication in the class of cases mentioned in said section; but the question arises, can you sue unknown heirs in the Federal courts in those States where such suits are permitted, as in Texas (see Batts' Eev. Stat. 1236), which provides that a party having a claim against property which may have accrued to the heirs of a deceased person, may sue the heirs whose names are unknown and obtain service by publication. Webster v. Willis, 56 Tex. 468; O'Leary v. Durant, 70 Tex. 409, 11 S. W. 116. It may be stated that while the Federal courts may sustain a judgment recovered in a State court permitting such service (Amdt V. Griggs, supra; Ormsby v. Ottman, 29 C. C. A. 295, 56 U. S. App. 510, 85 Fed. 494, 495; Connor v. Tennessee C. E. Co. 54 L.E.A. 687, 48 C. C. A. 730, 109 Fed. 936; Lynch V. Murphy, supra), if the statute has been strictly pursued, and where such judgment is brought collaterally in issue in the Federal court (Guaranty Trust & S. D. Co. v. Green Cove Springs & M. E. Co. 139 TJ. S. 148, 35 L. ed. 120, 11 Sup. Ct. Eep. 512; Hollingsworth v. Barbour, 4 Pet. 473^75, 7 L. ed. 925, 926 ; Harris v. Hardeman, 14 How. 345, 14 L. ed. 449), yet an original suit cannot be brought in the Federal courts and service perfected under the statute providing for service against "unknown heirs." Many reasons may be stated why State statutes of this character cannot be followed in the Federal courts, where citizenship enters so largely into ques- tions touching the jurisdiction of these courts, but the princi- pal reason may be found in the fact that Congress has legis- lated upon the subject of "service by publication," and having extended it only to cases where the residence of the defendant is unknown, po as to make it impracticable to serve him per- SECTION 8, ACT 1875. 3i5 sonally, it excludes from these courts any other conditions upon which such service can be made. As has been repeatedly said, where Congress has legislated upon a particular subject, State legislation upon the same subject is superseded in Tederal courts. Braken v. Union P. R. Co. supra. CHAPTER LIX. SCANDAL AND IMPERTINENCE. After the appearance has heen entered, the defendant is en- titled to view the hill and take a copy thereof, and, if scandal- ous or impertinent, must take steps before the next rule dav to have the hill referred to a master to expunge the scandalous or impertinent matter (equity rule 27) ; otherwise it is waived. Scandal consists in unnecessary allegations bearing cruelly on the moral character of an individual, or in anything stated contrary to good maimers, or unbecoming the dignity of the court to hear. Kelley v. Boettcher, 29 C. C. A. 14, 56 U. S. App. 363, 85 Fed. 55. However, nothing relevant, though in- jurious, is scandalous. Mercantile Trust Co. v. Missouri & T. R. Co. 84 Fed. 379; Burden v. Burden, 124 Fed. 255; South & Xorth Ala. R. Co. v. Railroad Commission, 171 Fed. 225 ; Mound City Co. v. Castleman, 171 Fed. 521. Impertinence consists in allegations irrelevant to the issues made or tendered ; this includes tautology and verbosity. Ibid. ; Harrison v. Perea, 168 U. S. 318, 42 L. ed. 481, 18 Sup. Ct. Rep. 129 ; Polk v. Mutual Reserve Fund Life Asso. 128 Fed. 624. So stating unnecessary recitals of written instruments forbidden by equity rule 26 is impertinence. H)id. ; Electro- libration Co. v. Jackson, 52 Fed. 776. Equity rule 26 expressly forbids scandal or impertinence in framing the bill, and provides for having it stricken out at the costs of the pleader. If scandalous or impertinent matter appears in a bill, exceptions for that cause must be taken at once. Equity rule 27 provides that no order shall be made by any judge for referring any bill or answer, as for scandal or im- pertinence, unless exceptions are taken in vmting and signed by counsel pointing out the scandalous matter. Stonemetz Printers' Mack Co. v. Brown Folding Mach. Co. 46 Fed. 73; 346 SCAITDAL AND IMPERTINENCE. 347 Blanton v. Chalmers, 158 Fed. 907; Stirrat v. Excelsior Mfg. Co. 44 Fed. 142 ; Howe & D. Co. v. Hangan, 140 Fed. 182. It cannot be raised by demurrer, nor unless the exceptions shall be filed on or before the next rule day after the process on the bill is returnable, etc. The exception may be in the following form : Title as in bill. And now comes the defendant (or plaintiff if it be to the answer) and excepts to the bill filed in this cause (or answer) for scandal and imperti- nence, for that it appears in said bill that plaintiff has alleged and stated (here describe the particular passages which are considered scandalous or impertinent [Rule 27]). That said language is an unnecessary and cruel attack upon the character of (or the language is indecent or con- trary to good morals, etc.) (or if impertinent state), the allegations of the bill are rambling, disconnected, tautalogical, verbose, and not pertinent to any issue made or tendered. \Mierefore defendant prays that the bill may be referred to the Hon. E. F., standing master of his honorable court (or to A. B. as special master), that so much of the matter as is scandalous and impertinent may be expunged, and that the costs of these exceptions (or motion) be charged against plaintiff (or defendant if to the answer). This exception must be signed by counsel, and must be filed on or before the next rule day after the process on the bill shall be returnable, or if exceptions are taken to the answer, then on or before the next rule day after the answer is filed. While the rule provides that the issue must be made by ex- ceptions, it may be done by simple motion, using the form above given, and praying for reference to a master to strike out the impertinent matter before being required to answer. See Hall V. Bridgeport Trust Co. 122 Fed. 163; Kelley v. Boettcher, 85 Fed. 55; Polk v. Mutual Reserve Fund Life Asso. 128 Fed. 526 ; Hobbs Mfg. Co. v. Gooding, 100 C. C. A. 83, 176 Fed. 264; but see United States v. Kettenbach, 175 Fed. 463. But whether exception is taken, or a motion filed, ; it must be promptly made on or before the rule day, as above stated. The objection is purely formal and technical, and its pur- pose is to require clearness in pleading, and the court will not permit any delay in presenting it ; one must come strictly with- in the rule or the court will refuse to order a reference and 348 SCA^DAl AKD IMPEETIlfEXCE. require an answer, and the same action will be taken by the court if not pressed for action after being filed in time. The party obtaining the order must, without delay, procure the master to examine and report upon the exceptions, on or before the next succeeding rule day after submission to him, unless the master certifies further time is necessary. In dealing with exceptions of this character, and particu- larly when the exceptions are because of impertinence in the bill, they should not be allowed unless it is clear that the mat- ter excepted to cannot be material to the plaintiff's case. Wells F. & Co. v. Oregon E. & ]Srav. Co. 8 Sawr. 600, 15 Fed. 561. Sometimes the matter complained of may be material, or may in the opinion of the master, become material in the progress of the ease, though not clearly apparent then, in which case the matter will be permitted to remain in the bill, subject to be determined on the exceptions on final hearing. While the rule contemplates a reference to a master, the court may act upon the exceptions and expunge the matter when clearly scandalous or impertinent. Great prolixity, verboseness, and obscurity is always objec- tionable and may be excepted to for impertinence. Kelley v. Boettcher, 29 C."c. A. 14, 56 U. S. App. 363, 85 Fed. 55-61. In this case the bill was stricken from the files and the com- plainant limited to twenty-five typewritten pages. As to pen- alty for scandalous briefs, see Kelley v. Boettcher, 2" C. C. A. 177, 49 U. S. App. 620, 82 Fed. 794 ; Green t. Elbert, 137 U. S. 615, 34 L. ed. 792, 11 Sup. Ct Eep. 188. CHAPTEK LX. DISMISSAL OF BILL BY PLAUTTLFF. The bill having been filed and process issued, I will now discuss what steps plaintiff must take to dismiss his bill. The dismissal of a bill is either voluntary by plaintiff, or involuntary by the court on motion, or by the court on its own motion. Involuntary dismissals will be discussed under de- fenses in equity. The general rule is that the plaintiff has the right, at any time before an interlocutory or final decree in a case, to dis- miss it on paying costs, and without prejudice to his right to file another, and where the dismissal will deprive the defend- ant of no substantial right accrued since the suit commenced and the defendant has not prayed for affirmative relief to which he would be entitled. Morton Trust Co. v. Keith, 150 Fed. 606 ; Houghton v. Whitin Mach. Works, 160 Fed. 227 ; Gil- more V. Bort, 134 Fed. 659 ; MeCabe v. Southern R. Co. 107 Fed. 214; Pennsylvania Globe Gaslight Co. v. Globe Gaslight Co. 121 Fed. 1015; Ebner v. Zimmerly, 55 C. C. A. 430, 118 Fed. 81 S ; TJnited States ex rel Coffman v. Iforfolk & W. E. Co. 55 C. C. A. 320, 118 Fed. 554; Welsbach Light Co. v. Mahler, 88 Fed. 427; Chicago & A. E. Co. v. Union Eolling Mill Co. 109 U. S. 702-713, 27 L. ed. 1081-1085, 3 Sup. Ct. Eep. 594; Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 145, 43 L. ed. 108, 111, 18 Sup. Ct. Eep. 808 ; Stevens v. The Eailroads, 4 Fed. 97-105 ; Detroit v. Detroit City E. Co. 55 Fed. 572. This general rule has its conditions and exceptions. In the first place, you cannot dismiss without a motion and notice, and an order of the court ; dismissal by an order as of course is not known in the Federal practice. This means that the pleading must be submitted to the court, and there must be the exercise of some discretion in granting it. Electrical Ac- 349 350 DISMISSAL OF BILL BY PI^INTIFF. cumulator Co. v. Brush Electric Co. 44 Fed. 604; Gregory v. Pike, 15 C. C. A. 33, 21 U. S. App. 65S, 33 U. S. App. 76, 67 Fed. 838 ; Peim Phonograph Co. v. Columbia Phonograph Co. 66 C. C. A. 127, 132 Fed. 809. Again, the plaintiff cannot dismiss Avhere such dismissal would prejudice the defendant, or where rights have been fixed by an interlocutory decree (see authorities cited above; Calla- han V. Hicks, 90 Fed. 539 ; Pullman's Palace-Car Co. v. Cen- tral Transp. Co. 49 Fed. 261 ; Electrical Accumulator Co. v. Brush Electric Co. 44 Fed. 604, 605 ; Hat-Sweat ilfg. Co. v. Waring, 46 Fed. S7; Hershberger v. Blewett, 55 Fed. 172), or where the defendant seeks aiBrmative relief. Ibid. The re- fusal to dismiss when the rights of the defendant may be prejudiced does not mean that by the dismissal he may be bur- dened by another suit, but the record must show some right upon which he should be heard and which is properly in issue. Western U. Teleg. Co. v. American Bell Teleph. Co. 50 Fed. 664; Pullman Palace Car v. Central Transp. Co. 171 U. S. 138, 161, 43 L. ed. 108, 117, IS Sup. Ct. Rep. SOS. EspeciaUy is this the case when an issue has been sent to the master and decided for defendant. Detroit v. Detroit Citv R. Co. 55 Fed. 572. So, where parties agree to refer to a master, the plaintiff cannot dismiss. American Bell Teleph. Co. v. Western U. Teleg. Co. 16 C. C. A. 367, 21 U. S. App. 627. 69 Fed. 666, overrules 50 Fed. 662. See Walters v. Western i- A. R. Co. 69 Fed. 710. Again, the plaintiff will not be allowed to dismiss, if in the light of the proceedings the defendant is reasonably entitled to a decree. Chicago & A. R. Co. v. Union Rolling Mill Co. 109 U. S. 713-716, 27 L. ed. 10S.5-10S7. 3 Sup. Ct. Rep. 594; Hershberger v. Blewett, 55 Fed. 170; Pullman Palace Car Co. V. Central Transp. Co. 171 TJ. S. 146, 43 L. ed. 112. IS Sup. Ct. Rep. SOS. But if the circumstances were such that on final hearing the plaintiff would be allowed to dismiss without prejudice, then a dismissal without prejudice may be per- mitted. Stevens v. The Railroads, 4 Fed. 97. Again, if nothing has been done for two years after it has been at issue, plaintiff will not be allowed to dismiss. Wels- baeh Light Co. v. Mahler, supra. Plaintiff caimot dismiss DISMISSAL OF BILL BY PLAINTIFF. 351 where new action would bar defendant's relief. Callahan v. Hicks, 90 Fed. 543. Where there is more than one plaintiff, any one of them may dismiss as to himself, if without prejudice to other par- ties, or may dismiss as to one or more defendimts under simi- lar conditions. The motion to dismiss may be as follows : Title as in bill. To the Honorable Judges of the Circuit Court of the United States in and for the District of the State of ; Your petitioner, having exhibited his bill in this honorable court on the day of A. D. 19 . . , against C. D., defendant, is, since the filing of the same, advised to proceed no further; wherefore he prays that the bill may stand dismissed without prejudice. E. F., Solicitor, etc. This form is sufficient, noting, however, the following con- ditions : First. If the defendant has not appeared, so state, and the court will grant the dismissal. Second. If the defendant has appeared, so state, and fur- ther state if any action has been taken by him, and, if so, what. Third. If the defendant has appeared and taken action, but consents to the dismissal, then let his solicitor sign the motion with plaintiff's solicitor. The motion may be heard in vacation, or any rule day, prop- er notice having been given of the application. The practice in dismissing is to use the words "without prej- udice," for if you do not, the presumption is that it was heard on its merits. Graves v. Faurot, 64 Fed. 242; Howth v. Owens, 30 Fed. 911; Durant v. Essex Co. 7 Wall. 109, 19 L. ed. 156; Lyon v. Perin & G. Mfg. Co. 125 U. S. 702, 31 L. ed. 841, 8 Sup. Ct. Eep. 1024 ; Gamer v. Second ISTat. Bank, 89 Fed. 636 ; Stratton v- Essex County Park Commission, 145 Fed. 436. We have then the rule. A decree dismissing a bill generally may be set up as a bar, but if dismissed "without prejudice," or on grounds other than on merit, it cannot be set up in bar. Walden v. Bodley, 14 Pet. 161, 10 L. ed. 400 ; United States Fastener Co. v. Brad- ley, 143 Fed. 530; Clark v. Bemhard Mattress Co. 82 Fed. 340. Ex parte T,oung June, 160 Fed. 254. 352 DISMISSAL OF BILL BY PLAINTIFF. So, dismissal by consent, showing no adjustment, cannot be set up in bar to a second suit. Marshall v. Otto, 59 Fed. 249. IN'or is it appealable, because not final if dismissed without prejudice. Fidelity Ins. Trust & S. D. Go. v. Dickson, 24 C. C. A. 60, 46 U. S. App. 691, 78 Fed. 207. A voluntary dismissal wiU not be reinstated xmless there is fraud or mistake. Willard v. Wood, 164 U. S. 521, 41 L. ed. 539, 17 Sup. Ct. Eep. 176. (See "Dismissal by Defendant," chap. 78; "Effect on Cross Bill," chap. 79.) CHAPTEK LXI. AMENDING BILL. I will now discuss what steps the plaintiff should take to perfect his bill when, through inadvertence or change in con- ditions, it hecomes necessary. First. When he can amend his bill. Second. When he must file a supplemental bill. Third. When he must file a bill of revivor. Office of Amendment. An amendment is intended to cure the defective statement of a cause of action existing when the bill was filed. Mellor v. Smither, 52 C. C. A. 64, 114 Fed. 120; Sec. 954, IT. S. Eev. Stat. ; U. S. Comp. Stat. 1901, p. 696 ; Equity rules 28 and 29. It cannot be used to set up a cause of action that did not exist when the bill was filed. Ibid. When Bill Can Be Amended. First. Amendment as of course. Amendments of course may be made and without costs at any time before a copy of the bill is taken from the office by the defendant or his solicitor. Equity rule 28. Second. Amendments of course may be made after a copy has been taken out of the clerk's office, in such matters as filling blanks, correcting dates and names of parties; also misdescrip- tion of the premises, clerical errors, and matters of form. Equity rule 28. Third. Plaintiff may amend (of course) in a material point after a copy of the bill has been taken out, and before any an- swer, plea, or demurrer has been filed ; but he shall pay to the defendant the costs occasioned thereby, and shall without delay 353 S. Eq. — 23. 354 AMENDING BII.Z. fumisli a fair copy of the amendment to the solicitor or de- fendant, free of expense, with suitable references as to where the amendments are to be inserted. Equity rule 28 ; Insur- ance Co. of X. A. V. Svendsen, 74 Fed. 347 ; Chase Electric Constr. Co. v. Columbia Constr. Co. 136 Fed. 699. Where there are several defendants, copies must be furnished to each defendant affected thereby, or to the soKctior of the de- fendants. Where the amendments are numerous the plaintiff will be required to furnish a copy of the whole bill as amended, instead of the separate amendments. Service of a copy on the solicitor of all the defendants, or on the different solicitors representing different defendants affected by the amendments, is sufficient. Amendments Not of Course. After answer, plea, or demurrer has been filed, but hefore replication by plaintiff, the plaintiff may on motion filed and without notice, obtain an order to amend his biU on or before the next rule day. Equity rule 29 ; Gubbins v. Laughtenschlag- er, 7.5 Fed. 619 ; Mercantile Xat. Bank v. Carpenter, 101 U. S. 567, 25 L. ed. 815. The matter is in the hands of the court, and not reviewable unless there is a clear abuse of discretion. McEemy v. Supreme Lodge A. O. U. W. 180 Fed. 966, 967; Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Eep. 771, overrules Shields v. Barrow, 17 How. 130, 15 L. ed. 158. The matter of costs is discretionary with the court. Berliner Gramophone Co. v. Seaman, 51 C. C. A. 440, 113 Fed. 754 and cases cited. After plaintiff has filed his replica- tion the case is at issue and prepared for the testimony. Plain- tiff then cannot amend his bill except on motion and after its service on the defendants or their solicitors. The motion must be accompanied with an affidavit that it is not made for delay, or vexatiously, that the amendment is material and could not vrith reasonable diligence have been sooner introduced in the bill. Equity rule 29: Beavers v. Richardson, 11 S Fed. 320; Gubbins v. Laughtenschlager. 75 Fed. 619, 620. The motion should offer to submit to such terms as the judge may deem necessary to speed the cause, and should be accompanied with the proposed amendment. Washington, A. & G. E. Co. v. AMENDING BILL. 355 Bradley (Washington & A. & G. E. Co. v. Washington), 10 Wall. 299, 19 L. ed. 894. If the motion to amend either after answer, plea, or de- murrer and before replication or after replication, be allowed, the amendment must be filed on or before the next rule day after the order is granted, unless some other time is designated by the court. If plaintiff fails to do so, the authority to amend will be considered abandoned, and the cause will proceed as if abandoned. Equity rule 30; Boston & A. R. Co. v. Parr, 98 Fed. -iSi. Sometimes the answer makes it necessary to amend the bill. This must be done on motion, and leave will be granted, with or without costs, as to the court may seem proper. Equity rule 45; Southern P. E. Co. v. United States, 168 U. S. 55, 42 L. ed. 379, 18 Sup. Ct. Eep. 18. You cannot meet matter in an- swer by special replication. Southern P. E. Co. v. United States, 168 U. S. 2, 42 L. ed. 355, 18 Sup. Ct. Eep. 18; Equity rule 45; Mason v. Hartford, P. & E. E. Co. 10 Fed. 334, 335. Such are the rules prescribed for amending a bill in equity by plaintiff, but the power of a court of equity to grant an amendment at any stage of the case seems to rest alone in the discretion of the court, unhampered by rules, if justice requires the amendment. Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Eep. 771 ; Equity rules 28, 29, 45, 46 ; U. S. Eev. Stat. sec. 954, U. S. Comp. Stat. 1901, p. 696 ; Berliner Gramophone Co. v. Seaman, 51 C. C. A. 440, 113 Eed. 754 and eases cited; United States v. American Bell Teleph. Co. 39 Eed. 716 ; AJmerican Steel & Wire Co. v. Wire Drawer's & Die Makers' Unions Nos. 1 & 3, 90 Eed. 598-602 ; Neale v. Xeale, 9 Wall. 8, 9, 19 L. ed. 591, 592 ; Ee Glass, 119 Eed. 511. It has been frequently declared that the power to permit amendments must be controlled by the case, and not by stated rules, and it has been the practice of Federal courts to be guided by the special circumstances in permitting amendments at any stage of the proceedings. Hardin v. Boyd, 113 U. S. 761, 28 L. ed. 1141, 5 Sup. Ct. Eep. 711; Berliner Gramophone Co. V. Seaman, 51 C. C. A. 440, 113 Eed. 754; Gubbins v. Laught- enschlager, 75 Fed. 619. And the granting or refusing amend- ments, being a matter of discretion, will not be revised by an 356 AMENDING BILL. appellate court, unless there be an apparent gross abuse of the court's discretion. Wright v. Hollingsworth, 1 Pet. 168, 7 L. ed. 98 ; Brown v. Schleier, 194 U. S. 18, 48 L. ed. 857, 24 Sup. Ct. Rep. 558 ; Hicklin v. Marco, 6 C. C. A. 10, 15 U. S. App. 55, 56 Fed. 552 ; Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800, 9 Sup. Ct. Eep. 426; Blalock v. Equitable Life Assur. Soc. 21 C. C. A. 208, 41 U. S. App. 761, 75 Fed. 47. WhUe it is not proper to sacrifice the ends of justice to rigid technical rules, yet upon the other hand, this nonrevisable dis- cretion of the chancellor has some disadvantages. However, it will be seen that, as the cause progresses, the courts, as they should do, use greater caution in permitting amendments, and preventing, if possible, inconvenience and expense. Gibbins v. Laughtenschlager, 75 Fed. 619 ; Hodges v. Kimball, 34 C. C. A. 103, 63 U. S. App. 688, 91 Fed. 851; Insurance Co. of N". A. V. Svendson, 74 Fed. 348. Thus, after the cause has been prepared for trial, and hearing had, and fully submitted, the discretion of the chancellor is not easily moved to grant an amendment on material matters. Gubbins v. Laughten- schlager, 75 Fed. 619, and authorities. Amendments At and After Trial. But we find cases where the courts have not hesitated to per- mit the pleadings to be changed and adapted to the proofs at any stage of the cause after replication filed. IT. S. Eev. Stat, sec. 954, H. S. Comp. Stat. 1901, p. 696 ; Manitowoc Maltiug Co. V. Fuechtwanger, 169 Fed. 983; Mexican C. E. Co. v. Duthie, 189 U. S. 76, 47 L. ed. 715, 23 Sup. Ct. Eep. 610; Burgess v. Graffam, 10 Fed. 219 ; Bass v. Christian Teigen- span, 82 Fed. 260; Xeale v. JSTeale, 9 Wall. 1, 19 L. ed. 590; Bowden v. Bumham, 8 C. C. A. 248, 19 TJ. S. App. 448, 59 Fed. 755; Collinson v. Jackson, 8 Sawy. 357, 14 Fed. 305; Hamilton v. Southern Nevada Gold & S. Min. Co. 13 Sawy. 113, 33 Fed. 568, 15 Mor. Min. Eep. 314; Morrow Shoe Mfg. Co. V. New England Shoe Co. 24 L.E.A. 417, 6 C. C. A. 508, 18 U. S. App. 256, 57 Fed. 692 ; Nellis v. Pennoci: Mfg. Co. 38 Fed. 379 ; Ee Sanford Tool Co. 160 U. S. 259, 40 L. ed. 417, 16 Sup. Ct. Eep. 291. In Neale v. Keale, 9 Wall. 1-12, 19 L. ed. 5d0-593, the AMENDING BILL. 357 cause had been heard but decree not entered, but it appeared that the evidence showed a different case for equitable relief than stated in the bill, but supported a case for equitable relief. The court permitted an amendment to conform to the proof, stat- ing that it was clearly in the court's discretion, but it has been uniformly held that the amendment must be consistent with the substance of the original bill, that is, you will not be per- mitted to make a new suit by amendment either as to parties or cause of action. (Authorities above) ; Confectioners' Ma- chinery & Mfg. Co. V. Racine Engine & Mach. Co. 163 Fed. 918; Pendery v. Carleton, 30 C. C. A. 510, 59 U. S. App. 288, 87 Fed. 41. Where, after pleadings are closed and evi- dence taken it becomes necessary to amend, it must be done by amendment, and not by a substituted bill. Old Dominion Copper Min. & Smelting Co. v. Lewisohn, 176 Fed. 746. Change in interest of parties cannot be introduced by amend- ment. Land Co. v. Elkins, 22 Blatchf. 204, 20 Fed. 546; The Ask, 156 Fed. 681-682 ; Savage v. Worsham, 104 Fed. 18-19; Maynard v. Green, 30 Fed. 644; Judson v. Courier Co. 25 Fed. 706; Metropolitan ISTat. Bank v. St. Louis Dis- patch Co. 38 Fed. 58. In the instances where amendments have been permitted after issue joined and proofs taken, it will be seen that it was shown the plaintiff was entitled to equitable relief under the general prayer, though it may be different from that sought in the special prayer. Ibid. ; Neale v. Neale, 9 Wall. 1, 19 L. ed. 590 ; Walden v. Bodley, 14 Pet. 164, 10 L. ed. 401 ; Bass v. Christian Feigenspan, 82 Fed. 261 ; Wiggins Ferry Co. v. Ohio & M. E. Co. 142 U. S. 414, 35 L. ed. 1061, 12 Sup. Ct. Eep. 188. It has been frequently decided that the amendment per- mitted by equity rule 29, that is, after replication, is not in- tended to permit the plaintiff to strengthen his case, or change the character and quantity of relief, but to enable the court to do complete justice when a case for relief is made out, and not specifically asked for in the prayer. Ibid. ; Eichmond v. Irons, 121 TI. S. 47, 30 L. ed. 870, 7 Sup. Ct. Eep. 788 ; Maynard V. Green, 30 Fed. 644; Old Dominion Copper Min. & Smelt- ing Co. V. Lewisohn, 176 Fed. 746; The Tremolo Patent, 23 Wall. 527, 23 L. ed. 98. 358 AilEXDIXG BUI,. The amendment must harmonize with the whole ease in its essential features, and must not change the subject-matter. Anthony v. Campbell, 50 C. C. A. 195, 112 Fed. 217. In Eichmond v. Irons, 121 U. S. 46, 47, 30 L. ed. 870, 871, 7 Sup. Ct. Eep. 7S8, you will find that while the amendment was a departure from the original case, yet it was permitted on the ground that the amendment made was germane to the original purpose. In Shields v. Barrow, 17 How. 143, 15 L. ed. 161, a bill to set aside an agreement for fraud was not permitted to be amended so as to ask for specific performance. St. Louis, V. & T. H. K. Co. V. Terre Haute & I. E. Co. 33 Fed. 448 ; Merriman v. Chicago & E. I. E. Co. 12 C. C. A. 275, 24 U. S. App. 428, 64 Fed. 551. Again, when the matter has not been sufficiently put in issue by the bill, or when the prayer is not consistent with the case made, the court will permit an amendment at the trial (Graf- fam V. Burgess, 117 U. S. 195, 29 L. ed. S44, 6 Sup. Ct. Eep. 686; Eichmond y. Irons, 121 U. S. 47, 30 L. ed. 870, 7 Sup. Ct. Eep. 788 ; Hardin v. Boyd, 113 U. S. 761, 28 L. ed. 1142, 5 Sup. Ct. Eep. 771), and make the prayer conform to the proof. Ibid. ; but see Bass v. Christian Feigenspan, 82 Fed. 261 ; Maynard v. Green, 30 Fed. 644. In Gotten v. Fidelity 6 C. Co. 41 Fed. 510, it was held that an amendment may be filed at any time before decree to bring the merits fairly to trial, but some courts have held that if the facts were known, or ought to have been known, leave to file an amendment after the facts are in will be refused. Thus in Gubbins v. Laughtensehlager, 75 Fed. 622, the suit began in 1892, and the decision was filed in 1896, when the amendment was sought to be made, but it was denied because no reason was shown why the point was not sooner presented; but you will find in Smith v. Babcock, 3 Sumn. 583, Fed. Cas. Xo. 13,008 and Calloway v. Dobson, 1 Brock. 119, Fed. Cas. ^0. 2,325 an amendment was permitted, though the facts were known, but not deemed material. In Graffam v. Burgess, 117 U. S. 197, 29 L. ed. 844, 6 Sup. Ct. Eep. 686, a formal charge of fraud was permitted to be added at the trial by amendment. In Hubbard v. Manhattan Trust Co. 30 C. C. A. 520, 57 U. S. App. 730, 87 Fed. 57, it was held that you may strike out AMENDIITG BILL. 359 an allegation, or leave out parties at the trial, and cliange the allegation and prayer. Insurance Co. of jST. A. v. Svendson, 74 Fed. 348. So you may add a claim inadvertently omitted. ISTellis V. Pennock Mfg. Co. 38 Fed. 379. Or dismiss a party. Victor Talking Mach. Co. v. American Graphophone Co. 118 Fed. 50. As to the practice of the Texas courts in allowing amend- ments during the progress of the case, see Fidelity & C. Co. V. Carter, 23 Tex. Civ. App. 359, 57 S. W. 316, and authori- ties. As to amending as to parties, see Lusk v. Kimball, 87 Fed. 545. Van Doren v. Pennsylvania E. Co. 35 C. C. A. 282, 93 Fed. 261; McDonald v. Nebraska, 41 C. C. A. 278, 101 Fed. 171. Amendment After Decree. In The Tremolo Patent, 23 Wall. 518, 23 L. ed. 97, the court says you may amend your bill after decree, if the cause was tried as if the bill had contained the averment sought to be made, and defendants would not be prejudiced by the amend- ment. Graffam v. Burgess, 117 U. S. 195, 29 L. ed. 844, 6 Sup. Ct. Eep. 686 ; Ee Glass, 119 Fed. 511 ; New York Grape Sugar Co. v. Buffalo Grape Sugar Co. 20 Fed. 505 ; Zeillin v. Eogers, 10 Sawy. 200, 21 Fed. 103; Gubbins v. Laughten- schlager, 75 Fed. 620 ; Morrow Shoe Mfg. Co. v. New England Shoe Co. 24 L.E.A. 417, 6 C. C. A. 508, 18 U. S. App. 256, 57 Fed. 692. Am.endment to Cure Jurisdiction. You may azaend to cure jurisdiction, thus when proper juris- dictional allegations are not made, — as, where "residence," and not "citizenship," is alleged, the appellate courts have reversed, permitting the bill to be amended. Stockwell v. Boston & M. Co. 131 Fed. 153 ; Sambo v. Union P. Coal Co. 146 Fed. 80 ; Menard v. Goggan, 121 U. S. 253, 30 L. ed. 914, 7 Sup. Ct. Eep. 873 ; Great Southern Fire Proof Hotel Co. v. Jones, 193 IT. S. 540, 48 L. ed. 784, 24 Sup. Ct. Eep. 576 ; Betzoldt v. American Ina. Co. 47 Fed. 705 ; Marthinson v. Winyah Lum- 360 AMENDING BILIo ber Co. 125 Fed. 633 ; King Bridge Co. v. Otoe County, 120 U. S. 227, 30 L. ed. 624, 7 Sup. Ct. Kep. 552; Metcalf v. Watertown, 128 U. S. 587, 32 L. ed. 543, 9 Sup. Ct. Eep. 173. It is in the discretion of the court. Pacific Mut. L. Ins. Co. V. Tompkins, 41 C. C. A. 488, 101 Fed. 539. So, where objection to the jurisdiction of the court has been sustained, the plaintiff has a right to amend the bill (Equity rule 28 ; Ins. Co. of N. A. v. Svendsen, 74 Fed. 347 ; Harden V. Boyd, 113 U. S. 761, 28 L. ed. 1142, 5 Sup. Ct. Eep. 771; Eiggs V. Brown, 172 Fed. 637) by striking out or shifting par- ties. After decree pro confesso on bill showing no jurisdic- tion, amendment was allowed to cure it (Xelson v. Eaton, 13 C. C. A. 523, 27 U. S. App. 677, 66 Fed. 376) ; but it seems that where facts are to be alleged, as in equity rule 94, to give a Federal court jurisdiction, you cannot amend to give juris- diction (Dickinson v. Consolidated Traction Co. 114 Fed, 233), nor to defeat jurisdiction (Gibbins v. Laughtenschlager, 75 Fed. 616). Amendment as to Amount. You may amend as to amount if not definitely stated. Home Ins. Co. V. Nobles, 63 Fed. 641. Effect of Amendment. Amending a bill is a contiuuation of the original, if no new parties are made (French v. Hay [French v. Stewart], 22 Wall. 246, 22 L. ed. 856), or new suit (Columbia Valley E. Co. V. Portland & S. E. Co. 89 C. C. A. 361, 162 Fed. 609). If the amendment is of a material matter, time must be al- lowed the defendant to answer. Nelson v. Eaton, 13 C. C. A. 523, 27 TJ. S. App. 677, 66 Fed. 378. The amendment must not deprive the defendant of any defense or create any disad- vantage (Eichmond v. Irons, 121 TJ. S. 47, 30 L. ed. 870, 7 Sup. Ct. Eep. 788), and, as will be hereafter seen, if the amendment is made after the answer is filed, it authorizes the defendant to make an entirely new answer though it may con- tradict the former one. Blythe v. Hinkley, 84 Fed. 244 ; Nel- son V. Eaton, 13 C. C. A. 523, 27 U. S. App. 677, 66 Fed. 378 ; AMENDING BILL. 361 North Chicago Street K. Co. v. Chicago Union Traction Co. 150 Fed. 631-633. However, if an amendment is allowed on hearing an interlocutory injunction, it takes effect at once, if no new parties are made. American Steel & Wire Co. v. Wire Drawers' & Die Makers' Union Nos. 1 & 3, 90 Fed. 598; U. S. Rev. Stat. sec. 954; U. S. Comp. Stat. 1901, p. 696. Or if the merits are not particularly affected by the amendments and new parties, requiring further process, the plaintiff may proceed without further answer. In Columbia Valley E. Co. V. Portland & S. E. Co. 89 C. C. A. 361, 162 Fed. 603. A distinction is drawn as to time of taking effect between an amended bill and amendments to a bill. An amended bill speaks from the time it is filed, and not from the filing of the original bill. In Xorth Chicago Street E. Co. v. Chicago Union Traction Co. 150 Fed. 613, it was strenuously urged and sustained that an amendment to a biU does not entitle the defendant to an- swer anew the entire bill, but only the amended matter. Motion to Amend. We have seen that where the amendment is not of course, and is sought to be made after plea, demurrer, or answer, that a motion must be filed asking permission, though it need not be served on the opposite party. Eiggs v. Brown, 172 Fed. 637. This motion must be made promptly, Boston & A. E. Co. V. Parr, 98 Fed. 484, and the following form may be used. Equity rule 35 : Title as in bill, and address. And now comes plaintiff and begs leave to file the amended bill hereto attached (or the following amendment) to the bill heretofore filed on the day of A. D. 19.. R. F., Solicitor, etc. See Beavers v. Eichardson, 118 Fed. 320. The amendment must be stated as follows, where you do not have to file an entirely new bill, because of the numerous amendments required. Equity rule 28. Title as in bill. Now comes the plaintiff and by leave of the court amends his bill, in 362 AME^'DIHG BILL. the manner following : After the words, ete, on line of the page of the bill insert (and so on), or that the allegation beginning on line of page of the bill be so amended as to read ; or after the word on line, page of the bill, strike out the words R. F., Solicitor. In this manner you may insert or strike out words and sen- tences until the bill conforms to your purpose. The amend- ment should be attached to the motion. But we have seen that the motion to amend and the amendments must be served on the opposite party or his solicitor, first, When a copy of the bill has been taken out of the clerk's office (and the amendment ma- terial) and before defendant has answered, plead, or demurred. Equity rule 28. And, second, When the replication has been filed and the cause at issue ; and in this last case the motion is to be accompanied by an affidavit that it is not made for delay, etc., as previously stated. Eqmty rule 29. Third. When the answer makes it necessary to amend the bill. Equity rule 45. You should, under these conditions, file a motion and serv- ice notice as follows: Title as in bill. To Messrs , Solicitors for Defendants, etc. : You will please take notice that I shall make a motion before the Hon. , Judge of the Circuit Court of the United States for the district of , on the day of , A. D. 19 . . , being the rule day in at a. m., in the city of ( or at chambers in the city of ), or as soon thereafter as counsel can be heard, for leave to amend the bill (or answer) filed in this cause on such terms as the court may direct, a copy of which amendments (and affidavits if made after replication filed) to be presented is served on you. E. F., Solicitor, etc. The affidavit necessary to support the motion to amend after replication filed (equity rule 29), must follow the rule and show that the amendments asked are not made for delay, or vexatiously, that they are material, and could not with dili- gence have been sooner introduced in the bill. Again, the mo- tion to permit the amendment must offer to submit to terms. AMENDING BILL. 363 When Amendment to Be Filed. After permission to amend has been granted, the plaintiff has until the next rule day to file his amendment or amended bill, and on failure to do so he will be considered to have aban- doned his amendment, and the cause will so proceed. Equity rule 30; Boston & A. E. Co. v. Parr, 98 Fed. -ISl, Amendment After Appeal. A motion to amend a bill in the court of appeals so as to retain jurisdiction can only be made by consent. Fitchburg E. Co. V. Xichols, 29 C. C. A. -164, 50 U. S. App. 280, 85 Fed. S69 ; Kansas City Southern E. Co. v. Prunty, 66 C. C. A. 163, 133 Fed. 617. But, as we have seen, the judgments may be reversed and amendment allowed in the court below without consent. Ibid. ; United States v. Hopewell, 2 C. G. A. 510, 5 U. S. App. 13Y, 51 Fed. 798. Thus when a bill has been dis- missed on demurrer for laches, the appellate court may send it back for amendment, showing excuse for delay. Hubbard v. Manhattan Trust Co. 30 C. C. A. 520, 57 U. S. App. 730, 87 Fed. 51 ; Watson v. Bonfils, 53 C. C. A. 535, 116 Fed. 161. When an amendment is sought to be made after appeal, it will not be permitted if it requires new evidence. American Bell Teleph. Co. v. United States, 15 C. C. A. 569, 33 IJ. S. App. 236, 68 Fed. 570. The record must show the evidence to sustain the allegations sought to be made. Ibid. We see now that under section 954 amendments have been allowed at every stage of the case from the summons to the final judgment. McDonald v. ISTebraska, 41 C. C. A. 278, 101 Fed. 177. Not Affected by State Statutes. The right to allow amendments in the Federal courts is not affected by State Statutes. Mexican C. E. Co. v. Duthie, 189 U. S. 76, 47 L. ed. 715, 23 Sup. Ct. Eep. 610; Oliver v. Eay- mond, 108 Fed. 927 ; Kent v. Bay State Gas Co. 93 Fed. 887. CHAPTER LXIL SUPPLEMENTAL BILL. Equity rule 57 provides that whenever any suit in equity shall become defective from any event happening after the fil- ing of the bill (as, for example, by change of interest in the parties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule day, upon proper cause shown and due notice to the other party ; and if leave be given to file such supplemental bill, the defendant shall demur, plea, or an- swer thereto on the next succeeding rule day after the supple- mental bill is filed in the clerk's office, unless some other time be assigned by the judge. Nevada Xickel Syndicate Co. v. National Nickel Co. 86 Eed. 489; Thompson v. Schenectady E. Co. 119 Fed. 638 ; Kennedy v. Bank of Georgia, 8 How. 610, 12 L. ed. 1218 ; Hazleton Tripod-Boiler Co. v. Citizens' Street E. Co. 72 Fed. 325 ; Central Trust Co. v. Western Xorth Carolina E. Co. 89 Fed. 24 ; Chester v. Life Asso. of America, 4 Fed. 489 ; Eeeve v. North Carolina Land & Lumber Co. 72 C. C. A. 287, 141 Fed. 821-834; Curtis Davis & Co. v. Smith, 105 Fed. 949 ; Oregon & Transcontinental Co. v. Northern P. E. Co. 32 Fed. 428; Napier v. WesterhofF, 153 Fed. 985; Pittsburgh, S. & N. E. Co. v. Fiske, 101 C. C. A. 560, 178 Fed. 67, and cases cited. Where there is a change of interest by complainant and no supplemental bill filed, the bill will be dismissed (Pittsburgh, S. & N. E. Co. v. Fiske, 178 Fed. 67- 69, and cases cited), but not where the defendant has assigned his whole interest (Ibid. ; 67, 68, and cases cited). Equity rule 58 provides that it shall not be necessary in a supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case re- quire it 364 SUPPLEMENTAL BILL. 365 These rules are self-explanatory, and obviously mean that any change of interest in the parties, or if a larger or different kind of relief is required by reason of events arising after the suit, then a supplemental bill is the proper proceeding to bring it before the court, and not by amendment; providing, always, that the complainant had a cause of action when the original bill was filed and it was set forth in the original bill. Mellor V. Smither, 52 C. C. A. 64, 114 Fed. 120; Chicago Grain Door Co. V. Chicago, B. & Q. R Co. 137 Fed. 103, and cases cited ; Banks Law Pub. Co. v. Lawyers' Co-op. Pub. Co. 139 Fed. 702 ; Berliner Gramophone Co. v. Seaman, 51 C. C. A. 440, 113 Fed. 754. Frequently after filing a suit, circumstances changing con- ditions, as a change of interest in parties, renders it necessary to bring in new parties, or perhaps some new fact had arisen affectii'g the subject-matter. This should be brought in by sup- plement, which is in effect a method of amendment. It is a continuation of the original bill, and adds to the former pro- ceeding what is necessary for the court to enter a complete de- cree. Berliner Gramophone Co. v. Seaman, 51 C. C. A. 440, 113 Fed. 752 ; Js^apier v. Westerhoff, 153 Fed. 985 ; Lang v. Choctaw, 0. & G. E. Co. 87 C. C. A. 307, 160 Fed. 356; Eeeve v. North Carolina Land & Timber Co. 72 C. C. A. 287, 141 Fed. 821 ; Chapman v. Yellow Poplar Lumber Co. 74 C. C. A. 331, 143 Fed. 201 ; St. Louis & S. F. E. Co. v. Hadley, 155 Fed. 220; Electrical Accumulator Co. v. Brush Electric Co. 44 Fed. 606 ; Nevada Mckel Syndicate v. National Nickel Co. 86 Fed. 486. The province, then, of the supplemental bill, is to supply some defect in the structure of the original bill when this can- not be done by amendment, or to introduce matters occurring subsequent to the filing of the original bill. In the light of equity rules 28 and 29, and F. S. Eev. Stat, see. 954, U. S. Comp. Stat. 1901, p. 696, providing for amend- ments to bills at any progress of the cause, and the construc- tion of courts permitting amendments at any stage, and in view of a further recognized rule of practice, that when the same end can be obtained by amendment, a supplemental bill will not lie (Henry v. Travelers' Ins. Co. 45 Fed. 302), it results 366 SUPPLESIEXTAX BII.I.. that purely supplemental bills are only necessary in a few cases. It is difficult under the various decisions to trace the line of demarcation where amendment ends and supplement begins; however, under equity rule 57 a supplemental bill is proper when the bill becomes defective (as when a new interest or right because of a change of interest in parties or of the sub- ject-matter), requiring new facts to be alleged, which has ac- crued to one or all of the parties after the bill has been filed, thereby creating a defect in the structure of the bill. Xevada Xickel Syndicate Co. v. National Xickel Co. 86 Fed. 489, and authorities cited at beginning of the chapter ; Cedar Valley Land & Cattle Co. v. Coburn, 29 Fed. 586 ; ^STew York Secur. & T. Co. V. Lincoln Street E. Co. 74 Fed. 68 ; Anglo-Florida Phosphate Co. v. McKibben, 13 C. C. A. 36, 23 U. S. App. i675, 65 Fed. 529 ; DeForest v. Thompson, 40 Fed. 375 ; May- nard v. Green, 30 Fed. 644; Mosgrove v. Kountze, 4 McCrary, 561, 14 Fed. 315. To illustrate : When the plaintiff has sued in another right, and his interest has determined by the appointment of a suc- cessor (Phipps V. Sedgwick, 95 II. S. 10, 24 L. ed. 594), such as a change of trustees, or where there has been a partial trans- fer of interest by the original plaintiff, or by one of several original plaintiffs (Campbell v. I^ew York, 35 Fed. 14) ; or where there happens to be one born with same class of interest as the parties to the bill; or when the husband and wife are parties, and by the death of one a new interest survives to the other ; or where a party who is a feme sole marries during suit, a supplemental bill can be filed. Hazleton Tripod-Boiler Co. V. Citizens' Street E. Co. 72 Fed. 327-329. But where the facts to be set up existed before suit and by reasonable dili- gence could have been discovered and pleaded by way of amend- ment, then a supplemental bill will not be allowed. Mosgrove V. Kountze, 4 McCrary, 561, 14 Fed. 315. ^Yhen No Cause in Original Bill. If complainant has no ground for belief in the original bill, then you cannot file a supplemental ; but if the original bill is sufficient for one kind of relief, and facts subsequently occur SUPPLEMENTAL BILL. 367 giving another kind of relief and more extensive, then it may be set up by supplement, but it is in the discretion of the court. Henderson v. 300 Tons of Iron Ore, 38 Fed. 40; Mason v. Hartford, P. & F. E. Co. 10 Fed. 334; Mellor v. Smither, 52 C. C. A. 64, 114 Fed. 116-120; Putney v. Whitmire, 66 Fed. 385 ; Sheffield & B. Coal, Iron & K. Co. v. Newman, 23 C. C. A. 459j 41 TJ. S. App. 766, 77 Fed. 791. When supplemental bill is permitted, you may set up matters that were omitted from the original bill. Mellor v. Smither, 52 C. C. A. 64, 114 Fed. 116. After Decree. It may be stated as a rule that after decree a supplemental bill must be filed when you require some aid in the execution of the decree, or further directions, or where a purchaser of the subject-matter desires to obtain the benefit of the decree. Secor V. Singleton, 41 Fed. 725 ; Koot v. Woolworth, 150 U. S. 402-411, 37 L. ed. 1124-1126, 14 Sup. Ct. Rep. 136 ; French V. Hay (French v. Stewart) 22 Wall. 246, 22 L. ed. 856 ; Mil- waukee E. Co. V. Milwaukee & St. P. E. Co. (Milwaukee & M. E. Co. V. Soutter) 2 Wall. 634, 17 L. ed. 895. In Eoot V. Woolworth, 150 U. S. 402-411, 37 L. ed. 1124- 1126, 14 Sup. Ct. Eep. 136, it is decided that when the title of the original party is determined, but another party becomes interested in the subject-matter through a title not derived from the original party, but in such manner as to render it just that this second party should have the benefit of the prior proceedings then such party can file a bill in the nature of a supplemental bill, to be discussed hereafter. When one seeks to modify the decree, on the ground of newly discovered evidence, then a supplemental bill in the nature of a bill of review can be filed, but it must show definitely that the facts set up were not known prior to the entry of the de- cree. Omaha v. Eedick, 11 C. C. A. 1, 27 U. S. App. 204, 63 Fed. 6; Henry v. Travelers' Ins. Co. 45 Fed. 299-303. Again, supplemental bills are proper to obtain restraining or- ders to protect decrees of courts, as where parties attempt to nullify in a State court a decree of a Federal court foreclosing a mortgage. 368 SUPPLEMETS'TAL BILL. Motion to File Supplemental Bill. Equity rixle 57 further requires that before either character of supplemental bill can be filed, you must obtain consent of the court through a motion to file it, with due notice to the other party showing proper cause. The motion is intended to advise the defendant of the ground upon which the bill is based, and to advise the court that probable cause exists for granting the motion, and that the matter embraced in the mo- tion, if properly pleaded, would sustain the supplemental bill. The motion must show that the event upon which it is founded occurred after the filing of the bill (Nevada Xickel Syndicate Co. V. Xational Xickel Co. 86 Fed. 489) ; or if the fact ex- isted before that, it was not known, or could not by reasonable diligence have been known (Mosgrove v. Kountze, 4 McCrary, 561, 14 Fed. 315 ; Omaha v. Eedick, 11 C. C. A. 1, 27 TJ. S. App. 204, 63 Fed. 6; Henry v. Travelers' Ins. Co. 45 Fed. 303), or through misapprehension, or some excusable cause, he was prevented from setting it up. The following form is sufficient : Title as in bill, and address. The motion ( or petition ) of A. B. respectfully shows that on the day of A. D. 19 he filed his bill in this Honorable Court against C. D., defendant, for the purpose of (state object of bill) and plain- tiff prayed in said bill as follows ( state prayer of bill ) . Plaintiff shows that the defendant appeared and answered (state sub- stance of answer or so much as will show the relevancy of the supplement to be filed) or did not answer. That since the filing of the suit (here state what has occurred since upon which the supplement rests). Wherefore your petitioner is advised that it is necessary to bring in C. H. as a. party to the suit ( or whatever is sought in the supplemental bill ) , and your petitioner prays that leave be granted to file a supplemental bill against C. H. for the purpose of making him a party and for such general and special relief as may be proper. E. F., Solicitor. Leave must be obtained to file (Henry v. Travelers' Ins. Co. 45 Fed. 303) and the motion may be filed at any stage of the cause (Secor v. Singleton, 41 Fed. 726) ; but the grant- ing of it is entirely in the discretion of the court (Mackintosh V. Flint & P. IT. E. Co. 34 Fed. 614; Sheffield & B. Coal, Iron SUPPLEMENTAL BILL. 369 & K. Co. V. Newman, 23 0. C. A. 459, 41 U. S. App. 766, 77 Ted. r87; Berliner Gramophone Co. v. Seaman, 51 C. C. A. 440, 113 Fed. 750). In determining the motion, the court does not proceed to try the case on the motion, or determine questions that could be raised by demurrer to the bill, but will ordinarily grant the filing, though grave doubts may exist as to the relief prayed for. Oregon & Transcontinental Co. v. Northern P. K. Co. 32 Fed. 428, Notice of Motion. Equity rule 57 provides that leave to file the bill may be granted on any rule day, and in giving notice of the motion you must fix in it the rule day on which you will make the ap- plication, but you should add "or as soon thereafter as possi- ble," so as to provide for the contingency that the judge may not be reached on the day you set for the hearing. The form of notice is as follows: Title as in bill. To Messrs , Solicitors for Defendant, etc. : You will please take notice that I will present to hia Honor , Judge of the Circuit Court of the United States for the District of , on the day of A. D. 19 . . ., being the rule day in ( state month ) , or as soon thereafter as practicable, a motion, a copy of which is hereto attached, praying for permission to file a supple- mental bill (or a bill in the nature of a supplemental bill) in the above cause and upon the grounds therein stated. R. F., Solicitor, etc. This notice may be served by an officer or sent by a clerk, and it is usual for counsel to indorse acceptance of service, but if not, the officer serving may make his return of service as usual, or if served by one not an officer, he may make affidavit of the delivery to counsel on the notice as follows: State of , County of On the day of , A. D. 19 . . , 1 served the within notice on X. Y., solicitor of record for the defendant, by handing him a. copy of (or leaving it at his place of business or residence). (Signed) John Smith. S. Eq— 24. 370 StTPPLEMENTAl BILL. Sworn to before me S. M., a notary public in and for County, in the State of , this the day of A. D. 19. .. [SEAL.] Notary. Equity rule 58 provides that it shall not be necessary to set forth in a supplemental bill any of the statements in the orig- inal bill, unless special circumstances require it. The supple- mental bill as stated is only a continuation of the original suit, and it should set forth as much of the original pleadings as is necessary to clearly show the relevancy of the supplement, or the new matter sought to be introduced; that is, the change of interest of the parties and how the subject-matter is affected thereby. Parties. If a new party is made, then show his interest in the subject- matter and that he is entitled to a decree, and is further en- titled to the benefit of the prior proceedings, or, if a defendant, that his presence is necessary to perfect the relief sought in the suit. The parties to the bill depend on the purpose. Ordinarily the parties to the original bill are parties to the supplement, but when change of interest only occurs in one defendant, then a supplemental bill may be exhibited against him alone, and also when the purpose is only to make formal parties, then you need only make them parties to the supplemental bill. In this character of biU, questions of citizenship do not affect jurisdiction, as it is only auxiliary to the principal suit. Koot V. Woolworth, 150 U. S. 401, 37 L. ed. 1123, 14 Sup. CL Eep. 136; Miller v. Eogers, 29 Fed. 401. Process. Again, if the matter of supplement does not require new parties to be made, then there is no necessity for further proc- ess. Shaw V. Bill, 95 U. S. 10, 24 L. ed. 333. You may direct a rule to the p.arties already served to answer. Hazleton Tripod-Boiler Co. v. Citizens' Street E. Co. 72 Fed. 329 : but see French v. Hay (French v. Stewart) 22 Wall. 246, 247, 22 L. ed. 856, 857, holding new process necessary, unless waived. CHAPTEE LXin. EELATION OF SUPPLEMENTAL TO OEIGISTAL BILL. The supplement is only a continuation of the original bill, and the facts set up must have a near relation to the original bill, and the relief sought must be a modification or enlarge- ment of the original relief sought, Maynard v. Green, 30 Fed. 645. And the facts in the supplement must not contradict the facts in the original bill. (Ibid. ; Electrical Accumulator Co. V. Brush Electric Co. 44 Eed. 606), but must further the ob- ject (Shaw V. Bill, 95 TJ. S. 10, 24 L. ed. 333). If it has no connection with the original bill, it should be dismissed. Milwaukee & M. E. Co. v. Milwaukee & St. P. E. Co. 6 Wall. 742, 18 L. ed. 856. You cannot make new case by supplement (Electrical Ac- cumulator Co. V. Brush Electric Co. 44 Fed. 607), or pray for relief manifestly inconsistent with original prayer (Ibid.) Again, if there is no cause of action in the original bill, it will not support a supplement stating a cause of action. Put- ney v. Whitmire, 66 Fed. 385. If the supplemental bill be brought to set up new matter it must further appear that it was filed as soon as practicable after the discovery. Henry v. Travelers' Ins. Co. 45 Fed. 303 ; Omaha v. Eedick, 11 C. C. A. 1, 27 U. S. App. 204, 63 Fed. 1; ilosgrove v. Kountze, 4 McCrary, 561, 14 Fed. 315. A supplemental bill setting up documents in haec verba will not be expunged if material. (K'evada ]Srickel Syndicate Co. v. l^ational :N'ickel Co. 86 Fed. 488; equity rule 57), but re- petitions will be. (Ibid.) Form of Supplemental Bill. Title and address as in bill. That on the day of , A. D. 19. . ., plaintiff exhibited his original bill of complaint In this Honorable Court against 0. D. defend- 371 372 EELATION OF SUPPLEMENTAL TO OEXGIWAL BILL. ant (state purpose of bill and prayer). That said defendant was duly served with process and entered an appearance and put in his answer (here state the stage the case has reached ) . That on the day of , A. D. 19 ... , C. D. was declared a bankrupt and that E. F. was chosen assignee of the estate of C. D., all of which has been duly conveyed and assigned to the said E. F., and plaintiff is advised that he is entitled to the same relief against the said E. F., as he would have been entitled to if C. D. had not become a bankrupt. To the end, therefore, that the defendant E. F. may show why the plain- tiff may not have the relief prayed for, and may answer under oath fully and truly to all the matters herein stated as if particularly interrogated thereto, and that the plaintiff may have the same relief against E. F. as he would have been entitled to against the said C. D. had he not become a bankrupt and that plaintiff may have such other further general and spe- cial relief as the facta of the case entitle him to, may it please Your Honor to grajit to plaintiff a writ of subpoena directed to the said E. F., command- ing to appear and make answer to the premises and abide by and perforin such orders and decrees as to the court may seem proper. R. F., Solicitor. (Affidavit to Bill.) United States of America, District of On this the. .... .day of , A. D. 19. . ., came A. B., the above named plaintiff, who made oath that he has read the foregoing bill of com- plaint and knows the contents thereof and the same are true. J. N., Notary Public The prayer of the bill may pray for a subpoena to the end that the defendant may answer the new supplemental matter, and the court to grant further relief based on the supplemental statements. Or if the defect arises from a change of partie.3 a subpcEna is prayed against the new parties to the end that they may answer the premises, and the plaintiff have the bene- fit of the former proceedings, and the same relief he would have been entitled to against the former parties. When the bill is filed, the same procedure is had as in filing the original bill. The defendant must demur, answer, or plead to the supplemental bill by the next rule day after filing the supplement in the clerk's office, unless the court enlarges the time (equity rule 57), or the bill will be taken as confessed. CHAPTEK LXIV. BILL IN WATTJEE OF SUPPLEMENTAL BILL. It will be noticed that equity rule 57 provides not only for a supplemental bill, but for a bill in the nature of a supplemental bill "as may be necessary to be filed," which means, as the facta may demand. Judges of the Federal courts often speak of the two classes of bills as if the distinction was only artificial, but there is a marked difference. Curtis Davis & Co. v. Smith, 105 Ted. 950; Campbell v. New York, 35 Fed. 14; Vigneron V. Auto Time Saver Kepair Kit Co. 171 Fed. 581 ; Eoss v. Ft. Wayne, 58 Fed. +0+, reversed in 11 C. C. A. 288, 24 U. S. App. 113, 68 Fed. 466. It has already been stated that pure supplemental bills are but continuations of the original bill, and used as amendatory process to cure matters which render the original bill defective ; but a bill in the nature of a supplemental bill is in effect an original bill, beginning, as it were, a new suit, which simply draws to itself the advantages of the proceedings under the original bill and to that extent is supplementary. Ibid. To illustrate: When the property which is the subject- matter of the suit has been entirely transferred by a sole plain- tiff or sole defendant, or by all the plaintiffs or defendants, to a third person, or if the title has passed by death and trans- ferred to another, then a bill in the nature of a supplemental bill should be filed (Nevada Nickel Syndicate v. National Nickel Co. 86 Fed. 489; Hazleton Tripod-Boiler Co. v. Citi- zens' Street R. Co. 72 Fed. 325 ; Secor v. Singleton, 41 Fed. 725 ; Walter Baker & Co. v. Baker, 89 Fed. 673 ; Root v. Wool- worth, 150 U. S. 401, 37 L. ed. 1123, 14 Sup. Ct. Rep. 136 ; Miller v. Rogers, 29 Fed. 401), because the parties in these cases are out of court for want of interest ; the suit is virtually ended, and the court cannot enter a decree, nor can it be con- tinued by revivor, or a pure supplemental bill for or against the new party. Ibid. 373 374 BIJLL IN NATUEE OF SUPPI>EMENTAL BILL. Again, suppose the interest is cut o£E by death, and the prop- erty in dispute transferred to a third person who does not hold in the same right as the deceased party; it cannot be continued by pure supplemental bill because he comes in by a different right and by a title that might be litigated, as, when property is cut off by bankruptcy. Hazleton Tripod-Boiler Co. v. Citi- zens Street E. Co. 72 Ted. 328 ; Chester v. Life Asso. of Amer- ica, 4 Fed. 487; Miller V. Rogers, 29 Fed. 401. It would not be enough that the new party states that his assignor in- stituted suit and assigned to him, or that suit was instituted by the deceased and his interest arose by reason of the death, etc., as would be sufficient in a pure supplemental bill, but he must show that his assignor had the property, and the manner in which he had acquired the property carried with it the right to sue. Foster, Eq. Pr. Sec. 190. This requires an original bill and supplementary only so far as advantage may be taken of the prior proceedings. A bill in the nature of a supplemental bill must, however, follow the general purpose of the original bill and be in accord with the tenor of its allegations. Electrical Accumulator Co. V. Brush Electric Co. 44 Fed. 607. It must set forth so much of the original bill or answer as shows how the interest of the original party has terminated, and the circumstances under which the new party can claim the benefit of the prior proceed- ings, and it must show a cause of action against the original defendants, and be in form an original bill. It has been held, however, that if a supplemental bill has been filed, when the remedy should have been sought through a bill in the nature of a supplemental bill, and no objection is raised to the irregularity, the court will disregard it and proceed on the supplemental bill. Reedy v. Scott, 23 Wall. 352, 23 L. ed. 109 ; see Coburn v. Cedar Valley Land & Cattle Co. 138 U. S. 196, 34 L. ed. 876, 11 Sup. Ct. Rep. 258. Again, if a party defendant dies before appearance, or, hav- ing appeared, dies before answer, plea, or demurrer, and be- fore a judgment pro confesso has been taken, his successor must be brought in by a bill in the nature of a supplemental bill. There is some confusion on the subject of making new parties when a purchase has been made pendente lite. A distinction has been drawn where the plaintiff sells and BILL IN NATUKE OF SUPPLEMENTAL BILL. 375 where the defendant sells. Thus it is held that when the de^ fendant sells, his purchaser is bound by the decree, and it is not necessary to file a supplemental bill ; but when the plaintiff sells, there can be no decree, and the purchaser must be brought before the court by an original bill in the nature of a supple- mental bill. Hazleton Co. v. Citizens' Street E. Co. 72 Fed. 329 ; Walter Baker & Co. v. Baker, 89 Fed. 675. In Hazleton Tripod-Boiler Co. v. Citizens' Street E. Co. 72 Fed. 32S, 329, the court recognizes the distinction between privies in law and privies in deed, and holds that if the new party obtains the interest by transfer he must file an original bill in the nature of a supplemental bill, but the interest of an administrator or heir at law may be set up by a pure supple- mental bill. As to forms of notice, motion, service, and bill see forms under supplemental bills. CHAPTEE LXV. BIIiL OF BETIVOE. Equity rule 56 provides that whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time; and upon suggestion of the facts subpoena shall issue to the proper representatives to appear and show cause why the suit shall not revive, and if no cause be shown at the next rule day occurring fourteen days from the service of process, the suit shall stand revived as of course. Revivor must be by bill, not by motion. Dillard v. Central Virginia Iron Co. 125 Eed. 158 ; Simmons v. Morris, 109 Fed. 707. By equity rule 58 it is provided that it shall not be neces- sary to set forth any of the statements in the original suit, un- less the special circumstances of the case require it. By U. S. Eev. Stat. sec. 955, U. S. Comp. Stat. 1901, p. 697, it is provided that when either of the parties plaintiff or defendant die before final judgment the executor or adminis- trator may, if the suit survives, prosecute or defend to final judgment * * *. If the executor or administrator refuses or neglects to become a party twenty days after being served by scire facias, the court may nevertheless render judgment against the deceased party. The executor or administrator be- coming a party is entitled to a continuance. This section, how- ever, has reference to a cause wherein a sole plaintiff or de- fendant dies. See Allen v. Fairbanks, 40 Eed. 188 ; Spaeth v. Sells, 176 Eed. 797. See also Thomas v. Tensas Parish, 14 Eed. 390, and note. By TJ. S. Eev. Stat. Sec. 956, it is provided that when one of several plaintiffs or defendants die in an action which sur- 376 BILL OF EEVIVOE. 377 vives to or against the other, the writ or action shall not abate, but upon suggestion on the record the action shall proceed in favor of or against the surviving party. We thus see at a glance the rules of equity and Federal stat- utes controlling the revival of suits in Federal courts. There is nothing inconsistent in the equity rules and statutes ; the former provides how the suggestion of death and subsequent revival is to be made, which must be followed in equity causes (Fitzpatrick v. Domingo, 4 Woods, 163, 14 Fed. 216), as section 955 does not apply to Equity suits. Brown v. Fletcher, 140 Fed. 642. Nature Of. A bill of revivor is a continuation of the original suit. Hone V. Dillon, 29 Fed. 465; Newcombe v. Murray, 77 Fed. 493; Clarke v. ILathewson, 12 Pet. 164, 9 L. ed. 1041; Terry v. Sharon, 131 U. S. 48, 33 L. ed. 96, 9 Sup. Ct. Eep. 705. And to revive by simple bill certain conditions must exist. The suit must involve an interest that survives death; that is, it must pass by operation of law to the legal representative, such as an executor or administrator, or by priority in blood to the heirs at law of the deceased. If the interest is cut off by death or passed by will, then a bill of revivor does not lie, but it must be revived by supplemental bill in the nature of a bill of revivor. Chester v. Life Asso. of America, 4 Fed. 489. Parties. The rule requires the bill to be filed by the proper parties. Terry v. Sharon, 131 U. S. 46, 33 L. ed. 95, 9 Sup. Ct. Eep. 705. The sole question in a simple bill of revivor is the com- petency of the parties and the proper frame of the bill. Ibid. ; K"ewcombe v. Murray, 77 Fed. 493 ; Fretz v. Stover, 22 Wall. 198-204, 22 L. ed. 769-771. It is a matter of right where the conditions exist (Fitzpatrick v. Domingo, 4 Woods, 163, 14 Fed. 216; Hovsrth v. Owens, 30 Fed. 911), but not after an order dismissing the suit (Ibid.). 378 BILL OF EEVITOE. When Sole Plaintiff Dies. When the sole plaintiff dies, the executor or administrator must revive, or if there be no necessity for administration, then the heirs and all the defendants in the original bill must be made parties to the bill of revivor. jSTewcombe v. Murray, 77 Fed. 493 ; Simmons v. Morris, 109 Fed. 707. When Sole Defendant Dies. If the sole defendant dies it must be revived against the executor or administrator by all the plaintiffs. Kirk v. Du- Bois, 28 Fed. 460; Childs v. Ferguson, 181 Fed. 795. When Several Plaintiffs and One Die. If there be several plaintiffs, and one die, the suit may be revived by the representatives of the deceased party, or by one or all of the surviving plaintiffs. If any of the surviving plain- tiffs refuse to join in a bill of revivor, you can make the par- ties refusing to join defendants in the bUl. U. S. Eev. Stat. Sec. 955, U. S. Comp. Stat. 1901, p. 697; Spaeth v. Sells, 176 Fed. 797. One of Several Defendants Dies. When one of several defendants dies, the suit abates as to him, and you may proceed without him, unless he is an indis- pensable party, in which event the representative of the de- ceased must be made a party to a bill of revivor which may be filed by any one of the plaintiffs in the original bill. "^Tien one of several plaintiffs, or one of several defendants dies, and the interest of the deceased passes to the coplaintiffs or codefendants, then there is no necessity for a revival, as in cases where a husband joined with the wife pro forma dies, or where there are several executors or trustees, and one dies. In making parties to a bill of revivor, or in the nature of a bill of revivor, the fact that the new parties to be made destroys diversity of citizenship does not affect the jurisdiction of the BILL OF EEVIVOB. 379 court. Being only a continuation of the old suit, of which the court had jurisdiction, a subsequent change of situation cannot affect it. Clarke v. !Mathewson, 12 Pet. 171, 9 L. ed. 1013 ; Hone v. Dillon, 29 Fed. 465. When Bill ^yill Be Dismissed. It is no ground to dismiss the bill that the original bill does not show a cause of action; the bill, though demurrable, cannot be tried in this manner; the only question as to the revivor is the cause of action to one that survives. Allen v. Fairbanks, 40 Fed. ISS; Mason v. Hartford, P. & F. E. Co. 19 Fed. 56; Fretz V. Stover, 22 Wall. 198, 22 L. ed. 769. But if the court has no jurisdiction of the original bill, then a demurrer to a bill of revivor would be good. Sharon v. Terry, 1 L.E.A. 572, 13 Sawy. 3S7, 36 Fed. 337; Rutledge v. Waldo, 94 Fed. 265. The defendant opposing revival must do so by demurrer, plea, or answer, viz.; a demurrer when sufficient cause for revival is not shown; by plea when a ground to prevent revival exists, but does not appear ; and by answer when the facts set up in the bill are not true; but remember cause must be shown at the next rule day which shall occur fourteen days after the service of the subpcena to show cause. Equity rule 56. Revival By the Defendant. The defendant cannot revive a suit before decree, nor can he make the plaintiffs revive (Chester v. Life Asso. of Amer- ica, supra), but he is entitled, when cause for revival arises, to have the representative of the deceased sole plaintiff, or sur- viving plaintiffs when more than one, to revive within a given time or the suit be dismissed. Or should it appear that the facts exist when a bill in the nature of a bill of revivor is necessary, the defendant may demand that the proceeding be taken in a limited time or the bill be dismissed. To illustrate: If the interest of the plaintiff has been ter- minated by death, as in a life estate, or if a transfer has been made by will, or if plaintiff has become bankrupt, in either of these cases the defendant may demand action to be taken. 380 BILL OF EEVIVOE. When Filed. A bill of revivor, or in the nature of a bill of revivor, must be filed within a reasonable time, or defendant may move to dismiss. Howth v. Owens, 30 Fed. 910; HubbeU v. Lankenau, 63 Fed. 881. The bill may be filed at any time during the progress of the cause in the clerk's ofiice, either before or after the decree (Terry v. Sharon, 131 U. S. 40, 33 L. ed. 94, 9 Sup. Ct. Eep. 705; equity rule 56), and it must surest the facts upon which the revival is sought as a basis for subpoena to the representatives of the deceased to show cause why the suit should not be revived, and the subpoena is issued by the clerk as of course. Ibid. Other Causes for Revival. Equity rule 56 provides that revival lies when abatement is caused by death or "any other event." The words "any other event" refers to abatement caused by the marriage of a female party to the original bill. The suit must be revived in her new name, and her husband made a party. However, a female defendant marrying does not abate the suit, but upon simple suggestion entered in the record you may proceed with the cause, waiving her husband in any further proceedings. Again, equity rule 56 provides for a simple bill of revivor, or a bill in the nature of a bill of revivor, "when the circum- stances require it." This means, when the circumstances show that the interest of the deceased party ceases at death, as when the deceased party was litigating a contingent interest ; or when the interest of the deceased has been transferred by will to a third party ; or in case where after death the interest of the de- ceased party would not pass to the administrator or heir; or where a sole party is suing in a representative capacity; or where the defendant dies before service or appearance; or where he dies after appearance, but before a decree pro covr fesso. In any of these events a simple bill of revivor would not lie, but a bill in the nature of a bill of revivor or supple- ment must be filed. It is seen that the conditions supporting the two character of bills are similar to the conditions necessary to filing supple- BILL OF KEVIVOK. 381 mental bills, or bills in the nature of supplemental bills, and the same reason and authorities apply. The distinction frequently laid down in the cases between personal and real property as determining whether the admin- istrator or heir should revive, or be made parties defendant, does not apply in Texas. If the estate is being administered, the statutes of Texas determine who shall be made parties. See Texas Kev. Stat. 1201, 1246, 1409, 2272. What Must Be Alleged. Equity rule 58 provides that the bill of revivor need not set forth any of the matters of the original bill, unless the cir- cumstances require it. The bill should simply set forth the pendency of the suit and the proceedings had, the cause of abatement and the proper parties to represent the deceased if abated by death. If abated by marriage, then the fact of mar- riage is the only question to be inquired into. Then there must always be a prayer for process of subpoena to the parties to be served to show cause why the suit should not be revived. You cannot incorporate new matter in the bill to revive. Mason v. Hartford, P. & F. E. Co. 10 Fed. 334. These are the usual allegations in a simple bill of revivor, but if the bill be one in the nature of a bill of revivor you must, in addition to the above features, set forth so much of the original bill as shows the interest of the deceased, the manner the interest has been transferred to the third party, the validity of the transfer, and the rights accruing under it. The prayer of the bill is for subpoena to the proper parties to show cause against revival, except that if the answer has been filed the subpoena merely requires cause to be shown; but if defendant dies before answer, then the prayer must be for answer, and the subpoena framed accordingly. If no objection is filed by the next rule day occurring four- teen days after service of subpoena, then the suit stands revived as of course, and the order of revival must be prepared and entered when the suit shall proceed. After being thus revived all the evidence can be used that has been taken, if it could have been used before abatement Vattier v. Hinde, 7 Pet. 252, 8 L. ed. 675. 3S2 BILL, OF EEVIVOE. After the suit has abated, and before revival, no order can be taken, except such orders as may be necessary to the preser- vation of the property, or enforcing contempt for disobeying an injunction, or the performance of an act previously ordered by the court when all parties to the suit were before it. Form of Bill. 1 wiU now give the outlines of a bill of revivor which may be perfected according to the circumstances of your case, and by observing the rules heretofore given: Title and address as in original bill. That A, B., late of , but now deceased, on tbe day of , A. D. 19. . ., exhibited his original bill of complaint in this court against C. D., defendant therein, stating ( here state purpose of bill ) , and praying (here state prayer of bill). That defendant C. D. was duly served with process, appeared and answered the bill (if such was fact). That on the day of , A. D. 19. . ., A. B. departed this life intestate (or having made his last will and testament naming therein L. K. as executor, who has duly qualified under said will ) , and G. H. was duly made administrator, and has taken out letters of administration as required by law. That the suit has become abated by the death of A. B. and the plaintiff is entitled to have the said proceedings revived against said defendants (naming them). To the end, therefore, that the said defendants may show cause why the said suit and proceedings heretofore had may not stand revived, may it please the court to grant to the plaintiff a writ of subpoena to revive (and answer if death occurred before answer), directed to the said defendants (naming them), commanding them to appear before this court by the day of , A. D. 19. . ., being the rule day in the month of , then and there to show cause why the said suit should not be revived against him (or them), and to abide such further order as to the court may seem proper. K. F., Solicitor. Revival After Decree. Equity rule 56 : The bill may be filed after decree (Terry V. Sharon, 131 U. S. 40, 33 L. ed. 94, 9 Sup. Ct. Eep. 70.5 ; Sharon v. Terry, 1 L.E.A. 572, 13 Sawy. 387, 36 Fed. 337 ; Shainwald v. Lewis, 69 Fed. 493, 494), and defendant may show court had no jurisdiction to enter the decree (Rutled<4 V. Waldo, 94 Fed. 265). '^ CHAPTER LXVI. DECREE PEO CONFESSO. Having discussed the character of bills that a plaintiff may- be called upon to file at various stages of the case in order to perfect it for hearing, and having discussed the process by which the defendants ai-e brought into court to answer, I will now proceed to show the effect of a failure of defendant to re- spond to the subpoena by entering an appearance or pleading to the bill. Equity rule 18 provides that it shall be the duty of the de- fendant, unless the time shall be further enlarged for cause shown, to file a demurrer, plea, or answer to the bill in the clerk's office on the rule day next succeeding that of entering his appearance. In default thereof the plaintiff may at his election enter an order (as of course) in the order book that the bill be taken as confessed and thereupon the cause shall proceed ex parte, and the matter may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer and is proper to be decreed ; or, if the plaintiff requires any answer or discovery to enable him to obtain a proper de- cree, he shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not be discharged from the attachment until he answers or other- wise complies with the orders directed by the court, as to plead- ing or fully answering the bill within the time fixed by the court. By equity rule 12 the clerk i? required to place at the bot- tom of the subpoena a memorandum that the defendant is to enter an appearance in the suit at the clerk's office on or before the day the writ is returnable, otherwise the bill may be taken as confessed. Equity rule 19 provides that when the bill is taken as con- 383 384 DECREE PEO CONFESSO, fessed the court may proceed to a decree any time after thirty days from and after an entry of an order taking the bill as confessed, and such decree shall be considered absolute, unless the court shall at the same term set aside the decree or enlarge the time for filing the answer on cause shown by motion and affidavit of defendant. Third Xat. Bank v. Atlantic City, 65 C. C. A. 177, 130 Fed. 753, 754; Thomson v. Wooster, 114 U. S. 114, 29 L. ed. 108, 5 Sup. Ct. Rep. 788. When Pro Confesso Can Be Taken. We thus see under these rules a decree pro confesso can be taken either upon failure to enter an appearance, or, having entered an appearance, upon failure to demur, plead, or answer on the rule day next succeeding the rule day upon which an appearance should have been entered; and a demurrer or plea to prevent the decree pro confesso from being taken must have both the certificate of counsel that it is well taken in law, and the affidavit of the defendant that it is not interposed for de- lay. Sheffield Furnace Co. v. Witherow, 149 TJ. S. 576, 37 L. ed. 855, 13 Sup. Ct. Rep. 936 ; Preston v. Finley, 72 Fed. 853; American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Xos. 1 & 3, 90 Fed. 598. Where, however, there is a failure to plead, demur, or answer, pro confesso can- not be taken if the allegations of the bill would not support a decree. Wong Him v. Callahan, 119 Fed. 381 ; Ohio C. R. Co. V. Central Trust Co. 133 U. S. 83, 33 L. ed. 561, 10 Sup. Ct. Rep. 235 ; Xelson v. Eaton, 13 C. C. A. 523, 27 IT. S. App. 677, 66 Fed. 376. There has been some conflict of opinion as to when the de- cree nisi could be entered, because of the language of equity rules 12 and 18, stating different periods in the progress of the cause when it can be taken. Under the English practice, followed in this country until 1822, a bill could not be taken as confessed until all the pro- cesses for contempt had been exhausted. See equity rules 6 and 7. The Supreme Court of the United States in 1822 changed this practice, and gave three months after appearance day, after which the defendant was ruled to answer, and, failing to do DECREE PEO CONFESSO. 385 SO, the bill was taken as confessed and the matter decreed im- mediately, to be followed by a final decree at the next succeed- ing term after the service of the "decree nisi" on the defendant Bank of United States v. White, 8 Pet. 262, 8 L. ed. 938. In 184:2 equity rules 18 and 19 were promulgated, modify- ing the rule of 1822 in the interest of greater expedition in chancery cases, by requiring the demurrer, plea, or answer to be filed by the rule day next after entering an appearance, or the bill should be taken as confessed. In O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840, the old and new rules are compared, and the inference may be drawn that a pro confesso order should not be made in default of appearance only. Fellows v. Hall, 3 McLean, 281, 487, Fed. Cas. Nos. 4,722, 4,723 ; Schofield v. Horse Springs Cat- tle Co. 65 Fed. 436. In Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105, 5 Sup. Ct. Eep. 788, Justice Bradley says that by the rules of the Federal court a bill may be taken as con- fessed : First. When defendant fails to enter an appearance within the time required. Second. When he appears, but fails to answer at the next succeeding rule day thereafter. See Berlinger Gramophone Co. V. Seaman, 51 C. C. A. 440, 113 Fed. 752. Equity rules 18 and 19, which specifically control the practice in entering decrees pro confesso j would not, taken alone, justify the conclusion of the court, but taken in connection with equity rule 12, requiring the entry of appearamce on or before the day the subpcena is returnable, the rule laid down in Thom- son V. Wooster is the true practice. O'Hara v. MacConnell, 93 U. S. 153, 23 L. ed. 842. But there are other stages in the cause when decrees pro confesso can be entered. By equity rule 34 it is provided that if upon hearing a de- murrer or plea the same be overruled, and the defendant as- signed to answer further, either to the whole bill or so much of it as is covered by the demurrer or plea, then, in default of an answer within the time fixed by the court, the plaintiff can enter a decree pro confesso, either to the whole bill or so much thereof as required a further answer. Again, if the defendant in answering fails to answer a ma- S. Eq.— 25. 386 DECEEE PEO CONFESSO. terial allegation a decree pro confesso may be entered to so much thereof not answered. Hale v. Continental L. Ins. Co. 20 Fed. 344. Again, by equity rule 64, where exceptions to an answer are allowed, the defendant must put in a full answer, and, upon failure to do so, the bill can be taken as confessed and an order entered accordingly. Ibid. So again, by equity rule 47 when the bill is amended after answer, defendant is required to file a new or supplemental answer by the next rule day, and upon failure to do so, a de- cree 'pro confesso can be taken on the amended bill, or so much thereof as is amended and not answered. So the decree can be taken against any one or more of several defendants defaulting. Frow v. De La Vega, 15 Wall. 554, 21 L. ed. 61; Lockhart v. Horn, 3 Woods, 548, Fed. Cas. 'So. 8,446. So a decree pro confesso can be entered on a cross bill if not answered under the riiles. Blythe v. Hinckley, 84 Fed. 228. Order to Take Bill As Confessed. Equity rule 18 provides that the plaintiff may at his elec- tion enter an order (as of course) taking the bill as confessed. This order must be entered in the order book in the clerk's of- fice, and you may use the following form : Title as in bill. The subpoena in the above entitled cause having been returned, which return has been filed, and it appearing therefrom that the said subpoena was duly served on C. D., the defendant herein, and no appearance having been entered by or for said defendant, nor any demurrer, plea, or answer filed, although such appearance should have been entered (or such demur- rer, plea or answer should have been filed), on or before the day of , A. D. 19. . ., the same being the proper rule day (or the time appointed by the judge), therefore, on motion of R. P., solicitor for plain- tiff, it is ordered and decreed that bill be taken as confessed as to the said C. D. defendant. Date If the defendant has entered an appearance, but failed to plead answer or demur within or by the rule day next sue- DECBEE PKO CONFESSO. 387 ceeding the entry of appearance, then let the order so recite. The decree to be subsequently entered must follow the order and a proper basis for the pro confesso must be shown. Equity rule 19 further provides that when the bill is taken as confessed, the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso j and equity rule 18 pro- vides that when the order is entered, the cause shall proceed ex parte, and the matter of the bill be decreed by the court at any time after thirty days, if proper to be decreed. The following form for a decree pro confesso may be used: Title as in bill. It appearing to the court that the bill in the above cause was filed in this court on the day of , A. D. 19 ... , and that subpoena was duly issued and served on the defendant herein, and that no appearance has been entered by C. D., the defendant herein (or if an appearance has been entered, but no answer, plea, or demurrer has been filed, so state fol- lowing the order entered in order book), and that an order taking the bill as confessed was duly entered in the order book on the day of A. D. 19. . ., in the office of the clerk of this court, and no proceeding has been taken by the defendant since the entry of said order, and more than thirty days have elapsed since entering the order pro confesso. It is hereby ordered, adjudged, and decreed (insert decree). Serving Notice of the Decree. The question has arisen whether notice of the decree should be served on defendant. In Thomson v. Wooster, 114 U. S. 114, 29 L. ed. 108, 5 Sup. Ct. Eep. 788, the court leaves it an open question, and in Austin v. Eiley, 55 Fed. 833, the court calls attention to the fact that it is an open question, but seems to think it is not necessary. In Southern P. R. Co. v. Temple, 59 Fed. 17, the court was of opinion that where the defendant appeared by his solicitor, but failed to answer, then notice should be served on the de- fendant, as the defendant should be heard on the form and extent of the decree. The court bases its conclusion on Ben- nett V. Hoefner, 17 Blatchf. 341, Fed. Cas. No. 1,320, and Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105, 5 Sup. Ct. Eep. 788, wherein it is held that a final decree after the 388 DECEEE PEO CO^'FESSO. bill has been taken as confessed is not a decree as of course. I do not think a proper construction of the rule requires notice of the entry of the final decree to be given. Taking into consideration the English practice and the prac- tice of the Federal courts prior to 1842, and the defects sought to be remedied by equity rules 18 and 19, I conclude that the words ex parte used in the rule, applied to proceedings after the biU is taken as confessed, were intended to cut off any fur- ther appearance of the defendant, or action on his part affect- ing the subject-matter of the bill, and notice of any character would therefore be an unjustifiable increase of costs. Austin V. Eiley, 55 Fed. 833 ; Provident Life & T. Co. v. Camden & T. K. Co. 101 C. C. A. 68, 177 Fed. 854. In Frow v. De La Vega, 15 WaU. 552, 21 L. ed. 60, the court construes ex parte to mean, that the defendant is not entitled to service of notice in the cause, nor to appear in it in any way. He can adduce no evidence nor be heard at the final hearing. Clason v. Morris, 10 Johns. 524. In Komaine v. Union Ins. Co. 28 Fed. 632, the court says that now, instead of seeking to compel an appearance as under the old practice, the present rule prescribes a penalty for non- appearance by proceeding ex parte on the pro confesso decree. Is Proof Necessary Before Entering Final Decree? Closely connected with the quaere above discussed is the ques- tion: Must you offer proof of the allegations of your bill be- fore you can enter the final decree, and, if so, can the de- fendant then appear and rebut the proof? If the allegations of the bill are sufficient to support the de- cree asked, the court will enter the final decree on the pro con- fesso order without further proof (Ohio C. R. Co. v. Central Trust Co. 133 U. S. 91, 33 L. ed. 563, 10 Sup. Ct. Rep. 235) ; that is, if the allegations of the bill can be decreed without fur- ther discovery, the statements in the bill will be acted on as if true. (Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105, 5 Sup. Ct. Rep. 788.) Effect of the Final Decree. When a final decree is entered, which is warranted by the DECREE PEO CONFESSO. 389 bill, it has the same effect as if the defendant had appeared and contested it (Hefner v. ITorthwestern Mut. L. Ins. Co. 123 U. S. 756, 757, 31 L. ed. 313, 8 Sup. Ct. Eep. 337), and fail- ing to enter an order pro confesso does not affect it. Allen v. New York, 18 Blatchf. 239, 7 Fed. 483; Linder v. Lewis, 1 Fed. 378. Can Defendant Offer Proof. The decisions, as we have seen, clearly contemplate that if the bill is complete and the matter can be decreed without fur- ther discovery, such as an accounting, then the defendant can- not resist. But suppose a discovery or accounting is neces- sary to a complete decree, or proof necessary to cure a defec- tive allegation, such as uncertainty, can the defendant, as a matter of right, then appear and rebut plaintiff's proof before the court or master to whom it may be sent to state an account or ascertain some other fact necessary to a decree ? Under the English practice and the equity rule of 1822, controlling this matter, the defendant was permitted to appear before the master if the cause was submitted to him to take evidence, but these rules prior to 1842 did not contain the word ex parte. This p.x parte clause of the rule of 1842 clearly cuts off the right of defendant to appear, and any interference by him between the order pro confesso and final decree. Thom- son V. Wooster, 114 U. S. 104, 29 L. ed. 105, 5 Sup. Ct. Eep. 788 ; Lockhart v. Horn, 3 Woods, 542, Fed. Cas. No. 8,446. He loses his standing in court. Frow v. De La Vega, 15 Wall. 554, 21 L. ed. 61. And permitting him to be heard would be a mere act of favor. Provident Life & T. Co. v. Camden & T. R Co. 101 C. C. A. 68, 177 Fed. 854. Final Decree Not Matter of Course. While it may be said that defendant is closed out from any intervention or interference between the order pro confesso and final decree, yet it must not be understood that plaintiff is entitled to a final decree as a matter of course. The rule requires the matter of the bill to be decreed by the court, and the practice is to set down the bill for hearing on 390 DECEEE PEO CONFESSO. the order pro confesso, and the matter of decree is then in the discretion of the court. Andrews v. Cole, 22 Blatchf. 184, 20 Fed. 410, 411. Where the defendant has appeared, but not answered, he can be heard on the form and extent of the de- cree. Southern P. R. Co. v. Temple, 59 Fed. 17 ; Webster v. Oliver Ditson Co. 171 Fed. 895. Compelling to Answer. By equity rule 18, if the plaintiff requires a discovery or answer after the order pro confesso has been entered, in order to obtain a proper decree, he shall be entitled to process of at- tachment against the defendant to compel an answer; and the defendant shall not, when arrested upon such process, be dis- charged therefrom unless upon iGlling answer or otherwise com- plying with the order of court. Rights of Defendant After Default in Appearing. The rights of defendant to further participate in the pro- ceedings after he has failed to appear, or, having appeared, has failed to answer, are as follows : First. By equity rule 32, as long as the plaintiff fails to enter the pro confesso order, he may appear at any time and plead, answer, or demurrer. Second. After the order pro confesso has been entered, and before final decree the defendant may, on motion showing cause, obtain leave of the court to demur, plead, or answer. French v. Hay (French v. Stewart) 22 Wall. 238, 22 L. ed. 854; Southern P. E. Co. v. Temple, 59 Fed. 18. Third. By equity rule 19 after the final decree has been entered, the defendant may at the same term, but not after- wards, appear by motion supported by alEdavit showing cause, and have the decree set aside, or have the time extended to answer, but the payment of costs, or such part thereof as the court may require, and filing answer within such time as the court may fix, are conditions precedent. The matter is entirely within the discretion of the court. iiSTelson v. Eaton, 13 C. C. A. 523, 27 U. S. App. 677, 66 Fed. 378; Southern P. R Co. V. Temple, 59 Fed. 18. DECEEE PEO CONFESS©. 391 Fourth. After the term in which the final decree has been entered, the court has no power to set aside the decree and re- open the case. Equity rules 19 and 88 ; Stuart v. St. Paul, 63 Fed. 644 ; Linder v. Lewis, 1 Fed. 378 ; Cammeyer v. Durham House Drainage Co. 35 Fed. 52; Austin v. Eiley, 55 Fed. 833 ; Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105, 5 Sup. Ct. Eep. 788 ; Morgan's L. & T. K. & S. S. Co. v. Texas C. E. Co. 33 Fed. 530 ; Bronson v. Schulten, 104 U. S. 415, 26 L. ed. 799 ; Allen v. "Wilson, 21 Fed. 881. See '-Vacating Decrees."' Under such conditions the only remedy left to the defendant is an appeal, and he will be confined to the issues that the averments of the bill do not support the decree. Masterson v. Howard, 18 Wall. 103, 21 L. ed. 765 ; Ohio C. E. Co. v. Cen- tral Trust Co. 133 U. S. 83, 33 L. ed. 561, 10 Sup. Ct. Eep. 235 ; Thomson v. Wooster, 114 U. S. 104-120, 29 L. ed. 105- 110, 5 Sup. Ct. Eep. 788. Grounds for Setting Aside the Order or Decree Pro Confesso. A decree against one joint defendant settles no right (Lock- hart V. Horn, 3 Woods. 548, Fed. Cas. No. 8,446) ; he merely loses his standing in court (Frow v. De La Vega, 15 Wall. 552, 21 L. ed. 60). So when a decree pro confesso has been taken against one of several joint defendants, and decided on the merits in favor of the other defendants, it sets aside the pro confesso decree. Ibid. Again, when the order pro confesso has been entered on ir- regular service, it is good ground for setting it aside. Blythe V. Hinckley, 84 Fed. 228 ; Treadwell v. Cleveland, 3 McLean, 283, Fed. Cas. ISTo. 14,155. So when the bill is fatally de- fective (Eldred v. American Palace Car Co. 103 Fed. 209; Xelson V. Eaton, 13 C. C. A. 523, 27 U. S. App. 677, 66 Fed. 376) ; or failure to file an answer by oversight of counsel (Schwartz v. Kennedy, 156 Fed. 317, 318; see also McFar- land V. State Sav. Bank, 129 Fed. 244) ; or allegations insuf- ficient (Wong Him v. Callahan, 119 Fed. 381; Eldred v. American Palace Car Co. 103 Fed. 209). So when the bill has been amended materially after service of process. Nelson V. Eaton, 13 C. C. A. 523, 27 U. S. App. 677, 66 Fed. 378 ; 392 DECEEE PEO COXFESSO. Blythe v. Hinckley, 84 Fed. 244. So entry of order after service by publication if motion promptly made. American Freehold Land Mortg. Co. v. Thomas, 18 C. C. A. 327, 30 TT. S. App. 690, 71 Fed. 782 ; Beach v. Mosgrove, 4 McCrary, 50, 16 Fed. 305. So when an answer has been stricken out on ground of contempt, it wiU not justify entering a decree pro confesso. Hovey v. Elliott, 167 U. S. 443, 42 L. ed. 229, 17 Sup. Ct. Rep. 841. The discretion of the court is not hard to move when a meritorious defense is shown, and some excuse for not appear- ing within the time required by the rules. The motion, how- ever, m.ust be made promptly (Conly v. Buchanan, 81 Fed. 58), at the term in which the decree is entered. You cannot vacate at a subsequent term, as stated above, unless your mo- tion was filed at the entry term, and went over without hear- ing, or continued by the court. Stuart v. St. Paul, 63 Fed. 644. Form of Motion to Set Aside. Title as in bill. And now comes the defendant and moves the court to set aside the order (or decree) pro confesso entered on the day of , A. D. 19 ... , and permit him to appear and plead for the following reasons to wit: (Here set out your reasons in full why you did not appear, and if motion is supported by irregularity of service, or defects in bill, state them specifically, and if you wish to answer the bill, and try on merits, you should show meritorious defense.) The motion must be supported by affidavit, unless based on grounds appearing of record. The same form of motion applies to final decrees. Equity rule 19. CHAPTEE LXVn. DEFENSES. We will now assume that the defendant has been served with a subpoena, that he has entered a general appearance, or has entered a special appearance for the purpose of pleading his privilege to be sued in the district of his residence and citizenship, or for any other purpose, and the same has been overruled, and he now has to file some defense of law or fact, going to the merits of the controversy. Equity rule 18, as we have seen, requires the defendant, by the succeeding rule day after entering his appearance, unless further time is granted for cause shown, to demur, plead, or answer, in default of which judgment by confession will be taken as before explained. And by equity rule 32 he may, at any time before the bill is taken as confessed, demur, plead, or answer to the whole bill or to part. Now, in filing these defenses the general rule obtains (equity rule 32) that you may demur to the whole bill, or plead to the whole bill, or answer the whole bill, or you may demur to one part, plead to one part, and answer a part ; but you cannot file a demurrer, plea, and answer to the whole bill at the same time, nor can you demur, plead, and answer to the same part of a bill at the same time (Crescent City L. S. L. & S. H. Co. v. Butchers' Union L. S. L. & S. H. Co. 12 Eed. 225 ; Bryant Bros. V. Kobinson, 79 C. C. A. 259, 149 Eed. 329; United States V. American Bell Teleph. Co. 30 Fed. 523), because an answer to the bill waives a demurrer or plea; which would be disregarded by a court of equity. If a plea, demurrer, and answer be filed at the same time to the whole bill, or any one part of the bill, you could at once, on motion, have the demurrer 893 394 DEFENSES. and plea stricken out. Ibid. Obert v. Marquet, 99 C. C. A. 60, 175 Fed. 48 ; Miller v. Eickey, 123 Fed. 606 ; Strang v. Eich- mond, P. & C. E. Co. 41 C. C. A. 474, 101 Fed. 511 ; Adams T. Howard, 20 Blatchf. 38, 9 Fed. 347; Hayes v. Dayton, 8 Fed. 702. The reason is that answering admits the sufficiency of the bill, and the demurrer or plea raises the issue of in- sufficiency, either as to law or fact. As stated, you can plead to part, demur to part, and answer as to the residue of the bill. This was the general rule, but great inconvenience arose from a strict enforcement of it, be- cause in answeriag a part it may have gone to some part which had been demurred or pleaded to, so the Supreme Court promul- gated equity rule 37, providing that no demurrer or plea should be held bad or overrtded because the answer of the defendant may extend to some part of the same matter that might be covered by the demurrer or plea. Crescent City L. S. L. & S. H. Co. V. Butcher's Union L. S. L. & S. H. Co. 12 Fed. 225. Ibid. Ee Cooper Bros. 159 Fed. 957. It was said in Adams v. Howard, 20 Blatchf. 38, 9 Fed. 347, that when both a demurrer and answer was filed to a bill, or covering the same subject-matter, you may be required to elect upon which of the two you will stand ; but if the demurrer is elected and decided against you, then probably the right to answer over would be lost under equity rule 34; but, what- ever doubt may exist as to the correctness of this practice, it is better to hold that the answer waives the demurrer if it denies all the facts of the bill fully and categorically. Strang V. Eichmond, P. & C. E. Co. 41 C. C. A. 474, 101 Fed. 515. If joii do not desire to send the bill to a master to strike out scandalous and impertinent matter, as before explained, before answering, then you must examine the bill to determine whether you will interpose a demurrer to the whole or any part of the bill. You will then scan the bill with a view to filing a demurrer if there should appear: " (a) A want of jurisdiction. (b) A defect of parties, as misjoinder, or a want of neces- sary parties. (c) As to substance or form. (d) If laches should appear. DEFENSES. 395 As to Jurisdiction. First. With this purpose in view you shall inquire if, as brought, it is obnoxious to section 723 of the United States Kevised Statutes, TJ. S. Comp. Stat. 1901, p. 583, forbidding the bringing of a suit in equity when there is an adequate rem- edy at law. If this is apparent, demurrer will lie. Farley v. Kittson, 120 U. S. 316, 30 L. ed. 689, 7 Sup. Ct. Kep. 534; United States L. Ins. Co, v. Cable, 39 C. C. A. 264, 98 Fed. 764. If the siiit is one in equity, either as to subject-matter or the relief sought, you will then inquire : Second. Is there proper diversity of citizenship, and is it shown, by the bill as heretofore explained ? If the jurisdiction does not rest upon diversity of citizen- ship, you will then inquire : Third. Is a Federal question stated; that is, does the right of recovery depend on a proper construction of the Constitution or laws of the United States or treaties made, etc., as before explained, and is the Federal question properly set out ? Fourth. Whatever be the basis of jurisdiction, you will next inquire if the proper amount is involved to give the court jurisdiction. Fifth. Is the suit brought under any of the fundamental heads of jurisdiction as contained in section 1, act of 1888, and, if so, is it properly alleged, so that jurisdiction appears both general and territorial ? Defect of Parties. Assuming you are satisiied on the point of jurisdiction, you will next inquire as to parties. Are the parties to the bill proper parties, or does it appear that other parties should be made ? Have the parties that have been made, capacity to sue, and, if so, are they suing in their proper capacity ? We have already seen that defect of parties is a good de- fense, unless under equity rule 22 the bill shows good cause for not making them parties. Sheffield & B. Coal, Iron & E. Co. v. Xewman, 23 C. C. A. 459, 41 U. S. App. 766, 77 Fed. 396 DEFENSES. 791, chap. 46. If the defect is apparent, it may be set up by denmrrer, but the demurrer must name the proper parties, if there be a want of parties, and if objection is made by de- murrer, you have already been given a proper form. Hubbard V. Manhattan Trust Co. 30 C. C. A. 520, 57 U. S. App. 730, 87 Fed. 51-57. Sufficiency of Substance of BUI. Being satisfied with the parties, you will next inquire into the substance of the bill. (a) Is there any equity in the bill? Farley v. Kittson, 120 U. S. 316, 30 L. ed. 689, 7 Sup. Ct. Kep. 534; Ehode Island V. Massachusetts, 14 Pet. 210-258, 10 L. edL 423^^6. (b) Does plaintiff show an interest, and, if so, is the de- fendant answerable? (c) Does it appear that the defendant has, or claims an interest ? (d) Is the plaintiff entitled to the relief prayed for ? (e) Does the bill carry its own death woimd by showing a defense ? (f ) Does it appear that limitations, or the statute of frauds, or any other statute prevents relief ? (g) Does stale demand appear and not properly excused? Hubbard v. Manhattan Trust Co. 30 C. C. A. 520, 57 U. S. App. 730, 87 Fed. 59 ; Hanchett v. Blair, 41 C. C. A. 76, 100 Fed. 827 ; Fuller v. Montague, 8 C. C. A. 100, 16 U. S. App. 391, 59 Fed. 220; Ulman v. Jaeger, 67 Fed. 980. (h) Is the claim against public policy, or illegal ? These are defenses to any bill, and when apparent may be set up by demurrer, or you may waive the demurrer, and set them up by plea or answer. Your attention is called to the fact that a general demurrer will not be good, if any relief whatever can be granted under the biU, however defective the allegations may be. Edwards v. Bay State Gas Co. 91 Fed. 946. You will next examine the bill as to matter of form. (a) The proper allegation of jurisdictional facts, though jurisdiction exists. DEFEN'SEa. 397 (b) Does plaintiff stale positively facts within his knowl- edge? (c) Are the allegations sufficiently certain. Einstein v. Schnebly, 89 Fed. 540 ; Johnson v. Wilcox & G. Sewing Mach. Co. 25 Fed. 373. (d) Is the prayer for process properly stated? (e) Is the bill signed by counsel ? (f) Is the bill one that should be verified, and, if so, is the affidavit in proper form ? These objections are, for the most part, formal, and easily amendable. CHAPTER LXVIIL DEMUEEEE. Having thus suggested matters to he inquired into with a view of interposing a demurrer, I will now speak of demurrers in equity generally. Classified. Demurrers are general and special. A general demurrer usually goes to a want of equity in the bill, hut also applies to defects in substance when clearly apparent, but in this case it is always better to specially demur. Special demurrers go to defective allegations, or to part of a bill defectively stated, and must point out particularly the defect in the allegation of the part demurred to. Effect of Demurrer. The demurrer raises only questions of legal sufficiency; it cannot recite facts, and must show distinctly the parts of the bill demurred to. Miller v. Rickey, 123 Ted. 604; Star Ball Retainer Co. v. Klahn, 145 Fed. 834; Richardson v. Loree, 36 C. C. A. 301, 94 Fed. 379 ; Stewart v. Masterson, 131 U. S. 151, 33 L. ed. 114. 9 Sup. Ct. Rep. 682; Richardson v. Loree, 36 C. C. A. 301, 49 Fed. 379; O'Shaugnessy v. Humes, 129 Fed. 960. A "speaking demurrer" is not allowed. Star Ball Co. V. Klahn, 145 Fed. 834. And it admits as true all allegations of the bill well pleaded, and in substance says that, admitting the facts to be true, the plaintiff cannot recover. Kansas v. Colorado, 185 U. S. 126, 46 L. ed. 838, 22 Sup. Ct. Rep. 552; Edison v. Thomas A. Edison, Jr., Chemical Co. 128 398 DEMUKKEE. 399 Fed. 957; Puget Sound Xat. Bank v. King County, 57 Fed. 433; Preston v. Smith, 26 Fed. 884; Angle v. Chicago, St. P. AT. & O. E. Co. 151 U. S. 10, 3S L. ed. 59, 14 Sup. Ct. Eep. 240; Chicot County v. Sherwood, 148 U. S. 536, 37 L. ed. 549, 13 Sup. Ct. Rep. 695; Dennison Co. v. Thomas Mfg. Co. 94 Fed. 654. It does not admit conclusions of law (Young V. Merchantile Trust Co. 140 Fed. 61 ; United States V. Ames, 99 U. S. 35-45, 25 L. ed. 295-300; General Electric Co. V. Westinghouse Electric & Mfg. Co. 144 Fed. 467 ; Pen- nie V. Eeis, 132 U. S. 469, 33 L. ed. 428, 10 Sup. Ct. Eep. 149 ; Cornell v. Green, 43 Fed. 105 ; Haynes v. Brewster, 46 Fed. 473) ; as alleging simply the transaction was fraudulent (Lumley v. Wabash E. Co. 71 Fed. 28 ; Fogg v. Blair, 139 U. S. 127, 35 L. ed. 107, 11 Sup. Ct. Eep. 476 ; Patent Title Co. Y. Stratton, 95 Fed. 746; Edison v. Thomas A. Edison, Jr., Chemical Co. 128 Fed. 957 ; Kittel v. Augusta T. & G. E. Co. 65 Fed. 860), jSTor matters of inference or argument. Pullman Palace Car Co. v. Missouri P. E. Co. 3 McCrary, 645, 11 Fed. 634. Xor does it admit constructions given in a bill to a statute. Pennie v. Eeis, 132 TJ. S. 464-470, 33 L. ed. 426-429, 10 Sup. Ct. Eep. 149. Iv^or of a written in- strument. Gould V. Evansville & C. E. Co. 91 U. S. 536, 23 L. ed. 419 ; Interstate Land Co. v. Maxwell Land Grant Co 139 U. S. 569, 35 L. ed. 278, 11 Sup. Ct. Eep. 656; Dillon v. Barnard, 21 Wall. 437, 22 L. ed. 676 ; O'Shaugnessy v. Humes, 129 Fed. 954. Xor any ascription of purpose not justified by acts. Dillon v. Barnard, 21 Wall. 437, 22 L. ed. 676 ; Taylor V. Holmes, 14 Fed. 509. Isor that the design in a patent is new. Xew York Belting & Packing Co. v. New Jersey Car Spring & Eubber Co. 137 U. S. 445, 34 L. ed. 741, 11 Sup. Ct. Eep. 193. In Boyd V. Nebraska, 143 U. S. 180, 36 L. ed._116, 12 Sup. Ct. Eep. 375, it was held that a demurrer admitted the alle- gation that a party was a naturalized citizen as alleged. In Post V. Beacon Vacuum Pump & Electrical Co. 32 C. C. A. 151, 50 U. S. App. 407, 89 Fed. 1, it was held that, under a general demurrer, equitable estoppel may be assigned, ore tenus, and whenever the bill alleges matter detrimental to the case it may be taken advantage of by general demurrer, as laches in bill. Wollensak v. Eeiher, 115 U. S. 101, 29 L. ed. 351, 5 Sup. 400 DEilUEEEK. Ct. Kep. 1137; Hardt v. Heidweyer, 152 U. S. 558, 38 L. ed. 552, 14 Sup. Ct Rep. 671. Form of General Demurrer. Title as in bill. The demurrer of C. D. (or the joint and several demurrers of C. D. and E. F.) to the bill of complaint. And now comes the defendant C. D., and not confessing any of the mat- ters in the bill to be true, demurs to the bill herein filed and says the same does not state any matter of equity entitling plaintiff to the relief prayed for, nor are the facts as stated sufficient to entitle plaintiff to any relief against this defendant. Wherefore defendant prays the judgment of this court whether he shall further answer, and that he be dismissed with his costs. R F., Solicitor, etc. Certificate of counsel must be attached to the demurrer as follows : I, R. F., solicitor for defendant in the above, do hereby certify that the foregoing demurrer, in my opinion, is well founded in law. R. F., Solicitor. Equity rule 31. Then must be attached the affidavit of the defendant as fol- lows: I, C. D., defendant in the above cause, being duly sworn, do say that the foregoing demurrer is not interposed for delay. C. D. Sworn to and subscribed before me this the day of , A. D. 19... X. Y., [SEAL.] Notary. It seems all the defendants must swear, unless the court per- mits one to make the affidavit. Computing Scale Co. v. Moore, 139 Fed. 197. The protestation clause usually inserted in a demurrer or plea has no effect in limiting admissions of facts properly pleaded. Taylor v. Holmes, 14 Fed. 501. If the demurrer be by a corporation, then the affidavit should be made by an officer of the corporation authorized so to do. DEMUEBEE. 401 and he should state in the oath his representative or o£B.cial posi- tion. The object of the certificate and oath was intended to pre- vent evasion of the discovery usually sought in a bill, which disclosures were sought through the answers required to the interrogatories in a bill. Farley v. Kittson, 120 U. S. 317, 30 L. ed. 689, 7 Sup. Ct. Eep. 534. A demurrer filed without the certificate and oath is a nul- lity, and it may be disregarded, and an order taking the bill as confessed entered (Computing Scale Co. v. Moore, 139 Fed. 197 ; American Steel & Wire Co. v. Wire Drawers' & Die Mak- ers' Unions is^os. 1 & 3, 90 Fed. 598 ; Dupree v. Leggett, 124 Fed. 700; Bryant Bros. v. Eobinson, 79 C. C. A. 259, 149 Fed. 328 ; Preston v, Finley, 72 Fed. 850 ; Brazoria County V. Youngstown Bridge Co. 25 C. C. A. 306, 52 U. S. App. 6, 80 Fed. 13; Sheffield Furnace Co. v. Witherow, 149 U. S. 576, 37 L. ed. 855, 13 Sup. Ct. Rep. 936; equity rule 31), al- though the demurrer may be good in substance (Ibid.). And the rule applies whether the demurrer be general or special. The only exception to the rule stated is where a preliminary in- junction is prayed for. Preston v. Finley, 72 Fed. 854. The form of demurrer given may be used for special demur- rers, simply stating, "and specially demurs," etc., and insert- ing before the prayer the special grounds of demurrer. If you desire to demur to only a part of the bill, then say, "do de- mur to so much of said bill as" (here set forth part demurred to) which should be pointed out with certainty (Equity rule 32; Miller v. Eickey, 123 Fed. 604; Ormsby v. Union P. E. Co. 2 McCrary, 48, 4 Fed. 170 ; Chicago, St. L. & K 0. E Co. Y. Macomb, 2 Fed. 18), and pray whether the defendant should be compelled to answer the part demurred to. When you demur to only part of the bill, you mush plead or answer the residue ; the whole bill must be met, or it will be taken as confessed as to the part not answered or pleaded to. It is stated, when a demurrer goes to a part of the bill it must be pointed out with certainty. The reason is that in case the demurrer is sustained, the extent of the judgment as to the other parts of the bill may be entered with certainty. Setting Down for Argument. We have seen by equity rule 18 that if a demurrer is neces- S. Eq. — 26. 402 DEMUEEEB. sary, it must be filed by tbe riile day next succeeding the entry of appearance, unless further time is granted by the court for cause shown. When the demurrer is properly filed, the duty devolves on the plaintiff, by equity rule 33, to set it down for argument, and by equity rule 38 it is provided that the failure of plaintiff to set down the demurrer for argument on the rule day when the same is filed, or the next succeeding rule day, the plaintiff admits the sufficiency of the demurrer, and the defend- ant can have the bill dismissed as a matter of course, unless the court allows further time. So it is seen that the plaintiff must act promptly, or have his bill dismissed, Eobinson v. Chicago E. Co. 98 C. C. A. 26, 174 Fed. 40. What constitutes setting down a demurrer for argument is not defined in the rules. The English practice was to set it down on motion to be served two days before hearing. The practice in the Federal courts is to make the application in the clerk's office and have it entered in the order book, and being grantable of course, comes under equity rule 4. As to the ques- tion of notice, making an entry in the order book of a motion grantable of course is sufficient notice to the defendant and his solicitor. Gillette v. Doheny, 65 Fed. 716, 717. The conclusion, then, from these rules is, that when a de- murrer is filed, the plaintiff must act promptly in setting it down for hearing to save the bill. The hearing may be set down for the subsequent rule day, or as soon thereafter as prac- ticable, which means whenever the judge can be reached, wheth- er in term time or vacation. It is proper here to state that in aU pleadings filed by the defendant in the preparation of his case for final hearing, the burden is on the plaintiff to promptly set it down for hearing, or to reply, and on failure to do so, his bill may be dismissed. To set down the demurrer for hearing, file with the clerk the following request: Title as in bill. To the Clerk, etc. : You will please set down for hearing tlie demurrer filed in this cause to the bill on the day of , A. D. 19 Hearing to be had at on the day of , A. D. 19..., it being the rule day in (month) or to be heard as soon thereafter as practicable. R. F., Solicitor. DEMUEEEE. 403 It is the duty of the clerk to enter of course the order for hearing in the order book, and as soon as this is done, until the hearing of the demurrer, the bill is safe. If the judge be not present on the rule day indicated, and at the place appoint- ed in the notice, you will have to wait until you can reach him, either in term time or vacation. That is, if it is desired to speed the cause, the plaintiff may have it heard by the judge at chambers or in term, if sitting within the district, but if not heard at time and place appointed, as entered in the order book, you must give counsel notice of the time and place when and where the judge will hear it. The plaintiff should use rea- sonable diligence in getting a hearing on the demurrer. In cities, or a limited territory where a Federal judge may always be found, there is not much difficulty in getting a cause pre- pared for final hearing, but where a district covers a vast amount of territory, it is generally difficult and expensive to pursue the judge and get a hearing on these preliminary steps to a final hearing of the case. The consequence is delay and tediousness in maturing a case for hearing. If you are fortunate enough to catch the judge at some point in his district, and to catch him in the humor to hear your demurrer or motion, or whatever it may be, then upon the hear- ing the following rules must be considered: Equity rule 36 provides that a demurrer is not defective be- cause it did not cover so much of the bill as it might by law have extended to. ^STor will a demurrer be overruled because the answer may extend to some part of the same matter that may be covered by the demurrer. Huntington v. Laidley, 7y Fed. S65 ; Merchantile Trust Co. v. Missouri, K. & T. E. Co. 84 Fed. 379 ; Ee Cooper Bros. 159 Fed. 957 ; Odbert v. Mar- quette, 99 C. C. A. 60, 175 Fed. 48 ; Equity rule 37. Again, in determining the demurrer, the bill and exhibits are taken together (Continental Securities Co. v. Interborough Eapid Transit Co. 165 Fed. 945; TJlman v. Jaeger, 67 Fed. 980) ; and if it' appears that plaintiff is entitled to some kind of relief, even though the specific relief will not be granted, the general demurrer will be overruled. Edwards v. Bay State Gas Co. 91 Fed. 946; Berwind v. Canadian Co. 98 Fed. 158; Benedict v. Moore, 76 Fed. 472 ; Mercantile Trust & D. Co. v. Ehode Island Hospital Trust Co. 36 Fed. 863 ; United States 404 DEMTJEEEB. V. Southern P. E. Co. 40 Fed. 611 ; Stewart v. Masterson, 131 U. S. 158, 33 L. ed. 116, 9 Sup. Ct. Rep. 682. Or, to put the proposition in another form, the general demurrer will be OTerruled unless it appears that under no possible state of the evidence a decree could be entered. Failey v. Talbee, 55 Fed. 892; Maeder v. Buffalo Bill's Wild AYest Co. 132 Fed. 280. When the demurrer goes to the whole bill, and a special de- murrer to part of the bill, and the special demurrer is alone sustained, the proper decree is to dismiss so much of the bill covered by the special demurrer, unless an amendment is al- lowed, and to overrule as to the residue, and direct an answer thereto. Giant Powder Co. v. California Powder Works, 98 U. S. 140, 25 L. ed. 83. The court may refuse to decide the case on demurrer, and order an answer (Eaukin v. ]\Iiller, 130 Fed. 229) ; or may leave its decision to the final hearing (Sny- der V. DeForest Wireless Teleg. Co. 154 Fed. 142). Allowing Demurrer. If the general demurrer be sustained, the defendant is en- titled to his costs to that period (equity rule 35) ; and if it ap- pears that there be probable ground for perfecting the biU by amendment, the court will permit the amendment under such terms as he may deem reasonable and just. TJ. S. Eev. Stat, sec. 954; TJ. S. Comp. Stat. 1901, p. 696; Boston & A. E. Co. V. Parr, 98 Fed. 483 ; Edward P. Allis Co. v. Withlacoochee Lumber Co. 44 C. C. A. 673, 105 Fed. 680. It is in the discretion of the court to permit the amendment, and is not a matter of right, for it is held that an order refusing an amend- ment will not be revised by the Supreme Court, unless you set forth in the record the amendment sought and there ap- pears a clear abuse of discretion. Ibid. ; Mercantile Xat. Bank V. Carpenter, 101 IT. S. 568, 25 L. ed. 815 ; Dowell v. Apple- gate, 7 Sawy. 232, 8 Fed. 698. The judgment on a demurrer sustained is to dismiss the bill (Fowler v. Osgood, 4 L.E.A. (ISr.S.) 824, 72 C. C. A. 276, 141 Fed. 20-24), unless amend- ment allowed, but it is only an adjudication as to the exact point raised. Dennison Mfg. Co. v. Scharf Tag, Label & Box Co. 121 Fed. 313-318; Wiggins Ferry Co. y. Ohio & M. R. DEMTJEBEE. 4:05 Co. 142 U. S. 396, 35 L. ed. 1055, 12 Sup. Ct. Rep. 188 ; Eus- sell V. Place, 94 U. S. 606, 24 L. ed. 214. So the decree should limit the demurrer, and not dismiss generally if the demurrer is sustained on grounds not going to the merits. Fowler v. Osgood, 4 L.R.A.(]Sr.S.) 824, 72 C. C. A, 276, 141 Fed. 24. Overruling Demurrer. If the demurrer be overruled, the plaintiff is entitled to his costs to that period, unless the court is satisfied he had reason- able ground to interpose the same, and it was not done for de- lay. Equity rule 34. The defendant will at once be assigned to answer the bill, which is a matter of right (Files v. Brown, 59 C. C. A. 403, 124 Fed. 142), but upon a failure to file an answer within the time prescribed by the court, the plaintiff" is authorized to take the bill as confessed. Successive demur- rers are not allowed, and overruling the demurrer requires a plea or answer as the next step. Fuller v. Knapp, 24 Fed. 100; Victor Talking Mach. Co. v. Hoschke, 169 Fed. 894. If a demurrer has been filed, the record must show what has be- come of it; if not, it is presumed to have been abandoned. Basey v. Gallagher, 20 Wall. 679, 22 L. ed. 452, 1 Mor. Min. Eep. 683; Southern E. Co. v. Ehodes, 30 C. C. A. 157, 58 U. S. App. 349, 86 Fed. 424. If the demurrer is not set down for hearing, the defendant can, as before stated, enter an order in the order book dismiss- ing the biU, unless further time has been given by the court (Eyan v. Seaboard & E. E. Co. 89 Fed. 402), and this is done by simply addressing the clerk of the court the following re- quest: Title as in bill. To the Clerk, etc.: You will please enter an order dismissing the bill in the above cause, as provided by equity rule 38, because of the failure of plaintiff to set down for hearing the demurrer filed by the defendant to the bill on the day of , A. D. 19... E. F., Solicitor. The dismissal being a matter of course, the clerk must enter 406 DEMCTKEEE. the order of dismissal in the order book, which stops any fui^ ther proceeding until the bill is reinstated. Demurrer When Fraud is Charged in the Bill. Where fraud is properly alleged in a bill, and a demurrer is filed, it was held in Johnson v. Forsyth Mercantile Co. 127 Fed. 846, that the demurrer must be accompanied with an an- swer denying the fraud, as required in filing a plea (aee "Plea" chap. 69). Kule 32. CHAPTEE LXIX. PI.EA. We have seen under what conditions a demurrer should be filed, and it applied only when the legal objection was apparent on the face of the bill; but it may be that the same objections touching the jurisdiction, parties, and substance of the bill may not be apparent on the face of the bill, but still be an existing fact ; that is, the allegations as to some of these matters may not be true in fact, which if shown would abate the suit, or bar it ; or it may be that facts connected with the subject-matter, juris- diction, or parties are not alleged, which if alleged would abate or destroy the equity of the bill and bar it. This may be done by a plea. By equity rule 18 it is provided that the defendant must file his plea in the clerk's office, unless the time is extended for cause, on the rule day next succeeding that of entering appear- ance in the cause, or the bill can be taken as confessed. By equity rule 32 it is provided that the defendant may at any time before the bill is taken as confessed, or afterwards with leave of the court, file a plea to the whole bill, or to part of it; but whenever the bill charges fraud or combination, the plea must be accompanied with an answer fortifying the plea, and distinctly denying the fraud and combination and the facts on which the charge is founded. Offlce of Plea. Before presenting the form and elements of a good plea, T will speak of its office in the equity system. A plea in equity is in the nature of a speaking demurrer. The demurrer says you have alleged a fact which destroys your equity, or failed to allege a fact which creates the equity; the plea says, you have failed to allege a fact which should have been alleged, and 407 408 PLEA. which if you had alleged would destroy your equity. The de- murrer goes to the sufficiency of the bill to obtain the relief, as a matter of law; the plea inserts a fact which, if true, or de- nies a fact as true, which if proven, would destroy the equity, or the right to prosecute the suit at the time or in the manner it is brought. United States v. Peralta, 99 Fed. 624. In a word, a plea destroys an allegation, or interposes a fact or foreign matter which stays or bars the suit. Ibid. ; Farley v. Kittson, 120 U. S. 314, 30 L. ed. 688, 7 Sup. Ct. Eep. 534; Korn V. Wiebusch, 33 Fed. 50 ; Hubbell v. DeLand, 11 Biss. 382, 14 Fed. 475. Then the office of a plea is to present some distinct fact or deny some distinct fact alleged, which, if true, abates or bars the suit, and when going to the whole bill it avoids the delay and expense of a trial on other issues that may have been tendered by the bill. National Hollow Brake Beam Co. V. Interchangeable Brake Beam Co. 83 Fed. 29 ; Farley V. Kittson, 120 U. S. 314, 30 L. ed. 688, 7 Sup. Ct. Eep. 534; Horn V. Detroit Dry Dock Co. 150 U. S. 625, 37 L. ed. 1203, 14 Sup. Ct. Eep. 214; Briggs v. Stroud, 58 Fed. 721. To illustrate: Take a case to which the statute of frauds is an answer. If an agreement concerning lands is alleged to be in parol, the advantage of the statute may be taken by demurrer; but suppose the bill is silent, or it alleges it to have been in writing, when in fact it was not, you make the single issue by plea, which, if true, disposes of the ease if based on the alleged agreement. The plea should reduce the defense to a single issue (United States V. American Bell Teleph. Co. 30 Fed. 524; United States V. California & O. Land Co. 148 U. S. 31-49, 37 L. ed. 354-362, 13 Sup. Ct. Eep. 458), and it should appear that, if true, the bill need not be further answered. The plea, like the demurrer, should pray the court for judg- ment, whether the bill or the part to which the plea applies should be further answered, and both pray for dismissal. Far- ley V. Kittson, 120 U. S. 303, 30 L. ed. 684, 7 Sup. Ct. Eep. 534. A plea, like a demurrer, admits what has been alleged, but either insists that a fact should have been alleged which de- stroys the equity, or, admitting all other allegations, denies some single allegation in the bill, which, if the plea be proven, destroys the equity. PLEA, 409 Classification of Pleas. We see, then, from the statement of tlie office of a plea, that they may be classified into pleas in abatement and pleas in bar. Pleas in Abatement. I have already sufficiently discussed pleas setting up venue, or the personal privilege of being sued in one's own district of residence, and forms for this character of plea were given, p. 130 et seq. We saw that this plea of venue was purely a plea in abate- ment, which could be waived by general appearance, or by an appearance to procure an extension of time to answer. Page V. ChiUicothe, 6 Fed. 602; Briggs v. Stroud, 58 Fed. 717; St. Louis & S. F. E. Co. v. McBride, 141 U. S. 131, 35 L. ed. 661, 11 Sup. Ct. Eep. 982; Central Trust Co. v. McGeorge, 151 U. S. 133, 38 L. ed. 100, 14 Sup. Ct. Eep. 286 ; Interior Constr. & Improv. Co. v. Gibney, 160 U. S. 220, 40 L. ed. 402, 16 Sup. Ct. Eep. 272. And we have seen that objection to venue may be made by motion, if the plaintifE did not object. Bicycle Stepladder Co. v. Gordon, 57 Fed. 529; Eeinstadler V. Eeeves, 33 Fed. 308. We have also seen that defect of parties may be set up by plea in abatement, or some disability, such as infancy, cover- ture, lunacy, or the nonexistence of the character and capacity in which the parties are suing, or party is sued, such as part- ners, trustees, executors, administrators, or heirs. You may set up by plea in abatement bankruptcy, want of interest, or any other matter which would abate the suit, but which does not appear in the face of the bill. United States v. Gillespie, 6 Fed. 803 ; Sheffield & B. Coal, Iron & E. Co. v. Newman, 23 C. C. A. 459, 41 JJ. S. App. 766, 77 Fed. 791 ; Marshall v. Otto, 59 Fed. 252. Forms for these pleas have already been given. Another Suit Pending. You may set up in abatement another suit pending, however it is proper to call your attention to the conditions under which 410 PiEA. the plea can be filed and sustained in the Federal court when the suit is pending in a State court. On the law side, the pen- dency of a suit in a State court does not abate a suit in the Federal court. Burk v. McCaffrey, 136 Fed. 696; Barber As- phalt Paving Co. V. Morris, 67 L.R.A. 761, 66 C. C. A. 55, 132 Fed. 945; Slaughter v. Mallet Land & Cattle Co. 72 C. C. A. 430, 141 Fed. 282; Mankato v. Barber Asphalt Paving Co. 73 C. C. A. 439, 142 Fed. 329; Bank of Commerce v. Stone, 88 Fed. 398 ; Ogden City v. Weaver, 47 C. C. A. 485, 108 Fed. 568 ; Defiance Water Co. v. Defiance, 100 Fed. 178 On the equity side a case will not be dismissed though the plea be sustained, but if the suit is pending in a State equity court, the Federal court will suspend proceedings and await the re- sult of the suit in the State court. Zimmerman v. So Eelle, 25 C. C. A. 518, 49 U. S. App. 387, 80 Fed. 417 ; New York Cotton Exeh. v. Hunt, 144 Fed. 511; Williams v. Neely, 69 L.R.A. 232, 67 C. C. A. 171, 134 Fed. 2 ; Boatmen's Bank v. Fritzlen, 135 Fed. 667 ; Foley v. Hartley, 72 Fed. 570 ; Gam- ble V. San Diego, 79 Fed. 487 ; Hennessy v. Tacoma Smelting & Eef. Co. 129 Fed. 40 ; Green v. Underwood, 30 C. C. A. 162, 57 U". S. App. 535, 86 Fed. 429. The rules as above given apply only to suits that are of a personal character. When the suit affects the custody of prop- erty in the State court, the court first acquiring jurisdiction retains it, without interference from the other. Zimmerman V. So Eelle, 25 C. C. A. 518, 49 U. S. App. 387, 80 Fed. 417; Williams v. Neely, 69 L.R.A. 232, 67 C. C. A. 171, 134 Fed. 2 ; Gates v. Bucki, 4 C. C. A. 116, 12 U. S. App. 69, 53 Fed. 965 ; Xational Foundry & Pipe Works v. Oconto City Water Supply Co. 51 C. C. A. 465, 113 Fed. 793 ; Briggs v. Stroud, 58 Fed. 720 ; Ogden City v. Weaver, 108 Fed. 568. If you should set up in abatement a suit pending, the plea should show, first, same parties; second, same cause of action; third, whether the case is pending in law or equity ; fourth, the same relief sought ; fifth, the state of the pleadings in the other court. If not strictly within these rules, the plea should be overruled. Griswold v. Baeheller, 77 Fed. 857 ; Green v. Un- derwood, 30 C. C. A. 162, 57 U. S. App. 535, 86 Fed. 429. Matters in abatement merely suspending the right to sue, or defeating temporarily the procedure in that particular court, PLEA. 411 should be set up by plea or demurrer (Marshall v. Otto, 59 Fed. 252), as it saves both time and expense to have them deter- mined in limine. Equity rule 39 excepts mere matters of abatement, charac- ter of parties, or matters of form, from the defenses that can be set up by answer (United States v. Gillespie, 6 Fed. 803), and some of the Federal judges, recognizing the necessity of disposing of pleas in abatement as early as possible, have adopt- ed local rules governing the practice of their respective dis- tricts, requiring all matters of pure abatement to be set up by preliminary answer in the nature of a plea, to which issue must be joined and the issue determined at once and before de- fendant is required to answer. Marshall v. Otto, 59 Fed. 252. CHAPTER LXX. P1.EAS IN BAE. You can set up by plea any single fact that would destroy the equity of a bill through which relief is sought. Such pleas are called pleas in bar. National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co. 83 Fed. 29. Thus, first, the statutes of frauds, or limitations, or other defense may be set up in bar of the equity. McCloskey v. Barr, 38 Fed. 166 ; United States v. California & O. Land Co. 148 U. S. 38, 39, 37 L. ed. 358, 13 Sup. Ct. Eep. 458. Second, laches in bring- ing suit. Farrand v. Land & Kiver Improv. Co. 30 C. C. A. 128, 58 U. S. App. 559, 86 Fed. 393. Third, records, such as judgments and decrees, showing prior adjudication. Mound City Co. T. Castleman, 171 Fed. 521 ; Westinghouse Electric & Mfg. Co. V. Jefferson Electric Light, Heat & P. Co. 128 Fed. 751 ; John D. Park & Sons Co. v. Bruen, 133 Fed. 807 ; Harrison v. Eemington Paper Co. 3 L.E.A.(KS.) 954, 72 C. C. A. 405, 140 Fed. 386, 5 A. & E. Ann. Cas. 314; Fowler v. Stebbins, 69 C. C. A. 209, 136 Fed. 365 ; Montgomery v. McDermott, 99 Fed. 502; Desert King Min. Co. v. Wedekind, 110 Fed. 873 ; Nugent v. Philadelphia Traction Co. 87 Fed. 251; Moredock v. Moredock, 179 Fed. 163. Fourth, release agreements and awards. Armengaud v. Coudert, 23 Blatchf. 424, 27 Fed. 247. Fifth, title acquired by limitation. Sixth, title by will. Seventh, bona fide purchaser. United States v. California & O. Land Co. 148 U. S. 40, 37 L. ed. 359, 13 Sup. Ct. Eep. 458 ; United States v. Winona & St. P. R. Co. 165 U. S. 479, 41 L. ed. 796, 17 Sup. Ct. Rep. 368. Eighth, collusive suit. Dinsmore v. Central E. Co. 19 Fed. 153 ; Mc- Veagh V. Denver City Waterworks Co. 29 C. C. A. 33, 55 U. S. App. 267, 85 Fed. 74. Having thus indicated what defenses may be set up by pleas 412 PLEAS IN BAR. 413 in abatement and bar, tbe question arises whetber pleas in bar are tbe most effective way of pressing tbese defenses. Pleas in abatement requiring sometbing to be stricken out or added in order to fairly get your issues before tbe court are necessary (Livingston v. Story, 11 Pet. 393, 9 L. ed. 763 ; Marshall v. Otto, 59 Fed. 252 ; equity rule 39) ; but often it is a waste of time to present your defenses by plea in bar. If you consider your plea an effective bar, sucb as limita- tion or tbe statute of frauds, former adjudication, etc., reacb- ing tbe very vitals of tbe cause of action upon which the bill is based, then by all means file the plea, for it reduces the is- sue to a single point and saves time and expense and proof at large. Eveleth v. Southern California E. Co. 123 Fed. 838 ; Parley v. Kittson, 120 U. S. 303, 30 L. ed. 684, 7 Sup. Ct. Eep. 534 ; Miller v. Eickey, 123 Fed. 608. But if the result of your plea is doubtful, or it only goes to a part of the bill, and you have to answer to the other part, then let the plea alone and present your issues by answer and take the benefit of tbe entire defense. Equity rule 39 ; Sharp v. Eeissner, 20 Blatchf. 10, 9 Fed. 446 ; Chisholm v. Johnson, 84 Fed. 384. Again, when you file a plea the burden of proof is on you, but when you file an answer, the burden remains with the plaintiff to establish his case, before your sworn answer is over- come and you are required to be the actor. Equity rule 39 provides that the defendant (except in mat- ters of abatement, or parties, or form) may set up in bis an- swer all matters in bar that he could insist on by plea, and in such answer he is not required to set up any other than he would be required to set forth in a plea, and an answer in support of said plea, which means that yoTi may confine your answer to a single plea in bar if you are justified in risking your case on a single issue. The rule may be illustrated where the defense rests upon the fact that one is a bona fide pur- chaser, which would be a full answer to tbe equities set up in the bill. You may set it up and decline to make further dis- covery as to other matters alleged not affecting the good faith of the purchaser. National Hollow Brake Beam Co. v. Inter- changeable Brake Beam Co. 83 Fed. 29,- 30; Hatch v. Ban- croft-Thompson Co. 67 Fed. 805; Sharp v. Eeissner, 20 Blatchf. 10, 9 Fed. 446. 414 PLEAS IN BAIL Form of Plea. The plea, like the demurrer, must have the certificate of counsel and the affidavit of the defendant attached, except the affidavit differs as we shall see. The general form of plea is as follows: Title as in bill. The plea of C. D. (or the joint and several plea of C. D. and E. F., defendants) to the bill of complaint. And now comes the defendant C. D. (or defendants, etc.), and not con fessing any of the matters contained in the bill of complaint to be true, for plea to said bill ( or so much of said bill as seeks, etc. State part pleaded to substantially) do plead thereto and say (here insert matter of plea), all of which defendant alleges to be true, and pleads the same in bar ( or abate- ment) to the bill (or so much as is plead to) and prays the judgment of the court whether he shall further answer said bill (or the part plead to), and upon hearing said plea that this defendant be dismissed hence with his costs and charges in this behalf incurred. K. F., Solicitor. Certificate of Counsel. I, E. F., solicitor, etc., in the above cause, do hereby certify that the above plea is well founded in law. K. F., Solicitor, etc. Affidavit of Defendant. I, C. D., defendant (or one of the defendants) in the above cause, being duly sworn do say that the foregoing plea to the bill of complaint is true in point of fact and is not interposed for the purpose of delay. C. D., Defendant. Sworn to and subscribed before me this the day of , A. D. 19... [seal] Officer's signature. "When defendants joint all must verify unless the court per- mits otherwise. As said, the certificate and affidavit are essential, the fail- ure to add is equally as fatal as it is in the case of the demur- rer, as before explained. It may be stricken from the files on motion or entirely disregarded (American Steel & Wire Co. PLEAS IN BAK. 415 V. Wire Drawers' & Die Makers' Unions JSTos. 1 & 3, 90 Fed. 599; Preston v. Finley, 12 Yed. 850; Computing Scale Co. v. Moore, 139 Fed. 197), and decree pro confesso entered (Com- puting Scale Co. V. Moore, 139 Fed. 197). Verification may be waived by setting down for hearing. Computing Scale Co. V. Moore, 139 Fed. 200. Seal not necessary when filed by cor- poration. Fayerweather v. Hamilton College, 103 Fed. 546. Characteristics of Plea. So much for the form; let us now inquire into the charac- teristics of the plea. The Plea Must Be Single. The plea must be single, that is, contain but one defense. Knox Eock-Blasting Co. v. Rairdon Stone Co. 87 Fed. 969; Miller v. Eickey, 123 Fed. 604, 607; United States v. Cali- fornia & O. Land Co. 148 U. S. 39, 37 L. ed. 359, 13 Sup. Ct. Eep. 458 ; Jahn v. Champagne Lumber Co. 152 Fed. 669 ; Farley v. Kittson, 120 U. S. 303-316, 30 L. ed. 684-689, 7 Sup. Ct. Eep. 534; Hostetter Co. v. E. G. Lyons Co. 99 Fed. 735 ; ISTational Hollow Brake Beam Co. v. Interchangeable Brake Beam Co. 83 Fed. 27 ; Sims v. United Wireless Teleg. Co. 179 Fed. 540. You cannot file a double plea to the whole, or any part of the bill ; and by double plea is meant a plea con- taining two defenses. Briggs v. Stroud, 58 Fed. 718 ; Miller V. Eickey, 123 Fed. 607; McCloskey v. Barr, 38 Fed. 168; Gilbert v. Murphy, 100 Fed. 161 ; Sims v. United Wireless Teleg. Co. 179 Fed. 540; see Fayerweather v. Hamilton Col- lege, 103 Fed. 547, 548 ; Farley v. Kittson, 120 U. S. 303, 30 L. ed. 684, 7 Sup. Ct. Eep. 534; Giant Powder Co. v. Safety ISTitro Powder Co. 10 Sawy. 23, 19 Fed. 510. For ex- ample, setting up a pending suit and want of proper parties (Sharon v. Hill, 10 Sawy. 394, 22 Fed. 28), or the statute of limitations and no liability (McCloskey v. Barr, 38 Fed. 168), or matters affecting validity of service, and want of proper citizenship (Briggs v. Stroud, 58 Fed. 717) ; nor matters of law and fact (Hostetter Co. v. E. G. Lyons Co. 99 Fed. 734) ; and where two intendments, the plea is taken most strongly 416 PLEAS IN BAE. against the pleader. You may file separate pleas to separate parts of the bill, or a single plea to the whole bill, and, if it is necessary to file more than one plea to the whole bill, you must ask permission of the court. Sharon v. Hill, 10 Sawy. 394, 22 Fed. 28; Noyes v. Willard, 1 Woods, 187, Fed. Cas. Xo. 10,374; MeCloskey v. Barr, 38 Fed. 165; Miller v. Eickey, 123 Fed. 607, and cases cited. But several pleas will not be allowed, unless they present well-defined issues which can be separately determined from the allegations in the bill. Gilbert y. ]y!urphy, 100 Fed. 161; Ehode Island v. Massachusetts, 14 Pet. 210, 10 L. ed. 423; MeCloskey v. Barr, 38 Fed. 165- 168; Bunker Hill & S. Min. & Concentrating Co. v. Shoshone Min. Co. 47 C. C. A. 200, 109 Fed. 506; United States v. American BeU Teleph. Co. 30 Fed. 523. Averments in Plea. The averments must be clear, positive, and distinct, and the plea must present in itself a complete equitable defense. Me- Closkey V. Barr, 38 Fed. 165. To illustrate: You cannot al- lege a person is sole owner, etc., without stating the facts upon which the ownership depends, so that the court can see it. The plea must not be argumentative, but positive. Chisholm V. Johnson, 84 Fed. 385; MeCloskey v. Barr, 38 Fed. 166; McDonald v. Salem Capital Flour-Mills Co. 31 Fed. 577; Computing Scale Co. v. Moore, 139 Fed. 197. To illustrate: If the question was one of jurisdiction by reason of not living in the district of suit, and the bill alleged that the defendant was a citizen of the northern district of a State, a plea setting up that the defendant was a citizen of the eastern district of the State would be bad. The proper plea would be that he is not a citizen of the northern district, but is a citizen of the eastern district. McDonald v. Salem Capital Flour-Mills Co. 31 Fed. 579. While it is said that a plea must be single, stating a single fact upon which the abatement or bar rests, yet it is not to be understood that you may not allege a variety of facts if they all tend to one clear ground of defense which may dispose of the biU. Vacuum Oil Co. v. Eagle Oil Co. 122 Fed. 105 ; Coop- er V. Preston, 105 Fed. 403 ; Ehino v. Emery, 79 Fed. 483 ; PLEAS Ilf BAE. 417 Hazard v. Durant, 25 Fed. 26 ; Missouri P. E. Co. -7. Texas &, P. E. Co. 50 Fed. 151. To illustrate : If you wish to plead a release, you may set up all the facts inducing the release or by -which it may be shown. McCloskey v. Barr, 38 Fed. 169. So in averment of heirship in a bill, you may set up all the facts in a plea to meet the averment. Ehino v. Emery, 79 Fed. 483-485. So if you set up limitations by a plea, and the bill has sought to anticipate it by setting up disabilities, you may negative the disabilities in a plea. McCloskey v. Barr, 38 Fed. 166. Again, if you set up the defense of a bona fide purchaser by plea, you must set up all the elements that constitutes one a bona fide purchaser. Ibid. So if you plead the statute of frauds, you must set out the facts so that the court may see the application. Ibid. So in pleading non compos. Dudgeon V. Watson, 23 Blatchf. 161, 23 Fed. 161. A plea is never good that simply denies the allegations of a bill, for that is the province of the answer; such a plea should be stricken out on motion (Armengaud v. Coudert, 23 Blatchf. 424, 27 Fed. 247; Korn v. Wiebusch, 33 Fed. 50) ; Sharp v. Eeissner, 20 Blatchf. 10, 9 Fed. 446) ; unless the denial of a single allegation of the bill would, if effective, destroy the equity. Not Conclusions of Law. The plea must allege matters of fact, not conclusions of law, and if not traversible for that reason, the plea may be disre- garded. Hostetter Co. v. E. G. Lyons Co. 99 Fed. 735, 736. Pure Plea. In drawing your plea it is well to remember that the bill is taken as true in a pure plea, and if there is anything in the bill negativing the fact that you intend setting up by the plea, you must negative all such allegations in the plea. Dwight v. Central Vermont E. Co. 20 Blatchf. 200, 9 Fed. 788 ; Gold- smith V. Gilliland, 10 Sawy. 606, 24 Fed. 154, 155 ; Hilton v. Guyott, 42 Fed. 250, 251 ; Ehino v. Emery, 79 Fed. 483. By a pure plea is meant one that depends on matter which you S. Eq.— 27. 418 PLEAS IN BAE. wish to insert in the bill to destroy the equity. Armengaud v. Coudert, 23 Blatchf. 424, 27 Fed. 247 ; Goldsmith v. Gilliland, 10 Sawy. 606, 24 Fed. 156. But where the plea denies a fact set up in the bill, the nonexistence of which if proved would destroy the equity, it is called a negative plea. When Plea Supported by Answer. We have seen that in some instances the plea must be sup- ported by answer. By equity rule 32, in every case where charges of fraud have been alleged in the bill you must sup- port the plea by an answer denying specifically the charges of fraud. The plea admitting the allegations not specifically de- nied, the court will not hear you if the fraud is not answered. You must be careful that the answer in support of the plea goes no further than the denial of the particular matters al- leged charging the fraud, for any other defenses set up in such sustaining answer will waive your plea. John v. Champagne Lumber Co. 152 Fed. 669; United Cigarette Mach. Co. v. Wright, 132 Fed. 196; Huntington v. Laidley, 79 Fed. 866. See Johnston v. Forsyth Mercantile Co. 127 Fed. 846. In addition to the requirements of equity rule 32, it has been held, as stated, that if there is anything in the bill negativing the fact that you are setting up to destroy the equity, you should support your plea with a further answer negativing all the alle- gations of the bill that would affect the substance of your plea ; otherwise pure and proper pleas in equity need no answer in support Dwight v. Central Vermont R. Co. 20 Blatchf. 200, 9 Fed. 788. But in Hilton v. Guyott, 42 Fed. 250—251, it is said no answer is necessary. McDonald v. Salem Capital Flour-Mills Co. 31 Fed. 577. But in negative pleas, that is, pleas denying a single allegation in a bill on which the whole case depended, it was held in Dwight v. Central Vermont E. Co. 20 Blatchf. 200, 9 Fed. 788, that a negative plea must be supported by an answer to so much of the bill as is denied ; but in Ehino v. Emery, 79 Fed. 483-486, it is said that when plaintiff's case stands solely on the bare averment of a particu- lar fact, it is not necessary for defendant to file an answer in support of the plea denying or negativing the fact, unless the bill recites evidence tending to prove the disputed allegations. PLEAS IN BAE. 419 In such case an answer supporting the plea and denying the supporting facts alleged must be filed with the plea. McDonald V. Salem Capital Flour-Mills Co. 31 Fed. 577. When an answer is necessary to support your plea, you may use the following form: Title as in bill. And now comes tbe defendant C. D., and in support of his plea herein filed, which plea sets up (state substance of plea) would further answer and say, that the allegations of said bill charging fraud and combination (state substance of charge) are untrue. Defendant denies that he did, etc. (cover all facts charged). Wherefore he prays that his plea be considered and the prayer thereof granted. R. F., Solicitor, etc. Answer must be verified by oath. Under equity rule 39, an answer in support of a plea is not subject to exceptions because it fails to answer all the specific interrogatories attached to the biU. Hatch v. Bancroft-Thomp- son Co. 67 Fed. 802. CHAPTEE LXXL SETTING DOWN FOE HEADING. The defendant having filed his plea, the plaintiff must first see if it is in regular form, properly certified and sworn to; if not, he may disregard it, and enter a decree ■pro confesso, or move to strike it from the files. If the plea be regular in form, then equity rule 33 provides the way it shall be tested for suffi- ciency or truth. Hatch v. Bancroft-Thompson Co. 67 Fed. 802. The plaintiff may set down the plea for hearing. This is in effect a demurrer, as setting it down for hearing admits its truth, but denies its sufficiency (American Sulphite Pulp Co. r. Babless Pulp k Paper Co. 163 Fed. 845 ; Burrell v. Hack- ley, 35 Fed. 833 ; Cook v. Sterling Electric Co. 11 S Fed. 45 ; Metcalf V. American School Furniture Co. 122 Fed. 115; Schnauffer v. Aste, 148 Fed. 867; Greneral Electric Co. v. Xew England Electric Xfg. Co. 63 C. C. A. 448, 128 Fed. 738; Kaphael v. Trask, 194 U. S. 276, 48 L. ed. 975, 24 Sup. Ct. Eep. 647; Stephens v. Smartt, 172 Fed. 466; General Elec- tric Co. V. Bullock Electric Mfg. Co. 138 Fed. 412 ; Farley v. Kittson. 120 U. S. 303-314, 30 L. ed. 684-688, 7 Sup. Ct. Eep. 534; Kellner v. Mutual L. Ins. Co. 43 Fed. 626; United States V. California & 0. Land Co. 148 T. S. 39, 37 L. ed. 359, 13 Sup. Ct. Eep. 458; Gaines v. Eock Spring Distilling Co. 179 Fed. 544), and the only question is its legal sufficiency rZimmerman v. So Eelle, 25 C. C. A. 518, 49 U. 8. App. 337, 80 Fed. 421; Metcalf v. American School Furniture Co. 122 Fed. 115 ; BurreU v. Hackley, 35 Fed. 833 ; General Electric Co. V. Xew England Electric Mfg. Co. 123 Fed. 310; S. C. 63 C. C. A. 448, 128 Fed. 739; Ehode Island v. Massachu- setts. 14 Pet. 257-260, 10 L. ed. 445, 446). Setting down for hearing waives want of verification (Computing Scale Co. v. Moore, 139 Fed. 200), and defect of form is waived (Ibid. See Farmer's Loan & T. Co. v. Chicago & X. P. R Co. 61 Fed. 420 SETTING DOWN FOE HEAEINQ. 421 544; Vacuum Oil Co. v. Eagle Oil Co. 122 Fed. 105; Kell- ner v. Mutual L. Ins. Co. 43 Fed. 626). There is no such thing in equity pleading as demurring to a plea. Equity rule 33 ; Zimmerman v. So Kelle, 25 C. C. A. 518, 49 U. S. App. 3ST, 80 Eed. 417. If insufficient in law you simply enter an order in the order book in the clerk's office, setting down the plea for hearing. It must be set down for hearing on the rule day it is filed, or the next succeeding rule day. Equity rule 38. If the plaintiff fails to do so, it is an admission that the plea is legally sufficient (Daniels v. Benedict, 38 C. C. A. 592, 97 Fed. 367 ; see North Chicago Street R. Co. v. Chicago Union Traction Co. 150 Fed. 630), and the defendant can en- ter an order of course dismissing the bill, or so much there- of as is pleaded to. Objections to irregularity of form is waived by setting down for hearing. In setting down the plea for hearing you will file with the clerk a precipe as follows: Title as in bill. To the clerk of the Court, etc. ; You will please set down the plea filed to complainant's bill (or to part of complainant's bill) for hearing on its sufBciency, said hearing to be had at on the day of ,A. D. 19..., it being the rule day in (month) or as soon thereafter as practicable. R. F., Solicitor, etc. In Zimmerman v. So Relle, 25 C. C. A. 518, 49 U. S. App. 387, 80 Fed. 421, it was held that while a demurrer to a plea is irregular, it will be treated as setting it down for hearir.g. If not heard at time and place stated in the precipe, and a future date being fixed by the court, then notice must be given to the opposite counsel as to when and where the hearing will take place. If plaintiff neglects to set down the plea for hear- ing as above stated, or fails to reply, as hereafter explained, then the defendant may dismiss the bill, or so much as is pleaded to, by having an order entered in the order book dismissing it. Equity rule 38. You address a note to the clerk as follows: Title as in bill. To the clerk of the Court, etc: 4:22 SETTING DOWX FOE HEAIllXG. You will please enter an order dismissing the bill in the above cause as provided by equity rule 38, because of the failure of plaintiff to set down the plea for hearing or to reply to the same under the rules, said plea hav- ing been filed on the day of , A. D. 19.... R. F., Solicitor, etc. The dismissal being a matter of course, the clerk will enter the dismissal in the order book without notice. Equity rule 38 ; Mason v. Hartford, P. & E. E. Co. 10 Fed. 335. See that the order of dismissal contains an entry of the facts, such as the date of filing the original bill, the date of filing the plea, the failure of the plaintiff to join issue, or set down the plea for hearing within the time required by the rules, and then the dismissal of the bill because of these facts. After the bill is dismissed, as aforesaid, the plaintiff may seek by mo- tion or petition to reinstate the bill, and the application rests within the discretion of the court. Kyan v. Seaboard & K. R. Co. 89 Fed. 402. When Plea to Only Part of the Bill. A plea, like a demurrer, will not be held bad if it shall not cover so much of the biU as it might (equity rule 36), nor will it be held bad because the answer filed to a part of the bill does extend to some part of the same matter covered by the plea. Equity rule 37. Prior to this rule, when there was a plea to part, and answer to part, they could not invade each other's territory (Huntington r. Laidley, 79 Fed. 867; Mercantile Trust Co. V. ^lissouri, K. & T. E. Co. 84 Fed. 379 ; see Ee Cooper Bros. 159 Fed. 958), which led to much difficulty in framing the pleadings, and consequently much delay and injus- tice. When the plea goes only to a part of the bill, and there is an answer to another part, you should not except to the an- swer before action on the plea, or you waive the plea. Overruling for Insufficiency. When upon the hearing the plea is overruled for insuffi- ciency, the judgment is that the plea be disallowed, and the defendant has a right to answer over (Equity rules 33 and 34- OVERRULING PLEA. 4-0 MacVeagh v, Denver City Waterworks Co. 29 C. C. A. 33, 55 U. S. App. 26Y, 85 Fed. 7i; Chisholm v. Johnson, 84 Fed. 384; Wooster v. Blake, 7 Fed. 816; Farley v. Kittson, 120 U. S. 304, 30 L. ed. 684, 7 Sup. Ct. Kep. 534) ; and the court usually assigns him to answer by the next rule day, or such other time as may be reasonable ; but if the court fixes no time, the answer must be filed by the next rule day ; and upon failure to answer by that time, or such time as the court indicates, the plaintiff may enter a decree pro confesso. Effect of Overruling on Answer. In Pentlarge v. Pentlarge, 22 Blatchf. 120, 23 Fed. 412, the plea was overruled for insufficiency as a defense and permis- sion refiised to permit the same defense in answering over. Equity rule 39 was held not to apply to the conditions. Miller V. Eickey, 146 Fed. 576 ; Hubbell v. DeLand, 11 Biss. 382, 14 Fed. 475. This is also true when the plea is determined against the defendant upon an issue of fact, as will be here- after seen, unless the plea is overruled, as is sometimes done with special permission to renew it in the answer. Chisholm V. Johnson, 84 Fed. 384. Again, the court will sometimes permit the plea to remain without final action thereon to be considered as an answer. Standard Distilling & Distributing Co. V. Woolsey, 121 Fed. 1017; Chisholm v. Johnson, 84 Fed. 3S4. Again, if the matter set up in the plea is not proper for a plea, or defectively pleaded, the court will permit it to be set up by way of answer, or let it stand over as such. Pent- large V. Pentiarse, 22 Blatchf. 120, 22 Fed. 413. '&^ Sustaining the Sufficiency of the Plea. If the plea is sustained as sufficient in law, the court will permit the plaintiff to file a replication and put in issue the truth of the plea. United States v. Dalles Military Road Co. 140 F. S. 616, 617, 35 L. ed. 565, 11 Sup. Ct. Rep. 988. The judgment is that "the plea be allowed," and order a replica- tion. Rule 34; Pearce v. Rice, 142 U. S. 42, 35 L. ed. 931, 12 Sup. Ct. Rep. 130; Zimmerman v. So Relle, 25 C. C. A. 518, 49 U. S. App. 387, 80 Fed. 421 ; Files v. Brown, 59 C. 424 StJSTAINING PLEA. C. A. 403, 124 Fed. 142 and cases cited; Baltimore Trust & Guarantee Co. v. Hofstetter, 29 C. C. A. 35, 56 U. S. App. 122, 85 Fed. 75; see Gunning System v. Buffalo, 157 Fed. 251, 252. And where the plea meets all the allegations of the bill, barring the suit, defendants are entitled to a final decree. Gaines v. Eock Spring Distilling Co. 179 Fed. 544; Horn v. Detroit Dry Dock Co. 150 U. S. 625, 37 L. ed. 1203, 14 Sup. Ct. Eep. 214. If not replied to, it dismisses the bill. Equity rule 38. If the plea be good in part and bad in part, the court will order a replication to the part held good, and overrule the part considered bad. Rhino v. Emery, 79 Fed. 485-486. Issue on the Plea. If the plea be regular in form and sufficient, the court will order a replication. This means that you file a denial of the allegations of the plea, called a replication, a form for which may be as follows: Title as in bill. And now comes A. B., plaintiff in the above cause, and saving the advan- tages of any exceptions to the insufficiency of the plea filed herein, says that this bill is true, certain and sufficient to be answered unto, and that the plea filed herein is not true; wherefore he joins issue and prays that the truth of the same may be inquired into. R. F., Solicitor. You cannot set up by replication any new matter in confes- sion and avoidance, or any new fact. Mason v. Hartford, P. & F. R Co. 10 Fed. 334; Equity rule 45. If this' condition occurs, you must amend your bill. Effect of Replying to Plea. Formerly the effect of replying to a plea, instead of setting it down for hearing, admitted its validity, and if the facts set up in the plea were proven, its effect was to dismiss the bill. Cottle V. Krementz, 25 Fed. 494 ; Ehode Island v. Massachu- setts, 14 Pet. 257, 10 L. ed. 445 ; Farley v. Kittson, 120 U. S. 314, 30 L. ed. 688, 7 Sup. Ct. Rep. 534; Westervelt v. Li- brary Bureau, 55 C. C. A. 436, 118 Fed. 825. But under NATUEE OF ISSUE. 425 equity rule 33, which allows the defendant the henefit of the truth of the plea as far as in law and equity it should avail, the filing of a replication does not admit the validity of the pica, nor does the fact that the plea is proven necessarily dismiss the bill. Pearce v. Eice, 142 U. S. 42, 35 L. ed. 931, 12 Sup. Ct. Eep. 130; Horn v. Detroit Dry Dock Co. 150 U. S. 625, 37 L. ed. 1203, 14 Sup. Ct. Rep. 214; American Graphophone Co. V. Edison Phonograph ^Yorks, 68 Fed. 451 ; Elgin Wind Power & Pump Co. V. ISTichols, 12 C. C. A. 521, 22 U. S. App. 707, 65 Eed. 218 ; Dalzell v. Dueber Watch Case Mfg. Co. 149 U. S. 326, 37 L. ed. 755, 13 Sup. Ct. Eep. 886 ; Hartz v. Cleve- land Block Co. 37 C. C. A. 227, 95 Eed. 682. -The effect of the plea may on final hearing be avoided by proof of other facts. Green v. Bogue, 158 TJ. S. 478-499, 39 L. ed. 1061- 1068, 15 Sup. Ct. Eep. 975 ; Soderberg v. Armstrong, 116 Eed. 710. Nature of Issue. The only issue is the truth of the allegations in the plea. Eveleth v. Southern California E. Co. 123 Eed. 836; Earley v. Kittson, 120 U. S. 315, 30 L. ed. 688, 7 Sup. Ct. Eep. 534 ; Appleton V. Marx, 10 C. C. A. 555, 23 U. S. App. 420, 62 Fed. 644; Hartz v. Cleveland Block Co. 37 C. C. A. 227, 95 Eed. 682 ; Vacuum Oil Co. v. Eagle Oil Co. 154 Eed. 867 ; Birds- eye V. Heilner, 26 Eed. 147 ; United States v. California & 0. Land Co. 148 U. S. 31, 37 L. ed. 354, 13 Sup. Ct. Eep. 458. When the replication is filed, which must be on the rule day succeeding the filing of the plea, unless the plea has been set down for hearing on its sufficiency, as before stated, in which event the replication must be filed on the rule day succeeding the judgment of the court sustaining the sufficiency of the plea, the plea is at issue, and you must begin taking testmony with- in time allowed by equity rule 69, or the plea must be over- ruled for want of evidence (Sharon v. Hill, 10 Sawy. 394, 22 Fed. 29, 26 Eed. 338). The burden is on the defendant (Sharon v. Hill, 10 Sawy. 666, 26 Fed. 723 ; American Graph- ophone Co. V. Leeds & C. Co. 140 Eed. 981) ; and strict proof must be made (Elgin Wind Power & Pump Co. v. Nichols, 12 C. C. A. 578, 24 U. S. App. 542, 65 Eed. 218). You cannot 426 ■WHEX PLEA XOT PEOVEX. prove less than wiiat is alleged, or something different. United States V. California & O. Land Co. 148 U. S. 31, 37 L. ed. 354, 13 Sup. Ct. Eep. 45S. You proceed with the proof in the same Tvay as upon replication to the answer hereafter to be discussed. Equity rules 66, 67, 68, 69. When Plea Xot Proven. If the plea is not proven, the judgment is that "the plea be not allowed," and the defendant is ordered to answer over to the whole bill, or so much as is covered by the plea. Equity rules 33, 34; Appleton v. Marx, 10 C. C. A. 555, 23 TJ. S. App. 420, 62 Fed. 644. American Graphophone Co. v. Leeds & C. Co. 140 Eed. 981 ; VTooster v. Blake, 7 Eed. 816 ; File^ V. Brown, 59 C. C. A. 403, 124 Fed. 142 ; Underwood Type- writer Co. V. Manning, 165 Fed. 453 : Sharp v. Beissner, 20 Blatchf. 10, 9 Fed. 446 ; Westervelt v. Library Bureau. 55 C. C. A. 436, 118 Fed. 824. In Sharon v. Hill,"' 26 Fed. 341, defendant was not allowed to set up in his answer the issue~ determined in his plea against him (equity rule 39 does not apply) nor matters held not to be a defense, that were set up in the plea. Fentlarge v. Pentlarge, 22 Blatchf. 120. 22 Fed. 412 ; Bean r. Clark, 30 Fed. 225. The answer after the plea is overruled is an absolute right. Equity rule 34: Sharp v. Reissner, 20 Blatchf. 10, 9 Fed. 446: see Westervelt v. Li- brary Bureau, 55 C. C. A. 436. 118 Fed. 824. But it must be filed within the time required by equity rule 34 (McGregor V. Vermont Loan & T. Co. 44 C. C. A. 146, 104 Fed. 709), or fixed by the court, or the bill will be taken as confessed. In Kennedy v. Creswell, 101 U. S. 641, 25 L. ed. 1075, Jus- tice Bradley propounds the interrogatory, whether a defendant who pleads a false plea would be entitled to answer over. He intimates that when defendant has put the plaintiff to the ne- cessity of trying the issue which is found against him, and the delay occasioned thereby, that defendant should not be allowed to answer over, imless plaintiff demands it for further discov- ery. That finding the plea false, it should stand as an admis- sion of the bill, and if true, the bill should be dismi-sed. Fol- lowed in Eagle Oil Co. v. Vacuum Oil Co. 89 C. C. A. 463. 162 Fed. 673. In Farley v. Kittson, 120 U. S. 303, 30 L. ed. WHEN PLEA PROVEN. 427 68-i, 7 Sup. Ct Eep. 534, the court says equity rule 33 modi- fies this view. A judgment sustaining a plea was overruled in this ease, and defendant ordered to answer under Equity rule 34. In Earll v. :\Ietropolitan Street E. Co. 87 Fed. 528, these two cases are reviewed and held not to conflict, but a finding against the plea in this case authorized a decree for plaintiff. Eagle Oil Co. v. Vacuum Oil Co. S9 C. C. A. 463, 162 Eed. 671. In Elgin Wind Power & Pump Co. v. Xichols, 12 C. C. A. oTS, 24 U. S. App. 542, 65 Fed. 215; ISTorth Chicago Street E. Co. V. Chicago Union Traction Co. 150 Fed. 629, 630; Pearce v. Eice, 142 U. S. 2S, 30 L. ed. 925, 12 Sup. Ct. Eep. 130, equity rule 33 is construed, and the same decision reached. Soderberg v. Armstrong, 116 Fed. 710. ^yhen Plea Proven. If the plea is sustained, the judgment is "that the plea be allowed," but under equity rules 33 and 35 the bill is not neces- sarily dismissed, but will avail the defendant as far as in law and equity it ought to avail. Pearce v. Eice, 142 U. S. 28, 30 L. ed. 925, 12 Sup. Ct. Eep. 130; American Graphophone Co, V. Edison Phonograph Works, 68 Fed. 451, 452 ; Appleton v, Marx, 10 C. C. A. 555, 23 U. S. App. 420, 62 Fed. 644 Jones V. Hillis, 100 Fed. 355 ; Elgin Wind Power & Pump Co. V. Xichols, 12 C. C. A. 57S, 24 U. S. App. 542, 65 Fed. 215 Green v. Bogue, 158 U. S. 500, 39 L. ed. 1069, 15 Sup. Ct Eep. 975; Soderberg v. Armstrong, 116 Fed. 710. But if the plea goes to the whole bill, and, its truth being proven, destroys the equity of the bill, and thus bars further proceeding, then defendant is entitled to dismissal. Ibid. ; Eveleth v. Southern California E. Co. 123 Fed. 838 and cases cited; Horn v. De- troit Dry Dock Co. 150 U. S. 610, 37 L. ed. 1199, 14 Sup. Ct. Eep! 214; Earll v. Metropolitan Street E. Co. 87 Fed. 528 ; Daniels v. Benedict, 38 C. C. A. 592, 97 Fed. 374; Briggs V. Stroud, 58 Fed. 720, 721; Eejall v. Greenhood, 35 C. C. A. 97, 92 Fed. 945. Under the old English rule, if the plaintiff replied to a plea in bar, and joined issue on the facts, he thereby admitted the sufficiency of the plea as an answer to his bill ; and if the facts 4:28 WSES PLEA PEOVEN. were proven his biU was dismigsed, though other equities were set up not put in issue, and which would have been sufficient to save the case from dismissal. The ruling was absurdly technical, and enforced even when the allegations of the plea were not a proper defense. The theory was that joining issue on the plea was an admission that plaintiff staked his case on the falsity of the plea, and he must accept the consequence. So equity rules 33 and 35 were pro- mulgated in the interest of common sense and justice. Green v. Bogue, 158 U. S. 500, 39 L. ed. 1069, 15 Sup. Ct. Eep. 975; Edward P. AUis Co. v. Withlacoochee Lumber Co. 44 C. C. A. 673, 105 Fed. 681, 682. The courts of the United States never did, in fact, adhere to the old rule. Green v. Bogue, 158 U. S. 478, 39 L. ed. 1069, 15 Sup. Ct. Eep. 975. We find in Hughes v. Blake, 6 Wheat. 472, 5 L. ed. 308, and Khode Island v. Massachusetts, 14 Pet. 210, 10 L. ed. 423, decided before the adoption of equity rule 33, that the Supreme Court followed in a measure the old rule, but intimated it would be guided by circum- stances in applying a judgment sustaining a plea in equity. Since the adoption of the rule the proper practice, as before said, is to dismiss the bill where the proven plea is an effectual bar to the whole bill (see authorities above) ; but if the proven plea be not an entire defense to all the equities in the bill, that is, if there are allegations upon which an equity may rest, and which have not been met by the plea, and the plea only defeats a part of the bill, then the bill will be retained and the defend- ant ordered to answer. Jones v. Hillis, 100 Fed. 356 ; Green V. Bogue, 15S U. S. 500, 39 L. ed. 3068, 15 Sup. Ct. Eep. 975 ; Pearce v. Eice, 142 TI. S. 41, 35 I. ed. 930, 12 Sup. Ct. Eep. 130 ; Farley v. Kittson, 120 U. S. 314, 30 L. ed. 688, 7 Sup. Ct. Eep. 534. You may withdraw answer to file a plea. United States v. American Bell Teleph. Co. 39 Fed. 716. CHAPTER LXXII. AU^SWEE. If the demurrers and pleas are settled, or it is deemed best not to file either, but to submit all matters in bar by answer, you must file it on the next succeeding rule day after appear- ance has been entered, or the demurrer has been overruled, or the plea has been disallowed, unless further time has on appli- cation been fixed by the court. Equity rules 18-34. Framing Answer. If you determine to raise the issues by answer, you must answer fully, fairly, and explicitly every allegation of the bill. The effect of this rule is to eliminate many undisputed facts and should always be insisted on through the use of exceptions, as will be hereafter explained. Equity rule 39; MelTulty v. Wiesen, 130 Eed. 1014; Commonwealth Title Ins. & T. Co. V. Cummings, 83 Fed. 767 ; ITational Hollow Brake Beam Co. V. Interchangeable Brake Beam Co. 83 Fed. 28; McCloskey V. Barr, 40 Fed. 559 ; Field v. Hastings & B. Co. 65 Fed. 279. It must not be an argumentative denial either in law or equity. Old Dominion Copper Min. & Smelting Co. v. Lewisohn, 176 Fed. 745. The rule requires every allegation of the bill to be specifically answered; that is, answered as if each allegation was a direct interrogatory. You cannot allege generally in an answer that every fact in the bill not admitted is denied, but each specific allegation must be denied or admitted, or disposed of by some character of reply. Brown v. Pierce, 7 Wall. 211, 212, 19 L. ed 135, 136 ; Holton v. Guinn, 65 Fed. 451 ; People's United States Bank v. Gilson, 88 C. C. A. 332, 161 Fed. 293. _ Plain- tiff is entitled to see which of his allegations are admitted or denied (McCloskey v. Barr, 40 Fed. 559), so that the atten- 429 430 ANSWZE. tion of the court may be directed to the debatable grotmd. But while specific answers are required, you must avoid great minu- tiae in detail ; an answer that meets fairly the allegation is suf- ficient without detailing your evidence. Field v. Hastings & B. Co. 65 Fed. 279. The answers, if in the knowledge of the de- fendant, must be direct and positive; if he has no absolute knowledge, he ought to state his belief, and if he has no belief about the matter charged, he should so state. See Victor G. Bloede Co. v. Carter, 148 Fed. 127. Statements that a defendant has no knowledge, and neither denies nor admits the facts charged in the bill, does not admit their truth or relieve the plaintiff from proving them. Brown V. Pierce, 7 Wall. 205, 19 L. ed. 134; Eogers v. Marshall, 13 Fed. 64. Xor would the fact that an allegation in the bill not noticed in the answer admit it. Equity rule 61 ; Lovell v. Johnson, 82 Fed. 206 ; Young v. Grundy, 6 Cranch, 51, 3 L. ed. 149; Kussell v. Clark, 7 Cranch, 91, 3 L. ed. 279; see Jones V. Lamar, 34 Fed. 470. iXor does the fact that a party has no information or belief on the subject admit it (The Holladay Case, 27 Fed. 831) ; but that one should answer that he has no information or belief on a matter of record would be a sham and stricken out on exception. So when the facts are within one's knowledge, he will not be permitted to state them on belief (Slater v. Maxwell, 6 Wall. 274, 18 L. ed. 798), nor a want of knowledge of acts done by the defendant cannot be set up. A defendant may plead all facts he has a right to prove, and may even set up the defense in different aspects if it is re- sponsive to the bill. When interrogatories are in the bill (equity rule 44), they must be answered specifically, or rea- sons for refusing to answer stated clearly. Boyer v. Keller, 113 Fed. 580 ; see John D. Park & Sons v. Bruen, 147 Fed. 884. Scandal and Impertinence. The answer should be free from scandal and impertinence. However, it will not be suppressed if the allegations of the bill justified it. United States v. McLaughlin, 24 Fed. 826; Mer- cantile Trust Co. V. :\Iissouri, K. k T. R. Co. 84 Fed. 379; Whittemore v. Patten, 84 Fed. 51 ; Barrett v. Twin City Power Co. Ill Fed. 45; Pennsylvania Co. v. Bay, 138 Fed. 206. ANSWEE. 431 Otherwise the impertinence should be stricken out. (Florida Mortg. & Invest. Co. v. Finlayson, 74 Fed. 671 ; Whittemore V. Patten, SI Fed. 527; Field v. Hastings & B. Co. 65 Fed. 279) ; and exceptions for impertinence must be allowed in whole or not at all. Osgood v. A. S. Aloe Instrument Co. 69 Fed. 291. Impertinent allegations cannot be proved by the de- fendant (Gunne v. Bird, 10 Wall. 308, 19 L. ed. 915 ; Pennsyl- vania Co. V. Bay, 138 Fed. 206) ; nor answer offered as evi- dence ; but they should be excepted to by plaintiff (Hardeman v. Harris, 7 How. 726, 12 L. ed. 889), unless the allegations do not affect the equity of the bill. An answer is impertinent when it appears that the matter alleged is not material, or relevant; or is stated with needless prolixity. Whittemore v. Patten, 84 Fed. 56. Or when not responsive to the bill. Hamlin v. To- ledo, St. L. & K. C. R. Co. 36 L.R.A. 826, 24 C. C. A. 271, 47 U. S. App. 422, 78 Fed. 667. Or when rambling and ver- bose. Stokes V. Farnsworth, 99 Fed. 838. And when sought to strike out for impertinence, it must be clearly made out. Barrett v. Twin City Power Co. Ill Fed. 45 ; see Blanton v. Chalmers, 158 Fed.^907. In^consistent Matter. The answer must not contain inconsistent matter, for, being under oath, neither statement will be considered true, and you lose the benefit of both. Oregonian K. Co. v. Oregon E. & Wav. Co. 27 Fed. 277; Ozark Co. v. Leonard, 24 Fed. 660; Klenk V. Byrne, 143 Fed. 1010. But one may make subsequent modi- fications of previous allegations, or set up defense in different aspects. Ibid. Argumentative. The answer must never be argumentative. Florida Mortg. & Invest. Co. v. Finlayson, 74 Fed. 671. Affirmative Matter. You cannot expand the denial beyond the facts in the bill (Osgood v. A. S. Aloe Instrument Co. 69 Fed. 291) ; but you i32 ANSWEE. may set up affirmative matter, though not responsive, if it is a defense to the case made in the bill. Adams v. Bridgewater Iron Co. 6 Fed. 179 ; Pennsylvania Co. v. Bay, 138 Fed. 206 ; Bower Barff Eustless Iron Co. v. Wells Rustless Iron Co. 43 Fed. 391; Stokes v. Famswortb, 99 Fed. 837; Mound City Co. V. Castleman, 171 Fed. 520, and it may be of law as well as fact. Farmers' Loan & T. Co. v. ]!s'orthern P. K. Co. 76 Fed. 15. When Answer Cures BUI. Setting up in the answer material facts omitted in the bill cures the bill. Cavender v. Cavender, 114 U'. S. 471, 29 L. ed. 214, 5 Sup. Ct. Hep. 955; Provisional Municipality v. Leh- man, 6 C. C. A. 349, 13 U. S. App. 411, 57 Fed. 330 ; Rich- ardson V. Green, 9 C. C. A. 565, 15 TI. S. App. 488, 61 Fed. 431, Form of Answer. With the statement of these general rules to be observed in framing an answer, I will now give a form for the introduction and conclusion of an answer. Title as in bill. The answer of C. D. (or the joint and several answer of C. D. and E. F., defendants) to the bill of complaint. This defendant (or these defendants) reserving all manner of exceptions that may be had to the uncertainties and imperfections of the bill, comes and answers thereto, or to so much thereof as he is advised is material to be answered, and says: (Here take up each allegation of the bill and respond to it, as if specially interrogated, and state such defenses as you have), to so much of the bill as alleges (state allegation) this defend- ant for answer says (either deny, or admit, or that you have no knowledge, but believe that the same is true or not true, or that you have no knowl- edge or belief as to the allegation, etc., but demand strict proof, etc.). When each allegation has been responded to and disposed of, then conclude: Having thus made full answer to all the matters and things contained in the bill, this defendant prays to be dismissed hence with his costs \a this behalf incurred. ANSWEE. 433 The only prayer of answer is for dismissal (Hill v. Eyan Grocery Co. 23 C. C. A. 624, 41 U. S. App. 714, 78 Ted. 27, 28) ; you cannot pray for affirmative relief. If the nature of the case is such that you are entitled to affirmative relief, this can only be obtained by a cross bill, to be hereafter discussed and explained. Verifying Answer. The answer must be sworn to (Childs v. N. B. Carlstein Co. 76 Fed. 91 ; Conley v. Nailor, 118 U. S. 127, 30 L. ed. 112, 6 Sup. Ct. Eep. 1001), unless the oath is waived in the bill, as will be further explained. When sworn to, the oath may be taken before any justice or judge of the United States courts, or the judge of any court of a State or Territory, or master in chancery, or commissioner appointed by circuit court to take testimony, and, since 1889, before any notary public. Equity rule 59. By equity rule 91, a party may affirm if he objects conscientiously to taking an oath. Form of Oath. State of County of Personally appeared before the undersigned authority C. D., the defend- ant in the above cause, who, being duly sworn, says that he is the defend- ant in the above cause and that the matters and things contained in said answer are true. Sworn to and subscribed before me this the day of A.D. 19... Notary Public or OflScer taking. If matters in the answer are stated on information and be- lief, you may say : "That he knows the contents of the answer, and that the same is true of his own knowledge, except as to those matters stated on information and belief, and as to those he believes them to be true." When the fact is within defend- ant's knowledge, it should not be stated on information and belief (Peacock r. United States, 60 C. C. A. 389, 125 Fed. 586) ; if so, the answer is evasive. No attorney's certificate is required to the answer as in the plea. McGorray v. O'Connor, 31 C. C. A. 114, 59 U. S. App. 452, 87 Ted. 586. And tbe signing and verifying an answer, if inadvertently omitted, will S. Eq.— 28. 434 ATTSWEE. be allowed by amendment. Holton v. Guinn, 65 Fed. 450; U. S. Eev. Stat. Sec. 954, U. S. Comp. Stat. 1901, p. 696. See "Answer of Corporations." When Need Not Answer Fvlly. We have seen that when the defendant submits to answer he shall answer fully each allegation of the bill, yet equity rule 39 creates an exception, and declares that one is not bound to answer fully when he may protect himself from discovery by plea. Thus, as stated in the rule, a defendant who could inter- pose a plea of bona fide purchaser for a valuable consideration without notice may set it up by answer and ignore other alle- gations of the bill. Hatch v. Bancroft-Thompson Co. 67 Fed. 805; Gaines v. Agnelly, 1 Woods, 238, Fed. Gas. Xo. 5,173; ^STational Hollow Brake Beam Co. v. Interchangeable Brake Beam Co. 83 Fed. 29. You may thus rest your case by answer upon a single issue, and save the expense of the examination of witnesses at large, which prior to the rule could only have been done by plea. It has been held, however, that where there are several defenses to the bill, each one of which may have been set up by plea, that the rule would not apply, and defendant would not be protected from discovery because of such condition. See Stand- ard Distilling & Distributing Co. v. Woolsey, 121 Fed. 1017, where several distinct pleas were allowed to stand as an answer. It thus appears that by equity rule 39 you may insist in your answer on all matters of defense that can be set up by "plea in bar," or which go to the merits of the case. Holton V. Guinn, 65 Fed. 450 ; Farmers' Loan & T. Co. v. iSTorth- em P. E. Co. 76 Fed. 15; Von Schroder v. Brittan, 98 Fed. 169 ; Green v. Turner, 30 C. C. A. 427, 59 17. S. App. 252, 86 Fed. 837. For instance, you may set up fraud indu- cing the contract. Ibid. Under this rule you cannot set up matters only temporarily abating the suit in your answer, or that go to the mere character of the parties, or any irregularity of form in the bill. Equity rule 39. May Object to Parties in Answer. You may, object by answer or plea to want of parties, as this ANSWEE. 435 would be a bar to a decree in the case, if parties are indispensa- ble. Howth V. Owens, 29 Fed. 725 ; Sheffield & B. Coal, Iron & E. Co. V. Xewman, 23 C. C. A. 459, 41 U. S. App. 766, 77 Fed. 7S7; Carey v. Brown, 92 U. S. 173, 23 L. ed. 470; United States v. Gillespie, 6 Fed. 803. Equity rule 52 recog- nizes and permits this to be done, but it provides that plaintiff must in fourteen days after answer filed set down the cause for hearing on this issue alone, and plaintiff must cause an entry to be made in the order book in the clerk's office as fol- lows : "Set doAvn for hearing on the defendant's objection for the want of parties." If the plaintiff neglects to do so, but proceeds with the cause to hearing without noticing the objec- tion, he will not be allowed to amend his bill and cure defect, unless the court may in its discretion permit it. If the parties are indispensable, the court may dismiss the bill. You see, equity rule 52 must be strictly pursued, or you will find your case hanging alone on the court's discretion. By equity rule 53 the court may, on hearing the cause, when the defendant objects for the want of parties, not having taken the objection by plea or answer, make a decree saving the rights of absent parties; but this rule clearly refers to only necessary parties or proper parties, whoso interests are separa- ble as heretofore sho-wn, because if the absent parties are in dispensable, the court cannot proceed. Barney v. Baltimore, 6 "Wall. 284, 18 L. ed. 825. The court may, however, stop the case until indispensable parties are brought in, otherwise it must be dismissed. Taylor v. Holmes, 14 Fed. 515; Fourth Xat. Bank v. New Orleans & C. E. Co. 11 Wall. 631, 20 L. ed. S4; Collins Mfg. Co. v. Ferguson, 54 Fed. 721; Shields v. Barrow, 17 How. 142, 15 L. ed. 161. (See "Parties.") In these cases the dismissal should be without prejudice. Kendig V. Dean, 97 U. S. 426, 24 L. ed. 1063 ; Keith v. Clark, 97 U. S. 456, 24 L. ed. 1072 ; Goodman v. Mblack, 102 U. S. 563, 26 L. ed. 232 ; House v. Mullen, 22 Wall. 47, 22 L. ed. 839. This practice, provided by equity rule 52 for the disposal of the issue of the want of parties raised by the answer is so speedy that one need not object to defect of parties by plea, (United States v. Gillespie, 6 Fed. 803), but the answer must specify by name or description who the parties are. Equity rules 52 and 53. CHAPTER LXXin. EFFECT OF ANSWEB. First. As a pleading. Second. As evidence. First, As a Pleading. When it answers the merits of the whole bill, it waives all irregularities in all previous proceedings. Strang v. Richmond, P. & C. R. Co. 41 C. C. A. 474, 101 Fed. 515 ; Huntington v. Laidley, 79 Fed. 865; Mercantile Trust Co. v. Missouri, K. & T. R. Co. 84 Fed. 383 ; Bryant Bros. Co. v. Robinson, 79 C. C. A. 259, 149 Fed. 329 ; Marshall v. Otto, 59 Fed. 249. It waives all demurrers (Adams v. Howard, 20 Blatchf. 38, 9 Fed. 347 ; Strang v. Richmond, P. & C. R. Co. 41 C. C. A. 474, 101 Fed. 511), except that, when there are two or more defendants, the answer of one does not waive the demurrer or plea filed by the other. Dakin v. Union P. R. Co. 5 Fed. 665. It cures defective allegations in the bill (Richardson v. Green, 9 C. C. A. 565, 15 TT. S. App. 488, 61 Fed. 423), and waives the defense of "an adequate remedy at law" if not set up (Moline Malleable Iron Co. v. York Iron Co. 27 C. C. A. 452, 53 TJ. S. App. 580, 83 Fed. 66) ; because this objection must be taken in limine, and at the earliest opportunity, as has been before stated. Kilbourn v. Sunderland, 130 U. S. 514, 32 L. ed. 1008, 9 Sup. Ct. Rep. 594; Tyler v. Savage, 143 U. S. 97, 36 L. ed. 89, 12 Sup. Ct. Rep. 340; Reynolds v. Wat- kins, 9 C. C. A. 273, 22 U. S. App. 83, 60 Fed. 825. (See "Ade- quate Remedy," etc.) And it puts in issue the bill, and puts plaintiff on proof except as to matters well pleaded and not de- nied ; but if answer demands proof it must be made. Klenk v. Byrne, 143 Fed. 1008. This last case is not the better opinion, though supported by authority ; the plaintiff is put on proof, by 436 EFFECT OF ANSWEE. 437 the answer of his material allegations, unless admitted ; the bur- den does not cease or shift except when matter in avoidance or new matter is set up in the answer. See Hanchett v. Blair, 41 C. C. A. 76, 100 Fed. 821; Brown v. Pierce, 7 Wall. 205, 19 L. ed. 134; Whittemore v. Patten, 81 Fed. 528. It may, how- ever, take less proof than where the allegation is denied. Second, The Answer as Evidence. Unless the oath required to the answer is waived in the hill, the answer, if direct, positive, and responsive, and sworn to, is evidence for the defendant, and its allegations can only he overcome by the testimony of two witnesses, or one witness with corroborating circumstances. Ford v. Taylor, 137 Fed. 151 ; Vieel V. Hopp, 104 U. S. 441, 26 L. ed. 765 ; Childs v. N. B. Carlstein Co. 76 Fed. 91 ; Conley v. Nailor, 118 U. S. 127, 30 L. ed. 112, 6 Sup. Ct. Kep. 1001 ; Jacobs v. Van Sickle, 61 C. C. A. 598. 127 Fed. 69; Calivada Colonization Co. v. Hays, 119 Fed. 202 ; Coonrod v. Kelly, 56 C. C. A. 353, 119 Fed. 841 ; Southern Development Co. v. Silva, 125 U. S. 249, 31 L. ed. 680, S Sup. Ct. Kep. 881, 15 Mor. Min. Eep. 435; Peeler v. Lathrop, 1 C. C. A. 93, 2 TJ. S. App. 40, 48 Fed. 788 ; ilcGorray v. O'Connor, 79 Fed. 863 ; Morrison v. Durr, 122 U. S. 518, 30 L. ed. 1225, 7 Sup. Ct. Kep. 1215. The reason of this rule may be found in the ancient practice of the court of chancery, where the defendant was brought in to purge his conscience in order to discover some fact necessary to the plaintiff's right to relief, the defendant was made a witness by the plaintiff, and when his answers were positive and direct they bound the plaintiff, unless he could overthrow it by two witnesses or by one with corroborating circumstances. Exceptions to the Bule. This rule did not apply if the answer was on information and belief. Berry v. Sawyer, 19 Fed. 287 ; Allen v. O'Don- ald, 28 Fed. 17 ; Savings L. Soc. v. Davidson, 38 C. C. A. 365 97 Fed. 706. Xor when the allegations are not responsive to the bill. Allen v. O'Donald, 28 Fed. 17. A clear and posi- tive denial is necessary to invoke the rule. Ibid. ; Berry v. 438 EFFECT OF ANSWEE. Sawyer, 19 Fed. 287 ; Savings & L. Soc. v. Davidson, 38 C. C. A. 365, 97 Fed. 706; Slater v. Maxwell, 6 Wall. 27i, 13 L. ed. 798. Xor does the rule apply when the answer is not strictly responsive. Seitz v. Mitchell, 94 TJ. S. 582, 2i L. ed. ISO. Nor of one defendant against his codefendant. Clark v. Yan- Riemsdyk, 9 Cranch, 160, 3 L. ed. 690 ; Earle v. Art Library Pub. Co. 95 Fed. 544. Nor when it neither admits nor denies an allegation of the bill. Eoach v. Smnmers, 20 Wall. 170, 22 L. ed. 253. Xor when facts are admitted and avoidance set up. Pennsylvania Co. v. Cole, 132 Fed. 676; Clements v. Moore, 6 Wall. 315, 18 L. ed. 789 ; Eeid v. McCallister, 49 Fed. 17 ; McCoy v. Ehodes, 11 How. 141, 13 L. ed. 63 S ; Clarke v. White, 12 Pet. 190, 9 L. ed. 1051. Xor when new matter is set up as a defense to the biU. Pennsylvania Co. v. Cole, 132 Fed. 668; Eoach v. Summers, 20 Wall. 165, 22 L. ed. 252. Xor when the denial is made on belief, or is equivocal or evasive. Slater v. Maxwell, 6 Wall. 274, 13 L. ed. 798; Peacock v. United States, 60 C. C. A. 389, 125 Fed. 586; Berry v. Sawyer, 19 Fed. 291. Xor when there is a want of knowledge, information, or belief. Blair v. Silver Peake Mines, 93 Fed. 332 ; Hanchett v. Blair, 41 C. C. A. 76, 100 Fed. 817. See Holladay Case, 27 Fed. 841; Berry v. Sawyer, 19 Fed. 287. Xor when sworn to on information and belief and facts within the knowledge of the defendant. Victor G. Bloede Co. v. Carter, 148 Fed. 127 ; Thompson v. Seligman, 90 Fed. 220; Peacock v. United States, 60 C. C. A. 389, 125 Fed. 586. Xor when affidavit made by attorney. Lake Shore & M. S. E. Co. V. Felton, 43 C. C. A. 189, 103 Fed. 227. Li all of these cases one witness is sufficient, or circumstances or some evidence. Hanchett v. Blair, 41 C. C. A. 76, 100 Fed. 817 ; Daniels v. Benedict, 38 C. C. A. 592, 97 Fed. 367. Xor does this rule apply when the answer is by a corporation, and is verified by the oath of one who has no personal knowledge of the facts. Berry v. Sawyer, 19 Fed. 290; United States v. McLaughlin, 24 Fed. 823. See "Answer of Corporation." General allegations made on information and belief, without any verifying circumstances of time and place, even when re- sponsive, are not entitled to much weight. Its only effect is to put plaiutiff on proof. Equity rule 41; Blair v. Silver EFFECT OF ANSWER. 439 Peake Mines, 93 Fed. 332 ; Earle v. Art Library Pub. Co, 95 Eed. 544:, 545 ; AUen v. O'Donald, 28 Fed. IT. Effect of Admissions in Answer. When tbe answer admits the fact, no proof is necessary (Eobinson t. Philadelphia & E. Co. 28 Fed. 511 ; Uhlmann v. Arnholt & S. Brewing Co. 41 Fed. 369) ; for admissions are not affected by the replication. Cavender v. Cavender, 8 Mc- Crary, 158, 8 Fed. 642. As Evidence Against Codefendant. Answer of one defendant under oath is not evidence against a codefendant, unless jointly interested, or they are parties or privies in estate. Earle v. Art Library Pub. Co. 95 Fed. 544, 545 ; Clark v. Van Kiemsdyk, 9 Cranch, 160, 3 L. ed. 690. New Matter in Answer; Effect. jSTew matter in answer must be proven by the defendant as original matter, and is not evidence under the rule. Allen v. O'Donald, 28 Fed. 11; Pennsylvania Co. v. Cole, 132 Fed. 668 ; McCoy v. Ehodes, 11 How. 140, 141, 13 L. ed. 637, 638 ; Eoach V. Summers, 20 Wall. 170, 22 L. ed. 253; Seitz v. Mitchell, 94 U. S. 582, 24 L. ed. 180. Effect of Answer When Oath Waived. It was said that the answer was evidence unless in the bill the oath is waived. By equity rule 41 it is provided that if oath is waived in the bill, the answer is not evidence, unless the cause is set down for hearing on bill and answer, in which latter case the plaintiff attacks the legal sufBciency as if de- murred to. This waiver may be expressly stated in the bill, or may be waived by a footnote to the bill, in whatever way it is made it is intended to avoid the effect of the answer as evidence. The form in which it is usually stated is as follows : 440 EFFECT OF ANSWEE. "That a. writ of subpoena shall issue requiring defendant to answer this bill, but not under oath," etc Or you may put a footnote to the bill: "Answer under oath not required, or waived." See Fisher v. Moog, 39 Fed. 667. In Slessinger v. Buckingham, 8 Sawy. 454, 17 Fed. 454, Judge Sawyer calls attention to the advantage of waiving the oath, now that U. S. Eev. Stat. Sec. 868, IT. S. Comp. Stat. 1901, p. 664, provides that either party to the suit may be examined as a witness. He seems surprised that it is not of- tener done, and states his reasons as follows: "By not waiving the oath, you make the answer evidence against you to be overcome by two witnesses, or one with corroborating circumstances (Kennedy v. Custer, 98 C C. A. 584, 174 Fed. 974 ; Conley v. Xailor, 118 U. S. 130, 30 L. ed. 113, 6 Sup. Ct. Eep. 1001; Dravo v. Fabel, 132 U. S. 489, 33 L. ed. 421, 10 Sup. Ct. Eep. 170; Childs v. X. B. Carl- stein Co. 76 Fed. 91 ; Calivada Colonization Co. v. Hays, 119 Fed. 202 ; Coonrod v. Kelly, 56 C. C. A. 353, 119 Fed. 841 ; Jacobs V. Van Sickel, 123 Fed. 341 ; S. C. 61 C. C. A. 598, 127 Fed. 62) ; and thus the evidence as thus presented is shaped and stated in a lawyer's office, when you may waive the oath, examine the witness and shape the evidence by cross ex- amination. Again, by making him answer under oath, you give his answers the strength of two witnesses, but examined as a witness, he is only equal to one. Again, if you have evi- dence outside of the defendant, why give to his answer the extraordinary force it carries by being sworn to, when with- out oath it simply creates an issue to be proved by the pre- ponderance of evidence." Xational Hollow Brake Beam Co. V. Interchangeable Brake Beam Co. 83 Fed. 28 ; Uhlmann v. Amholt & S. Brewing Co. 41 Fed. 369. The waiving the oath does not relieve the plaintiff from proving his case by a preponderance of testimony. Stewart V. Allen, 47 Fed. 400. Xor does it, on the other hand, relieve the defendant from answering fully the allegations of the biU (Hudson Y. Wood, 119 Fed. 764; Childs v. X. B. Carlstein Co. 76 Fed. 91; Xational Hollow Brake Beam Co. v. Inter- EFFECT OF ANSWEE. 441 changeable Brake Beam Co. 83 Fed. 28 ; TN'hittemore v. Pat- ten, 81 Fed. 527 ; this is doubted in Tillinghast v. Chace, 121 Fed. 436) ; but it will give the defendant much more latitude in answering, which is a distinct loss to brevity which is sought in probing the defendant's conscience under oath. When oath is waived, the defendant is not required to answer specific in- terrogatories in the bill. McFarland v. State Sav. Bank, 132 Fed. 401 ; Excelsior Wooden Pipe Co. v. Seattle, 55 C. C. A. 156, 117 Fed. 140. When Answer Evidence Though Oath Waived. It was held in Childs v. K B. Carlstein Co. 76 Fed. 91, that if the answer was sworn to, though the oath was waived, it would have the force of evidence, but this is in conflict with equity rule 41, and against the weight of authority. Calivada Colonization Co. v. Hays, 119 Fed. 202 ; McFarland v. State Sav. Bank, 132 Fed. 401 ; Coonrod v. Kelly, 56 C. C. A. 353, 119 Fed. 841. However, the answer can be used as evidence when oath is waived in cases where preliminary injunctions are sought, or other interlocutory orders. Woodruff v. Du- buque & S. C. E. Co. 30 Fed. 91; equity rule 41. And, as said before, it will be taken as true when the cause is set down for hearing on bill and answer. See "Discovery." Answer of Corporations. The answer of corporations is not required to be under oath, and from this has risen the practice of making officers of the corporation parties, so as to obtain discovery. Continental Nat. Bank v. Heilman, 66 Fed. 184; ISTational Hollow Brake Beam Co. V. Interchangeable Brake Beam Co. 83 Fed. 28 ; Colgate v. Compagnie Francaise du Telegraphe, 23 Blatchf. 86, 23 Fed. 83 ; Bronson v. La Crosse & M. E. Co. 2 Wall. 302, 17 L. ed. 728. But under equity rule 31 a plea must be verified. Fayer- weather v. Hamilton College, 103 Fed. 547. The corporation answers only under the corporate seal, Continental Xat. Bank V. Heilman, 66 Fed. 184, but, like an individual, must give all the information sought in the bill, and if ignorance is al- leged without excuse, the court will be justified in charginij; 442 EFFECT OF ANSWEE. it with the costs of the suit. Colgate v. Campagnie Francaise du Telegraphe, 23 Blatehf. 86, 23 Fed. 83 ; National Hollow Erake Beam Co. v. Interchangeable Brake Beam Co. 83 Fed. 28 ; Indianapolis Gas Co. v. Indianapolis, 90 Fed. 197 ; Game- well Fire Alarm Teleg. Co. v. Xcw York, 31 Fed. 312. Officers as Parties. The joinder of officers who have taken part in the trans- actions about which the suit is brought is proper, although no decree against them personally can be entered, and if the cor- poration is dismissed from the suit for want of jurisdiction, or any other cause, no relief can be obtained against the officers, (Eowbotham v. George P. Steel Iron Co. 71 Fed. 758), un- less a joint liability exists, as when alleged misconduct be part of the purpose of the suit. Morse v. Bay State Gas Co. 91 Fed. 944; Sidway v. Missouri Land & Live Stock Co. 116 Fed. 386; Geer v. Matthieson Alkali Works, 190 U. S. 435, 47 L. ed. 1126, 23 Sup. Ct. Eep. 807. The answer of the cor- poration should be made by the principal officers, who shoiild be able to admit or deny the allegations of the bill, or state want of knowledge clearly and truly. Hale v. Continental Ins. Co. 16 Fed. 718. For this purpose they should be made par- ties to the bill. O'Brien v. Champlain Constr. Co. 107 Fed. 338; Continental Xat. Bank v. Heilman, 66 Fed. 184. Answer is not evidence. United States v. McLaughlin, 24 Fed. 823. Affirmative Relief in Answer. You cannot ask affirmative relief in an answer, the only prayer is for dismissal. Hill v. Evan Grocery Co. 23 C. C. A. 624, 41 U. S. App. 714, 78 Fed. 28, top. If you are en- titled to affirmative relief in the case, you can only obtain it by cross hill. Chapin v. Walker, 2 !McCrary, 175, 6 Fed. 794; Hill V. Eyan Grocery Co. 23 C. C. A. 624, 41 U. S. App. 714, 78 Fed. 22; Armstrong v. Chemical Xat. Bank, 37 Fed. 466; Loekwood v. Cleaveland, 6 Fed. 723. But, as stated before, it is not meant that you cannot set up new matter which is a defense, though not responsive to the allegations of the bill. Adams v. Bridgewater Iron Co. 6 Fed. EFFECT OF ANSWEE. 443 179; Bower Barff Kustless Iron Co. v. Wells Rustless Iron Co. 43 Fed. 391. While this is the rule, yet it has been held that where new matter was set up in the answer, and aiBrmati^e relief asked, and the ease went to hearing without objection that it should have been set up by cross bill, the court may treat the answer as a cross bill and grant affirmative relief. Coburn v. Cedar Valley Land & Cattle Co. 138 U. S. 221, 34 L. ed. SS6, 11 Sup. Ct. Eep. 258; Moran v. Hagerman, 12 C. C. A. 239, 29 U. S. App. 71, 64 Ted. 500; Book v. Justice Min. Co. 5S Ped. 827. See Lockwood v. Cleaveland, 6 Fed. 724, and American Clay Bird Co. v. Ligowski Clap-Pidgeon Co. 31 Fed. 467; Bradford v. Union Bank, 13 How. 69, 70, 14 L. ed. 54, 55. CHAPTEE LXXrV. PEOCEDUEZ APTEE FILING ANSWEE. By equity rule 18 the answer must be filed, iinless time ex- tended for cause shown, on the rule day succeeding that of en- tering his appearance; unless, of course, a demurrer or plea has been filed, then the answer must be filed on the rule day next succeeding the disposition of the plea or demurrer, or at such time as the court may indicate after hearing the plea or demurrer. The answer having been filed within the time pre- scribed by the rule, the plaintiff has until the next succeed- ing rule day to do one of three things : First, to set down the cause for hearing on bill and answer ; second, to file exceptions to the answer ; third, to file a replication to the answer. Should the answer set up a want of parties, prompt action must be taken by the plaintiff, as hereafter indicated, and such action must be taken in advance of the steps above stated as the rule requires action within fourteen days from filing the answer. Equity rule 52. Setting Down on Bill and Answer. Should in your opinion the answer be legally insufficient, you must set down the case for hearing on bill and answer. Crouch V. Kerr, 3S Fed. 550; Banks v. Manchester, 12S U. S. 251, 32 L. ed. 427. 9 Sup. Ct. Eep. 36. This is equivalent to demurring to the answer, for you cannot file a demurrer to an answer in equity. Grether v. Wright, 23 C. C. A. 49 S, 43 U. S. App. 770, 75 Fed. 742; Blanton v. Chalmers, 15S Fed. 909; Pennsylvania Co. v. Bay, 13.5 Fed. 206; Walker V. Jack, 31 C. C' A. 462, 60 U. s' App. 124. 88 Fed. 576; Besson v. Goodman, 147 Fed. 857 ; Barrett v. Twin City Power Co. Ill Fed. 49. Xor can you reach legal insufficiency by ex- ceptions to the answer or motion to strike out. Stokes v. Fams- 444 PEOCEDUEE AFTEE FILI^^G ANSWEE. 445 worth, 99 Fed. 836. When the case is set down on bill and answer for hearing, it means that you submit to the court the legal sufficiency of the answer ; that admitting the facts of the answer to be true as alleged, they show no reason why the relief prayed for in the bill should not be granted. See authorities above. Setting down also waives irregularities in answer that could be met by exceptions. Besson v. Goodman, 147 Fed. 887. As stated, there is no such thing as a demurrer to an answer, nor, in fact, to any defensive pleading in equity. If you should file a demurrer, it can on motion be stricken out, or the defendant may disregard it, and enter an order in the order book dismissing the bill after the rule day next succeed- ing the filing of the answer. Crouch v. Kerr, 38 Fed. 550; Barrett v. Twin City Power Co. Ill Fed. 45 ; Grether v. Wright, 23 C. C. A. 498, 43 U. S. App. 770, 75 Fed. 742-744; Walker v. Jack, 31 C. C. A. 462, 60 U. S. App. 124, 88 Fed. 676. Setting down on bill and answer, then, raises only an issue of law, and on hearing, the allegations of the answer are con- sidered true for the purpose of arguing the legal effect of the answer. People's United States Bank v. Gilson, 88 C. C. A. 332, 161 Fed. 287; Besson v. Goodman, 147 Fed. 887; Eobin- son V. American Car & Foundry Co. 132 Fed. 165 ; General Electric Co. v. Bullock Electric Mfg. Co. 138 Fed. 412; Lake Erie & W. K. Co. v. Indianapolis Xat. Bank, 65 Fed. 690; United States v. Trans-Missouri Freight Asso. 24 L.R.A. 73, 4 Inters. Com. Eep. 443, 7 C. C. A. 15, 19 U. S. App. 36, 58 Fed. 59 ; United States v. Ferguson, 54 Fed. 29 ; Iowa v. Illinois, 147 U. S. 7, 37 L. ed. 57, 13 Sup. Ct. Eep. 239. Answer Admits Case. Again, the cause may be set down for hearing on bill and answer if answer admits the case, or when in your opinion the admissions in the answer are sufficient to grant you your re- lief notwithstanding the denials. When no Replication Filed. Again, you may set down for hearing on bill and answer 446 PEOCEDUEE APTEE FIIIXG A^'SWEK. when ninety days have elapsed after replication and no evi- dence taken. McGorray v. O'Connor, 31 C. C. A. 114, 59 U. S. App. 452, 87 Fed. 586. Or you may set down for hear- ing after replication filed on pleadings, without evidence in this case the answer is taken as true, and only allegations not denied by the answer will be considered. Robinson v. Ameri- can Car k Foundry Co. 132 Fed. 165, and cases cited. Who ^lust Set Down Case on BiU and Answer. The plaintiff must set down the case for hearing on bill and answer, and it must be done on or before the rule day after the answer is filed ; but where the motion is for a decree on bill and answer, it can only be heard in open court. Campbell Print- ing Press & Mfg. Co. v. Manhattan Elev. E. Co. 48 Fed. 344. Form of Setting Down, etc. Title as in bill. To the clerk of the Covnt of the United States in and for District of : You will please set down the above cause for hearing on bill and answer to he heard on the day of , A. D., 19 ... , the same being the rule day in (month), or as soon thereafter as practicable. E. F., Solicitor. If the purpose is simply to test the legal sufficiency of the answer, it can be heard on any rule day, or in chambers on any day appointed, but if the purpose is to have a final decree entered for the plaintiffs, the cause should be put on the calen- dar for hearing at the next term of the equity court. Ibid. The hearing, being in effect only on the legal sufficiency of the answer, is only a part of the procedure for preparing a case for trial on its merits, all of which can be heard on rule days, or in chambers at such times as the court may appoint. If the judgment of the court is that the answer is insufficient in law, it will be so entered, and leave given to amend under such terms as the court may direct. If, however, the answer is of such a character that it cannot be amended, the court will still enter a judgment that the answer is insufficient, and hold the case over untU the regular term, when a final decree can be PEOCEDUR±; AFTER FILING AXSWEE. 447 entered in open court. Yon cannot on motion strike out the answer as a sham, though it be untrue, if it answers the bill. See Stokes v. Farnsworth, 99 Fed. 838; Adams v. "Western Maryland K. Co. 161 Fed. T77. If the answer should be held sufficient, then the plaintiff must ask leave to file a replication, and if granted, must file it by the next rule day, or within such time as the court may fix. If the plaintiff fails to do so, the defendant may dismiss the bill as of course by filing an order of dismissal with the clerk, a form for which will be given under "Dismissal by the Defendant." By equity rule 66 the judge may allow on motion for cause shown the replication to be filed nunc pro tunc, the plaintiff agreeing to speed the cause and submit to such terms as the court may require. The court will generally permit the replica- tion to be filed if the delay has not retarded the taking of evi- dence. Fischer v. Hayes, 19 Blatchf. 26, 6 Fed. 76. (See "Replication.") CHAPTEE LXXV. EXOEPTIOH'S TO AlfTSWEE. If the answers to the bill are not responsive, or if they are evasive, prolix, or otherwise impertinent, you must meet it by exceptions to the answer. Exceptions to an answer are not demurrers, as no questions of law are raised by them. Bar- rett V. Twin City Power Co. Ill Fed. 46; Walker v. Jack, 31 C. C. A. 462, 60 TJ. S. App. 124, 88 Fed. 576 ; Stokes v. Farnsworth, 99 Fed. 838. They go to the answer only as evi- dence, and not as a pleading; and your objections because the answers are not responsive, but evasive or impertinent, are simi- lar to the exceptions you would file to the answers to interroga- tories when not responsive, or irrelevant, or any other ground of insufficiency (Stokes v. Farnsworth, 99 Fed. 836; Walker V. Jack, 31 C. C. A. 462, 60 U. S. App. 124, 88 Fed. 576), as being argumentative or impertinent. Barrett v. Twin City Power Co. Ill Fed. 46 ; Schultz v. Phenix Ins. Co. 77 Fed. 390; Adams v. Bridgewater Iron Co. 6 Fed. 180. We see, then, exceptions to an answer raise only the question as to the sxifficiency in fact, and not in law, as a response to the charges in the biU, and it is alone with this character of exceptions that the rules of equity deal. When the bill is fully answered, you cannot except for insufficiency because of new matter which is irrelevant, but you may except to the new matter as imperti- nent. Barrett v. Twin City Power Co. Ill Fed. +5 : Penn- sylvania Co. V. Bay, 138 Fed. 206 ; Whittemore v. Patten, 84 Fed. 51; Green v. Aurora E. Co. 158 Fed. 909. Xor can you except to an answer for failure to admit or deny an allega- tion of the bill that is not material. Peters v. Tonopah Min. Co. 120 Fed. 587. When bills of discovery were necessary and common, or seek- ing discovery through interrogatories in the bills (equity rules 448 EXCEPTIOM'S TO ANSWER. 449 41, 42, 43), and the defendant thus required to testify in be- half of plaintiff, the plaintiff had a right to demand direct and specific answers to each interrogatory, as if defendant was on the stand testifying. Exception then to irresponsive or evasive answers was the only method by which the attention of the court was called to the answers, and the defendant made to answer directly. It is now strenuously urged that exceptions to an answer in equity are no longer necessary, as there is no longer any use for bills of discovery, or seeking information through interrogatories in the bill, because parties can testify and you may examine them as any other witness, and as the reason of the rule has ceased, the rule should be abolished. Ex parte Boyd, 105 U. S. 657, 26 L. ed. 1204; Field v. Hast- ings & B. Co. 65 Eed. 279. In United States v. McLaughlin, 24 Eed. 825, the court says that filing exceptions is a useless waste of time. It asks, why press the defendant to a direct denial under oath, which sustains his case, and you are forced to overcome it by more evidence than is necessary otherwise. It was further decided in this case, that exceptions for insufficiency only applied to matters of discovery where it was necessary for plaintiff to rely on the defendant for evidence to prove his case, and that the foundation for an exception was a sufficient allegation, and a sufficient interrogatory, but that when the bill was simply for relief, and sought no discovery by direct interrogatories, or when the oath to the answer was waived, that exceptions to the answer would not lie. This reasoning led up to the conclusion that inasmuch as the answer of a corporation was under seal, and not under oath, no exceptions would lie to it. Ibid. In Field v. Hastings & B. Co. 65 Fed. 279, Judge Shiras says that since parties to a suit have been made witnesses and discovery become obsolete, and the rules for testing answers wherein discovery was sought are no longer guides for determining their sufficiency, the question now is whether the answer is sufficient as a pleading, and not as a response to an interrogatory. I have thus given the objections that have been interposed to the further use of exceptions ; yet there are other conditions that mav be eonsiderfd, for still retaining the practice. It will be noticed that while equity rule 40 provides that it is not now S. Eq.— 29. ■450 exceptio:j<^s to answes. necessary to interrogate the defendant in the bill (Wliittemore V. Patten, 84 Fed. 53), yet by equity rules 41, 42, 43, 44 the practice is still provided for. By equity rule 61 the plaintiff is allowed until the rule day succeeding the filing of the answer to except to it for insuf- ficiency. Thus we see that, notwithstanding the fact the stat- ute permits parties to testify, yet the Supreme Court has not changed this rule requiring exceptions to be filed, or the answer will be taken as sufficient. Exceptions are often necessary to bring out the fact that the answer is insufficient as a defense, and you are justified in setting down the case on bill and answer without taking further testimony. Again, an interrogatory may be adroitly put in a bill, which, with the aid of exceptions to force a direct answer, may end the litigation. Effect of Waiving Oath on Exceptions to Answer. The fact that oath to an answer is waived does not deprive you of the right to file exceptions to the answer, and equity rule 41 does not mean that any admissions you may force from your adversary by exceptions properly made would not be as effective as evidence, as if they were sworn to. Whittemore v. Patten, 81 Ped. 527 ; Field v. Hastings & B. Co. 65 Ped. 279 ; John Church Co. v. Zimmermann, 131 Ped. 653, see Barrett V. Twin City Power Co. Ill Ped. 46, 47. See Contra Til- linghast v. Chace, 121 Ped. 436. If the waiver of an oath prevented exceptions, then a corporation which answers under seal could by shuffling evasion avoid explicit answers, and leave you to pursue indecisive issues. ISTational Hollow Brake Beam Co. V. Interchangeable Brake Beam Co. 83 Ped. 28 ; Gamewell Pire-Alarm Tel. Co. v- Jfew York, 31 Ped. 312; Colgate v. Compagnie Prancaise du Telegraphe, 23 Blatchf. 86, 23 Ped. 82. Again, exceptions to an answer are not confined to bills of discovery. The complainant is entitled to an answer to every material allegation of his bill, whether oath waived or not. He has a right to know what is admitted and what denied and what he must prove (McClaskey v. Barr, 40 Ped. 511 ; Whittemore V. Patten, 81 Ped. 528), and there is no more efficient way to EXCEPTIONS TO ANSWER. 451 do it than by exceptions to the answer, but exceptions must go to material allegations. Peters v. Tonopah Min. Co. 120 Fed. 587; Brown v. Pierce, 7 Wall. 211, 212, 19 L. ed. 135, 136; Commonwealth Title Ins. & T. Co. v. Cummings, 83 Fed. 768. Before passing on, I will state that it has been held that a motion to strike out portions of an answer that are evasive or objectionable is an appropriate remedy. Peacock v. United States, 60 C. C. A. 389, 125 Fed. 586, and authorities cited. However, while discretionary with the court, it should not be encouraged. Form of Exceptions. Having concluded to except to the answer, you can use the following form : Title as in bill. Exceptions of A. B., plaintiff, to the answer of C. D., defendant, for insufficie-cy, etc. And now comes the plaintiff and excepts to the answer of the defendant filed herein and for cause of exception shows: First. That defendant has not answered to the best of his knowledge, remembrance, information, and belief, whether, etc. Second. That the answer of the defendant to the allegation of the bill charging, etc., is evasive and not responsive, etc. Third. That the answer of the defendant to, etc., is scandalous and impertinent in this, etc. In all of which particulars plaintiff excepts, because by reason thereof said answer is irresponsive, evasive, imperfect and insufficient, and plain- tiff prays that defendant be compelled to put in a full and sufficient answer to the matters herein complained of. R. F., Solicitor Your exception should set forth the charges in the bill, and the answers as made that are excepted to, and showing in what the insufficiency consists, or that it is obnoxious to the objec- tion made. Equity rules 27, 61, 65 ; Schultz v. Phenix Ins. Co. 77 Fed. 376 ; Fuller v. Knapp, 21 Fed. 100 ; Whittemore V. Patten, 84 Fed. 53; Bower Barff Rustless Iron Co. v. Wells i52 EXCEPTIOXS TO A^iSWEB. Kustless Iron Co. 43 Fed. 391 ; Blanton v. Chalmers, 158 Fed. 907, — illustrative cases. Exceptions for scandal and imperti- nence will not be sustained if the bill justifies it. Equity rule 27 ; Comstock v. Herron, 45 Fed. 661. An answer is imperti- nent and liable to exception when it is apparent that the matter set up is not material or relevant, or is stated with needless prolixity. Pennsylvania Co. v. Bay, 138 Fed. 206 ; Greene v. Aurora Co. 158 Fed. 90S. This last exception is not favored, because if the matter set up might be material the exception will not be sustained; or if struck out and it afterwards should appear material on the final trial, the court could not remedy it, and if immaterial the court can disregard it on the trial Again, when new matter is set up in the answer, though it be not responsive to any allegation of the bill, yet if it sets up a substantial defense it cannot be excepted to because ir- responsive. Ibid. And if the paragraph of the answer ex- cepted to is partly good, an exception to the whole will not lie. Board of Trade v. Xational Bd. of Trade, 154 Fed. 238. See Dr. Miles Medical Co. v. Snellenburg, 152 Fed. 662. When an answer has a wrong title, or is not sworn to, an exception wiU not lie ; you must move to strike the answer from the files. Osgood v. A. S. Aloe Instrument Co. 69 Fed. 291. So when the allegations of the bill are immaterial, exceptions will not lie, because they are not answered. Hardeman v. Har- ris, 7 How. 728, 729, 12 L. ed. 889, 890; Peters v. Tonopah Min. Co. 120 Fed. 587. A liberal construction is given to the answer when excepted to. When Exceptions to Be Filed. You must file your exceptions on the rule day after the answer has been filed, unless further time has been granted on motion showing cause (equity rule 61), and upon failure to file exceptions, the answer is taken as sufficient. If the defendant does not submit to the exceptions, and amend his answer by the next rule day after they are filed, as he niay do under equity rule 63, then the plaintiff must set down the exceptions for hearing on the rule day succeeding the EXCEPTIONS TO ANSWEK. 453 rule day upon ■which defendant may have filed his amended answer. Equity rule 63. Set for Hearing. You must set down the exceptions for hearing as follows: Title as in bilL To the Clerk, etc.; You will please enter an order setting down the exceptions filed herein to the answer of defendant for hearing before the Hon , judge, etc., on the day of , A. D. 19. . ., it being the rule day in (month) and the rule day succeeding the failure of the defendant to submit to the exceptions and amend his answer under equity rule 63. E. F., Solicitor. Plaintiff should he explicit in this notice: First, because a failure to set down the exceptions for hearing under the rule would he an abandonment of his exceptions and the answer held sufficient. Second. The rule requires the exceptions to be heard on a rule day, and not any other day. La Vega v. Lapsley, 1 Woods, 428, Fed. Cas. ISTo. 8,123. Third. They must be heard by a judge of the court. Equity rules 61—65. Of course you may on application have the time for hear- ing enlarged, or you may withdraw your exceptions and be per- mitted to file a replication, but otherwise a failure to pursue the rule strictly abandons your exceptions. American Loan & T. Co. V. East & West E. Co. 40 Fed. 384. Exceptions Sustained. If your exceptions are heard and sustained, the defendant is ruled for a better answer by the next rule day, or such time as the court may order, which may be before or after the next rule day. Dr. Miles Medical Co. v. Snellenhurg, 152 Fed. 661. If defendant does not amend, and answer with the re- quired fullness, plaintiff may do one of two things. He may enter an order taking the bill as confessed, or if the answer is 454 EXCEPTIONS TO ANSWEE. necessary to obtain complete relief, or to determine the extent of his decree, then the process of contempt may be used to force an answer. Equity rules 64-18, and see equity rule 39. Exceptions Overruled. If the exceptions are overruled, the plaintiff may either set down the cause for hearing on bill and answer, or file a replica- tion, and this must be done on the rule day succeeding the over- ruling of the exceptions (equity rule 66), or defendant will be entitled to a dismissal of the suit, unless, for cause shown, the judge allows the filing of a replication nunc pro tunc, the plaintiff submitting to speed the cause. Whether the excep- tions be sustained or overruled, the prevailing party is entitled to all the costs occasioned thereby, unless otherwise ordered. Equity rule 65. Exceptions to Answer of Corporations. Although corporations do not answer under oath, exceptions lie to compel a full answer. ITational Hollow Brake Beam Co. V. Interchangeable Brake Beam Co. 83 Eed. 28 ; Gamewell Eire-Alarm Tel. Co. v. New York, 31 Eed. 313 ; Whittemore V. Patten, 81 Eed. 528 ; Colgate v. Compagnie Erancaise du Telegraphe, 23 Blatchf. 86, 23 Eed. 83. CHAPTER LXXVL AMENDING ANSWEE. Equity rule 60 provides that an answer may be amended as of course in any matters of form, or filling up a blank, or correct- ing a date, or reference to a document, or other small matter, at any time before the cause is set down for hearing on bill and answer, or before a replication is filed ; but whatever amendment is made the answer must be resworn. Gubbins v. Laughtenschlager, 75 Eed. 615 ; Schultz v. Phenix Ins. Co. 77 Eed. 389, 390. See Hardin v. Boyd, 113 U. S. 756, 28 L. ed. llil, 5 Sup. Ct. Eep. 771, and Eberly v. Moore, 24 How. 147, 16 L. ed. 612, as to the discretion of the court in amending. After setting down for hearing, or after replication, you can- not amend in any material matter, as by adding new facts or defenses, or by qualifying or altering the original answer, un- less by leave of the court if in session, or by the judge if in vacation. Gubbins v. Laughtenschlager, 75 Fed. 615; Bass v. Christian Eeigenspan, 82 Eed. 260. You must make the ap- plication by motion showing cause for the amendment, and sup- ported, if required, by affidavit, and due notice given to the adverse party. When the court gives the leave to amend, he may order the amendment separately engrossed and added as a distinct amendment to the original answer, so as to be dis- tinguished therefrom. Equity rule 60 ; U. S. Eev. Stat. Sects. 754, 954, U. S. Comp Stat. 1901, pp. 593, 696 ; United States V, American Bell Teleph. Co. 39 Fed. 716. Equity rule 63 provides that the defendant may amend his answer when he admits the exceptions taken by plaintiff. Equity rule 64 provides that if the exceptions be sustained on hearing, the defendant may amend by putting in a complete answer. Equity rule 46 provides that when an amendment to the bill 455 456 AMENDIS^G ANSWEE. shall be made after answer filed, the defendant shall put in a new or supplemental answer. Perkins v. Hendryx, 31 Fed. 522. Thus having grouped the rules affecting amendments to answers, it is seen that an amendment lies of course before setting down for hearing on bill and answer, which we have seen is in effect a demurrer to the answer, or before filing a replication which puts the answer in issue. These amendments can be made in any manner not involving the injection of new matter in the answer, or changing the allegations of the answer, but even when the amendments are made with reference to formal matters the answer must be resworn. Formal amend- ments are simply filed in the clerk's office and made a part of the record (equity rule 60), but no material amendment can be made to the answer after filing it, without application to the court, and if the amendment is sought after setting down for hearing on bill and answer or after replication, you must not only make application to the court, but must serve a notice of the application and amendment on opposite counsel, and the time and place the application will be made. The application may be made in vacation or term time, and in the following manner: Title as in biU. And now comes C. D., the defendant in the above cause, and moves the court for leave to file the following amendments to the answer filed in this cause on the day of , A, D. 19. . ., to wit: On second line of first page, after words "and defendant," insert the following allega- tion (state it) ; and on sixth line of seventh page expunge all after the words, etc., to the words, etc., or expunge and insert (state it). That said amendments are material and necessary to a proper defense of the case, and that the matters set up by way of amendment were not known to defendant prior to filing the original answer (or, if known, show that they were not incorporated through inadvertence or mistake, or perhaps the materiality may have arisen since filing the original answer). Wherefore he prays that said amendments be allowed and be considered as a part of the answer on the hearing of the cause. E. F., Solicitor. If the amendment makes a material alteration in the allega- tion, or if new facts are added, the motion should be sworn to AME^'DING ANSWER. 457 by the defendant. Schultz v. Phenix Ins. Co. 77 Fed. 389, as to affidavit. Ibid. 388. Notice of the motion must be given to the adverse party as foUoTvs : To A. B., PlaintiflF, or E. S., his Counsel of Record: Please taie notice that I have filed a motion for leave to amend the answer heretofore filed by the defendant in this cause, a copy of which motion containing the amendments sought is hereto attached for your information. I will present said motion on the day of , A. D. 19. . ., or as soon thereafter as practicable, to his Honor, judge, etc., at R. F., Solicitor. You may file the motion and attach a copy of the amend- ments sought both to the motion and notice. Ibid. ; Stokes v. Famsworth, 99 Fed. 837. If the order to amend is granted by the court, prepare it as f oUows : Title as in bilL This cause coming on to be heard in chambers (or in open court) on the motion of defendant to amend his answer, and both parties having appeared (or it appearing that notice was served on plaintiff and he came not), and the court being fully advised of the amendments sought to be made to the answer of defendant heretofore filed in this cause on the day of , A. D. 19. . ., it is hereby ordered, adjudged, and decreed that the motion be granted and that the amendments as set forth in the motion be separately engrossed (unless they are so presented with the motion), and the clerk of the court is hereby ordered to file the same as of the date of this order as amendments to the original answer. Judge, etc. This and all other forms given are mere general directions in the successive steps of a suit in equity, which you may use or improve upon, as you deem best. The order will be entered by the clerk as a part of the pro- ceedings, and the amendments will be filed by him as a plead- ing in the cause. The courts apply a somewhat different rule in granting amendments to answers than in granting them to bills. The 458 AMENDING ANSWEE. answer, uiiless oath is waived, is a sworn declaration of a party as if on the stand testifying to charges made by him, or to ques- tions m.aterial to the issue. Once the answer is filed and sworn to, amendments will not ordinarily be permitted when they are rendered necessary by negligence, inattention, or the indif- ference of the defendant. Being a sworn defense, the reason for amendments must be cogent and satisfactory, and it must appear that the fact to be added, or the statement to be altered, or mistake to be corrected, must be both material and probable. Gardner v. Grossman, 11 Fed. 851. Again, when the facts sought to be set up by amendment were known to the defendant when the answer was filed, the court should hesitate before permitting the litigant to experi- ment with the court's discretion. Gubbins v. Laughtenschlager, 75 Fed. 624; Eitchie v. McMuUen, 25 C. C. A. 50, 47 U. S. App. 470, 79 Fed. 522; Cross v. Morgan, 6 Fed. 244, 245. An amendment that conflicts with allegations in the original answer should not be permitted. They cannot both be true; and it is permitting one under oath to juggle with the truth, if allowed. It is a rule that when in equity conflicts occur in allegations, the court resolves the doubt by striking out both allegations. Ozark Land Co. v. Leonard, 24 Fed. 660. If a mistake has been made in an allegation, you should apply to amend by expunging the original allegation and substituting for it the true allegation, and in such amendment you must ex- plain the mistake if the answer is sworn to. See "Supple- mental Answer." Of course, an answer may be amended by consent. Stokes v. Famsworth, 99 Fed. 836. Such are the general guides to amending answers. While it is admitted that many cases have arisen in which Federal judges have not followed the rules, or recognized any limita- tions on their discretion, yet such action is only the law of the particular case, and cannot be considered authority to be fol- lowed; it only tends to emphasize a somewhat prevalent idea that what you may or may not do in an equity suit in a Federal court depends on the condition of the judge's conscience, and not upon rule. It is regretted that there is abundant reason for saying that equity practice is uncertain, but much of the uncertainty with which it is surrounded has arisen from an ignorance of the AMENDING ANSWER. 459 rules, both by judges and counsel. It is a failure to follow the rules, or require a strict adherence to them, that produces inextricable confusion, and the inevitable sword of discretion must come to the rescue, and cut the Gordian knot. Thus we have precedent set up unsupported by rule or reason. I am aware that a fixed rule cannot apply to all cases, and that the ends of justice should not be sacrificed to form, or the rigidity of an ordinance. Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Eep. 771, yet this does not justify an abandonment of all effort to make counsel follow the rules and ordinances that the wisdom of the past has formulated as the best and most expeditious way of maturing a case in equity for final hearing. If the Federal judges would require a stricter adherence to the rules in equity than now prevails, and with- hold their discretion, when ignorance or negligence has been the cause of some default in the progress of an equity suit, it would soon remove the reproach of uncertainty and infinity that attaches to a cause when it gets into "chancery." Amendment After Cause Ready for Searing. An amendment to an answer after cause is ready for hear- ing should rarely ever be permitted, especially where the amend- ment makes substantially a new defense. Ritchie v. McMuUen, 25 C. C. A. 50, 47 U. S. App. 470, 79 Fed. 529 ; Southern E. Co. V. Xorth Carolina Corp. Commission, 105 Fed. 270; Wal- den V. Bodley. 14 Pet. 160, 10 L. ed. 400 ; Hicks v. Otto, 85 Fed. 728 ; Spill v. Celluloid Mfg. Co. 22 Blatchf. 441, 22 Fed. 96. Thus in Salisbury v. Bennett, 72 Fed. 743, leave to amend by setting up the statute of limitation was refused. Amend- ments of this character, of course, must be addressed to the sound discretion of the court, but there must be strong reasons to justify the delay that would be occasioned by permitting it ; the conditions surrounding and the evidence taken in the case will be looked to, to determine the matter. Ritchie v. McMul- len, 25 C. C. A. 50, 47 IJ. S. App. 470, 79 Fed. 522-529; equity rule 60 ; Ibid. In Hamilton v. Southern ^NFevada Gold & S. Min. Co. 33 Fed. 568, 15 Mor. :\lin. Rep. 314, a party was permitted to amend an answer at the hearing to conform to the proof, but a refusal to amend after hearing was held in 460 AMENDISTG AUSWEE. Roberts v. Northern P. E. Co. 158 U. S. 26, 39 L. ei 882, 15 Sup. Ct. Rep. 756, not to be error. See illustrative case, Xaretti v. Scully, 131 Fed. 399. (See Amending Bill, Cbapt. 61 at and after trial) Supplemental Answer. By equity rule 46 it is provided that in every case where an amendment shall be made to the bill after answer filed, the defendant shall put in a new or supplemental answer on or be- fore the next succeeding rule day. Perkins v. Hendryx, 31 Fed. 523. Again, a supplemental answer may be filed when defendant discovers that he has made a mistake, or unintentionally mis- stated a fact in his original answer, but as before stated, this may also be done by amendment. Form for Demurring, Pleading, and Answering at the Same Time. Having now given the forms and rules for demurring, plead- ing, or answering in equity, I will now give a general form for demurring to a part, pleading to a part and answering to a part of the bill at the same time, which we have seen can be done. Title as in bill. And now comes the defendant and, not admitting any of the matters contained in the bill to be true as alleged, demurs to so much of the bill as sets forth (here state part of bill demurred to) and for cause of demurrer shows (here set forth cause). Wherefore he prays judgment of the court whether he shall be required to answer further the parts of the bill demurred to. Oath and certificate. E. F., Solicitor. n. And without waiving the foregoing demurrer, but relying thereon, de- fendant says that so much of the said hill as alleges (here insert part of bill to which you plead), he comes and plead thereto and doth aver (here AMENDING ANSWEE. 461 set forth grounds of plea), and defendant prays the court whether he shall further answer the part of the bill here pleaded to. Oath and certificate. E. F., Solicitor. III. And defendant, not waiving either the plea or demurrer for answer to the residue of the bill, or so much thereof as he is advised is material to be answered, comes and says (here answer the residue and set forth such other matters as may be a defense to the part answered ) . Wherefore defendant prays to be dismissed with costs, etc. Verification. E. F., Solicitor. CHAPTEK LXXVIL EEPLICATIOK. Before taking up the discussion of the cross bill, which is in the nature of an answer, I will discuss the last step in the plead- ing which fixes the issues, and prepares the case for taking tes- timony. This pleading is called a "replication." After the answer has been filed, you have until the next rule day to file a replication, unless you set down for hearing on bill and answer, or except to the answer. Whatever proceeding you take, you have always until the next rule day succeeding the disposition by the court of the proceeding taken by you to file your replication, unless the court should fix another time. Equity rule G6 provides that when the answer has not been excepted to, or shall be deemed sufficient, the plaintiff shall file the general replication on or before the next succeeding rule day thereafter, and upon filing the replication the cause shall be deemed at issue without further pleading on either side. Heyman v. Uhlman, 34 Eed. 686 ; Hendrickson v. Brad- ley, 29 C. C. A. 303, 55 U. S. App. 715, 85 Fed. 508. If the plaintiff shall omit to file such replication, the defendant shall be entitled as of course to an order dismissing the suit. Ibid. See Chap. 78 for form of dismissal. Harrington v. Union Oil Co. Hi Eed. 235; see United States v. Barber Lumber Co. 169 Eed. 184. . But not after the cause has been set down for hearing on bill and answer. Eeynolds v. Eirst Xat. Bank, 112 U. S. 409, 28 L. ed. 735, 5 Sup. Ct. Kep. 213. Effect of Replication It denies every allegation of the answer on plea not respon- sive to the bill, and puts defendant on proof. Cavender v. Cavender, 3 McCrary, 158, 8 Eed. 641; Lewis Pub. Co. v. Wyman, 168 Eed. 756; Humes v. Scruggs, 94 U. S. 22, 24 462 EEPLICATION. 463 L. ed. 51; Stratton v. Essex County Park Commission, 64 Fed. 901. The legal snfEcieney of the answer is waived (Sprague v. Provident Sav. & Trust. Co. 90 C. C. A. 71, 163 Fed. 452 ; see ilcAleer v. Lewis, 75 Fed. 734; Perry v. Godbe, 82 Fed. 141) ; but no substantial insufficiency as an answer or plea as to the facts set forth to constitute a defense (Butler Bros. Shoe Co. v. United States Eubber Co. 84 C. C. A. 167, 156 Fed. 1—5 and cases cited. See Green v. Bogue, 158 U. S. 478-499, 39 L. ed. 1061-1068, 15 Sup. Ct. Eep. 975). Again, we have seen that where a case is set down for hear- ing on bill and answer, all the facts well pleaded in the answer are taken as true, whether responsive or not. Banks v. Man- chester, 128 U. S. 244, 32 L. ed. 425, 9 Sup. Ct. Eep. 36. But where a replication has been filed to the answer, and the case set down for hearing on bill, answer, and replication, then only those allegations of the answer that are responsive to the bill are taken as true. All matters pleaded in avoidance, and new matter in the answer not responsive, are taken as untrue. People's United States Bank v. Gilson, 88 C. C. A. 332, 161 Fed. 291. Equity rule 45 provides that no special replication to any answer shall be filed, but if any matter alleged in the answer shall make it necessary, the plaintiff must amend his bill to meet the matter set up in the answer and he may have leave to amend his bill, with or without cost, as the judge may di- rect. So we see that the office of a replication is simply to put in issue the answer and assert the truth of the original bill. All pleading ceases, and you are ready to begin taking testi- mony. The replication is in the following form: Title as in bill. And now comes A. B., plaintiff in the above cause, and replying to the answer filed herein says that, saving and reserving all manner of excep- tions to the insufficiency of the answer, for replication thereto doth say that his bill is true and suiBcient as averred, and that he is ready to provi^ it, and that the answer of the defendant is untrue and insufficient. Wherefore he prays relief as set forth in his original bill. E. F., Solicitor. 464 BZPLICATIOIf. You must remember two things in. preparing and filing your replication : First. That the replication cannot he used to set up new matter, or matter in confession and avoidance of the answer; if you do, the replication can be stricken out on motion and your bill dismissed as of course, if further time to file it is not granted by the court. Mason v. Hartford, P. & F. E. Co. 10 Fed. 334; Vattier v. Hinde, 7 Pet. 274, 8 L. ed. 6S3. If there is an allegation in the answer to be met by confes- sion and avoidance, you must amend your biU, you cannot set it up in the replication ; so if there be new matter in the answer to be met, you must do it by amendment of your bill, and not in your repKcation, and to amend for these purposes special leave of the court must be obtained. Equity rule 45. If a statute is pleaded in the answer, and you wish to bring yourself within its exceptions, if any, you must set it up by amending your bill. Vattier v. Hinde, 7 Pet. 274, 8 L. ed. 683 ; Mason v. Hartford, P. & F. E. Co. 10 Fed. 335. If there are many defendants and they file separate answers, you must file separate replications to each answer, without reference to the state of the pleadings of any other defendant, or the stage in the cause they have reached. The further effect of the general replication is to admit the legal sufficiency of the answer. Equity rule 38. Second. The replication must be filed in the time required by the rule as given above, or your biU can be dismissed as of course. Blue Eidge Clay & Eetort Co. v. Floyd- Jones, 26 Fed. 817 ; Hendrickson v. Bradley, 85 Fed. 509 ; Heyman v. Uhhnan, 34 Fed. 686 ; Harrington v. Union Oil Co. 144 Fed. 235. But court may permit it filed nunc pro tunc. Fischer V. Hayes, 19 Blatehf. 26, 6 Fed. 76; Washington, A. & G. E. Co. V. Bradley (Washington, A. & G. E. Co. v. Washington), 10 WaU. 302, 19 L. ed. S95. The replication must be general, simply putting in issue the facts stated in the answer, whether of new matter or otherwise. Humes v. Scruggs. 94 U. S. 24-28, 24 L. ed. 52-54; Stratton v. Fssex County Park Commission, 164 Fed. 901. It cannot be used as an exception. Eobinson v. American Car Co. 68 C. C. A 331, 135 Fed. 693. But while it is tlius a general denial, it does not deprive plaintiff of the benefit of the ad- EEPLICATION. 465 missions in the answer. Cavender v. Cavender, 3 McCrary, 15S, S Fed. 641. As said, the replication ends the pleadings. You cannot demur to a replication. United States v. Coos Bay Wagon Road Co. 110 Ted. 865. But while you cannot demur, you may move to strike out. Stratton v. Essex County Park Commission, 164 Fed. 903. "While it is irregular to go to trial without a replication, yet if the case has been heard without objection on this ground, it will not be noticed. Wash- ington A. & G. R Co. V. Bradley (Washington A. & G-. E. Co. V. Washington), 10 Wall. 302, 19 L. ed. 895; J, S. Keator Lumber Co. v. Thompson, 144 U. S. 437, 36 L. ed. 496, 12 Sup. Ct. Eep. 669. S. Eq.— 3a CHAPTEE LXXVllL DISMISSAL OF THE CASE BY DEFENDAITT. Having discussed the order of pleading in equity, I -will here call jour attention to the equity rules providing for a dis- missal of the case by defendant during the successive steps in the pleading. By equity rule 38 it is provided that if the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument on the rule day when the same is filed, or the next rule day succeeding, he shall he deemed to admit the truth or sufficiency of said plea or demurrer, and his bill shall be dis- missed as of course by the defendant, unless further time is allowed by the judge. By equity rule 66 when the plaintiff fails to file a replica- tion within the time required, the defendant shall be entitled to an order as of course for the dismissal of the bill, and the suit shall thereupon stand dismissed, unless for cause shown the court upon motion shall allow a replication to be filed nunc pro tunc. Gregory v. Pike, 15 C. C. A. 33, 21 TJ. S. App. 658, 33 U. S. App. 76, 67 Fed. S37. These rides for dismissal are explicit, and need no explana- tion further than has been given. A form for dismissal under equity rule 38 has already been given. Under equity rule 66 you address the following notice to the clerk: To the Clerk, etc.: The plaintiff in the above cause having failed to file a replication to the answer heretofore filed on the day of , A. D. 19 ... , bv the defendant, as required uuder equity rule 66, you will please enter an order dismissing the suit as authorized by said rule. R. F., Solicitor. i66 DISMISSAL OF THE CASE BY DEFENDANT. 467 After this order has been entered in the order book in the clerk's office, the plaintiff -will not be permitted to file his replication except upon motion for cause shown, which, when not apparent of record, must be supported by affidavit. Again, when the answer completely denies all the equities in the bill, and the plaintiff files no replication putting in issue the allegations of the answer, the bill will be dismissed on mo- tion by the defendant for want of equity. Parker v. Concord, 39 Fed. 718. The defendant may move to dismiss the suit when the want of jurisdiction is apparent, instead of demur- ring; especially is this proper when it is probable that the de- fect caimot be cured by amendment, as it is more expeditious. So after the evidence is taken and the cause fully prepared for final hearing, if it is developed in the evidence that the court is without jurisdiction on the ground alleged, the defend- ant may by motion have the bill and proceedings dismissed. In either case you may use the following form: Title as in bill. And now comes the defendant and moves the court to dismiss the bill filed in this cause with the proceedings had thereon, because it appears from said bill (or from the evidence, etc.) that this court has no jurisdic- tion in said cause, for that First. Because of want of diversity of citizenship, etc. (or it appears from the evidence that the diversity, etc. ) , upon which the suit is based is not alleged or shown. Second. Xo Federal question is shown, etc. Third. That the amount or value does not exceed, etc. (or whatever may be the ground for dismissal). Wherefore defendant prays that the bill and proceedings had thereon be dismissed. E. F., Solicitor. This motion may be filed at any time during the progress of the cause. Vannerson v. Leverett, 31 Fed. 376 ; Blythe v. Hinckley, 84 Fed. 246 ; Simon v. House, 46 Fed. 319, 320 ; United States ex rel. Mcintosh v. Crawford, 47 Fed. 566 ; Covert V. Waldron, 33 Fed. 311 ; Morris v. Gilmer, 129 U. S. 325, 32 L. ed. 693, 9 Sup. Ct. Kep. 289. There is no particu- lar mode prescribed by which the fact should be brought to the attention of the court, but, however done, due notice to the 468 DISMISSAL OF THE CASE BY DEFENDANT. parties to be affected by the dismissal should be given. Ibid. 326. See Mackaye v. Mallory, 80 Fed. 256, when defendant cannot dismiss for want of prosecution. Death of Complainant. The representatives of the deceased may revive the suit, but if no steps are taken in a reasonable time to do so, the de- fendant may move to dismiss. Brown v. Fletcher, 140 Fed. 639. Again a codefendant may move to dismiss where com- plainant has not brought before the court a necessary party named as defendant in the bill. Jessup v. Illinois C. R. Co. 36 Fed. 735 ; Jackson v. Hooper, 171 Fed. 597. CHAPTEK LXXIX CROSS BILL. Nature of. A cross bill is in the nature of an answer. It is a pleading by defendant, and becomes necessary whenever from the nature of the case the defendant is entitled to affirmative relief. New- ton V. Gage, 155 Fed. 608 ; Weathersbee v. American Freehold Land Mortg. Co. 77 Fed. 524; North British & M. Ins. Co. V. Lathrop, 17 C. C. A. 175, 25 U. S. App. 443, 70 Fed. 433 ; Kickey Land & Cattle Co. v. Wood, 81 C. C. A. 218, 152 Fed. 23 ; Springfield Mill Co. v. Barnard & L. Mfg. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 261; Commercial Bank V. Sandford, 103 Fed. 99 ; Jackson v. Simmons, 39 C. C. A. 514, 98 Fed. 768 ; Gilmore v. Bort, 134 Fed. 661. As we have seen, the only prayer of an answer is for dismissal of the bill, and from its very nature cannot support affirmative relief, as it can only be made a response to the charges in the bill. Tur- ner V. Southern Home Bldg. & L. Asso. 41 C. C. A. 379, 101 Fed. 316; Washington, A. & G. E. Co. v. Bradley (Washing- ton, A. & G. E. Co. V. Washington), 10 Wall. 299, 19 L. ed. 894; Wood v. Collins, 8 C. C. A. 522, 23 U. S. App. 224, 60 Fed. 142. Therefore, if the defendant finds himself entitled to affirmative relief, he must file a bill as if instituting an original suit, which is called a cross bill. It is a counter bill against the plaintiff, or it may be against his codefendants, or both together ; it touches matters involved in the original suit. Newton v. Gage, 155 Fed. 608; Book v. Justice Min. Co. 58 Fed. 831; Shields v. Barrow, 17 How. 145, 15 L. ed. 162; Brande v. Gilchrii^t, 18 Fed. 465; Sanders v. Eiverside, 55 C. C. A. 240, 118 Fed. 720. 469 470 CKOSS BILL. Auxiliary Suit. A cross bill is not a new suit, but an auxiliary suit (Blytbe v. Hinckley, 84 Fed. 235; United States v. Eeese, 166 Fed. 347; Craig V. Dorr, 145 Fed. 307 ; Springfield Mill Co. v. Barnard & L. Mfg. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 261; Thurston v. Big Stone Gap Improv. Co. 86 Fed. 485; Brooks V. Laurent, 39 C. C. A. 201, 98 Fed. 652j ; and it may be maintained though it could not have been filed as an original suit (Kirby v. American Soda Fountain Co. 194 U. S. 141, 48 L. ed. 911, 24 Sup. Ct. Eep. 619 ; Brooks v. Lau- rent, 39 C. C. A. 201, 98 Fed. 652 and cases cited; Osborne & Co. T. Barge, 30 Fed. 805 ; First Xat. Bank v. Salem Capital Flour-Mills Co. 31 Fed. 580; Lilienthal v. McCormick, 54 C. C. A. 475, 117 Fed. 96) ; and may be filed without leave (Xeal V. Foster, 34 Fed. 498). See "Filing Cross Bill." Subject-Matter Of. The original and cross bill is one cause, and the cross bill must be confined to the subject-matter of the original bill, and new and distinct matters, wholly disconnected with the origi- nal bill, cannot be introduced by a cross bilL Ibid. ; Bunel v. O'Day, 125 Fed. 319 ; Gilmore v. Bort, 134 Fed. 658 ; Hogg v. Hoag, 107 Fed. 814; Stonemetz Printers' Mach. Co. v. Brown Folding-Maeh. Co. 46 Fed. 852; Fidelity Trust & S. V. Co. v. Mobile Street E. Co. 53 Fed. 851 ; Avres v. Chicago, 101 U. S. 187, 25 L. ed. 840; Cross v. DeValle,' 1 Wall. 5, 17 L. ed. 515; Sunset Teleph. & Teleg. Co. v. Eureka, 122 Fed. 960; Thurs- ton V. Big Stone Gap Improv. Co. 86 Fed. 484; Providence Eubber Co. v. Goodyear, 9 Wall. 809, 19 L. ed. 589. However, new matters and new issues baving relevancy to the allegations and purpose of the original bill can be set up ; that is, it must be germane. Kilbum v. Hirner, 163 Fed. 540; Springfield Co. V. Barnard Co. 81 Fed. 263, and cases cited; Goff v. Kelly, 74 Fed. 327; Morgan's L. & T. E. & S. S. Co. v. Texas C. E. Co. 137 U. S. 201, 34 L. ed. 635, 11 Sup. Ct. Eep. 61; Xew Departure Bill Co. v. Hardware Specialty Co. G2 Fed. 463. See Continental Trust C^i. v. Toledo, St. L. & K. C. E. Co. 86 Fed. 950, 951, and Bunel v. O'Day, 125 Fed. 304. But there CEOSS BILL. 471 is another condition to be considered, and that is, though there he new matter connected with the subject-matter of the origi- nal suit, yet if the purpose of the cross bill be different from the original bill it cannot be maintained. Cross v. DeValle, 1 Wall. 5, 17 L. ed. 515 ; Dickerman v. Northern Trust Co. 25 C. C. A. 549, 53 XJ. S. App. 270, 80 Fed. 458. The test seems to be : Do the matters of the cross bill grow out of, and does the relief prayed for depend on, the subject- matter of the original bill ? Ex parte South & ^STorth Ala. E. Co. 95 U. S. 225, 24 L. ed. 356 ; Gasquet v. Fidelity Trust & S. Y. Co. 6 C. C. A. 253. 13 U. S. App. 564, 57 Fed. 83; Gil- more V. Bort, 134 Fed. 661. Independent in Some Respects. While this is the character test of the cross bill, yet it has a feature of independence; in that citation must issue and be served, and proceedings had thereon, as in an original bill. Washington, A. & G. E. Co. v. Bradley (Washington, A. & G. E. Co. V. Washington), 10 Wall. 302, 303, 19 L. ed. 895; lleyer v. Kuhn, 13 C. C. A. 29S, 25 U, S. App. 174, 65 Fed. 711. (See Service of Cross Bill). And, like the original bill, it must be met by demurrer, plea, or answer. Greenwalt V. Duncan, 5 ilcCrary, 132, 16 Fed. 36 ; Harrison v. Perea, 16S U. S. 311, 42 L. ed. 478, 18 Sup. Ct. Eep. 129. And the sworn answer is evidence. Penn Mut. L. Ins. Co. v. Union Trust Co. 83 Fed. 894. Uses of Cross Bill. The cross bill may be used under other conditions than what has heretofore been stated, that is, — First. To obtain affirmative relief against the plaintiff. Second. It may be used for discovery in aid of the answer. Equity rule 72. Third. As a matter of defense to the bill to set up new matter, when it is too late to set it up by plea or answer, as after replication and issue joined. Fourth. To settle conflicting claims between defendants which are necessary to be adjusted before a complete decree can be entered. 472 CEOSS BILL. Fifth- When necessary to bring ahout a complete determi- nation of all matters affected by the bUL Sixth. It may sometimes be taken as an answer and vice versa. I will briefly restate these several conditions, citing such au- thorities as will illustrate them. First, To Obtain Affirmative Relief. The cross bill, as before stated, is the only method by which the defendant can obtain affirmative relief in equity. Chapin V. Walker, 2 McCrary, 175, 6 Fed. 794; Ewing v. Seaboard Air Line E. Co. 175 Fed. 517 ; Mitchell v. International Tail- oring Co. 169 Fed. 145; TJnder-Feed Stoker Co. v. American Stoker Co. 169 Fed. 892; Ames Eealty Co. v. Big Indian Min. Co. 146 Fed. 169 ; Farmers' Loan & T. Co. v. Denver, L. & G. K. Co. 60 C. C. A. 588, 126 Fed. 46 ; Jackson v. Simmons, 39 C. C. A. 514, 98 Fed. 773, 774; Xelson v. Lowndes County, 35 C. C. A. 419, 93 Fed. 538; Hill v. Eyan Grocery Co. 23 C. C. A. 624, 41 IT. S. App. 714, 78 Fed. 27, 28 ; Springfield MiU. Co. V. Barnard & L. Mig. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 261 ; Interstate Bldg. & Loan Asso. v. Edge- field Hotel Co. 120 Fed. 423; White v. Bower, 48 Fed. 186; Eoyal Union Mut. L. Ins. Co. v. Wynn, 177 Fed. 293. Mistake and fraud in the execution of the instrument sued on, whereby the true contract is not expressed, should be set up by cross bill. Commonwealth Title Ins. & T. Co. v. Cum- mings, 83 Fed. 767. See Eoyal Union Mut. L. Ins. Co. v. Wynn, 177 Fed. 289. It is the better practice. Big Creek Gap Coal & I. Co. V. American Loan & T. Co. 62 C. C. A. 351, 127 Fed. 627. You may set up by cross bill your title when sued to remove cloud from title. Greenwalt v. Duncan, 5 McCrary, 132, 16 Fed. 36. Tou may set up usurious interest, and ask for the penalty. Weathersbee v. American Freehold Land Mortg. Co. 77 Fed. 523. You may set up offsets by cross biU. Xorth Chicago Eolling Mill Co. v. St. Louis Ore & Steel Co. 152 U. S. 615, 38 L. ed. 571, 14 Sup. Ct. Eep. 710; Central Appalachian Co. v. Buchanan, 33 C. C. A. 598. 62 U. S. App. 195, 90 Fed. 454. You may ask to reform and enforce an in- strument which is sought to be canceled (Springfield Mill Co. CEOSS BILL. 473 V. Barnard & L. Mfg. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 263, 264; Meissner v. Buek, 28 Fed. 163), or vice versa (Commonwealth Title Ins. & T. Co. v. Oummings, 83 Fed. 767) ; but in Northern R. Co. v. Ogdensburg & L. C. E. Co. 18 Fed. 815, 816, the court held it was not necessary to file a cross bill to reform, as it could be set up by answer. See Northern R. Co. v. Ogdensburg & L. C. E. Co. 20 Fed. 347 ; Bradford v. Union Bank, 13 How. 69, 70, 14 L. ed. 54, 55. You may file cross bill to obtain delivery of property. Pullman Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. Eep. 808. You may by cross bill ask for a surrender of the agreement sought to be specifically performed. Meissner y. Buek, 28 Fed. 161 ; Springfield Mill Co. v. Barnard & L. Mfg. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 264. You may in every case where a contract lien is sought to be enforced seek by cross bill to cancel it, or vice versa. Eoy- al Union Mut. L. Ins. Co. v. Wynn, 177 Fed. 289 ; Milwaukee & M. E. Co. V. Chamberlain, 6 Wall. 748, 18 L. ed. 859 ; La Daw V. E. Bement & Sons, 66 Fed. 198 ; Chicago, M. & St. P. E. Co. V. Third Nat. Bank, 134 U. S. 288, 33 L. ed. 904, 10 Sup. Ct. Eep. 550. Where one seeks as trustee for bondholders to foreclose the mortgage, the defendant cannot by cross bill recover damages for mismanagement of the trust. Fidelity Trust & S. V. Co. v. Mobile Street E. Co. 53 Fed. 852 ; Thurston v. Big Stone Gap Improv. Co. 86 Fed. 484, 485 ; Stonemetz Printers' Mach. Co. V. Brown Folding !Mach. Co. 46 Fed. 853. But it seems the bondholders can set up by way of cross bill a diminution of the fund by bad management. Gasquet v. Fidelity Trust & S. Y. Co. 6 C. C. A. 253, 13 U. S. App. 564, 57 Fed. 80; Hogg V. Hoag, 107 Fed. 807, approved in 83 C. C. A. 677, 154 Fed. 1003 ; see Bowling Green Trust Co. v. Virginia Pass & Power Co. 132 Fed. 925, s. c. 164 Fed. 753 ; Toler v. East Tennessee, V. & G. E. Co. 67 Fed. 172. When a suit on an insurance policy is enjoined, you may recover the amount by way of cross bill. North British & M. Ins. Co. V. Lathrop, 63 Fed. 508. Prior mortgagee may by cross bill have his mortgage first foreclosed. First Nat. Bank v. Salem Capital Flour-Mills Co. 31 Fed. 583. These citations sufficiently illustrate when cross bills may be 4:74 CEOSS BILL. used for affirmative relief; but it has been held that when matter which is proper for cross bills has been set up by an- swer, and no objection taken, the court will treat the answer as a cross bill, and grant the relief if equitable. See "Sixth use" below for authorities. But not to obtain affirmative relief in a cause of action wholly disconnected with the original bill, or to settle matters not necessary to a complete decree. Providence Eubber Co. v. Goodyear, 9 Wall. 809, 19 L. ed. 589 ; Fidelity Trust & S. V. Co. V. Mobile Street K. Co. 53 Fed. 852; Arm- strong V. Chemical Xat. Bank, 37 Fed. 466; Stuart v. Hayden, 18 C. C. A. 618, 36 U. S. App. 462, 72 Fed. 410; Thruston v. Big Stone Gap Improv. Co. 86 Fed. 484; Stonemetz Printers' Mach. Co. V. Brown Folding-Mach. Co. 46 Fed. 851 (see Sub- ject-matter). Thus you cannot by a cross bill set up a creditors' bill when suit is upon an open contract. GofE v. Kelly, 74 Fed. 330— 331. ISTor by cross bill set up maladministration of a trust when trustee sues to foreclose a mortgage. So in action for infringement, you cannot file cross bill setting up infringement by plaintiff. Stonemetz Printers' Mach. Co. v. Brown Fold- ing-Mach. Co. 46 Fed. 852. See Kilburn v. Hirner, 163 Fed. 539. So setting up new controversy in suit to foreclose lien. Industrial & Min. Guaranty Co. v. Electrical Supply Co. 7 C. C. A. 471, 16 TJ. S. App. 196, 58 Fed. 742 ; Stuart v. Hayden, 18 C. C. A. 618, 36 U. S. App. 462, 72 Fed. 410; Goff v. Kelly, 74 Fed. 330. Second, As to Discovery. A cross bill for discovery is not now necessary, as you can require parties to testify, and, by motion supported by affidavit showing materialty, compel the plaintiff to produce books and papers. Equity rule 72 ; Coit v. Xorth Carolina Gold Amalga- mating Co. 9 Fed. 577; Utah Constr. Co. v. Montana R. Co. 145 Fed. 983; ^Yest Pub. Co. v. Edward Thompson Co. 151 Fed. 141 ; see Ore. Water, Light & Power Co. v. Oroville, 162 Fed. 975; TJ. S. Eev. Stat. sect. 724; U. S. Comp. Stat. 1901, p. 583, does not apply to equity. Providence Rubber Co. v. Goodyear, 9 Wall. 809, 19 L. ed. oSO ; Indianapolis Gas Co. v- Indianapolis, 90 Fed. 196. If, however, yon do file a cross CROSS BILL. 475 bill for discovery in support of your answer, then equity rule 72 requires the answer to the original bill to be filed before plaintiff will be compelled to answer the cross bill, and when the answer to the cross bill is filed, it is evidence. If discov- ery is sought by a cross bill, it must be confined to matters con- tained in the cross bill, and not, as to matters set up in the original bill, and upon which it is based. Ibid. ; Sunset Teleph. & Teleg. Co. v. Eureka, 122 Fed. 960. Third, As a Means of Defense. A cross bill is used as a means of defense sometimes, as well as for relief. ISTeal v. Foster, 34 Fed. 496; Thurston v. Big Stone Gap Improv. Co. 86 Fed. 484; Jesup v. Illinois C. E.. Co. 43 Fed. 495; Springfield Mill Co. v. Barnard & L. Mfg. Co. 81 Fed. 261; Newton v. Gage, 155 Fed. 608; Morgan's 1. & T. K. & S. S. Co. V. Texas C. E. Co. 137 U. S. 200, 34 L. ed. 635, 11 Sup. Ct. Eep. 61. And the defendant can set up in the cross bill matters purely legal, as well as equitable, if they be connected with the allegations of the original bill. Ibid. ; Weathersbee v. American Freehold Land Mortg. Co. 77 Fed. 524; Chicago, M. & St. P. E. Co. v. Third Nat. Bank, 134 TJ. S. 288, 33 L. ed. 904, 10 Sup. Ct. Eep. 550; Springfield Mill. Co. V. Barnard & L. Mfg. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 261; Eoyal Union Mut. L. Ins. Co. v. Wynn, 177 Fed. 293. Thus a discharge in bankruptcy should be set up by cross bill. So an agreement, or conveyance. Car- nochan v. Christie, 11 Wheat. 446, 6 L. ed. 516. It has been held that mistake or fraud, or that one is an inno- cent purchaser, or that a party is not the assignee of the note sued upon, when a defense to a bill, may be set up by cross bill. Commonwealth Title Ins. & T. Co. v. Cummings, 83 Fed. 767. So a counterclaim is only recognized by cross bill. Brande v. Gilchrist, 18 Fed. 465; Springfield Mill. Co. v. Barnard & L. Mfg. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 261 ; United States Trust Co. v. Western Contract Co. 26 C. C. A. 472, 54 U. S. App. 67, 81 Fed. 468. However, in Bausman v. Denny, 73 Fed. 69, the court intimates it can be set up by answer, but no objection was made in the case to the answer. But a suit for accounting does not need a cross 476 CEOss Birx. bill; a balance in favor of defendant wiU be decreed without it. Wbittemore v. Patten, 84 Fed. 57. A cross bill that sets up no defense but what could have been set up by answer will on motion be dismissed. American & G. Mortg. & Invest. Corp. V. Marquam, 62 Eed. 960; Miller v. Eickey, 146 Fed. 578; Dickerman v. Xorthem Trust Co. 25 C. C. A. 549, 53 U. S. App. 270, 80 Fed. 458 ; Lautz v. Gordon, 28 Fed. 265. How- ever, matters which regularly should be included in a cross bill may be set up in answer, and if no objection is made, relief will be granted upon the answer. United States v. Reese, 166 Fed. 350; Book v. Justice Min. Co. 58 Fed. 831; Coburn v. Cedar VaUey Land & Cattle Co. 138 U. S. 221, 34 L. ed. 886, 11 Sup. Ct. Eep. 258. Fourth, To Settle Matters Between Defendants. While a settlement between defendants may be effected by cross bill, yet it cannot be done unless the settlement is neces- sary to render a complete decree between all the parties. Weav- er V. Alter, 3 Woods, 152; Fed. Cas. Xo. 17,308 ; Eickey Land & Cattle Co. V. Wood, 81 C. C. A. 218, 152 Fed. 23 ; Craig V. Dorr, 76 C. C. A. 559, 145 Fed. 310 and cases cited. Veach V. Eice, 131 U. S. 293, 33 L. ed. 163, 9 Sup. Ct. Eep. 730; Corcoran v. Chesapeake & O. Canal Co. 94 U. S. 744, 24 L. ed. 191 ; Commercial Bank v. Sandford, 103 Fed. 99 ; Ames Eealty Co. V. Big Indian Min. Co. 146 Fed. 166. And should de- fendants thus attempt to raise issues independent of the bill, the cross bill will be dismissed. Gilmore v. Bort, 134 Fed. 658; Stuart V. Hayden, 18 C. C. A. 618, 36 U. S. App. 462, 72 Fed. 410; Vannerson v. Leverett, 31 Fed. 377; see Weaver v. Alter, 3 Woods, 152, Fed. Cas. Xo. 17,307. When a cross bill is necessary as between the defendants to settle a decree in the whole case, the question of their citizenship is not material (Lilienthal v. McCormick, 54 C. C. A. 475 117 Fed. 96 ; Osborne & Co. v. Barge, 30 Fed. 805 ; First Xat. Bank v. Salem Capital Flour-Mills Co. 31 Fed. 580 ; Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 282; Wabash E. Co. v. Adelbert College, 208 U. S. 39, 52 L. ed. 379, 28 Sup. Ct. Eep. 182) ; nor the amount involved (Kirby v. American Soda Fountain Co. 194 U. S. 141, 48 L. ed. 911 CEOSS BILL. 477 24 Sup. Ct Kep. 619). However, this rule does not apply tc conflicting interests of defendants being citizens of same State. Thus a nonresident suing for partition citizens of a State de- fendants by cross bill cannot litigate title as between them- selves (Beebe v. Louisville, N. 0. & T. K. Co. 39 Ted. 481 ; Vannerson v. Leverett, 31 Fed. 376 ; Farmers' Loan & T. Co. V. San Diego Street-Car Co. 40 Fed. 110 ; Peacock, H. & W. Co. V. Thaggard, 128 Fed. 1006; Fatten v. Marshall, 26 L.E.A.(KS.) 127, 97 C. C. A. 610, 173 Fed. 351), un- less the property is in court (Xewton v. Gage, 155 Fed. 598; Xew Orleans v. Howard, 87 C. C. A. 345, 160 Fed. 397; United Electric Securities Co. v. Louisiana Electric Light Co. 68 Fed. 673 ; Lilienthal v. McCormick, 54 C. C. A. 475, 117 Fed. 89 ; Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 282 ; Morgan's L. & T. E. & S. S. Co. v. Texas C. K. Co. 137 TJ. S. 201, 34 L. ed. 635, 11 Sup. Ct. Eep. 61 ; Park v. iS'ew York, L. E. & W. E. Co. 70 Fed. 642, 643). Fifth. When necessary to bring about a complete determi- nation of all matters affected by the bill, a cross bill will lie. Ibid. ; Springfield Mill. Co. v. Barnard & L. Mfg. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 261; Stuart v. Hayden, 18 C. C. A. 618, 36 U. S. App. 462, 72 Fed. 410; Fidelity Trust & S. V. Co. V. Mobile Street E. Co. 53 Fed. 852 ; Ayres V. Carver, 17 How. 591-595, 15 L. ed. 179-181; Ex parte South & North Ala. E. Co. 95 U. S. 221-225, 24 L. ed. 355- 357; Providence Eubber Co. v. Goodyear Co. 9 Wall. 809, 19 L. ed. 589 ; Eickey Land & Cattle Co. v. Wood, 81 C. C. A. 218, 152 Fed. 23 ; Gilmore v. Bort, 134 Fed. 658 ; Blythe v. Hinckley, 84 Fed. 228. Sixth. May sometimes be used as answer, and vice versa. Hoge V. Eaton, 135 Fed. 411; Bradford v. Union Bank, 13 How. 69, 70, 14 L. ed. 54, 55 ; Lockwood v. Cleveland, 6 Fed. 724; Book v. Justice Min. Co. 58 Fed. 831; Moran v. Hager- man, 12 C. C. A. 239, 29 U. S. App. 71, 64 Fed. 504. Form of Cross Bill. The cross bill is drawn as an original bill. You will find in the old forms that it was necessary to set forth the original bill and proceedings in the cross bill, and this practice arose 478 CEOSS BILL. because a cross till could be filed in another court; but that is not now the rule, and you need only refer to that part of the bill or proceedings to which the matter of the cross bill is set up as a defense ; that is, so much as shows the application and materiality of the cross bill. If affirmative relief is asked, the cross bill must be drawn with the same care as the original bill, and the case must present an appeal to equitable cognizance. United States v. Reese, 166 Fed. 347 ; Xot necessary to con- tain jurisdictional averments as to citizenship. Badger Gold Min. & iliU. Co. v. Stockton Gold & Copper Min. Co. 139 Fed. 840. The answer and cross bill must be separate pleadings, though under one cover. United Cigarette Mach. Co. v. Wright, 132 Fed. 196. Parties. Only parties to the original bill can be made parties to a cross bill. Lilienthal v. McCormick, 54 C. C. A. 475, 117 Fed. 90. You cannot use the cross bill to introduce new parties. Bunel V. O'Day, 125 Fed. 319 ; Shields v. Barrow, 17 How. 145, 15 L. ed. 162; United States Gypsum Co. v. Hoxie, 172 Fed. 505; Xewton v. Gage, 155 Fed. 610; Thruston v. Big Stone Gap Improv. Co. 86 Fed. 4S4 ; Patton v. Marshall, 26 L.E.A.(X.S.) 127, 97 C. C. A. 610, 173 Fed. 350; Central Trust Co. V. Cincinnati, H. & D. E. Co. 169 Fed. 466 ; Adel- bert College v. Toledo, W. k W. R. Co. 47 Fed. 846. See Lavis V. Consumers' Brewing Co. 106 Fed. 435 ; Ulman v. laeger, 155 Fed. 1011—1016. Holding new parties may be brought in by cross bill which seeks affirmative relief, and they are neces- sary to the granting of the relief, citing McComb v. Chicago, St. L. & X. O. E. Co. 19 Blatchf. 69, 7 Fed. 426, and Mer- cantile Trust Co. V. Atlantic & P. E. Co. 70 Fed. 518, declar- ing the rule as stated above is only applicable to cross bills seek- ing discovery, and not affirmative relief, and that the rule is changed since Shields v. Barrow, 17 How. 145, 15 L. ed. 162. The ordinary rule of the Federal courts is that new parties are necessary, you must bring them in by suggesting a want of par- ties in the answer, as already explained. Thruston v. Big Stone Gap Improv. Co. 86 Fed. 485 ; Shields v. Barrow, 17 How. CEOSS BILL. 479 145, 15 L. ed. 162 ; United States Gypsum Co. v. Hoxie, 172 Fed. 505. A stranger cannot ordinarily file a cross bill by way of intervention. Toler v. East Tennessee, V. & G. E. Co. 67 Fed. 170-173; Gregory v. Pike, 15 C. C. A. 33, 21 U. S. App. 65S, 33 U. S. App. 76, 67 Fed. 838. But when permitted to intervene, he may file a cross bill. Brinckerhoii v. Holland Trust Co. 159 Fed. 191, 192. Filing Cross Bill. In Bronson v. LaCrosse &: M. E. Co. 2 Wall. 283, 17 L. ed. 725, it was held irregular to file a cross bill without leave of the court, but this is not a fixed rule. As said, it is in effect a defense and a regular proceeding in a suit in equity. Xeal V. Foster, 34 Fed. 498. Of course, after the issues have been closed, or after evidence taken, or out of its proper order in pleading, it is sought to file a cross bill, then permission should be asked. Thus in Huff v. Bidwell, 81 C. C. A. 43, 151 Fed. 566 ; Under-Feed Stoker Co. v. American Stoker Co. 169 Fed. S92 ; and Xeal v. Foster, 34 Fed. 499, the defendant sought to file a cross bill after publication of the testimony; it was held that it only could have been filed then by leave of court; but the courts have been liberal in practice, and will permit the fil- ing at any time before decree if the ends of justice demand it. Filing cross bill alleging new facts and asking relief waives ju- risdictional questions over subject-matter. Original Consol. Min. Co. V. Abbott, 167 Fed. 682 and cases cited. No Delay in Filing. There should be as little delay as possible in filing a cross bill, yet the whole matter is in the court's discretion. Indiana Southern E. Co. v. Liverpool, L. & G. Ins. Co. 109 U. S. 172, 27 L. ed. 897, 3 Sup. Ct. Eep. 108. A cross bill may be filed after answer filed, when the complainant is seeking to discontinue, and the object of the cross bill is to settle the rights in litigation. Pullman's Palace-Car Co. v. Central Transp. Co. 49 Fed. 261; see Xeal v. Foster, 34 Fed. 496. Process for Parties. There must always be a prayer for process, and the appear- 480 CBOSS BILL. ance of parties to a cross bill must be enforced by process regu- larly served. Blytbe v. Hinckley, 84 Fed. 239; Washington, A. & G. E. Co. V. Bradley (Washington, A. & G. E. Co. v. Washington), 10 Wall. 299, 19 L. ed. 895; Johnston v. Fraser (Tex. Civ. App.), 92 S. W. 49; Wood v. Collins, 8 C. C. A. 522, 23 U. S. App. 224, 60 Fed. 142; Boyce v. Concho Cattle Co. (Tex. Civ. App.), 70 S. W. 356; Meyer v. Kuhn, 13 C. C. A. 298, 25 U. S. App. 174, 65 Fed. 711. A petition by way of cross bill that makes nobody a defendant and asks no process is a nullity. American & G. Mortg. & Invest. Corp. v. Mar- quam, 62 Fed. 960; Wright v. St. Louis South Western K Co. 175 Fed 846. Service of Cross Bill. The cross bill must be served, and the same rule applies in the Texas practice when the plaintiff does not appear to prose- cute. Harris v. SchUnke, 95 Tex. 88, 65 S. W. 172. Com- plainant answering waives service. Byers v. Sugg (Tenn.) 57 S. W. 397. Otherwise the filing is notice, and judgment by default may be taken. Smithers v. Smith, 35 Tex. Civ. App. 508, 80 S. W. 646. While the cross bill is served as an origi- nal bill, yet you can apply for and obtain an order for substi- tuted service on the attorney of the plaintiff, when the com- plainant is beyond the jurisdiction of the court and the cross bill is only an auxiliary bill. Gregory v. Pike, 29 Fed. 590; Eio Grande Dam & Irrig. Co. v. United States, 215 U. S. 277, 54 L. ed. 194, 30 Sup. Ct. Eep. 97 ; Dunlevy v. Dunlevy, 38 Fed. 459 ; Providence Eubber Co. v. Goodyear, 9 Wall. 807, 19 L. ed. 829 ; Johnson Eailroad Signal Co. v. Union Switch & Signal Co. 43 Fed. 332 ; Gasquet v. Fidelity Trust & S. V. Co. 6 C. C. A. 253, 13 U. S. App. 564, 57 Fed. 80. However, the rule for substituted service is denied to cross bills setting up facts not alleged in the original bill, and which new facts are made the ground of affirmative relief. Fidelity Trust & S. V. Co. V. Mobile Street E. Co. 53 Fed. 852. If plaintiff be a foreign corporation, you may get an order of service on the attorney, if it has no agent or other represent- ative in the jurisdiction but the attorney. Johnson Eailroad Signal Co. v. Union Switch & Signal Co. 43 Fed. 331. CEOSS BILL. 481 In Troendle v. Van Xortwick, 39 C. C. A. 286, 98 Fed. 787, it appears that the cross bill did not pray for process, nor was it issued and served, but the objecting pai-ty, it seems, appeared and participated in the proceedings upon the hearing of the original and cross bill. It was held objections came too late on appeal. When substituted service has been improvidently made, it may be set aside. Fidelity Trust & S. V. Co. v. Mo- bile Street E. Co. 53 Fed. 850. Amendment of Cross Bill. The rules admitting amendments to original bills apply to cross bills, for all the rules governing the proceedings by which an issue is reached, from the original bill to the replication, govern cross bills. If amendment of the cross bill is permitted, it must be filed under the rules. Ferguson Contracting Co. v. Manhattan Trust Co. 55 C. C. A. 529, 118 Fed. 793. An ap- plication to amend after replication must be filed under equity rule 29. Beavers v. Eichardson, 118 Fed. 320. Extent of Amendm,ent. In Chicago, M. & St. P. E. Co. v. Third ISTat. Bank, 134 TJ. S. 288, 33 L. ed. 904, 10 Sup. Ct. Eep. 550, it is held that a cross bill may be amended so as to work a change in the ground of relief sought, where the proofs which make it necessary are furnished by the original complainant in support of the allega- tions of his biU. Hearing on Cross Bill. If the cross bill is set for hearing, so is the original bill, and vice versa; both must be considered together. Meissner v. Buek, 28 Fed. 163 ; Ex parte South & North Ala. E. Co. 95 TJ. S.' 221, 24 L. ed. 355. Decree on Cross Bill. From the nature of the cross bill a decree thereon would not be final if the original bill is not disposed of. Ex parte South S. Eq.— 31. 482 CEOSS BILL. & Xorth Ala. E. Co. 95 U. S. 225, 24 L. ed. 356 ; Ayres v. Carver, 17 How. 595, 15 L. ed. 180. But a final decree can be entered on a cross bill when the rights of the parties assume such shape that they can be settled on the lines of the aver- ment of the cross bill. Blythe v. Hinckley, 84 Fed. 22S-235; ilarkell v. Kasson, 31 Fed. 104; Jesup v. Illinois C. R. Co. 43 Fed. 483 ; Springfield MiU. Co. v. Barnard & L. Mfg. Co. 26 C. C. A. 389, 49 U. S. App. 438, 81 Fed. 264; Troendle v. Van Xortwick, 39 C. C. A. 286, 98 Fed. 786: Heinze v. Butte & B. ConsoL Min. Co. 61 C. C. A. 63, 126 Fed. 6, and cases cited. So a decree pro confesso can be entered on a cross bill. Blythe v. Hinckley, 84 Fed. 288, see Badger Gold Min. & Mill Co. V. Stockton Gold & Copper Min. Co. 139 Fed. 840. Effect of Dismissing Original Bill on Cross Bill. If the cross bill is only for discovery, or as a defense, or setting up matters in aid of the defense, or so purely auxilary that the cross bill is useless if the original bill is dismissed, then the cross bill falls with the original bilL Small v. Peters, 104 Fed. 403 ; Jesup v. Illinois C. E. Co. 43 Fed. 495 ; Milwau- kee & M. E. Co. V. Milwaukee & St. P. E. Co. 6 Wall. 747, 18 L. ed. 859; Dows v. Chicago, 11 Wall. 112, 20 L. ed. 67; In- dustrial & Min. Guaranty Co. v. Electrical Supply Co. 7 C. C. A. 471, 16 U. S. App. 196, 58 Fed. 742. So when cross bill is between citizens of same State, Cabaniss v. Eeco Min. Co. 54 C. C. A. 190, 116 Fed- 319; but when the cross bill seeks affirmative relief, or alleges additional facts, which would settle the matters in litigation in the event the defendant prevailed, it would not fall with the original biU. Jackson v. Simmons, 39 C. C. A. 514, 98 Fed. 768; Craig v. Dorr, 76 C. C. A. 559, 145 Fed. 310; Badger Gold Min. & Mill. Co. v. Stockton Gold & Copper Co. 139 Fed. 838-840; Markell v. Kasson, 31 Fed. 104; Jesup v. Illinois C. E. Co. 43 Fed. 495; Small V. Peters, 104 Fed. 401 ; Heinze v. Butte & B. Consol. Min. Co. 61 C. C. A. 63, 126 Fed. 6; San Diego Flume Co. v. Souther, 32 C. C. A. 548, 61 U. S. App. 134, 90 Fed. 164; Sanders v. Eiverside, 55 C. C. A. 240, 118 Fed. 722 ; Holgate v. Eaton, 116 TJ. S. 42, 29 L. ed. 540, 6 Sup. Ct. Eep. 224. Being in its nature an original bill, it is not subject to the control of com- CEOSS BILL. 4:83 plainant Jackson v. Simmons, 39 C. C. A. 514, 98 Fed. 773. As, where a cross bill is filed for enforcing a judgment (Milwaukee & M. R. Co. v. Chamberlain, 6 Wall. 748, 18 L. ed. 859) ; or when it sets up a counterclaim (Green v. Fndenvood, 30 C. C. A. 162, 57 U. S. App. 535, 86 Fed. 427) ; or when brought to settle the matters in litigation where com- plainant is seeking to dismiss his bill (Pullman's Palace Car Co. T. Central Transp. Co. 49 Fed. 261). Dismissal of an inter- vening petition does not necessarily dismiss a cross bill. Sun- flower Oil Co. V. Wilson, 142 U. S. 325, 35 L. ed. 1029, 12 Sup. Ct. Eep. 235. Cross Bill By and Against Corporations. Cross bills may be filed against as well as by a corporation (Indianapolis Gas Co. v. Indianapolis, 90 Fed. 196), and when filed for discovery, it cannot refuse to answer because its officers may be examined as witnesses. Ibid. ; Continental Nat. Bank v. Heibnan, 66 Fed. 184. McMullen Lumber Ca v. Strother, 69 C. C. A. 433, 136 Fed. 301. CHAPTER LXXX. INTEKVENTION. What is. Intervention Is tte application of a person not a party to the suit to litigate some claim of title or interest, by way of lien or otherwise, in the property which is the subject-matter of the suit, or which has been drawn into the possession of the court during the progress of the cause. Two Kinds. There are two kinds of intervention recognized by the courts, viz. : One in which the right to intervene is wholly discretion- ary with the court, and from which no appeal lies, should in- tervention be refused. Ex parte Cutting, 94 U. S. 22, 24 L. ed. 51 ; United States v. Philips, 46 C. C. A. 660, 107 Fed. 824, and eases cited; Ee Metropolitan E. Receivership (Re Reisenberg) 208 U. S. Ill, 52 L. cd. 413, 28 Sup. Ct. Rep. 219 ; Land Title & T. Co. v. TatnaU, 65 C. C. A. 671, 132 Eed. 305 ; Land Title & T. Co. v. Asphalt Co. 62 C. C. A. 23, 127 Eed. 2; BlafFer v. Xew Orleans Water Supply Co. 87 C. C. A. 341, 160 Fed. 389 ; Central Trust Co. v. Cincinnati, K & D. R. Co. 169 Fed. 470 ; Illinois Steel Co. v. Ramsey, 100 C. C. A. 323, 176 Fed. 863. The other is where the right to in- tervene is absolute, and a refusal to permit intervention can be appealed from. Ibid. ; Minot v. ilastin, 37 C. C. A. 234, 95 Fed. 739 ; Brinckerhoff v. Holland Trust Co. 146 Fed. 203 ; Tift V. Southern R. Co. 159 Fed. 558, 559 ; Credits Commuta- tion Co. V. LTnited States, 34 C. C. A. 12, 62 IJ. S. App. 728, 91 Fed. 573 ; Illinois Steel Co. v. Ramsey, 100 C. C. A. 323, 176 Fed. 853. It is difficult sometimes to distinguish between these two 484 INTERVENTION. 485 species of intervention and to determine to which class it be- longs. It was said in the United States v. Philips, 46 C. C. A. 660, 107 Fed. 825, that where a refusal to intervene is sustained, that the proper practice would be to gi-ant an appeal, and permit the appellate court to determine whether in the particular case the right of intervention was of the class that falls within the court's discretion. While no rule can be laid down where discretion controls, yet out of the cases may be evolved certain tests to determine to which class of intervention the particular case belongs. The mere fact that a party asserts some interest in the controversy or in the property does not bind the court to permit the inter- vention (Minot V. Mastin, 37 C. C. A. 234, 95 Fed. 739), even though the property be in the hands of a receiver (Ibid.). If the interest asserted would not be affected by the proceedings, or where it appears that the right asserted is entirely subordi- nate to the rights of the parties to the suit, or that the interest of one seeking intervention is already represented in the case, or that he has other adequate remedies to protect his interest without burdening the principal suit with his collateral issues, then the right of intervention lies wholly within the court's discretion. Ibid. ; Massachusetts Loan & T. Co. v. Kansas City & A. E. Co. 49 C. C. A. 18, 110 Fed. 30, and cases cited ; United States v. Philips, 46 C. C. A. 660, 107 Fed. 824; Credits Commutation Co. v. United States, 177 U. S. 311, 44 L. ed. 782, 20 Sup. Ct. Eep. 636; Jones v. Sands, 25 C. C. A. 233, 51 U. S. App. 153, 79 Fed. 913 ; Lewis v. Baltimore & L. E. Co. 10 C. C. A. 446, 8 U. S. App. 645, 62 Fed 219 ; Sands v. E. S. Greeley & Co. 80 Fed. 195. But when the petition for intervention shows that in the pending suit the right of the party seeking intervention is in jeopardy, that is, an inability to obtain relief by other means, as when the party seeking intervention has a lien or title to the subject-matter in the hands of the court, or a present right to possession superior to the rights asserted in the main suit; or when the refusal would be a practical denial of relief, as where in the pending suit the fund may be dissipated out of which he must look for relief, these and kindred conditions make the right to intervention absolute, and a refusal may be appealed from as a right. Credits Commutation Co. v. United States, 486 INTEEVENTION. 34 C. C. A. 12, 62 IT. S. App. 728, 91 Fed. 573 ; United States V. Philips; 46 C. C. A. 660, 107 Fed. 824, and authorities ahove cited; Credits Conmratation Co. v. United States, 177 U. S. 315, 316, 44 L. ed. 785, 786, 20 Sup. Ct. Eep. 636. Procedure. You must file a petition asking permission of the court to file a bill of intervention in all cases where the right to intervene is within the sound discretion of the court. Blaffer v. Xew Or- leans Water Supply Co. 87 C. C. A. 341, 160 Fed. 392; Perry v. Godbe, 82 Fed. 143 ; Bom v. Schneider, 128 Fed. 179. The form of the proceeding is determined by the circumstan- ces of the case. Krippendorf v. Hyde, 110 U. S. 286, 28 L. ed. 149, 4 Sup. Ct. Eep. 27. And it must not only appear that a petition was filed, but that it was granted. Ibid. ; Washington, G. & A. E. Co. v. Bradley, 7 Wall. 575, 19 L. ed. 274; Perry v. Godbe, 82 Fed. 143. See People's Sav. Inst. V. Miles, 22 C. C. A. 152, 46 U. S. App. 268, 76 Fed. 254. Form of Application. Title as in bill, thus: A. B. vs. C. D.; F. W., Intervener. To the Honorable Judges of the Circuit Court of the United States for the District of : The petition of I". W., a citizen of and residing in county in the State of , humbly complaining of A. B., plaintiff, and 0. D., defendant, in the above cause, would show unto your honors that A. B., plaintiff, did on the day of , A. D. 19. . ., file his bUl in this cause wherein he (here set forth substance of bill and prayer) ; that on the day of , A. D. 19. . ., the defendant C. D. filed his answer (or such proceedings as were taken, setting forth only the sub- stance) ; that i)etitioner claims an interest, etc. (here set forth interest, showing how it arose and the necessity for intervention and a right to par- ticipate in the decree). Then pray for permission to file the intervention and the relief desired by your intervention. This petition should he accompanied with your pleading vou seek to file in the event you are let in, and the court must 'see from the pleading — INTEEVENTION. 487 First. That there will be no delay to the plaintiff in prose- cuting his suit. Second. That the pleading is reasonably sufficient to effect the purpose intended, and, — Third. As before stated, that it is a proper case for inter- vention. Toler V. East Tennessee, V. & G. K. Co. 67 Fed. 174, 175. Contesting Application. Any of the parties to the suit may contest the application, and they have a right to have all the grounds upon which the appli- cation is based to be specifically set forth. See Powell y. Leicester Mills, 92 Fed. 115, 116. While the petition in in- tervention may not be as formal as a bill, yet it should exhibit all the material facts relied upon, and embody by recital or reference as much of the record of the original suit as is essen- tial; also proceedings taken in the main suit after filing the pe- tition, which would strengthen the right of petitioner, may be incorporated by amendment. Empire Distilling Co. v. Mc- Nulta, 23 C. C. A. 415, 46 U. S. App. 578, 77 Fed. 701. Order When Application Granted. Title as in bill; W. F., intervener. This cause coming on to be heard on the application of W. F., intervener in this suit, to be made a party (plaintiff or defendant), and the petition having been duly considered, and it appearing to the court that the said W. F., petitioner (here state the basis of the application that the court has found true). It is therefore ordered, adjudged, and decreed that W. F., petitioner, has leave to intervene in said suit and to that end may appear in said suit within days from the date of this order, in the same manner and with like effect as if named in the original bill as a party (plaintiff or defendant ) . This order to be without prejudice to any proceedings heretofore had in this cause. Judge, etc. Effect of Order. The effect of the order is to make the applicant a party to the suit in all subsequent proceedings, and gives the right of 488 INTEBVEXTIOU appeaL Eice v. Durham Water Co. 91 Fed. 433. Mercantile Trust & D. Co. V. Eoanoke & S. E. Co. 109 Fed. 8. But intervention cannot affect jurisdiction once obtained (Clarke v. Eureka County Bank, 116 Fed. 534), though as- serted by cross biUs against other defendants from same State. (LHienthal v. McCormick, 54 C. C. A. 475, 117 Fed. 89). Xor can an intervener attack jurisdiction, ilorton Trust Co. V. Xew York & O. E. Co. 105 Fed. 539 ; Eice v. Durham Water Co. 91 Fed. 434 ; Sioux City Terminal E. & Warehouse Co. v. Trust Co. 27 C. C. A. 73, 49 U. S. App. 533, 82 Fed. 128. Waiving Order of Intervention. While leave to intervene should be by order, yet parties to the suit failing to object to it on that account veaive it. So, filing a replication to an intervening bill waives order of intervention. Perry v. Godbe, 82 Fed. 141; XUinois Steel Co. v. Eamsey, 100 C. C. A. 323, 176 Fed. 864, and cases cited; People's Sav. Inst V. Miles, 22 C. C. A. 152, 40 U. S. App. 341, 76 Fed. 254; Gest v. Packwood, 39 Fed. 536; French v. Gapen, 105 U. S. 525, 26 L. ed. 956. Notice of Intervention. Xotice is not necessary, the filing of the application is suffi- cient; hovfever, in Lombard Invest. Co. v. Seaboard Mfg. Co. 74 Fed. 325 ; McLeod v. Xew Albany, 13 C. C. A. 525, 24 U. S. App. 601, 66 Fed. 378, it is held that to give notice is the bet- ter practice, though there is no rule requiring it. Ibid. ; Cen- tral Trust Co. V. Madden, 17 C. C. A. 236, 25 U. S. App. 430, 70 Fed. 453. Making Defendant hy Intervention. The general rule is that a stranger cannot make himself a de- fendant in a suit in equity, and courts of equity have adhered to this rule as a basis in determining whether the application to in- tervene should be granted. Lombard Invest. Co. v. Seaboard Mfg Co. 74 Fed. 326; Smith v. Gale, 144 U. S. 519, 36 L. ed. 525, 12 Sup. Ct. Eep. 674; Chester v. Life Asso. 4 Fed. 488- INTEEVENTION. 489 491. In Toler v. East Tennessee, V. & G. R Co. 67 Fed. 170, the court says : "That a stranger to a suit will not be per- mitted on his own application to be made a party defendant in an equity suit over the objections of plaintiff is a well estab- lished general rule to which there are few exceptions" (and the reasons are fairly stated in Gregory v. Pike, 15 0. C. A. 33, 21 TJ. S. App. 658, 33 U. S. App. 76, 67 Fed. 845 ; Chester v. Life Asso. of America, 4 Fed. 491), unless, of course he is an in- dispensable party. Carter v. JSTew Orleans, 19 Fed. 659 ; Shields v. Barrow, 17 How. 139, 15 L. ed. 160. In such case a court will require the plaintiff to amend his bill on penalty of dismissal for want of parties essential to determining the case. See Chester v. Life Asso. of America, 4 Fed. 491, for further exceptions to the rule. The equities of the case must show strongly the necessity of admitting a stranger to the suit as defendant on his own appli- cation, and the petition to intervene as defendant must be ac- companied by the proposed answer upon the face of which the necessity appears. Toler v. East Tennessee, V. & G. K. Co. 67 Fed. 168. The court should exercise extreme caution (Lom- bard Invest. Co. v. Seaboard Mfg. Co. 74 Fed. 326), and it should appear that the interest of the party seeking to be made a party to the suit is of a direct and immediate character that is a claim to or lien upon the property involved (Carter v. Xew Orleans, 19 Fed. 659 ; Smith v. Gale, 144 U. S. 518, 36 L. ed. 524, 12 Sup. Ct. Rep. 674; Clarke v. Eureka County Bank, 116 Fed. 537, and cases cited) ; and even then it rests in the sound discretion of the chancellor (Hamlin v. Toledo St. L. & K C. E. Co. 36 L.E.A. 826, 24 C. C. A. 271, 47 U. S. App. 422, 78 Fed. 665 ; Lewis v. Baltimore & L. E. Co. 10 C. C. A. 446, 8 U. S. App. 645, 62 Fed. 219; Massachusetts Loan & T. Co. V. Kansas City & A. E. Co. 49 C. C. A. 18, 110 Fed. 30; ISTewton v. Gage, 155 Fed. 598). A general averment of interest is bad ; it must state facts showing interest. Clarke v. Eureka County Bank, 116 Fed. 536, 537. The reason of this caution on the part of the courts is based upon the theory that the plaintiff should not be compelled to en- ter into litigation with parties not of his own seeking; if so, what he sets out to do by a simple suit may, against his will, become complicated, expensive and interminable. Gregory v. 490 UTTEEVEirriOIT. Pike, 15 C. C. A. 33, 21 U. S. App. 658, 33 TJ. S. App. 76, 67 Fed. 845; Chester v. Life Asso. of America, 4 Fed. 491, 492. If plaintiff has failed to make the necessary parties, the remedies are pointed out in the rules heretofore explained. Ihid. While Galveston H. & H. E. Co. v. Cowdrey, 11 WalL 459, 20 L. ed. 199, and Ex parte South & Xorth Ala. R. Co. 95 U. S. 221, 24 L. ed. 355, seem to militate against this rule, yet in these cases the admission of the parties upon their application was not contested. I have thus considered the rule applicable to one who is a stranger to the suit seeking to be made a party against the will of the plaintiff. The rule would not apply where, — First. The application is made by one who was named in the suit, but not served with process, but subsequently comes with- in the jurisdiction. Second. "When the application is made by one of a class rep- resented in the biU, and for whose benefit or against whom the suit is brought. Chester v. Life Asso. of America, 4 Fed. 491 ; Fidelity Trust & Safety Vault Co. v. MobUe Street E. Co. 53 Fed. 850 ; Forest Oil Co. v. Crawford, 42 C. C. A. 54, 101 Fed. 851 ; Lombard Invest. Co. v. Seaboard Mfg. Co. 74 Fed. 326. Third. When the party applying represents a party to the bill whose interest has been transmitted by death or operation of law. Ex parte South & Xorth Ala, R Co. 95 U. S. 226, 24 L. ed. 357 ; Chester v. Life Asso. of America, 4 Fed. 491. In the second and third exceptions it will be seen that the persons allowed to become parties are not altogether strangers, but in effect are quasi parties. Lombard Invest. Co. v. Seaboard Mfg. Co. 74 Fed. 326; Fidelity Trust & S. V. Co. v. MobUe Street E. Co. 53 Fed. 850 ; Gasquet v. Fidelity Trust & S. V. Co. 6 C. C. A. 253, 13 U. S. App. 564, 57 Fed. S3. Under the second, where the suit is by some of a class for the benefit of all similarly situated, and a common trustee is de- fendant, or where a suit is by a common trustee and relates to the mortgage or trust deed, a beneficiary will not be allowed to come in, unless his interests are in jeopardy by reason of collu- sion or incompetency or fraud of the trustee. Toler v. East Tennessee, V. & G. E. Co. 67 Fed. 172. See WiDiams v, Morgan, 111 U. S. 696, 697. 2S L. ed. 564, 4 Sup. Ct. Eep. 638; Eichter v. Jerome. 123 TJ. S. 246, 31 L. ed. 137. S Sup. INTEEVENTION. 491 Ct. Eep. 106 ; Fletcher v. Ann Arbor E. Co. 53 C. C. A. 64T, 116 Fed. 481; Farmers' Loan & T. Co. v. Kansas City, W. & N. W. E. Go. 53 Fed. 182 ; Carter v. New Orleans, 19 Fed. 659 ; Farmers' Loan & T. Co. v. Cape Fear & T. Valley E. Co. 71 Fed. 39. Pro Svx> Interesse. What has heretofore been said refers to one "who seeks to be made a party on his own application to contest the issues in the principal case, and whereby, as we have seen, he becomes as fully a party to the original suit as if named in the original bill. This question of making defendants or parties by inter- vention, as stated in Gregory v. Pike, 15 C. C. A. 33, 21 U. S. App. 658, 33 U. S. App. 76, 67 Fed. 846, is entirely dif- ferent from that of an intervention pro sua interesse, permitted in Krippendorf v. Hyde, 110 U. S. 276, 28 L. ed. 145, 4 Sup. Ct. Eep. 27 ; Perry v. Godbe, 82 Fed. 143 ; Phelps v. Oaks, 117 U. S. 241, 29 L. ed. 890, 6 Sup. Ct. Eep. 714; Eaisin v. Statham, 22 Fed. 146, and in cases hereafter to be cited. In this latter case the applicant does not become a party to the main controversy, nor can such applicant change the main is- sues by his intervention. Ibid. Thus when the court has jurisdiction of the res, or where a fund is to be distributed, and the party has to prove his claim against the res, or found, or where one beneficiary desires to contest the claim of another to the fund, then intervention lies. The possession of the court draws the right to intervene by parties having a claim. Eouse v. Letcher, 156 U. S. 50, 39 L. ed. 342, 15 Sup. Ct. Eep. 266 ; Compton v. Jesup, 15 C. C. A. 397, 31 IJ. S. App. 486, 68 Fed. 279 ; Toledo, St. L. & K. C. E. Co. V. Continental Trust Co. 36 C. C. A. 155, 95 Fed. 504, 505; Central Trust Co. v. Carter, 24 C. C. A. 73, 41 U. S. App. 663, 78 Fed. 233 ; Myers v. Luzerne County, 124 Fed. 437; Merritt v. American Steel-Barge Co. 24 C. C. A. 530, 49 U. S. App. 85, 79 Fed. 231 ; Eice v. Durham Water Co. 91 Fed. 433. So a fund to be distributed entitles all parties claim- ing an interest to intervene and show it, and this is true, though the jurisdiction of the court would forbid the filing of an origi- nal bill. Ibid. ; Toler v. East Tennessee, V. & G. E. Co. 67 492 INTEEVENTION. Fed. 172 ; Central Trust Co. v. Carter, 24 C. C. A. 73, 41 U. S. App. 663, 78 Fed. 233 ; National Bank v. Allen, 33 C. C. A. 169, 61 U. S. App. 102, 90 Fed. 555. These rules are illustrated by the familiar cases of receiver- ships, where a party, without reference to citizenship or amount, may intervene. Electrical Supply Co. v. Put-in-Bay Water- works, Light & E. Co. 84 Fed. 740 ; Fish v. Ogdensburgh & L. C. E. Co. 79 Fed. 131 ; Lamb v. Ewing, 4 C. C. A. 320, 12 U. S. App. 11, 54 Fed. 273 ; Farmers' Loan & T. Co. v. Houston & T. C. E. Co. 44 Fed. 116 ; Carey v. Houston & T. C. E. Co. 52 Fed. 674. So in creditors' bills, the practice of permitting judgment creditors to make themselves parties without leave of court is well settled. Myers v. Fenn, 5 Wall. 207, 18 L. ed. 606; Eichmond v. Irons, 121 U. S. 43-47, 30 L. ed. 869-871, 7 Sup. Ct. Eep. 788 ; National Bank v. Allen, 33 C. C. A. 169, 61 U. S. App. 102, 90 Fed. 545-555 ; Hubb v. Bidwell, 81 C. C. A. 43, 151 Fed. 564. The power of a court of equity to permit such interventions rests independent of statute. Eice v. Durham Water Co. 91 Fed. 433, 434; Gregory v. Van Ee, 160 IT. S. 646, 40 L. ed. 567, 16 Sup. Ct. Eep. 431. It is necessarily inherent, or its process would be abused to the injury of others. Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 279. When Intervention Will Not Lie. In Eouse v. Hornsby, 14 C. C. A. 377, 32 U. S. App. Ill, 67 Fed. 220, it was held that when the petition for interven- tion shows a legal demand, such as damages for personal injury, plaintiff is entitled to a jury to assess ; that is, you must estab- lish your claim at law before you can file an intervention. Again, a claim cannot be the subject-matter of intervention in one ancillary jurisdiction, when the party lives and the claim arose in another ancillary jurisdiction. Clyde v. Eichmond & D. E. Co. 65 Fed. 338, 339 ; Sands v. E. S. Greeley & Co. 80 Fed. 196 ; Central Trust Co. v. United States Flour Mill. Co. 112 Fed. 371; Farmers' Loan & T. Co. v. Xorthern P. E. Co. 72 Fed. 26. To illustrate : A receiver is appointed in Texas of a railroad INTERVENTION. 493 running through other States, in which other States ancillary receiverships have been appointed by the Federal courts, say Arkansas and Missouri, then a claim originating in Arkansas cannot be the subject matter of intervention in Missouri. An equitable right cannot be the subject-matter of interven- tion in a suit at law. Gravenberg v. Laws, 40 C. 0. A. 240, 100 Fed. 5, 6 ; Clarke v. Eureka County Bank, 116 Fed. 534. The equitable right must be enforced by a bill in equity, which would be ancillary to the lawsuit, and the question of parties as affecting diversity of citizenship would not affect jurisdic- tion. ]^either would the amount or value of the interest. Gravenberg v. Laws, supra; Clarke v. Eureka County Bank, 116 Fed. 534; Krippendorf v. Hyde, 110 U. S. 287, 28 L. ed. 149, 4 Sup. Ct. Eep. 27. Xor will intervention lie after decree, unless to protect an interest which cannot otherwise be protected. United States v. ISTorthem Securities Co. 128 Fed. 808. Form of Intervention When Res in Court's Possession. Having stated the right of intervention when the res is in pos- session of the court, I will now suggest a form to be used. Title as in bill (in which receiver appointed or the res or fund was put into the hands of the court) adding as before W. F., intervener. Your petitioner, W. F., a citizen of and residing in the county of in the State of , praying for leave to intervene in the above cause, respectfully represents that on the day of , A. D. 19. . ., and prior to the order of this court appointing John Smith receiver of the (railroad, estate, or fund), and placing the property of the said (railroad, estate, or fund) in his hands as such receiver, all of which matters are now pending in this honorable court, your petitioner obtained a judgment in the court of county, in the State of , against the said (railroad, estate, or fund) (here describe judgment or claim, giv- ing court date, amount, etc., and attach certified copy; or, if judgment has been recovered against the receiver so state ; in a word, accurately state your claim, whatever it may be, and such evidence of it as will satisfy the court). That said judgment (or claim) declares and establishes the said sum of dollars as a proper charge (or said claim is a proper charge, etc.) and lien on the earnings of said railroad (or the property of said estate or the fund, etc.), and petitioner prays an order of this honorable court to permit him to intervene and upon hearing to have the lien fixed and the 494 INTEEVENTION. judgment paid in the due order of the administration of the trust and for such further order as to the court may seem equitable. R. F., Solicitor. Attach, as stated, your judgment, certified to from the court where obtained, or your claim properly verified. You may also attach to the petition a motion to refer to the special master usually appointed in these cases, unless there be a general order in the case, as is usual, to refer all intervening petitions to the special master, in which case the clerk vsoll refer the case. If a motion is necessary, then file as follows; Title as in bill; W. F., Intervener. Now comes W. F., intervener, by counsel, and moves the court to refer his petition for intervention in all things to E. M., Esq., special master in chancery, for his examination and report, and intervener will ever pray, etc R. F., Solicitor, etc Citizenship and Amount as Affecting Jurisdiction of Federal Courts in Intervention, Pro Sv^ Interesse. The rule of jurisdiction in Federal courts depending on citizenship and amount, or value of the subject-matter, do not apply to interventions, or other auxiliary suits. Citizenship is not material, and Federal courts having jurisdiction of the original suit ; and having in possession the property or fund in which the intervener has an interest will permit an intervention pro suo interesse without reference to the citizenship of the parties, and this intervention will be permitted by motion petition, or by ancillary bill in equity; and in wliatever way you seek the intervention you may use substantially the form given. Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 279. The diverse citizenship of the original parties, if that be the ground of jurisdiction, is sufficient to support subsequent inter- ventions. Xewton V. Gage, 155 Fed. 604, and cases cited* Clarke v. Eureka County Bank, 116 Fed. 534; Society of Shakers v. Watson, 68 Fed. 730; Krippendorf v. Hyde, 110 INTEEVENTION. 495 U. S. 276, 28 L. ed. 145, 4 Sup. Ct. Eep. 27; Lilienthal v. McCormick, 54 C. C. A. 475, 117 Fed. 96 ; Continental Trust Co. V. Toledo, St. L. & K. C. R. Co. 82 Fed. 642 ; Osborne V. Barge, 30 Fed. 805 ; Park v. New York, L. E. & W. R. Co. 70 Fed. 641 ; Rouse v. Letcher, 156 U. S. 50, 39 L. ed. 342, 15 Sup. Ct. Rep. 266 ; Henderson v. Goode, 49 Fed. 887 ; Far- mers' Loan & T. Co. v. Houston & T. C. R. Co. 44 Fed. 115. But diverse citizenship of original parties will not support an intervention of a third party who is a citizen of the same State with defendant, unless the controversy between complainant and defendant is one which draws to the court's possession the de- fendant's property in which intervener claims an interest. United Electric Securities Co. v. Louisiana Electric Light Co. 68 Fed. 673 ; Seligman v. Santa Rosa, 81 Fed. 524. See For- est Oil Co. V. Crawford, 42 C. C. A. 54, 101 Fed. 849. So citizens of a State having property attached and thus drawn into the Federal court may intervene pro sua interesse for its protection. Compton v. Jesup, 68 Fed. 280, and authorities cited; Gumbel v. Pitkin, 124 U. S. 132, 31 L. ed. 374, 8 Sup. Ct Rep. 379. Nor is Amount Important. "When the Federal court has jurisdiction, and the control of the fund or property, it can entertain jurisdiction of an in- tervention without reference to the amount or value of inter- vener's claim. People's sav. Inst. v. Miles, 22 C. C. A. 152, 40 H. S. App. 341, 76 Fed. 252; National Bank v. Allen, 33 C. C. A. 169, 61 U. S. App. 102, 90 Fed. 545. Amendment of. Bill of Intervention may be amended. Anthony v. Campbell, 50 C. C. A. 195, 112 Fed. 212-217. CHAPTER LXXXL tUTEELOCUTOEY PEOCEEDINGS. Interlocutory Orders. I will not conclude the discussion of the successive steps in a suit in equity, which matures the case for taking evidence, by a brief general view of interlocutory orders. It is necessary, as we have seen at various stages of its progress, to take orders in furtherance of its preparation for final hearing, or for the pres- ervation and protection of property in litigation, or rights therein, as heretofore shown. All such orders are called in- terlocutory orders, and are limited as to time, on their faces sometimes, or by law, as in case of injunctions (equity rule 55; U. S. Eev. Stat. sec. 719, TJ. S. Corap. Stat. 1901, p. 581), or they may continue in force until the final hearing. As said, they may be granted at any time during the progress of the cause, either in term time or vacation, on rule days or such time as the court may appoint for hearing, when not grantable of course. All interlocutory decrees remain under the direction of the court, to be set aside by proper application at any time (Pittsburgh, C. & St. L. E. Co. v. Baltimore & O. R." Co. 10 C. C. A. 20, 22 U. S. App. 359, 61 Fed. 708 ; Blythe v. Hinckley, 84 Fed. 228), and no appeal lies therefrom. (Ibid. ; Perkins v. Foumiquet, 6 How. 209, 12 L. ed. 407 ; see "Appeals"). They are granted on petition or motion, and may be on ex parte applications, as in cases of imminent danger to property, but the general rule is to serve notice of the applica- tion for them by motion or otherwise. When a motion for any character of interlocutory order is made, it should set out every material fact necessary to relief, and especially is this so when a preliminary order is sought that is necessary to protect some right or the property in litigation. Motions of the latter class must be supported by affidavits, and 496 INTEELOCUTOEY PEOCEEDIXGS. 497 when the application is ex parte, the necessity of such character of application mnst be shown in the aiSdavits. Again, if interlocutory relief in such cases is necessary at the time of filing the bill, the facts to support it ought to be set up in the bill, and the bill be sworn to and supported by affi- davits, and the prayer; whether the application be by motion or contained in the bill, it must specifically pray for the relief required and must conform to the case made. Injunctions. TV^rits of injunction pending a suit in equity may issue when- ever cause exists, by the court or a judge thereof. We have al- ready seen by equity rule 23 that an injunction may be asked for pending the suit, and in ease of absolute necessity may is- sue before the bill is filed. Universal Sav. & T. Co. v. Stone- burner, 51 C. C. A. 208, 113 Fed. 254. Horn v. Pere Mar- quette E. Co. 151 Fed. 634. Xew Code, chap. 11, sees. 263, 264, 265. By Whom Granted. By any justice of the Supreme Court or circuit or district judges of the United States (U. S. Kev. Stat. sec. 719), but under the following conditions: !N"ew Code section 264. A justice of the Supreme Court cannot hear an application in any cause pending in the circuit court elsewhere than with- in the limits of the judicial circuit to which he is allotted, or at such place outside of the circuit as the parties may stipulate in writing, except when it cannot be heard by the circuit or district judge of the district in which the suit is pending. A district judge cannot hear the application in any case where a party has had a reasonable time to apply to the circuit court, and when issued by the district judge, it can continue no longer than to the term of the circuit court next ensuing, unless otherwise ordered by the circuit court. U. S. Eev. Stat. sec. 719 ; equity rule 55, 5 Bann. & Ard. 590 ; Goodyear Dental Vulcanite Co. v. Folsom, 3 Fed. 509. See sees. 264, 265, and 266 of Xew Code. These sections change the old law in cases restraining the enforcement of a State law on the ground of constitutionality. Three judges S. Eq.— 32. 498 INJUH'CTIOH'S. must hear and determiiie it, one of whom must be a justice of the Supreme Court or a circuit judge. On Notice. U. S. Eev. Stat. sec. 718, TJ. S. Comp. Stat. 1901, p. 580, provides that 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 in- jury from delay, grant an order restraining the act sought to be enjoined until the decision on the motion, and such order may be granted, with or without security in the discretion of the court or judge. By equity rule 55, if injunction is asked in bill to stay proceedings at law, and defendant does not appear and plead, plaintiff will be entitled on motion without notice to the writ ; but that special injunctions shall be grantable only on due notice to the other party by the court in term, or a judge in vacation after a hearing, which may be ex parte, if adverse party does not appear at the time and place ordered. See see. 263, Xew Code, embodying the old law. Time May Be Issued. Where a bill in chancery is filed with the court, it has juris- diction to issue an injunction though the bill was not lodged in the clerk's oiEee and no subpoena issued until two days after. Universal Sav. & T. Co. v. Stonebumer, 51 C. C. A. 208, 113 Eed. 251. Temporary injunctions may be issued when danger of irreparable injury is apparent, upon application. The court must exercise a sound judicial discretion in granting or refus- ing. Steams-Eoger Mfg. Co. v. Brown, 52 C. C. A. 559, 114 Fed. 940, 942; IT. S. Eev. Stat. sec. 718. Xew Code, sec. 2C3- 266. Enjoining Proceedings in State Courts. By U. S. Eev. Stat. sec. 720, U. S. Comp. Stat. 1901, p. 581, it is provided that an injunction shall not be granted to "stay proceedings" in a State court except in bankruptcv cases. This statute limits the powers of the circuit court in further^ ance of a harmonious administration of justice in the two INJUNCTIONS, 499 « jurisdictions. Central Trust Co. v. Western Nortli Carolina E. Co. 112 Fed. 475, 476; Evans v. Gorman, 115 Fed. 401; Se- curity Trust Co. V. Union Trust Co. 134 Fed. 301. In bank- ruptcy the Federal courts may enjoin taking away property from the trustee. Ee Gutman, 114 Fed. 1009 ; New Eiver Coal et Land Co. v. Euffner Bros. 165 Fed. 881-882 ; Ee Blue Stone Bros. 174 Fed. 54. However, we will see further that the limi- tation does not apply to an injunction issued by the Federal courts in defense of its jurisdiction of a cause of action, when the res is in possession of the court. Ibid. U. S. Eev. Stat. art. 720, embodied in sec. 265 of the New Code. What Are "Proceedings." Proceedings cover not only the successive steps in the suit up to the entry of judgTnent, but all process necessary to the full execution of the judgment. Mills v. Provident Life & T. Co. 100 Fed. 346, 347 ; Phelps v. Mutual Eeserve Fund Life Asso. 112 Fed. 463, 464 ; Leathe v. Thomas, 38 C. C. A. 75, 97 Fed. 136; American Asso. v. Hurst, 7 C. C. A. 598, 16 U. S. App. 325, 59 Fed. 1 ; Provident Life & T. Co. v. Mills, 91 led. 435 ; Security Trust Co. v. Union Trust Co. 134 Fed. 301. Section 720 originated in 1793, and is a legislative com- mand that the courts of these two jurisdictions must move within their respective limits, and exercise their respective powers without conflict. The courts have adhered with re- markable consistency to the letter and spirit of the law. It may be, as often declared, that the act was hut the declarativon of that comity between courts of concurrent jurisdiction, which has always been recognized, but there is no doubt that its mandatory form has been a wholesome restriction upon the Federal courts. It has emphasized the duty to give preference to those methods of procedure which served to conciliate the distinct and independent tribunals of the two systems. Phelps V. Mutual Eeserve Fund Life Asso. 61 L.E.A. 717, 50 C. C. A. 339, 112 Fed. 464, 465; Evans v. Gorman, 115 Fed. 401, 402; Taylor v. Carry], 20 How. 597, 15 L. ed. 1032. When Section 720 Does Not Apply. It is settled, however, that section 720 does not apply when 500 Iir JUNCTIONS. the court is seeking to maintain its own jurisdiction over the subject-matter, the possession of which has been first obtained by the court. It is a settled rule of comity that the possession of the res vests the court first acquiring the same with the power to hear and determine all controversies relating thereto, and disables the other courts of concurrent jurisdiction from interfering therewith. Phelps v. Mutual Reserve Fund Life Asso. 61 L.E.A. 717, 50 C. C. A. 339, 112 Fed. i65 ; Gamer V. Second Xat. Bank, 16 C. C. A. 86, 33 U. S. App. 91, 67 Fed. 833 ; Julian v. Central Trust Co. 193 U. S. 93, 48 L. ed. 629, 24 Sup. Ct. Rep. 399 ; Foster v. Lebanon Springs R. Co. 100 Fed. 543: Eodgers v. Pitt, 96 Fed. 671; Farmers' Loan & T. Co. V. Lake Street Elev. E. Co. 177 U. S. 61, 44 L. ed. 671, 20 Sup. Ct. Eep. 564; Knott v. Evening Post Co. 124 Fed. 352; McDowell v. McCormick, 57 C. C. A. 401, 121 Fed. 65; Madisonville Traction Co. v. St. Bernard Min. Co. 196 U. S. 239, 49 L. ed. 462, 25 Sup. Ct. Eep. 251 ; Southern E. Co. v. Simon, 153 Fed. 234; Massie v. Buck, 62 C. C. A. 535, 128 Fed. 27; Stewart v. Wisconsin C. E. Co. 117 Fed. 782; Mer- cantile Trust k. D. Co. V. Eoanoke & S. E. Co. 109 Fed. 3 ; Ee Chetwood, 165 U. S. 443, 41 L. ed. 782, 17 Sup. Ct. Eep. 3S5; Central Trust Co. v. Western Xorth Carolina E. Co. 89 Fed. 24; Baltimore & O. E. Co. v. Wabash E. Co. 57 C. C. A. 322, 119 Fed. 679; Starr v. Chicago, E. L k P. E. Co. 110 Fed. 6, 7. And the rule is not restricted in its application to property actually seized, but appears as well when suits are brought to enforce liens, to marshal assets, administer trusts, or liquidate insolvent estates, or whenever the suit is of such a character that the court may in its progress be compelled to assume possession of the property to be affected. Ibid. ; Mer- ritt V. American Steel Barge Co. 24 C. C. A. 530, 49 U. S. App. 85, 79 Fed. 231 ; Baltimore k O. E. Co. v. Wabash R Co. 57 C. C. A. 322, 119 Fed. 6^0; Farmers' Loan k T. Co. V. Lake Street Elev. E. Co. 177 U. S. 61. 44 L. ed. 671, 20 Sup. Ct. Eep. 564; Harkrader v. Wadley. 172 L'. S. 14S. 43 L. ed. 399, 19 Sup. Ct. Eep. 119 : Marks v. Mark-. 75 Fed. 333 ; Shields v. Coleman, 157 U. S. 178. 39 L. ed. 663. 15 Sup. Ct. Eep. 570 ; Owens v. Ohio C. E. Co. 20 Fed. 12, 1?, ; Apple- ton Waterworks Co. v. Central Trust Co. 35 C. C. A. 302, 93 Fed. 289. Xor is it restricted to protecting its own prior ju- INJUNCTIONS. 501 risdiction, but the Federal court may enjoin when necessary to protect its decree. Central Trust Co. v. Western North Caro- lina R. Co. 112 Fed. 471-477 ; Stewart v. Wisconsin C. E. Co. 117 Fed. 782. Xor does this section affect the right of the Federal court to restrain a judgment of a State court obtained by fraud. Phelps V. Mutual Eeserve Fund Life Asso. 61 L.R.A. 717, 50 C. C. A. 339, 112 Fed. 465 and cases cited; Wood v. Davis, 108 Fed. 130 ; Hendryx v. Perkins, 52 C. C. A. 435, 114 Fed. 807, and cases cited; Arrowsmith v. Gleason, 129 U. S. 86, 32 L. ed. 630, 9 Sup. Ct. Eep. 237; Marshall v. Holmes, 141 U. S. 590, 35 L. ed. 871, 12 Sup. Ct. Eep. 62; Bailey v. Willeford, 126 Fed. 806, 807; United States v. Beebe, 34 C. C. A. 321, 92 Fed. 244; United States v. Throckmorton, 98 U. S. 68, 25 L. ed. 96. See "Bill of Eevivor for Fraud." Nor when a judgment is obtained in a State court by collusion, conspiracy, or false swearing. Eitchie v. Sayers, 100 Fed. 533 ; Braxton V. Eich, 47 Fed. 178 ; Perry v. Johnston, 95 Fed. 325 ; Moor v. Moor (Tex. Civ. App.), 63 S. W. 350; Holton v. Davis, 47 C. C. A. 246, 108 Fed. 150, 151. Nor when the judgment has been obtained without service (Cooper v. Newell, 173 U. S. 556, 43 L. ed. 808, 19 Sup. Ct. Eep. 506; Hekking v. Pfaff, 43 L.E.A. 618, 33 C. C. A. 328, 50 U. S. App. 484, 91 Fed. 60), or jurisdiction (Phoenix Bridge Co. v. Castleberry, 65 C. C. A. 481, 131 Fed. 177, 178) ; or when it is otherwise void (Harrison v. Lokey, 26 Tex. Civ. App. 404, 63 S. W. 1030) ; and State courts may thus attack Federal judgments. Ealston V. Sharon, 51 Fed. 707 ; League v. Scott, 25 Tex. Civ. App. 318, 61 S. W. 521. See Central Nat. Bank v. Stevens, 169 U. S. 463, 42 L. ed. 818, 18 Sup. Ct. Eep. 403. When Jurisdiction Attaches. While the rule that the court obtaining possession of the subject-matter prior in point of time cannot be interfered with, yet the issue as to when the jurisdiction attached has often arisen. Baltimore & 0. E. Co. v. Wabash E. Co. 57 C. C. A. 322, 119 Fed. 679 ; Merritt v. American Steel Barge Co. 79 Fed'. 231, 24 C. C. A. 530, 49 U. S. App. 85. In testing this, the Federal courts have held that jurisdiction does not attach 502 CONFLICTING JtrEISDICTION. except on the service of process, and the rule is not controlled by State statutes. United States v. Eisenbeis, 50 C. C. A. 179, 112 Fed. 196. In Owens v. Ohio C. E. Co. 20 Ted. 10, it is said that the jurisdiction of the court attaches on the service of process. Eodgers v. Pitt, 96 Fed. 673; Union Mut. L. Ins. Co. v. Uni- versity of Chicago, 10 Biss. 191, 6 Fed. 443 ; Hughes v. Green, 28 C. C. A. 537, 56 U. S. App. 56, 84 Fed. 833 ; Zimmerman V. So Eelle, 25 C. C. A. 518, 49 U. S. App. 3S7. SO Fed. 417; Colston V. Southern Home Bldg. & L. Asso. 99 Fed. 309. In Eodgers v. Pitt, 96 Fed. 673, it is said that jurisdiction of a cause does not attach, within the meaning of the general rule, by filing the complaint and issuance of summons, but attaches only on the service of process, and the court whose process is first served holds the cause. Ibid, and cases cited ; Baltimore & O. R Co. V. Wabash E. Co. 57 C. C. A. 322, 119 Fed. 679; Shields v. Coleman, 157 U. S. 177, 178, 39 L. ed. 663, 664, 15 Sup. Ct. Eep. 570; United States v. American Lumber Co. 80 Fed. 315. There is no question that process which first seizes and holds property and brings it within the dominion of the court gives to that court exclusive jurisdiction. Vowinckel v. X. Clark & Sons, 62 Fed. 992. 993; Eobinson v. Mutual Eeserve L. Ins. Co. 162 Fed. 794; Buck v. Colbath, 3 Wall. 334. IS L. ed. 257 ; Eoyal Trust Co. v. Washburn, B. & I. E. Co. 71 C. C. A. 579, 139 Fed. 865; Cooper v. Eeynolds, 10 Wall. 317, 19 L. ed. 932; Gates v. Bueki, 4 C. C. A. 116, 12 U. S. App. 69, 53 Fed. 967; Southern Bank & T. Co. v. Fol^om, 21 C. C. A. 568, 43 U. S. App. 713, 75 Fed. 931 : Kelly. M. & Co. v. Sioux Xat. Bank, 81 Fed. 4. But in suits for foreclosure of liens, or when the suit is substantially in rem, and by the allegations of the bill the dominion over the subject-matter is contemplated, and necessary to a proper decree, then a suit in equity is begun by filing thebiU. Louisville Trust Co. v. Knott. 65 C. C. A. 15S, 130 Fed. 525: Farmers' Loan & T. Co. v. Lake Street Elev. E. Co. 177 U. S. 61, 44 L. ed. 671, 20 Sup. Ct. Eep. 564; Mound City Co. v. Castleman, 177 Fed. 510: Merritt v. Ameri- can Steel Barge Co. 24 C. C. A. 530. 49 U. S. App. -.5. 79 Fed- 231 : Heidritter v. Elizabeth Oil Cloth Co. 112 V. S. 294-301, 2S L. ed. 729-731, 5 Sup. Ct. Eep. 135: Fardin-r v. Com' CONFLICTING JURISDICTION. 503 Products Eef. Co. 94 C. C. A. 144, 168 Fed. 659; Appleton Waterworks Co. v. Central Trust Co. 35 C. C. A. 302, 93 Fed. 5S6-2SS. See Humane Bit Co. v. Barnet, 117 Fed. 318, holding a suit in equity is begun by filing bill, following Farmers' Loan & T. Co. V. Lake Street Elev. K. Co. 177 U. S. 61, 44 L. ed. 671, 20 Sup. Ct. Eep. 564, but as between the parties in a pro- ceeding in rem, when process issued. The Farmers' Loan & T. Co. V. Lake Street Elev. B. Co. supra was a foreclosure of a mortgage in the Federal court the defendant filed a bill in the State court and sought to enjoin proceedings in the Fed- eral court. The bill had been first filed in the Federal court, but process from the State court had been first served. The court says filing the bill in the Federal court gave jurisdiction to this court first, and it was not controlled by the service of process. Ibid. The filing of the bill and the iona fide issue of process is sufficient. Equity rule 11. The court says the rule as stated is of special importance in its application to Federal and State courts ; and, in applying the doctrine of lis pendens to the case of a third person who is a bona fide purchaser, notice is held to begin from date of service of process, and not from filing the bill. Ne Exeat. In equity rule 23, stating what the prayer for process shall contain, it is provided that if a writ ne exeat regno pending the suit is asked in the prayer for relief, it can be granted if jus- tified by the allegations of the bill. A form for the writ will be found in Griswold v. Hazard, 141 U. S. 263, 35 L. ed. 681, 11 Sup. Ct. Eep. 972, 999, and it will be seen that it is designed to prevent a defendant against whom an indebtedness is alleged from going beyond the juris- diction of the court in which the suit is pending, and to secure which sufficient bail or security is required of the defendant, or to be imprisoned in case of refusal to give it. A party arrested upon ne exeat may obtain a discharge of the writ upon motion or petition, upon defendant's giving security to answer the bill and to render himself amenable to process during the pendency of the suit, and to such process as may be issued to compel a performance of the decree. Griswold v. Ha- zard, 141 U. S. 281, 35 L. ed. 687, 11 Sup. Ct. Eep. 972, 999. 504: NE EXEAT. The writ is in force, when issued, until the judgment is sat- isfied, or property security given, or is some way discharged by the court (Lewis v. Shainwald, 48 Fed. 500 ; MclSTamara v. Dwyer, 7 Paige, 239, 32 Am. Dec. 631), and it seems that the writ may, after judgment, be issued upon motion or petition, though there was no prayer in the bill asking it. Ibid. ; 14 Am. Dec. 561, note; Lewis v. Shainwald, 48 Fed. 500; U S. Eev. Stat. sec. Y17, TJ. S. Comp. Stat. 1901, p. 580. It is not of itself a remedy, but a means to effectuate a rem- edy, viz., by keeping a party within the jurisdiction of the court. Shainwald v. Lewis, 69 Fed. 496, 497 ; Ee Cohen, 136 Fed. 999 ; Gooding v. Keid, M. & Co. 101 C. C. A. 310, 177 Fed. 684. The old law is embodied in sec. 261 of the New Code. CHAPTER LXXXIL AUXILIARY SUITS. All cross bills, interventions, bills of revivor, supplemental bills, and bills for injunctive relief pending a suit are auxiliary bills in equity. The object and effect of filing these bills have been already discussed, and I now propose only to speak of aux- iliary bills generally. All bills growing out of or connected with a pending suit are called auxiliary or ancillary suits in equity. Brooks v. Lau- rent, 39 C. C. A. 201, 98 Fed. 652 ; McDonald v. Seligman, 81 Fed. 753 ; Campbell v. Golden Cycle Min. Co. 73 C. C. A. 260, 141 Fed. 610; Hobbs Mfg. Co. v. Gooding, 16i Fed. 93; Cooper V. Xewton, 160 Fed. 190; Brown v. AUebach, 156 Fed. 697; O'Connor v. O'Connor, 146 Fed. 994; King v. Euskirk, 24 C. C. A. 82, 42 U. S. App. 249, 78 Fed. 233-235. The jurisdiction of the main suit supports the auxiliary bill. Eoss V. Ft. Wayne, 11 C. C. A. 288, 24 U. S. App. 113, 63 Fed. 471; Cunningham v. Cleveland, 39 C. C. A. 211, 98 Fed. 660; Continental Trust Co. v. Toledo, St. L. & K. C. E. Co. 82 Fed. 642 ; Compton v. Jessup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 263; Everette v. Independent School Dist. 102 Fed. 530; Carey v. Houston & T. C. E. Co. 161 U. S. 133, 40 L. ed. 644, 16 Sup. Ct. Eep. 537. But such bill must, both in a proper and legal sense, be an ancillary bill ; it must, in fact, be only a continuation of the original suit, that is, it must re- late to some matter already litigated by the same parties or their representatives. If the bill contains matter not before litigated by the same parties standing in the same interests, that is, if new parties are brought in, and new matter charged as a basis of relief, then the bill is not an ancillary, but original bill, and cannot be supported by the former suit, but must stand independently on its parties and subject-matter for juris- diction in the Federal courts. Union Cent. L. Ins. Co. v. Phil- 505 506 AUXILIAET SUITS. lips, 41 C. 0. A. 263, 102 Ted. 19 ; Anglo-Florida Phosphate Co. V. McKibben, 13 C. C. A. 36, 23 U. S. App. 675, 65 Fed. 529; Eaphael v. Trask, 118 Fed. 777; Campbell v. Golden Cycle Min. Co. 73 C. C. A. 260, 141 Fed. 610 ; Shinney v. North American Sav. Loan & Bldg. Co. 97 Fed. 9. Illustrations. We have the most frequent illustrations of these ancillary bills, which are brought to restrain or regulate judgments recov- ered in law or equity. Leigh v. Kewanee Mfg. Co. 127 Fed. 990 ; South Penn Oil Co. v. Calf Creek Oil & Gas Co. 140 Fed. 508 ; Broadis v. Broadis, 86 Fed. 951 ; Freeman v. Howe, 24 How. 460, 16 L. ed. 752 ; Pacific K. Co. v. Missouri P. E. Co. Ill U. S. 505, 28 L. ed. 498, 4 Sup. Ct. Eep. 583 ; Krip- pendorf v. Hyde, 110 U. S. 276, 28 L. ed. 145, 4 Sup. Ct. Eep. 27 ; Virginia-Carolina Chemical Co. v. Home Ins. Co. 51 C. C. A. 21, 113 Fed. 3 ; Bradshaw v. Miners' Bank, 26 C. C. A. 673, 53 U. S. App. 399, 81 Fed. 902. So bills to revive a judgment. Wanderly v. Lafayette County, 77 Fed. 665. Or set aside a decree. Carey v. Houston & T. C. E. Co. 161 TJ. S. 128, 40 L. ed. 643, 16 Sup. Ct. Eep. 537; Symmes v. Union Trust Co. 60 Fed. 853. Or to modify or correct it. Thompson v. Schenectady Co. 124 Fed. 274. Or to obtain the enforcement or construction of a former decree. Jenks v. Brewster, 96 Fed. 625. So all bills filed by receivers to protect property or re- move cloud. Connor v. Alligator Lumber Co. 98 Fed. 155 ; Toledo, St. L. & K. C. E. Co. v. Continental Trust Co. 36 C. C. A. 155, 95 Fed. 497; Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 279-280; Pope v. Louisville, K A. & C. E. Co. 173 U. S. 578, 43 L. ed. 817, 19 Sup. Ct. Eep. 500; Brookfield v. Llecker, 118 Fed. 942; Bausman v. Denny, 73 Fed. 69. Or suits brought against the receivers touching the property in their possession. Shinney v. North American Sav. Loan & Bldg. Co. 97 Fed. 9 ; Toledo, St. L. & K C. E. Co. V. Continental Trust Co. 36 C. C. A. 155, 95 Fed. 497; Washington v. Northern P. E. Co. 75 Fed. 333 ; Sullivan v. Barnard, 81 Fed. 886; Carpenter v. Northern P. E. Co. 75 Fed. 850; Continental Trust Co. v. Toledo, St. L. & K. C. E. Co. 82 Fed. 642. Or in any case, as heretofore shown, where AUXILIAEY SUITS. 507 the court takes possession of property or a fund for distribu- tion, and wherein all bills filed by those claiming an interest are auxiliary; and the jurisdiction is not affected because the ques- tion involved may be of a legal nature. Cunningham v. Cleve- land, 39 C. C. A. 211, 98 Fed. 657; St. Louis & K. C. K. Co. v. Continental Trust Co. 36 C. C. A. 195, note; Continental Trust Co. V. Toledo, St. L. & K. C. E. Co. 82 Fed. 643 ; Osborn & Co. V. Barge, 30 Fed. 805 ; see Whalen v. Enterprise Transp. Co. 164 Fed. 96; White v. Ewing, 159 U. S. 36, 40 L. ed. 67, 15 Sup. Ct. Eep. 1018. So in matters of injunctive relief that becomes necessary during the pendency of a cause in equity or law; bills filed in aid of such suits to preserve property, or the status of parties and subject-matter, are auxiliary. South Penn Oil Co. v. Calf Creek Oil & Gas Co. 140 Fed. 508 ; Hill V. Kuhlman, 31 C. C. A. 87, 59 U. S. App. 82, 87 Fed. 498 ; Virginia-Carolina Chemical Co. v. Home Ins. Co. 51 C. C. A. 21, 113 Fed. 3 ; Freeman v. Howe, 24 How. 460, 16 L. ed. 752 ; Berliner Gramophone Co. v. Seaman, 51 C. C. A. 440, 113 Fed. 750; Jones v. Andrews, 10 Wall. 333, 19 L. ed. 937; West v. East Coast E. Co. 51 C. C. A. 426, 113 Fed. 742. I cannot possibly cover by illustration the field when and where these auxiliary bills are appropriate, so I will conclude by calling attention to the distinguishing features of these bills from original bills in Federal courts. First. As to the citizenship of the parties, and other mat- ters affecting the jurisdiction of Federal courts. Second. As to the service of process when auxiliary bills are filed. First. These bills can be filed and maintained in the Fed- eral courts, though the court would not have jurisdiction of them as original bills (Eice v. Durham Water Co. 91 Fed. 433 ; American Surety Co. v. Lawrenceville Cement Co. 96 Fed. 25 ; Brooks v. Laurent, 39 C. C. A. 201, 98 Fed. 652 and cases cited; Milwaukee & M. E. Co. v. Chamberlain, 6 Wall. 748, 18 L.'ed. 859 ; Osborn & Co. v. Barge, 30 Fed. 805 ; First ISTat. Bank v. Salem Capital Flour-Mills Co. 31 Fed. 580 ; Lilienthal V. McCormick, 54 C. C. A. 475, 117 Fed. 96), because neither diverse citizenship, residence, or amount, nor value of subject- matter, as required under the general judiciary act, are neces- 508 AUXILIARY SUITS. sary to appear to support the jurisdiction (Toledo, St. L. & K. C. R. Co. V. Continental Trust Co. 36 C. C. A. 155, 95 Fed. 497; Central Trust Co. v. Bridges, 6 C. C. A. 539, 16 U. S. App. 115, 57 Fed. 753 ; Park v. New York, L. E. & W. E. Go. 70 Fed. 643 ; Morgan's L. & T. K. & S. S. Co. v. Texas C. E. Co. 137 U. S. 201, 34 L. ed. 635, 11 Sup. Ct. Eep. 61; Lilienthal v. MeCormick, 54 C. C. A. 75, 117 Fed. 96 ; Ames Eealty Co. v. Big Indian Min. Co. 146 Fed. 179 ; Xewton v. Gage, 155 Fed. 604; Ulman v. Jaeger, 155 Fed. 1011; Craig V. Dorr, 76 C. C. A. 559, 145 Fed. 311; Aldrich v. Campbell, 38 C. C. A. 347, 97 Fed. 663; Myers v. Hettinger, S7 C. C. A. 369, 94 Fed. 370 ; Widaman v. Hubbard, 88 Fed. 812 ; Ee Ty- ler, 149 U. S. 181, 37 L. ed. 694, 13 Sup. Ct. Eep. 785). Svhstituted Service. Second. As to service of process in auxiliary bills, equity rule 13 requires that the service of all subpoenas shall be by de- livering a copy to the defendant personally, or leaving a copy at the dwelling house or usual place of abode; but notwithstand- ing this rule and equity rules 14, 15, and 16, it is now well set- tled that in all classes of proceedings of an auxiliary character the service of process may be made by what is called substituted service. Every departure from the rule governing service of process as provided in equity rule 13, and by wliich other methods are provided for obtaining jurisdiction over parties, is substituted service. Boswell v. Otis, 9 How. 350, 13 L. ed. 170. Thus, service on the agent or attorneys of the parties to the suit, in lieu of the service on the parties themselves, when permitted, is substituted service. Ibid. There must be an order for this service. Pacific E. Co. v. Missouri P. E. Co. 1 McCrary, 647, 3 Fed. 772 ; Gregory v. Pike, 25 C. C. A. 48, 50 U. S. App. 4, 36 C. C. A. 299, 94 Fed. 373, 79 Fed. 520. So the service authorized by section 8 of the act of 1S75, providing for special process to be sent beyond the limits of the State, or by publica- tion, is a form of substituted service. Forsyth v. Pierson, 9 Fed. 801. On Agents. Service on agents or attorneys of parties is not known to AUXILIAKY SUITS. 509 equity on origiual bills, but applies to auxiliary bills, as in cross bills (Gregory v. Pike, :2'J Fed. 58S; Dunn v. Clarke, 8 Pet. o, 8 L. ed. 8i0), or suit against a State (Port Eoyal & A. K. Co. V. South Carolina, (JO Fed. 552) ; or interventions, and such bills as are in fact continuations of the original suit (Gasquet V. Fidelity Trust & S. V. Co. 6 C. C. A. 253, 13 U. S. App. 564, 57 Fed. 80; Fidelity Trust & S. V. Co. v. Mobile Street R. Co. 53 Fed. 851). The relief sought must be germane to the suit, and not under new facts not in the original bill, in order to support substi- tuted service (Ibid.), as ancillary bills of an original nature must be served as original bills (Gregory v. Pike, 25 C. C. A. 48, 47 U. S. App. 4, 79 Fed. 521, and cases cited; Smith v. ^Yoolfolk, 115 U. S. 143, 29 L. ed. 357, 5 Sup. Ct. Eep. 1177; Manning v. Berdan, 132 Fed. 382 ; Bowen v. Christian, 16 Fed. 729: Providence Eubber Co. v. Goodyear, 9 Wall. 810, 19 L. ed. 589 ; Shainwald v. Davids, 69 Fed. 702). The cross bill must have some legal or equitable merit to support such serv- ice. Muhlenburgh County v. Citizens' Nat. Bank, 65 Fed. 539. Its use has been permitted in injunctions to restrain or in aid of actions at law ; and in all these instances the attorney representing the defendant in the bill, who had conducted the action at law, is a recognized agent upon whom the service can be made. Abraham v. Xorth German F. Ins. Co. 3 L.E.A. 188, 37 Fed. 731 ; Cortes Co. v. Thannhauser, 20 Blatchf. 59, 9 Fed. 227; Bartlett v. Sultan of Turkey, 19 Fed. 346; Paine V. Warren, 33 Fed. 358. To illustrate : An action at law is brought on a policy of in- surance, but it is discovered that a reformation is necessary, for which you must file a bill in equity ; in such case you may serve the attorney of the defendant in the common-law suit by deliver- ing the subpa?na to him. 37 Fed. 731, supra. Persons belonging to a class represented in a suit, who are regarded as quasi parties, may have service on the attorney of nonresident parties, if they should file a petition in a suit to protect themselves. Fidelity Trust ct S. V. Co. v. Mobile Street Co. 53 Fed. 851 ; Gasquet v. Fidelity Trust 6L' S. V. Co. 6 C. C. A. 253, 13 U. S. App. 564, 57 Fed. SO. Substituted service is sometimes allowed on a party who has absconded to avoid serv- ice or who conceals himself, but has a legal and acknowledged 610 AUXILIAEY SUITS. representative or general agent in the jurisdiction of the court. Shainwald v. Davids, 69 Fed. 702. Character of Attorney on 'Whom Service Made. If the attorney is not a general agent of the party to be served, then the service is not good (Shainwald v. Davids, su- pra; Eowen v. Christian, 16 Fed. 730; Cortes Co. v. Thann- hauser, 20 Blatchf. 59, 9 Fed. 228; Brown v. Arnold, 127 Fed. 390; Pike v. Gregory, 36 C. C. A. 299, 94 Fed. 374; Smith v. Woolfolk, 115 U. S. 143-150, 29 L. ed. 357-360, 5 Sup. Ct. Eep. 1177) ; and the bill must not contain such new facts or prayer for relief as would destroy the presumption that the attorney on whom the service was made was authorized to rep- resent the respondent in the cross bill. Fidelity Trust it S. V. Co. V. Mobile Street R. Co. 53 Fed. 851. Bowen v. Christian, 16 Fed. 729. How Substituted Service Obtained. This character of service can only be made on application to the court and upon an order by the court granting leave to serve the attorney or agent; if not based on an order of court, it is void. Pacific E. Co. v. Missouri P. E. Co. 1 ilcCrary, 047, 3 Fed. 772 ; Pike v. Gregory, 36 C. C. A. 299, 94 Fed. 373, 374, S. C. 25 C. C. A. 4S^ 50 U. S. App. 4, 79 Fed. 520; Fidelity Trust k S. Y. Co. v. Mobile Street E. Co. 53 Fed. Sol; Gage v. Eiverside Trust Co. 156 Fed. 1002. The order to make the service is granted on motion filed for that purpose, and the motion must be based on some legal or equitable merit, as shown in your auxilipry biU (Muhlenburg Countv v. Citi- zens' Xat. Bank, 65 Fed. 537), and the circumstances render- ing such service necessary must be clearly stated (Ibid. ; Shain- wald V. Davids, 69 Fed.' 702, 703 ; Oglesby v. AttriU, 14 Fed. 214). The application for substituted service may be stated in the bill or by motion setting up the facts iipon which substituted service will be granted, and whether in the biU, or otherwise, should be as follows : complainant shows that the said C. D., defendant, is a resident of Kew AUXILIARY SUITS. 511 Urleans and citizen of the State of , and is not an inhabitant and citizen of the district of , where this suit is brought, and cannot be found therein so as to be served witli process and summons to appear as defendant in this suit; and complainant shows that the said C. D. has an attorney appearing for him in this suit and sundry other suits brouglit by tlie said C. D. cone fining tlie matter in controversy, some of which are still pending, namely, Charles Smith, Esq., of this city. Wherefore tlie complainant A. B. prays that this court may order that notice of this suit and a summons to appear therein may be served on said Charles Smith, Esq., and that such notice being thus duly served may be held to be notice of this suit duly served on the defendant C. D. The form as above given is only the general frame work of the application. If the substituted service is sought of a cross bill, or in an injunction proceeding, or in any auxiliary suit, or in whatever proceeding, your bill or your motion must show that it is a proceeding in which substituted service is per- mitted, and that the circumstances exist which render such service necessary. Constructive service on nonresidents has al- ready been discussed and forms given. Motion to Vacate. If there is any ground upon which a motion to vacate the substituted service can be made, you should file it at once, and you may use the following form: Title as in bill. And now comes C. D., defendant in this cause, and not admitting the jurisdiction of the court in or over the above entitled cause, and for the purpose of objecting to the exercise of this court of any such jurisdiction, comes and moves the court that the writ of subpoena issued out of the clerk's office of said court on the day of , A. D. 19 , which has not been served on him as the law requires, may be quashed and that said cause may be dismissed by the court for want of jurisdiction of the same. By Charles Smith, his solicitor, who appears specially for the purpose of raising the question of jurisdiction, and that alone. Charles Smith, Solicitor for C. D. Pike V. Gregory, 36 C. C. A. 299, 94 Fed. 374. Be careful in this motion that you do not put in issue any other fact than that which asserts jurisdiction, or you waive the service. 512 AUXILIAEY SUITS. Interpleader. A bill of interpleader is filed by one who has the possession, but no interest in the subject-matter of the suit. It seeks the instruction of the court as to whom the fund or property in possession should be delivered as between contesting litigants. Bolin V. St. Louis Southwestern E. Co. — Tex. Civ. App. — 61 S. W. i-i-i. In Groves v. Sentell, 153 U. S. 4S5, 38 L. ed. 785, 14 Sup. Ct. Rep. 898, it is said: The general rule is that a party who has an interest in the subject-matter of the suit cannot file a bill of interpleader, strictly so called ; in fact, per- fect disinterestedness is an essential ingredient of such bill, cit- ing Killian v. Ebbinghaus, 110 U. S. 568-572, 2S L. ed. 246- 24S, 4 Sup. Ct. Hep. 232, which declares that a bill of inter- pleader must aver that petitioner has no interest in the subject- matter of the suit, must admit title in claimants, and aver in- difference beween them, and cannot seek relief against either. Standley v. Roberts, 8 C. C. A. 305, 19 U. S. App. 407, 59 Fed. 841 ; Pusey k J. Co. v. Miller, 61 Fed. 401 ; Pcnn :Mut. L. Ins. Co. V. Union Trust Co. 83 Fed. S91; see Provident Sav. Life Assur. See. v. Loeb, 115 Fed. 359 ; and McXamara V. Provident Sav. Life Assur. Soc. 52 C. C. A. 530, 114 Fed. 912-914; Stevens v. Germania L. Ins. Co. 26 Tex. Civ. App. 153, 62 S. W. 826; Jackson & S. Co. v. Pearson, 60 Fed. 123. Bill in Sature of Interpleader. There has been recognized in Groves v. Sentell, 153 L. S. 485, 38 L. ed. 792, 14 Sup. Ct. Rep. S9S. and many other cases, a bill in the nature of a bill of interpleader when com- plainant sets up, as between the conflicting interests of par- ties to the suit, an interest for which equital^le relief is sought. Ibid. ; McXamara v. Provident Sav. Life Assur. Soc. 52 C. C. A. 530, 114 Fed. 012 : Lackett v. Rumbaugh, 45 Fed. 32 and cases cited; Gregory v. Pike, 15 C. C. A. 33, 21 L'. S. App. 65S. 33 U. S. App." 76. 67 Fed. 844, 845. But when a com- plainant in a bill of interpleader has acquired an interest from • two adverse claimants, his bill of interpleader cannot be sus- tained. Standley v. Roberts, S C. C. A. 305, 19 U. S. App. ^07. 59 Fed. 840-842. CHAPTER LXXXIII. EVIDENCE IN EQUITY SUITS. The replication having been filed, which puts the cause at issue, the evidence must now be taken in support of the issues. There are several methods by which this may be done, viz. : You may, by consent after the cause is at issue, refer the case to the standing master, or a special master, or an examiner to take the evidence orally, or by deposition, or both, and require the master to report back the evidence thus taken to the court ; or to report it back with his findings thereon; or you may, un- der a rule lately promulgated by the Supreme Court, upon due notice and application to the court, take the evidence orally before the court on final hearing. This reference to the master to take the evidence may be ordered by the court on motion of either party, or by the court sua sponte. If not referred to a master or examiner, or the court has not granted the order to take the evidence orally, then you must take your evidence by depositions in the way provided by statute, and the equity rules promulgated by the Supreme Court. Statutes and Bules Controlling the Taking of Evidence in Equity Suits. TJ. S. Rev. Stat. sec. 862, U. S. Comp. Stat. 1901, p. 661, provides that the mode of proof in causes in equity shall be ac- cording to the rules now or hereafter provided by the Supreme Court. U. S. Rev. Stat. sec. 917, U. S. Comp. Stat. 1901, p. 684, provides that the Supreme Court shall have power to pre- scribe from time to time, and in a manner not in conflict with any law of the United States, the mode and manner of taking evidence and obtaining discovery in suits in equity. Under this power the Supreme Court has promulgated its rules pro- viding for the manner of taking testimony in equity causes. By equity rule 67 it is provided, that after the cause is at 513 S. Eq.— 33. 514 EVIDENCE IN EQUITY SUITS. issue, a commission to take the testimony may be taken out, in vacation as well as in term time, jointly or severally, upon interrogatories filed in the clerk's office by parties taking out the same. (See "Examination by Commission on Interroga- tories.") It requires ten days' notice to be given to the ad- verse party to file cross interrogatories, before issuing the com- mission, and if no cross interrogatories are filed, they may be issued ex parte. By the second paragraph of equity rule 67, either party may give notice that he desires the evidence to be taken orally, and thereupon all of the witnesses to be ex- amined shall be examined before an examiner to be specially appointed by the court. (See "Oral Examination.") By equity rule 68, testimony after issue joined may be taken according to the acts of Congress ; referring to U. S. Rev. Stat. sees. 863 to 875, TJ. S. Comp. Stat. 1901. pp. 661 to 667. Section 863 providing for depositions de bene esse; sec- tion 866 for depositions in perpetuam rei memoriam, and un- der a dedimus potestatem; section 871 for depositions in the District of Columbia; section 875 taking testimony by letters rogatory. By equity rule 70 it is provided for taking depositions in equity de bene esse before answer filed. On March 9, 1892, Congress passed the following act (27 Stat, at L. p. 7, chap. 14) : That in addition to the mode of taking depositions in causes in the circuit and district courts of the United States, it shall be lawful to take depositions or testimony of witnesses in the mode prescribed by the laws of the State in which the courts are held. 27 Stat, at L. p. 7, chap. 14 ; Sbellabarger v. Oliver, 64 Fed. 306 ; Despeaux v. Pennsylvania E. Co. 81 Eed. 897; International Tooth-Crown Co. v. Honk's Dental Asso. 101 Eed. 306; Ex parte Eisk, 113 U. S. 723, 28 L. ed. 1121, 5 Sup. Ct. Eep. 724; Batts' (Tex.) Eev. Stat. 2273 to 2298. This act was only cumulative. United States v. Fifty Boxes. 92 Fed. 601 ; Carrara Paint Agency Co. v. Carrara Paint Co. 137 Fed. 319; Smith v. International [Mercantile Co. 154 Eed. 786; Xational Cash-Eegister Co. v. Leland, 77 Fed. 242; ilc Lennan v. Kansas City, St. J. & C. B. E. Co. 22 Fed. 198. On the 15th of iMay, 1893, the Supreme Court of the United States promulgated the following rule as an amendment to equity rule 67 : "Upon due notice the coui-t may at its discre- ETI1ie:\'CE IX EQUITY SUITS. 515 tion permit the whole of the testimony, or any specific portion of the testimony in an equity suit, to be adduced orally on final hearing in open court." 149 U. S. Appx. p. 793, 37 L. ed. 1235. Thus, having grouped the rules and statutes authorizing the taking of evidence in equity causes, I will now state the statute declaring who are competent witnesses, or — lT7io May Be Examined as ^Yitnesses. U. S. Eev. Stats, sec. 858, U. S. Comp. Stat. 1901, p. 659, provides that no witness shall be excluded on account of color, or in any civil action because he is a party thereto, or inter- ested in the issue to be tried, except in suits by or against ex- ecutors, administrators, or guardians, in which judgment may be rendered against or for them; in which case neither party shall be allowed to testify against the other as to any trans- action with or statement by the intestate, testator, or ward, un- less called to testify thereto by the opposite party, or required to testify by the court. Texas v. Chiles, 21 Wall. 488, 22 L. ed. 650. In other respects the law of the State in which the court is held shall be the rule as to the competency of wit- nesses. Potter V. Third Xat. Bank, 102 U. S. 163, 26 L. ed. Ill ; Connecticut Mut. L. Ins. Co. v. Union Trust Co. 112 U. S. 250, 28 L. ed. 708, 5 Sup. Ct. Eep. 119; Mutual Ben. L. Ins. Co. v. Kobison, 22 L.K.A. 325, 7 C. C. A. 444, 19 IT. S. App. 266, 58 Fed. 731; Corbus v. Leonhardt, 51 C. C. A. 636, 114 Fed. 10; Morris v. Norton, 21 C. C. A. 553, 43 F. S. App. 739, 75 Fed. 922 ; Miller v. Steele, 82 C. C. A. 572, 1.53 Fed. 714-720, and cases cited; Hale v. Wharton, 73 Fed. 748 : Huntington Xat. Bank v. Huntington Distilling Co. 152 Fed. 240, see DeEoux v. Girard, 90 Fed. 537; King v. Worthington, 104 U. S. 50, 26 L. ed. 654; Eev. Stat, of Texas, 2302 ; Abbott v. Stiff, — Tex. Civ. App. — , 81 S. W. 562 ; Pennybacker v. Hazlewood, 26 Tex. Civ. App. 183, 61 S. W. 153, Who to Issue the Oommission. After notice has been given, as provided by the rules and J16 EVIDENCE IX EQUITY SUITS. statutes authorizing the commission to issue, the clerk of the court shall issue the commission to the commissioner or com- missioners named by the court, as provided by equity rule 67 and equity rule 70. However, it is provided by an amendment to equity rule 67 (December term, 1854), that the power to name commissioners may be vested in the clerk by a general order granting this power. IM U. S. App. p. 639, 36 L. ed. ll-iS. The commission issues as of course when rule complied with. Equity rule 70. If taken out according to State prac- tice, it is required in Texas that the clerk, after completed no- tice to the adverse party, shall issue the commission. Tex. Rev. Stat. 2279-2280. Before Whom Taken. If taken according to State practice, the depositions may be taken before any clerk of a district court, any judge or clerk of a county court, or any notary public in his proper coimty, if taken in the State. If taken out of the State, and within the United States, they may be taken before any clerk of a court of record having a seal, any notary public (U. S. Eev. Stat. sec. 863, U. S. Comp. Stat. 1901, p. 663), or any com- missioner of deeds duly appointed under the State law for some other State or Territory. If taken out of the United States, the depositions may be taken before any notary public or any min- ister, commissioner, or charge d'affaires of the United States resident in and accredited to the country where taken, or any consul general, consul, viceconsul, commercial agent, vicecom- mercial agent, deputy consul, or consular agent of the United States resident in such country. In the Federal court, by equity rule 67, the depositions are taken before the commissioner named by the court, or before an examiner of the court, or a special examiner pro liac vice, or on commission before an officer authorized to take depositions. See equity rule 70. By U. S. Eev. Stat. sec. 863, when depositions are taken de bene esse, they may be taken before any judge of a court of the United States, or any commissioner of a United States circuit court, or any clerk of a district or circuit court, or anv chancellor, justice or judge of a supreme court or superior EVIDENCE IN EQUITY SUITS. 517 court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public not being of counsel or attorney of either of the parties, or interested in the result of the cause. Bird v. Halsy, 87 Fed. 677. In the supplement to U. S. Eev. Stat, of 1874, vol. 1, p. 251, it is provided that notaries public of the several States and Territories and the District of Columbia are authorized to take depositions and do all other acts in relation to taking tes- timony to be used in the courts of the United States, as well as aiSdavits and acknowledgments, in the same manner and with the same effect, as a commissioner of a United States cir- cuit court may now lawfully take or do. Act August 15, 1876. As to powers of the circuit court commissioners, see United States V. Hom Hing, 48 Fed. 638, note. So depositions may be taken by a notary, under a commis- sion addressed to any officer authorized to take depositions, whether taken de bene esse, or in the ordinary form. By act of May 15, 1893, witnesses may be examined before the court, who must preserve the evidence to be incorporated in the record. In foreign countries depositions may be taken, under the Fed- eral statutes, before a secretary of legation or consular officer. U. S. Eev. Stats, sec. 1750 ; U. S. Comp. Stat. 1901, p. 1196 ; see Depositions to Foreign Countries; Stein v. Bowman, 13 Pet. 218, 10 L. ed. 133; U. S. Eev. Stats, sec. 2157, as to taking depositions in the Indian country ; also see 1 U. S. Eev. Stat. Supp. p. 251. How Witnesses Are Brought Before a Commissioner, Exam- iner, or Master, and Made to Testify. United States Eevised Statutes, sec. 868, U. S. Comp. Stat. 1901, p. 664, provides that when a commission issues from any United States court to take the testimony of a witness named therein at any place within any district or Territory, the clerk of any court of the United States in such district or Territory shall, on the application of either party, issue a subpoena for such witness, requiring him to appear and testify before the commissioner named in the commission; and if such witness refuses or neglects to appear, or appearing, refuses to testify, 518 EVIDE2s'CE I^'^ EQUITY SUITS. then the judge of the court whose clerk issues the subpoena may punish the disobedience by contempt proceedings. By equity rule 78 it is provided that witnesses who live with- in the district may, upon due notice to the opposite party, be summoned to appear before a commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued in blank and filled up by the party praying for the same, or by the commissioner, master, or examiner. If any witness shall refuse to appear or give evidence, it shall be deemed a con- tempt, which when certified to the clerk's office issuing the sub- poena, an attachment may issue thereon by order of the court or any judge thereof. By TJ. S. Rev. Stats, sec. 863, it is provided that any person may be compelled to appear and testify when the testimony is taken de iene esse, in the same manner as witnesses may be compelled to appear and testify in court. By equity rule 67, sec. 3, it is provided that the refusal of a witness to attend, or be sworn, or to answer any question put by an examiner, the same practice shall be adopted as now provided with respect to witnesses who refuse to answer writ- ten interrogatories. Equity rule 78 ; U. S. Eev. Stats, sees. 863-868, given above. Zych v. American Car k Foundry Co. 127 Fed. 723; Xew England Phonograph Co. v. Xational Pho- nograph Co. lis Eed. 324, 325 ; Blease v. Garlington, 92 U. S. 1, 23 L. ed. 521. See Crocker-Wheeler Co. v. Bullock, 134 Eed. 241 ; Butte & B. Consol. Min. Co. v. Montana Ore Pur- chasing Co. 139 Eed. 843. United States Revised Statutes, sec. 869, U. S. Comp. Stat. 1901, p. 665, requires attendance of witnesses under a sub- poena duces tecum, and compels obedience by the process of contempt. Except that it is provided by U. S. Eev. Stats, sec. 870, U. S. Comp. Stat. 1901, p. 665, that no witness shall be required under the provisions of U. S. Rev. Stats, sees. 868 and 869, to attend at any place out of the county of his residence, nor more than forty miles from the place of his residence ; nor is a witness guilty of contempt under either of these sections, unless his fee for going to, returning from, and one day's at- tendance at the place of examination is paid or tendered him at the time of the service of the citation. EVIDENCE IN EQUITY SUITS. 519 Section STl provides for taking the testimony of a witness found within the District of Columbia, to be used in a suit de- pending in any State, Terrtiory, or foreign court, and by article 873 a refusal to appear is punished as a refusal to testify be- fore a court on a trial of the suit. The statutes above given explain themselves, but I will call your attention to a decision in Stevens v. Missouri, K. & T. E. Co. lOi Fed. 937, clearly creating an exception to the rule, that a witness may be compelled to testify wher. subpoenaed to give evidence before a notary in a State other than the State where the cause may be pending. In the case stated, it is held that the rule does not apply unless the deposition is being taken on interrogatories under a commission. See Crocker-Wheeler Co. V. Bullock, 134 Fed. 242 ; Flower v. MacGinniss, 50 C. C. A. 291, 112 Fed. 377, approving. The court concludes that the Statutes of the United States nowhere confer upon .the clerk of a court, other than the place of trial, any power to issue sub- poenas, except under section 863, which provides only for such power when the depositions are to be taken under a commission, and in behalf of issues then framed. The case discussed was pending in the southern district of jSTew York, and in the progress of the case and before issue joined, complainants notified defendants that they would take testimony in St. Louis, Missouri, before a notary public. Sub- poenas were issued by the circuit court of Missouri to the wit- nesses named to appear before the notary, and the witnesses appeared, but refused to be sworn, and contempt proceedings were sought in the circuit court of Missouri to require obedi- ence. The court refused, and as a basis for its refusal, stated that there was no statute in the United States system that au- thorized the clerk of the Missouri circuit court to issue the sub- poena. I have given above the Federal statutes and rules of the Su- preme Court, which have the force of statutes, and I think in the light of these statutes, and especially sections 2 and 3, equity rule 67, the ruling is extremely technical and narrow. The letter that killeth is preferred to the spirit that maketh alive. Crocker-Wheeler Co. v. Bullock, 134 Fed. 242-243. If one will follow the history of equity rule 67, and note its gradual expansion from 1842 to May 15, 1893, it will he seen that the 520 zviDEScz ly; equity suits. Supreme Court lias sought to increase tlie facilities for taking testimony ia equity causes, and clearly intends in paragraphs 2, 3, and 4, promulgated at the December term, IS 61 (1 Black. 6), to provide for any case in which it becomes necessary to take the testimony of -witnesses orally, before anyone author- ized to take depositions ; and whenever and wherever they may be taken by commission, they may be taken oraUy before an of- ficer authorized to take them, upon notice given as required by the rule ; and we have seen that notaries in any State have by act of Congress the same powers to take testimony, etc., to be used in the couurts of the United States, in the same manner, and with the same effect as commissioners of the circuit courts of the United States. It is specially provided in equity rule 67, paragraph 3, for contempt proceedings where the witness refuses to attend, or be sworn, or to answer. CHAPTEE LXXXIV. EVIBEXCE IX EQUITY SUITS (CONTINUED.) Having thus seen the conditions under which coramissions to take testimony in equity causes are issued, who may be wit- nesses, and the means of enforcing their attendance and testi- fying, I will, before discussing the different methods of taking the testimony by commission on interrogatories attached, by oral examination, and by examination in open court at the final hearing, state the statute and rules controlling (a) The time to begin taking testimony, and — (b) The time in which it must be taken. The Time to Begin. Equity rule 67 provides for beginning the taking of testimony after the cause is at issue. Stevens v. Missouri, K. & T. K. Co. 104 Eed. 93-i; ilunroe v. Atlanta Mach. Co. 170 Fed. 863; Flower v. MacGinniss, 50 C. C. A. 291, 112 Fed. 377. And equity rule 68 provides also for taking testimony after the cause is at issue, according to the acts of Congress, which means that the depositions may be taken after the issue by any of the methods provided by Congress for taking them either before or after issue joined, and to be found in sections 863, 866-875, U. S. Comp. Stat. 1901, pp. 661, 663-667; but a further pro- vision is added to this rule, that whenever depositions are taken under these statutes, if no notice is given to the adverse party of the time and place of taking the deposition, he shall on mo- tion and affidavit of the fact be entitled to a cross-examination tion of the witness, either under a commission or by a new deposition, if a court or a judge thereof shall under the circum- stances permit it. There is no doubt of the general rule that depositions in equity cannot be taken until after the cause is at issue ; that is, after replication filed. There are, however, conditions when the enforcement of the rule will lead to injus- tice and -therefore create exceptions, which have been recog- nized by the Supreme Court in promulgating equity rule 70. 521 522 DEPOSITIOXS BEFOEE ISSUE JOTSHD. Depositions May Be Taken Before Issue Joined. By section 863 of the United States Eevised Statutes, U. S. Comp. Stat. 1901, p. 661, Congress provided for taking deposi- tions when a witness was bound on a voyage to sea ; or about to leave the United States before the time of trial; or when he is ancient and infirm. The Supreme Court in 1S4:2 promulgated equity rule 70 providing that before the defendant had answered, a commission could issue to such commissioner as the court should direct to take the examination of a witness de bene esse, who was aged and infirm, or who was going out of the country, and added to the proTisions found in section 563, or to any witness who was a single witness to a material fact It will be seen, then, that by virtue of equity rule 70, upon afiidavit by the complainant of the existence of any of the con- ditions stated in the rule, the clerk of the court as of course will issue a commission to such commissioner as the judge may name to take the deposition of a witness before issue joined; due notice of the time and place of taking must be given to the adversary. Again, in section S6G of the United States Eevised Statutes, U. S. Comp. Stat. 1901, p. 663, it is provided that any circuit court of the United States as a court of equity may direct depo- sitions to be taken in rei memoriani, or any of the courts of the United States may grant a dedimus potestatem to take depo- sitions, if necessary to prevent a failure or delay of justice. Depositions may be taken under this section whenever it may appear to the court that it is necessary to prevent a delay of justice, whether the application to the court be before or after issue joined. An abuse of the statute by instituting inquisi- torial proceedings under it is guarded against by requiring an order of the court. Flower v. MacGinniss, 50 C. C. A. 291, 112 Fed. 37S; Westinghouse MacL Co. v. Electric Storage Battery Co. 165 Fed. 994. Again, by section S67, it is provided that any court of the United States may admit in evidence in any cause, depositions taken in rei memoriam, which would be so admissible in the court of a State in which the court is sitting. In grouping and construing section S63 with equity rule 70 DEPOSITIONS BEFOEE ISSUE JOINED. 523 to support the taking of depositions before issue joined in equity, I am aware that section S63 has been held to refer to taking depositions only after issue joined, as stated in Flower v. MacGinnis? and Stevens v. ilissouri K. & T. R. Co. supra. See Frost V. Barber, 173 Fed. 847, and cases cited. It will be seen that section 863 does not indicate by its provisions the time in which depositions de iene esse, i. e., provisionally, can be taken, but inferentially it is indicated in the conditions under which they are permitted. Thus a witness bound on a journey beyond the reach of the court's process, or when ancient and infirm, clearly indicates that he may be examined under this section before issue joined, see Eichter v. Jerome, 25 Fed. 679 ; Low- rey v. Kiisworm, 66 Fed. 539 ; so it is indicated when provision is made for notice of taking when the defendant is absent, and has no attorney of record. Again, it is provided that deposi- tions may be taken in any civil cause depending in a circuit court ; which means after the bill is filed. Section S63 was intended to provide a method of examin- ing witnesses before the trial of a common-law case, and at any time between filing the suit and its trial, if the conditions stated rendered it urgent. Equity rule 70, by adopting the conditions in section 863, precedent to an examination of a witness de bene esse, has ap- plied them to equity causes, and permits the deposition to be thus taken from the time of filing the bill and before any issue joined. De Bene Esse. De hene esse means "provisionally," and when depositions are thus permitted, it is with the intent that they may be used, provided the witness cannot be put upon the stand on the trial of the cause. Whitford v. Clark County, 119 U. S. 524, 30 L. ed. 500, 7 Sup. Ct. Eep. 306 ; Texas & P. E. Co. v. Wat- son, 50 C. C. A. 230, 112 Fed. 402; Texas & P. E. Co. v. Wilder, 35 C. C. A. 105, 92 Fed. 958; Texas & P. E. Co. v. Eeagan, 55 C. C. A. 427, 118 Fed. 815. See Frost v. Barber, 173 Fed. 848 ; Zych v. American Car & Foundry Co. 127 Fed. 723 ; Hartman v. Feenaughty, 139 Fed. 887. In this sense to take depositions de hene esse can only apply to causes on the law 524: DEPOSiTioiirs de beue esse. side of the court, where the examination must be before the court, unless depositions are permitted by the acts of Congress, and the conditions under -which they are taken exist at the trial. Ibid. (See ''Depositions on law side.") In equity where causes are tried upon depositions and the written record, the conditions precedent to using them at the trial do not apply ; however, depositions taken under equity rule 70 are, in the language of the rule, taken de hene esse. The grounds upon which depositions are taken de bene esse, before issue joined, are plain, and in your application to the clerk to issue a commission, you must support it by af&davit clearly stating one or more of the grounds required by equity rule 70. Stegner v. Blake, 36 Fed. 1S3. See Eichter v. Jerome, 25 Fed. 679. That is, it must appear under oath that your witness is aged and infirm, or about to leave the country, or is a single witness to a material fact. "When this appears, the clerk of the court will as a matter of course issue the commission, as stated before, though the rule directs that a judge of the court must name the commissioner. This is done by the clerk under a general order authorizing it. Amendment to Equity Rule 67, December Term, 1S54, Arthurs v. Hart, 17 How. 7, 15 L. ed. 30; Amendment 1S92, 144 IT. S. 690, 36 L. ed. 1143. Notice of Taking De Bene Esse. When the commissioner has been named and a proper com- mission issued, you must at once give notice to the opposite party (sec. 863, equity rule 70), or his counsel, of the name of the witness, the time and place of taking, and before whom the depositions will be taken. The length of notice depends on circumstances (American Exch. Xat. Bank v. First Xat. Bank, 27 C. C. A. 274, 4S U. S. App. 633, S2 Fed. 961), such as the number of witnesses to be examined, also the distance and facility for communication; and the time and place must be such as not to hamper adverse counsel (Uhle v. Bumham, 44 Fed. 729). Form of Xotice. Title as in bill. To C. D., Defendant, etc., or E. F., His Solicitor: DEPOSITIOXS DE BENE ESSE. 525 Please take notice that plaintiff will take the testimony de 6ene esse of Jno. Smith, who resides in the city of , 'county of , State of ; that said witness is (aged and infirm, etc., see equity rule 70) ; that said depositions when taken will be used by plaintiff in the final hearing of the cause; that said depositions will be taken before Richard Jones, Esq., commissioner (or notary public in and for the county, etc.), who is not interested in this cause nor an attorney for either party, at the office of the said commissioner (or notary, etc.) on street of said city (or any other place, giving number of house, street, etc.) on the day of , A. D. 19. . ., at 10 a. m. ( or any other hour), and said examination will proceed from day to day until completed, and said depositions will be taken according to the provisions of the acts of Con- gress, sections S63, 864, 865, and equity rule 67. L. M., Solicitor, etc. Service of Notice. This notice may be served on the adverse party, or his at- torney of record, and in all cases in rem the person having the possession at the time of seizure shall be deemed the adverse party (U. S. Eev. Stat. sec. 863, U. S. Comp. Stat. 1901, p. 661), and when there is no attorney of record, and the defend- ant is beyond the reach of the process of the court, or absent from the district, so that giving notice is impracticable, you must then apply to the judge to indicate what character of notice shall be given if the necessity be urgent. Ibid. There must be evidence that service was made, or accepted. Taking the Testimony De Bene Esse. The testimony may be taken by written interrogatories and Gross interrogatories given to the officer before taking, or by oral questions put at the time (equity rule 67, amended; Biseh- offscheim v. Baltzer, 10 Fed. 3, 4; Encyclopaedia Britannica Co. V. Werner Co. 138 Fed. 461) ; but not by both methods at the same time. (Coates v. Merrick Thread Co. 41 Fed. 73.) In either case the witness is brought before the commis- sioner, or examiner, or officer named, and is examined on the interrogatories and cross interrogatories, and the answers re- duced to writing by the officer, or under his direction in the presence of the witness, or by the witness in the maffistrate's presence. U. S. Rev. Stat. sec. 864; Ee Thomas, 35 Fed. S23. Bv an amendment in 1892 to equity rule 67, it may be taken 526 BEPOSITIOXS DE BES^E ESSE. down by a stenographer or typewriter, as the examiner may elect (144 TJ. S. 689, 36 L. ed. 1143) ; or when taken orally, it can be reduced to writing by the examiner in the form of questions put and answers given, or by consent of parties may be taken in narrative form. However taken, when completed it must be read over to the witness and signed by him in the pres- ence of the examiner and of such of the parties or counsel as may attend. Moller v. United States, 6 C. C. A. 459, 13 U. S. App. 472, 57 Fed. 491. (See "Eow Examination Conducted in Oral Examinations."') CHAPTEE LXXXV. CERTIFICATE OF OFFICEE WHEN TAKEN DE BENE ESSE. The certificate of the ofiicer is indicated in section 865, when the deposition is taken in a law case, to wit: that it must ap- pear that the reason for taking the deposition of the witness, as where he is about to leave the country, etc., existed at the time the deposition was taken (Bird v. Halsy, 87 Fed. 677. See Stewart v. Townsend, 41 Fed. 121) ; but this is not neces- sary in an equity case, and the following certificate may be used (Stegner v. Blake, 36 Fed. 184) : Caption. Style of case, and State and county where depositions taken, then pro- ceed: I, C. D. (official designation), by virtue of a commission issuing out of the Circuit Court of the United States for the District of , sitting at , began the examination of witnesses de bene esse on the day of A. D. 19..., at my office (stating city, street and number, if any) in the above styled suit now pending in the United States Circuit Court for the District of , at A. B., a witness on behalf of plaintiff (or defendant) was introduced, and being duly sworn to testify the whole truth, deposes and says: To question 1. State your name and age. Answer. Or if yon are to take the examination orally, under an ap- pointment as special examiner under the 67th rule of equity, or by agreement of counsel, so state in the caption, and if the coimsel are present, state E,. F., Esq., counsel for plaintiff, and S. K., Esq., counsel for defendant were present, and proceed: A. B., a witness introduced in behalf of the r lintiff (or defendant), being duly sworn, etc., deposes and says in answer to question pro- pounded to him by R. F., Esq., counsel for the , as follows : To question 3, State your name, etc., the witness answered. Answer, and so on. If parties have agreed to have the evidence taken in narra- tive form, so state. .527 528 CEETIFIC4TE OF OFFICEE WHEIS TAKEN DE BENE ESSE. After the depositions have been completed and signed, it should be closed with the following certificate : State of County of I, C. D. (official designation), do hereby certify that the above witnesses (naming them) were by me first duly sworn to testify the whole truth; that their depositions were reduced to writing by me (or in my presence by , a stenographer, or on a typewriter by ) in the presence of said witnesses respectively, and when completed were read over to said witnesses respectively, and subscribed by them in my presence, and such of the parties and counsel as attended. The said depositions were taken in pursuance of the annexed notice at my office at , beginning on the day of A. D. 39..., and continued from day to day until the day of A. D. 19..., when the same were completed. That the parties were represented by their respective counsel in the examination of said witnesses (if such was the fact; if exhibits were offered during the evidence state) and the several exhibits attached to the depositions were offered in evidence, and marked for identification as appears in the deposition. I further certify that I am not of counsel nor interested in any manner in the case, and it being impracticable to deliver the depositions in person I have sealed up, directed and transmitted them by due course of mail to the court in which the cause is pending. See Donahue v. Roberts, 19 Fed. 863; Gartside Coal Co. v. Maxwell, 20 Fed. 187; Stegner v. Blake, 36 Fed. 184, Amended Equity Rule 67, 144 U. S. 690, 36 L. ed. 1143. In witness whereof I have hereunto set my hand and official seal (if any). C. D., Official Signature. See Kansas City, Pt. S. & M. E. Co. v. Stoner, 2 C. C. A. 437, 10 U. S. App. 209, 51 Fed. 650; American Exch. Nat. Bank v. First JSTat. Bank, 27 C. C. A. 274, 48 TJ. S. App. 633, 82 Fed. 961; Brown v. Ellis, 103 Fed. 837. While a seal to certification is not necessary (equity rule 67, paragraph 5), yet the depositions must be sealed up for trans- mission. TJ. S. Eev. Stat. sec. 865, U. S. Comp. Stat. 1901, p. 663 ; Re Thomas, 35 Fed. 337 ; Brown v. Ellis, 103 Fed. 836, 837. It is not necessary to certify that the depositions were held until mailed. Stewart v. Townsend, 41 Fed. 121 ; see Mailing Dep. If the depositions are taken on direct and cross interrogatories handed to the officer before taking, it must be so certified, and the interrogatories returned with the com- mission. CZETIFICATE OF OFFICEE WHEN TAKEN DE BENE ESSE. 529 If the questions and answers are reduced to writing by a stenographer, or typewriter, under the amendment of 1892 to equity rule 67, such stenographer or typewriter must be ap- pointed by the court, or approved by both parties (see par. 5. amend, to equity rule 67; 144 U. S. 690, Appendix), and it must be certified "that said questione and answers were taken down stenographically, and afterwards typewritten, or reduced to writing in my presence by Mr , a skillful stenog- rapher appointed by the court, or approved and agreed to by both parties, and duly sworn by me." Informality in Certificate. It has been frequently decided that statutory requirements in taking depositions de bene esse must be strictly pursued (Kansas City, Ft. S. & M. K. Co. v. Stoner, 2 C. C. A. 437, 10 U. S. App. 209, 51 Fed. 656. Cook v. Burnley, 11 Wall. 668, 20 L. ed. 30; Bell v. Morrison, 1 Pet. 356, 7 L. ed. 176; Gartside Coal Co. v. Maxwell, 20 Fed. 187; Moller v. United States, 6 C. C. A. 459, 13 U. S. App. 472, 57 Fed. 495) ; and there must be evidence of compliance with the rule and statu- tory requirements. Ibid. "While this is true, yet if it appears that the thing to be done has been done, the deposition will be admitted, though the certificate be informal. (Ibid.; United States v. 50 Boxes & Packages of Lace, 92 Fed. 601 ; Moller V. United States, 6 C. C. A. 459, 13 U. S. App. 472, 57 Fed. 495; Stegner v. Blake, 36 Fed. 184; Brown v. Ellis, 103 Fed. 837; Stewart v. Townsend, 41 Fed. 121), because, if informal, it may be amended to meet the facts (Donahue v. Koberts, 19 Fed. 863; Gartside Coal Co. v. Maxwell, 20 Fed. 187; Steg- ner V. Blake, 36 Fed. 184). If only irregular, it will be waived if not disposed of before going to trial, as will hereafter be seen. Ee Thomas, 35 Fed. 823 ; Doane v. Glenn, 21 Wall. 35, 22 L. ed. 476 ; Howard v. Stillwell & B. Mfg. Co. 139 U. S.'205, 35 L. ed. 149, 11 Sup. Ct. Rep. 500; Kansas City, Ft. S. & M. R. Co. V. Stoner, 2 C. C. A. 437, 10 U. S. App. 209, 51 Fed. 656 ; Brown v. Ellis, 103 Fed. 837 ; See McClaskey v. Barr, 48 Fed. 138. (See "Suppressing Depositions.") Thus the depositions will not be suppressed when the officer does not certify that he is not an attorney for either party, or S. Eq.— 34. 530 CEETIFICATZ OF OFFICEE WHEN TAKEN I>E BENE ESSE. omits to insert that he has no interest, when it appears that the depositions were taken in shorthand by a disinterested per- son. Stewart v. Townsend, 41 Fed. 121. Xor when notice is actually given, failure to attach the notice to the return of the deposition is not a ground to suppress. Stewart v. Townsend. 41 Fed. 121. Xor need the certificate show that he retained the depositions until mailed. Ibid. Xor is a seal required when taken under U. S. Eev. Stat. sec. 863, U. S. Comp. Stat. 1901, p. 661; Brown v. Ellis, 103 Fed. 836, 837. So a cer- tificate as to the manner of taking down the answers of wit- nesses, though informal, will not be objectionable on that ac- count. Ibid. Xor when taken in a different place from that contained in notice, if counsel for both parties are present. Gartside Coal Co. v. Maxwell, 20 Fed. 187. Effect of the Act of March 9, 1S92, on Talcing Depositions in Advance of the Issue. Ey the act of March 9, 1892, it was provided by Congress that the practice in the State courts in issuing depositions may be pursued in the Federal courts. In many of the States dep- Dsitions may be taken at any stage of the case, but the pro- ■t'isions of these statutes authorizing depositions in advance of the issues do not apply to the Federal courts. The act of IS 92 has been frequently construed, and with few exceptions it has been held that State statutes are only to be followed in the man- ner of taking, and do not apply to the grounds for taking depo- sitions. United States v. 50 Boxes k Packages of Lace, 92 Fed. 601 ; Hanks Dental Asso. v. International Tooth Crown Co. 194 U. S. 309, 48 L. ed. 991, 24 Sup. Ct. Eep. 700, re- viewing cases; Zych v. American Car & Foundry Co. 127 Fed. 728; Texas & V. R. Co. v. Wilder, 35 C. C. A. 105, 92 Fed. 953; Xational Cash Register Co. v. Leland, 37 C. C. A. 372, 94 Fed. 502. Congress, it is held, did not enlarge the condi- tions under which they may be taken for use in the Federal courts. Ibid.; Ex parte Fiske. 113 U. S. 713-725, 28 L. ed. 1117-1121, 5 Sup. Ct. Rep. 724: Shellabarger v. Oliver, 64 Fed. 307. 308; Despeaux v. Pennsylvania R. Co. 81 Fed. '^97; Magone v. Colorado Smelting k Min. Co. 135 Fed. 846. In Ex parte Fiske, the Supreme Court held that sec- TAKING DEPOSITIONS BEFORE ISSUE JOINED. 531 tioD 914 of the United States Eevised Statutes, conforming the practice of the Federal courts on the common-law side to the practice of the State courts, did not include an authority to take the depositions of a defendant under oath before trial; that to do so was in conflict with U. S. Rev. Stat. sec. 861, U. S. Comp. Stat. 1901, p. 661. Ibid. ; United States v. 50 Boxes & Packages of Lace, 92 Fed. 601 ; Xational Cash Register Co. T. Leland, 94 Fed. 502 ; Hanks Dental Asso. v. International Tooth Cro%vn Co. 194 U. S. 306, 48 L. ed. 990, 24 Sup. Ct. Rep. 700. This was a construction of a Xew York law per- mitting an examination of a party as a witness in advance of the trial. This case was followed in construing the act of 1892, with the result as above stated, and it may be stated that the Texas statute (from 2273 to 2293), in so far as it permits depositions in advance of the issues to be taken does not apply in trials in Federal courts, and this whether the suit be in law or equity. Shellabarger v. Oliver, 64 Fed. 307, 308 ; Xa- tional Cash Register Co. v. Leland, 77 Fed. 242. In the light of these decisions, then, depositions in advance of the issues joined cannot be taken in the Federal courts un- less coming within the provisions of equity rule 70 and the statutes of the United States, sections 863, 866 and 867, as these acts were not in any way added to or modified by the act of 1892. Congress would have so stated in apt words if so intended, is the language of the decisions. Blood v. Morrin, 140 Fed. 919. The Federal courts have never permitted a party to use depositions for the purpose of fishing for information, or to force a party to disclose his case by pumping him, or his wit- nesses out of time. Ibid. Flower v. MacGinniss, 50 C. C. A. 291, 112 Fed. 377; Despeaux v. Pennsylvania R. Co. 81 Fed. 897; Xational Cash-Register Co. v. Leland, 77 Fed. 242; Hanks Dental Asso. v. International Tooth Crown Co. 194 U. S. 306, 48 L. ed. 990, 24 Sup. Ct. Rep. 700. A contrary view has been strenuously insisted upon by Judge Lacombe of the second circuit iti construing the act of 1892 (International Tooth Crown Co. v. Hanks' Dental Asso. 101 Fed. 306; In- ternational Tooth Crown Co. v. Carter, 112 Fed. 396), and by Judge Hanford in Smith v. Xorthern P. R. Co. 110 Fed. 342, but the rule as stated has been decided in the fifth cir- cuit Texas & P. R. Co. v. Wilder, 35 C. C. A. 105, 92 Fed. 958. CHAPTEE LXXXVI. DEPOSITIONS IN EEI PEEPETUAM. We have seen that the U. S. Kev. Stat. see. 866, U. S. Comp. Stat 1901, p. 663, provides that any circuit court may accord- ing to the usages of chancery direct depositions to be taken in perpetuam, to be used in law or equity, if they relate to mat- ters that may be cognizable in a Federal court (Westinghouse Maeh. Co. v. Electric Storage Battery Co. 25 L.E.A.(:N'.S.) 673, 95 C. C. A. 600, 170 Fed. 431) ; and by U. S. Rev. Stat, sec. 867, any United States court may in its discretion admit in evidence depositions taken in perpetuam^ which would be so admissible in a court of the State where such cause is pending, according to the laws thereof. While you cannot use deposi- tions provided for under U. S. Rev. Stat. sec. 866, solely to find out what a defendant or witness will swear to, in advance of the issue (Turner v. Shackman, 27 Eed. 183), yet if your bill is filed and service had (Green v. Compagnia General Ital- iana Di Navigation, 82 Fed. 495), then the imperative nature of your case may be such that the court will permit testimony to be taken in advance of the issue joined, and even ex parte (Xew York & B. Coffee Polishing Co. v. New York Coffee Polishing Co. 20 Blatchf. 174, 9 Fed. 578) ; as when, after de- fendant is served with process, he absconds before answering. Westinghouse Mach. Co. v. Electric Storage Battery Co. 25 L.R.A.(X.S.) 673, 95 C. C. A. 600, 170 Fed. 430. In this ^ast case it is said that an original bill in perpetuam rei mem- oriam according to usages of chancery and a dedimus to take depositions according to "common usage," are distinct methods contemplating different procedure. Richter v. Jerome, 25 Fed- 682. As to when a commission will issue to take evidence in per- petuam in a Federal court depends on a proper const'uction of the words "according to usages in chancery." The provision is substantially the same as was enacted in clause 30 of the judiciary act of 1789, and it has been held that the usages re- 532 DEPOSITIONS IN KEI PERPETUAM. 533 ferred to were such as were known to the English chancery practice in 17S9. Greene v. Compagnia Generale Italiana Di JSTavigation, S2 Fed. 494; 2 Dan. Ch. Pr. 1572-1574; Eichter v. Jerome, 25 Fed. 6S2 ; equity rule 90. Under the usages of chancery the original bill must be filed and service had on the defendant before a commission will is- sue, and ordinarily, it is said, the defendant must answer be- fore the testimony is taken, but if he has been served and re- fuses to answer or absconds, or conceals himself, then you may proceed ex parte to perpetuate the testimony. In the English cases, this is said to be the utmost extent to which courts will go in allowing the depositions of this character taken before issue joined. In Eichter v. Union Trust Co. (Eichter v. Jerome) 115 U. S. 55. 29 L. ed. 345, 5 Sup. Ct. Eep. 1162, it was held that depositions in rei perpetuam could be taken in a case appealed to the Supreme Court from sustaining a demurrer to the bill, and pending which it became necessary to take the depositions of aged witnesses which were material and necessary, in the event the trial on it-s merits was permitted. It will be noticed that the language of the statute contem- plates taking this character of deposition, if it relates to mat- ters that may be cognizahle in courts of the United States, but it is further seen that it must be according to "the usages of chancery,"' so it is held under the United States laws the depo- sition cannot be taken in contemplation of a suit that may be brought, and in anticipation of such suit, to perpetuate the testimony. Green v. Compagnia Generale Italiana Di Navi- gation, S2 Fed. 494. A contrary view is taken in Westing- house Mach. Co. V. Electric Storage Battery Co. 25 L.E.A. (X.S.) 673, 95 C. C. A. 600, 170 Fed. 432, wherein it is held the right exists when the complainant has an interest which cannot be made the subject of judicial inquiry at the time, and where the interest may be lost by the death of a witness. This view is supported by abundance of authority. S. C. 165 Fed. 994. See Xew York & B. Coffee Polishing Co. v. ISTew York Coffee Polishing Co. 11 Fed. 813, S. C. 9 Fed. 578. We may next inquire how far it can be done for use in a Federal court, when taken under a State law, if such provision is made. We have seen that by U. S. Eev. Stat. sec. 867, that a court of 534: DEPOSITIONS I2(r EEI PERrETUAM. the United States may in its discretion admit in evidence in any cause before it, any deposition taken in perpetiuim rei me- mo nam, which would be so admissible in a court of the State wherein such cause is pending, according to the laws thereof. Eichter v. Jerome, 25 Fed. 682; See Hanks Dental Asso. v. International Tooth Crown Co. 194 U. S. 306, 48 L. ed. 990, 24 Sup. Ct. Eep. 700. In Texas by article 2277 of Batts' Eev. Stats., depositions may be taken by one anticipating a suit who may desire to perpetuate the testimony, and such testimony may be used in any suit by and between any parties to the statement, etc. The question arises then, Can a person who expects to be a party to a suit in a Federal court take the depositions under this statute ? In Xew York & B. Coffee Polishing Co. v. Xew York Coffee Polishing Co. 20 Blatchf. 174, 9 Fed. 578, it is said the provision is intended to admit in evidence testimony of this character taken and perpetuated according to the laws of the State in which the Federal court is sitting, and does not refer to testimony perpetuated by direction of a circuit court of the United States in pursuance of the statute of the United States. See also act March 9, 1892, 27 Stat, at L. 7, chap. 14, U. S. Comp. Stat. 1901, p. 664; United States v. 50 Boxes & Packages of Lace, 92 Fed. 602, 603. See Warren v. Younger, 18 Fed. 859; Xational Cash Eegister Co. v. Leland, 77 Fed. 242. So it niay be said that it rests in the discretion of the Fed- eral judge to permit depositions taken in perpetuam rei memor- iam to be used in evidence when taken under the laws of the State in which the court is sitting, and this power rests upon section 867 of the United States Eevised Statutes, and is not affected by the act of 1892 authorizing depositions to be taken in the Federal courts in the modes prescribed by the laws of the State in which the court is sitting. Dedimus Potestatem. By U. S. Eev. Stat. sec. 866, it is provided that in any case where it is necessary to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to "common usage." DEPOSITIONS DEDIMUS POTESTATEM. 535 It has been held "that in any case where it is necessary," etc., means civil or criminal cases, and civil case means any case at law. or in equity. United States v. Cameron, 15 Fed. 794. The words "common usage" have been variously construed, but mean, so far as it may be applied to equity causes, the practice in courts of equity. Buddicum v. Kirk, 3 Craneh, 295, 2 L. ed. 444; Turner v. Shackman, 27 Fed. 183; "Westinghouse Mach. Co. V. Electric Storage Battery Co. 165 Fed. 992; Bischoffscheim v. Baltzer, 20 Blatchf. 229, 10 Fed. 1 ; Encyclo- psedia Brittannica Co. v. Werner Co. 138 Fed. 462; United States V. 50 Boxes & Packages of Lace, 92 Fed. 602, 603; Warren v. Younger, IS Fed. 862 ; Green v. Compagnia Gen- erale Italiana Di Navigation, 82 Fed. 494 ; United States v. Pings, 4 Fed. 716 ; Xorth American Transp. & Trading Co. v, Howells, 58 C. C. A. 442, 121 Fed. 696. "Common usage" must be construed to mean the common usage in 1874 when the act was passed. Rev. Stat. sec. 866. United States v. 50 Boxes & Packages of Lace, 92 Fed. 602, 603. The purpose of the act is evidently to provide a method for taking depositions of a witness, to prevent a failure or delay of justice where the particular conditions existing do not come within the provisions of section 863, or equity rule 70. It is a supplementary proceeding in a case already brought, and not a method to procure testimony in anticipation of a suit. Westinghouse Mach. Co. v. Electric Storage Battery Co. 25 L.R.A.(X.S.) 673, 95 C. C. A. 600, 170 Fed. 432; Xorth American Transp. & Trading Co. v. Howells, 58 C. C. A. 442, 121 Fed. 694 : Zyeh v. American Car & Foundry Co. 127 Fed. 724; Turner v. Shackman, 27 Fed. 183. What the threatened delay of failure of justice may be which is not provided for by other acts of Congress must be left to the discretion of the court upon the facts of each partic- ular case, when the application is made and the reasons stated. United States v. Cameron, 15 Fed. 794; Magone v. Colorado Smelting & Min. Co. 135 Fed. 846; Eandall v. Venable, 17 Fed. 163 ; Compania Azucarera Cubana v. Ingraham, 180 Fed. 517. A showing of necessity must be made. Magone v. Col- orado Smelting & Min. Co. 135 Fed. 847, 848. Conditions have been held imperative, and a dedimus issued in case of sail- ors in transit, and the courts have permitted the depositions to 536 DEPOSITIONS DEDIMrS POTESTATEM. be taken without notice, or on such terms as to notice as seemed proper in the particular case. Equity rule 68 providing for depositions to be taken after the cause is at issue according to the acts of Congress embraces this section, but makes a further provision for cases in which the deposition has to be taken without notice to the adverse party of the time and place of taking, by permitting the ad- verse party afterwards to cross-examine the witness, or issue new depositions with the permission of the judge. Certificate to a Dedimus. The certificate need not show the many details required un- der sees. 863, 864, and 865, U. S. Kev. Stat. Jones v. Oregon C. E. Co. 3 Sawy. 523, Ted. Cas. Xo. 7,486 ; Ehoades v. Selin, 4 WasL C. C. 715, Fed. Cas. Xo. 11,740 ; Giles v. Paxson, 36 Fed. 882; Keene v. Meade, 3 Pet. 9, 7 L. ed. 584. The person appointed to execute the dedimus represents the court, and not the parties, and the return is sufficient, showing that the witness was examined in pursuance of the commission and was duly sworn or affirmed. Ibid. As to form, see Jones v. Oregon C. E. Co. 3 Sawy. 523, Fed. Cas. Xo. 7,486. Procedure. To take testimony under section S66 you must file a petition or motion to be served on the adverse party or his counsel, and it must be averred that there is a suit pending in which the testimony of the witness named will be material; that the depositions cannot be taken by the ordinary methods prescribed by the statutes or rules of court, and the aid of the court is necessary to prevent a failure or delay of justice if the evi- dence is not taken. The facts expected to be proven must be shown and the danger that the testimony may be lost by delay CWestinghouse Mach. Co. v. Electric Storage Battery Co. 165 Fed. 992-994: Flower v. MacGinnis. 50 C. C. A." 291, 112 Fed. 378: Zych v. American Car k Foundry Co. 127 Fed. 723: Magone v. Colorado Smelting k Min. Co. 135 Fed. 846; Eichter v. Jerome, 25 Fed. 680. 681) ; and the application must be made to the court. DEPOSITIOXS DEDIMUS POTESTATEM. 537 The defendant may appear and answer, showing cause why the application should not he granted, and fourteen days is al- lowed to do this. Greene v. Compagnia Generale Italiana Di Navigation, 82 Fed. 495. If, however, the application is made for an ex parte examination, contemplated hy equity rule 68, the necessity must be clearly stated, as where the defendant has absconded, or is beyond the reach of service, and has no counsel of record, and the situation of the witness renders his exam- ination without delay imperative. Form of Order. Style of Case, j^ In Equity. Circuit Court of the United States. This cause coming on to be heard on the motion of plaintiff for a dedi- mus potestatem to issue, to take the testimony of , a material witness for plaintiif, who is now at , and both parties being rep- resented by counsel, and the court having considered the motion and answer thereto and the aiSdavits filed therewith, it is the opinion of the court that the motion should be granted. It is therefore ordered that a dedimus potestatem be issued in this cause, directed to A. B., Esq., at , empowering him to examine the said witness, due notice of the time and place of said examination to be given to counsel of both parties (or if on interrogatories and cross interrogatories, then state ) . It is ordered that a dedimus potestatem be issued in this cause, directed to A. B., Esq., at , empowering him to examine , the witness named in this cause, upon the interrogatories and cross interroga- tories to be attached to the order issued herein. It is further ordered that the testimony given under such examination shall be reduced to writing, signed by the witness, certified by the said A. B., Esq., and returned by him by mail to the clerk of this court at the city of The testimony thus taken shall be subject to such legal objections as may be properly made to the same on the trial of the cause. Judge of the Circuit Court for District of The duties of the examiner or commissioner appointed to take depositions may be regulated by the court, either by general rules or special instructions accompanying the commission. United States r. 50 Boxes & Packages of Lace, 92 Ted. 601. See Hollander v. Baiz, 40 Fed. 659. The order may not state the place or time when the examination is to be held, but in this event reasonable notice must be given by the examiner or commissioner to counsel of the time and place the examina- 538 DEPOSITIOIfS DEDIMirS rOTESTATEM. tion is to be held. However, when directed to a foreign coun- try the time within which the examination is to be held, and the city or cities where it is to be held, are usually stated, re- quiring the examiner or commissioner to give a more specific notice of the day and place, within the period of time allotted by the order. While it has been held that common usage limited the tak- ing of depositions under a dedimus to interrogatories and cross interrogatories, yet it is the better opinion that "common usage" embraces any method of taking the examination au- thorized by Congress in the past or present, or according to the existing practice in equity (BischofFscheim v. Baltzer, 20 Blatchf. 229, 10 Fed. 1; United States v. 50 Boxes & Packages of Lace, 92 Fed. 603 ; Giles v. Paxson, 36 Fed. S82 ; United States V. Cameron, 15 Fed. 794) ; or by any of the methods pro- vided bv equity rule 67 as amended, or the statutory provisions of the State (Giles v. Paxson, 36 Fed. 882 ; Compania Azuc- arera Cubana v. Ingraham, ISO Fed. 517 ; ilcLennan v. Kansas City, St. J. & C. B. R Co. 22 Fed. 198). CHAPTEK LXXXVII. DEPOSITIONS AFTER ISSUE JOINED. Time in Which Evidence Must Be Taken. Having discussed the taking of depositions before issue joined, under the equity rules and statutes permitting it, I will now discuss the taking of depositions after issue joined, and, first, I will speak of the time within which you must com- plete your evidence in an equity cause. By equity rule 69 it is provided that three months, and no more, shall be allowed for taking the testimony after the cause is at issue, unless the time is extended by the court, or a judge thereof, upon special cause being shown therefor, and no testi- mony taken after that period will be allowed to be read in evi- dence at the hearing. Jewell v. State Life Ins. Co. 99 C. C. A. 372, 176 Fed. 64; ^Venham v. Switzer, 48 Ted. 612; Mun- roe V. Atlanta Mach. Works, 170 Fed. 863 ; Wooster v. Clark, 9 Fed. 854: Brown v. Worster, 113 Fed. 20; Sharon v. Hill, 10 Sawy. 394, 22 Fed. 29; Western Electric Co. v. Capital Teleph."& Teleg. Co. 86 Fed. 770; Fischer v. Hayes, 19 Blatchf. 13, 6 Fed. 76. This rule fixes the time within which both parties must have taken their testimony and filed it in the clerk's office. Ingle v. Jones, 9 Wall. 486, 19 L. ed. 621. The rule has been frequently declared imperative. Ibid. ; Wooster Y. Clark, 9 Fed. 854; Ee Thomas, 35 Fed. 337; McGorray v. O'Connor, 31 C. C. A. 114, 59 U. S. App. 452, 87 Fed. 588. But the true interpretation of the rule is that it is within the discretion of the court to extend the time (Fischer v. Hayes, 19 Blatchf. 13, 6 Fed. 76 ; Coon v. Abbott, 37 Fed. 98 ; Grant V. Phoenix Mut. L. Ins. Co. 121 U. S. 115, 116, 30 L. ed. 908, 909, 7 Sup. Ct. Eep. 841 ; Coosan Min. Co. v. Farmers' Min. Co. 67 Fed. 32), or permit filing it nunc pro tunc (Ibid.; Wenham v. Switzer, 48 Fed. 612) ; but the discretion of the 539 540 DEPOSITIONS APTEE ISSUE JOINED. court must be appealed to by motion, and reasonable cause must be shown. Being entirely in the hands of the court, his refusal would render depositions taken after the allotted time useless. Emerson Co. v. Nimocks, 88 Fed. 280. The rule is imperative that in the absence of a proceeding to extend the time granted by the court, your depositions will be suppressed on motion, or on objection to reading. Ee Thomas, 35 Fed. 340. If taken orally under equity rule 67, the court may on mo- tion assign a time within which complainant shall take his evidence in support of the bill, and a time thereafter in which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evi- dence in reply, and no further evidence can be taken in the cause, unless by agreement of parties, or by leave of the court first obtained on motion for cause shown. Framing Interrogatories. Before discussing the issuing of the commission to take in- terrogatories after issue joined, I will call your attention to certain equity rules affecting the framing of interrogatories. Where the interrogatories are contained in the original bill to be answered by the defendant, equity rules 43, 41, and 42 indi- cate the form to be observed. By equity rule 71 the last inter- rogatory when issued under a commission shall be as follows: "Do you know, or can you set forth, any other matter or thing which may be of benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this, your examination, or the matter in question in this cause." In the State practice a general question of that kind is not permissible, for the reason given that it gives no opportunity for cross-examination. In drawing interrogatories, the first great rule must be kept in mind, that the proof must agree with the allegation (Provi- dence Eubber Co. v. Goodyear, 9 Wall. 793, 19 L. ed. 567; Foster v. Goddard, 1 Black, 518, 17 L. ed. 232 ; Phelps v. El- liott, 35 Fed. 461; Boone v. Chiles, 10 Pet. 177, 9 L. ed. 385), and must be confined to matters in the bill. (GormuUy &: J. Mfg. Co. V. Bretz, 64 Fed. 612). In a word, the substance of DEPOSITION'S AFTEE ISSUE JOINED. 541 the interrogatories must be directed to the proof of the material facts not admitted in the answer. How Witnesses Examined After Issue Joined. As before stated, there are three ways of examining witnesses after issue joined, that is, after the filing of the replication. First By commission on interrogatories and cross interroga- tories. Second. By oral examination before a commissioner or ex- aminer appointed for that purpose or agreed upon by the par- ties. Third. By examination of witnesses in open court at the final hearing, as at law. First, By Commission on Interrogatories. This course may be pursued under equity rule 67 or under the act of ]VIarch 9, 1892, authorizing depositions to be taken under State laws. National Cash Eegister Co. v. Leland, 77 'Fed. 242; ilagone v. Colorado Smelting & Min. Co. 135 Fed. 846 ; Hanks Dental Asso. v. International Tooth Co. 194 U. S. 308, 48 L. ed. 991, 24 Sup. Ct. Eep. 700; Wallace v. D. Ap- pl^ton & Co. 161 Fed. 884. These cases confine the act of 1892 simply to the method of taking by the States, and not the instances on which depositions may be taken, these are fixed by the Federal law. Hartman v. Fecnaughty, 139 Fed. 888. The act of 1892 is as follows: "That in addition to the modes of taking the depositions in causes pending in law and equity in the United States circuit and district courts, it shall be lawful to take them in the mode prescribed by the laws of the State in which the courts are held." 27 Stat, at L. p. 7, chap. 14, U. S. Comp. Stat. 1901, p. 664. Equity rule 67 provides that after the cause is at issue, a commission to take testimony may be taken out in vacation a.s well as in term time, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's office. Ten days' notice must be given to the adverse party within which time he must file his cross interrogatories, after which time the clerk may issue the com- 542 DEPOSITIONS APTEE ISSUE JOINED. mission, and this may be done ex parte, if no cross interroga- tories are filed. The rule further provides that the court or judge shall name the commissioner or commissioners who are to take the deposition. This part of the rule was subsequently amended so as to permit the judge to vest in the clerk of the court by general order the power to name the commissioner who is to execute the commission. This amendment was carried into equity rule 67 as amended in 1892. You may address a note to the clerk asking for the selection of some proper person as commissioner, and for a commission authorizing him to take the depositions, but when the time has elapsed after filing your interrogatories, the clerk will issue the commission without this formality. I will not dwell upon the issuing of a commission upon interrogatories, or cross inter- rogatories, filed in the clerk's office, as provided by equity rule 67. The practice is similar to the practice in your State courts, with which it is presumed you are familiar. In Texas the differc-iiCe lies in the time of the notice to the adverse party, it being ten days in the Federal court, and five days in the State court. Again, in the Federal court, it is required by equity rule 67 that the commissioner be named in the commission, while in the State court it may be addressed to any ofiicer authorized to take the depositions. In Texas they may be taken before any clerk of the district court, or any judge or clerk of the county court, or any notary public of the proper county, if taken within the State. If without the State, and within the United States, any clerk of a court of record having a seal, or any notary public, or any commissioner of deeds ap- pointed in any State or Territory under the laws of Texas. If out of the United States, any notary public or any minister, commissioner, or charge d'affaires of the United States resident in the country where taken, or before any consul general, con- sul, vice consul, commercial agent, vice commercial agent, dep- uty consul, or consular agent of the United States resident in such country. The act of 1892, just referred to, permits you to take depo- sitions in the United States courts in the same mode as is au- thorized by your State practice. You have an election between the Federal rule and the State practice. You must, however, bear in mind that the mode of taking the depositions is au- DEPOSITIONS AFTER ISSUE JOINED. 5 i3 thorized, and not the causes or grounds for taking, which are provided in the Federal statutes and rules, as will be hereafter explained. (Authorities above.) Second, By Oral Examination. By the second paragraph of equity rule 67 it is provided that either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or a special examiner appointed for that purpose by the court. The rule is applicable to depositions taken on commission under Rev. Stat. § 866, U. S. Comp. Stat. 1901, p. 663 ; Encyclopaedia Britannia Co. v. Werner Co. 13S Fed. 461 ; See Edison Electric Co. v. West- inghouse, C. K. & Co. 138 Fed. 460; Wallace v. D. Appleton & Co. 161 Fed. 884; Magone v. Colorado Smelting & Min. Co. 135 Fed. 847; Ee Allis, 44 Fed. 216. It is here proper to call your attention to the fact that oral examinations and oral testimony are not synonymous. Oral testimony is spoken in the presence of the court, and an oral examination is evidence taken orally before an official author- ized to take it, as if in court, but reduced to vs'riting to be sub- sequently used in court. Indianapolis Water Co. v. Ameri- can Straw-Board Co. 65 Fed. 535. (See "Oral Testimony at Hearins:.") Whoever is appointed to take the testimony orally is to be furnished, if he requests it, with a copy of the plead- ings. Equity rule 67, as amended in 1892. This examination takes place in the presence of the parties, or their agents or attorneys, and the examination is conducted, as near as may be, as in courts of law. The examination cannot, however, be had on part oral and part written interrogatories. Coates v. Merrick Thread Co. 41 Fed. 73. Where an open commission to examine witnesses is given in a remote jurisdiction, the adverse party may properly be given the election to cross-examine after the direct evidence has been returned, either orally or on written interrogatories. Mary- land Trust Co. V. Kirby Lumber Co. 149 Fed. 443; Edison Electric Co. v. Westinghouse, C. K. & Co. 138 Fed. 460. 544 DEPOSITIONS AFTEE ISSUE JOINED. Appointment of Examiners. Prior to 1862 the testimony could be taken by commission, or orally by consent, but in December, 1861, 1 Black. 6, either party could demand the appointment of an examiner. The rule requires, as we see, notice to be given, that either party desires the evidence to be taken orally, and thereupon the witnesses must be examined orally. The notice to be given is as follows : Title as in bill. To A. B., Solicitor, etc.: You will please take notice that the plaintiff E. F. (or the defendants, etc.) in the above cause desires the evidence in this case to be taken orally under equity rule 67, and will in pursuance thereof apply to the Hon. , Judge, etc., on the day of , A. D. 19 ... , to appoint John Smith, who is a citizen of , in the county of in the State of (or Kichard Roe, the standing master of this court) as examiner, under the provisions of equity rule 67 in equity to take the testimony of witnesses for the plaintiff (or defendant) to be used in the trial of the above cause in behalf of plaintiff. R. F., Solicitor, etc. If the examiner is to be appointed beyond the territorial jurisdiction of the court, then state in your notice : To appoint John Smith, Esq., who resides in , in the coimty of , in the State of , a special examiner to take the testimony of (name witnesses) material witnesses for plaintiff (or defend- ant) in the above cause, who reside at , in the county of , in the State of , and such other witnesses as there may be brought before him. The motion for appointment of the examiner may be as follows : Title as in bill. And now comes A. B., plaintiff (or defendant) and says that the above cause is now at issue, and that he desires that the evidence to be adduced in the cause shall be taken orally, wherefore he moves the court to ap- point John Smith, Esq., a special examiner to take the testimony of the witnesses in this cause under the provisions of equity rule 67. R. F., Solicitor, etc. DEPOSITIONS APTEE ISSUE JOINED. 545 The form is changed in accordance with the extent of the order, either within, or without the territorial jurisdiction of the court. The motion made is only by way of suggestion, and the issue under the rule is not whether the appointment be made, but who shall be appointed. Order Appointing Examiner. Title as in bill. It appearing that notice of the motion herein filed for the appointment of a special examiner in this cause to take the testimony in this case has been duly served (or by consent), it is ordered that John Smith, Esq., of , be and he is hereby appointed special examiner under equity rule 67 to take the depositions in this cause of the witnesses that may be brought before him for and in behalf of plaintiff ( or defendant, or both ) . Judge, etc. The order appointing him as examiner having been duly en- tered, your next step is to see that the examiner is served with a certified copy of the order appointing him, and he should be furnished with a copy of such pleadings as show the issues involved. When the examination is to be within the territorial limits of the court, such matters are usually referred to the standing master or special master as examiner, but beyond the jurisdiction, a special examiner is named, usually agreed upon or appointed by the court upon suggestion of names, or the court may appoint whom he pleases. The time stated in notice must be reasonably sufficient. American Exch. Nat. Bank v. First Xat. Bank, 27 C. C. A. 274, 48 U. S. App. 633, 82 Fed. 961. The question of the power of the court to appoint an exam- iner beyond the territorial limits of his jurisdiction has been variously decided by the Federal courts. Judge Lacombe, of the second circuit, following the practice laid down by Judge Blatchford, has refused such applications in his district, and when parties live beyond the reach of his subpoena, their evi- dence must be taken on written interrogatories and commis- sion. The judge seems to fear grave abuses may be committed by putting it in the power of a party to appoint examiners in several States to begin taking testimony on the same day, (Ar- nold V. Cheeseborough, 35 Fed. 16), so as to prevent opposite S. Eq.— 35. 546 DEPOSITIONS AFTER ISSUE JOINED. eounsel from being present at all of the examinations, when it is extremely important that he should be. Ibid. Uhle v. Burn- ham, 44 Fed. 729. No reason is given why this apprehended inconvenience cannot be controlled by the court as in Uhle v. Burnham, 44 Fed. 729, 730 ; White v. Toledo, St. L. & K. C. E. Co. 24 C. C. A. 467, 51 U. S. App. 54, 79 Fed. 133. See Consolidated Fastener Co. v. Columbian Button & Fastener Co. 85 Fed. 54. The practice of appointing examiners beyond the limits of the court's jurisdiction has always been the prac- tice of the fifth circuit, following the opinion of Judge Brad- ley in Schutte v. Florida C. E. Co. 3 Woods, 692-697, Fed. Cas. No. 17,434, decided on circuit, White v. Toledo, St. L. & K. C. E. Co. 24 C. C. A. 467, 51 U. S. App. 54, 79 Fed. 133 ; Davis v. Davis, 90 Fed. 791 ; Equity Eule 67 Time Within Which the Testimony is to Be Taken Before Examiner We have seen that three months is allowed to take testimony, and when the evidence is to be taken orally before an examiner, the court may, on motion of either party, divide the time in such manner as he may deem equitable, if he is to take all the testimony, and may assign a time within which plaintiff must take his testimony, and a time thereafter within which de- fendant must take his testimojiy, and a time within which plain- tiff may rebut, and no further evidence shall be allowed, ex- cept for cause shown on motion. Equity rule 67, sec. 7 ; Brown v. Worster, 113 Fed. 20. Notice of Examination. As soon as possible after the appointment of an examiner, the taking of testimony should begin. The examiner should notify counsel of his readiness to begin, and where the hearing will take place. You should then serve notice as follows: Title as in bill. To A. B., Solicitor for, etc.: You will please take notice that Jno. Smith, Esq., having been appointed by the Hon , Judge of the Circuit Court for the District of Texas, a, special examiner to take the testimony of witnesses for and DEPOSITIONS AFTEE ISSUE JOINED. 547 in behalf of plaintiff (or defendant) will begin said examination on the day of , A. D. 19. . . ., at 10 a. m., at (here designate place, specially stating street, house, number, city, county and State), and that he will proceed with said examination from day to day until com- pleted. R. F., Solicitor. Notice accepted this the day of , A. D. 19.... A. B., Solicitor. Equity rule 67, sec. 4. However, the examiner usually notifies counsel when and where he will begin the examination, which is sufficient where the examination is held within the district. If the time set in the notice be too short, or not convenient, the examiner may, if such fact is shown, fix a further time for hearing, duly noti- fying counsel of the change made, and the day fixed for the examination, and he may adjourn the examination from day to day until completed, or to such time as may be most con- venient for counsel or himself, bearing in mind that the ex- amination must be completed within the time fixed by the rule, unless extended by the court on application and cause shown. Equity rule 67, sec. 4; Wenham v. Switzer, 48 Eed. 612. See Uhle V. Burnham, 44 Fed. 729. Examination of Witnesses. First. Process for. — Counsel must furnish the examiner with the names of the witnesses he proposes to examine, and if necessary to bring them in by process (equity rule 78), the examiner will use the blank subpoenas furnished by the clerk of the court in which the suit is pending, and when prepared, the examiner will deliver them to the United States marshal to be served, or to a deputy usually provided to attend the ex- aminer, for service on the witnesses. Equity rule 78; U. S. Eev. Stat. sec. 868, U. S. Comp. Stat. 1901, p. 664. If the examination is being held in another Federal district, and over one hundred miles from the place where the suit is pending, then the clerk of the United States circuit court of the district in which the examination is being held sljould issue 548 DEPOSITIONS AFTEE ISSUE JOINED. the subpoenas upon application of the examiner (TJ. S. Rev. Stat. sec. 876, U. S. Comp. Stat. 1901, p. 667; Meyer v. Con- solidated Ice Co. 163 Fed. 400), and this subpoena must be served by the officers of the Federal district in which the ex- amination is being held. Ee AUis, 44 Fed. 217; equity rule 67. l^ote that the subpoena must be issued by the clerk of the court in which the suit is pending, if the witness resides, or is within a hundred miles of the place of suit, though in another district. U. S. Rev. Stat. sec. 876, provides that a subpoena may run into any other district, if the witness lives within a hundred miles of the courthouse where the court is held and from which the subpoena is issued. See sec. 868. Meyer v. Consolidated Ice Co. 163 Fed. 404. And a witness under sec. 863, II. S. Rev. Stat, may be required to appear and submit to an examination outside the district in which the suit is pend- ing. Davis V. Davis, 90 Fed. 791. By sec. 870, U. S. Rev. Stat., no witness under a dedirrms potestatem shall be required to attend out of the county of his residence, nor more than forty miles from his residence, and no witness is guilty of contempt for nonattendance unless his fees are paid or tendered when service is made. The fees to be tendered or paid must be the expense of going to and return- ing from the place of examination, and one day's attendance. This being done, the witness must obey. U. S. Rev. Stat. sec. 868 ; ISTorris v. Hassler, 23 Fed. 581 ; Re Boeshore, 125 Fed. 652; Butte & B. Oonsol. Min. Co. v. Montana Ore Purchas- ing Co. 139 Fed. 843. If the witness refuses to appear, or, appearing, refuses to answer, it is deemed a contempt of court, if he is not otherwise privileged from giving testimony. The refusal to appear, or appearing, to answer, must be certified to the clerk's office from which the subpoena issued, by the exam- iner, and the Judge of the court may proceed to enforce obe- dience to the process, as in like cases in any court. U. S. Rev. Stat. sec. 868 ; equity rules 78, 67, sec. 2, par. 5 ; Re Spofford, 62 Fed. 443 ; Re AUis, 44 Fed. 217 ; Bird v. Halsy, 87 Fed. 675 ; Re Steward, 29 Fed. 813 ; Western Div. of Western N. C. R. Co. V. Drew, 3 Woods, 691, Fed. Cas. No. 17,434 ; John- son Steel Street-Rail Co. v. North Branch Steel Co. 48 Fed. 192; New England Phonograph Co. v. National Phonograph Co. 148 Fed. 324. DEPOSITIONS AFTEK ISSUE JOINED. 549 The question has arisen as to whose duty it is to pass upon the relevancy or materiality of the evidence when taken in a district other than that of the trial. lu Dowagiac Mfg. Co. v. Lochren, Y4 C. C. A. 341, 143 Fed. 211-215, 6 A. & E. Ann. Cas. 573, and cases cited, it is said that it is not the duty of the auxiliary judge to consider or de- termine these questions, but only to compel the production of the evidence though deemed incompetent or irrelevant by him, but with the proviso that he will not compel privileged evi- dence, or a privileged witness to testify, nor when there is no doubt that the evidence sought is incompetent, immaterial, or irrelevant. The rule thus laid down applies to equity rules 67 and 68, and when the evidence is taken by a master under rules 74, 77, 78, 79, and 82, in equity, as well as to evidence under sections 863, 868, and 869, at law. Blease v. Garlington, 92 IJ. S. 1, 23 L. ed. 521 ; See Crocker-Wheeler Co. v. Bullock, 134 Fed. 241. In Butte & B. Consol. Min. Co. v. Montana Ore Purchasing Co. 139 Fed. 844, Judge Lacombe thought it best to send back the question of materiality and relevancy to the trial judge, and upon his determination of the matter to com- pel or not the witness to answer; but in this his associates dif- fered with him, and the rule as above stated was enforced. See Xew England Phonograph Co. v. Xational Phonograph Co. 148 Fed. 324 and cases cited ; Fayerwcather v. Bitch, 89 Fed. 529 ; ilaxim Nordenfelt Guns & Ammunition Co. v. Colts Patent Firearms Mfg. Co. 103 Fed. 39 ; Lloyd v. Pennie, 50 Fed. 4-12; Parisian Comb Co. v. Eschwege, 92 Fed. 721. These cases overr^e the conclusion reached in Ee Allis, 44 Fed. 216. Except under the conditions above stated, the wit- ness will be compelled to answer. Perry v. Eubber Tire Wheel Co. 138 Fed. 83G; Robinson v. Philadelphia E. Co. 28 Fed. 341. Subpoena duces tecum. iN^ature of.— By sec. 869, U. S. Eev. Stat, U. S. Comp. Stat 1901, p. 665, a subpmm duces tecum under a dedirrms potestatem requires a witness to appear and testify, and to bring with him to be produced before the court, commissioner, or examiner, any paper, writing, book, or document in hia 550 STTBPGEIJ^A DUCES TECUM. possession or power, material to the investigation. Ee Shep- ard, 3 Fed. 12. The book, paper, document, etc., sought must be described in the application, supported by affidavit ; and in the subpcena, if the court is satisfied it should be issued; and the order made to the clerk to issue it completes the process. This section regulates the issuing of these subpoenas in the United States courts and also applies to cases where depositions are taken de hene esse under sec. 863 or in perpeiuam under sec. S66 (Davis v. Davis, 90 Fed. 791; Kirkpatrick v. Pope Mfg. Co. 61 Fed. 48), or when a dedimus is issued. In John- son Steel Street-Eail Co. v. Xorth Branch Steel Co. 4S Fed. 191, it is said sec. 869 does not apply to depositions taken un- der equity rule 67, where a special examiner has been appoint- ed to take testimony in another district, in that an order of a court to issue the subpoena is not necessary, but it may be is- sued by the clerk of the court of the district in which the evi- dence is taken, without any direct order of the court, but this is not the proper practice. The subpoena should only be is- sued under the order of a court under this section, for reasons lucidly set forth in Dancel v. Goodyear Shoe ilachinery Co. 128 Fed. 760, 762; Crocker-Wheeler Co. v. Bullock, IG-l Fed. 241. Application for and description of instrument. Sec. 869, which, as said, regulates the issuing of subpoenas duces tecum in the courts of the United States, requires an ap- plication to the judge of the district, to be supported by the af- fidavit of the party applying, and the Court, being satisfied, by the affidavit or otherwise, that there is reason to believe that the paper, document, etc. 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, may order the clerk to issue the subpoena. See Dancel v. Goodyear Shoe Ma- chinery Co. 128 Fed. 162; also West Pub. Co. v. Edward Thompson Co. 151 Fed. 142. Of course, the instrument, etc., should be described in the application as a basis for issuing the subpoena, which must contain the description. If the instru- ment is not properly described, the production will be re- fused. Murray v. Louisiana, 163 U. S. 107, 41 L. ed. 89, 16 StrSPCEIfA DUCES TECUM. 551 Sup. Ct. Eep. 990, 10 Am. Crim. Eep. 242. But if properly described, the witness must produce what is called for. Edison Electric Light Co. v. United States Electric Lighting Co. 44: Fed. ■297; S. C. 45 Fed. 55; Johnson Steel Street-Rail Co. v. iSTorth Branch Steel Co. 4S Fed. 195. In Victor G. Bloede Co. V. Joseph Bancroft & Sons Co. 98 Fed. 176, it is said gen- erality in the designation of books or writings is not objec- tionable if the subject-matter to which they relate is specific- ally mentioned in the motion and subpcena. When properly described, the witness cannot say he delivered them to his coun- sel, but must produce them, as they are still in his power. Edison Electric Light Co. v. United States Electric Lighting Co. 44 Fed. 297 ; see S. C. 45 Fed. 55; see Davis v. Davis, 90 Fed. 792. Exceptions to Rule. A call for private papers not in issue will not be enforced (Dancel v. Goodyear Shoe Machinery Co. 128 Fed. 754-762) ; nor when the call is for a cart load of books (Ibid.) ; nor to reveal trade secrets (Crocker-Wheeler Co. v. Bullock, 134 Fed. 241; Victor G. Bloede Co. v. Joseph Bancroft & Sons Co. 98 Fed. 176; but see Johnson Steel Street-Eail Co. v. ISTorth Branch Steel Co. 48 Fed. 191). When Issued in Law Causes. By sec. 724, U. S. Comp. Stat. 1901, p. 583, in causes at law the court may on motion grant to either party, after due notice thereof, an order requiring the parties to produce books or other writings in their possession or power, which contain evidence pertinent to the issue, under circumstances in which they may be compelled to produce the same by the ordinarj- rules of proceeding in Chancery. The whole purpose of this section was to eliminate the formality of going into a court of equitv for a bill of discovery. Owyhee Land & Irrig. Co. v. Tautphaus, 48 C. C. A. 535, 109 Fed. 547 ; Eyder v. Bate- man, 93 Fed. 31 ; Kirkpatrick v. Pope Mfg. Co. 61 Fed. 48. This section applies only to causes at law, but before gi-anting the order, the party applying must make reasonable proof of 552 SUBPCENA DUCES TECUM. the existence of the documents, etc., and their pertinency to the issues, and the possession or control of the opposite party. Ibid. ; Owyhee Land & Irrig. Co. v. Tautphaus, 48 C. C. A. 535, 109 Fed. 547 ; Paine v. Warren, 33 Fed. 357. It is not a matter of right, as the issuing of a subpoena ad testificandum, but the court exercises a discretion, following the practice in such cases in chancery. Gregory v. Chicago, M. & St. P. E. Co. 3 McCrary, 374, 10 Fed. 529 ; Dancel v. Goodyear Shoe Ma- chinery Co. 128 Fed. 761, 762. However, in American Litho- graphic Co. V. Werckmeister, 91 C. C. A. 376, 165 Fed. 426, the court held that the power to require the production of docu- mentary evidence was not limited to an order made on motion, as provided by sec. 724, but that under Rev. Stat. sec. 716, that it had express power, as well as its inherent power to issue any Tvrit necessary for the proper exercise of its jurisdiction. Penalty for Refusal. Sec. 724 provides a penalty if the plaintiff or defendant fails to comply with the order, to wit, nonsuit in case of the plain- tiff, and judgment by default in case the defendant fails to comply (Victor G. Bloede Co. v. Joseph Bancroft & Sons Co. 98 Fed. 175, S. C. 110 Fed. 76), but not when the action is penal, or for the recovery of penalties, as, for instance, under sec. 4901 of U. S. Eev. Stat, U. S. Comp. Stat. 1901, p. 3388, Wewgold V. American Electrical Novelty & Mfg. Co. 108 Fed. 341, 342. In Equity Cases, So far, then, we see that this chancery power was given to courts of law to avoid an appeal to equity for discovery, but in equity the chancery rules and procedure in issaing the sub- poena duces tecum have not been changed. West Pub. Co. v. Edward Thompson Co. 151 Fed. 140. A subpoena duces tecum may issue when the depositions in chancery are taken under equity rule 67, and whether taken imder a commission on direct or cross interrogatories, or orally before an examiner. In Johnson Steel Street-Rail Co. v. North Branch Steel Co. 48 Fed. 191, it is said that when a SUBPOENA DUCES TECUM. 553 special examiner has been appointed under equity rule 67 to take testimony in another district, a subpoena duces tecum may issue upon direct application to the clerk of the district in which the examination is being held, and without an order of court. The court bases its opinion upon the 78th rule of equity, permitting subpoenas ad testificandum to be issued in blank, to be filled up by the commissioner master, or examiner, as may be required during the taking of evidence, but this is clearly a wrong application of the rule. As said in Cancel v. Goodyear Shoe Machinery Co. 128 Fed. 762, the settled prac- tice of the courts is not to issue subpoenas duces tecum under sec. 863, U. S. Comp. Stat. 1901, p. 661, or rule 67, except by order of the court and upon preliminary proofs of neces- sity. There is no question, that whether depositions are be- ing taken under a commission de bene esse (U. S. Rev. Stat, sec. 863) or a dedimus under U. S. Kev. Stat. sec. 869, or under equity rule 70, that there must be an application and an order, as heretofore stated, as a basis for contempt proceedings in case of refusal to obey the subpoena. Dancel v. Goodyear Shoe Ma- chinery Co. 128 Fed. 761, 762; see West Pub. Co. v. Edward Thompson Co. 151 Fed. 141 ; Crocker- Wheeler Co. v. Bullock, 134 Fed. 242, 243 ; Gregory v. Chicago, M. & St. P. E. Co. 3 McCrary, 374, 10 Fed. 529. In Dancel v. Goodyear Shoe Ma- chinery Co. supra, it is said a notary public taking depositions has no power to issue a subpoena duces tecum. In Pepper v. Rogers, 137 Fed. 173, it is said that when papers are produced before an examiner by witnesses under a subpoena duces tecum ^ the court cannot order the examiner to remove them to another district, to be used in the examination of other witnesses. CHAPTER LXXXVIII. HOW EXAMI2s'ATI0X TO BE CONDUCTED. The examination of the witness takes place in the presence of the commissioner, examiner, and the parties, or iheir agents, and by the commissioner or examiner or counsel, if present, and the witnesses are subject to cross-examination or re-examina- tion if taken orally, as if upon the stand in. court. Equity rule 67, par. 2. Any question objected to must be noted, with objections made, but the examiner has no power to decide on the compe- tency, materiality, or relevancy of the question asked. Equity rule 67, par. 2. The court alone can deal with the competency and relevancy; nor will the court pass upon it during the ex- amination of the witness. [Maxim-Xordenfelt Guns i: Ammu- nition Co. V. Colt's Patent Firearms Mfg. Co. 103 Eed. 39; Kansas Loan & T. Co. v. Electric E. Light & P. Co. lOS Fed. 702 ; Brown v. Worster, 113 Fed. 20 ; Please v. Garlington, 92 U. S. 7, 23 L. ed. 523 ; Whitehead & H. Co. v. O'Callahan. 130 Fed. 24:3 : Ee Eomine, 133 Fed. 839; Diamond Drill i: Mach. Co. V. Kelly Bros. 120 Fed. 2S2. The court can control irrele- vant questions by charging tip the costs, where there is a reck- less disregard of the rules of evidence. Ibid. This may be met by motion to strike out the irrelevant evidence and charge up the costs. Griffith v. Shaw, SO Fed. 313. Counsel cannot instrtict a witness not to answer a question, unless it is criminating (Thompson-Houston Electric Co. v. Jeffrey Mfg. Co. S3 Fed. 61-i), nor can the examination be stopped to refer the relevancy of the question to the court (De Eoux V. Girard. 90 Fed. 537 ; Parisian Comb Co. v. Eschwege, 92 Eed. 721). Again, an examiner is not under the instruction of coimsel, and they cannot stop the examination (Ee Einds- kopf, 24 Fed. 542"). nor control it in any way. First Xat. Bank V. Forest. 4-1: Fed. 246; J. L. Mott Iron-Works v. Standard ^Hg. Co. 4S Fed. 345. 534 HOW EXAMINATION TO BE CONDUCTED. 555 The Examination is to Be Reduced to Writing. The examiner is to reduce to writing the questions and an- swers as put and given, or by consent of parties it may be writ- ten in narrative form. By amendment oi equity rule 67 in 1S92 (see Appendix), the questions and answers may be taken by a stenographer, or typewriter, as the examiner may elect. Brown V. Ellis, 103 Fed. S37. It has been held that it was not properly taken, if not reduced to writing, imder sections S63 and 864 (Moller v. United States, 6 C. C. A. 459, 13 U. S. App. 472, 57 Fed. 491; Cook v. Burnley, 11 Wall. 659, 20 L. ed. 29), and not admissible in evidence. In Moller v. United States, 6 C. C. A. 459, 13 U. S. App. 472, 57 Fed. 495, the questions and answers were taken steno- graphically. but were not reduced to writing in presence of wit- ness, or read over to him after they had been written out. They were not admissible. Ibid. See Ee Thomas, 35 Fed. 822. When completed, whether taken down by a stenographer or written down by the examiner, he should read it over to the wit- ness, or it should be read over to the witness in the presence of the examiner, and be signed by the witness in the presence of the examiner and of such of the parties or counsel as may attend. U. S. Rev. Stat. sec. 864, U. S. Comp. Stat. 1901 p. 662, equity rule 67, sec. 2. If the witness refuses to sign, the examiner shall sign them, stating in the record the reasons, if any. given by the witness why he did not sign (equity rule 67, as amended in 1S92) ; and he may state any other special mat- ters that he may think fit to be presented in the report of his action. Hoiv Authenticnted and Transmitted. By equity rule 67, par. 5, it is required that when the orig- inal deposition is completed, that it shall be authenticated by the signature of the examiner, and be transmitted by him -to the clerk of the court in which the suit is pending, to be filed there in the same manner as is prescribed in section 865 of the United Sta(?s Revised Statutes. This section provides that the magistrate taking the deposi- tion shall deliver it with his own hand into the court for which it is taken, or it shall, together with a certificate of the reasons 556 HOW EXAMINATION TO BE COHDUCTZB, for taking it, and of the notice, if any, given to the parties, be sealed up and directed to the court, and remain under seal un- til opened in court. See "Mailing Depositions." As to cer- tificate of officer see "Defective Certificate," chapter 89. Re Thomas, 35 Fed. 340, 824; The Saranac, 132 Fed. 942; Stewart v. Townsend, 41 Fed. 121; see Columbus K. Co. v. Patterson, 73 C. C. A. 603, 143 Fed. 248. Oral Examination at the Hearing. Prior to 1842, when the rule embodied in U. S. Kev. Stat, sec. 862, was passed, oral examinations of witnesses in open court were permitted. By that act it was provided that the mode of proof in equity causes should be according to rules prescribed by the Supreme Court. U. S. Rev. Stat. sec. 917, U. S. Comp. Stat. 1901, p. 684, gave to the Supreme Court the power to prescribe the modes of taking and obtaining evi- dence in suits in equity, not inconsistent with the laws of Con- gress. The Supreme Court promulgated in 1842 equity rules 67, 68, and 69, superseding the rules promulgated in 1S22, and required proofs in equity causes to be taken by depositions, as before explained. In the same year, 1842, equity rule 7S was issued, providing for summoning witnesses to be examined on interrogatories or before an examiner, but the latter clause of the rule left it entirely discretionary with the court to still order an examination viva voce when witnesses were produced in open court. Blease v. Garlington, 92 U. S. 1, 23 L. ed. 521. The uniform practice under the rules of 1842 was to require the proof by deposition, or before examiners, and in Western Div. of Western X. C. R Co. v. Drew, 3 Woods, 691, Fed. Cas. Xo. 17,434, it was held that it was not the proper construction of equity rule 78 to permit it; that the substan- tial evidence in equity cases must be taken under equity rule 67. Blease v. Garlington, 92 U. S. 1, 23 L. ed. 521. On May 15, 1893, equity rule 67 was amended and the following provision added (149 U. S. 793, 37 L. ed. 1235): '"Upon due notice given, as prescribed by a previous amend- ment (May 2, 1892), (144 U. S. 689, 36 L. ei 1143), the HOW EXAMINATION TO BE CONDUCTED. 557 court mav, at its discretion, permit the whole or any specific part of the evidence in an equity cause to be adduced orally in open court on final hearing." Mears v. Lockhart, 36 C. C. A. 239, 94 Fed. 274; Magone v. Colorado Smelting & Min. Co. 135 Fed. 847. In Hyams v. Federal Coal & Coke Co. 82 C. C. A. 324, 152 Fed. 970, it is said that the amendment of 1893 does not au- thorize the Court to require an unwilling party to so adduce evidence. The amendment of the rule as above seems to be a sugges- tion of the Supreme Court that the courts change the practice, though the discretion of the court to permit oral testimony at the hearing in open court was left without control. As usual, the courts differ in the use of this discretion, some regarding the practice as an innovation without advantage in its exer- cise, while others permit it under pressing circumstances, and others again are liberal in their construction of the amend- ment. Ibid. Application for Taking Testimony Orally or at the Hearing. It is necessary to apply by motion to the court for permis- sion to examine the witnesses orally at the final hearing as at law, and you may use the following form: Title as in bill; address to court. And now comes the plaintiff (or defendant), and moves the court for permission to present his witness or witnesses (naming them) at the final hearing, and that his (or their) evidence be taken orally as provided by- equity rule 67 as amended May 15, 1893, promulgated by the Supreme Court of the United States to govern the taking of testimony in equity causes. R. F., Solicitor. See Hyams v. Federal Coal & Coke Co. 82 C. C. A. 324, 152 Fed.' 971. You may file the motion in the general form above given, or it may be necessary, according to the temper of the judge, to state in your motion specific reasons for asking for an oral examination in open court 558 HOW EXAMINATION TO BE CONDUCTED. When Application Should Be Made. Again, remembering that you have only a limited time for taking testimony, your motion should be made in such time that if the court should refuse your application, you would have sufficient opportunity to take the depositions in the usual way. Mears v. Lockhart, 36 C. C. A. 239, 94 Fed. 274. Evidence Thus Taken Reduced to Writing. As all equity cases are tried on the record, which must con- tain all the evidence taken, you must, in case the examination of the witnesses is oral, in open court, have the testimony taken down in writing and signed by the witness, or the judge in his discretion may have only the substance of the testimony re- duced to vsrriting, and in either case it must be filed as a part of the record. Blease v. Garlington, 92 U. S. 7, 23 L. ed. 523; Hears v. Lockhart, 36 C. C. A. 239, 94 Fed. 275. CHAPTER LXXXIX EETtTEXING AND FILING DEPOSITIONS. By equity rule 67, sec. 5, it is provided that when the exam- ination is concluded, the original deposition, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be filed for record in the same mode as prescribed in sec. S65 of the Revised Statutes of the United States, which provides that the officer taking shall retain the depositions until delivered with his own hand into court, or shall transmit the same under seal, and in such case they are to remain under seal until opened in court. When transmitted they must be sealed up, and if not sealed when received they will be suppressed (Re Thomas, 35 Fed. 337-340) ; but it seems that where the package was sealed with the express com- pany's seal, and the name of the commissioner written across, it was held sufficient (Egbert v. Citizens' Ins. Co. 2 McCrary, 3S6, 7 Fed. 47; Brown v. Ellis, 103 Fed. 836, 837). When parties agree that the depositions may be taken before any officer or magistrate authorized to administer oaths, with- out special appointment by the court of an examiner, they must be returned and filed as required by equity rule 67, sec. 5, (J. L. Mott Iron Works v. Standard Mfg. Co. 48 Fed. 345), and it cannot be held back under instructions from counsel of the party on whose behalf the witness was examined. Ibid. ; First Xat. Bank v. Forest, 44 Fed. 246. Returning hy Mail. The envelop should be addressed to the clerk of the court issuing the commission, marked with the style of the case, sealed, and the commissioner taking should indorse his name across the seal. Egbert v. Citizens Ins. Co. 2 McCrary, 386, 559 560 puBUCATioir of depositions. 7 Fed. 47 ; Stewart v. Townsend, 41 Fed. 121. It may then be sent by mail or express; the rule requires it simply to be transmitted. United States v. 50 Boxes & Packages of Lace, 92 Fed. 604; Batts' Rev. Stat. (Tex.) 2286. Publication of Depositions. The next step to be t-aken is the publication of the deposi- tions. By equity rule 69 it is provided that immediately on the return of the depositions and eomonission, publication thereof may be ordered in the clerk's office by any judge of the court, upon due notice to the other party, or it may be enlarged as he may deem reasonable under all the circumstances ; but by consent of the parties, publication may at any time pass in the clerk's office, such consent being in writing and a copy thereof entered in the order book, or indorsed upon the deposition. The uniform practice is to file a consent to publication as the depositions come in. Consent may be filed as follows : Title as in bill. We consent to the publication and opening of the depositions taken in the aboTe cause without prejudice to any objections other than relating to publication and opening, which is hereby waived. Signed by counsel for both parties. If consent cannot be obtained, then an application to a judge at any time to permit opening the depositions can be made by a simple motion. Xotice of time and place of the application should be given to the adverse party or his counsel. Without serious objection, the court wiU grant the order. Stewart v. Townsend, 41 Fed. 122 : Eillert v. Craps, 44 Fed. 792 ; Cali- fornia V. Southern P. Co. 153 TJ. S. 245, 38 L. ed. 704, 14 Sup. Ct. Eep. 113S. When consent given, it waives irregulari- ties in transmission, unless otherwise stated. Stewart v. Town- send, 41 Fed. 121. Exhiiits. When exhibits are offered in connection with testimony, they must be attached, and if copies, the officer must certify that he has compared the copies with original. The HoUaday Case DEPOSITIONS TO rOREIGN COITITTaiES. 561 27 Fed. 842. It is not necessary to place a certificate on the exMbits, but they may be referred to in the certificate to the depositions, and the commissioner may send them in a separate envelop (Bird v. Halsy, 87 Fed. 672; Dundee Mortg. & T. Invest. Co. V. Cooper, 26 Fed. 670, 671 ; United States v. 50 Boxes & Packages of Lace, 92 Fed. 601) ; or they may be iden- tified in any maimer that will make certain the fact that they are the paper offered in connection with the evidence (Ibid.) ; and mailing them in separate packages is permissible (Bird V. Halsy, 87 Fed. 671, 672). Depositions to Foreign Countries. Sections S63 and 864 of the United States Revised Statutes, U. S. Comp. Stat. 1901, pp. 661, 663, refer to taking deposi- tions within the United States, as is clearly shown by the desig- nation of the oQicers authorized to take them. Encyclopsedia Britannia Co. v. Werner Co. 138 Fed. 461; Bird v. Halsy, 87 Fed. 667; Cortes Co. v. Tannhauser, 21 Blatchf. 552, 18 Fed. 667; The Alexandra, 104 Fed. 904. In Stein v. Bow- man, 13 Pet. 209, 10 L. ed. 129, it was said that the only method by which depositions can be taken in a foreign coun- try is by a commission, and in Cortes Co. v. Tannhauser, 21 Blatchf. 552, 18 Fed. 667, it is said the proper course is by commission, but where notice that oral examinations would be required in the case has been given, that the evidence may be so taken in a foreign country. Edison Electric Co. v. West- inghouse, C. K. Co. 138 Fed. 460, 461, following Bischoffs- heim v. Baltzer, 20 Blatchf. 229, 10 Fed. 1. Commissions to take evidence in a foreign country may issue under a dedimus pursuant to the provisions of U. S. Rev. Stat. sec. 866, U. S. Comp. Stat. 1901, p. 661. (Ibid. ; United States V. 50 Boxes & Packages of Lace, 92 Fed. 602, 603) ; or by commission under equity rule 67, par. 1; or may be taken orally under equity rule 67, par. 2 (Bischoffsheim v. Baltzer, 20 Blatchf. 229, 10 Fed. 4. See Hollander v. Baiz. 40 Fed. 659, S. C. 43 Fed. 35) ; or under the forms provided by State statutes, (United States v. 50 Boxes & Packages of Lace, 92 Fed. 603, 604) ; or under "Letters Rogatory" (U. S. Rev. Stat. sec. 875). S. Eq.— 36. 562 LETTEES EOGATOET. Before Wkom TaJcen. We have already seen before what oflBcials in foreign coun- tries depositions may be taken under the State practice of Texas, but by section 175(i of the Revised Statutes of the United States, U. S. Comp. Stat. 1901, p. 1196, it is provided that depositions may be taken in foreign coTintries before any secretary of legation or consular officer within the limits of his legation, consulate, or commercial agency, and it is further provided that such officers may perform any notarial act which a notary public may perform in this country, and when the depositions are so t-aken and certified under the seal of office of such officer, they shall be as valid as if taken in the United States under the laws thereof. Bischoffsheim v. Baltzer, 20 Blatchf. 229, 10 Fed. 4; Cortes Co. v. Tannhauser, 21 Blatchf. 552, 18 Fed 667. Letters Rogatory. By U. S. Bev. Stat. sec. 575, evidence may be taien in a foreign country, either by commission or letters rogatory, in any suit in which the United States is a party, or has an inter- est, and by sections 4071 to 4074, U. S. Comp. Stat. 1901, pp. 2763, 2764, it provided for taking the testimony of witnesses in this country upon letters rogatory addressed to any circuit court of the United States by any court of a foreign country. The circuit court to ■which the letters are addressed will desig- nate a commissioner to take the testimony required, with all powers necessary to execute the commission. In Gross v. Palmer, 105 Fed. 533, it is said that letters rogatory may issue from a circuit court where testimony can- not otherwise be obtained, but it must be shown with certainty that a commission is not adequate. Letters rogatory are prepared in the name of the President of the ITnited States and addressed to the presiding ofBcer of some conrt of record of a foreign country, stating the pending of a suit in a coxirt of the United States and suggesting certain parties (naming them) are within the juris- diction of the foreign court and are material witnesses in the pending cause. Then follows a request that by the usual process of the foreign court the lETTEES EOGATOET. 363 parties named be brought before the court, or some competent person appointed by the court, to be examined on the interrogatories and cross- interrogatories annexed to the letter; that the answers be taken in writing and returned, addressed to the clerk of the court where the cause is pend- ing. They are to be sealed up with the letter rogatory and returned. The teste to the letter rogatory should be: Witness the , Chief Justice of the United States, this day of , A. D. 19..., and the year of the independence of the United States of America. Attest : Clerk of the (SEAL.) (Court in which suit is pending.) If issued from a district court of the United States, it shall bear teste of the judge and attested by the cleyk of the court as above. When executed by the court or commissioner to whom di- rected, it must be returned to the minister or consul of the United States nearest to the place where executed, who is to indorse on it a certification when and where it was received, and the condition in which he received it, and he shall then transmit the letter on commission so executed and certified, to the clerk of the court from whence it issued. CHAPTEK XC. StrPPEESSrNG DEPOSITIOirS. The requirements of the laws under which depositions are taken must he complied with (Bell v. Morrison, 1 Pet. 351, 7 L. ed. 174), and the certificate of the ofiBcer taking should show compliance as to the manner of taking, as already ex- plained. Formerly the rulings were very strict because of the fact that under the 30th section of the act of 17S9 they could be taken without notice, but now, notice being required, the rule may be stated as follows : If the right to take the deposi- tion exists, and notice has been given, so that the opp-ortunity for cross-examination has been secured, then the objection must be substantial to be sustained. Kansas City, Ft. S. & M. R. Co. V. Stone, 2 C. C. A. 437, 10 U. S. App. 209, .51 Fed. 656; H. Scherer & Co. t. Everest, 94 C. C. A. 346. 168 Fed. 822 ; Union P. R Co. v. Eeese, 5 C. C. A. 510, 15 U. S. App. 92, 56 Fed. 288-290. A motion to suppress evidence taken in rebuttal will not be granted if there is any evidence in rebuttal in the deposition. West Pub. Co. V. Edward Thompson Co. 152 Fed. 1019. Subject to the above rule every step in the taking of deposi- tions can be excepted to with a view to suppressing the deposi- tions. First. As to notice of taking. — ^While proper notice of tak- ing as to time and place must be given, yet attending an ex- amination waives all irregularities, and allowing the deposition to be read without objection at the trial, though a motion to suppress before the trial has been made and overruled, waives any objection to the manner of taking. Union P. R. Co. v. Eeese, 5 C. C. A. 510, 15 U. S. App. 92, 56 Fed. 291; Ray V. Smith, 17 Wall. 411, 21 L. ed. 666. In Gartside Coal Co. V. ilaxwell, 20 Fed. 187, it is said that depositions will not be suppressed though taken at a different place from the one 564 SUPPEESSING DEPOSITIONS. 565 named in the notice, if both parties are present -when taken. Bird V. Halsy, ST Fed. 672; Mutual Ben. L. Ins. Co. v. Eoh- ison. 2-2 L.R.A. 325, T C. C. A. 444, 19 U. S. App. 266, 58 Fed. 732; Brown v. Ellis, 103 Fed. S37; Gormley v. Bunyan, 138 r. S. 032, 34 L. ed. 10S9, 11 Sup. Ct. Eep. 453, Beasonahle K of ice. What constitutes reasonable notice in p.oint of time depends on the circumstances in each case. American Exch. !N"at. Bank V. First Xat. Bank, 27 G. C. A. 274, 48 U. S. App. 633, 82 Fed. 961; The Serapis, 49 Fed. 393; Uhle v. Burnham, 44 Fed. 729. Second. When defect in commission. — If there be a defect in the commission, the courts have permitted it to be amended. Thus, where the commission was addressed to one Carey, in- stead of Corey, it was held a clerical mistake, and did not mis- lead the defendant, as he had been notified of the name of the commissioner in the notice for taking. Bibb v. Allen, 149 U. S. 4SS. 37 L. ed. 822, 13 Sup. Ct. Eep. 950; Bro^vn v. Ellis, 103 Fed. 836; United States v. Pings, 4 Fed. 714. So in United States v. Pings, 4 Fed. 714, it was held that a commis- sion properly executed would not be set aside, though the in- structions accompanying it were not signed by the clerk or coun- sel, as required by a rule of court issuing the commission. The failure to note an objection to a deposition based on the form of a commission, or the manner of executing it when the de- position is taken, or to present the objection by a motion to suppress before the trial begins, is a waiver of the objection. Howard V. StiUwell & B. Mfg. Co. 139 U. S. 199, 35 L. ed. 147, 11 Sup. Ct Eep. 500. When Defectively Taken. If the depositions are defectively taken, a motion to sup- press must be made at once, or it will waive the objection to form and manner of taking. Samuel Bros. v. Hostetter Co. 55 C. C. A. Ill, lis Fed. 257; Stegner v. Blake, 36 Fed. 184. Thus, where the commissioner attached copies of exhibits, in- stead of the originals, and marked them for identification, 566 SUPPEESSIXG DEPOSITION'S. without saying he had compared them, the objection must be met by motion to suppress before the hearing, or it is waived- The Holladay Case, 27 Fed. S42 ; Insurance Co. of X. A. v. Guardiola, 129 U. S. 643, 32 L. ed. 803, 9 Sup. Ct. Eep. 425. Blackburn v. Cran-ford, 3 Wall 191, 192, 18 L. ed. 192, 193. So a motion to suppress because defectively taken, filed one month after cause is set for hearing, comes too late. Ibid- Setting the cause for hearing waives technical objections. The HoUaday Case, 27 Fed. S42, 843, and cases cited. Blackburn V. Crawford, 3 Wall. 191, 192, 18 L. ed. 192, 193. Where cross interrogatories were not answered, the deposi- tion will not be suppressed if the motion comes too late to re- take them. Eahtjen's American Composition Co. v. Holzap- pel's Compositions Co. 97 Fed. 949. So when defectively taken, objections are waived if allowed to be used. Indianap- olis Water Co. v. American Straw-Board Co. 65 Fed. 534; Union P. E. Co. v. Eeese, 5 C. C. A. 510, 15 U. S. App. 92, 56 Fed. 288; Bay v. Smith, 17 WalL 417, 21 L. ed. 669, or counsel present when taken. Brown v. EUis, 103 Fed. 534, and not excepting. When the brother of the attorney took the depositions, it was held that the depositions could be read. And where the at- torney wrote the answers, while irregular, yet no fraud being shown, the court would not suppress. Missouri, K. & T. E. Co. V. Eyas, 9 Tex. Civ. App. 572, 29 S. W. 1122. However, it was intimated otherwise in Dawson v. Boston, 25 Fed. 606: United States v. Pings, 4 Fed. 714. 'n'itness Adopting Previous Answers. A witness on his second examination read over a copy of his testimony given previously and subscribed it as his deposition, This was held not to render the deposition inadmissible. Sam- uel Bros v. Hostetter Co. 55 C. C. A. Ill, US Fed. 257. Defective Certificate. (See chapter 35.) A commissioner taking depositions in a foreign country, who fails to certify that the examination was "subscribed by SUPPEESSIJi'G DEPOSITIONS. 567 the s-svorn interpreter," as directed, is immateral if the certifi- cate shows the interpreter was sworn. United States v. 50 Boxes & Packages of Lace, 92 Fed. 601. Where the notary certifies that he is not attorney for either party, omission to certify that he is not interested in the event of suit is not sufficient cause to suppress. Stewart v. Town- send, 41 Fed. 121. See also Giles v. Paxson, 36 Fed. SS2. In Columbus E. Co. v. Patterson, 73 C. C. A. 603, 143 Fed. 24S. where the name of the witness was not rightly given, but there was no doubt from the record who was intended, the de- position was not suppressed. In Stegner v. Blake, 36 Fed. 1S4, the defect in the certificate was a want of a statement of the cause of taking. Such de- fect was waived because not taken before final hearing. Bird V. Halsy, ST Fed. 672. In Brown v. Ellis, 103 Fed. 834, it is held that depositions for use in the Federal CourJ; under U. S. Rev. Stat. sec. S63- S65, U. S. Comp. Stat. 1901, pp. 661-663, and under a com- mission to a notary public, his official seal to the certificate is not essential. Aiiain. where a commission issued to A. C. Strong, the de- positions are not inadmissible because certified by Alfred C. Strong. Ibid. See Columbus R Co. v. Patterson, 73 C. C. A. 603, 143 Fed. 245. (See "Informality of Certificate.") Will Be Suppressed. "When taken after the time allowed. Ee Thomas, 35 Fed. 337. When a witness is re-examined before an examiner on the same matter without an order of court. Thurber v. Cecil Xat. Bank, 52 Fed. 515. So when taken by a party before he becomes partv to the suit. Eiviere v. Wilkens, 31 Tex. Civ. App. 454, 72 S. W. 608. So where a party declines to introduce his witness for cross- examination, the direct examination wiU be suppressed. So when answers taken stenographically, and not reduced to writ- 568 SUPPEESSIXG DEPOSITIONS. ing in the presence of the witness, or read over to him. Mol- ler V. United States, 6 C. C. A. 459, 13 U. S. App. 472, 57 Fed. 491; Cook v. Bumlej, 11 Wall. 66S, 20 L. ed. 30. But see Bird v. Halsy, S7 Fed. 677, not applying rule to deposi- tions taken in a foreign country. So when witness refuses to answer a material question. Bird v. Halsy, 87 Fed. 674. But not where no effort is made to make him answer, and no notice of intention to suppress, and two terms intervene before a motion to suppress is made. Ibid. But it seems exception must be noted before examiner. Ibid. Doane v. Glenn, 21 WaU. 35, 22 L. ed. 476; McClaskey v. Barr, 48 Fed. 138. While you can not prevent a party from taking irrelevant tes- timony, yet they will be suppressed if none of the answers are relevant. Griffith v. Shaw, S9 Fed. 313; First Xat. Bank v. Bush, 29 C. a A. 333, 56 U. S. App. 556, S5 Fed. 541. Motion to Suppress. As before seen, in stating the cause for suppressing deposi- tions, the motion must be made before the case is called for trial at law. Bibb v. Allen, 149 U. S. 481, 37 L. ed. S19, 13 Sup. Ct. Eep. 950; Bird v. Halsy, 87 Fed. 672; Howard v. StillweU k B. Mfg. Co. 139 U. S. 199, 35 L. ed. 147, 11 Sup. Ct. Rep. 500; Stegner v. Blake, 36 Fed. 1S4. There must be given an opportunity to correct the deposition, or the defects in taking, to which objections have been made. Ibid. ; Doane V. Glenn, 21 WaU. 35, 22 L. ed. 476; McClaskey v. Barr, 48 Fed. 138; The HoUaday Case, 27 Fed. 842 ; Xew York Mfg. Co. V. Illinois C. R. Co. 3 WaU. 113, 114, 18 L. ed. 172; Shutte V. Thompson, 15 WaU. 160, 21 L. ed. 126; Samuel Bros. V. Hostetter Co. 55 C. C. A. Ill, 118 Fed. 257. This rule, it is said, may be relaxed when returned just before trial. Xew York Mfg. Co. v. lUinois C. R Co. 3 WaU. 107-114, IS L. ed. 170-172. In equity aU technical objections must be presented by mo- tion before the case is set for hearing. (Authorities above.) Where the evidence is irrelevant, or other substantial objection exists, as being hearsay, secondary, or irresponsive, it may be taken when evidence is offered at the hearing, and not by mo- tion to suppress. First Xat. Bank v. Rush, 29 C, C. A. 333, EFFECT OF DEATH. 569 56 U. S. App. 556, 85 Fed. 542; Lott v. King, 79 Tex. 293, 15 S. W. 2ol. When a motion to suppress is necessary, it is only necessary to state specifically the grounds upon which it is based, and a prayer to suppress, and to be filed, as indicated above, in such time that opportunity for curing the defect may be given. Effect of Death On. A deposition of a party as to transactions with another party, taken while the latter is alive, may be used when the suit is revi^-ed in the name of his representatives. Sheidley v. Ault- man, IS Fed. 666; McMullen v. Kitchie, 64 Fed. 253, 266; See Euch v. Kock Island, 97 U. S. 694, 24 L. ed. 1101 ; United States L. Ins. Co. v. Koss, 42 C. C. A. 601, 102 Fed. 722. And this, too, though the party with whom the transaction was had dies before his evidence was taken. Ibid. As to offering testimony of deceased witness at law see Nome Beach Lighter- age & Transp. Co. v. Standard M. Ins. Co. 156 Fed. 484, 485, and cases cited. When Destroyed. When the depositions are destroyed by fire or other accident, copies may be used, though the witness be living. U. S. Rev. Stat. sees. 899, 900, U. S. Comp. Stat. 1901, p. 675. Steb- bins V. Duncan, 108 U. S. 46, 27 L. ed. 646, 2 Sup. Ct. Eep. 313. See Euch v. Eock Island, 97 Fed. 693, 124 L. ed. 1101, as to reproducing the evidence of deceased witness. Evidence in a Former Case. Evidence taken in a former case is only secondary and is incompetent unless a foundation is laid, as, that the witnesses are dead or unavoidably absent. Ecaubert v. Appleton, 15 C. C. A. 73, 35 U. S. App. 221, 67 Fed. 917; Dover v. Green- wood, 177 Fed. 947 ; Diamond Coal & Coke Co. v. Allen, 71 C. C. A. 107, 137 Fed. 706; Toledo Traction Co. v. Cameron, 69 C. C. A. 28, 137 Fed. 49. CHAPTEK XCI. DEPOSITIONS ON LAW SIDE. Before closing the discussion of depositions, I wish to brief- ly speak of depositions de hene esse taken in a cause at law in the Federal courts. We have seen that sec. 863, United States Revised Statutes, TJ. S. Comp. Stat. 1901, p. 661, provides for taking depositions when the witness lives at a greater distance than one hundred miles from the place of trial, or is bound on a sea voyage, or about to go out of the United States, or when aged and infirm, or when a single witness to a material fact Bird V. Halsy, 87 Fed. 676, 677 ; Lowrey v. Kusworm, 66 Fed. 539; see Frost v. Barber, 173 Fed. 847; Zych v. American Car & Foundry Co. 127 Fed. 724. We have seen that this statute applies in equity as well as law, (Stegner v. Blake, 36 Fed. 184), but that in its application in equity the provisions other than the clause referring to the distance of the witness from the place of trial were the grounds for taking the deposi- tions in equity iefore issue joined only. At law, unless one or more of these conditions exist, you cannot take the evidence of a witness hy deposition in the United States courts, but must have him at the trial, to be examined orally. Ibid. ; Diamond Coal & Coke Co. v. Allen, 71 C. C. A. 107, 137 Fed. 705, 706 ; Compania Azucarera Cu- bana v. Ingraham, 180 Fed. 516 ; Xational Cash Register Co. V. Leland, 37 C. C. A. 372, 94 Fed. 502; Texas & P. R. Co. V. Wilder, 35 C. C. A. 105, 92 Fed. 957, 958; Henning v. 570 DEPOSITIONS ON LAW SIDE. 571 Boyle, 112 Fed. 397 ; Hartman v. Feenaiighty, 139 Fed. Importers' & T. iS^at. Bank v. Lyons, 134 Fed. 510, 511. But it seems the rule does not apply when depositions are taken in answer to a rule to show cause where facts disputed. Im- porters' & T. E"at. Bank v. Lyons, 134 Fed. 512. In 1S92, as before stated, Congress permitted depositions to be taken in the mode prescribed by the State laws and prac- tice, but, as we have before seen, this merely simplified the practice without enlarging the conditions under which deposi- tions could be taken in the Federal courts. Texas & P. E. Co. V. Wilder, 35 C. C. A. 105, 92 Fed. 957 ; National Cash Reg- ister Co. V. Leland, 37 C. C. A. 372, 94 Fed. 502, S. C. 77 Fed. 242; Despeaux v. Pennsylvania E. Co. 81 Fed. 897. This act of 1S92 has been frequently construed, and, without further discussion, I will give the rules that have been evolved, which control the practice on the law side of the Federal courts in taking the testimony of witnesses by deposition. First. The State statutes do not affect the causes or grounds for taking depositions on the law side. United States v. 50 Boxes & Packages of Lace, 92 Fed. 601. Second. That depositions taken from a witness living with- in one hundred miles from the place of trial cannot be read in evidence, and the distance is to be determined by taking the ordinary, usual, and shortest route of public travel (Jennings V. Menaugh, 118 Fed. 612; see authorities above; Mutual Ben. L. Ins. Co. V. Robison, 22 L.R.A. 325, 7 C. C. A. 444, 19 U. S. App. 266, 58 Fed. 732; Texas & P. E. Co. v. Eeagan, 55 C. C. A. 427, 118 Fed. 817 ; Whitford v. Clark County, 119 U. S. 522, 30 L. ed. 500, 7 Sup. Ct. Eep. 306), unless the witness was aged and infirm, or the ground for taking came under the other conditions of sec. 863, United States Revised Statutes. Third. That the act of 1892 did not change this rule. Shellabarger v. Oliver, 64 Fed. 306; Seeley v. Kansas City Star Co. 71 Fed. 555; National Cash Register Co. v. Leland, 77 Fed. 242. Fourth. That even where the depositions have been taken, 572 DZPOSITIOXS ON LA^W SIDE. in a State court, of a witness who lives witliin Cine h'lndred miles of the place of trial, they cannot be read in the Federal court when the case has been removed thereto, if the suit be at law (Ibid. ; Texas k P. E. Co. v. Wilder, 35 C. C. A. 105, 92 Fed. 95S; Toledo Traction Co. v. Cameron, 69 C. C. A. i'S, 137 Fed. 59), unless the witness was dead when offered. (United States L. Ins. Co. v. Eoss, i2 C. C. A. 601, 102 Fed. 722; Toledo Traction Co. v. Cameron, supra). The words "must live a greater distance than one hundred miles"' has been construed to mean that when the deposition was taken, where the witness was at the time found sojourn- ing, or abiding for his health, was the point to which the dis- tance was calculated, in order to determine its admission (itu- tual Ben. L. Ins. Co. v. Eobison, 22 L.E.A. 325, 7 C. C. A. 444, 19 U. S. App. 266, 5S Fed. 724), and it seems courts will take judicial notice of the distance. (Ibid. 732 j. Fifth. It cannot be taken before trial, but orally in court. Importers' & T. Xat. Bank v. Lyons, 134 Fed. 511. Sixth. Though deposition taken, it cannot be read if the witness is in court, IT. S. Eev. Stat. sec. S65, U. S. Comp. Stat. 1901, p. 663 ; Whitford v. Clark County, 119 U. S. 524, 30 L. ed. 500, 7 Sup. Ct. Eep. 306 : Texas & P. E. Co. v. Wild- er, 35 C. C. A. 105, 92 Fed. 95S. But this rule not applicable to depositions taken under a dedimus. Ibid. Special Federal Statutes Controlling Evidence. I will here add without discussion reference to certain spe- cial statutes affecting the admission of record evidence in the trial of civil causes in the Federal courts. U. S. Eev. Stat. sees. SS3 to 896, U. S. Comp. Stat. 1901, pp. 669, 674, provide for the admission of copies of all docu- ments from the various departments of the government. United States v. Brelin, 92 C. C. A. SS, 166 Fed. 104. Sections S99 to 901 provide for restoring lost judgments and records of the Federal courts and their admission as evidence. Comett V. Williams (Xash v. Williams) 20 Wall. 226, 22 L. ed. 254; O'Hara v. Mobile k O. E. Co. 22 C. C. A. 512, 40 U. S. App. 471, 76 Fed. 718 : Union k Planters' Bank v. DEPOSITIONS ON LAW SIDE. 573 Memphis, 49 C. C. A. 455, 111 Fed. 561 ; Embry v. Palmer, 107 U. S. 3, 27 L. ed. 346, 2 Sup. Ct. Eep. 25. Section 905 provides for the admission in evidence of acts of the State legislation, also the records and judicial proceed- ings of the courts of States and Territories, and how they are to be authenticated or proved. Israel v. Israel, 130 Fed. 237 ; Bohlander v. Heikes, 94 C. C. A. 298, 168 Fed. 886; National Acci. Soc. V. Spiro, 37 C. C. A. 388, 94 Fed. 750. Section 906 provides for the admission of all records, and exemplification of books, which may be kept in any public ofiice of any State or Territory not appertaining to a court. Williams v. United States, 137 U. S. 113, 34 L. ed. 590, 11 Sup. Ct. Eep. 43. Section 907 provides for the admission of copies of foreign records relating to land titles in the United States. Section 908 provides that the publication of the laws and treaties of the United States by Little, Brown & Co. shall be competent evidence of the public and private acts of Congress and of the treaties therein contained, in all courts of law and equity of the United States and the several States without further proof. Who May Use the Deposition. One may use any part of a deposition taken by the other side. H. Scherer & Co. v. Everest, 94 C. C. A. 346, 168 Fed. 827, and cases cited. Cost Allowed in Taking and Reading. See equity rule 25 ; U. S. Kev. Stat. sec. 824, U. S. Comp. Stat. 1901, p. 632; Matheson v. Hanna-Schoelkopf Co. 128 Fed. 163; L. E. Waterman Co. v. Lockwood, 128 Fed. 174; United States use of Hudson River Stone Supply Co. v. Venable Const. Co. 158 Fed. 833; Kissinger-Iron Co. v. Brad- ford Belting Co. 59 C. C. A. 221, 123 Fed. 91; Missouri v. Illinois, 202 U. S. 598, 50 L. ed. 1160, 26 Sup. Ct. Rep. 713; Ingham' v. Pierce, 37 Fed. 647 ; Broyles v. Buck, 37 Fed. 137. CHAPTEE XCn. DISMISSAL BY THE COTTET. Having brought the cause up to the point of fiaal hearing, I will again call your attention to the fact that it is the duty of the court to guard against imposition upon its jurisdiction, and to dismiss the cause whenever it appears from the record that its jurisdiction has been imposed upon. Section 5 of the act of 1875, 18 Stat at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508, provides that at any time after filing a suit in the United States court, it should appear that such suit does not svbstantially involve a suit or controversy properly within the jurisdiction of the court, or that parties have been collusively or improperly joined in order to make a case cognizable in the Federal court, the court shall proceed no further, but shall dismiss the case. Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U. S. 2S7, 46 L. ed. 913, 22 Sup. Ct. Eep. 6S1; Penn- sylvania Co. V. Bay, 138 Eed. 205 and cases cited. Kreider V. Cole, 79 C. C. A. 339, 149 Fed. 647. It is seen by this act that it is a duty devolving upon the court without reference to the action of counsel, to dismiss the case if it comes within the condemnation of the act, and does not substantially involve a controversy properly within the jurisdiction of the court, and this duty is mandatory, when the conditions authorizing a dismissal are apparent, or developed by the facts in the trial of the case. Grand Trunk R. Co. v. fwdtchell, 8 C. C. A. 237, 21 II. S. App. 45, 59 Fed. 727; Farmington v. Pillsbury, 114 U. S. 144, 29 L. ed. 116, 5 Sup. Ct. Rep. 807; Briggs v. Traders' Co. 145 Fed. 254; Koike v. Atchison, T. & S. F. R. Co. 157 Fed. 623; Baxter, S. & S. Const. Co. V. Hammond ilfg. Co. 154 Fed. 992; Minnesota V. Xorthem Securities Co. 194 U. S. 65, 66, 4S L. ed. S7S, S79, 24 Sup. Ct. Rep. 598; Steigleder v. McQuesten, 198 U. S. 141, 49 L. ed. 986, 25 Sup. Ct. Rep. 616; Wetmore v. 574 DISMISSAL BY THE COUKT. 575 Evmer, 169 U. S. 120, 42 L. ed. 684, 18 Sup. Ct. Rep. 293; see Howe v. Howe & O. Ball Bearing Co. 154 Fed. 822, and cases cited. The provision is a salutary one (Williams v. JSTot- tawa, 104 TJ. S. 212, 26 L. ed. 720), and evidently intended to confine the Federal courts within the limits of the jurisdic- tion as enlarged by the jurisdictional and removal act of 1875. Simon v. House, 46 Fed. 319 ; Hartog v. Memory, 116 U. S. 5SS, 29 L. ed. 725, 6 Sup. Ct Eep. 621. Under section 5 of the act of 1875, IS Stat, at L. 470, chap. 137, IT. S. Comp. Stat. 1901, p. 508, the court will, of its own motion, dismiss a case where the jurisdictional ground is not apparent in the bill. Carlsbad v. Tibbetts, 51 Fed. 852 ; Tins- ley V. Hoot, 3 C. C. A. 612, 2 TJ. S. App. 548, 53 Fed. 682 ; King Bridge Co. v. Otoe County, 120 U. S. 226, 30 L. ed. 624, 7 Sup. Ct. Eep. 552 ; Metcalf v. Watertown, 128 U. S. 5S7, 32 L. ed. 543, 9 Sup. Ct. Eep. 173; Hartog v. Memory, 116 r. S. 591, 29 L. ed. 726, 6 Sup. Ct. Eep. 521; Morris V. Gilmer, 129 U. S. 327, 32 L. ed. 694, 9 Sup. Ct. Eep. 289; Kreider v. Cole, 79 C. C. A. 339, 149 Fed. 647; Anderson V. Bassman, 140 Fed. 12, 13. (See chapter 35.) But I wish briefly, but more particularly, to discuss the dismissal of the suit by the court when the evidence taken in the case develops the absence of jurisdiction. Prior to 1875, as has been before stated, when the jurisdic- tional fact was properly alleged, though untrue, it could only be attacked by plea, and a plea to the merits waived it. Jones v. League, 18 How. 81, 15 L. ed. 264; Hartog v. Mem- ory, 116 U. S. 590, 591, 29 L. ed. 726, 6 Sup. Ct. Eep. 521. But since the statute, a plea is not absolutely necessary to dis- miss if during the progress of the cause, or at the final hear- ing, the want of jurisdiction is made apparent; the court is required to dismiss without any suggestion of counsel. But the question arises, how and to what extent it must be made apparent that there is a want of jurisdiction, in order to invoke the action of the court, when there is no plea, or the issue not raised. The rule seems to be that the facts upon which the court will act must amount to a legal certainty; that a mere impression, though it may amount to a moral certainty that the jurisdiction has been imposed upon, will not be suf- ficient to require the court to dismiss the case under the act. 576 DISMISSAL BY THE COUET. and it is held that this is the true interpretation of the words of the fifth section, "that it should appear to the satisfaction of the court." Ibid. ; Barry v. Edmunds, 116 U. S. 559. 29 L. ed. 732, 6 Sup. Ct. Eep. 501 ; Gubbins v. Laughtenschlager, 75 Fed. 621; Howe v. Howe & O. Ball Bearing Co. 83 C. C. A. 536, 154 Fed. 820; Holden v. Utah & M. Machinery Co. 82 Fed. 210; Hayward v. Xordeberg Mfg. Co. 29 C. C. A. 438, 54 U. S. App. 639, 85 Fed. 6-10; Deputron v. Young, 134 U. S. 252, 33 L. ed. 929, 10 Sup. Ct. Eep. 539. It may be made apparent by affidavit ; no distinct method stated. Mor- ris V. Gilmer, 129 U. S. 327, 32 L. ed. 694, 9 Snp. Ct. Eep. 289 ; Anderson v. Bassman, 140 Fed. 13. Then it may be said that the provisions of section 5 do not avoid, ualess there appears from the evidence a legal certainty that the jurisdiction has been imposed upon. But this would not be the rule, if you pleaded to the jurisdiction; only the preponderance of proof, or the reasonable certainty, would be sufficient to support a dismissal of the cause under a plea. Ibid. ; in Hartog v. Memory, 116 U. S. 588, 29 L. ed. 725, 6 Sup. Ct. Eep. 521, it is said that to attack the jurisdiction by evidence, you must plead it (Marine & Eiver Phosphate Min. & Mfg. Co. v. Bradley, 105 U. S. 181, 26 L. ed. 1036, and Deputron v. Young, 134 U. S. 241, 33 L. ed. 923. 10 Sup. Ct. Eep. 539). It is said, if the jurisdictional allegation is not traversed, no question involving the capacity of the party to sue can be made. Kennedy v. Solar Eef. Co. 69 Fed. 717 ; see Hewitt v. Story, 39 Fed. 160, 161. In the light of the fifth section of the act of 1875, these cases must mean that if you do not plead to the jurisdiction, you cannot offer any direct evidence showing a want of jurisdiction, and that the proof to create the legal certainty upon which the court can act must clearly appear from the evidence legitimately drawn out on the other material issues in the case. Ibid. To illustrate, we will assume that the ease rests upon di- versity of citizenship for jurisdiction, which is properly, but not truly, alleged; no plea is interposed, but perhaps the ques- tion may be directly asked as to the citizenship of a party; there being no issue, the answer could not be used upon which to base the dismissal, but should the same fact be developed DISMISSAL BY T E COUET. 577 in the answers to questions on material issues in the case, then it would be sufficient to sustain a dismissal of the cause. Parties. The court may dismiss of its own motion when it appears that an indispensable party has not been joined, and when the joinder would defeat jurisdiction. Pourth Nat. Bank v. New Orleans & C. E. Co. 11 Wall. 631, 20 L. ed. 83; Taylor v. Hohnes, 14 Fed. 515; Shields v. Barrow, 17 How. 139, 15 L. ed. 160. Or where indispensable parties cannot be served. Jones V. Gould, 80 C. C. A. 1, 149 Fed. 159, and cases cited. Or the court may dismiss at the hearing for want of parties, where the objection has been made at the beginning of the suit, and the plaintiff has failed to set it down for hearing on the objection, and it appeared at the trial the objection was well taken. Equity rule 52 ; Olds Wagon Works v. Benedict, 14 C. C. A. 285, 32 U. S. App. 116, 67 Fed. 5; See Mansfield, C. & L. M. K. Co. V. Swan, 111 U. S. 382-384, 28 L. ed. 463, 464, 4 Sup. Ct. Eep. 510. So the court will dismiss a bill when it appears that pend- ing the suit the plaintiff has parted with his title, and no bill in the nature of a supplemental bill has been filed. Campbell V. New York, 35 Fed. 14; Hazleton Tripod-Boiler Co. v. Citi- zens' Street E. Co. 72 Fed. 325 ; Brown v. Fletcher, 140 Fed. 639; Miller v. Wattier, 165 Fed. 362. But the dismissal should be without prejudice (Kendig v. Dean, 97 U. S. 423, 24 L. ed. 1061), because a general dismissal would create the presumption that it was on the merits. Baker v. Cummings, 181 U. S. 125, 45 L. ed. 780, 21 Sup. Ct. Eep. 578 ; Greene V. United Shoe Machinery Co. 60 C. C. A. 93, 124 Fed. 964; see National Foundry & Pipe Works v. Oconto Water Supply Co. 183 U. S. 234, 46 L. ed. 169, 22 Sup. Ct Eep. 111. Want of Equity. If on the trial the case shows that there is no equity in the bill, and the jurisdiction of the court was not sought in good faith, the court will of its own motion dismiss the bill (Fou- geres'v. Jones, 66 Fed. 316; Mitchell v. Dowell, 13 Fed. 141, S. Eq.— 37. 578 DISMISSAL BY THE COtTET. s. c. 105 U. S. 4:52, 26 L. ed. 1143 ; Cherokee Xation v. South- em Kansas E. Co. 33 Fed. 915; Alger v. Anderson, 92 Fed. 710 ; Thompson v. Central Ohio R Co. 6 WaU. 137, 18 L. ed. 767; Kramer v. Cohn, 119 U. S. 357, 30 L. ed. 440, 7 Sup. Ct. Eep. 277; see "Adequate Remedy at Law"), but without prejudice to a suit at law. (Sanders v. Devereux, 8 C. C. A- 629, 19 U. S. App. 630, 60 Fed. 311). So where no real dis- pute remains, the court may dismiss. Allen v. Georgia, 166 U. S. 140, 41 L. ed. 949, 17 Sup. Ct. Eep. 52,'. ; Lewis Pub. Co. V. Wyman, 182 Fed. 14; see Eobinson v. American Car & Foundiy Co. 132 Fed. 166. When Collusively Obtained. The fifth section of the act of 1875 says the court must guard itself against fraudulent collusion to obtain jurisdiction. This means combination of any kind by which jurisdiction is obtained fraudulently (Coffin v. Haggin, 7 Sawy. 509, 11 Fed. 224) ; and when the evidence discloses the fact (Lehigh Min. & Mfg. Co. V. Kelly, 160 U. S. 342, 40 L. ed. 450, 16 Sup. Ct. Eep. 307 ; Cilley v. Patten, 62 Fed. 500 ; Hayden v. Plan- ning, 106 U. S. 588, 27 L. ed. 306, 1 Sup. Ct. Eep. 617 ; Mar- vin V. EUis, 9 Fed. 367) ; or where the ground for jurisdiction sought is frivolous or fictitious (Douglas v. "Wallace, 161 U. S. 348, 40 L. ed. 728, 16 Sup. Ct. Eep. 485; Hamblin v. Western Land Co. 147 U. S. 532, 37 L. ed. 268, 13 Sup. Ct Eep. 353 ; Wilson v. Xorth Carolina, 169 U. S. 595, 42 L. ed. 871, 18 Sup. Ct. Eep. 435; see Ee Metropolitan E. Eeceiver- ship [Ee Eeisenberg] 208 U. S. 91, 52 L. ed. 403, 28 Sup. Ct Eep. 219, and Chicago v. MiUs, 204 U. S. 321, 51 L. ed. 504, 27 Sup. Ct Eep. 286; Pennsylvania Steel Co. v. Xew York City E. Co. 157 Fed. 441). Thus, collusive assignments will be ground for dismissal (Farmington v. Pillsbury, 114 U. S. 144-146, 29 L. ed. 116, 117, 5 Sup. Ct. Eep. 807; Kreider v. Cole, 79 C. C. A. 339, 149 Fed. 656 ; McLean v. Clark, 31 Fed. 501, 502 ; Xorton v. European & X. A. E. Co. 32 Fed. 865; Detroit v. Dean, 106 U. S. 541, 27 L. ed. 302, 1 Sup. Ct Eep. 500; Turnbull v. Eoss, 72 C. C. A. 609, 141 Fed. 649-652 and cases cited. Slaughter v. :Mallet Land & DISMISSAL BY THE COUKT. 579 Cattle C). 72 C. C. A. 430, 141 Fed. 282 ; Lake County v. Dudley, 173 U. S. 253, 43 L. ed. 688, 19 Sup. Ct. Eep. 398, and eases cited. Greenwalt v. Tucker, 10 Fed. 884; Cof- fin V. Haggin, 7 Sawy. 509, 11 Fed. 219 ; Fountain v. Angelica, 12 Fed. S) ; or fraudulent making of parties; or when the case is dishonestly brought to force a compromise which develops in the evidence (Ibid.) it is the duty of the court to exercise the power (Simon v. House, 46 Fed. 319; Williams v. ISTottawa, 104 U. S. 212, 213, 26 L. ed. 720, 721; Hartog v. Memory, 116 U. S. 590, 29 L. ed. 726, 6 Sup. Ct. Eep. 521); and if the court should suspect the conditions as stated above to exist, it should institute proceedings of its o\vn motion to discover it (Hartog V. Memory, 116 U. S. 591, 29 L. ed. 726, 6 Sup. Ct. Eep. 521 ; Morris v. Gilmer, 129 U. S. 327, 32 L. ed. 694, 9 Sup. Ct. Eep. 289) ; but collusive arrangements will not be inferred. (Ashley v. Presque Isle County, 8 C. C. A. 455, 16 U. S. App. 656, 709, 60 Fed. 55, 56; Mills v. Chicago, 143 Fed. 431, 432). Effect of Dismissal. A dismissal of a case ordinarily stands on the same footing as a judgment at law, and will be presumed to be final and conclu- sive unless the contrary appears in the proceedings or decree of the court. Graves v. Faurot, 64 Fed. 242 ; Stewart v. Ashtabula, 98 Fed. 518. 519 ; Durant v. Essex Co. 7 "Wall. 109, 19 L. ed. 156 ; Kilham v. Wilson, 50 C. C. A. 454, 112 Fed. 573 ; Fowl- er V. Osgood, 4 L.E.A.(KS.) 824, 72 C. C. A. 276, 141 Fed. 24. So in all these cases when the objection does not go to the merits of the case the judgment of dismissal should always be "without prejudice." Baker v. Cummings, 181 TJ. S. 125, 45 L. ed. 780, 21 Sup. Ct. Eep. 578; American Surety Co. v. Choctaw Constr. Co. 68 C. C. A. 199, 135 Fed. 487 ; Greene V United Shoe Machinery Co. 60 C. C. A. 93, 124 Fed. 964; Sanders v. Devereux, 8 C. C. A 629, 19 U. S. App. 630, 60 Fed. 311 : Swan Land & Cattle Co. v. Frank, 148 H. S. 612, 37 L ed 580, 13 Sup. Ct. Eep. 691; Security Sav. & L. Asso. V. Buchanan, 14 C. C. A. 97, 31 U. S. App. 244, 66 Fed. 803; Elkhart Nat. Bank v. Northwestern Guaranty Loan Co. 30 580 DISillSSAI. BT THE COCET. C. C. A. 632, 5S U. S. App. 33, 57 Fe' CHAXCliET. See EdgeU v. Felder, 39 C. C. A. 540, 99 Fed. 325, for order appointing a Special Master. There can be no reference on the law side. Gunn v. Brink- ley Car Works & Mfg. Co. 13 C. C. A. 529, 27 U. S. App. 779, 66 Fed. 383; Cleveland v. United States, 62 C. C. A. 393, 127 Fed. 670; McMullen Lumber Co. v. Strothev, 09 C. C. A. 433, 136 Fed. 296. See Dartmouth College v. Inter- national Paper Co. 132 Fed. S9. May appoint an auditor. Fenno v. Primrose, 56 C. C. A. 313, 119 Fed. SOI. It must show without the least ambiguity what is referred to the master, and should determine clearly the scope of au- thority, and beyond this, parties cannot consent to have him pass on any matter not in the line of the order of reference. Taylor v. Eobertson, 27 Fed. 537. If the matter is by con- sent, and submits the whole case to the decision of the master, then you may use the following form of order : This cause coming on to be heard upon the application of both parties to refer the issues both of law and fact to a master for his investigation and decision, and it appearing to the court that said cause is at issue and both parties are present, consenting to the reference (or a written consent of reference is on file in the cause), it is therefore ordered, adjudged and decreed that said cause, with its pleadings, evidence and exhibits, be referred to to hear and determine the issues of law and fact arising in this cause; and it is further ordered, adjudged and decreed that shall report his conclusions of law and fact and his judgment thereon (if desired you may add "together with the evidence upon which he founds his conclusions") to this court by the day of , A. D. 19 ... , and the same shall be filed to wait the further action of this court. Judge, etc. If either party desires to make a motion for reference, the following form may be used : Title as in bill. And now comes A. B., plaintiff in the above cause, and moves the court that the issues in this cause setting up conflicting accounts as between E. F. and C. D. (or so much of the bill as sets up a claim for damages or whatever else it may be desired to refer) be referred to Richard Roe, Esq., the standing master of this Honorable Court (or to appoint a special master, etc.), who shall be required to inquire into and investigate the same and that he report to this court by the day of , A. MASTERS IN CHANCEUY. 587 D. 19 . . , what, if anything, be due by reason of the claim, etc., and that said report be filed subject to the further order of this court. R. F., Solicitor. Give notice of the motion and of time and place to be heard, and if granted enter the order according to the form previous- ly given, except you begin thus : This cause coining on to be heard upon the motion of A. B., plaintiff, to refer, etc., and both parties being present by counsel, etc. A master in chancery, being an officer of the court, should be, when the appointment of a special master is asked, made without suggestion of counsel, and therefore the application for a special master should not name any particular person for appointment. Any arrangement or agreement to appoint a spe- cial master and fix his compensation in advance is improper, especially when the master to be appointed is a party to the understanding. Finance Committee v. Warren, 27 C. C. A. 472, 53 U. S. App. 472, 82 Fed. 525. Let the court select the master and fix the compensation without suggestion, un- less the court invites it. Action to Be Taken After Reference Made. When the motion is granted, and the order thereon entered, the mover must, on or before the next rule day after the order is granted, or such other time as the court may direct, bring the matter before the master. Equity rule 74. If the court re- fers, or the reference be by consent, then the party on whom the burden rests to prove the issue must see that the reference is made as ordered. Upon failure to do so by the next rule day after the order of reference is entered, or as the court may direct, then the opposite party may have the reference made at the cost of the other. Equity rule 74. In either event, the matter is brought before the master by delivering to him a certified copy of the order of reference, and the clerk shall deliver to him the pleadings, evidence, if any, and proceed- ings in the cause. oS8 ilASTEES I2s^ CHA?rCZET. Buty of Master on Receiving Order of Reference. As soon as the master can, after receiving the order of refer- ence (equity rule 75), he should assign a time and place for the hearing, and give notice to the parties, or their counsel, as to the particular hour and place he will hegin to take testi- mony, or hear the cause, or whatever may be required by the order of reference. The notice shall require their attendance, and if they do not appear, he can proceed ^vith the investiga- tion, or if this cannot be done, he may adjourn the examina- tion to a future day, giving notice to the absent party or par- ties of such adjournment. The master must so speed the cause as to have his report filed with the clerk within the time limited by the order, ixnless upon his application, or the application of one of the parties to the court, the time has been extended. Equity rule 75. Authority of the Master. The master is authorized to regulate the proceedings before him. (Hoe v. Scott, 87 Ted. 220; equity rule 77). He has full authority and power to swear and examine witnesses, or have them examined in his presence touching all matters re- ferred to him. He may require all books, vouchers, and papers of every character relevant to the issues produced before him. He may order the examination by interrogatories, under a com- mission to be issued by the clerk of the court, under his certifi- cate, or in any other manner authorized by the acts of Con- gress, or rules of equity, and he may do what is necessary to reach the truth and justice of the particular matter referred to him. Equity rule 77 ; Goss Printing Press Co. v. Scott, 119 Fed. 941. By equity rule 81 he has authority to examine any creditor or other person filing a claim, either viva voce or upon interrogatories, or in both modes, as the nature of the case may demand. Terry v. Bank of Cape Fear, 20 Eed. 781, 782. Beyond Territorial Jurisdiction. The master can take testimony outside of the territorial juiv MASTERS IN CHANCERY. 689 isdietion of the court appointing him, and also in foreign coun- tries (Consolidated Fastener Co. v. Columbus Button & Fas- tener Co. 85 Fed. 5i; GuK & B. Valley R Co. v. Winder, 26 Tex. Civ. App. 263, 63 S. W. 1046), either in person or under a commission, as before stated; but, while he may thus take testimony by examinations viva voce, he must pursue the method of least cost to litigants. Equity rule 67 ; Ibid. ; Bate Eefrigerating Co. v. Gillette, 28 Fed. 673; Encyclopaedia Britannia Co. v. Werner Co. 138 Fed. 462 ; Western Div. of Western X. C. E. Co. v. Drew, 3 Woods, 691, Fed. Cas. ISTo. 17,434. . Procedure Before the Master. The hearing is conducted in the order of trials in court. The evidence shall be taken down by the master, or by some other person by his order and in his presence, who has been duly sworn by the master for the particular service. Talcing Evidence. Unless the master is acting as examiner only, the admission and rejection of evidence rests in his sound discretion (Woos- ter V. Gumbimner, 20 Fed. 167; equity rule 77) ; but the ob- jections to any proceeding had, or to any evidence admitted or rejected, must be duly noted by the master (Kansas Loan & T. Co. V. Electric E. Light & P. Co. 108 Fed. 704 ; Chadeloid Chemical Co. v. Chicago Wood Finishing Co. 173 Fed. 797; Blease v. Garlington, 92 U. S. 1, 23 L. ed. 521), with the grounds of objection, if it is desired to take advantage of the ruling by exceptions to the master's report, as will be here- inafter explained. In taking testimony the court will not en- tertain a motion to instruct or control the master in the ad- mission of testimony during the investigation, or before the report is made. Lull v. Clark, 22 Blatchf. 207, 20 Fed. 454; Bate Eefrigerating Co. v. Gillette, 28 Fed. 673; DeEoux v. Girard, 90 Fed. 537; Hoe v. Scott, 87 Fed. 220. By equity rule 80 all affidavits, depositions, and documents which have been previously filed, read, or used in the cause may be used before him. By equity rule 79, in matters of ac- 590 MASTEES IX CHAKCEEY. counting, creditors nrast bring in their respective accounts in the form of debits and credits, and anyone interested may ex- amine the accounting party viva voce in reference to the same, or upon interrogatories, as the master may direct. Pulliam v. Pulliam, 10 Fed. 24-31. The master has great discretion in adjourning for the convenience of parties and witnesses, but he may refuse to adjourn to obtain additional evidence after ample time has been given and long delays occasioned. Third Xat Bank v. Xational Bant, 30 C. C. A. 436, 5S U. S. App. 148, S6 Fed. S52. Report of the Master. As soon as the evidence is concluded, the Master should pre- pare his report in direct response to the order of reference, whether the reference is to report back the evidence, or the master's conclusions of fact. Equity rule 76 provides that the master shall recite in his report no part of any state of facts, charge, affidavit, deposition, examination, or answer brought ia or used before him, but they should be identified, speci- fied, and referred to, so as to inform the court as to the basis of his report, and if there is substantial evidence to sus- tain his findings or statement of the facts. Huttig Sash & Door Co. V. Fuelle, 143 Fed. 367. In Weiss v. Haight k F. Co. 14S Fed. 399 it is said that it is not necessary for the master to report all the evidence taken, unless required by the order of reference. In Dartmouth College v. International Paper Co. 132 Fed. 91 (law case), a motion was made to re- quire the master to send up the testimony taken and deposi- tions, and the court held that while it was in its discretion to do so, yet it would not be ordinarily exercised after the report has been filed. In this case the reference was to ascertain the amount of damages to be recovered. When referred to hear and determine all issues, it is not necessary to report his finding on all issues; a report of the result is sufficient. Hecker v. Fowler, 2 Wall. 132, 17 L. ed. 761. As soon as the report is prepared the master is required by equity rule 83 to return the same to the clerk's office which return shall be entered in the clerk's order book. Xational MASTERS IN CHANCERY. 591 Folding Box & Paper Co. v. Dayton Paper Novelty Co. 91 Fed. 822. The parties hare no vested right in it, as the re- port is only advisory, and it may, in the discretion of the court, be permitted to withdraw it for amendment or rereference. Ibid. 824. Bliss v. Anaconda Copper Min. Co. 167 Fed. 342- 347. Of course the report must be returned within the time required by the order, unless, upon application and for cause shown, further time has been allowed. Exceptions to the Report. Time of Filing. — By equity rule 83 the parties have one month from the filing of the report within which to except, and if no exceptions are filed, the report stands confirmed on the next rule day after the time for exceptions has expired. The one month given to file exceptions means a calendar month, not a lunar month. To illustrate : If the report is filed on the first of a month, a confirmation before the second day of the following month would be premature. Fidelity Ins. & S. D. Co. V. Shenandoah Iron Co. 42 Fed. 374, 375; Gasquet v. Crescent City Brewing Co. 49 Fed. 493 ; Pewabic Min. Co. v. Mason, 145 \j. S. 363, 36 L. ed. 738, 12 Sup. Ct. Eep. 873; Central Trust Co. v. Sheffield & B. Coal, Iron & R. Co. 60 Fed. 15. Judgment cannot be entered unless parties have had an op- portunity to except. Elkin v. Denver Engineering Works Co. 181 Fed. 086, and cases cited. The court will not hear exceptions filed after the time, unless the failure to file was occasioned by fraud, accident, or mistake. Gasquet v. Crescent City Brewing Co. 49 Fed. 494 ; Ex parte Jordan, 94 U. S. 252, 24 L. ed. 125. (See chapter 95.) When to Be Heard. When exceptions are filed, they stand for hearing before the court if in session, if not, then at the next sitting of the court, which shall be hereafter by adjournment or otherwise. Form of Exceptions. Title as in bill. And now comes A. D., plaintiff (or defendant), and excepts to the re- 592 iiASTEKS nr cha^^ceet. port of , Eaq., the standing (or special) master, filed in this cause on the day of , A. D. 19. . ., and for cause of exception shows t First. That the master has in said report stated and certified that, etc. (state it), whereas the master ought to have found that, etc. Second- That the master, in the trial of the cause, premitted, over exceptions taken at the time as shown by the record, one E. F. to testify that, etc., when in fact the evidence was not admissible because (state objections). Third. That the master refused to allow H. S. to testify on objection of (plaintiff or defendant), who, if he had been permitted to testify, would have sworn, etc., all of which was duly excepted to at tlie time as appears of record. And so on, statijig each ground of exception. R. F., Solicitor, etc CHAPTER XCV. EXCEPTIONS TO BE SPECIFIO. Exceptions are special demurrers to the report (General Fire Extinguisher Co. v. Lamar, 72 C. C. A. 501, 141 Eed. 353—355, and cases cited), and must point out, article by arti- cle, the matter objected to and cause of objection. They should be precise and raise well-defined issues. Ibid. ; Sheffield & B. Coal, Iron & R. Co. v. Gordon, 151 U". S. 290, 38 L. ed. 165, 14 Sup. Ct. Rep. 343 ; Eordyce v. Omaha, K C. & E. R. Co. 145 Fed. 544-557 ; Columbus, S. & H. R. Co.'s Appeal, 4S C. C. A. 275, 109 Fed. 219. Vagueness and generality are good grounds for overruling them. Ibid. ; Re Covington, 110 Fed. 143 ; Xeal v. Briggs, 110 Fed. 477. As before stated, cases are referred to a master to economize time, and if general exceptions are permitted, the court would have to review the whole case, and the effect of the reference thus be lost Neal v. Briggs, 110 Fed. 478 ; Sheffield & B. Coal, Iron & R. Co. v. Gordon, 151 U. S. 286, 38 L. ed. 164, 14 Sup. Ct. Rep. 343 ; Jones v. Lamar, 39 Fed. 585 ; Chand- ler V. Pomeroy, 87 Fed. 267; Medsker v. Bonebrake, 108 U. S. 71, 72, 27 L. ed. 655, 656, 2 Sup. Ct. Rep. 351. Equity rule 84, to prevent frivolous exceptions for mere delay, pro- vides for a party excepting to pay the costs when exceptions overruled, and vice versa. Again, when exceptions are based on irrelevancy and in- competency, or objections to evidence or witness, they must show that the objections were taken before the master and preserved in the record, as well as the specific grounds of the objection. Equity rule 77; Fischer v. jS^eil, 6 Fed. 90; Lull V. Clark, 22 Blatchf. 207, 20 Fed. 454; Hamilton v. South- ern Nevada Gold & S. Min. Co. 13 Sawy. 113, 33 Fed. 567, 568, 15 Mor. Min. Rep. 314; Bliss v. Anaconda Copper Min. Co. 156 Fed. 311, reviewing cases. Evanston v. Gunn, 99 U. S. 665. 25 L. ed. 307 j Burton v. Driggs, 20 WaU. 133, 22 593 S. Eq.— 38. oi)4: WITHDRAWAL OF EXCEPTIONS. L. ed. 301; Wooster v. Gumbirnner, 20 Fed. 167; Celluloid 'Mig. Co. V. CeHonite Mfg. Co. 40 Fed. 476 ; Gav Mfg. Co. v. Camp, 15 C. C. A. 226, 25 U. S. App. 376, 'oS Fed. 67; See Gray v. Kew York Xat. Bldg. & L. Asso. 125 Fed. 512. Exceptions must be supported by the statement of the master, or by the evidence, to which attention must be called ( Jaffrey v. Brown, 29 Fed. 477; Cutting v. Florida E. & Xav. Co. 43 Fed. 743; Farrar v. Bernheim, 20 C. C. A. 496, 41 U. S. App. 172, 74 Fed. 43S; s. c. 21 C. C. A. 264, 75 Fed. 136; Sheffield & B. Coal, Iron & E. Co. v. Gordon, 151 U. S. 2S5- 293, 3S L. ed. 164-166, 14 Sup. Ct. Eep. 343; McCourt v. Singers-Bigger, 145 Fed. 112) ; and the particular error, or erroneous principle upon which the master acted must be point- ed out. Gaines v. New Orleans, 1 Woods, 104, Fed. Cas. Xo. 5,177; Mason v. Crosby, 3 Woodb. & M. 25S, Fed. Cas. Xo. 9,236. A new defense cannot be set up by exceptions. If, however, the master fails to report all evidence upon the mat- ter to which a proper exception has been taken, the party should apply to the court for a further report. Story v. Liv- ingston, 13 Pet. 367, 10 L. ed. 204. Effect of Withdrawal of Exceptions. The withdrawal of exceptions in the order book leaves the report confirmed (equity rule S3) ; for, in the absence of excep- tions, there can be no inquiry into the correctness of the facts found; only misapprehension of the legal consequences are open for correction. St. Louis Union Trust Co. v. Texas Southern E. Co. — Tex. Civ. App. — , 126 S. W. SOS; Burke V. Davis, 26 C. C. A. 675, 53 U. S. App. 414, 81 Fed. 907; Ee Carver, 113 Fed. 138 ; Gasquet v. Crescent City Brewing Co. 49 Fed. 493 ; Green v. Bogue, 158 U. S. 504.' 39 L. ed. 1070, 15 Sup. Ct. Eep. 975: Hamm v. J. Stone & Sons Live Stock Co. 18 Tex. Civ. App. 241, 45 S. W. 330. As to waiver of, see Waterman v. Banks, 144 U. S. 407, 36 L. ed. 484, 12 Sup. Ct. Eep. 646. Waiving Exceptions Not Tahen Before Master. The question arises, what exceptions are waived if not taken before the master before filing his report. ^Ye have seen that WAIVING EXCEPTIONS. 595 equity rule 83 gives one montli within -which to file exceptions to the master's report; but can under this rule any character of exception be filed that was not taken during the trial before the master? In Story v. Livingston, 13 Pet. 366, 10 L. ed. 203, the court held that all exceptions should be taken before the master in order to save time and give him an opportunity to correct his errors and reconsider his opinion, and a failure to do so prevents a party from excepting after the report is filed, unless the court should refer it back to take exceptions. This decision was made in 1839, when the Federal courts adhered to the English practice in this respect. Gaines v. New Orleans, 1 Woods, 104, Fed. Gas. Ho. 5,177 ; American Nich- olson Pav. Co. v. Elizabeth, 1 Bann. & Ard. 439, Fed. Gas. Xo. 309; Gass v. Stinson, 2 Sumn. 605, Fed. Gas. No. 5,261. The practice of England required the master to make a draft of his report and notify counsel, so as to give an opportunity to point out errors. 2 Dan. Gh. Pr. 1314. This procedure was called settling the master's report, but there is no such practice now, because equity rule 83, promulgated in 1842, provides what the master must do with reference to his report, which is to file it as soon as it is prepared, and the parties have one month to except to it from the date of filing. This is a cheaper and more expeditious mode than the old practice of settling the report, and is evidently intended by the Supreme Court as a substitute for it. Rules 77—83 ; Hatch v. Indian- apolis & S. E. Co. 11 Biss. 138, 9 Fed. 856; Fidelity Ins. & S. D. Co. V. Shenandoah Iron Co. 42 Fed. 374, 375. In Hatch v. Indianapolis & S. E. Co. supra, the court dis- tinctly recognizes that there is no such practice as settling the report before filing, and that a party has thirty days to file such exceptions as he may deem necessary. Jennings v. Do- lan, 29 Fed. 861. In Celluloid Mfg. Co. v. Cellonite Mfg. Co. 40 Fed. 476, the master had drafted his report after the English method, and the court would not hear exceptions not taken before the master; overruling Hatch v. Indianapolis & S. E. Co. 9 Fed. 856, and Jennings v. Dolan, 29 Fed. 861, above cited. Mc- Namara v. Home Land & Cattle Co. 105 Fed. 202; Gray v. New York Nat. Bldg. & L. Asso. 125 Fed. 512; Gay Mfg. Co. V. Camp, 13 C. G. A. 137, 25 IT. S. App. 134, 65 Fed. 798. 596 WAIVING EXCEPTIO^"S. In Fidelity Ins. & S. D. Co. v. Shenandoah Iron Co. 42 Fed. 374, the court held that exceptions to the master's report could be taken within thirty days after filing the report, wheth- er taken before the master or not, and the practice followed in 13 Pet. had been abrogated. In Gay Mfg. Co. v. Camp, 13 C. C. A. 137, 25 U. S. App. 134, 65 Fed. 79S, the court followed 13 Pet., reaffirmed the old rule, and refused to hear exceptions not taken before the master. See also Topliff v. Topliff, 145 U. S. 173, 36 L. ed. 665, 12 Sup. Ct. Eep. S25. In Gay Mfg. Co. v. Camp, 15 C. C. A. 226, 25 U. S. App. 376, 6S Fed. 68, the court followed 65 Fed. 79S, but stated that the rule should only extend to issues of fact, and excep- tions to conclusions of law were not necessary to be taken be- fore the master. Home Land & Cattle Co. v. McXamara, 49 C. C. A. 642, 111 Fed. 827. In Burke v. Davis, 26 C. C. A. 675, 53 U. S. App. 414, 81 Fed. 910, the exceptions had not been filed in thirty days, but it is strongly intimated that if they had been, they would have been heard, but that the master's conclusions of law could be attacked, with or without exceptions. In Kilgour v. National Bank, 97 Fed. 693, the master's conclusions of fact were set aside on exceptions filed in thirty days, and they may be set aside, though the reference be by consent. Oteri v. Sealzo, 145 U. S. 589, 36 L. ed. 828, 12 Sup. Ct Rep. 895; Sheffield & B. Coal, Iron & E. Co. v. Gordon, 151 U. S. 291. 3S L. ed. 166, 14 Sup. Ct. Eep. 343. So may exceptions be filed to conclusions of law, though not excepted to before the master. Home Land & Cattle Co. v. ilcXamara, 49 C. C. A. 642, 111 Fed. 822. In view of these cases, it seems that it is still an open ques- tion as to what is the proper practice. I will venture to state what should be the rule of practice, and my reasons therefor. The reasons for filing exceptions before the master was to give him an opportunity to correct any errors he may have com- mitted during the trial. Gay ilfg. Co. v. Camp, 15 C. C. A. 226, 25 U. S. App. 376, 68 Fed. 68. They are the same rea- sons that existed under the old practice, requiring a draft of the report on the law and fact, and requiring it to be brought to the attention of counsel, that they might then and there file such exceptions as were necessary, which were to be submitted WAIVING EXCEPTIOXS. 597 to the cliancellor if overruled. But does not equity rule 83 change to some extent the old practice, and consequently modify the reasons upon which the old rule was based? Equity rule S3 evidently was intended for some purpose other than to mere- ly repeat exceptions taken before the master, and which have been already incorporated in the record, and the thirty days given for filing is evidently intended to give an opportunity to examine the report for errors. The rule does not intimate that the exceptions to be taken within the time allowed must be only such as were previously entered of record, nor that the exceptions to the conclusions of the master must be taken be- fore filing his report, but excludes this idea by requiring the report to be filed as soon as prepared, and the exceptions to be filed after filing the report. If the equity rule 83 has any meaning, then it is intended that there are errors which may be committed by the master, and which may be excepted to, though no exception was taken before the master. I therefore suggest the proper practice to be, that in all matters pertaining to the conduct and hearing of the case before the master, and in the admission and rejec- tion of evidence (Wooster v. Gumbirnner, 20 Fed. 167), that any objections thereto must be made before the master, and exceptions reserved, if overruled, and made a part of the rec- ord, othei-wise the objections will not be heard by the court (Hamilton v. Southern ITevada Gold & S. Min. Co. 13 Sawy. 113, 33 Fed. 567, 568, 15 Mor. Mia. Eep. 314; Gorham Mfg. Co. V. Emery-Bird-Thayer Dry Goods Co. 43 C. C. A. 511, 104 Fed. 245 ; Gray v. Xew York ISTat. Bldg. & L. Asso. 125 Fed. 512), but considered waived. No objection to these matters of detail should be heard if not made at the proper time and incorporated in the record. It is fair to counsel and the mas- ter, that they should have an opportunity to correct errors of this character, but when the exceptions go to the action of the master involving the merits of the entire case, as his conclu- sions of law and fact and his judgment thereon, they are open to attack under equity rule 83, whether the master's atten- tion was called to the particular ground of error or not. Fidel- ity Ins. & S. D. Co. V. Shenandoah Iron Co. 42 Fed. 372 ; Jen- nings V. Dolan, 29 Fed. 861; Hatch v. Indianapolis & S. E. Co. 11 Biss. 13S, 9 Fed. 856. i'l'J^ WAIVIXG EXCEPTIOXS. There is no question, that if a master is correct in his con- clusions of fact, hut wrong in his conclusions of law, that the court wiU correct the law, whether the master had an opportu- nity to correct it or not. Sheffield & B. Coal, Iron k R. Co. v. Gordon, 151 U. S. 285, 38 L. ed. 164:, 1-i Sup. Ct. Eep. 343; Celluloid Mfg. Co. v. Cellonite Mfg. Co. 40 Fed. 476 ; Ship- man v. Ohio Coal ExcL 17 C. C. A. 313, 37 U. S. App. 471, 70 Fed. 654; United States Trust Co. v. Mercantile Trust Co. 31 C. C. A. 427, 59 U. S. App. 330, 88 Fed. 153; Home Land & Cattle Co. v. McXamara, 49 C. C. A. 642, 111 Fed. 827. An appellate court will correct an erroneous construction of a contract by a master, whether excepted to or not (Ibid.), and there is no reason why a court should not correct an er- roneous conclusion of fact with the whole record before it, even though no exception to the conclusion had been filed before the master. Of course, in the light of what has been said, an objection to conclusions of fact, if based on erroneous admis- sion, or exclusion of testimony not excepted to before the mas- ter, would not be considered (Gray v. Xew York Xat. Bldg. & L. Asso. 125 Fed. 512) ; but there is no reason why conclu- sions of fact, based on admitted evidence, cannot be excepted to, though no exception to the finding had been made before the master. There is one character of reference, perhaps, where an excep- tion to conclusions of fact may be considered waived if not taken before the master. This rule may be applied when the entire case iy consent of parties has been referred to a master for his judgment and decision on both law and fact, for rea- sons that will appear in discussing the "'EfFect of the Master's Eeport." McXamara v. Home Land & Cattle Co. 105 Fed. 202 ; Kimberly v. Arms, 129 IT. S. 524, 32 L. ed. 764, 9 Sup. Ct. Eep. 355; Sanders v. Eiverside, 55 C. C. A. 240, US Fed. 720. But where the cause has been referred on motion of one of the parties, or by the court on his own motion, the liti- gant yields no right, by proper exception imder equity rule S3, to have his cause finally determined by the court on the law and fact, whether excepted to before the master or not. In Bliss V. Anaconda Copper Min. Co. 156 Fed. 309, re- viewing many of the cases cited above, it is suggested that it is the duty of the master to submit to counsel a draft of his ■WAIVING EXCEPTIONS. 599 report, thereby inviting suggestions as to error, if any, in the conclusions reached; and counsel in response should make at once such objections as may appear to them to be proper, be- fore the return of the master's report; and it is within the discretion of the court to refuse to entertain any objection not made before the master. It is further suggested that counsel should agree that exceptions thus taken before the master should be considered as exceptions taken under rule 83, in or- der to avoid duplicating. Ibid. 313. This method is clearly not within the letter or spirit of the rule that contemplates exceptions to the merits to be filed at any time within thirty days. Bridges v. Sheldon, 18 Blatchf. 295, 7 Fed. 19. CHAPTEE XCVL ETPECT OF THE ItASTEn's EEPOET. The report of a master, whether special or general, is en- tirely within the power of the court to set aside, modify, or correct in any manner consistent with the justice of the case, but the power should not be exercised but for good cause shown. National Folding Box & Paper Co. v. Dayton Paper Xovelty Co. 91 Fed. 824; Jaffery v. Brown, 29 Fed. 477; Stanton v. Alabama & C. E. Co. 31 Fed. 585; Thomson v. Wooster, 114 U. S. 104-112, 29 L. ed. 105-108, 5 Sup. Ct Eep. 788. The report on the facts has been given the effect of a ver- dict of a jury upon an issue sent to them by the chancellor, which in equity is only advisory. Oil Well Co. v. Hall, 63 C. C. A. 343, 128 Fed. 878; Guarantee Gold Bond Loan & Sav. Co. V. Edwards, 90 C. C. A. 585, 164 Fed. 509, SIG ; Bliss V. Anaconda Copper Min. Co. 167 Fed. 342-347 : Flippen v. KimbaU, 87 Fed. 259; Babcock v. DeMott, 55 C. C. A. 64, 160 Fed. 882 (see section 723). However, it is said in Bos- worth V. Hook, 23 C. C. A. 404, 46 T. S. App. 598, 77 Fed. 686, that when the reference is on motion of one of the par- ties, and not by the consent of both, the master's finding has not the force of a verdict, or the report of a referee, and upon exception thereto, the court must determine by its own judg- ment the controversy presented. Kimberly v. Arms, 129 U. S. 512, 32 L. ed. 764, 9 Sup. Ct. Eep. 355 ; Babcock v. De- Mott, 88 C. C. A. 64, 160 Fed. 882 ; Knoxville v. Knoxrille Water Co. 212 TJ. S. 8, 53 L. ed. 378, 29 Sup. Ct. Eep. 148. The rule is that the findings of fact by the master have all the presumptions in their favor, and should not be set aside, unless error clearly appears, and this is especially true when submitted by consent. Cravrford v. Xeal, 144 U. S. 59 G, 36 L. ed. 557, 12 Sup. Ct Eep. 759, and cases cited; Ciruiotti 600 KFFECT OF THE MASTEe's EEPOET. 601 Unliairiiig Co. v. American Fur Eef. Co. 93 C. C. A. 546, 168 Fed. 529 ; Lake Erie & W. E. Co. v. Fremont, 34 C. C. A. 625, 92 Fed. 731; Davis v. Schwartz, 155 U. S. 636, 39 L. ed. 291, 15 Sup. Ct. Eep. 237 ; Girard Life Ins. Annuity & T. Co. v. Cooper, 162 U. S. 538, 40 L. ed. 1065, 16 Sup. Ct. Kep. 879; Huttig Sash &: Door Co. v. Fuelle, 143 Fed. 363; Cimotti Unhairing Co. v. American Fur Eef. Co. 158 Fed. 171; Mur- phy V. Southern R Co. 99 Fed. 469 ; s. c. 53 C. C. A. 477, 115 Fed. 259; Colimbus, S. & H. E. Co's. Appeal, 48 C. C. A. 275, 109 Fed. 219; Singleton v. Felton, 42 C. C. A. 57, 101 Fed. 527; Walters v. Western & A. E. Co. 69 Fed. 710; Emil Kiewert Co. v. Juneau, 24 C. C. A. 294, 47 U. S. App. 394, 7S Fed. 712; Central Trust Co. v. East Tennessee Land Co. 79 Fed. 19; Chandler v. Pomeroy, 87 Fed. 262. It is prima facie correct. Guarantee Gold Bond Loan & Sav. Co. v. Ed- wards, 90 C. C. A. 585, 164 Fed. 810; Crawford v. Ngal, 144 U. S. 596, 36 L. ed. 557, 12 Sup. Ct. Eep. 759; Gay Mfg. Co. V. Camp, 13 C. C. A. 137, 25 U. S. App. 134, 65 Fed. 794; Lake Erie & W. E. Co. v. Fremont, 34 C. C. A. 625, 92 Fed. 731; Xilgour v. ^STational Bank, 97 Fed. 693; Davis v. Schwartz, 155 U. S. 636, 39 L. ed. 291, 15 Sup. Ct. Eep. 237 ; Furrer v. Ferris, 145 U. S. 134, 36 L. ed. 651, 12 Sup. Ct. Eep. 821. The only question is, are the findings supported (Cudahy Packing Co. v. Sioux Nat. Bank, 21 C. C. A. 428, 40 U. S. App. 142, 75 Fed. 475; Chicago, M. & St. P. E. Co. V. Clark, 35 C. C. A. 120, 92 Fed. 983; Steel v. Lord, 35 C. C. A. 555, 93 Fed. 729 ; Shipman v. Straitsville Central Min. Co. 158 U. S. 356, 39 L. ed. 1015, 15 Sup. Ct Eep. 886), and should not be overruled, unless manifestly wrong. The Elton, 31 C. C. A. 496, 42 U. S. App. 666, 83 Fed. 520; Denver & E. G. E. Co. V. Eistine, 23 C. C. A. 13, 40 U. S. App. 579, 77 Fed. 59; Crawford v. Iseai, 144 U. S. 585, 36 L. ed. 552, 12 Sup. Ct. Eep. 759; Kunsemiller v. Hill, 29 C. C. A. 658, 57 JJ.S. App. 523, 86 Fed. 200; Western U. Teleg. Co. v. Ameri- can Bell Teleph. Co. 105 Fed. 686 ; Taintor v. Franklin Nat. Bank, 107 Fed. 825 ; Columbus S. & H. E. Co.'s Appeal, 48 C. C. A. 275, 109 Fed. 180; Ferguson Contracting Co. v. Man- hattan Trust Co. 55 C. C. A. 529, 118 Fed. 792; Singleton V. Felton, 42 C. C. A. 57, 101 Fed. 526. This rule is appli- cable to disputed facts, but not to conclusions from undisputed 602 EFFECT OF THE MASTEe's EEPOET. factSj or the construction of a document. United States Trust Co. V. Mercantile Trust Co. 31 C. C. A. 427, 59 U. S. App. 330, 88 Fed. 153, and the court will not always enforce the rule as given. United States Trust Co. v. Omaha & St. L. E. Co. 63 Fed. 742; Knoxville v. KnoxviUe Water Co. 212 U. S. 8, 53 L. ed. 378, 29 Sup. Ct. Kep. 148 ; Bosworth v. Hook, 23 C. C. A. 404, 46 U. S. App. 598, 77 Fed. 6S6, 6S7; Kim- berly v. Arms, 129 U. S. 512, 32 L. ed. 764, 9 Sup. Ct Eep. 355. Effect of Findings hy Masters in Chancery. The findings in matters of account because of the nature of the evidence will be rarely set aside or interfered with. Camden v. Stuart, 144 U. S. 118, 36 L. ed. 368, 12 Sup. Ct. Eep. 585; Tilghman v. Proctor, 125 U. S. 136, 31 L. ed. 664, S Sup. Ct. Eep. 894; Callaghan v. Myers, 12S U. S. 619, 32 L. ed. 550, 9 Sup. Ct. Eep. 177; Eobinson v. Alabama & G. Mfg. Co. 89 Fed. 221. So in findings in damages, error must be obvious (Warren v. Keep, 155 U. S. 265-267, 00 L. ed. 144, 145, 15 Sup. Ct. Eep. 83) ; or value of stock of goods, etc. (Eeading Ins. Co. v. EgelhofF, 115 Fed. 393). A reference to a master commissioner, there being no such ofiicer, would not affect the report. Shipman v. Straitsville Central ilin. Co. 158 U. S. 361, 39 L. ed. 1016, 15 Sup. Ct. Eep. 656. (See ''Who to be Appointed.") Effect When Reference hy Consent. When a cause is submitted to a master by consent to hear and determine the questions of law and fact, and report his conclusions thereon, the courts take a different view of the force and effect of the master's findings than when the submission has been made on motion of one of the parties, or by the court on its own motion. Guarantee Gold Bond Loan & Sav. Co. v. Edwards, 90 C. C. A. 585, 164 Fed. 810; Jefferson Hotel Co. V. Brumbaugh, 94 C. C. A. 279, 16S Fed. 867-872; Third Xat. Bank v. Xational Bank, 30 C. C. A. 436, 58 U. S. App. 148, 86 Fed. 858; Chaimcey v. Dyke Bros. 55 C. C. A. 579, 110 Fed. 21, 22; Blassengame v. Boyd, 101 C. C. A. 129, 178 EFFECT OF THE MASTEk's EEPOET. 603 Fed. 1 ; Spring Garden Ins. Co. v. xlniusement Syndicate Co. 102 C. (^ A. 29, 178 Fed. 531. The leading case upon the effect of reference by consent is Kimberly v. Arms, 129 U. S. 513, 32 L. ed. 761, 9 Sup. Ct. Eep. 355, familiarly known as the Arms Case. This case has been followed in Crawford v. Xeal, 114 U. S. 5S5, 36 L. ed. 552, 12 Sup. Ct. Eep. 759 Davis V. Schwartz, 155 U. S. 637, 39 L. ed. 293, 15 Sup Ct. Eep. 237; Singleton t. Felton, 12 C. C. A. 57, 101 Fed, 526, 527; Schwartz v. Duss, 13 C. C. A. 323, 103 Fed. 565 Western U. Teleg. Co. v. American Bell Teleph. Co. 105 Fed 6S6; Sanders v. Eiverside, 55 C. C. A. 240, 118 Fed. 720 Fidelity .t C. Co. v. St. Matthews Sav. Bank, 44 C. C. A. 225, 104 Fed. S61; Walker v. Kinnare, 22 C. C. A. 75, 46 U. S. App. 150, 76 Fed. 101 ; Walters v. Western & A. E. Co. 69 Fed. 710; Eandolph v. Allen, 19 C. C. A. 353, 41 U. S. App. 117, 73 Fed. 32. The Arms Case substantially holds that when a case has been referred by consent to a master to determine the issues of law and fact, and such reference is entered as a rule of court, it is in effect the submission of a controversy to a private tribunal, whose decisions are not subject to be set aside and disregarded by the court. The special tribunal being agreed upon, there is no reason to give to its conclusions less weight than when decided by the court. Ibid. ; Farrar v. Bernheim, 20 C. C. A. 496, 41 U. S. App. 172, 74 Fed. 438; s. c. 21 C. C. A. 264, 75 Fed. 136; Grayson v. Lynch, 163 U. S. 473, 41 L. ed. 232, 16 Sup. Ct. Eep. 1064; Davis v. Schwartz, 155 U. S. 631, 39 L. ed. 2S9, 15 Sup. Ct. Eep. 237; see Elkin v. Denver Engi- neering Works Co. 181 Fed. 684. And if the conclusions are drawn from disputed facts, they are unassailable. Davis v. Schwartz, 155 U. S. 631-636, 39 L. ed. 289-291, 15 Sup. Ct. Eep. 237; Kimberly v. Arms, 129 U. S. 512, 32 L. ed. 764, 9 Sup. Ct- Eep. 355; United States Trust Co. v. Mercantile Trust Co. 31 C. C. A. 427, 59 U. S. App. 330, 88 Fed. 153; Ferguson Contracting Co. v. Manhattan Trust Co. 55 C. C. A. 529, 118 Fed. 791. It is in such cases, perhaps, that the contention that excep- tions to the conclusions of the master should be taken before the master, or they will be considered waived, is correct, be- cause having referred your case to a special tribunal by con- 604 EZ-EEFEEEXCE TO THE MASTEE. sent, the errors which tou assign on an appeal from its de- cision must have been passed upon adversely by the special tribunal. McXamara v. Home Land k Cattle Co. 105 Fed. 202-204, and authorities; but see 111 Fed. S22. Re-reference to a Master. In stating exceptions to a master's report, there may be a prayer for re-reference, but this may be done by motion. Xa- tional Folding Box Co. v. Dayton Paper Xovelty Co. 91 Fed. S22. However, after the report is filed and exceptions taken, courts will not readily grant a re-reference, unless the report shows that further investigation is necessary to a proper de- cree. Mere inaccuracies of statement, or omissions made, or even vacating the report, would not be cause for a re-reference. There must be some material injury, or a finding imjiist in its consequences, or want of sufficient finding, to enter a proper decree. McElroy v. Swope. 47 Fed. 3S0. Inaccuracies may usually be corrected from the record. Fischer v. Hayes. 16 Fed. 469 ; Witters v. Sowles, 43 Fed. 405 ; Jennings v. Dolan, 29 Fed. S62; Taylor v. Eobertson, 27 Fed. 537; Cimiotti Un- hairing Co. v. Bowsky, 113 Fed. 699; Empire Trust Co. v. Egypt E. Co. 182 Fed. 100. But if the facts be imperfectly stated, so that it is apparent that further evidence is needed, or if unsatisfactory and other evidence can be obtained, and the justice of the case demands it. a re-reference will be or- dered; but in the absence of these features, the court will not, after the report has been filed, permit the case to be reopend for further evidence, especially cumulative evidence (Ibid. ; Central Trust Co. v. Georgia P. R Co. 53 Fed. 3S6-399) ; s. e. 81 Fed. 2S1 ; nor re-refer it on a point as to which neither party requested a finding. Beading Ins. Co. v. EgelhofF, 115 Fed. 393. The master may. before the case leaves his hands, reopen it for good cause shown, to hear further evidence. Cen- tral Trust Co. V. Richmond & D. R. Co. 69 Fed. 7G2 : Centra] Trust Co. V. Marietta & X. G. R. Co. 75 Fed. 41. Br.t when there has been long delay through negligence, he should refusa Third Xat. Bank v. Xational B^ank, 3o"c. C. A. 436, 55 U. S. App. 148, S6 Fed. 852. A re-reference will not be allowed to file an amendment set- COilPEXSATION OF THE MASTEE. DUt) ting up new ground for damages. Clyde v. Kichmond & D. E. Co. 59 Fed. 394. ISTor to allow additional testimony to base a recovery on special views entertained by the master and concurred in by the court. Central Trust Co. v. Georgia P. E. Co. 83 Fed. 3S6. The court, however, may re-refer it, or permit the master to withdraw it for correction and amend- ment. National Folding Box & Paper Co. v. Dayton Paper Xovelty Co. 91 Fed. 822 ; Mosher v. Joyce, 2 C. C. A. 322, 6 U. S. App. 107, 51 Fed. 4il. See "Withdrawal." But where the master is thus permitted to withdraw his report, he cannot reverse his former findings without notice to parties. It is within the spirit of equity rule 75. National Folding Box & Paper Co. v. Dayton Paper Novelty Co. supra. Compensation of the Master. A master's compensation should be measured by the work done, time employed, responsibility assumed, and the magni- tude of the interests involved. It should be reasonable, per- haps liberal, but never exhorbitant. Equity rule 82. Pleasants V. Southern E. Co. 93 Fed. 93. Finance Committee v. War- ren, 27 C. C. A. 472, 53 U. S. App. 472, 82 Fed. 525 ; Middle- ton V. Bankers & M. Teleg. Co. 32 Fed. 524 ; Brown v. King, 10 C. C. A. 541, 23 U. S. App. 524, 62 Fed. 529 ; Edgell v. Felder, 39 C. C. A. 540, 99 Fed. 325; BrickiU v. New York, 55 Fed. 565. Costs in Equity Equity rules 25, 62, 65, 84; Matheson v. Hanna-Schoelkopf Co. 128 Fed. 163 ; Consolidated C. & V. Min. Co. v. Baker, ISl Fed. 989 ; Westfeldt v. North Carolina Min. Co. 100 C. C. A. 552, 177 Fed. 133. (See the rules of the various circuits con- trolling costs. Costs on dismissal, see p. 580.) CHAPTER XCVIL DZCEEE. Definition. The decree is the judicial decision in an equity cause upon the particular issues submitted, and can go no further than the prayer of the bill and the allegations as proved. Wash- ington, A. & Gr. E. Co. V. Bradley (Washington, A. k G. E. Co. V. Washington) 10 Wall. 303, 19 L. ed. 895 ; Baldwin v. Liver- pool & L. k G. Ins. Co. 59 C. C. A. 660, 124 Fed. 200-208; Lewis Pub. Co. v. Wyman. 168 Fed. 760; ilcKinnev v. Big- Hom Basin Development Co. 93 C. C. A. 25S, 1G7 Fed. 771. Classified. Decrees are either interlocutory or final. Richmond v. At- wood, 17 L.E.A. 615, 2 C. C. A. 596, 5 U. S. App. 151. 52 Fed. 21. The interlocutory decree is an adjudication upon some point arising during the progress of the cause, which does not wholly determine the merits, but is necessary to pre- serve the subject-matter, the status quo, or to facilitate the trial of the case on the merits. All decrees not final, as hereinafter stated, are classed as interlocutory, even though they may settle the equities of the bill, as in Lodge v. Twell, 135 U. S. 232, Si L. ed. 153. 10 Sup. Ct. Rep. 7-15 ; McGourkey v. Toledo & O. C. R. Co. 146 U. S. 537, 36 L. ed. lOSl, 13 Sup. Ct. Rep. 170; Keystone Manganese & Iron Co. v. Martin, 132 U. S. 93, 33 L. ed. 276, lO^Sup. Ct. Rep. 32; Latta v. Kilboum. 150 U. S. 539, 37 L. ed. 1175, 14 Sup. Ct. Rep. 201: California Xat. Bank v. Stateler. 171 T. S. 449, 43 L. ed. 234. 19 Sup. Ct. Rep. 6 : Mercantile Trust Co. v. Chicago, P. k St. L. R. Co. 60 C. C. A. 651. 123 Fed. 392 : Deitch v. Staub, r>V, Q. C A. 137, 115 Fed. 317; West v. East Coast Cedar Co. 51 C. C. A. 606 DECREE. 607 416, 113 Fed. 743; Covington v. First Nat. Bank, 185 U. S. 277, 46 L. ed. 908, 22 Sup. Ct. Kep. 645; Southern K. Co. V. Postal Teleg. Cable Co. 179 U. S. 643, 45 L. ed. 356, 21 Sup. Ct. Kep. 249. Final Decree. A final decree is one that entirely disposes of the cause, so that nothing is left for the court to adjudicate (2 Dan. Ch. Pr. 974n) ; or a decree that disposes ultimately of the suit (Adams, Equity, page 375) ; or a final decree is one determining the litigation on its merits, and leaves nothing to be done, but to enforce by order or execution, what has been determined by the court. Ibid. ; Talley v. Curtain, 7 C. C. A. 1, 8 U. S. App. 424, 58 Fed. 4; Blythe v. Hinckley, 84 Fed. 238; Maas v. Lonstorf, 91 C. C. A. 627, 166 Fed. 41 ; New Orleans v. Peake, 2 C. C. A. 626, 2 U. S. App. 403, 52 Fed. 76; Harrison v. Clarke, 90 C. C. A. 413, 164 Fed. 539 ; Beebe v. Eussell, 19 How. 283-286, 15 L. ed. 668, 669; Odbert v. Marquet, 99 C. C. A. 60, 175 Fed. 50, 51 ; Wilson v. Smith, 61 C. C. A. 446, 126 Fed. 919; Scriven v. ISTorth, 67 C. C. A. 348, 134 Fed. 366 ; Sanders r. Bluefield Waterworks & Improv. Co. 45 C. C. A. 475, 106 Fed. 587; Easton v. Houston & T. C. E. Co. 44 Fed. 9 ; St. Louis, I. M. & S. K. Co. v. Southern Exp. Co. 108 U. S. 24, 27 L. ed. 638, 2 Sup. Ct. Eep. 6; Andrews v. National Foundry & Pipe Works, 19 C. C. A. 548, 34 U. S. App. 632, 73 Fed. 517; Gunn v. Black, 8 C. C. A. 542, 19 U. S. App. 489, 60 Fed. 159; Ke Michigan C. E. Co. 59 C. C. A. 643, 124 Fed. 730, 731. Whether it is final depends on its essence, and not on its form, or what it is called. Botter v. Beal, 2 C. C. A. 60, 5 TJ. S. App. 49, 50 Fed. 860; Standley v. Eoberts, 8 C. C. A. 305, 19 U. S. App. 407, 59 Fed. 840; Salmon v. Mills, 13 C. C. A. 372, 27 U. S. App. 732, 66 Fed. 33; Eau Claire v. Payson, 46 C. C. A. 466, 107 Fed. 557. The controversy must be settled (Hohorst v. Hamburg Amevican Packet Co. 148 U. S. 265, 37 L. ed. 445, 13 Sup. Ct. Eep. 590; French V. Shoemaker, 12 Wall. 98, 20 L. ed. 271), and must leave the case in such a condition that if there be an affirmance in the ap- pellate court, the court below will have nothing to do but exe- 608 DECEEE. cute its judgment. Connell v. Smilej, 156 U. S. 339, 39 L. ed. 444, 15 Sup. Ct. Eep. 353 ; Marden v. Campbell Printing- Press & Mfg. Co. 15 C. C. A. 26, 33 U. S. App. 123, 67 Fed. 812, 813; Tuttle v. Claflin, 13 C. C. A. 281, 26 U. S. App. 678, 66 Fed. 8 ; Dainese v. Kendall, 119 U. S. 54, 30 L. ed. 305, 7 Sup. Ct. Eep. 65 ; Meagher v. Minnesota Thresher Mfg. Co. 145 U. S. 611, 36 L. ed. 835, 12 Sup. Ct. Eep. 876 ; Par- sons V. Eobinson, 122 U. S. 115, 30 L. ed. 1123, 7 Sup. Ct. Eep. 1153 ; Chicago & 0. Eiver E. Co. t. McCammon, 10 C. C. A. 50, 18 U. S. App. 628, 709, 61 Fed. 776. So much for classification and definition for the present. As interlocutory and final decrees will be discussed under "Ap- peals" (see "Final Decree as Basis of Appeal"), I pass on to — Framing the Decree. A decree in equity adapts itself to the necessities of each case. Payne v. Hook, 7 Wall. 432, 19 L. ed. 262. Its great elasticity is the advantage over the judgment at law, but it should not go beyond the relief necessary to secure complain- ant in what he is entitled to under the pleadings and prayer. Underground Electric E. Co. v. Owsley, 169 Fed. 671 ; Hill v. Phelps, 41 C. C. A. 569, 101 Fed. 650; Lockhart v. Leeds, 195 U. S. 427-437, 49 L. ed. 263-269, 25 Sup. Ct. Eep. 76; Gage V. J. F. Smyth Mercantile Co. 87 C. C. A. 377, 160 Fed. 426; Graham v. La Crosse & M. E. Co. 3 Wall. 710-712, 18 L. ed. 251, 252. Or it may be entered on conditions, as doing equity. Andrews v. Connolly, 145 Fed. 43 ; St. Louis, K. C. & C. E. Co. V. Wabash E. Co. 81 C. C. A. 643, 152 Fed. 861 ; Farmers' Loan & T. Co. v. Denver, L. & G. E. Co. 60 C. C. A. 588, 126 Fed. 46-50. It may provide for payment of future instalments. Dancel v. Goodyear Shoe Machinery Co. 137 Fed. 157—161. Or it may conform the decree to the case made. Bracken v. N'eill, 15 Tex. 110, but see Baldwin v. Liverpool & L. & G. Ins. Co. 59 C. C. A. 660, 124 Fed. 208. Who to Prepare. The solicitor of the party obtaining the decree mu?t prepare it for the judge's signature. If for the plaintiff, it must be prepared in accordance with the prayer of the bill, or what- DECEEE. 609 ever part thereof is granted by the court. Crocket v. Lee, 7 Wheat 525, 5 L. ed. 514; Simms v. Guthrie, 9 Cranch, 27, 3 L. ed. 64:-i. After drawing the decree, it must be submitted to opposite counsel, and such objections as are made to the draft must be noted, and if not admitted by counsel, they must be presented to the court for settlement. If there is no objection to the decree, or after objections made have been settled by the court, it must then be presented for the judge's sigTiature, after which it is delivered to the clerk for record in the minutes of the court. If the judgment is for the defendant, his solicitor draws the decree dismissing the bill, but if the defendant is in by cross bill, praying affirmative relief, which is granted, then his counsel draws the decree, as required when plaintiff recovers. Rules Referring to Drawing Decrees. By equity rule 86 it is provided that in drawing decrees and orders, neither the bill nor answer nor other pleadings, nor any part thereof, nor the report of any master, nor any other proceeding shall be recited or stated in the decree or or- der; but the decree or order shall begin in substance as fol- lows: This cause came on to ne heard {or to be further heard, as the case may be) at this term, and was argued by counsel; and, thereupon, upon con- sideration thereof, it was ordered, adjudged, and decreed as follows (here insert the decree or order). Equity rules 8, 9, 73. The decree should be expressed in apt terms, and set forth the exact conclusion of the court, especially as to any act to be done, or not done ; and in case anything is to be done, time, mode, and conditions must be clear and plain. Equity rule 8. The decree must conform to the allegations, proof and prayer. Crocket v. Lee, 7 Wheat. 522, 5 L. ed. 513 ; Simms v. Guthrie, 9 Cranch, 19-27, 3 L. ed. 642-645. By equity rule 73 it is provided that every decree for an account of the personal estate of a testator, or intestate, shall contain a direction to the master to whom it is referred to state what parts, if any, are outstanding, or undisposed of, unless otherwise directed. S. Eq.— 39. 610 DECEEE. By equity rule 92 it is provided that in foreclosure suits a decree for any balance over and above the proceeds of the sale under the mortgage may be entered with an execution for such balance, as provided in equity rule 8, where the decree is sole- ly for money. However broad the terms of the decree, it will be read in the light of the pleading and proof. Graham v. Chamberlaia, 3 WalL 710-712, 18 L. ed. 251, 252 ; Crocket v. Lee, 7 Wheat. 522, 5 L. ed. 513. As to necessity of signing, see Ommen v. Talcott, 180 Fed. 927. See also United States V. StoUer, 180 Fed. 910. Recording the Decree. Counsel can rely on the clerk to correctly transcribe the de- cree, and his failure to do so does not affect the relief grant- ed. Blythe v. Hinckley, 8i Fed. 228. Has no effect until en- try. Ommen v. Talcott, 180 Fed. 927. Correcting Errors. Clerical errors in decrees, or errors of omission, can be cor- rected at any time before recording, upon application to the court, without the expense of a rehearing. Equity rule So ; Witters v. Sowles, 32 Fed. 131 ; Hicklin v. Marco, 64 Fed. 609 ; Henderson v. Carbondale Coal k Coke Co. 140 U. S. 40, 35 L. ed. 338, 11 Sup. Ct Eep. 691 ; Ommen v. Talcott, 180 Fed. 927; Ee Wight, 134 U. S. 136, 33 L. ed. 865, 10 Sup. Ct. Eep. 487; Lincoln Xat Bank v. Perry, 14 C. C. A. 273, 32 U. S. App. 15, 66 Fed. 8S7. See "Kehearing" for further discussion over decrees during the term. As distinguished from altering or amending the decree, courts may correct errors after the term, first, when the necessity and matter to make the correction appears of record; or, second, when the matter requiring correction rests in the recollection of the court, or may be proved aliunde. Odell v. Eeynolds, 17 C. C. A. 317, 37 U. S. App. 447, 70 Fed. 656-659,' and cases cited; Gilmer v. Grand Eapids, 16 Fed. 708-710; Ee Wight, 134 U. S. 136-143; Bernard v. Abel, 84 C. C. A. 361, 156 Fed. 652, and cases cited; Gagnon v. United States. 193 U. S. 456, 48 L. ed. 747, 24 Sup. Ct Eep. 510; Whiting v. Equi- DECREE. 611 table Life Assur. Soc. 8 C. C. A. 558, 13 U. S. App. 597, 60 Fed. 200 ; Lincoln Nat. Bank v. Perry, 14 C. C. A. 273, 32 U. S. App. 15, 66 Fed. 888, 889. Amending Decree. Judgments may be amended by the court during the term (Ibid. ; Whiting v. Equitable Life Assur. Soc. 8 C. C. A. 558, 13 U. S. App. 597, 60 Fed. 197; Eev. Stat. sec. 954, IT. S. Comp. Stat. 1901, p. 696; Bronson v. Schulten, 104 U. S. 415, 26 L. ed. 799; Mahler v. Animarium Co. 64 C. C. A. 329, 129 Fed. 897; Ex parte Lange, 18 Wall. 167, 21 L. ed. S76 ; Goddard v. Ordway, 101 U. S. 752, 25 L. ed. 1043 ; Web- ster V. Oliver Ditson Co. 171 Fed. 895) ; but not after the term, except in correcting errors apparent, as before stated (Phil- lips V. Xegley, 117 U. S. 678, 29 L. ed. 1016, 6 Sup. Ct. Kep. 901 ; Bronson v. Schulten, 104 TJ. S. 410, 26 L. ed. 797 ; Van- Dorn V. Pennsylvania E. Co. 35 C. C. A. 282, 93 Fed. 271 ; Campbell v. James, 31 Fed. 526; Morgan's L. & T. E. & S. S. Co. V. Texas, 32 Fed. 530; Doe v. Waterloo Min. Co. 60 Fed. 643; Petersburg Sav. & Ins. Co. v. Dellatorre, 17 C. C. A. 310, 30 U. S. App. 504, 70 Fed. 645; Tubman v. Baltimore & O. E. Co. 190 U. S. 39, 47 L. ed. 947, 23 Sup. Ct. Eep. 777 ; McGregor v. Vermont Loan & T. Co. 44 C. C. A. 146, 104 Fed. 710; Klever v. Seawall, 12 C. C. A. 653, 22 U. S. App. 458, 65 Fed. 378, 379 ; Mootry v. Grayson, 44 C. C. A. 83, 104 Fed. 613 ; Easton v. Houston & T. C. E. Co. 44 Fed. 10; Home Street E. Co. v. Lincoln, 89 C. C. A. 133, 162 Fed. 137 ; Virginia T. & C. Steel & I. Co. v. Harris, 80 C. C. A. 658, 151 Fed. 435 ; Thomson v. Dean, 7 Wall. 345, 19 L. ed. 95). It cannot be done by motion, but only by a bill in equity. Ibid.; King v. Davis, 137 Fed. 217, 218, and cases cited; Taylor v. Easton, 103 C. C. A. 509, 180 Fed. 364. Except where a motion was made at the term and continued by the court over. Walker v. Moser, 54 C. C. A. 262, 117 Fed. 232 ; Amy V. Watertown, 130 U. S. 313, 32 L. ed. 950, 9 Sup. Ct. Eep. 530 ; Manning v. German Ins. Co. 46 C. C. A. 144, 107 Fed. 53. It has, however, been held that in decrees, as in foreclosures, which direct the manner in which the decree shall be enforced. 612 DECEEE. it is in the power of the court to change or modify this feature of the decree at any term of the court, because such provision in a decree is only in effect an equitable execution, and there is no vested right in a party to have the execution of a decree performed in any particular manner. Mootry v. Grayson, 44 C. C. A. 83, 104 Fed. 613 ; Eoyal Trust Co. V. Washburn, B. & I. R Co. 113 Fed. 536 ; Graham v. Coolidge, 30 Tex. Civ. App. 273, 70 S. W. 231; see Earle v. McCartney, 112 Fed- 372 ; Thomson v. Dean, 7 Wall. 346, 19 L. ed. "'Jo. Force of the Decree. The decree is conclusive on all issues joined (Russell & Co. V. Lamb, 49 Fed. 771 ; Manhattan Trust Co. v. Trust Co. of X. A. 46 C. C. A. 322, 107 Fed. 328-332; Black v. Caldwell, 83 Fed. 884; Lake Country v. Piatt, 25 C. C. A. 87, 49 U. S. App. 216, 79 Fed. 570, 571; Confectioners' Machinery & Mfg. Co. V. Racine Engine & Mach. Co. 163 Fed. 915 ; Rus- sell V. Russell, 129 Fed. 434-438; Montana Min. Co. v. St. Louis Min. & Mill. Co. 78 C. C. A. 33, 147 Fed. 904; Gar- ner V. Second Xat. Bank, 89 Fed. 636), as well as those that should obviously have been made (Ibid. ; Cromwell v. Sac €ounty, 94 TJ. S. 351, 24 L. ed. 195; Southern Minnesota R. Extension Co. v. St. Paul & S. C. R. Co. 5 C. C. A. 249, 12 U. S. App. 320, 55 Fed. 690; Smith v. Ontario, 18 Blatchf. 454, 4 Fed. 386; Burton v. Huma, 37 Fed. 738; Chavent v. Schefer, 59 Fed. 232; see Russell v. Russell, 129 Fed. 438). Or, to state it in another form, a decree is conclusive as to all facts without the admission or proof of which the decree could not have been rendered. Kilham v. Wilson, 50 C. C. A. 454, 112 Fed. 572; see also Wilson v. Smith, 117 Fed. 711; .Etna L. Ins. Co. v. Hamilton County, 54 C. C. A. 468. 117 Fed. 84. While most of the cases cited refer to judgments at law, yet there is no essential difference between the effect of the de- cree in equity and judgment at law. Thompson v. Roberts, 24 How. 240, 16 L. ed. 649 ; Kilham v. Wilson, 50 C. C. A. 454, 112 Fed. 573. However, in some cases, as in Russell v. Rus- sell, 129 Fed. 48S, it is intimated that there is a difference. Where by the terms of a decree anything is ordered to be done DECREE. 613 as a transfer of property, the effect of the act when done is to invest the transfer with rights of ownership, as completely as if it had been under execution, or order of sale. Thomson v. Dean, 7 Wall. 345, 19 L. ed. 95. Presumed io Be Right. A decree in equity is presumed to be right. Manhattan L. Ins. Co. V. Wright, 61 C. C. A. 138, 126 Fed. 88, and cases cited; Big Six Development Co. v. Mitchell, 1 L.K.A.(]Sr.S.) 332, 70 C. C. A. 569, 138 Fed. 280. Acting on the Person. It is an ancient maxim that "equity acts upon the person." It was only the expression of the fact that anciently the chan- cellor could not bind the right, but only coerce the person. But this bearded maxim has been shorn of much of its force, for now equity binds the right, and coercion of the party has but limited application in modern practice. The most forcible illustrations of its application are found in injunctions, and where the parties are within the jurisdiction of the court, but the property to be affected by the decree is beyond the juris- diction of the court. It will be seen under "Enforcement of Decrees" that the Fed- eral courts, through the equity rules, still retain the right to coerce the person, where an act is to be done to render the de- cree effective, in many of the States; however, decrees estab- lishing an estate, interest, or right of property, divesting out of one party and vesting in another, are by statute made suffi- cient muniments of title, independent of any action of the parties to the decree, and such decrees may be recorded as title. Tex. Kev. Stat. 3625, 4649, 5275. Extraterritorial Effect. A decree cannot act extraterritorially, that is, it cannot affect lands in other States. Carpenter v. Strange, 141 U. S. 105, 35 L. ed. 647, 11 Sup. Ct. Eep. 960; Eemer v. McKay, 54 Fed. 434; Dull v. Blackman, 169 TJ. S. 247, 42 L. ed. 734, 18 614 DECEEE. Sup. Ct. Rep. 333. Yet where the court has jurisdiction of the person, it can bind the conscience of the party in regard to land, and compel him to do equity. It may decree a conveyance by him of land in another State and may enforce the decree by process against the defendant. Miller v. Rickey, 127 Fed. 580 ; Phelps V. McDonald, 99 U. S. 298, 25 L. ed. 473 ; Baltimore Bldg. & L. Asso. V. Alderson, 32 C. C. A. 542, 61 U. S. App. 636, 90 Fed. 146 ; Gage v. Riverside Trust Co. 86 Fed. 998. Or remove cloud from title. Remer v. McKay, 54 Fed. 432 ; Hart V. Sansom, 110 U. S. 154, 28 L. ed. 103, 3 Sup. Ct. Rep. 586; Municipal Invest. Co. v. Gardiner, 62 Fed. 956. It may enjoin a resident suit in another State. Cole v. Cunning- ham, 133 U. S. 116, 33 L. ed. 543, 10 Sup. Ct. Rep. 269; Gage V. Riverside Trust Co. 86 Fed. 999. Lien of a Decree. By act of 1888, 25 Stat, at L. 357, chap. 729, U. S. Comp. Stat. 1901, p. 701, the decree of a Federal court has the same lien on property in the State where rendered as are given to the judgment and decrees of the courts of the State having general jurisdiction; and vs^hatever is necessary to be done bv State statutes to fix and retain the liens of judgments and de- crees must be done in the same manner to fijc the lieu of the Federal decree, provided the State statute authorizes the Fed- eral decrees to be so registered and recorded; or to do what- ever is required by the State laws with reference to its own judgments and decrees. Batts' Rev. Stat. (Tex.) Arts. 3283- 3293. In 1S95 this act was amended (28 Stat, at L. 813, 814, chap. 180), so that it was not necessary to record or register the judgment or decree in the county in which the Federal court was held, in order to fix the lien, if by law the clerk of the United States court be required to have a permanent ofiice there, and a judgment record open at all times for inspection. By U. S. Rev. Stat. sec. 967, U. S. Comp. Stat. 1901, p. 701, decrees of Federal courts cease to be liens in like manner as de- crees in State courts. Enforcement of the Decree. Remedies in enforcing judgments at law (TJ. S. Rev. Stat. DECEEE. 615 see. 916; TJ. S. Comp. Stat. 1901, p. 684), do not apply in equity (Hudson v. "Wood, 119 Fed. 761). Decrees are con- trolled by rules of court, and terms of the decree. General Electric Co. v. Hurd, 171 Fed. 984; see Cumberland Lum- ber Co. V. Tunis Lumber Co. 96 C. C. A. 244, 171 Fed. 352. As to sale of lands in the Federal courts see 27 Stat, at L. 751, chap. 225, U. S. Comp. Stat. 1901, p. 710 ; Pewabic Min. Co. V. Mason, 145 U. S. 349, 36 L. ed. 732, 12 Sup. Ct. Kep. 881 ; Godchaux v. Morris, 57 C. C. A. 434, 121 Fed. 482 ; and Files V. Bro^vn, 59 C. C. A. 403, 124 Fed. 133. By equity rule 8 final process to execute any decree may, if the decree be solely for money, be by a writ of execution, as at common law. If for the performance of any specific act, as executing a convey- ance of land, or delivering up deeds or other documents, where the time in which the act to be done, which must be stated in the decree has lapsed, and not complied with, then upon affi- davit of the plaintiff of the fact, filed with the clerk, he shall be entitled to a writ of attachment against the delinquent party, who, when his person has been attached, shall not be discharged unless upon a full compliance, with the payment of all costs. The court, however, may extend the time of performance, and thus release him. If the delinquent party cannot be found, a writ of sequestration may issue against his estate, upon a return of non est inventus, to compel obedience. Equity rule 7 ; equity rule 8. When the decree requires delivery of pos- session, which is refused, then upon affidavit of a demand and refusal to obey the decree or order, the party is entitled to a writ of assistance from the clerk of the court. Equity rule 9 ; equity rule 7, as to interlocutory orders. Alton Water Co. v. Brown, 92 C. C. A. 598, 166 Fed. 840-843 ; Maas v. Lonstorf, 91 C. C. A. 627, 166 Fed. 41; Collin County Nat. Bank v. Hughes, 83 C. C. A. 661, 155 Fed. 390; Terrell v. Allison, 21 Wall. 291, 22 L. ed. 635 ; Root v. Woolworth, 150 U. S. 410, 37 L. ed. 1125, 14 Sup. Ct. Eep. 136. By equity rule 10 it is provided that every person not being a party in any cause, who has obtained an order, or in whose favor an order shall be made, shall be enabled to enforce obedi- ence by the same process as if he were a party. And every per- son not being a party to the cause against whom obedience to an order of the court may be enforced shall be liable to the same process for enforcing obedience as if he were a party. 616 DECKEE. The same rules apply to the enforcement of interlocutorj orders and decrees, and the same practice to enforce them- Equity rule 7. You must file in the clerk's office an affidavit, showing the noncompliance of the defendant with the order. The affidavit must show the order, the time within which it was to be obeyed, the default of the defendant, and a prayer for the attachment or whatever process is asked. The clerk is authorized to issue an attachment directed to the United States marshal, commanding him to attach the defendant, if found in the district, and to bring him forthwith (or some ap- pointed day), before the judge of the circuit court of the United States for the . . . district of . . . , in the city of . . . in said district, to answer for contempt in not obeying the de- cree of the court by which he was directed and required to (State part of the decree that required the act to be done), and you are hereby commanded to detain him in custody imtil he is discharged by the court Witness the Hon. . . . , Chief Justice of the United States, etc. Attest : X. Y., Clerk, etc. The writ of sequestration authorized to be issued against the estate of a person to compel obedience to the decree follows the failure to attach the person because not found. The plain- tiff should file a petition reciting the order that has been dis- obeyed, the issuance of the attachment, the return not found, and then set forth that the defendant has property within the jurisdiction, and ask the court for an order of sequestration. Judge Shiras says in the second edition of his Equity Prac- tice, page 141, that the writ is directed to the sequestrators, that is, the parties selected to take charge of the property. The writ should command them to take possession of the estate of the delinquent defendant, and to hold the same, with its pro- ceeds, rents, and profits for the order of the court, who mav ultimately apply it to the satisfaction of the decree, though the primary purpose of the seizure was to coerce the defendant. Although the process is still retained in the rules, there is no reported case that I know of illustrating its use. DECKEE. 617 Delivery of Possession. If the decree be for possession of property, an affidavit that a party refuses possession authorizes the clerk to issue a writ of possession, directed to the United States marshal, command- ing him to put the plaintiff in possession. The writ is a fa- miliar one, and will be issued by the clerk upon application based upon affidavit, as stated. Equity rule 9. (See authori- ties above.) Execution of Decree in Foreclosure. In matters of foreclosure, as before stated (equity rule 92), when a decree is rendered for a balance that may be found due over and above the proceeds of sale of the mortgaged prop- erty, execution may issue as at common law (equity rule 8 ; U. S. Eev. Stat. sec. 985; U. S. Comp. Stat. 1901, p. 707; Seattle, L. S. & E. R Co. v. Union Trust Co. 24 C. C. A. 512, 48 U. S. App. 255, 79 Fed. 187, 188; Northwestern Mut. L. Ins. Co. V. Keith, 23 C. C. A. 196, 40 U. S. App. 706, 77 Fed. 374) ; and when the decree is for the payment of money, you may use any statutory method provided by a State for collect- ing"'. Sage V. St. Paul, S. & T. F. E. Co. 47 Fed. 3. As to decrees of foreclosure and orders of sale, the forms that are familiar to you in State practice may be used. In enforcing a decree a court cannot require as a precedent con- dition the payment of money found by a master to be due the defendant, where the facts upon which such finding is based were not pleaded. Burke v. Davis, 26 C. C. A. 675, 53 U. S. App. 414, 81 Fed. 907. Again, in enforcing a decree, a court retains jurisdiction, even after the term, to make further orders directing the manner of its execution ; and to that extent it may modify the provisions of the original decree, as by changing the times or terms of a sale of property. Mootry v. Grayson, 4* C. C. A. 83, 104 Fed. 613 ; Bound v. South Caro- lina E. Co. 55 Fed. 186; Alton Water Co. v. Brown, 92 C. C. A. 598, 166 Fed. 840; Graham v. Coolidge, .'30 Tex. Civ. App. 273, 70 S. W. 231; Sinsheimer v. Simonson, 47 C. C. A. 51, 107 Fed. 905; Ee Sanborn, 52 Fed. 586. So much for the statutes and equity rules controlling the 618 DECEEE. enforcement of decrees. There is no question that a circuit court has full powers, coextensive with its jurisdiction to make decrees, to enforce them by proper process, or ancillary suits, if necessary; but in the matter of issuing attachments for the person of the defendant, either by mesne or final process, it is proper here to call your attention to sections 990 and 991 of the United States Kevised Statutes, providing that no per- son can be arrested and imprisoned for debt on any process is- suing out of the United States courts, in a State that forbids imprisonment for debt. Ee Purvine, 37 C. C. A. 416, 96 Fed. 195. Consequently, the rules which make this provision in mesne or final process cannot be enforced in such a State, when the sole purpose of the suit is for the recovery of money, as in accotmting, or for money due on any judgment or decree founded upon contract. Xelson v. Hill, 89 Fed. 477 ; Mallory ilfg. Co. V. Fox, 20 Fed. 409 ; Low v. Durfee, 5 Fed. 256. The first clause of equity rule 8 provides the only method by which money can be collected under a decree in equity. CHAPTEE XCVIIL SALES UXDEE DECREE. Tou must note the special provisions of the Federal statute, act of 1S93, 27 Stat, at L. 751, chap. 225, U. S. Comp. Stat. 1901, p. 710, and not pursue the State methods. Cumberland Lumber Co. v. Tunis Lumber Co. 96 C. C. A. 244, 171 Fed. 352. By the act above cited, it is provided that all real estate or any interest in land ordered to be sold by a decree of any United States court, must be sold at the court house of the county in which the property, or a greater part thereof, is lo- cated, or upon the premises, as the court may decree. That personal property must be sold in the same way, unless other- wise ordered. (See authorities imder "Execution of Decree," also iinder "'Enforcement of Decree.") By section third of the act it is provided that the sale of real estate must be published at least once a week for four weeks in a newspaper published and circulating in the county where the land is situated. If the real estate is in more than one county, then notice must be published in such of the counties as the court may direct. The real estate must be described in the notice. This statute, it is declared, is for the benefit of the defendant in execution, and creates a personal privilege or right which he may insist on or waive. iSTevada Nickel Syndi- cate V. National Xickel Co. 103 Fed. 391-393. Sale iy Master. Whethei the sale be made by the United States marshal, or the master in chancery, or a special master commissioner, the same rules must be pursued, unless otherwise directed by the decree. It must be made subject to the provisions of the act above given, and in such manner as the court may direct with- in the provisions of the act of 1893. 619 620 SALES TSTmn DECEEE. The authority npon which this ministerial duly is perfoiined, whether by marshal or master, is the decree, a copy of which the clerk must furnish him. Seaman v. Xorthwestem ilul. L. Ins. Co. 30 C. C. A. 212, 58 U. S. App. 632, 86 Fed. 497. The decree must be strictly followed, and when the sale is made, a prompt return must be made by the officer. As to form of return of sale, see Nevada Xickel Syndicate v. Na- tional Xickel Co. 103 Fed. 392, 393. Motion to Confirm. On filing the report of sale, counsel for plaintiff should make a motion to confirm the sale, but the court usually gives a reasonable time within which to file exceptions to the sale. The act being purely ministerial, no right can be claimed under equity rule 83, providing for exceptions to master's reports. Pewabic Min. Co. v. Mason, 145 U. S. 363, 36 L. ed. 736, 12 Sup. Ct. Eep. 887. If no exceptions are filed, the sale may on motion be confirmed, or the court may of its own motion set the sale aside. See Duncan v. Atlantic, ^1. & O. R. Co. 4 Hughes, 125, 88 Fed. 843, 844-850, for decree confirming sale. As to the practice, see Coltrane v. Baltimore Bldg. & L. Asso. 126 Fed. 839, 840. Anyone interested in having the sale confirmed, whether purchaser, creditor, or receiver, may make the motion. Ibid. Exceptions to Sale. Any objections to the officer appointed to sell must be made by direct attack on the order appointing him. A standing mas- ter appointed to sell need not take an oath nor file a bond. Seaman v. Northwestern Mut. L. Ins. Co. 30 C. C. A. 212, 58 U. S. App. 632, 86 Fed. 497. Exceptions to the sale or the price, or the failure of the officer to perform a required duty, must be made specifically, and supported by affidavit, if the objection raised is not apparent in the record. If the exceptions are sustained, a resale is ordered; if not sustained, or no exceptions are filed within the time allowed by the court, the sale will be confirmed, and the court wiU order the officer selling to execute and deliver a conveyance to the pur- SALES ITNDEE DECEEE. 621 chaser. If any delay is occasioned in executing the deed, as where under the laws of a State a party has a right to redeem within a certain period after sale, then a certificate of the sale should be delivered to the purchaser until the period for re- demption has expired. If the property has not been redeemed, a report should be made to the court, with a proper deed exe- cuted for the court's approval, and then delivered to the pur- chaser if approved. However, this may not be necessary where the court has anticipated the period of redemption in his ap- proval of the sale, and ordered the master to execute and de- liver the deed after the period of redemption expires without having been redeemed. Of course, if the property is redeemed, a report must be made at once for the further action of the court. Efect of Bid. The sale, report, and confirmation are all necessary to trans- fer the property; a bid at the sale accepted by the master is dependent upon confirmation before it in reality becomes an accepted bid. The bid, then, is but an offer to take the prop- erty, the acceptance of which is evidenced by the confirmation by the court. Tennessee v. Quintard, 26 C. C. A. 165, 47 U. S. App. 621, 80 Fed. 835 and cases cited; Camden v. May- hew, 129 r. S. 73, 32 L. ed. 608, 9 Sup. Ct. Eep. 246 ; Blos- som V. Milwaukee & C. R Co. 3 Wall. 196, 18 L. ed. 43. When purchaser fails to complete bid he is entitled to notice of resale. Bayne v. Brewer Pottery Co. 90 Fed. 623 ; Stuart V. Gay, 127 F. S. 526, 32 L. ed. 193, 8 Sup. Ct. Eep. 1279 ; Sheffield & B. Coal, Iron & E. Co. v. Newman, 23 C. C. A. 459, 41 TJ. S. App. 766, 77 Fed. 787 ; Mayhew v. West Vir- ginia Oil & Oil Land Co. 24 Fed. 205. Purchaser Under. A purchaser under a judicial sale becomes a quasi party to the suit from which the process issued, and he must take no- tice of all the subsequent proceedings in the cause, if any. Tennessee v. Quintard, 26 C. C. A. 165, 47 U. S. App. 621, 80 Fed. 835 ; Davis v. Mercantile Trust Co. 152 U. S. 594, 38 622 SAXES UXDEE DECEEE. L. ed. 565, 14 Sup. Ct. Rep. 693 ; Kneeland v. American Loan & T. Co. 136 U. S. 89, 34 L. ed. 379, 10 Sup. Ct. Rep. 950 ; Stuart V. Gay, 127 U. S. 518, 32 L. ed. 191, 8 Sup. Ct. Rep. 1279. See Hooker v. Burr, 194 U. S. 415, 48 L. cd. 1046, 24 Sup. Ct. Rep. 706. Notice of Proceedings After Decree. After final decree, parties to the suit are not bound to take notice of subsequent proceedings, unless served with process, or they voluntarily appear (Smith v. Woolfolk, 115 U. S. 147, 29 L. ed. 359, 5 Sup. Ct. Rep. 1177; Great Western Teleg. Co. V. Purdy, 162 U. S. 336, 40 L. ed. 990, 16 Sup. Ct. Rep.'siO; Sheffield & B. Coal, Iron & R. Co. v. Xewman, 23 C. C. A. 459, 41 U. S. App. 766, 77 Fed. 793) ; especially when new and distinct issues from the original bill are set up. Smith v. Woolfolk, 115 U. S. 148, 29 L. ed. 359,'5 Sup. Ct. Rep. 1177. CHAPTEE XCIX EEHEAEING. A court of equity has full power over its decrees during the term in whicli they are entered, and may vacate, modify, sup- plement, or supersede, as we have before seen in chapter 97 (Doss V. Tyack, 14 How. 312, 313, 14 L. ed. 435; Henderson V. Carbondale Coal & Coke Co. 140 TJ. S. 40, 35 L. ed. 338, 11 Sup. Ct. Eep. 691; Bronson v. Schulten, 104 U. S. 415, 26 L. ed. 799 ; Goddard v. Ordway [Phillips v. Ordway] 101 TJ. S. 752, 25 L. ed. 1043) ; or grant a rehearing, which is addressed to the sound discretion of the court, and cannot be reviewed or assigned as error (McLeod v. !!Srew Albany, 13 C. C. A. 525, 24 U. S. App. 601, 66 Fed. 379, 382; Iron K. Co. V. Toledo, D. & B. E. Co. 10 C. C. A. 319, 18 U. S. App. 479, 62 Fed. 169, and cases cited). After decree, and before term closes, you may apply for a rehearing by petition, or you may directly appeal, as will be hereafter shown. Equity rule 88 ; First Xat. Bank v. Woodrum, 86 Fed. 1004; Giant Powder Co. V. California Vigorit Powder Co. 6 Sawy. 527, 5 Fed. 197 ; Harman v. Lewis, 24 Fed. 530. (See "Eehearing in Ap- peals.") A rehearing in equity is in effect nothing more than an ap- plication for a new trial at law, based on similar grounds and subject to the same limitations in considering evidence and er- rors of law and fact. Giant Powder Co. v. California Vigorit Powder Co. 6 Sawy. 527, 5 Fed. 201. The difference, how- ever, is this : in equity the application for a rehearing is not an ex parte proceeding. Ibid. ; Harman v. Lewis, 24 Fed. 530. The party complaining must file a petition embodying the requisites cf equity rule 88. Easton v. Houston & T. C. E. Co. 44 Fed. 9. It mnr ' contain the special matter upon which the rehearing is applied for, it shall be signed by counsel, and the facts stated must be sworn to unless apparent in the rec- 623 624 EEHEAEIKQ. ord. McLeod v. ISTew Albany, 13 C. C. A. 525, 24 U. S. App, 601, 66 Fed. 379; Allis v. StoweU, 85 Fed. 481. Time of Filing. The rule further provides for the time of filing the petition, or within which it may be filed, as follows : If the case is ap- pealable, it must be filed by the end of the t^rm in which the case is tried ; if not appealable, the petition may be filed before the end of the next term of the court. Equity rule 88 ; First Xat. Bank v. Woodrum, 86 Fed. 1004; Easton v. Houston T. C. E. Co. 44 Fed. 9; Moelle v. Sherwood, 148 U. S. 25, 37 L. ed. 352, 13 Sup. Ct Eep. 426; Xewman v. Moody, 19 Fed. 858. This latter clause of the rule is not now applicable, as all the cases decided in the circuit court are appealable to the circuit court of appeals. So that now there is no exception to the rule that a petition for rehearing must be filed before the end of the term in which the decree is entered. Halsted v. Forest Hill Co. 48 C. C. A. 681, 109 Fed. 820. Order to Show Cause. As said, the application is not ex parte, but the applicant should procure an order from the court requiring the adverse party to show cause at some future day why the prayer of the petition should not be granted. The adverse party mav then answer the petition, and on petition and answer the application is heard. Harman v. Lewis, 24 Fed. 531. Grounds of Application. Unless you have some new and forcible ground, such as where a mistake is palpable, or some material fact has been overlooked by the court, it is better to appeal at once. Martin- dale V. Waas, 3 McCrary, 637, 11 Fed. 551. It is not profit- able to catch at straws, or rehash old arguments, as the result of a vast majority of these applications attest; besides, the ac- tion of the court on rehearing is not reviewable on appeal. Iron E. Co. v. Toledo, D. & B. E. Co. 10 C. C. A. 319. IS JJ. S. App. 479, 62 Fed. 169 : McLeod v. Xew Albany, 13 C. C. a! EEHEAKING. 625 525, 24 U. S. App. 601, 66 Fed. 379 ; Rogers v. Eiessner, 34 Fed. 270. If fraud alleged, state the facts; general allega- tions not good. Hicks v. Otto, 85 Fed. 728. Newly Discovered Evidence. Xewly discovered evidence is a ground upon "whicli to base a rehearing in equity, but in such cases the petition must con- tain, independently of the affidavits setting up the newly dis- covered evidence, the nature of the evidence; that it is ma- terial, showing in what way; the fact that it was not known until after the decree ; the time and circumstances under which it came to the knowledge of the party setting it up; and that it could not have been discovered sooner by reasonable dili- gence. Acme Flexible Clasp Co. v. Gary Mfg. Co. 99 Fed. 500; Hostetter Co. v. Comerford, 99 Fed. 834; Pittsburgh Ee- duction Co. v. Cowles Electric Smelting & Aluminum Co. 64 Fed. 125; McLeod v. Xew Albany, 13 C. C. A. 525, 24 U. S. App. 601, 66 Fed. 379 ; Hicks v. Otto, 85 Fed. 728 ; Allis v. Stowell, 85 Fed. 481; Central Trust Co. v. Worcester Cycle Mfg. Co. 91 Fed. 212 ; Anderson Land & Stock Co. v. McCon- nell, 171 Fed. 475 ; Tilghman v. Werk, 39 Fed. 680 ; Witters V. Sowles, 31 Fed. 5 ; Vermont Farm Mach. Co. v. Converse, 10 Fed. 825 ; Eintoul v. ISTew York C. & H. E. E. Co. 20 Fed. 313 ; Colgate v. Western IT. Teleg. Co. 22 Blatchf. 118, 19 Fed. 828. Must Be Material. It must be material, and not cumulative (Eogers v. Marshall, 13 Fed. 59), and reasonably sufScient to change the result (Torrent v. Duluth Lumber Co. 32 Fed. 229 ; Allen v. New York, 18 Blatchf. 239, 7 Fed. 483 ; Munson v. ISTew York, 20 Blatchf. 358, 11 Fed. 72 ; Pfanschmidt v. Kelly Mercantile Co. 32 Fed. 667; Witters v. Sowles, 32 Fed. 765), and not mis- taken view of coimsel (Witters v. Sowles, 31 Fed. 5). On Error in Law. If the complaint is that the court has committed an error in S. Eq. — 40. 626 EEHEAEmO. law, it must be shown that the particular point was not pre- sented in argument. On Ground Defendant Not Represented. If on ground that defendant was not present, or represented by counsel on the hearing, you must show excuse, and that you have a meritorious defense. Blair v. Silver Peak Mines, 93 Fed. 332 ; Tilghman v. Werk, 39 Fed. 680. See Jordan V. Brown, — Tex. Civ. App.— , 94 S. TV. 398 ; Witters v. Sowles, 31 Fed. 5, Effect of Granting. If rehearing is granted to admit additional proof, the de- cree should stand pending the rehearing. Hook v. Mercantile Trust Co. 36 C. C. A. 645, 95 Fed. 41 ; Sogers v. Marshall, 4 McCrary, 307, 15 Fed. 193. But if the rehearing is granted because the court doubts the correctness of the judgment, then the decree should be set aside until the case is reheard. On Interlocutory Orders. Eehearings cannot be granted on interlocutory orders. Equity rule 88 provides for them after final decree. TVooster V. Handy, 22 Blatchf. 307, 21 Fed. 51 ; see Deitch v. Staub, 53 C. C. A. 137, 115 Fed. 317; and GiUette v. Bate Kefriger- ating Co. 12 Fed. 108. Time for Appeal Not Included. If the petition for rehearing is entertained by the court, then the time for appeal is not included, while the application is pending. Aspen Min. & Smelting Co. v. BiUings, 150 U. S. 36, 37 L. ed. 988, 14 Sup. Ct. Eep. 4; Xorthem P. R Co. v. Hohnes, 155 U. S. 138. 39 L. ed. 99, 15 Sup. Ct Eep. 28; Kingman v. TTestem ilfg. Co. 170 U. S. 678, 42 L. ed. 1193, 18 Sup. Ct Eep. 786; Cutting v. Tavares, O. & A. E. Co. 9 C. C. A. 401, 23 U. S. App. 363, 61 Fed. 155 ; Texas & P. E. Co. r. Murphy, 111 TJ. S. 489, 490, 28 L. ed. 493, 4 Sup. Ct. Eep. 497. KBHEARING. 627 Heanng Application After the Term. We have seen that the jurisdiction of the court to entertain any motion affecting the judgment ends with the term (Linder V. Lewis, 1 Fed. 378; Halsted v. Forest Hill Co. 109 Fed. S22, S23) ; and we have seen after the term rehearing will not be entertained (Ibid. ; Graham v. Swayne, 48 C. C. A. 411, 109 Fed. 367; Williams v. Conger, 131 U. S. 391, 33 L. ed. 201, 9 Sup. Ct Eep. 793 ; Bushhell v. Crook Min. & Smelting Co. 150 U. S. S3, 37 L. ed. 1007, 14 Sup. Ct. Eep. 2; Bank of Lewisburg v. Sheffey, 140 U. S. 451, 35 L. ed. 496, 11 Sup. Ct. Eep. 755), but an exception has been recognized, where at the time the decree has been entered some order is made vir- tually keeping the judgment open for further relief or pro- ceedings (Linder v. Lewis, 1 Fed. 380) ; or unless the applica- tion has been filed at the entry term, but continued over by the court imtil the next term for rehearing (Graham v. Swayne, 48 C. C. A. 411, 109 Fed. 367 ; First Wat. Bank v. Woodrum, 86 Fed. 1005; Giant Powder Co. v. California Vigorit Powder Co. 5 Fed. 197; Xew Orleans v. Fisher, 34 C. C. A. 15, 63 U. S. App. 455, 91 Fed. 575 ; Klein v. Southern P. E. Co. 140 Fed. 213). In this last ease it is held the court must continue it over. The mere filing, without action, does not have that ef- fect. In Goddard v. Ordway, 101 U. S. 745, 25 L. ed. 1040 ; and Aspen Min. & Smelting Co. v. Billings, 150 U". S. 36, 37, 37 L. ed. 988, 989, 14 Sup. Ct. Eep. 4, the above is declared the correct rule if the petition is entertained by the court, and some action, as continuing it, is taken by the court, it goes over as unfinished business. Graham v. Swayne, 48 C. C. A. 411. 109 Fed. 366. "•J Form of Petition for Rehearing. You may use the form of application for a new trial in your State courts, which I assume is familiar to you, but ap- plying strictly the requisites provided by equity rule 88, above referred to. The following may be used: Title as in bill; addressed to the Honorable Circuit Judges of, etc. The petition of the defendant C. D. showeth unto your honors that, being 628 EEHEAEl:yO. aggrieved by the decree entered in this cause on the day of , A. D. 19 , by which petitioner was required, etc. ( state substance of decree, then grovmds of application), wherefore your petitioner humbly prays that your Honors will grant a rehearing, humbly submitting to such orders as the court may make if the application be without merit, etc. K. F., Solicitor, etCL CHAPTEE C. BILL OF REVIEW. rinal decrees in equity may be modified or set aside by ap- peals witliia tbe time prescribed by law, or by a bill of review filed within the time allowed for appeals, or by an original bill in the nature of a bill of review charging fraud or newly dis- covered evidence. Huntington v. Little Rock & Ft S. E. Co. 3 McCrary, 581, 16 Fed. 906 ; Eobinson v. Eudkins, 28 Fed. S. It is not considered a continuance of the former bill, but in the nature of an original bill. Home Street E. Co. v. Lin- coln, 89 C. C. A. 133, 162 Fed. 133 ; but see Dowagiac Mfg. Co. V. McSherry Mfg. Co. 84 C. C. A. 38, 155 Fed. 524; contra — see also Little Eock Junction E. Co. v. Burke, 13 C. C. A. 341, 27 U. S. App. 736, 66 Fed. 88; Barrow v. Hun- ton, 99 U. S. 80, 25 L. ed. 407. Distinction Between Bill of Review and Rehearing. There is a distinction between a bill of review and an ap- plication for rehearing, which I have already discussed, and the distinction when stated will be a sufficient explanation of the nature of a bill of review. First. A rehearing is not appealable, and you may appeal from an adverse decision on a bill of review. Second. You can attack in a rehearing the conclusions of law and fact, whereas in a biU of review you can only attack errors apparent upon the face of the record. Third. The application for a rehearing must be filed be- fore the end of the entry term, whereas a bill of review may be filed after the term and within the time an appeal may be taken under the statute. Copeland v. Bruning, 104 Fed. 170 ; Eeed v. Stanly, 38 C. C. A. 331, 97 Fed. 521. According to the practice in this country a final decree is deemed to be enrolled at the end of the term. Whiting v. Bank of United States, 13 Pet. 13, 10 L. ed. 36. 629 630 BILL OF EEVIETV. For What Bill of Review Lies. First. For error apparent in the record. Second. For new matter arising since the decree. Third. Newly discovered evidence after the term. Fourth. For fraud in procuring the decree. First. For Error Apparent. WTiere an error is apparent on the face of the decree, or in the pleadings or proceedings, and without reference to the evi- dence, you may correct it by a hill of review. Hill v. Phelps, 41 C. C. A. 569, 101 Fed. 652 ; Home Street E. Co. v. Lin- coln, 89 C. C. A. 133, 162 Fed. 133 ; Eeed v. Stanly, 89 Fed. 430 ; Irwin v. Meyrose, 2 McCrary, 244, 7 Fed. 533 ; Quin- ton V. Seville, 81 C. C. A. 673, 152 Fed. 879 ; AUen v. Wil- son, 21 Fed. 884; Chamberlin v. Peoria, D. & E. E. Co. 5.5 C. C. A. 54, 118 Fed. 33; Cocke v. Copenhaver, 61 C. C. A. 211, 126 Fed. 145. Mr. Daniels in his Chancery Prac- tice says that the error in law which will maintain a bill of review must consist of the violation of some statute, or established principle of law or equity, or of the settled prac- tice of the court. Hill v. Phelps, 41 C. C. A. 569, 101 Fed. 652; Freeman v. Clay, 2 C. C. A. 587, 2 U. S. App. 254, 52 Fed. 7, and authorities cited. It must be apparent from the proceedings, pleadings, and decree, without reference to the evidence. Ibid. This view has been adopted by the Federal courts in passing upon applications for bills of review. Buf- fington V. Harvey, 95 U. S. 99, 24 L. ed. 381; Acord v. Western Pocahontas Corp. 156 Fed. 989 ; Freeman v. Clay, 2 C. C. A. 587, 2 U. S. App. 254, 52 Fed. 7; Hoffman v. Knox, 1 C. C. A. 535, 8 U. S. App. 19, 50 Fed. 490; Putnam V. Day, 22 Wall. 65, 22 L. ed. 765; Jourolmon v. Ewing, 29 C. C. A. 41, 56 U. S. App. 149, 85 Fed. 106. The error must be on the face of the record proper, and not error claimed in the conclusions of law, which is simply a mistake of judgment. Ibid. ; Shelton v. Van Kleeck, 106 U. S. 534, 27 L. ed. 270, 1 Sup. Ct. Eep. 491; Quinton v. IsTeviHe, 81 C. C. A. 673, 152 Fed. 879 ; Wallamet Iron Bridge Co. V. Hatch, 9 Sawy. 643, 19 Fed. 347 ; Eeed v. Stanly, 89 BILL OF EEVIEW. 631 Fed. 430. If the decree is consistent with the record, without considering the evidence, a bill of review will not be allowed, lou must appeal to have the evidence considered as a means of correction. Jourobnon v. Ewing, 29 C. C. A. -±1, 56 U. S. App. 149, 85 Fed. 106; Acord v. Western Pocahontas Corp. 156 Fed. 989. Second. New Matter Arising Since the Decree. Whatever the new matter may be upon which you base your application for review, it must have arisen after the rendition of the decree. Hill v. Phelps, 41 C. C. A. 569, 101 Fed. 652 ; Camp Mfg. Co. v. Parker, 121 Fed. 195. A change by the Supreme Court of its ruling on a question of law and fact is not such new matter as will sustain a bill of review. Tilgh- man v. Werk, 39 Fed. 680; King v. Dundee Mortg. & Trust Invest. Co. 28 Fed. 33. If not error of law, it must be newly discovered evidence to bring the bill. Irwin v. Meyrose, 2 Mc- Crary, 244, 7 Fed. 533; Beard v. Burts, 95 U. S. 436, 24 L. ed. 486. Third. On Ground of Newly Discovered Evidence After the Term. I have already discussed newly discovered evidence as a basis for a rehearing during the term, but after the decree. Where the evidence has been discovered after the term and within the time in which a bill of review may be filed, you may make it a basis for a revision of the decree. It must be shown that it was evidence not known, and could not with reasonable dili- gence have been found before the term expired. Kelley Bros. V. Diamond Drill & Match Co. 142 Fed. 868 ; Taylor v. Fas- ten, 103 C. C. A. 509, 180 Fed. 364; Acord v. Western Poca- hontas Corp. 156 Fed. 989 ; Camp Mfg. Co. v. Parker, 121 Fed. 195 ; Birdsboro Steel Foundry & Mach. Co. v. Kelley Bros. 78 C. C. A. 101, 147 Fed. 713 ; Novelty Tufting Mach. Co. V. Buser, 85 C. C. A. 413, 158 Fed. 83, 84, 14 A. & E. Ann. Cas. 192 ; Hill v. Phelps, 41 C. C. A. 569, 101 Fed. 652 ; Pittsburgh, C. C. & St. L. E. Co. v. Keokuk & H. Bridge Co. 46 C. C. A. 639, 107 Fed. 781; Jorgenson v. Young, 69 C. C. A. 222, 136 Fed. 381. In addition you must show that 632 BELL OF EEVIEW. the evidence or new matter is material, and not cumulative, but if cumulative, it is iiighly pertinent and controlling in its in- fluence. Society of Shakers v. Watson, 23 C. C. A. 263, 47 U. S. App. 170, 77 Fed. 512 ; Jourolmon v. Ewing, 29 C. C. A. 41, 56 U. S. App. 149, 85 Fei 103; Keith v. Alger, 59 C. C. A. 552, 124 Fed. 35; Craig v. Smith, 100 U. S. 234, 25 L. ed. 580. ISTew matter, new evidence, and new witnesses simply for impeaching will not be sufficient. Ibid. ; United States V. Throckmorton, 98 U. S. 65, 66, 25 L. ed. 95. Xor when hearsay or otherwise inadmissible. Ward v. Ward, 79 C. C. A. 162, 149 Fed. 204. Xor that new evidence would show the decree technically erroneous, but it must further ap- pear that the party has been deprived of a substantial right. Keith V. Alger, 59 C. C. A. 552, 124 Fed. 32. Fourth. For Fraud in Procuring the Decree. A bill of review will lie for fraud where the fraud alleged was extrinsic to the matters tried, and not fraud raised in the issues, such as fraud practised upon the party, or the court during the trial, or in obtaining the judgment. Taylor v. Easton, 103 C. C. A. 509, 180 Fed. 364; Eeed v. Stanly, 89 Fed. 431; Hendryx v. Perkins, 52 C. C. A. 435, 114 Fed. 807; Kimberly v. Arms, 40 Fed. 549-558; Pittsburgh, C. C. k St. L. R. Co. V. Keokuk & H. Bridge Co. 46 C. C. A. 639, 107 Fed. 786; Graver v. Faurot, 64 Fed. 243, S. C. 22 C. C. A. 156, 46 U. S. App. 268, 76 Fed. 262 ; Terry v. Com- mercial Bank, 92 U. S. 454^56, 23 L. ed. 620, 621. Where the fraud arose in procuring the decree it must be attacked by an original bill and independent litigation. Do- wagiac Mfg- Co. v. McSherry Mfg. Co. 84 C. C. A. 38, 155 Fed. 524. See United States v. Gleeson, 33 C. C. A. 272, 62 U. S. App. 311, 90 Fed. 778, and United States v. Beebe, 34 C. C. A. 321, 92 Fed. 244; Setting Aside Decree for Fraud, chapter 101. As to allegations in bill, see Pittsburgh, C. C. & St L. E. Co. V. Keokuk & H. Bridge Co. 46 C. C.^A. 639, 107 Fed. 782; White v. Crow, 110 U. S. 184, 28 L. ed. 113, 4 Sup. Ct Eep. 71 ; Kimberly v. Arms, 40 Fed. 558. Accident, Mistake or Surprise. (See Chapter 101.) BILL OF REVIEW. 633 Bill Must Show Why Decree Not Performed. It is a rule that a bill of review will not be allowed if per- formance of the decree, or a sufficient reason why it has not been performed, has not been shown, and if not alleged in the bill, it is demurrable. Kimberly v. Arms, 40 Fed. 548 ; Ricker V. Powell, 100 U. S. 108, 25 L. ed. 528; Wallamet Iron Bridge Co. V. Hatch, 9 Sawv. 643, 19 Fed. 347. But see Davis v. Speiden, 104 U. S. 84, 85, 26 L. ed. 660, 661, Avhen the court may disregard the requirement. If the decree has not been performed, it must ask that the bill be allowed without per- formance, and especially when it can be shown, or is shown, that the performance would render nugatory the relief sought by the bill of review. Ibid. ; Kimberly v. Arms, 40 Fed. 555 ; Hoffman v. Knox, 1 C. C. A. 535, 8 U. S. App. 19, 50 Fed. 484. The rule, howevfir, would not apply if the decree does not require the party to do anything. Hobbs v. State Trust Co. 15 C. C. A. 604, 30 U. S. App. 393, 68 Fed. 618. Time of Filing a Bill of Review. Leave to file a bill of review can only be obtained from the court in which the decree was rendered and enrolled. Camp Mfg. Co. V. Parker, 121 Fed. 195. The time within which a bill of review should be filed is not fixed by statute or rule, but the courts, by analogy, require the bill to be filed within the time allowed by the statute for appeals, and not after. Ibid. ; Taylor v. Easton, 103 C. C. A. 509, 180 Fed. 364; Eeed v. Stanly, 89 Fed. 431; Jorgenson v. Young, 69 C. C. A. 222, 136 Fed. 381; Cocke v. Copenhaver, 61 C. C. A. 211, 126 Fed. 145 ; Halsted v. Forest Hill Co. 109 Fed. 823 ; Blythe Co. V. Hinckley, 49 C. C. A. 647, 111 Fed. 827 ; Chamberlin V. Peoria, D. & E. R. Co. 55 C. C. A. 54, 118 Fed. 32 ; Hen- drvx V. Perkins, 52 C. C. A. 435, 114 Fed. 804; Duncan v. Atlantic, M. & 0. E. Co. 4 Hughes, 125, 88 Fed. 840 ; Central Trust Co. V. Grant Locomotive Works, 135 U. S. 227, 34 L. ed. 105, 10 Sup. Ct. Rep. 736. In cases of fraud it is governed by the rule of laches, and the bill should show when the fraud was discovered. Taylor V. Easton, 103 C. C. A. 509, 180 Fed. 364. And when it" af- 634 BILL OF EEVIEW. firmatively appears that the bill was not filed within the period limited for appeals, it is subject to a demurrer; otherwise the issue must be raised by answer to the bill. Ibid. ; Copeland V. Bruuing, 104 Fed. 169. The rule as above stated applies, without exception, where errors appear in the decree or proceedings, because it should be brought within the time in which error could be appealed from. Taylor v. Charter Oak L. Ins. Co. 3 McCrary, 484, 17 Fed. 566 ; Chamberlin v. Peoria, D. & E. E. Co. 55 C. C. A. 54, 118 Fed. 32 ; Hendryx v. Perkins, 52 C. C. A. 435, 114 Fed. 804; Eeed v. Stanly, 89 Fed. 433; Dunlevy v. Dunlevy, 38 Fed. 462; McDonald v. Whitney, 39 Fed. 467; Camp Mfg. Co. V. Parker, 121 Fed. 195. But when founded on new mat- ter or newly discovered evidence, then the review will be al- lowed, if filed within a reasonable time after discovery. Camp Mfg. Co. V. Parker, 121 Fed. 195 ; Acord v. Western Pocahon- tas Corp. 156 Fed. 989. It is largely a question of diligence. Kissinger-Ison Co. v. Bradford Belting Co. 59 C. C. A. 221, 123 Fed. 91. The time for filing a bill of review when based on error ap- parent being controlled by analogy to the statute giving a cer- tain time for appeal, the rule would be that if the right of ap- peal lies to the circuit court of appeals, then by the act of March 3, 1891, six months is allowed; but if the right of ap- peal lies from the circuit to the Supreme Court under section 5 of the act of 1891, then you may sue out a bill of review within two years, that being the time limited for such appeals by U. S. Eev. Stat. sec. 1008, U. S. Comp. Stat. 1901, p. 715, provided, however, that the circuit court certifies within the term that the jurisdiction of the circuit court is involved. Upon failure to so certify there is no right of appeal, and conse quently no right to a bill of review. Eeed v. Stanly, 97 Fed. 521; Blythe Co. v. Hinckley, 49 C. C. A. 647, 111 Fed. 837; Chamberliu v. Peoria, D. & E. E. Co. 55 C. C. A. 54, 118 Fed. 33 ; Taylor v. Easton, 103 C. C. A. 509, 180 Fed. 364. Leave of Court to File. Where the application for a bill of review is based on error apparent in the decree or the proceedings, it may be filed as of BILL OF REVIEW. 635 right without leave of the court. Acord v. Western Pocahontas Corp. 156 Fed. 989-996 ; Eicker v. Powell, 100 U. S. 104, ■25 L. ed. 527; Camp Mfg. Co. v. Parker, 121 Fed. 195; Eitchie v. Burke, 109 Fed. 16 ; Copeland v. Bruning, 104 Fed. 170: Hendryx v. Perkins, 52 C. C. A. 435, 114 Fed. 809; Thompson v. Schenectady E. Co. 119 Fed. 638. It is regard- ed as in the nature of a writ of error ; so also when filed to set aside for fraud, (Eitchie v. Burke, 109 Fed. 16; Hendryx v. Perkins, 52 C. C. A. 435, 114 Fed. 807) ; but when based on newly discovered facts dehors the record, then permission to file the bill must be granted by the court (Acord v. Western Po- cahontas Corp. 156 Fed. 995; Eicker v. Powell, 100 U. S. 107, 25 L. ed. 52S ; Hendryx v. Perkins, 52 C. C. A. 435, 114 Fed. 809 ; Camp llfg. Co. v. Parker, 121 Fed. 196) ; and it rests entirely in the court's discretion (Thomas v. Brockenbrough, 10 Wheat. 151, 6 L. ed. 289 ; Hendryx v. Perkins, 52 C. C. A. 435, 114 Fed. 808. See Central Trust Co. v. Grant Loco- motive Works, 135 IJ. S. 226, 34 L. ed. 104, 10 Sup. Ct. Eep. 736). When the bill rests partly on grounds requiring leave to file and partly oil errors of law, leave to file must be granted, or a motion to dismiss the bill will be allowed, as it must be treated as a whole. Kimberly v. Arms, 40 Fed. 558 ; Eicker v. Pow- ell, 100 r. S. 109, 25 L. ed. 528. Leave to file a bill of review must be obtained from the court rendering the decree. Camp Mfg. Co. v. Parker, 121 Fed. 195. Not Appealable. When the granting of a bill of review is discretionary, the granting or refusing it is not appealable, but proceedings after granting are. Hendryx v. Perkins, 52 C. C. A. 435, 114 Fed. 808, 809. Form to Be Used. Title as in bill; address to the Circuit Judges for District of Applicant (as plaintifif) vs. all other parties to the original suit as defendants. 636 BILL OF EEVLEW. Your petitioner would show unto your Honors that on the day of , A. D. 19 ... , C. D. hereinafter styled defendant, exhibited his bill of complaint in the United States Circuit Court for the Dis- trict of against your petitioner, and therein he alleged (state sub- stance of bill ) . That your petitioner appeared and answered said bill on the day of , A. D. 19. . ., as follows (here state substance of answer) ; that issue was joined and proof taken and the cause heard on the day of , A. D. . . ., when a decree was rendered and recorded in said cause as follows (here insert decree) Your petitioner here shows unto your Honors that said decree is errone- ous and it would be inequitable to permit it to stand as entered in this cause for that (here insert errors complained of). That no decree should have been rendered, but the bill should have been dismissed. That in consideration of the error thus apparent your petitioner prays that it he reriewed and reversed, and no further proceedings taken thereon. To the end, therefore, that the defendant may show cause why the peti- tioner should not have the relief prayed for, your petitioner prays that a subpoena be directed to the said C. D., defendant, commanding him at a certain time to show cause why the decree shoiUd not be reviewed and reversed as prayed for. R. F., Solicitor, etc. Swear to the petition as follows: I, A. B., plaintiff in the foregoing petition for review, being duly sworn, say that I have read the same and that the matters and things set forth therein are true. A. B., Plaintiff. Sworn to before me this day of , A. D. 19 . . . Xotary. If the petition rests upon new matter arising since the de- cree, or newly discovered evidence, yon must set forth that: Since the time of rendering and recording the decree, you have discovered new matter, or new evidence material to the case, which is as follows: (Here insert specifically the new matter or the new evidence discovered, with averments to show materiality. If new evidence, attach, if possible, the affidavits of the newly discovered witnesses, showir" t^e new evidence and show specifically that you were not in default in t! overing the evi- dence sooner.) Then proceed — Wherefore said decree should be reviewed, reversed, and set aside, and to the end that plaintiff should be permitted to prove the matter aforesaid, he prays process of subpoena, etc. BILL OF EEVIEW. 637 If the decree is such that you are required to perform some act, etc., set up why you have not done so as has been previous- ly stated. Parties to Bills of Review. The rule is that all parties to the original suit must be made parties to a bill of review. The applicant is plaintiff, and all other parties are defendants, if necessary parties. King v. Dundee Mortg. & T. Invest. Co. 28 Fed. 33 ; Frankfort v. De- posit Bank, 120 Fed. 167, 168 ; Perkins v. Hendryx, 127 Fed. 448; Thompson v. Maxwell Land-Grant & E. Co. 95 U. S. 397, 24 L. ed. 483. However, if codefendants were not neces- sary parties in the original bill they may be omitted. Id. Who May Attack Decree. Creditors appearing before a master in a creditors' suit, who have filed intervening petitions to prove their claims, become parties to the record, and may attack the decree by petition (Continental Trust Co. v. Toledo, St. L. & K. C. E. Co. 99 Fed. 171) ; but not parties brought into appellate proceedings by citation, who do not avail themselves of the opportunity of appeal. Ibid. A party accepting the benefit of a decree cannot review it (HiU V. Phelps, 41 C. C. A. 569, 101 Fed. 654), or where he disclaims interest. Brigham City v. Toltec Eanch Co. 41 C. C. A. 222, 101 Fed. 85. Bill of Review After Appeal. A bill of review will not be sustained if an appeal has been applied for and allowed, but not an attempted appeal when there was no right of appeal, if bill of review is filed in time. Ensminger v. Powers, 108 F. S. 302, 303, 27 L. ed. 736, 2 Sup. Ct. Eep. 643; Kimberly v. Arms, 40 Fed. 548-551; Blythe Co. v. Hinckley, 49 C. C. A. 647, 111 Fed. 838, 839. However, such appeal does not operate to suspend the time in which the bill of review should have been sued out (Ibid. ; see Ensminger v. Powers, 108 U. S. 302, 27 L. ed. 736, 2 Sup. 638 BILL OF EEVIEW. Ct. Eep. 643), nor can it be brought in the circuit court after the case has been passed upon by the appellate court (Conti- nental Trust Co. V. Toledo, St. L. & K C. K. Co. 99 Fed. 171-175; Central Trust Co. v. Evans, 19 C. C. A. 563, 43 U. S. App. 214, 73 Fed. 562; Southard v. Eussell, 16 How. 547-570, 14 L. ed. 1052-1062; Camp Mfg. Co. v. Parker, 121 Fed. 195 ; Durant v. Essex Co. (Durant v. Storrow) 101 U. S. 555, 25 L. ed. 961 ; Franklin Sav. Bank v. Taylor, 4 C. C. A. 55, 9 U. S. App. 406, 53 Fed. 866 ; Hendryx v. Per- kins, 52 C. C. A. 435, 114 Fed. 809; see Watson v. Stevens, 53 Fed. 31, as to granting right in mandate; Kingsbury v. Buckner, 134 U. S. 671, 33 L. ed. 1055, 10 Sup. Ct. Eep. 638) ; but vou may apply to the appellate court for permission to file a bill of review (Xovelty Tufting Mach. Co. v. Buser, 85 C. C. A. 413, 158 Fed. 83, 14 A. & E. Ann. Cas. 192 ; Camp Mfg. Co. v. Parker, 121 Fed. 195 ; Lafferty Mfg. Co. V. Acme R. Signal & Mfg. Co. 74 C. C. A. 521, 143 Fed. 321; Society of Shakers v. Watson, 23 C. C. A. 263, 47 U. S. App. 170, 77 Fed. 512; Seymour v. White County. 34 C. C. A. 240, 92 Fed. 115 ; Pittsburgh, C. C. & St. L. E. Co. v. Keo- kuk & H. Bridge Co. 46 C. C. A. 639, 107 Fed. 781; Frank- fort V. Deposit Bank, 120 Fed. 165 ; McClintock v. Pawtucket, 180 Fed. 320) ; and this may be done after case is affirmed and mandate issued, if based on newly discovered evidence (Laffer- ty Mfg. Co. V. Acme E. Signal & Mfg. Co. 74 C. C. A. 521, 143 Fed. 321; Municipal Signal Co. v. Gamewell Fire Alarm Teleg. Co. 77 Fed. 452; Ee Gamewell Fire Alarm Teleg. Co. 20 C. C. A. Ill, 33 U. S. App. 452, 73 Fed. 908; Pittsburgh, C. C. & St. L. E. Co. V. Keokuk & H. Bridge Co. 46 C. C. A. 639, 107 Fed 785). It was held, however, in Eector v. Fitzgerald, 8 C. C. A. 277, 19 U. S. App. 423, 59 Fed. 808-811, that the pending application for a bill of review was not so far lis pendens as to affect a sale under the decree, when sold in good faith by the successful party. While a bill of review will not lie after an appeal, except with the permission of the appellate court, yet an original bill in the nature of a bill of review may be filed in the court in which the original judgment was obtained, without permission, when sought to be set aside for fraud (Eitchie v. Burke, 109 BILL OF REVIEW. 639 Fed. 16, and see Pittsburgh, C. C. & St. L. K. Co. v. Keokuk & H. Bridge Co. 46 C. C. A. 639, 107 Fed. 786), if the fraud •was practiced upon the court, or the party during the trial, and not involved in the subject-matter of the litigation, or the issues that were tried. See Graver v. Faurot, 22 C. C. A. 156, 46 U. S. App. 268, 76 Fed. 257; Marshall v. Holmes, 141 TJ. S. 596-599, 35 L. ed. 872-874, 12 Sup. Ct. Kep. 62. Who to Determine Application. When an order of the circuit court of appeals stays the man- date the case is kept in the jurisdiction of that court (Burget V. Eobinson, 59 C. C. A. 260, 123 Fed. 262), and the leave to file a bill of review in the court below must be made to the circuit court of appeals, but the court below must determine the application on its merits. Frankfort v. Deposit Bank, 59 C. C. A. 539, 124 Fed. 18. After mandate is sent Sown it should be tried in the circuit court of appeals unless facts arose in the court below after man- date, in which case, for convenience, the circuit court of appeals will require the court below to hear it. Keith v. Alger, 69 C. C. A. 552, 124 Fed. 32. CHAPTER CL VACATING DECEEE. ITo rule is tetter settled than that a Federal court cannot vacate a decree after the term, except in equity upon bills of review, or upon vsrrits of error coram vobis in cases at law (Al- len V. Wilson, 21 Ted. 881 ; Morgans's L. & T. R. & S. S. Co. V. Texas C. E. Co. 32 Fed. 530, and cases cited ; McGregor V. Vermont T>oan & T. Co. 44 C. C. A. 146, 104 Fed. 709 ; Bronson v. Sehulten, 104 TJ. S. 410, 26 L. ed. 797 ; Austin v. Eiley, 55 Fed. 833 ; Doe v. Waterloo Min. Co. 60 Fed. 643 ; Petersburgh Sav. & Ins. Co. v. Dellatorre, 17 C. C. A. 310, 30 U. S. App. 504, 70 Fed. 645 ; Manning v. German Ins. Co. 46 C. C. A. 144, 107 Fed. 53; Farmers' Loan & T. Co. v. Iowa Water Co. 80 Fed. 467 ; Craven v. Canadian P. E. Co. 62 Fed. 171 ; Mootry v. Grayson, 44 C. C. A. 83, 104 Fed. 613 ; Wetmore v. Karrick, 205 U. S. 141, 51 L. ed. 745, 27 Sup. Ct. Eep. 434; PoUitz v. Wabash E. Co. 180 Fed. 951), unless for want of jurisdiction (PoUitz v. Wabash E. Co. 180 Fed. 951), or unless a motion to vacate was made at the term in which the decree was entered, and continued over by the court (Stuart V. St. Paul, 63 Fed. 644; Graham v. Swayne, 48 C. C. A. 411, 109 Fed. 366 ; Amy v. Watertown, 130 IT. S. 313, 32 L. ed. 950, 9 Sup. Ct. Eep. 530), or unless for fraud, as before stated. (See Fraud in Procuring Decree, chapter 100.) After the circuit court of appeals has affirmed the decree, the circuit court cannot entertain a bill to modify or vacate it. (See "Bill of Eeview.") Continental Trust Co. v. Toledo, St. L. & K C. E. Co. 99 Fed. 171 ; Ee Sanford Fork & Tool Co. 160 U. S. 255, 40 L. ed. 416, 16 Sup. Ct. Eep. 291 ; Ee Potts. 166 U. S. 266, 41 L. ed. 995, 17 Sup. Ct. Eep. 520; Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. 19 C. C. A. 25, 43 U. S. App. 47, 72 Fed. 552; Ee Gamewell Fire- Alarm Teleg. Co. 20 C. C. A. Ill, 33 U. S. App. 452. 73 Fed. 910; 640 VACATING DECEEE. 641 Walker v. Brown, 86 Fed. 365 ; Illinois ex rel. Hunt v. Illi- nois C. E. Co. 3-i C. C. A. 138, 91 Fed. 957. Setting Aside Decree for Fraud. When the fraud alleged is extrinsic to the matters tried, such as when practised upon the court, or a party whereby his case was not fully presented, a bill of review will lie ; but the ques- tion has arisen whether by an original bill, or a bill in the na- ture of a bill of review, you can set aside a decree for fraud, which consisted in false swearing and perjury by witnesses in the case. Graver v. Faurot, 64 Fed. 241, 242. In consider- ing this case the court calls attention to a distinct conflict be- tween the Throckmorton Case, in 98 U. S. 61, 25 L. ed. 93, and the case of Marshall v. Holmes, in 141 U. S. 598, 35 L. ed. 873, 12 Sup. Ct. Eep. 62. In the former case it was decided that only when the fraud is of such a character that it is apparent that there was no real contest or hearing of the case by reason of it, will the bill be maintained; and that a judgment founded on a fraudulent instrument, as in the case at bar, or on perjury or false swear- ing, could not be set aside by an original bill, or a bill in the nature of a bill of review. In ilarshall v. Holmes the judgment was obtained on an al- leged forged and false instrument, and the court entertained an original bill to set the judgment aside. The court says: "Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or was prevented from doing so by fraud or accident immixed with negligence, will justify an application to chancery." Perry v. Johnston, 95 Fed. 323-325. The principle announced is undoubtedly correct, but clearly not applicable to the facts of the case at bar as a ground to sus- tain an original bill to set the judgment aside. Several efforts seem to have been made to get the Supreme Court to settle the conflict, but it declined to do so. (See "Fraud in Procuring Decree," chapter 100.) Graver v. Faurot, 162 U. S. 436, 40 L. ed. 1031, 16 Sup. Ct. Eep. 799. In Graver v. Faurot, 64 Fed. 241, the judgment was at- S. Eq.— 41. 642 VACATIlfa DECEEE. tacked on the ground that it was procured by false swearing and perjury, and the court, unable to reconcile the cases, fol- lowed the Throckmorton Case. In United States v. Gleeson, 33 C. C. A. 272, 62 U. S. App. 311, 90 Fed. 778, a case arose where the judgnaent was sought to be set aside on the ground that it was procured by perjury, and the court followed the Throckmorton Case and dismissed the bill. Brooks v. O'Hara, 8 Ted. 533 ; Kimberly v. Arms, 40 Fed. 558; Vance v. Burbank, 101 TJ. S. 519, 25 L. ed. 931; United States v. Throckmorton, 98 U. S. 66, 25 L. ed. 95 ; Holton v. Davis, 47 C. C. A. 246, 108 Fed. 150. In these cases it seems settled that a decree will not be set aside upon the attack of one of the parties to it by an original bill, or a bill in the nature of a bill of review, upon the ground of fraud in procuring it, unless the fraud is extrinsic or col- lateral. Ibid.; Xelson v. Meehan, 12 L.Il.A.(X.S.) 374, 83 C. C. A. 597, 155 Fed. 9 ; United States v. Beebe, 180 U. S. 343, 45 L. ed. 563, 21 Sup. Ct. Eep. 371 ; Bailey v. Willi- ford, 126 Fed. 803, Same Case, 69 C. C. A. 226, 136 Fed. 382; ^rational Surety Co. v. State Bank, 61 L.R.A. 394, 56 C. C. A. 657, 120 Fed. 593 ; Graver v. Faurot, 22 C. C. A. 156, 46 U. S. App. 268, 76 Fed. 260 ; United States v. White, 9 Sawy. 125, 17 Fed. 562; Reed v. Stanly, 89 Fed. 433; Pittsburgh, C. C. & St. L. E. Co. v. Keokuk & H. Bridge Co. 46 C. C. A. 639, 107 -Fed. 786 ; United States v. Minor, 26 Fed. 672 ; Andes v. Millard, 70 Fed. 517. Bill to Impeach Consent Decree. A bill will not lie to impeach a consent decree (Thompson V. Maxwell Land Grant & R. Co. 95 U. S. 391, 24 L. ed. 481), unless consent without authority. (White v. Joyce [White V. Miller] 158 U. S. 147, 39 L. ed. 928, 15 Sup. Ct. Rep. 788; but see Craven v. Canadian P. R. Co. 62 Fed. 171). On Ground of Mistake or Accident. A circuit court may entertain a bill to set aside a decree on the ground of mistake, accident, or surprise, though the time for appeal or bill of review has passed. (See Dewey v. Strat- VACATING DECEEE. 643 ton, 52 C. C. A, 1.15. 114 Fed. 170: Perkins v. Hendryx, 149 Fed. 526; S. C. 52 C. C. A. 435,' 114 Fed. 801-814-821; Brown v. Biiena Vista County. 95 U. S. 157, 24 L. ed. 422; Pittsburgh. C. C. ,^- St. L. E. Co. 84 C. C. A. 453, 156 Fed. 776, 777 ; United Statrs ex rel. Mudsill ]Min. Co. v. Swan, 13 C. C. A. 77, 31 U. S. App. 112, 65 Fed. 647 ; Fisheries Co. v. Lennen, 65 C. C. A. 79, 130 Fed. 533 : Davis 01L CIRCUIT TO SUPREME COURT. O ( -3 will not seafcli for it (Shields y. Coleman, 157 U. S. 168, 39 L. ed. 660, 15 Sup. Ct. Eep. 570 ; Interior Constr. & Improv. Co. Y. Gibney, 160 U. S. 219, 40 L. ed. 401, 16 Sup. Ct. Eep. 27-2; Van Wagenen y. Sewall, 160 U. S. 369, 40 L. ed. 460, 16 Sup. Ct. Eep. 370). The word "certilV" need not be used if there is a plain dec- laration that the single matter sent up is the question of juris- diction. Ibid.; Chappell y. United States, 160 U. S. 508, 40 L. ed. 513, 16 Sup. Ct. Eep. 397. The entry of a judge, "Appeal allowed," upon a petition, was held not equivalent to a certificate. The Bayonne, 159 U. S. 693, 40 L. ed. 309, 16 Sup. Ct. Eep. 1S5; Chappell v. United States, 160 U. S. 499, 40 L. ed. 510, 16 Sup. Ct. Eep. 397; Arkansas v. Schlier- holz, 179 U. S. 600, 45 L. ed. 336, 21 Sup. Ct. Eep. 229. So filing an assignment of errors and allowance of an appeal is not an equivalent. As said, then, the safest method of proceed- ing is to apply to the court for a certificate, which should be specific in stating the question of jurisdiction. Ibid. ; Carey v. Houston &: T. C. E. Co. 150 U. S. 171, 37 L. ed. 1042, 14 Sup. Ct. Eep. 63. Granted in Term. It is absolutely necessary that this certificate should be grant- ed during the term at which the judgment was entered (Colvin V. Jasksonville, 158 U. S. 456, 39 L. ed. 1053, 15 Sup. Ct. Eep. 866 : Ee Lehigh Min. & Mfg. Co. 156 U. S. 327, 39 L. ed. 440, 15 Sup. Ct. Eep, 375; The Bayonne, 159 U. S. 693, 40 L. ed. 309. 14 Sup. Ct. Eep. 185 ; Chamberlin v. Peoria, T>. & E. E. Co. 55 C. C. A. 54, 118 Fed. 32), and that the judgment in which the certificate is granted is final (Gates v. Bucki, 53 Fed. 961 ; Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 1S5 r. S. 285, 46 L. ed. 913, 22 Sup. Ct. Eep. 681; McLish V. Eoff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Eep. 118 ; Carey v. Houston & T. C. E. Co. 150 U. S. 171, 37 L. ed. 1042. 14 Sup. Ct. Eep. 63 ; United States v. Jahn, 155 U. S. 109, 39 L. ed. 87, 15 Sup. Ct. Eep. 39) ; and against the ap- pellant. (Ibid.) It is said in Pullman's Palace Car Co. v. 676 APPEALS FROM CIECCIT TO SUPREME COURT. Central Transp. Co. 71 Fed. 809, that this right of appeal ia absolute, and cannot be controlled by the circuit judge to either allow or disallow; the Supreme Court alone determines the right. Dudley v. Lake County, 43 C. C. A. 184, 103 Fed. 209. Form of Certificate. A. B. ") ' In the United States Circuit Court vs. \ for the District of , C. D. J sitting at This cause came on to be heard upon the application for an injunction as prayed in the bill of complaint, and for the appointment of a receiver, etc. ( or whatever was the purpose of the bill ) . The bill alleged, etc. The defendant denied the amount in issue exceeded the sum of two thou- sand dollars, etc. (or state so much of the bill as shows the question in- volved ) . Xow, therefore, it is certified that the question of the jurisdiction of this court upon the grounds heretofore stated, to wit: (state the issue) was the issue upon which the case was decided, I having found that fcon- clusion of court on the issue) it was the duty of the court to dismiss the bill, which was accordingly done (or whatever action was taken) ; and I further certify that it is the only question of law upon the pleading and process for the decision of the Supreme Court of the United States; that the certificate was granted at the term in which the judgment in the cause was entered. W. E., United States Circuit Judge. See Colvin v. Jacksonville, 158 U. S. 458, 39 L. ed. 1053, 15 Sup. Ct. Ptep. 866, for certificate held sufficient. This certificate applies where the question of jurisdiction is decided for the defendant and disposes of the case, and it may be signed by the district judge, though the circuit judge decided the case. Huntington v. Laidley, 176 U. S. 668, 44 L. ed. 630, 20 Sup. Ct. Eep. 526. The Supreme Court has appellate jurisdiction in bankruptcy proceedings, where amount exceeds two thousand doUars, by appeal direct from the bankruptcy courts. IS'ew Code, sec. 252. CHAPTER CVL APPEALS UNBEE CLAUSES 4, 3, AND 6, OF SECTION 5, ACT OF 1891. We have so far discussed appeals from the circuit court to the Supreme Court under clause 1 of section 5, act of 1891. Under clauses 4, 5, and 6, of section 5, act of 1891, it is pro- vided that a direct appeal may be taken from the circuit court to the Supreme Court of the United States, when the construc- tion or application of the Constitution of the United States is involved, or the constitutionality of any law of the United States, or the construction or validity of any treaty is drawn in question;* or in cases in which the constitution or law of any State is claimed to be in contravention of the Constitution of the United States. The provisions permit, when any of the enumerated Federal questions arise and are the controlling questions in the determination of the case, an appeal direct to the Supreme Court from the circuit court, although all other questions were open for determination (see appendix for act of March 3rd, 1891). Carey v. Houston & T. C. E. Co. 150 U. S. ISl, 37 L. ed. 1044, 14 Sup. Ct. Eep. 63 ; Homer v. United States, 143 U. S. 570, 36 L. ed. 266, 12 Sup. Ct. Eep. 522; Carter v. Eoberts, 177 U. S. 496, 44 L. ed. 861, 20 Sup. Ct. Eep. 713 ; Cincinnati, H. & D. E. Co. v. Thiebaud, 177 U. S. 619, 620, 44 L. ed. 912, 913, 20 Sup. Ct Eep. 822. And if the jurisdiction of the circuit court rests on the ground that the suit arises under any of these clauses, then the jurisdiction of the Supreme Court is exclusive. Hastings v. Ames, 15 C. C. A. 628, 32 U. S. App. 485, 68 Fed. 728; American Sugar Eef. Co. V. Xew Orleans, 181 U. S. 277, 45 L. ed. 859,^21 Sup. Ct. Eep. 646 ; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 295, 46 L. ed. 548, 22 Sup. Ct. Eep. 452; Spreckels Sugar Eef. Co. v. McClain, 192 U. S. 407, 48 L. ed. 499, 24 Sup. Ct. Eep. 376; Wright v. MacFarlane, 58 C. C. A. 570, 677 678 APPEALS UXDEE CIS. 4^G OF SEC. 5, ACT OF 1891. 122 Fed. 770; Macon v. Georgia Packing Co. 9 C. C. A. 262, 13 U. S. App. 592, 60 Fed. 783 ; Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Eep. 174; Boston & M. K. Co. V. Gokey, 79 C. C. A. 64, 149 Fed. 44, 9 A. & E. Ann. Cas. 384; Waterford V. Elson. 7S C. C. A. 675, 149 Fed. 91; Halpin V. Amerman, 70 C. C. A. 462, 138 Fed. 548 ; St. Louis Cot- ton Compress Co. v. American Cotton Co. 60 C. C. A. 80, 125 Fed; 196. But if the jurisdiction of the circuit court attaches on ground of diversity, and afterwards issues are raised under these clauses, then you may go direct to the Supreme Court, or to the circuit court of appeals. Huguley Mfg. Co. v. Galeton Cotton MiHs, 184 U. S. 295, 46 L. ed. 548, 22 Sup. Ct. Eep. 452; Spreekles Sugar Eef. Co. v. McClain, 192 TJ. S. 407, 408, 48 L. ed. 499, 500, 24 Sup. Ct. Eep. 376; Field v. Barber Asphalt Paving Co. 194 U. S. 61S, 4S L. ed. 1142, 24 Sup. Ct. E«p. 784; Davis & F. Mfg. Co. v. Los Angeles, 189 U. S. 207, 47 L. ed. 778, 23 Sup. Ct. Eep. 498. But the option is lost by taking an appeal to the circuit court of appeals. Mc- Fadden v. United States, 213 U. S. 288, 53 L. ed 801, 29 Sup. Ct. Eep. 490 ; Eobinson v. Caldwell, 165 TJ. S. 359, 41 L. ed. 745, 17 Sup. Ct. Eep. 343. It is said in Ayres v. Polsdorfer, 187 TJ. S. 585, 47 L. ed. 314, 23 Sup. Ct. Eep. 196, that when the jurisdiction of the circuit court is invoked solely on the ground of diversity of citizenship, two classes of cases may arise, one in which any of the questions expressed in section 5 of the act of 1S91 may appear in the prosecution of the case, and another class where other questions of Federal character not expressed in section 5 may arise. In the first class of cases you may appeal direct to the Supreme Court or go to the circuit court of appeals, and in the second class you must appeal to the circuit court of aj)- peals, and its judgment will be final, and you can therefore only reach the Supreme Court by certiorari. But when an appeal under any of these clauses is taken, it must really and substantially appear that it involves a dispute or controversy under one or more of them, and that an issue is presented upon the determination of which the suit depends. Cincinnati, H. & D. E. Co. v. Thiebaud, 177 U. S. 619, 44 L. ed. 912, 20 Sup. Ct. Eep. 822 ; Hastings v. Ames, 15 C. C. A 628, 32 U. S. App. 485, 68 Fed. 728. The Federal ques- APPEALS UNDER CLS. 4—6 OF SEC. 5, ACT OF 1891. 679 tion must be the controlling one, and real and substantial (Carey V. Houston, & T. C. E, Co. 150 U. S. 181, 37 L. ed. 1044, 14 Sup. Ct. Eep. 63 ; Horner v. United States, 143 U. S. 570, 36 L. ed. 266, 12 Sup. Ct. Eep. 522 ; Scott v. Donald, 165 U. S. 73, 74, 41 L. ed. 633, 634, 17 Sup. Ct. Eep. 265; Lampasas V. Bell, 180 IJ. S. 282, 45 L. ed. 530, 21 Sup. Ct. Eep. 368) ; and it must so appear in the record by a statement in legal and logical form, such as is required in good pleading (Lampasas X. Bell, ISO IJ. S. 283, 45 L. ed. 530, 21 Sup. Ct. Eep. 368; Western U. Teleg. Co. v. Ann Arbor E. Co. 178 U. S. 239, 44 L. ed. 1052, 20 Sup. Ct. Eep. 867 ; Press Pub. Co. v. Mon- roe, 164 TJ. S. Ill, 41 L. ed. 369, 17 Sup. Ct. Eep. 40; World's Columbian Exposition v. United States, 6 C. C. A. 58, 18 U. S. App. 42, 56 Ped. 667). You will notice that there is no limitation in these clauses as in the first clause, confining the investigation of the Supreme Court to question of jurisdiction alone, nor is a certificate, as under the first clause, required. Robinson v. Caldwell, 165 U. S. 362, 41 L. ed. 746, 17 Sup. Ct. Eep. 343. So when the Su- preme Court does take jurisdiction under any or all of these three clauses, it will decide all other questions involved in the case. Davis & P. Mfg. Co. v. Los Angeles, 189 U. S. 217, 47 L. ed. 780, 23 Sup. Ct. Eep. 498 ; Chappell v. United States, 160 U. S. 509, 40 L. ed. 513, 16 Sup. Ct. Eep. 397; Press Pub. Co. V. Monroe, 164 U. S. Ill, 41 L. ed. 369, 17 Sup. Ct. Eep. 40; Scott v. Donald, 165 U. S. 72, 73, 41 L. ed. 632, 634, 17 Sup. Ct. Rep. 265 ; Homer v. United States, 143 U. S. 577, 36 L. ed. 269, 12 Sup. Ct. Eep. 522. May the Circuit Court of Appeals Determine Qusstions of Jurisdiction. To emphasize the jurisdiction of the Supreme Court in cases involving causes for appeal under section 5, I will briefiy dis- cuss whether the circuit court of appeals can determine the question of the jurisdiction of the lower court, when properly raised; that is, in view of the act of 1891, can a circuit court of appeals ever determine the issue of the jurisdiction of the trial court in causes appealed to it, in which that issue is raised ? In Eust V. United Waterworks Co. 17 C. 0. A. 16, 56 U. S. 680 APPEALS u:n:dee cls. 4^6 of sec. 5, act of 1891. App. 167, 70 Fed. 132, it is held that Avhen a final judgment is rendered in the circuit or district courts of the United States, in "which the issue of jurisdiction was raised below, that if the losing party should elect to take the whole case to the circuit court of appeals, it can determine the jurisdiction of the court below with the other issues of law, and fact. In the fifth circuit. Judge Pardee, in American Sugar Eef. Co. V. Johnson, 9 C. C. A. 110, 13 U. S. App. 681, 60 Fed. 509, and cases cited, in construing section 5 of the act of 1891, in the light of McLish v. Eoff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Eep. 118, and the Carey Case in 150 U. S. 171, 37 L. ed. 1042, 14 Sup. Ct. Eep. 63, decides that the question of the jurisdiction of the trial court can be considered with the other issues in the case, Baltimore & 0. E. Co. v. Meyers, 10 C. C. A. 485, 18 U. S. App. 569, 62 Fed. 371; The Presto, 35 C. C. A. 394, 93 Fed. 522, and says that the statement that the question of jurisdiction be certified to the Supreme Court by the circuit court of appeals does not make it obligatory, but is a matter of discretion when needing instruction on the point. United States v. Jahn, 155 U. S. 109-114, 39 L. ed. S7-90, 15 Sup. Ct. Eep. 39 ; Campbell v. Golden Cycle Min. Co. 73 C. C. A. 260, 141 Fed. 610; McLish v. EofF, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Eep. 118; McGilvra v. Eoss, 90 C. C. A. 398, 164 Fed. 604, 605; Eust v. United \Yatev Works Co. 17 C. C. A. 16, 36 U. S. App. 167, 70 Fed. 132; Pikes Peak Power Co. v. Colorado Springs, 44 C. C. A. 333, 105 Fed. 1; Boston & M. E. Co. v. Gokey, 210 U. S. 155, 52 L. ed. 1002, 28 Sup. Ct. Eep. 657 ; Eeliable Incubator & Brooder Co. V. Stahl, 44 C. C. A. 657, 105 Fed. 663; Crabtree v. Mad- den, 4 C. C. A. 408, 12 U. S. App. 159, 54 Fed. 426; Barling V. Bank of British X. A. 1 C. C. A. 510, 7 U. S. App. 194, 50 Fed. 260; King v. McLean Asylum, 12 C. C. A. 139, 21 U. S. App. 407, 64 Fed. 327; American Sugar Eef. Co. V. Johnson, 9 C. C. A. 110, 13 U. S. App. 681, 60 Fed. 503-508 ; Baltimore & O. E. Co. v. Meyers, 10 C. C. A. 485, 18 U. S. App. 569, 62 Fed. 371 ; Texas & P. E. Co. v. Bloom. 9 C. C. A. 300, 23 U. S. App. 143, 60 Fed. 979 ; Green v. Mills, 30 L.E.A. 90, 16 C. C. A. 516, 25 U. S. App. 383, 69 Fed. 852. It is apparent, then, from the cases, when the judgment of APPEALS riv-DEE CLS. 4-6 OF SEC. 5, ACT OF 1891. 681 the court below is not upon the question of jurisdiction alone, but upon various issues involving the merits of the case, and an appeal has been taken on the whole case to the circuit court of appeals, that court may decide the whole case, and the ques- tion of jurisdiction must be left with that court to decide wheth- er it is of sufficient gravity to warrant its submission to the Supreme Court Watkins v. King, 55 C. C. A. 290, US Fed. 52-i; Keyser v. Lowell, 54 C. C. A. 574, 117 Fed. 401, and authorities cited. In the second circuit it is held that when the pleadings and proof do not show diversity, the circuit court of appeals can- not determine the question. Sun Printing & Pub. Asso. v. Edwards, 58 C. C. A. 162, 121 Fed. 827. See, also. United States V. Lee Yen Tai, 51 C. C. A. 299, 113 Fed. 467 ; and Fisheries Co. v. Lennen, 65 C. C. A. 79, 130 Fed. 534. ' But if the case involves other questions on the merits, the circuit court of appeals may decide them and certify the jurisdictional question to the Supreme Court ■Jurisdiction of Circuit Court of Appeals Wlien Case Based on Clauses J^, 5 and 6. We may now inquire if the court of appeals can take juris- diction of cases involving grounds of appeal set forth ia clauses 4, 5, and 6 of section 5 of the act of 1891, which provide for an appeal direct to the Supreme Court. It has been decided that when cases arise which are controlled by a construction or application of the Constitution of the United States, a direct appeal lies to the Supreme Court, and if carried to the circuit court of appeals those courts may decline to take jurisdiction. Carter v. Roberts, 177 U. S. 496, 44 L. ed. 861, 20 Sup. Ct Rep. 713; Kentucky State Bd. of Control V. Lewis, 100 C. C. A. 208, 176 Fed.' 556. But when ques- tions designated in these clauses are mixed with other questions in the case going to the merits, those courts may take jurisdic- tion and certify the constitutional question, which beina: an- swered, they may proceed to judgment, or those courts may decide the case on the merits in the first instance. Wirgaman v. Persons, 62 C. C. A. 63, 126 Fed. 449-455 see cases cited; American Sugar Ref. Co. v. New Orleans, 181 U. S. 282, 682 APPEALS UNDEE CLS. 4—6 OF SEC. 5, ACT OF 1891. 45 L. ed. 862, 21 Sup. Ct. Eep. 646; Reliable Incubator & Brooder Co. v. Stahl, 44 C. C. A. 657, 105 Fed. 663 ; Camp- bell V. Golden Cycle Min. Co. 73 C. C. A. 260, 141 Fed. 610 ; Grand Trunk Western R. Co. v. Reddick, 88 C. C. A. 80, 160 Fed. 898; Re Can Ron, 93 C. C. A. 635, 168 Fed. 479, 482; Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 397, 48 L. ed. 496, 24 Sup. Ct. Rep. 376; Harris v. Rosenberger, 13 L.R.A. (X.S.) 762, 76 C. C. A. 225, 145 Fed. 451; United States v. Lee Yen Tai, 51 C. C. A. 299, 113 Fed. 467. The circuit court of appeals may, under these conditions, certify the juris- dictional question, but is under no obligation to do so. Weber Bros. V. Grand Lodge, F. & A. iL 96 C. C. A. 410, 171 Fed. 840 and cases cited. We have already seen that where jurisdiction depends on diversity of citizenship, and it turns out that the case involves the construction or application of the Constitution of the United States, or any question under the fourth, fifth, and sixth clauses of section 5 of the act of 1891, the circuit court of appeals may certify the constitutional question, or may decide the whole case. The court having jurisdiction by diversity of citizenship only, the mere fact that one or more of the constitutional ques- tions referred to in section 5 arose subsequently would not de- prive the court of appeals of jurisdiction, or justify it in de- clining to exercise it. American Sugar Ref. Co. v. Xew Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Ptep. 646 ; Love V. Busch, 73 C. C. A. 545, 142 Fed. 420 ; Huguley Mfg. Co. V. Galeton Cotton Mills, 184 U. S. 290, 46 L. ed. 546, 22 Sup. Ct. Rep. 452 ; Pikes Peake Power Co. v. Colorado Springs, 44 C. C. A. 333, 105 Fed. 1; Keyser v. Lowell, 54 C. C. A. 574, 117 Fed. 400 ; Watkins v. King, 55 C. C. A. 290, US Fed. 524. In Alton Water Co. v. Brown, 92 C. C. A. 598, 166 Fed. 840 it is said that giving exclusive appellate jurisdiction to the Supreme Court under the act of 1891 is limited. (1) to cases where the jurisdiction of the Federal Court, as such, is put in issue; (2) to an issue as to whether defendant has been served with proper process. To determine, then, where to ap- peal, the rule may be stated, where a Constitutional question is involved, and the jurisdiction of the circuit court is original- ly invoked upon it, the appeal must be to the Supreme Court APPEALS TJNDEE CLS. 4^6 OF SEC. 5, ACT OF 1891. 683 only: the circuit court of appeals cannot decide it. Union & Planters' Bank v. Memphis, 189 U. S. 71, 47 L. ed. 712, 23 Sup. Ct, Eep. 604; Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 685, 42 L. ed. 626, 18 Sup. Ct. Eep. 223 ; Huguley Mfg. Co. V. Galeton Cotton Mills, 184 U. S. 291, 46 L. ed. 546, 22 Sup. Ct. Eep. 452; Carter v. Eoberts, 177 U. S. 496, 44 L. ed. 861, 20 Sup. Ct. Eep. 713; Evans-Snider-Buel Co. V. McCaskill, 41 C. C. A. 577, 101 Fed. 658; St. Clair County V. Interstate Sand & Car Transfer Co. 49 C. C. A. 169, 110 Fed. 785 and cases cited; American Sugar Eef. Co. V. Xew Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Eep. 646, S. C. 43 C. C. A. 393, 104 Fed. 2 ; Owensboro v. Owensboro Waterworks Co. 53 C. C. A. 146, 115 Fed. 318 ; Barr v. Xew Brunswick, 19 C. C. A. 71, 39 U. S. App. 187, 72 Fed. 689; Fisheries Co. v. Lennen, 65 C. C. A. 79, 130 Fed. 533 ; Davis & E. Bldg. & Mfg. Co. v. Barber, 9 C. C. A. 79, IS r. S. App. 476, 60 Fed. 465; Seattle v. Thompson, 52 C. C. A. 44, 114 Fed. 96. If, however, diverse citizen- ship is set up as well as the constitutional question, an appeal can be taken to the circuit court of appeals, and a writ of error from its decision to the Supreme Court (Mississippi E. Commission v. Illinois C. E. Co. 203 U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Eep. 90; American Sugar Eef. Co. v. Xew Orleans, 181 IJ. S. 277, 45 L. ed. 859, 21 Sup. Ct. Eep. 646; Hugulev Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 46 L. ed. 546, 22 Sup. Ct. Eep. 452; Wright v. Mac- Farlane Co. 58 C. C. A. 570, 122 Fed. 774, 775) ; or direct to the Supreme Court (Davis & F. Mfg. Co. v. Los Angeles, 189 F. S. 207, 47 L. ed. 778, 23 Sup. Ct. Eep. 498). To illustrate: If the case depends on the construction or application of the Constitution of the United States, or a case in which a State law is claimed to be in contravention thereof, the circuit court of appeals has no jurisdiction, and the appeal must be dismissed, if the jurisdiction of the circuit court was based on the constitutional question. Ibid. ; Hamilton v. Brown, 3 C. C. A. 639, 2 U. S. App. 540, 53 Fed. 753, 754; Chicago, M. & St. P. E. Co. V. Evans, 7 C. C. A. 290, 19 U. S. App. 233, 58 Fed. 433; Ee Abbey Press, 67 C. C. A. 161, 134 Fed. 55; Penn :\rut L. Ins. Co. v. Austin, 168 U. S. 685, 42 L. ed. 626, 18 Sup. Ct Eep. 223. However, as said in Harris v. 684 APPEALS UNDEE CLS. 4-6 OF SEC. 5, ACT OF 1891. Eosenber^er, 13 L.R.A.(KS.) 762, 76 C. C. A. 225, 145 Fed. 449, though there be no diversity of citizenship, and the validity of an act of Congress is in issue, if the case also involves the proper construction of an act of Congress, the jurisdiction of the Supreme Court is not exclusive (Spreckels Sugar Kef. Co. V. McClain, 192 U. S. 397, 48 L. ed. 496, 24 Sup. Ct. Eep. 376; Eider v. United States, 79 C. C. A. 112, 149 Fed. 170) ; or where matters are involved wilii the constitutional question not within the exclusive jurisdiction of the Supreme Court (Hooper v. Eemmel, 91 C. C. A. 322, 165 Fed. 338), as where the only and controlling question is, would the pro- posed acts of a municipal corporation deprive the applicant of property without due process of law (Barr v. ISTew Bruns- wick, 19 C. C. A. 71, 39 U. S. App. 187, 72 Fed. 689 ; Hastings V. Ames, 15 C. C. A. 628, 32 U. S. App. 485, 68 Fed. 726) ; or where a city ordinance is held to discriminate against com- merce (Macon v. Georgia Packing Co. 9 C. C. A. 262, 13 U. S. App. 592, 60 Fed. 781 ; Davis & F. Mfg. Co. v. Los Angeles, 189 U. S. 207, 47 L. ed. 778, 23 Sup. Ct. Eep. 498) ; or the case depends on the constitutionality of State statutes (Wright- man V. Boone County, 31 C. C. A. 570, 60 U. S. App. 100, 88 Fed. 437 ; Wright v. MacFarlane, 58 C. C. A. 570, 122 Fed. 773; Hlinois C. E. Co. v. Adams, 35 C. C. A. 635, 93 Fed. 856 ; Pauley Jail Bldg. & Mfg. Co. v. Crawford County, 28 C. C. A. 579, 56 U. S. App. 53, 84 Fed. 942). CHAPTEE CVII. APPEAL TO CIECUIT COTIET OF APPEALS. Jurisdiction. I have incidentally discussed the jurisdiction of the circuit court of appeals under the clauses of section 5 of the act of 1891. I will now take up section 6 of that act, that provides "that the circuit court of appeals shall exercise appellate jur- isdiction to review by appeal or writ of error final decisions of the district and circuit courts of the United States in all cases other than those provided for in section 5, unless other- wise provided by law, and the judgments or decrees of the circuit court of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit being aliens and citizens of the United States, or citizens of different States ; also in all cases arising under the patent laws, revenue laws, and in admiralty cases." Power is further granted to these courts to certify in every case within its appellate jurisdiction any question or proposition of law concerning which it desires instruction. New Code, Sec. 128. The Supreme Court is authorized in those cases made final in the circuit court of appeals, to have sent up by certiorari, or otherwise, any such case for its review and determination. It is further provided that in all cases not made final in the circuit court of appeals, the case may be taken to the Supreme Court for review o& appeal or writ of error, where the matter in con- troversy shall exceed one thousand dollars besides costs, and one year is given within which an appeal can be taken from the cir- cuit court of appeals to the Supreme Court. New Code, sec. 240. Such is the statute fixing the jurisdiction of the circuit court of appeals,^ and it is seen that it is wholly appellate (Travis 685 6S6 ATPTIAT, TO CLECCIT COUET OF APPEAI.S. County V. King Iron Bridge & Mfg. Co. 34 C. C. A. 620, 92 Fed. 690), and confined to a revision of the decisions in the district and circuit courts of the United States. Its mission seems to be to settle property rights, rather than to determine constitutional questions, as it is excluded from reviewing cases arising under section 5, already discussed. It is further ex- cluded from reviewing cases "otherwise provided for by law," and it is suggested by Mr. Curtis that this term covers — First. Cases in which the decision of the district or circuit court is final, as where a circuit court remands a case to a State court. Second. Cases where the United States Supreme Court exer- cises appellate revision in habeas corpus and mandamus proceed- ings, or any other method than by appeal or writ of error. Third. To some exceptional revenue cases. In The Habana, 175 U. S. 683, 44 L. ed. 322, 20 Sup. Ct. Eep. 290, it is said the words refer to provisions of the same, or contemporaneous acts, or subsequent acts of Congress, and do not include provisions of earlier statutes. The circuit courts of appeals have no power to review judgments of State supreme courts (Terry v. Davy, 46 C. C. A. 141, 107 Fed. 50) ; nor judgments of the circuit or district courts of the United States by certiorari (Travis County v. King Iron Bridge & Mfg. Co. 34 C. C. A. 620, 92 Fed. 690 ■ United States ex rel. Montana Ore Purchasing Co. v. Circuit Ct. 61 C. C. A. 314, 126 Fed. 169). It is not necessary to pursue the provisions of the act any further to determine when equity causes may be appealed to the circuit court of appeals. The method of exclusion provided by the sixth section fi:xes affirmatively what cases are within the appellate jurisdiction of these coiirts. Practice in Appeals and Forms to Be Used. I have already called your attention to section 11 of the act of 1S91, providing that appeals under the act are to be regulated by existing statutes and rules of court, including the provision for bonds, or other security required on appeals, or writ of error, and that judges have the same power as to allowing APPEAL TO CIRCUIT COVKT OF APPEALS. 6S7 appeals as now belong 1\y law to such judges and justices. Sco U. S. Kev. St^it. sects" 997 to 101;!. U. S. Comp. St:it. 1901, pp. 712 to 716, relating to practice on appeal or error; see, &iso Rules of Supreme Court of the United States ; Act of 1891, sec. 11 ; Xorthern P. E. Co. v. Amato, 1 C. C. A. -AGS, 1 U. S. App. 113, 49 Fed. SM : Simpson v. First :Sat. Bank, 63 C. C. A. 371. 129 Fed. 258. Xew Code, sec. 132, chap. 6. Time For Appealing. If aggrieved by the decision, you mav appeal at once, that is, during the term, or you have six months after the entry of the final decree to take an appeal (Act of 1S91, sec. 11. Eule 16. 90 Fed. CLis; Cocke v. Copeuhavi r. 61 C. C. A. 211, 126 Fed. 147 : Condon v. Central Loan i: T. Co. 20 C. C. A. 110. 36 U. S. App. 579, 73 Fed. 907; Travis County v. King Iron Bridge & Mfg. Co. 34 C. C. A. 620, 92 Fed. 690 ; Blaffer v. Xew" Orleans" Water Supply Co. S7 C. C. A. 341, 160 Fed. 3S9, 390. and cases cited; TVaxahachie v. Coler, 34 C. C. A. 349, 92 Fed. 2S4: Meyer v. Hot Springs Imp. Co. 95 C. C. A. 156. 169 Fed. 62S : Born v. Schneider. 12S Fed. 179; Connecticut F. Ins. Co. v. Oldendorft'. 19 C. C. A. 379. 44 V S. App. 4S7. 73 Fed. S9 ; Hudson v. Limestone Xatural Gas Co. 75 C. C. A. 67S. 144 Fed. 952 ; Butt v. Fuited States. 126 Fed. 794; Green v. Lynn, 31 C. C. A. 24S, 50 F. S. Ai ■ 350, 57 Fed. S39; Xoonan v. Chester Park Athletic Club Co 35 C. C. A. 457. 93 Fed. 576: Coe v. East i: W. R. Co. 29 C. C. A. 292. 52 r. S. App. 532. S5 Fed. 4S9 ; Threadgill v. Piatt. 71 Fed. 3. It must not only be allowed, but mu^t be issued within the time. Ibid. ; Stevens v. Clark, 10 C. C. A. 379. IS r. S. App. 5S4. 62 Fed. 321: Blaffen v. Xew Orleans TVater Supply Co. 160 Fed. 391 ; Scarborough v. Pargoud. lOS r. S. 567. 27 L. ed. •-24, 2 Sup. Ct. Eep. S77) ; unless in the particular character of case less time is fixed by law govern- ing appeals and writs of error when the act was passed. Act of l'^91. sec. 11. It will be noticed that section 11 of the act of 1S91 only applies to appeals to the circuit court of appeals. (See Appendix.') In appealing to the Supreme Court direct, the act of 1891 633 APPEAL TO CIKCCIT CODKr OF APPEAXS. does not apply, so we nrast look at the law fixing the time within which the appeal to the Supreme Court must be taken, U. S. Eev. Stat., sect. lOOS. U. S. Comp. Stat. 1901. p. 715, which iLxes two years from the entry of the order, except when a disability intervenes, then the time begins from iis removal. Andrews v. Thum, IS C. C. A. 506. 33 U. S. App. -130, 72 Fed. 290; Duncan v. Atlantic, M. i: O. R- Co. 4 Hughes, 12.5. >S Fed. S40. In computing the time the day on which the decree is entered is excluded, and when an application for rehearing is filed and entertained, then time begins when the application is overruled. Andrews v. Thum, 1? C. C. A. 566, 33 U. S. App. 430, 72 Fed. 290; S. C. 12 C. C. A. 77, 21 U. S. App. 459, 64 Fed. 149; Louisville Trust Co. v. Stockton, 18 C. C. A. 40S, 41 U. S. App. 579, 72 Fed. 1: Aspen Min. i- Smelting Co. v. BiUings, 150 U. S. 36, 37 L. ed. 9S5, 14 Sup. Ct. Eep. 4; Alexander v. United States. 6 C. C. A. 602. 15 U. S. App. 158. 57 Fed. 323; Kingman i: Co. v. Western Mfg. Co. 170 U. S. 673. 42 L. ed. 1193. 13 Sup. Ct. Eep. 736; Texas & P. E. Co. v. Murphy. Ill TJ. S. 439. 23 L. ed. 493, 4 Sup. Ct. Eep. 497: Altenberg v. Grant. 23 C. C. A. 244. 54 F. S. App. 312, S3 Fed. 930 : See Marks v. Xorthem P. E. Co. 22 C. C. A. 630, 44 U. S. App. 714. 76 Fed. 941; Duncan v. Atlantic. M. & O. E. Co. 4 Hughes, 125. 33 Fed. 34tJ. Ji the last day for an appeal falls on Sunday, or a dies non you had better perfect the appeal the day before. •Johnson V. Me'yers, 4 C. C. A. 399, 12 U. S. App. 220.' 54 Fed. 417; Meyer v! Hot Springs Imp. Co. 95 C. C. A. 156, 169 Fed. 629' When the appeal is filed after six months under the act of 1391. it will be dismissed. Blaffer v. !!!7ew Orleans Water Supply Co. 37 C. C. A. 341, 160 Fed. 339: Coulliette v. Thomason, 1 C. C. A. 675. 2 U. S. App. 221. 50 Fed. 7^7: Hamilton v. Brown, 3 C. C. A. 639. 2 U. S. App. 540. 53 Fed. 753. The court has no jurisdiction of an appeal liled after the time. Union P. E. Co. v. Colorado, Eastern E. Co. 4 C. C. A. 161. 12 U. S. App. 110. 54 Fe.1. 22 : Whit- r. Iowa Xat. Bank. 17 C. C. A. 621, 36 U. S. App. 26i:i. 71 Fed. 97: Condon v. Central Loan i- T. Co. 20 C. C. A. 110, 36 U. S. App. 579. 73 Fed. 907. APPEAL TO CIECITIT COURT OF APPEALS. 689 When is Appecd Said to Be Taken. The question arises, when is the appeal said to be "taken" SO as to save the bar? The appeal is taken when allowed by the court (Credit Co. v. Arkansas C. E. Co. 128 U., S. 261, 32 L. ed. 449, 9 Sup. Ct. Eep. 107; See "Allowance of Ap- peal") ; and the filing of the bond and issuance of citation after six months will not bar the appeal, as neither requirement is jurisdictional, that is to say, the allowance of the appeal in sis months as stated is sufficient, as neither the filing of the bond or issuing citation is jurisdictional. jSToonan v. Chester Park Athletic Club Co. 35 C. C. A. 457, 93 Fed. 576; Columbus Chain Co. v. Standard Chain Co. 76 C. C. A. 164, 145 Fed. 1S6; Wickelman v. A. B. Dick Co. 29 C. C. A. 436, 57 TJ. S. App. 196, 85 Fed. 851. See Altenberg v. Grant, 28 C. C. A. 244, 54 U. S. App. 312, 83 Fed. 980). There may be, because of separable controversies created by the bill, cross bills or interventions, several final appealable decrees, and the time for appealing will date from the entry of the particular decree. In discussing "cross" appeals, it will be seen that they are governed by the same time limit. Notice of Appeal. Having seen the time within which one must act who desires an appeal, the next step is to give "notice of appeal," and have the amount of the bond fixed. You may give this notice of appeal in open court, or within the six months allowed. If notice is given in open court when the case is decided, and the bond fixed by the court is filed and accepted by the judge during the term in which the decree is rendered, and the appeal thus perfected, this will be an "allowance" of the appeal, and no petition is necessary; provided, however, that you assign errors at once, for by rules now in force, an assignment of errors must be filed before an appeal should be allowed. See Rule 11, Circuit Court of Appeals ; "Assignments of Errors." The rule is applicable to equity causes as well as writs of error. Dufour V. Lang, 4 C. C. A. 663, 2 U. S. App. 477, 54 Fed. 913; Simpson v. First ISTat. Bank, 63 C. C. A. 371, 129 Fed. 261. S. Eq.— 44. 690 APPEAL TO CIECUIT COtTET OF APPEALS. If the appeal thus allowed in open court is perfected by filing in the appellate court the transcript and docketing the case within the required time, the issuance and service of a citation to the adversary party is not necessary. Richardson v. Green, 130 U. S. 114, 32 L. ed. 875, 9 Sup. Ct. Eep. 443; Jacobs V. George, 150 U. S. 416, 37 L. ed. 1127, 14 Sup. Ct. Rep. 159 ; Central Trust Co. v. Continental Trust Co. 30 C. C. A. 235, 58 U. S. App. 604, 86 Fed. 524; Columbus Chain Co. v. Standard Chain Co. 76 C. C. A. 164, 145 Fed. 186 ; Dodge v. Knowles, 114 U. S. 430, 438, 29 L. ed. 144, 297, 5 Sup. Ct. Rep. 1108, 1197. If you have given notice of appeal in open court, but you have not given bond, or the se- curity required during the term, then your notice is of no avail, and you must have issued and served on the opposite party or his counsel a citation, in form as will be hereafter given, unless waived. Richardson v. Green, 130 U. S. 114, 32 L. ed. 875, 9 Sup. Ct. Rep. 443 ; Radford v. Folsom, 123 U. S. 727, 31 L. ed. 293, 8 Sup. Ct. Rep. 334; Brown v. McConnell, 124 U. S. 491, 31 L. ed. 496, 8 Sup. Ct. Rep. 559; First Nat. Bank v. Omaha, 96 U. S. 738, 24 L. ed. 881; Hewitt v. Filbert, 116 U. S. 143, 29 L. ed. 582, 6 Sup. Ct. Rep. 319. If you do not give notice in open court, but determine aiter- wards to appeal, you must present a petition to the judge of the district, a circuit judge of the circuit, or the justice assigned to the circuit for permission to appeal, and citation must issue and be served. Haskins v. St Louis & S. E. R. Co. 109 U. S. 107, 27 L. ed. 873, 3 Sup. Ct. Rep. 72 ; Sage v. Central R. Co. 96 U. S. 715, 24 L. ed. 643 ; Ruby v. Atkinson, 35 C. C. A. 458, 93 Fed. 579. But failure to serve in time does not neces- sarily dismiss the appeal. Richards v. Mackall, 113 U. S. 542, 28 L. ed. 1133, 5 Sup. Ct. Rep. 535 ; see Pierce v. Cox, 9 Wall. 787, 19 L. ed. 786. At the same time request that the amount of the bond be fixed, and file concurrently with these acts an assignment of errors in the clerk's office, present- ing your grounds of objection, which must be confined to ques- tions raised through the trial, or that are apparent in the record. Petition for Appeal. If the appeal is perfected in open court, the petition and APPEAL TO CIRCUIT COUET OF AL'l'EAl.S. 691 citation is not necessary, for the transcript showing the appeal was taken in open court gives the appellate court jurisdiction; but if the appeal is taken after the term, though notice may have been given in open court, then you must file a petition as follows: Title as in bill, l , t- -^ -- , t In Equity. No. of case. j i .i Petition for Appeal filed , A. D. 19 ... , in the Circuit Court of the United States for District To the Hon , District Judge, etc. . The above named plaintiff (or defendant) feeling himself aggrieved by the decree made and entered in this cause on the day of , A. D. 19. . ., does hereby appeal from said decree (or order) to the Circuit Court of Appeals for the Circuit, for the reasons specified in the assignment of errors, which tfe filed herewith, and he prays that his appeal be allowed and that citation issue as provided by law, and that a trans- cript of the record, proceedings and papers upon which said decree was based, duly authenticated, may be sent to the United States Circuit Court of Appeals for Circuit, sitting at And your petitioner further prays that the proper order touching the security to be required of him to perfect his appeal be made. R. F., Solicitor. Tefft V. Stern, 21 C. C. A. 73, 43 U. S. App. 442, 74 Fed. 755. If you desire a supersedeas, add "and desiring to supersede the execution of the decree, petitioner here tenders bond in such amount as the court may require for such purpose, and prays that with the allowance of the appeal a supersedeas be issued." The judge usually endorses the petition. The petition granted and the appeal allowed upon giving bond condi tioned as required by law in the sum of dollars. A.B., Judge, etc. See Columbus Chain Co. v. Standard Chain Co. 76 C. C. A. 164, 145 Fed. 186, 187. "Or the appeal is allowed and shall operate as a supersedeas upon the petitioner filing a bond in the sum of dollars, with sufficient sureties to be conditioned as required by law." (See chapter 110.) 692 APPEAL TO CIRCUIT COUET OF APPEALS. A& said before, the judge of the district in which the case is tried, or the circuit judge of the circuit, or the justice as- signed to the circuit, can act upon the petition (Rule 35, 79 C. C. A. liv. 90 Fed. Ixvi. United States v. Moy Yee Tai, 48 C. C. A. 203, 109 Fed. 2 ; Brown v. McConnell, 124 U. S. 489-491, 31 L. ed. 495-497, 8 Sup. Ct. Rep. 559; Copper River Min. Co. v. McClellan, 70 C. C. A. 623, 138 Fed. 338), but cannot allow an appeal from another district while sitting in his own district (United States v. Moy Yee Tai, supra). The act is not altogether ministerial in granting appeals, it is not a matter of course, says White v. Bruce, 48 C. C. A. 400, 109 Fed. 355-363 ; Brinkley v. Louisville & I^. R. Co. 95 Fed. 345-351. However, in Simpson v. First IN'at. Bank, 63 C. C. A. 371, 129 Fed. 259, it is said the right of appeal is an absolute right, and no judge can condition the allowance, the precedure having been complied with. The judge passes on only the sufficiency of the security. Pull- man's Palace Car Co. v. Central Transp. Co. 71 Fed. 809. There are cases where they have been disallowed, that is con- sidered not appealable ; but not where appealable, however friv- olous (Southern Bldg. & L. Asso. v. Carey, 117 Fed. 325 ; Lock- man V. Lang, 65 C. C. A. 621, 132 Fed. 1) ; it is a matter of right, and mandamus will lie. Ex parte Jordan, 94 U. S. 248, 251, 24 L. ed. 123, 125; Thorn v. Pittard, 10 C. C. A. 352, 8 U. S. App. 597, 62 Fed. 285. Motion for Supersedeas. When bond has been given in time, and appellee seeks to have some action taken in the court below, you may enjoin the action, and move for a supersedeas after the appeal. Washing- ton, G. & A. R. Co. V. Bradley (Washington, G. & A. R. Co. V. Washington) 7 Wall. 577, 19 L. ed. 274; Slaughter-house Cases, 10 Wall. 293, 19 L. ed. 921. The petition should be addressed to the circuit court of appeals, and in the following form: Title as in appeal. In Equity. Address Circuit Judges. And now comes the appellant, A. B., in the above entitled cause and would show unto your Honors that on the day of A. D APPEAL TO CIECUIT COUKT OF APPEALS. 693 19. . ., this cause carae on to be heard before the Hon , judge of the district of , sitting at and that on the day of , A. D. 19. . ., a decree was entered in said cause in substance as follows (state fully the decree that the court may determine whether it be final). That petitioner appealed from said decree, which said appeal was allowed on the day of , A. D. 19 ... , and security given condi- tioned as provided by law, as will appear, reference being had to the pro- ceedings here on file in this Honorable Court. That said security thus taien was such as properly to operate as u. supersedeas to stay all pro- ceedings while this cause is pending on appeal before this Honorable Court. Petitioner sliows that, notwitlistanding the allowance of the appeal in this cause, and the filing the security for its prosecution as aforesaid, appellees are seeking to take further proceedings in the court below (here state them). That said proceedings will work an injury and injustice to petitioner if permitted. Wherefore petitioner prays tliis Honorable Court to issue a writ of super- sedeas to the United States Circuit Court for the District of its judges, clerk and marshal, staying and enjoining said court, its judges, clerk and marshal, from taking or suffering to be taken before them any further proceedings herein until the hearing and decision by this court of the appeal taken herein and the return of the mandate thereon, and for such further relief as to this court may seem proper, and petitioner will ever pray, etc. If granted, draw the decree containing substantially the prayer of the petition or in whatever form it may be granted. The writ issued is as follows : UNITED STATES OF AMERICA. The President of the United States to the Judges of the Circuit Court of the United States for the District of , and to the Clerk and Marshal of said District — Greeting: Whereas an appeal has heretofore been taken to the United States Cir- cuit Court of Appeals for the Circuit from a certain final decree entered in the United States Circuit Court for the District of on the day of , A. D. 19. ... in a certain cause wherein A. B. is complainant and appellant and C. D. is defendant and appellee; and whereas said appeal was taken and good and suflBcient secu- rity was given in time to operate by virtue of the statute in such cases made and provided as a supersedeas and stay of all proceedings in said cause in said circuit court: now, therefore, we being willing that full jus- tice should be done the said A. B., petitioner in this behalf, and that his rights should he fully protected, do command and enjoin you to refrain from taking or suffering to be taken before you any proceedings whatsoever, and especially (state proceedings sought to be taken) until the hearing and decision of this court on the appeal taken herein and the return to you of the mandate thereon. 694 APPEAL TO CIECUIT CC UET OF APPEALS. Witness the Hon , Chief Justice of the Supreme Court of the United States, this day of , A. D. 19 . . . Attest : Clerk Gunn V. Black, 8 C. C. A. 542, 19 TJ. S. App. 489, 60 Fed. 160; Tuttle v. Claflin, 13 C. C. A. 2S1, 26 U. S. App. 678, 66 Fed. 8. When an appeal is properly filed, appellant court may issue supersedeas to lower court on filing bond in the appellate court, if done in time. U. S. Eev. Stat. sec. 1007, U. S. Comp. Stat. 1901, p. 714, sec. 716, U. S. Comp. Stat. 1901, p. 580 ; Bound v. South Carolina R. Co. 55 Fed. 188 ; Kitchen V. Randolph, 93 U. S. 88, 23 L. ed. 810 ; Xew England E. Co. V. Hyde, 41 C. C. A. 404, 101 Fed. 397 ; Peugh v. Davis, 110 U. S. 229, 28 L. ed. 128, 4 Sup. Ct. Eep. 17; Hudgins v. Kemp, 18 How. 535, 15 L. ed. 513; Slaughter-house Cases, 10 WaU. 291, 19 L. ed. 920; Union ilut. L. Ins. Co. v. Windett, 36 Fed. 839 ; Logan v. Goodwin, 41 C. C. A. 573, 101 Fed. 654 ; Washington, G. & A. R Co. v. Bradley (Wash- ington, G. & A. E. Co. V. Washington), 7 WaU. 577, 19 L. ed. 274; Western U. Teleg. Co. v. Eyser, 19 Wall. 428, 22 L. ed. 44; Baltimore & 0. E. Co. v. Harris, 7 Wall. 574, 19 L, ed. 100 ; French v. Shoemaker, 12 WalL 100, 20 L. ed. 271. CHAPTER CVIII. ASSIGXMEXT OF EREOES. With the petition for appeal miist be assigned the matters complained of. and to correct which the appeal is prayed for, and this mnst be done whether the appeal be direct to the Supreme Court or the circuit coiirt of appeals. (See "Xotiee of Appeal.") United States v. Goodrich, 4 C. C. A. 160, 12 r. S. App. lOS. 54 Fed. ■21; Simpson v. First Xat. Bank, i>3 C. C. A. 371. 129 Fed. 257; Mutual L. Ins. Co. v. Conoley, 11 C. C. A. 11(3. 25 r. S. App. S6. 63 Fed. ISO; Webber v. MihiUs. 59 C. C. A. 577, 124 Fed. 64; Moore v. Moore, 58 C. C. A. 19, 121 Fed. 737. As to evidence of filing. Copper Eiver Min. Co. v. McClellan, 70 C. C. A. 623, IS^S Fed. 333: Lockman t. Lang. 62 C. C. A. 550, 12S Fed. 2S0. S. C. 65 C. C. A. 621, 132 Fed. 1. Rule 35 of the Supreme Court rules requires that the appellant shall file with the clerk below, with his petition for an appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged, and no appeal shall be allowed unless it is filed, and errors not assigned will be disregarded. Rule 11. 79 C. C. A. xxvii., 150 Fed. xxvii. r. S. Rev. Stat. sec. 937. U. S. Comp. Stat. 1901, P. 690; Randolph v. Allen, 19 C. C. A. 353, 41 U. S. App. 117, 73 Fed. 23 : The Myrtie M. Ross. S7 C. C. A. 175, 160 Fed. 19; Stillwagon v. Baltimore & O. R. Co. S6 C. C. A. 2S7. 159 Fed. 97; Xorfolk i: W. R. Co. v. Gardner, S9 C. C. A. 114. 162 Fed. 114. In Simpson v. First Xat Bank, 63 C. C. A. 371, 129 Fed. 259. it is held that it is not necessary to assign errors before an appeal is allowed, as in an application for a writ of error, but the assignment may be filed at any time be- fore the security is approved and accepted. Rule 11 of the circuit court of appeals rules roi::;i\^? t'vf tie appellant shall file with the clerk below with his jetkion 695 696 ASSIGNMENT OF EEEOES. an assignment of errors, and no appeal shall be allowed until the assignment of errors has been filed. This assignment forms part of the transcript, and must be printed with it. See Eule 11, 79 C. C. A. xxvii., 150 Fed. xxvii. ; Dufour v. Lang, 4 C. C. A. 663, 2 U. S. App. 477, 54 Fed. 913; CouUiette V. Thomason, 1 C. C. A. 675, 2 U. S. App. 221, 50 Fed. 787 ; See P. P. Mast & Co. v. Superior DriU Co. 83 C. C. A. 157, 154 Fed. 45; Norfolk & W. E. Co. v. Gardner, 89 C. C. A. 114, 162 Fed. 115. The purpose of the assignment is to advise the court of the questions it is called upon to decide, without going beyoiid the assignment itself, and it states the limits within which the appellant will be confined ia presenting objections to the pro- ceedings below. Grape Creek Coal Co. v. Farmer's Loan & T. Co. 12 C. C. A. 350, 24 U. S. App. 38, 63 Fed. 891; Findlay v. Pertz, 20 C. C. A. 662, 43 U. S. App. 383, 74 Fed. 685 ; Grand Trunk E. Co. v. Ives, 144 TJ. S. 408-415, 36 L. ed. 485-488, 12 Sup. Ct. Eep. 679 ; Andrews v. National Foundry & Pipe Works, 36 L.E.A. 139, 22 C. C. A. 110, 46 U. S. App. 281, 76 Fed. 166. Cross Errors. Cross errors are not assignable in the Federal Courts. Eogers v. Penobscot Min. Co. 83 C. C. A. 380, 154 Fed. 606 ; citing. Guarantee Co. of N. A. v. Phenix Ins. Co. 59 C. C. A. 376, 124 Fed. 170-173 ; ^tna Indemnity Co. v. J. E. Crowe Coal & Min. Co. 83 C. C. A. 431, 154 Fed. 567. Musi Be Specific. The assignment must not be argumentative, but direct (Eule 11 C. C. A. ; Eandolph v. Allen, 19 C. C. A. 353, 41 TJ. S. App. 117, 73 Fed. 23) ; not general but specific (Eichardson V. Walton, 9 C. C. A. 604, 17 U. S. App. 525, 61 Fed. 535 ; Mitchell Transp. Co. v. Green, 56 C. C. A. 455, 120 Fed. 49 ; Baltimore v. Maryland, 92 C. C. A. 335, 166 Fed. 645, and cases cited. Florida C. & P. E. Co. v. Cutting, 15 C. C. A. 597, 30 U. S. App. 428, 68 Fed. 586; Guggenheim v. Kirchhofer, 14 C. C. A. 72, 26 TJ. S. App. 664, 66 Fed. 755 ; ASSl(.i^"i[E^T OF EEEOES. 697 Randolph v. Allen, 19 0. C. A. 353, 41 U. S. App. 117, 73 Fed. 23; Hart v. Boweu, 31 C. 0. A. 31. 5S U. S. App. 1S4, St; Fed. S77; Findlay v. Pertz, '20 C. 0. A. 662, -±3 U. S. App. 383, 74 Fed. OSl, 6S2; Adams v. Shirk, -±4 C. C. A. iio3. 10:> Fed. iio9 ; Aunistou v. Safe Deposit & T. Co. 29 C. C. A. 457, 52 U. S. App. 510, S5 Fed. S5(3) ; for if it points out no particular error, it will not be noticed; Deering Harvester Co. v. Xelly, 43 C. C. A. 225, 103 Fed. 261; (.U. S. Eev. Stat. see. 997, U. S. Comp. Stat. 1901, p. 712; Ibid. ; Supreme Council, C. K. A. v. Fidelity i: C. Co. 11 C. C. A. iUn 22 U. S. App. 439, 63 Fed. 49; see Eule 24, 79 C. C. A. x.xxiii., 150 Fed. xxxiii. ; Flagler v. Kidd, 24 C. C. A. 123, 45 U. S. App. 461. 7S Fed. 341; United States r. Fer- guson, 24 C. C. A. 1, 45 L'. S. App. 457, 7S Fed. 104; Xational Aeci. Soc. V. Spiro, 24 C. C. A. 334, 47 V. S. App. 293, 7S Fed. 774); when error may be noticed though general or not assigned (Eule 24, 79 C. C. A. xxxiii., 150 Fed. xxxiii.; cl. 4; Doan V. Amei-ican Book Co. 45 C. C. A. 42, 105 Fed. 772; The Myrtie M. Eoss, S7 C. C. A. 175, 160 Fed. 22). Thus, to assign that there is error in the decree, in that the court upon the evidence should have decreed for appellant, would be too general (Doe v. Waterloo Min. Co. 17 C. C. A. 190, 44 F. S. App. 204, 70 Fed. 455, IS Mor. Alin. Eep. 265), but you must specify in what respect the deci"ee is erroneous, and your reasons. (Andrews v. Xational Foundry dt Pipe Works, 36 L.E.A. 139, 22 C. C. A. 110, 46 U. S. App. 2S1, 76 Fed. 166; McFarlane v. GoUing, 22 C. C. A. 23, 46 U. S. App. 141, 76 Fed. 23.) Tour assignment is defective if the court is required to look in the brief for a specific statement of the question pre- sented. Grape Creek Coal Co. v. Farmers' Loan it T. Co. 12 C. C. A. 350. 24 U. S. App. 3S. 63 Fed. S91 ; Hoge v. Magnes, 29 C. C. A. 564. 56 U. S. App. 500, S5 Fed. 355. So, general exceptions to a charge of the court at law are im- availing. Thorn v. Pittard, 10 C. C. A. 352. S U. S. App. 597. 62 Fed. 232: Baltimore v. Maryland, 92 C. C. A. 335, 166 Fed. 645, and cases cited. Form of Assignment. Title as in bill. And now, on this the day of , A. D. 19 . . . , came the o 698 ASSIGXilEXT OF EEtOUS. defendant by his solicitor, R. F., and says that the decree entered in the above cause on the day of , A. D. 19. . ., is erroneous and unjust to defendant. First. Because, etc. (stating specifically and separately each error com- plained of, and numbering them consecutively). Wherefore the defendant prays that the said decree be reversed and the circuit court directed to dismiss the bill (or such relief as the nature of the case demands; or if the plaintiff assigns he may pray that the decree be reversed, and the circuit court be instructed to enter such decree as is prayed for by said bill, or that the court of appeals shall reverse and ren- der a proper decree on the record, etc.). R. F., Solicitor. Time of Filing. Xo appeal will be allowed unless the assignment of errors is filed with the petition. Eule 11, 79 C. C. A. xxvii., 150 Fed. xxvii. ; Mutual L. Ins. Co. v. Conoley, 11 C. C. A. 116, 2.5 U. S. App. 86, 63 Fed. 180; Dufour v. Lang, 4 C. C. A. 663, 2 U. S. App. 4:77, 5-4 Fed. 913, 917; Savings & Loan Soe. V. Davidson, 38 C. C. A. 365, 97 Fed. 696; Flahrity v. Union P. E. Co. 6 C. C. A. 167, 12 U. S. App. 532, 56 Fed. 903; Crabtree v. McCurtain, 10 C. C. A. S6, 19 TJ. S. App. 060, 61 Fed. S08 ; Frame v. Portland Gold Min. Co. 47 C. C. A. 664, 108 Fed. 751 ; United States v. Goodrich, 4 C. C. A. 160, 12 U. S. App. 108, 54 Fed. 21 ; Lockman v. Lang, 62 C. C. A. 550, 128 Fed. 280. We have seen, in discussing the application of rule 11 C. C. A. and 35 of the Supreme Court, that the rule as stated above is unquestionably correct as to applications fot writs of error, but in appeals the assign- ment of errors may be filed at any time before the security is approved and accepted. Simpson v. First Xat. Bank, 63 C. C. A. 371, 129 Fed. 259; see Ee Olsen, 40 C. C. A. 247, 100 Fed. 10. Confined to the Issues. You cannot import a question by your assignment : the plead- ings must develop it. Zadig v. Baldwin, 166 U. S. 4SS, 41 L. ed. loss, 17 Sup. Ct. Eep. 639; ComeU v. Green, 163 U. S. 80, 41 L. ed. 7S, 16 Sup. Ct. Eep. 969; Missouri P. R Co. ASSIGJTMEXT OF EKEOES. 69!) V. Fitzgerald, 160 U. S. 575, 40 L. ed. 540, 16 Sup. Cl Kep. 3S9; Woodburv v. Sha\vTieetovra, 20 C. C. A. 100, 31 U. S. App. 655. 71 Fed. 205; Cheney v. Bacon, 1 C. C. A. 211. i F S. App. 207, 19 Fed. 305. And vrhile error is assign- able To the ruling or order, it is not assignable to reasons given for the ruling or order. Eussell v. Kern, 16 C. C. A. 151, 34 r. S. App. 90, 69 Fed. 94; McFarlane v. GoUing, 22 C. C. A. 23, 46 U. S. App. Ill, 76 Fed. 24, and cases cited. Thus, assignments on the opinion of the court are not noticed. Ibid. ; see rule 14 circuit court of appeals, see. 2 ; Columbus Safe Deposit Co. V. Burke, 32 C. C. A. 67, 60 F. S. App. 253. SS Fed. 633; Evans v. Suess Ornamental Glass Co. 2S C. C. A. 24. 53 F. S. App. 567. S3 Fed. 706: Xorth American Loan \- T. Co. v. Colonial \' F. S. Mortg. Co. 2S C. C. A. SS. 55 F. S. App. 157, S3 Fed. 796; Mutual Reserve Fund Life Asso. V. Du Bois, 29 C. C. A. 354, 56 F. S. App. 5S6, 85 Fed. 5S6. Consent Decree. Assignments are not allowed on consent decrees, nor upon error in one's favor (McCafferty v. Celluloid Co. 43 C. C A. 540, 61 F. S. App. 391, 101 Fed. 305 : Bitter v. Mutual L. Ins. Co. 169 F. S. 144. 42 L. ed. 694, IS Sup. Ct. Eep. 300) ; unless consent is denied, when the issue may be carried up by appeal (Kaw Valley Drainage Dist. v. Fnion P. E. Co. 90 C. C. A. 320. 163 Fed. S37). To the Admission or Rejection of Evidence. By Supreme Court rule 13 and circuit court of appeals rule 12, it is provided that in all cases in equity no objection will be heard to the admi>-i'iii or rejection of evidence of such dep- ositions, deeds, or orhcr oxhibit.s found in the record, unless objection was taken thereto and entered of record in the court below, but the same shall otherwise be deemed to be admitted bv consent. Thus, to warrant a consideration of a ruling in evidence in equity, the ruling and exceptions must be taken when admitted or rejected over objections at the time, and it must so appear to have been taken in the record. (See "Bill 700 ASSIGXMEXT OP EEEOE8. of Exceptions.") Gorham Mfg. Co. v. Emery-Bird-Thayer Dry Goods Co. 43 C. C. A. 511, 104 Fed. 243 ; Bunker Hill ., appellee, and numbered on said docket. That the assignment of errors filed in said cause was as follows (here insert assignment of errors). APPEALS FEOM CIECUIT COUET TO SUPEEME COUET. Y63 That afterwards, to wit, on the day of , A. D., 19. . ., tlio case came on to be heard in the Circuit Court of Appeals before the Hon. , the Hon , and the Hon , and on the day of , A. D. 19. . ., a decree was entered in said cause by the Cir- cuit Court of Appeals of circuit as follows (state judgment of affirmance ) . Your petitioner is advised that said judgment of the Circuit Court of Appeals, is final, and is erroneous, and that this Honorable Court should require the case to be certified to it for its review and determination under the act of Congress permitting causes made final in the Circuit Court ol Appeals to be certified for revision. (Here recite the grounds upon which you seek the writ of certiorari, and it must appear that the case comes fully within the statute. ) Wherefore your petitioner respectfully prays that a writ of certiorari be issued under the seal of the court, directed to the United States Cir- cuit Court of Appeals for the circuit, sitting at , com- manding the court to certify and send to this court on a day to be desig- nated a full and complete transcript of the record and all proceedings ol the Circuit Court of Appeals had in said cause, to the end that this cause may be reviewed and determined by this Honorable Court as provided by the act of Congress approved March 3, 1891, establishing the Circuit Court of Appeals and defining and regulating their jurisdiction; and that the said judgment of the Circuit Court of Appeals be reversed by this Honor- able Court, and for such further relief as may seem proper. And your petitioner will ever pray. Signed by petitioner or by his counsel. The petition must be verified by the petitioner or by counsel as follows: If by petitioner: "That he has read the foregoing petition by him subscribed, and the facts stated therein are true to the best of his information and belief." If by counsel: State the fact of being counsel, and that he knows of the above proceedings had, and "that the facts therein stated are true to the best of his knowledge and belief." Notice of the Application Must Be Given. If the writ is granted, the clerk of the United States Supreme Court issues it under the seal of the court, directed to the cir- cuit court of appeals, and commanding it to send up the said cause with the record and proceedings had therein, and that the same be certified and removed to the Supreme Court with- out delay, so that the Supreme Court may act thereon, as ac- cording to law ought to be done. 764 APPEALS PEOM CIECUIT COUET TO SUPREME COUET. By rule 37, promulgated by the Supreme Court May 11, 1891, a certified copy of the entire record of the case in the circuit court of appeals shall be furnished to the Supreme Court by the applicant as a part of the application. Time. A party is entitled to a year within -which to sue out the writ, and the fact that the mandate has gone down does not affect the right. The Conqueror, 166 U. S. 113, 41 L. ed. 939, 17 Sup. Ct. Kep. 510 ; Panama K. Co. v. ISTapier Shipping Co. 166 U. S. 284, 41 L. ed. 1005, 17 Sup. Ct. Eep. 572; Ayres V. Polsdorfer, 187 U. S. 595, 47 L. ed. 318, 23 Sup. Ct. Eep. 196; Spencer v. Duplan Silk Co. 191 U. S. 532, 48 L. ed. 291, 24 Sup. Ct. Eep. 174. It may be lost by delay. Ibid. Effect of Granting the Writ. First. When the writ is granted by the Supreme Court it suspends the mandate of the circuit court of appeals, and all action by the circuit court of appeals, as well as of the circuit court from whence the appeal came. It is, in effect, a super- sedeas (Louisville, N. A. & C. E. Co. v. Louisville Trust Co. 78 Ped. 659-662), except that the court below may perfect its judgment or allow a remittitur . (Hovey v. McDonald, 109 U. S. 157, 27 L. ed. 890, 3 Sup. Ct. Eep. 136). Second. When the writ is issued the case is before the court for its determination with the same power as if carried up by appeal. Act of 1891, sec. 6 ; Panama E. Co. v. Napier Shipping Co. 166 U. S. 280-284, 41 L. ed. 1004^1005, 17 Sup. Ct. Eep. 572. But see, Hubbard v. Tod, 171 U. S. 494, 43 L. ed. 253, 19 Sup. Ct. Eep. 14. The entire case is before the court for examination. Where an intervener applied for the writ, and the court entertained only errors assigned, and not whether there was error in the decree below of which other parties covld. have complained. CHAPTEK CXVIII. APPELLATE POWER OF SUPREME COURT IN CASES NOT FINAL IN CIRCUIT COURT OF APPEALS. The Supreme Court may review, by appeal or writ of error, all cases not made final in the circuit court of appeals by the sixth section of the judiciary act of 1891, when the matter in controversy exceeds one thousand dollars besides costs, and if taken in one year after the entry of the decree or judgment in the circuit court of appeals. Huguley Mfg. Co. v. Galeton Cotton Mills, see appendix sec. 6, act 1891, 184 U. S. 294, 46 L. ed. 547, 22 Sup. Ct, Eep. 452. See sec. 241, chap. 10, ISTew Code, embodying the old law. So, then, we have in all cases decided by the circuit court of appeals in which the jurisdiction was not dependent on diversity of citizenship entirely, or between aliens and citi- zens, or where the case arose under the patent, revenue, or admiralty laws, or in bankruptcy proceedings where the amount in controversy is under two thousand dollars, or judgments in arbitration claims (U. S. Stat, at L. Vol. 30, p. 426 ; Press Pub. Co. V. Monroe, 164 U. S. 110, 41 L. ed. 368, 17 Sup. Ct. Eep. 40), a right of appeal to the Supreme Court from the decree of the circuit court of appeals, provided only that the matter in controversy exceeds one thousand dollars in value or amount besides costs, and that the appeal to be taken within one year from the entry of the decree. Northern P. R. Co. v. Amato, 144 U. S. 472, 36 L. ed. 509, 12 Sup. Ct. Eep. 740. The statutory amount must be in the controversy, but the fact may be shown by affidavit. United States v. Trans-Missouri Freight Asso. 166 U. S. 310, 41 L. ed. 1017, 17 Sup. Ct. Eep. 540; Eobinson v. Suburban Brick Co. 62 C. 0. A. 484, 127 Fed. 806. By enumerating the conditions in the act of 1891, under which the decrees in the circuit court of appeal are made final, 765 7t)t) APPEALS FKDM CIRCUIT COUllTS OF APPEALS. and dt.'clariiig that all cases not made final in the circuit court of appeals may be carried as of right to the Supreme Court on appeal or error, much of the diificulty is removed in determin- ing whether a case decided in the court of appeals can be taken by appeal or error, or must be taken by certiorari. In determining the question of the finality of the judg- ment in the circuit court of appeals we must go back to the jurisdiction of the circuit court, and when that rests upon diversity of citizenship alone, or between aliens and citizens, or the case has been brought under the patent or revenue laws, or is a case in admiralty, then the decision of the circuit court of appeals is final and appeal or error to the Supreme Court would not lie. Harding v. Hart, 187 U. S. 638, 47 L. ed. 344, 23 Sup. Ct. Eep. 846 ; Spencer v. Duplan Silk Co. 191 U. S. 527, 48 L. ed. 287, 24 Sup. Ct. Eep. 174; Colorado Cent. Consol. Mill. Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Eep. 35; Press Pub. Co. v. Monroe, 164 U. S. 110, 111, 41 L. ed. 368, 369, 17 Sup. Ct. Eep. 40; Ayres v. Pols- dorfer, 187 U". S. 588-595, 47 L. ed. 315-318, 23 Sup. Ct. Eep. 196; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 294, 46 L. ed. 547, 22 Sup. Ct. Eep. 452; Ex parte Jones, 164 U. S. 691, 41 L. ed. 601, 17 Sup. Ct. Eep. 222. However, an appeal would lie when the case is between a for- eign state and citizens of one of the United States, as it is not within the statute. It may, then, be stated that under the act of March 3, 1891, where the jurisdiction of the circuit court of appeals was based on diversity of citizenship, or any of the grounds mentioned in section 6 of the act which have been referred to above, there can be no review by appeal or error by the Supreme Court of the judgment or decree of the circuit court of appeals in such cases. And this would be true, though after jurisdiction had attached in the circuit court issues are raised and decided bringing the case within either of the clauses set forth in sec- tion 5 of the act of 1891, and by virtue of which the case could have been carried direct to the Supreme Court, but was not, but carried to the circuit court of appeals. See authorities above; American Sugar Eef. Co. v. New Orleans, 181 U. S. 280, 45 L. ed. 861, 21 Sup. Ct. Eep. 646; Spencer v. Duplan Silk Co. 191 U. S. 526, 48 L. ed. 287, 24 Sup. Ct. Eep. 174; APPEALS FROM CIKCUIT COURTS OF APPEALS. I (57 Cary Mfg. Co. v. Acme Flexible Clasp Co. 187 U. S. 428, 47 L. ed. 245, 23 Sup. Ct. Rep. 211; Arbuclde v. Elackbnrn^ 191 U. S. 405, 48 L. ed. 239, 24 Sup. Ct. Rep. 148; Watkins V. King, 55 C. C. A. 290, 118 Fed. 532; Loeb v. Columbia Twp. 179 TJ. S. 479, 45 L. ed. 285, 21 Sup. Ct. Rep. 174. Cannot be two appeals. Ibid. ; Robinson v. Caldwell, 165 U. S. 362, 41 L. ed. 746, 17 Sup. Ct. Rep. 343. If, however, the jurisdiction of the circuit court rests upon diversity of citizenship and a Federal question when the suit is begun, and appears in the pleading in due and logical form, and the case is carried to the circuit court of appeals, and judgment entered in said court, then such judgment would not be final, and an appeal or error would lie to the Supreme Court from the circuit court of appeals' judgment. Howard V. United States, 184 U. S. 676, 46 L. ed. 754, 22 Sup. Ct. Rep. 543; Loeb v. Columbia Twp. 179 U. S. 480, 481, 45 L. ed. 286, 287, 21 Sup. Ct. Rep. 174; Fidelity Mut. Life Asso. V. Mettler, 185 U. S. 315, 46 L. ed. 925, 22 Sup. Ct. Rep. 662; Cound v. Atchison, T. & S. F. R. Co. 173 Fed. 527; Emi^ire State-Idaho Min. & Developing Co. v. Hanley, 198 U. S. 292, 49 L. ed. 1053, 25 Sup. Ct. Rep. 691; Arbuclde V. Blackburn, 191 U. S. 405, 48 L. ed. 239, 24 Sup. Ct. Rep. 148 ; Union P. R. Co. v. Harris, 158 U. S. 328, 39 L. ed. 1003, 15 Sup. Ct. Rep. 843 ; Press Pub. Co. v. Monroe, 164 U. S. 110, 111, 41 L. ed. 368, 17 Sup. Ct. Rep. 40. 'Not final unless depending wholly on diversity. ISTorthern P. R. Co. V. Soderberg, 188 U. S. 526, 47 L. ed. 576, 23 Sup. Ct. Rep. 365. In Montana Min. Co. v. St. Louis Min. & Mill. Co. 186 U. S. 24, 46 L. ed. 1039, 22 Sup. Ct. Rep. 744, it is said when both parties who have been defeated in some part of their con- tention appeal to the circuit court of appeals, and the judg- ment is afiirmed in favor of one party, and reversed by him as to the contention against him, writs of error from the Supreme Court to review each judgment would not lie, because such judgment is not final so far as the jurisdiction of the Supreme Court is concerned. Covington v. First Wat. Bank, 185 U. S. 270, 46 L. ed. 906, 22 Sup. Ct. Rep. 645. When the jurisdiction of the circuit court rests wholly upon a Federal question the Supreme Court alone would have ju- 768 APPEALS FEOM CIECUIT COUBTS OF APPEALS. risdiction of an appeal from the circuit court. American Sugar Eef. Co. V. New Orleans, 181 U. S. 279, 280, 45 L. ed. 860, 861, 21 Sup. Ct. Eep. 646 ; Gary Mfg. Co. v. Acme Flexible Clasp Co. 187 U. S. 428, 47 L. ed. 245, 23 Sup. Ct. Kep. 211 ; Watkins v. King, 55 0. C. A. 290, 118 Fed. 532; Huguley V. Galeton Cotton Mills, 184 U. S. 295, 46 L. ed. 548, 22 Sup. Ct. Rep. 452. There are special statutes dealing with special subjects, and making the judgment of the circuit court of appeals final when called upon to review cases arising under such statutes. In all such cases no appeal to the Supreme Court will lie, nor a writ of error, but a revision, if any, must be by certiorari to the circuit court of appeals. For illustration, see bank- ruptcy act of 1898, sec. 25; U. S. Stat, at L. Vol. 30, p. 553, chap. 541, U. S. Comp. Stat. 1901, p. 3432, and see also an act concerning carriers in interstate commerce, 1898 ; U. S. Stat, at L. Vol. 30, p. 426, chap. 370, sec. 4 of act, U. S. Comp. Stat. 1901, p. 3208. Petition for Appeal or Writ of Error. Title of case as appealed. To the Hon , Chief Justice, or to Any Associate Justice of the Supreme Court of the United States: Now comes the (appellant) by his solicitor and complains that in the record and proceedings, and also in the rendition of the decree (or judg- ment) of the United States Circuit Court of Appeals for the cir- cuit, sitting at , in the State of , in the above styled and numbered cause, on the day of , A. D. 19..., affirming the decree of the United States Circuit Court for the district of in said cause, manifest error has intervened to the great damage of the petitioner; that the jurisdiction of the Circuit Court of the United States for the district of depended upon the fact (that the railroad company defendant was a corporation created by an act of Congress, or any other ground of jurisdiction other than where the juris- diction of the Circuit Court of Appeals is made final) ; that the amount involved therein and the matter in controversy exceeds the sum of one thousand dollars besides costs, and this is not a case in which the juris- diction of the Circuit Court of Appeals is made final. Wherefore petitioner prays for an allowance of the appeal to the end that the cause may be carried to the Supreme Court of the United States, and petitioner prays for a supersedeas of said judgment and such otiier process as is required to perfect the appeal prayed for, to the end that the error therein may be corrected. R. v.. Solicitor. APPEALS FKOM CIKCUIT COURTS OF APPEALS. V69 Appeal and supersedeas allowed, and bond fixed in the sum of dollars, conditioned as the law directs, this the day of A. D. 19 . . . Associate Justice Supreme Court, etc. The appeal may be allowed by any of the justices of the Su- preme Court or any of the judges of the court of appeals. Assignment of Errors. With this petition should be filed an assignment of errors, in form as before given. When the appeal is allowed the clerk of the Supreme Court issues the writ, and the petition and assignment of errors and bond, when approved, are filed with the clerk of the circuit court of appeals. Notice of appeal is issued and the clerk incor- porates certified copies of these proceedings with the record and proceedings in the cause before the circuit court of ap- peals, duly certifies the transcript, and forwards to the clerk of the Supreme Court of the United States. Forms given heretofore for the proceedings in appeals from the circuit court to the circuit court of appeals may be used, the difference being as to time within which the appeal is taken being one year from the circuit court of appeals to the Supreme Court. An appeal from the circuit court of appeals to the Supreme Court in cases of bankruptcy is provided for in sec. 252, New Code, effective January 1st, 1912, allowing or rejecting a claim under the bankrupt laws where the amount in controversy ex- ceeds the sum of two thousand dollars, or when some justice of the Supreme Court shall certify that the question involved al- lowing or rejecting the claim is essential to a uniform construc- tion of the bankrupt law. So any final judgment of the court of appeals of the District of Columbia may be revised by the Supreme Court upon writ of error or appeal. New Code, chap. 10, sec. 250. S. Eq.^9. CHAPTEE CXIX. APPEAL FHOM STATE COURTS TO THE UNITED STATES SUPBEME COUET. I discussed incidentally, under "Federal Questions," appeals from the highest State court to the Supreme Court of the United States. We saw in chapter 27, that by TJ. S. Eev. Stat, sec. 709, U. S. Comp. Stat. 1901, p. 575, a final judgment or decree in any suit in the highest court of a State wherein is drawn in question the validity of a statute or treaty, or au- thority exercised under the United States, and the decision is against their validity; or where is drawn in question the va- lidity of a statute of, or an authority exercised under, any State on the ground of their being repugnant to the Constitu- tion of the United States, its treaties, or laws, and the decision is in favor of their validity; or when any title, right, privilege, or immunity is claimed under the Constitution or any treaty or statute of, or commission held or authority exercised un- der, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such treaty, statute, commission, or au- thority, — ^may be re-examined and reversed or affirmed in the Supreme Court upon vmt of error (see sec. 709, chapter 27). Mutual L. Ins. Co. v. McGraw, 188 U. S. 291, 47 L. ed. 480, 23 L.K.A. .33, 23 Sup. Ct. Eep. 375 ; Western U. Teleg. Co. V. Wilson, 213 U. S. 52, 53 L. ed. 693, 29 Sup. Ct. Eep. 403 ; Atchison, T. & S. F. E. Co. v. Sowers, 213 U. S. 55, 53 L. ed. 695, 29 Sup. Ct. Eep. 397; Keerl v. Montana, 213 U. S. 135, 53 L. ed. 734, 29 Sup. Ct. Eep. 469 ; Kentucky v. Powers, 201 U. S. 1, 50 L. ed. 633, 26 Sup. Ct. Eep. 387, 5 A. & E. Ann. Cas. 692; Chicago, E. I. & P. E. Co. v. Swanger, 157 Fed. 789 ; Johnson v. New York L. Ins. Co. 187 U. S. 491, 492, 47 L. ed. 273, 274, 23 Sup. Ct. Eep. 194. U. S. Eev. Stat. art. 709, is embodied in sec. 237 of the New Code, chap. 10. By U. S. Eev. Stat. sec. 1003, U. S. Comp. Stat. 1901, p. 770 APPEAL FROM STATE COUBTS TO TJ. S. SUPREME COURT. 771 713, it is provided that writs of error from the Supreme Court to the State court shall be issued in the same manner and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered in a United States court. By section 5 of the appellate court act of 1891, the appel- late jurisdiction of the Supreme Court over State courts of last resort involving a Federal question is not affected by that act; and the statutes governing the exercise of that jurisdiction are sections 709, 710, 1003 of the United States Eevised Statutes, and sections 997 to 1013 of the United States Eevised Statutes governing proceedings on error and appeal. Having thus referred to the statutes by which writs of er- ror from the Supreme Court to State courts are controlled, I will, before giving the necessary forms and substance of the statutes governing practice in such cases, state certain rules which have been settled by the cases, and which control the Supreme Court in granting the writs of error to State courts. It will be seen by these rules that the object of this jurisdiction is solely to restrain unconstitutional legislation, and not to cor- rect errors. Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Eep. 80; Eemington Paper Co. v. Wat- son, 173 U. S. 451, 43 L. ed. 764, 19 Sup. Ct. Eep. 456. First. It need not be the decision of the Supreme Court of a State, but it will grant a writ of error to any court of last resort in the State having jurisdiction to determine the case. Thus, if by a State statute any inferior court is authorized 4o finally determine the case, a writ of error will be issued to that court; or when the highest State tribunal refuses to review a case from an inferior court the writ of error will be directed to the inferior court. Bacon v. Texas, 163 U. S. 215, 41 L. ed. 135, 16 Sup. Ct. Eep. 1023 ; Sullivan v. Texas, 207 U. S. 416, 52 L. ed. 274, 28 Sup. Ct. Eep. 215. Second. In order to sustain the jurisdiction of the Federal Supreme Court, it must appear : (a) That a Federal question is presented, and it is apparent from the record. Johnson v. Xew York L. Ins. Co. 187 U. S. 491, 492, 47 L. ed. 273, 274, 2?, Sup. Ct. Eep. 194; Michi- gan Sugar Co. V. Michigan (Michigan Sugar Co. v. Dix) 185 U. S. 112, 46 L. ed. 829, 22 Sup. Ct. Eep. 581 ; San Jose Land 772 APPEAX, FEOM STATE COUETS TO U. S. SUPREME COUET. & Water Co. v. San Jose Ranch Co. 189 U. S. 180, 47 L. ed. 768, 23 Sup. Ct. Eep. 487; Fowler v. Lamson, 164 U. S. 255, 41 L. ed. 424, 17 Sup. Ct. Eep. 112; German Sav. & L. Soc. V. Dormitzer, 192 U. S. 125, 48 L. ed. 373, 24 Sup. Ct. Eep. 221; Seals v. Cone, 188 U. S. 184, 47 L. ed. 435, 23 Sup. Ct. Eep. 275; Kipley v. Illinois, 170 U. S. 186, 42 L. ed. 1001, 18 Sup. Ct. Eep. 550; Turner v. Eichardson, 180 U. S. 87, 45 L. ed. 438, 21 Sup. Ct. Eep. 295 ; Mountain View Min. & Mill. Co. V. McFadden, 180 U. S. 535, 45 L. ed. 656, 21 Sup. Ct. Eep. 488; Scudder v. Comptroller (Scudder v. Coler), 175 tr. S. 36, 44 L. ed. 63, 20 Sup. Ct. Eep. 26; Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 68, 43 L. ed. 368, 19 Sup. Ct. Eep. 97; Zadig v. Baldwin, 166. U. S. 488, 41 L. ed. 1088, 17 Sup. Ct. Eep. 639; Levy v. Superior Ct. 167 U. S. 177, 42 L. ed. 126, 17 Sup. Ct. Eep. 769. It cannot be sup- plied by an assignment of errors. Chapin v. Fye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Eep. 71. (b) That a decision was made thereon, or that such a ques- tion must have arisen and been necessarily involved (Ibid. ; Columbia Water Power Co. v. Columbia Electric Street E. Light & P. Co. 172 U. S. 488, 43 L. ed. 525, 19 Sup. Ct. Eep. 247, and cases cited ; Connecticut ex rel. New York & IST. E. E. Co. V. Woodruff, 153 U. S. 689, 38 L. ed. 869, 14 Sup. Ct Eep. 976 ; Powell v. Bruswick County, 150 TJ. S. 433-440, 37 L. ed. 1134r-1137, 14 Sup. Ct. Eep. 166 ; Fowler v. Lamson, 164 U. S. 255, 41 L. ed. 424, 17 Sup. Ct. Eep. 112; McQuade v. Trenton, 172 U. S. 639-640, 43 L. ed. 582, 19 Sup. Ct. Eep. 292 ; Sayward v. Denny, 158 TJ. S. 184, 39 L. ed. 942, 15 Sup. Ct. Eep. 777; Castillo v. McConnico, 168 U. S. 679, 42 L. ed. 624, 18 Sup. Ct. Eep. 229 ; Yazoo & M. Valley E. Co. v. Adams, 180 U. S. 48, 45 L. ed. 418, 21 Sup. Ct. Eep. 256; Allen V. Southern P. E. Co. 173 U. S. 489, 43 L. ed. 778, 19 Sup. Ct. Eep. 518 ; Schlemmer v. Buffalo E. & P. E. Co. 205 U. S. 1, 2, 51 L. ed. 681, 27 Sup. Ct. Eep. 407; Bachtel v. Wilson, 204 U. S. 36, 51 L. ed. 357, 27 Sup. Ct. Eep. 243 ; see Gulf & S. I. E. Co. v. Hewes, 183 U. S. 66, 67, 46 L. ed. 86, 87, 22 Sup. Ct. Eep. 26), in the case, and the decision as made comes within the provisions of the United States Eevised Statutes, sec. 709, U. S. Comp. Stat. 1901, p. 575 (ISTorthern P. E. Co. V. EUis, 144 U. S. 464, 36 L. ed. 506, 12 Sup. Ct. APPEAL FEOM STATE COURTS TO IT. S. SUPREME COURT. 773 Eep. 724; Hammond v. Johnston, 142 U. S. 73, 35 L. ed. 941, 12 Sup. Ct. Eep. 41; Powell v. Brunswick County, 150 U. S. 439, 37 L. ed. 1136, 14 Sup. Ct. Eep. 166; Eogers v. Jones, 214 U. S. 196, 53 L. ed. 965, 29 Sup. Ct. Eep. 635). The decision must be against the Federal question. Baker v. Baldwin, 187 II. S. 61, 47 L. ed. 75, 23 Sup. Ct. Eep. 19; Kizer V. Texarkana & Ft. S. E. Co. 179 U. S. 199, 45 L. ed. 152, 21 Sup. Ct. Eep. 100 ; Chesapeake & 0. E. Co. v. Mc- Donald, 214 U. S. 193, 53 L. ed. 964, 29 Sup. Ct. Eep. 546; Eustis V. Bolles, 150 U. S. 361-366, 37 L. ed. 1111, 1112, 14 Sup. Ct. Eep. 131. However, when the case arises under the third section of U. S. Eev. Stat. sec. 709, where a right, title, privilege, or immunity is claimed, there can be no inference from the case that it was involved; it must be specifically set up and must be claimed by the plaintiff in error, and not a third person. Ludeling v. Chaffe, 143 U. S. 301, 36 L. ed. 313, 12 Sup. Ct. Eep. 439 ; Braxton County Ct. v. West Vir- ginia, 208 U. S. 192, 52 L. ed. 450, 28 Sup. Ct. Eep. 275; Giles V. Little, 134 U. S. 645, 33 L. ed. 1062, 10 Sup. Ct. Eep. 623; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 658, 41 L. ed. 1152, 17 Sup. Ct. Eep. 709 ; Yazoo & M. Valley E. Co. V. Adams, 180 U. S. 14, 45 L. ed. 404, 21 Sup. Ct. Eep. 240 Columbia Water Power Co. v. Columbia Electric Street E. Light & P. Co. 172 U. S. 488, 43 L. ed. 525, 19 Sup. Ct. Eep. 247; Chesapeake & 0. E. Co. v. McDonald, 214 U. S. 103, 53 L. ed. 964, 29 Sup. Ct. Eep. 546. (c) A bare averment of a Federal question is not sufficient. Goodrich V. Ferris, 214 U. S. 71, 53 L. ed. 914, 29 Sup. Ct. Eep. 580; ISTew Orleans v. New Orleans Waterworks Co. 142 U. S. 87, 35 L. ed. 946, 12 Sup. Ct. Eep. 142 ; St. Louis, G. & Ft. S. E. Co. V. Missouri, 156 U. S. 483, 39 L. ed. 504, 15 Sup. Ct. Eep. 443 ; Clarke v. McDade, 165 U. S. 173, 41 L. ed. 674, 17 Sup. Ct. Eep. 284; St. Paul, M. & M. E. Co. v. St. Paul & K P. E. Co. 15 C. C. A. 167, 32 U. S. App. 372, 68 Fed. 11; Fayerweather v. Eitch, 195 U. S. 299, 49 L. ed. 210, 25 Sup. Ct. Eep. 58 ; Sawyer v. Piper, 189 U. S. 154, 47 L. ed. 757, 23 Sup. Ct. Eep. 633 ; New York C. & H. E. E. Co. V. New York, 186 U. S. 269, 46 L. ed. 1158, 22 Sup. Ct. Eep. 916; Mutual L. Ins. Co. v. McGrew, 188 U. S. 291, 47 L. ed. 480, 63 L.E.A. 33, 23 Sup. Ct. Eep. 375. 774 APPEAL FEOM STATE COUETS TO U. S. SUPREME COUET. (d) It must be a real, not fictitious, Federal question. Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Eep. 353; Wilson v. North Carolina, 169 U. S. 595, 42 L. ed. 871, 18 Sup. Ct. Eep. 435 ; Nashville, C. & St. L. E. Co. V. Taylor, 86 Fed. 182;Farrell v. O'Brien (O'Calla- ghan V. O'Brien), 199 U. S. 100, 50 L. ed. 107, 25 Sup. Ct. Eep. 727; Swing v. Weston Lumber Co. 205 U. S. 275, 51 L. ed. 799, 27 Sup. Ct. Eep. 497; New Orleans Waterworks Co. V. Louisiana, 185 U. S. 336, 46 L. ed. 936, 22 Sup. Ct. Eep. 691. Third. It must appear that, though the Federal question was raised, the decision was not, or could not have been, made under rules of general jurisprudence broad enough in them- selves to sustain the judgment without considering the Federal question. Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Eep. 131; Connecticut ex rel. New York & N. E. E. Co. V. Woodruff, 153 U. S. 689, 38 L. ed. 869, 14 Sup. Ct. Eep. 976; Eogers v. Jones, 214 U. S. 196, 53 L. ed. 965, 29 Sup. Ct. ]^ep. 635 ; Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635 ; Bacon v. Texas, 163 U. S. 227, 41 L. ed. 139, 16 Sup. Ct. Eep. 1023; Missouri P. E. Co. v. Fitzgerald, 160 U. S. 576, 40 L. ed. 540, 16 Sup. Ct. Eep. 389; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Eep. 142 ; Delaware City S. & P. S. B. Nav. Co. v. Eeybold, 142 U. S. 643, 35 L. ed. 1144, 12 Sup. Ct. Eep. 290; O'Neil V. Vermont, 144 U. S. 336, 36 L. ed. 457, 12 Sup. Ct. Eep. 693 ; New York C. & H. E. E. Co. v. New York, 186 U. S. 269, 46 L. ed. 1158, 22 Sup. Ct. Eep. 916. Fourth. When it appears the State decision was correct, regardless of the Federal question, jurisdiction will not attach. Hammond v. Johnston, 142 U. S. 78, 35 L. ed. 942, 12 Sup. Ct. Eep. 141. Fifth. The Federal question must be raised in the original pleadings and not in the proceedings after the State court's judgment (Chesapeake & O. E. Co. v. McDonald, 214 U. S. 191, 53 L. ed. 963, 29 Sup. Ct. Eep. 546; McCorquodale v. Texas, 211 U. S. 432, 53 L. ed. 269, 29 Sup. Ct. Eep. 146 ; Meyer v. Eichmond, 172 U. S. 92, 43 L. ed. 377, 19 Sup. Ct. Eep. 106 ; Loeber v. Schroeder, 149 U. S. 585, 37 L. ed. 859, 13 Sup. Ct. Eep. 934; Turner v. Eichardson, 180 U. S. 87, APPEAL FROM STATE COURTS TO U. S. SUPREME COURT. 775 45 L. ed. 438, 21 Sup. Ct. Rep. 295- Pirn v. St. Louis, 165 U. S. 273, 41 L. ed. 714, 17 Sup. Gt, Eep. 322 ; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Eep. 709 ; Zadig v. Baldwin, 166 U. S. 488, 41 L. ed. 1088, 17 Sup. Ct. Rep. 639; Erie R. Co. v. Purdy, 185 U. S. 148, 46 L. ed. 848, 22 Sup. Ct. Rep. 605 ; Layton v. Missouri, 187 U. S. 356, 47 L. ed. 214, 23 Sup. Ct. Rep. 137; Miller v. Cornwall R. Co. 168 U. S. 133, 42 L. ed. 410, 18 Sup. Ct. Rep. 34; Sayward v. Denny, 158 U. S. 183, 39 L. ed. 942, 15 Sup. Ct. Rep. 777; Chapin v. Fye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Rep. 71 ; Burt v. Smith, 203 U. S. 129, 51 L. ed. 121, 27 Sup. Ct. Rep. 37; Osborne v. Clark, 204 U. S. 565, 51 L. ed. 619, 27 Sup. Ct. Rep. 319; Mailers v. Com- mercial Loan & T. Co. 216 U. S. 613, 54 L. ed. 638, 30 Sup. Ct. Rep. 438; Harding v. Illinois, 196 U. S. 78, 49 L. ed. 394, 25 Sup. Ct. Rep. 176), and by plaintiff or defendant. But since the rule of the Supreme Court was promulgated requiring opinions of the court below to be sent up with the record, it is held sufficient to give jurisdiction if the Federal question is fully considered in the opinion of the State court and ruled against the plaintiff in error. San Jose Land & Water Co. v. San Jose Ranch Co. 189 U. S. 179, 180, 47 L. ed. 766, 768, 23 Sup. Ct. Rep. 487; Dibble v. Bellinghnm Bav Land Co. 163 U. S. 69, 41 L. ed. 74, 16 Sup. Ct. Rep. 939 ; Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. 174; Chambers v. Baltimore & 0. R. Co. 207 U. S. 142, 52 L. ed. 143, 28 Sup. Ct. Rep. 34; German Sav. & L. Soc. v. Dormitzer, 192 U. S. 127, 48 L. ed. 376, 24 Sup. Ct. Rep. 221. Thus, it is said that, though a Federal right is not set up in tlie original petition or earlier proceedings, yet if it clearly appear from the opinion of the State court that a Federal question was in issue and was actually decided against the Federal claim, and such decision was essential to the judgment, then the Supreme Court would re-examine the case. Ibid.; IMontana ex rel. Haire v. Rice, 204 U. S. 291, 51 L. ed. 490, 27 Sup. Ct. Rep. 281 ; San Jose Land & Water Co. V. San Jose Ranch Co. 189 IT. S. 177, 47 L. ed. 765, 23 Sup. Ct. Rep. 487. In Weber v. Rogan, 188 U. S. 14, 47 L. ed. 365, 23 Sup. Ct. Rep. 263, it is decided that a Federal question is raised too 776 APPEAL FEOM STATE COTJETS TO U. S. SUPEEME COUET4 late where it is first suggested in an application for a rehear- ing, citing Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Eep. 874; Eastern Bldg. & L. Asso. v. Welling, 181 U. S. 47, 45 L. ed. 739, 21 Sup. Ct. Eep. 531 ; McCorquo- dale V. Texas, 211 U. S. 437, 53 L. ed. 271, 29 Sup. Ct. Eep. 146 ; Loeber v. Schroeder, 149 U. S. 580, 37 L. ed. 856, 13 Sup. Ct. Eep. 934; Pirn v. St. Louis, 165 U. S. 273, 41 L. ed. 714, 17 Sup. Ct. Eep. 322 ; Turner v. Eicbardson, 180 U. S. 87, 45 L. ed. 438, 21 Sup. Ct. Eep. 295 ; Mutual L. Ins. Co. v. McGrew, 188 U. S. 291, 47 L. ed. 480, 63 L.E.A. 33, 23 Sup. Ct. Eep. 375 ; Mailers v. Commercial Loan & T. Co. 216 U. S. 613, 54 L. ed. 638, 30 Sup. Ct. Eep. 438; Forbes v. State Council, 216 U. S. 396, 54 L. ed. 534, 30 Sup. Ct. Eep. 295. But in Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Eep. 730, 15 Am. Crim. Eep. 241, it was held that a Federal question raised by an application for re- hearing is not too late when that court proceeds to discuss the Federal question in denying the application. McCorquodale V. Texas, 211 U. S. 437, 53 L. ed. 269, 29 Sup. Ct. Eep. 146, and cases cited. Leigh v. Green, 193 IT. S. 79, 48 L. ed. 623, 24 Sup. Ct. Eep. 390 ; McKay v. Kalyton, 204 U. S. 458, 51 L. ed. 566, 27 Sup. Ct. Eep. 346; Sullivan v. Texas, 207 U. S. 416, 52 L. ed. 274, 28 Sup. Ct. Eep. 215. And in Eothschild v. Knight, 184 U. S. 339, 46 L. ed. 579, 22 Sup. Ct. Eep. 391, it is said that where the Federal question was raised on writ of error to the supreme court of the State, it would be sufficient, citing several cases (Corkran Oil & Development Co. v. Arnaudet, 199 U. S. 193, 50 L. ed. 149, 26 Sup. Ct. Eep. 41 ; see Mailers v. Commercial Loan & T. Co. 216 U. S. 613, 54 L. ed. 638, 30 Sup. Ct. Eep. 438) ; but not where raised for the first time in a petition for rehear- ing to the State supreme court (Kansas City Star Co. v. Julian, 215 U. S. 589, 54 L. ed. 840, 30 Sup. Ct. Eep. 406). Sixth. It must appear that the Federal question was pre- sented, distinctly ruled upon, and denied. Fowler v. Lamson, 164 U. S. 255, 41 L. ed. 425, 17 Sup. Ct. Eep. 112; Western U. Teleg. Co. v. Wilson, 213 U. S. 52, 53 L. ed. 693, 29 Sup. Ct. Eep. 403; Eustis v. Bolles, 150 U. S. 362, 37 L. ed. 1111, 14 Sup. Ct. Eep. 131 ; Atchison, T. & S. F. E. Co. v. Sowers, 213 U. S. 55, 53 L. ed. 695, 29 Sup. Ct. Eep. 397; Powell APPEAL FROM STATE COUETS TO U. S. SUPREME COURT. 777 V. Brunswick County, 150 U. S. 439, 440, 37 L. ed. 1136, 1137, 14 Sup. Ct. Eep. 166 ; Harrison v. Morton, 171 U. S. 47, 43 L. ed. 66, IS Sup. Ct. Eep. 742 ; Michigan Sugar Co. v. Michi- giin (Michigan Sugar Co. v. Dix), 185 U. S. 112, 46 L. ed. 829, 22 Sup. Ct. Eep. 581. And the fact that the State court declared no Federal question exists does not affect the right to a writ of error. Missouri, K. & T. E. Co. v. Elliott, 184 U. S. 530, 46 L. ed. 673, 22 Sup. Ct. Eep. 446. Where the State court declines to pass on the Federal question, the issue is not so raised as to give the Supreme Court jurisdiction (Erie E. Co. V. Purdy, 185 U. S. 148, 46 L. ed. 847, 22 Sup. Ct, Eep. 605 ; Schlemmer v. Buffalo, E. & P. E. Co. 205 U. S. 11, 51 L. ed. 685, 27 Sup. Ct. Eep. 407), when it is not set up in the original pleadings; but if set vip in the pleadings, then the refusal of the court to pass upon it would not oust the jurisdic- tion, where there was a fair ground for asserting the Federal question (New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 46 L. ed. 936, 22 Sup. Ct. Eep. 691). Illustrative cases: Yates v. Jones JSTat. Bank, 206 IT. S. 167, 51 L. ed. 1009, 27 Sup. Ct. Eep. 638, and cases cited; North- ern P. E. Co. V. Minnesota, 208 U. S. 583, 52 L. ed. 630, 28 Sup. Ct. Eep. 341 ; Texas & P. E. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Eep. 350, 9 A. & E. Ann. Cas. 1075; Hammond v. Whittredge, 204 U. S. 538, 51 L. ed. 606, 27 Sup. Ct. Eep. 396; Western Turf Asso. V. Greenberg, 204 U. S. 359, 51 L. ed. 520, 27 Sup. Ct. Eep. 384; St. Louis I. M. & S. E. Co. v. Taylor, 210 U. S. 281, 52 L. ed. 1061, 28 Sup. Ct. Eep. 616; Jacobs v. Marks, 182 U. S. 583, 45 L. ed. 1241, 21 Sup. Ct. Eep. 865 ; Gulf & S. L E. Co. V. Hewes, 183 U. S. 67, 46 L. ed. 87, 22 Sup. Ct. Eep. 26; Tullock v. Mulvane, 184 U. S. 497, 46 L. ed. 657, 22 Sup. Ct. Eep. 372 ; Talbot v. First Nat. Bank, 185 U. S. 172, 46 L. ed. 857, 22 Sup. Ct. Eep. 612; Cummings v. Chi- cago, 188 U. S. 410, 47 L. ed. 525, 23 Sup. Ct. Eep. 472 ; De- troit, Ft. W. & B. I. E. Co. V. Osborn, 189 U. S. 383, 47 L. ed. 860, 23 Sup. Ct. Eep. 540; Hlinois C. E. Co. v. McKen- dree, 203 U. S. 514, 51 L. ed. 298, 27 Sup. Ct. Eep. 153; Williams v. First Nat. Bank, 216 U. S. 582, 54 L. ed. 625, 30 Sup. Ct. Eep. 441, held to involve a Federal question support- ing the writ of error and California Powder Works v. Davis, 778 APPEAL FBOM STATE COUETS TO U. S. SUPREME COUKT. 151 U. S. 389, 38 L. ed. 206, 14 Sup. Ct. Eep. 350; Mis- souri P. E. Co. V. Fitzgerald, 160 U. S. 556, 40 L. ed. 536, 16 Sup. Ct. Eep. 389 ; Chadwiek v. Kelley, 187 U. S. 540, 47 L. ed. 293, 23 Sup. Ct. Eep. 175 ; Avery v. Popper, 179 IT. S. 305, 45 L. ed. 203, 21 Sup. Ct. Eep. 94; Hooker v. Los An- geles. 188 U. S. 314, 47 L. ed. 487, 63 L.E.A. 471, 23 Sup. Ct. Eep. 395; Iowa v. Eood, 187 U. S. 87, 47 L. ed. 86, 23 Sup. Ct. Eep. 49 ; Mobile Transp. Co. v. Mobile, 187 U. S. 480, 47 L. ed. 267, 23 Sup. Ct. Eep. 170; Johnson v. New York L. Ins. Co. 187 U. S. 492, 47 L. ed. 273, 23 Sup. Ct. Eep. 194; Layton v. Missouri, 187 U. S. 356, 47 L. ed. 214, 23 Sup. Ct. Eep. 137; Londoner v. Denver, 210 U. S. 373, 52 L. ed. 1103, 28 Sup. Ct. Eep. 708; Mobile, J. & K. C. E. Co. v. Mississippi, 210 U. S. 187, 52 L. ed. 1016, 28 Sup. Ct. Eep. 650; Delmar Jockey Club v. Missouri, 210 U. S. 324, 52 L. ed. 1080, 28 Sup. Ct. Eep. 732; Elder v. Wood, 208 U. S. 226, 52 L, ed. 464, 28 Sup. Ct. Eep. 263 ; Vandalia E. Co. v. Indiana, 207 U. S. 359, 52 L. ed. 246, 28 Sup. Ct. Eep. 130; Elder V. Colorado, 204 U. S. 85, 51 L. ed. 381, 27 Sup. Ct. Eep. 223 ; Patterson v. Colorado, 205 U. S. 454, 51 L. ed. 879, 27 Sup. Ct. Eep. 556, 10 A. & E. Ann. Cas. 689 ; Atlantic Coast Line E. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Eep. 585, 11 A. & E. Ann. Cas. 398; Stone v. Southern Illinois & M. Bridge Co. 206 U. S. 267, 51 L. ed. 1057, 27 Sup. Ct. Eep. 615; Smith v. Jennings, 206 U. S. 276, 51 L. ed. 1061, 27 Sup. Ct. Eep. 610; Fair Haven & W. E. Co. v. New Haven, 203 U. S. 379, 51 L. ed. 237, 27 Sup. Ct. Eep. 74; Standard Oil Co. v. Tennessee, 217 U. S. 413, 54 L. ed. 817, 30 Sup. Ct. Eep. 543 ; Williams v. First Nat. Bank, 216 U. S. 582, 54 L. ed. 625, 30 Sup. Ct. Eep. 441, — held not to present a Federal question. The alleged error of a State court in not following the law of another State raises no Federal question. Terry v. Davy, 46 C. C. A. 141, 107 Fed. 50; see Johnson v. New York L. Ins. Co. 187 U. S. 491, 47 L. ed. 273, 23 Sup. Ct. Eep. 194. Seventh. A writ of error goes only to a final judgment of the State court (McKnight v. James, 155 U. S.' 687, 39 L. ed. 311, 15 Sup. Ct. Eep. 248; Great Western Teleg. Co. v. Burnham, 162 U. S. 341, 40 L. ed. 992, 16 Sup. Ct. Eep. 850) ; not orders of a judge in chambers (Lambert v. Barrett, 137 U. APPEAL PEOM STATE COUETS TO U. S. SUPEEME COUET. 779 S. 700, 39 L. ed. 866, 15 Sup. Ct Eep. 722; Ex parte Jacobi, 104 Eed. 6S1). PEOCEDTJBE. Time Within Which to Sue Out Writ. By U. S. Eev. Stat. sec. 1008, U. .S. Comp. Stat. 1901, p. 715^ a writ of error must be sued out withiii two years after the judgment of the State court, except when the party is under disability of infancy, insanity, or imprisonment, then two years from the removal of the disability. Amount Involved. Where a decision of a State court involves any of the ques- tions indicated in section 709 of the United States Revised Statutes, U. S. Comp. Stat. 1901, p. 575, as given above, the Supreme Court may revise by writ of error the decision of the State court of last resort, without any reference to the amount involved. The Habana, 175 U. S. 683, 684, 44 L. ed. 322, 323, 20 Sup. Ct. Eep. 290. It is the Federal question that gives jurisdiction under section 709, and not the value of the subject-matter; and here I will call your attention to amount and value as an element in the appellate jurisdiction of the Supreme Court, and the changes that have been made in the history of that court as to amount as a controlliug factor in its jurisdiction. Kirby v. American Soda Fountain Co. 194 IT. S. 144, 48 L. ed. 912, 24 Sup. Ct. Rep. 619. Effect of Amount on Appellate Jurisdiction of the Supreme Court. For a century after the organization of the government the judiciarv acts imposed pecuniary limits on appellate jurisdic- tion. The Habana, 175 U. S. 680, 44 L. ed. 321, 20 Sup. Ct. Eep. 290. For a long time it was fixed at two thousand dollars, and in 1875 it was raised to five thousand dollars. In 1889 it was provided (25 Stat, at L. p. 693, chap. 236), that when the judgment or decree did not exceed five thousand dollars the Supreme Court would have appellate jurisdiction on an issue of jurisdiction in the circuit court of the United 780 APPEAL PEOM STATE COUETS TO U. S. SUPREME COTJET. States, and upon that issue only; but if the amount of the decree exceeded five thousand dollars, then the Supreme Court could decide all the issues in the case on the merits. Parker V. Ormsby, 141 U. S. 81, 35 L. ed. 654, 11 Sup. Ct. Eep. 912 ; Tupper v. Wise, 110 U. S. 398, 28 L. ed. 189, 4 Sup. Ct. Eep. 26; Gibson v. Shufeldt, 122 U. S. 38, 30 L. ed. 1087, 7 Sup. Ct. Eep. 1066. Thus stood the law until 1891, when it was changed by the act of March 3d of that year This act created a new and com- plete scheme of appellate jurisdiction (see 26 Stat, at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 547), and under this act the appellate jurisdiction of the Supreme Court was made to rest rather on the nature of the case than on the amount in- volved. As the appellate jurisdiction of the Supreme Court now stands, you may appeal from the circuit courts of the United States on a question of jurisdiction direct to the Supreme Court without reference to amount. The Habana, 175 TJ. S. 682, 683, 44 L. ed. 322, 20 Sup. Ct. Eep. 290 ; Kirby v. American Soda Fountain Co., 194 U. S. 144, 48 L. ed. 912, 24 Sup. Ct'Eep. 619. In McLish v. Eoff, 141 TJ. S. 661, 35 L. ed. 893, 12 Sup. Ct. Eep. 118, the repealing clause of the act of 1891 was held to remove any question of amount as affecting jurisdiction, and sections 692 and 695 of the United States Eevised Statutes were held repealed by implication. In appeals by writ of error from the Supreme Court of the United States to the State court of last resort, no amount is required to give jurisdiction under section 709 of the United States Eevised Statutes authorizing the writ to issue. The Habana, 175 U. S. 683, 44 L. ed. 322, 20 Sup. Ct. Eep. 290. In appeals from the circuit court of appeals to the Supreme Court of the United States the act of 1891 imposes a pecuniary limit of one thousand dollars in all cases not made final in the circuit court of appeals; that is, in order to appeal in this class of cases, the amount involved must exceed one thou- sand dollars besides costs. And if this should not appear in the record you may supply it by affidavits. (United States v. Trans-Missouri Freight Asso. 166 U. S. 310, 41 L. ed, 1017, 17 Sup. Ct. Eep. 540; Whi+eside v. Haselton, 110 U. S. 297, 28 L. ed. 153, 4 Sup. Ct. Eep. 1; Eector v. Lipscomb, APPEAL FKOJI STATE COUETS TO tj. S. SUPREME COUKT. 781 141 U. S. 557, 35 L. ed. 857, 12 Sup. Ct. Eep. 83), which may be rebutted by counter-afSdavits (Ibid.) ; but in determin- ing amount, if the judgment is against the plaintiff, the amount in good faith claimed should control, but if the judgment be against the defendant then the amount of the judgment must control (Gorman v. Havird, 141 U. S. 208, 35 L. ed. 718, 11 Sup. Ct. Eep. 943 ; J. P. Jorgenson Co. v. Eapp, 85 C. C. A. 364, 157 Fed. 738; New Mexico v. Atchison, T. & S. F. E. Co. 201 U. S. 41, 50 L. ed. 651, 26 Sup. Ct. Eep. 386), unless there be a coimterclaim disallowed (Buckstaff v. Eussell & Co. 151 U. S. 626, 38 L. ed. 292, 14 Sup. Ct. Eep. 448). In the bankrupt act of July 1, 1898, an appeal to the Su- preme Court from the circuit court of appeals is allowed if the amount in controversy, in the allowance or rejection of a claim, exceeds two thousand dollars and a Federal question is in- volved; otherwise the judgment of the circuit court of appeals is final and the question can only be taken to the Supreme Court by certiorari. 30 Stat, at L. 553, chap. 541. PEACTICE IN APPEALS. Practice. By TJ. S. Eev. Stat. sec. 1003, TJ. S. Oomp. Stat. 1901, p. 713, vTrits of error from the Supreme Court to the State court of last resort are issued and prosecuted in the same manner and are to have the same effect as if the judgment or decree ap- pealed from was rendered in the United States court. TJ. S. Eev. Stat. sec. 709, TJ. S. Comp. Stat. 1901, p. 575. So, then, bearing in mind the conditions above stated, and this statute, you may prepare your petition for the writ of error as follows : Petition for Writ. A. B. -\ vs. C In Equity. CD. ) In the Supreme Court of the United States, Term, A. D. ]9... To the Honorable , Chief Justice of the Supreme Court of the United States, and the Associate Justices of said Court: Now comes A. B., plaintiff in the above cause, and would show unto this 782 APPEAL FEOM STATE COURTS TO tJ, S. SUPREME COTJET. Honorable Court that in the record and proceedings, and rendition of the decree in the above cause by tlie Sxipreme Court of the State of , it being the highest court of said State in which a decision could be had on the said suit between A. B. and C. D., manifest error has occurred, greatly to his damage, whereby petitioner feels aggrieved. That in the record and proceedings it will appear that there was drawn in question (the validity of a statute, or a treaty, or an authority exer- cised under the United States, and the decision was against their valid- ity ) , or ( the validity of a statute or an authority exercised under said State on the ground of repugnancy to the constitution, laws or treaties of the United States, and the decision was in favor of the validity of the law of the State), or (there was drawn in question the construction of a clause of the constitution, or of a treaty, or statute or commission held under the United States, and the decision was against the right, title, privilege, or exemption specially set up or claimed under such clause, treaty, statute or commission) (the Federal question particularly involved in your case being specically stated, then proceed) ; all of which is fully apparent in the record and proceedings of the case, and specifically set forth in the assignment of errors filed herewith. Wherefore petitioner prays that his appeal be allowed and that a transcript of the record, proceedings and papers upon which said orders were made, duly authenticated, be ordered sent to the Supreme Court of the United States, at Washington, D. C, under the rules of said court iu such cases made and provided, that the same may be inspected and cor- rected as according to law and justice should be done. R. F., Solicitor. By Whom Citation Signed and Appeal Allowed. By section 999, TJ. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 712, it is provided that when a writ of error is issiied to a State court the citation shall , be signed by the chief justice, judge or chancellor of the State court in which judgment was rendered, or by a justice of the Supreme Court of the United States, and at least thirty days notice given. Bartemeyer v. Iowa, 14 Wall. 28, 20 L. ed. 792 ; Palmer v. Donner, 7 Wall. 541, 19 L. ed. 99; Twitchell v. Pennsylvania, 7 Wall. 324, 19 L. ed. 223 ; Haynor v. New York, 170 U. S. 410, 42 L. ed. 1088, 18 Sup. Ct. Eep. 631; Felix v. Scharnweber, 125 U. S. 59, 31 L. ed. 688, 8 Sup. Ct. Eep. 759; Butler v. Gage, 138 U. S. 66, 34 L. ed. 871, 11 Sup. Ct. Eep. 235. It may be allowed by any of the judicial officers above named APPEAL FROM STATE COTJETS TO IT. S. SUPREME COUET. 783 (Ibid. Gleason v. Florida, 9 Wall. 779, 19 L. ed. 730; Aid- rich v. ^tna Ins. Co. 8 Wall. 495, 19 L. ed. 475; Ex parte Chadwick, 159 Fed. 576; Haynor v. New York, 170 U. S. 411, 42 L. ed. 1088, 18 Sup. Ct. Eep. 631), but only by those named. Thus where the Supreme Court of a State was composed of a chief justice and three associate justices, a writ allowed by an associate justice will be dismissed. It must be allowed by the chief justice (see authorities above; Barte- meyer v. Iowa, 14 Wall. 28, 20 L. ed. 792; Northwestern Union Packet Co. v. Home Ins. Co. 154 U. S. 588, and 20 L. ed. 463, 14 Sup. Ct. Eep. 1168) ; but in the absence of the chief justice the presiding justice may act, it being shown that he was acting as chief justice (Ibid. ; Butler v. Gage, 138 U. S. 56, 34 L. ed. 871, 11 Sup. Ct. Eep. 235 ; Missouri Valley Land Co. v. Wiese, 208 U. S. 234, 52 L. ed. 463, 28 Sup. Ct. Eep. 294). So the judge, chancellor, or presiding judge of any inferior State court of last resort in the particular case may allow the writ and sign the citation. The allowance is essential to the jurisdiction of the Supreme Court. Gleason v. Florida, 9 Wall. 783, 19 L. ed. 731; Northwestern Union Packet Co. v. Home Ins. Co. 154 U. S. 588, and 20 L. ed. 463, 14 Sup. Ct. Eep. 1168. It is not a matter of right Twitehell v. Pennsylvania, 7 Wall. 324, 19 L. ed. 223. The petition must be accompanied with an assignment of errors (see form of assignment), and when made to a justice of the Supreme Court of the United States it must be ac- companied with a complete record from the State court, so that the justice to whom the application is made may ascertain whether a question cognizable on appeal was made and decided in the proper State court, and whether the face of the record will justify the allowance of the writ. Ibid. Order of Allowance. Title as in bill. Court where allowed. On this the day of , A. D. 19..., came on to be heard the application of A, B., plaintiff (or the defendant), said plaintiff being 784 APPEAL FROM STATE COURTS TO IT. S. SUPREME COUET. represented by counsel, for a writ of error, and it appearing to the court from the petition filed herein, and the record filed therewith, that the application ought to be granted and that a transcript of the record and proceedings and papers upon which the judgment of the court was ren- dered, properly certified, should be sent to the Supreme Court of the United States, as prayed for in the petition, that such proceedings may be had as will be just in the premises. It is therefore ordered that the writ of error be allowed upon the plain- tiff giving bond, conditioned as the law directs, in the sum of dollars (which may operate as a supersedeas; if so, add it), and that a true copy of the record, assignment of errors and all proceedings had in the case in the court of shall be transmitted to the Supreme Court of the United States, properly certified as the law directs, that the said court may inspect the same and do what according to law should be done. However, a formal order is not necessary if the citation is signed, and the writ of error is indorsed, allowed as seen in form hereafter given. The court upon the application may grant the writ of error, and if to the State supreme court from the Supreme Court of the United States, the following form may be used : The President of the United States to the Honorable Judges of the Su- preme Court of the State of , or to the Presiding Judge or Chancellor of the Court of the State of , etc. — Greeting: Because in the record and proceedings, as also in the rendition of the judgment, of a, plea wliich is in said court before you, or some of you, between (state parties), your court being the highest court of said State having jurisdiction to render judgment in the case; there was drawn in question (here state any of the grounds indicated in U. S. Eev. Stat., 907, authorizing the writ), and the decision Avas against the validity (or in favor of the validity), etc., and there being manifest error in said decision greatly to the damage of A. B., the petitioner In error, and we being willing that if there is error it should be duly corrected, we do therefore command you, if judgment be therein given, that under the seal of your court you send tlie record and proceedings had in said cause to the Supreme Court of the United States, together with this writ, so that you have the same at Washington on the day of , A. D. 19. . ., in the Supreme Court to be then and there held, that the record may be inspected by said court and justice done. Witness the Hon , Chief Justice of the Supreme Court, the day of , in the year of our Lord 19 . . . [SEAL.] Clerk of the Supreme Court of the United States. Allowed on , giving bond according to law in the sum of dollars. L. M., Justice of the Supreme Court APPEAI. FBOM STATE COUETS TO U. S. SUPREME COUET. 785 The same form may be used ■when granted by the chief jus- tice of the State court or judge or chancellor finally deciding the case. The writ is a writ of the Supreme Court of the Unit- ed States without reference to who issues it, and whoever aflows it and issues the citation, but exercises an authority vested by CongTess in him concurrently with each of the justices of the Supreme Court (Felix v. Schamweber, 125 U. S. 59, 31 L. ed. 688, 8 Sup. Ct. Eep. 759 ; Havnor v. New York, 170 U. S. 411, 42 L. ed. 1088, 18 Sup. Ct. Rep. 631; Glea- son V. Florida, 9 Wall. 783, 19 L. ed. 731; Bartemeyer v. Iowa, 14 Wall. 28, 20 L. ed. 792), except that it is directed to the court of last resort deciding the case, instead of the Supreme Court of the State, and is signed by the clerk and endorsed by the judge of the court allowing it : "Allowed, M. F., judge, etc." Effect of the allowance and Certificate of a Judge or Chan- cellor of a Statp Court. While a chief justice, judge, or chancellor of a State court may allow the writ, yet certifying such allowance, and the grounds for it, cannot supply the want of evidence in the record that a Federal question which would authorize the writ under TJ. S. Eev. Stat. sec. 709, U. S. Comp. Stat. 1901, p. 575, did exist. Felix v. Schamweber, 125 U. S. 59, 31 L. ed. 688, 8 Sup. Ct. Eep. 759 ; Louisville & N. E. Co. v. Smith H. & Co. 204 U. S. 551, 61 L. ed. 612, 27 Sup. Ct. Eep. 401; Eector v. City Deposit Bank Co. 200 U. S. 405, 50 L. ed. 527, 26 Sup. Ct. Eep. 289; Allen v. Arguimban, 198 U. S. 149, 49 L. ed. 990, 25 Sup. Ct. Eep. 622 ; Home for Incurables V. ITew York, 187 U. S. 155, 47 L. ed. 117, 63 L.E.A. 329, 23 Sup. Ct. Eep. 84; Gulf & S. I. E. Co. v. Hewes, 183 U. S. 66, 46 L. ed. 86, 22 Sup. Ct. Eep. 26; Yazoo & M. Valley E. Co. v. Adams, 180 U. S. 41, 42, 45 L. ed. 415, 416, 21 Sup. Ct. Eep. 256. The oiBce of such certification is not to originate a Federal question, but to make it more specific and certain. Ibid. ; Parmelee v. Lawrence, 11 Wall. 39, 20 L. ed. 49; ISTewport Light Co. V. Newport, 151 U. S. 537, 38 L. ed. 262, 14 Sup. Ct. Eep. 429; Yazoo & M. Valley E. Co. v. Adams, 180 S. Eq.— 50. 78G APPEAL FEOM STATE COUETS TO U. S. SUPEEME COUET. U. S. 48, 45 L. ed. 418, 21 Sup. Ct. Rep. 256 ; Hulbert v. Chicago, 202 U. S. 275, 50 L. ed. 1026, 26 Sup. Ct. Eep. 617. The Supreme Court must determine for itself from the record whether a Federal question is involved (Powell v. Bruns- wick County, 150 U. S. 439, 37 L. ed. 1136, 14 Sup. Ct. Rep. 166; Newport Light Co. v. Newport, 151 U. S. 537, 38 L. ed. 262, 14 Sup. Ct. Rep. 429; Moore v. Mississippi, 21 Wall. 638, 639, 22 L. ed. 653, 654; Walker v. Villavaso, 6 Wall. 128, 18 L. ed. 854), and the writ of error must be dismissed if no Federal question appears. Onondaga Nation V. Thacher, 189 U. S. 309-311, 47 L. ed. 827, 828, 23 Sup. Ct Rep. 636, Citation. By U. S. Rev. Stat, sec, 999, U. S. Comp. Stat. 1901, p. 712, when the writ is allowed a citation shall be signed by the justice or judge granting the writ, Insurance Co. v. Mordecai, 21 How. 195, 202, citing 16 L. ed. 94-96, and admonishing the defendant in error to be and appear before the Supreme Court of the United States to be holden at the city of Wash- ington, D. C, on the day of A. D. 19 .... , next (See Supreme Court rule 8, sec. 5, as when to be made returnable), pursuant to a writ of error filed in the office of the (court in which filed) wherein A. B. was plaintiff and you were defendant, that you may answer why the judgment rendered against A. B., the plaintiff in error, may not be revised and justice done in the premises. It is issued in the name of the President of the United States to the defendant in error, and tested in the name of the Chief Justice of the Supreme Court of the United States, and signed by the judge allowing the writ of error. The service of the citation is necessary to give jurisdiction, unless waived, or a general appearance entered by the defend- ant in error (Dayton v. Lash, 94 U. S. 112, 24 L. ed. 33 ; Kitchen v. Randolph, 93 U. S. 87, 23 L. ed. 810; Farmers' Loan & T. Co. v. Chicago & N. P. R. Co. 19 C. C. A. 477, 34 U. S. App. 626, 73 Fed. 316, 317 ; Freeman v. Clay, 1 C. C. A. 115, 2 U. S. App. 151, 48 Fed. 849 ; ViUabolos v. United States, 6 How. 90, 12 L. ed. 356) ; but service on the APPEAL PROM STATE COURTS TO U. S. SUPREME COURT. 787 attorney of record is sufficient (Bigler v. Waller, 12 Wall. 147, 20 L. ed. 261; United States v. Curry, 6 How. Ill, 12 L. ed. 365 ; Scruggs v. Memphis & C. E. Co. 131 U. S. cciv, and 26 L. ed. 741). The defendant in error must have thirty days' notice before the first day of the term to which the writ is returnable, or he cannot be compelled to go to a hearing, and the case can only be taken up by consent during that term. Welsh v. Mandeville, 5 Cranch, 321, 3 L. ed. 113; National Bank v. Xational Bank, 99 U. S. 609, 25 L. ed. 362. Bond. But by TJ. S. Eev. Stat. sec. 1000, IT. S. Comp. Stat. 1901, p. 712, every justice or judge signing a citation on any writ of error shall take good and sufficient security that the plaintiff in error or appeal shall prosecute his writ or appeal to effect, and if he fail to make good his plea shall answer all damages and costs (when writ is to be supersedeas) or all costs (when not to act as supersedeas). This bond is to be approved by the judge granting the writ. See form of appeal bond and approval. When Writ of Error a Supersedeas. By U. S. Eev. Stat. sec. 1007, U. S. Comp. Stat. 1901, p. 714, it is provided that in any ease where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error by lodging a copy in the clerk's office, where the record remains, within sixty days (Sundays excepted) after the rendering of the judgment complained of, and giving the security required by law on the issuing of cita- tion. Danville v. Brown, 128 U. S. 504, 32 L. ed. 508, 9 Sup. Ct. Eep. 149 ; Danielson v. Northwestern Fuel Co. 55 Fed. 50. But if he desires to stay process, he may, having lodged a copy of the writ of error with the clerk as aforesaid, give the security required by law at any time within sixty days after the rendition of such judgment, or even after sixty days, upon application to a justice or judge of the appellate court for a supersedeas. 788 APPEAL FEOM STATE COUETS TO U. S. SUPREME COUET. In such cases, where a writ of error may be a supersedeas, execution shall not issue until the expiration of ten days. Therefore, to make a writ of error operate as a supersedeas, it must not only be issued and served, but a copy miist be lodged with the clerk for the adverse party, in the office where the record remains. Kitchen v. Randolph, 93 U. S. 87, 88, 23 L. ed. 810, 811 ; Tester v. Kansas, 112 U. S. 204, 28 L. ed. 630, 5 Sup. Ct. Eep. 897; Jabine v. Gates, 115 Fed. 864; Sage v. Central E. Co. 93 U. S. 417, 23 L. ed. 935; Baltimore & 0. E. Co. v. Harris, 7 Wall. 574, 19 L. ed. 100; O'Dowd v. Eussell, 14 Wall. 405, 20 L. ed. 858 (See chapter 110.) By the original act of 1789 this was required to be done in ten days after rendering judgment and passing the decree complained of, but by act of June, 1872, corrected by act of February 17, 1875, sixty days was allowed. Boise County v. Gorman, 19 Wall. 661, 22 L. ed. 226. You will notice in the latter clause of the act, that in cases where a writ of error may be a supersedeas, that execution shall not issue until ten days expires. Foster v. Kansas, supra. This means that while you have sixty days within which to obtain a supersedeas, yet after ten days from the rendition of the judgment execution can issue if the supersedeas has not been fixed within the ten days. Boise County v. Gorman, supra. The supersedeas when issued will stay further proceedings, but not interfere with executions issued after ten days and before the supersedeas is sued out. Ibid. ; Doyle v. Wisconsin, 94 U. S. 50, 24 L. ed. 64. Time. In calculating lapse of time you calculate from the entry of the judgment or decree, not when signed by the judge. Boise County v. Gorman, 19 Wall. 665, 22 L. ed. 227 ; Providence Eubber Co. v. Goodyear, 6 Wall. 156, 18 L. ed. 763. In Green v. Van Buskirk, 3 Wall. 448, 18 L. ed. 245, it was held that when judgment is given in a Supreme Court of a State, and the record is returned to an inferior court with an order to enter a judgment there, time affecting the supersedeas runs from the entry of the judgment in the inferior court. APPEAI. FKOM STATE COURTS TO U. S. SUPREME COURT. 789 After Sixty Days Cannot Obtain Supersedeas. Unless a writ of error is sued out or an appeal perfected in sixty days after the entry of a judgment, there is no power in a justice of the appellate court to grant a supersedeas (Logan V. Goodwin, 41 C. C. A. 573, 101 Fed. 654; Kitchen v. Ean- dolph, 93 U. S. 86, 23 L. ed. 810; Brown v. Evans, 18 Fed. 56) ; Western TJ. Teleg. Co. v. Eyser, 19 Wall. 428, 22 L. ed. 44; Sage v. Central E. Co. 93 U. S. 417, 23 L. ed. 935; Texas & P. II. Co. v. Murphy, 111 U. S. 490, 28 L. ed. 493, 4 Sup. Ct. Eep. 497; Peugh v. Davis, 110 U. S. 229, 28 L. ed. 128, 4 Sup. Ct. Eep. 17; Wurts v. Hoagland, 105 U. S. 702, 26 L. ed. 1110; ISTew England E. Co. v. Hyde, 41 C. C. A. 404, 101 Fed. 397; U. S. Eev. Stat. sec. 1007, U. S. Comp. Stat. 1901, p. 714; see Foster v. Kansas, 112 U. S. 204, 28 L. ed. 630, 5 Sup. Ct. Eep. 897) ; and after citation is signed and security approved the judge of the court below has no jurisdiction to grant it (Draper v. Davis, 102 U. S. 371, 26 L. ed. 122 ; Morgan's L. & T. E. & S. S. Co. v. Texas C. E. Co. 32 Fed. 530) ; but it seems if the delay was oc- casioned by the court, and not the fault of the parties, and injustice would be done, a nunc pro tunc order can be entered (Sage V. Central E. Co. 93 U. S. 412, 23 L. ed. 933). Act Must Be Followed. A supersedeas is not obtained by virtue of any process issuing from the court, but it follows as matter of law by complying with the act of Congress. Goddard v. Ordway, 94 U. S. 673, 24 L. ed. 238 ; Slaughter-house cases, 10 Wall. 291, 19 L. ed. 920. It is indispensable that the requirements of the acts of Congress be fulfilled. Jabine v. Gates, 115 Fed. 864; Baltimore & O. E. Co. v. Harris, 7 Wall. 574, 19 L. ed. 100; O'Dowd v. Eussell, 14 Wall. 405, 20 L. ed. 858; Sago V. Central E. Co. 93 U. S. 417, 23 L. ed. 935. ISTote that the authorities above given were decided under the original act of 1789 and before 1872, when the amended act extended the time to sixty days for suing out a supersedeas,, but the necessity for strictly pursuing the statute decided by these cases applies to the act of 1872. 790 APPEAL FEOM STATE COTJETS TO U. S. SUPEEME COUET. When Supersedeas Bond Becomes Impaired. When the security of a supersedeas bond becomes impaired, the Supreme Court may so adjudge it and order additional security. Williams v. Claflin, 103 U. S. 753, 754, 26 L. ed. 606, 607; Jerome v. McCarter, 21 Wall. 31, 22 L. ed. 516. CHAPTER OXX. MANDATE. The appellate court may affirm, modify, or reverse any decree or order lawfully brought before it for review, or may direct such judgment to be rendered or such further proceedings to be had by the inferior court as the justice of the case may require. Sec. 10, act 1891, U. S. Comp. Stat. 1901, p. 552 ; Southern Bldg. & L. Asso. v. Carey, U. S. Eev. Stat. 701, U. S. Comp. Stat. 1901, p. 571; U. S. Eev. Stat 709, U. S. Comp. Stat. 1901, p. 575 ; 117 Fed. 328. How Issued. The clerk of the appellate court issues the mandate accord- ing to the order or decree of the appellate court, and certifies it to the lower court. C. C. A. rule 32 (See Eule of Your Cir- cuit; Eule of Supreme Court.) When Issued. By Supreme Court rule 24, sec. 5, in dismissal of any suit the clerk is to issue a mandate or other proper process to the court below for its information, and to proceed as required. By Supreme Court rule 39, 159 U. S. 709, mandates shall issue as of course after the expiration of thirty days from the day the judgment or decree is entered, unless time enlarged by order of the court or a justice thereof in vacation. Circuit court of appeals rule 32 requires a mandate or other proper process to be issued on the order of the court in order to inform the court below of the proceedings had, and that further proceedings may be had in the court below as to law and justice may appertain (See Eule of Tour Circuit.) 791 792 MANDATE. Executiiig It. The mandate is the guide in executing the judgment, and the lower court must follow it and carry the decree into effect. Southern Bldg. & L. Asso. v. Carey, 117 Fed. 328 ; Durant v. Essex Co. (Durant v. Storrow), 101 U. S. 555, 25 L. ed. 961; West V. Brashear, 14 Pet. 54, 10 L. ed. 351 ; Ex parte Dubuque & P. E. Co. 1 Wall. 69, 17 L. ed. 514; Great Northern K. Co. V. Western U. Teleg. Co. 98 C. C. A. 193, 174 Fed. 321 ; see lUinois v. Illinois C. K. Co. 184 U. S. 77, 46 L. ed. 440, 22 Sup. Ct. Kep. 300 ; Ee Washington & G. E. Co. 140 U. S. 92, 35 L. ed. 340, 11 Sup. Ct. Eep. 673 ; see Ex parte First Nat. Bank, 207 U. S. 66, 52 L. ed. 106, 28 Sup. Ct. Eep. 23. The lower court has nothing to do but execute the mandate. Ibid.; Perkins v. Fourniquet, 14 How. 330, 14 L. ed. 442; Aspen Min. & Smelting Co. v. Billings, 150 U. S. 37, 37 L. ed. 988, 14 Sup. Ct. Eep. 4; Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. 19 C. C. A. 25, 43 F. S. App. 47, 72 Fed. 549; Ee Sanford Fork & Tool Co. 160 U. S. 255, 40 L. ed. 416, 16 Sup. Ct. Eep. 291; Gaines v. Eugg, 148 U. S. 243, 37 L. ed. 437, 13 Sup. Ct. Eep. 611; White v. Bruce, 48 C. C. A. 400, 109 Fed. 364; Chapman v. Yellow Poplar Lumber Co. 32 C. C. A. 402, 61 U. S. App. 499, 89 Fed. 904. The lower court cannot vary it, or examine it for any purpose other than its execution, or give any or further relief, or review it for apparent error upon any matter decided on appeal, or in- termeddle with it further than to settle so much as has been remanded. If in doing so it mistakes or misconceives the order of the appellate court, and does not give effect in full to the mandate, its action may be controlled by appeal or mandamus, as will be hereafter seen. Ibid ; Southern Bldg. & L. Asso. v. Carey, 117 Fed. 328 ; Livingston v. Story, 12 Pet. 343, 9 L. ed. 1110 ; James v. Central Trust Co. 47 C. C. A. 374, 108 Fed. 931, and cases cited; Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. 19 C. C. A. 25, 43 U. S. App. 47, 72 Fed. 545 ; Great Northern E. Co. v. Western U. Teleg. Co. 98 C. C. A. 193, 174 Fed. 323 ; Ouray County v. Geer, 47 C. C. A. 450, 108 Fed. 480 ; Ee Potts, 166 U. S. 263, 41 L. ed. 994, 17 Sup. Ct. Eep. 520 ; Kingsbury v. Buckner, 134 U. S. 650, 33 L. ed. 1047, 10 Sup. Ct. Eep. 638. MANDATE. 793 Effect of Mandate. The issues in the case are closed, and the decision embodied in the mandate constitutes an adjudication of all questions of law and fact in the case before the court. Ex parte Union S. B. Co. 178 U. S. 319, 44 L. ed. 1084, 20 Sup. Ct. Eep. 944; Mutual L. Ins. Co. v. Hill, 193 U. S. 554, 48 L. ed. 791, 24 Sup. Ct. Eep. 538 ; Messinger v. Anderson, 96 C. C. A. 445, 171 Fed. 789, 790 and cases cited; Chaffin v. Taylor, 116 U. S. 567, 29 L. ed. 727, 6 Sup. Ct. Rep. 518; Thompson v. Maxwell Land Grant & R. Co. 168 U. S. 451-456, 42 L. ed. 539-542, 18 Sup. Ct. Eep. 121 ; Illinois v. Illinois C. E. Co. 184 U. S. 92, 46 L. ed. 447, 22 Sup. Ct. Eep. 300 ; Mutual Eeserve Fund Life Asso. v. Beatty, 35 C. C. A. 573, 93 Fed. 747; Montana Min. Co. v. St. Louis Min. & Mill. Co. 78 C. C. A. 33, 147 Fed. 897; Orient Ins. Co. V. Leonard, 57 C. C. A. 176, 120 Fed. 808; Patillo V. Allen-West Commission Co. 47 C. C. A. 637, 108 Fed. 723; Illinois ex rel. Hunt v. Illinois C. E. Co. 34 C. C. A. 138, 91 Fed. 955 ; Ee Gamewell Fire-Alarm Teleg. Co. 20 C. C. A. Ill, 33 U. S. App. 452, 73 Fed. 910; Ee Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Eep. 291 ; Ee Potts, 166 U. S. 267, 41 L. ed. 995, 17 Sup. Ct. Eep. 520, Where there is no direction to enter any specific decree, but there is only a simple reversal, the effect is to put the case in the same posture as if no decree had been entered, and amendments may be permitted enlarging the issues. Ee Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Eep. 291 ; Hawkins v. Cleveland, C. C. & St. L. E. Co. 39 C. C. A. 538, 99 Fed. 322 ; See Atlanta K. & K E. Co. V. Hooper, 44 C. C. A. 586, 105 Fed. 550; Mutual L. Ins. Co. v. Hill, 193 U. S. 553, 48 L. ed. 791, 24 Sup. Ct. Eep. 538. So the court below cannot grant a rehearing, or new trial, or permit a new defense or amendment to the answer, unless the right is reserved in the decree of the appellate court, or permission given on application to that court where the case has been considered on its merits. Ee Potts', 166 H. S. 267, 268, 41 L. ed. 995, 996, 17 Sup. Ct. Eep. 520; Walker v. Brown, 86 Fed. 364; Ee Sanford Fork & Tool Co.'ieO U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Eep. 794 MANDATE. 291; Sibbald v. United States, 12 Pet. 488, 9 L. ed. 1167; Ee Gamewell Fire-Alarm Teleg. Co. 20 C. C. A. Ill, 33 U. S. App. 452, 73 Fed. 910 ; Hawkins v. Cleveland C. C. & St. L. E. Co. 39 C. C. A. 538, 99 Fed. 322 ; Continental Trust Co. V. Toledo, St. L. & K. C. E. Co. 99 Fed. 176 ; Ex parte Du- buque & P. E. Co. 1 Wall. 69, 17 L. ed. 514; see Smale v. Mitchell, 143 U. S. 99, 36 L. ed. 90, 12 Sup. Ct. Eep. 353. ISTor will an appellate court remand a bill to set up new grounds for relief. Warner v. Godfrey, 186 U. S. 377, 46 L. ed. 1208, 22 Sup. Ct. Eep. 852. A mandate ordering a new trial opens up the entire case; it assumes the same posture as if no decree had been entered, and amendments enlarging the issues and permitting further proof are admissible (Potts v. Creager, 71 Fed. 574; Hawkins v. Cleveland, C. C. & St. L. E. Co. 39 C. C. A. 538, 99 Fed. 324; Citing Ee Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Eep. 291; see Burnham v. North Chicago Street E. Co. 32 C. C. A. 64, 60 TJ. S. App. 225, 88 Fed. 627), except upon issues made and dictinctly decided (Wayne County v. Kennicott, 94 TJ. S. 499, 24 L. ed. 260; Balch v. Haas, 20 C. C. A. 151, 36 U. S. App. 693, 73 Fed. 976 ; Chaffin v. Taylor, 116 TJ. S. 567, 29 L. ed. 727, 6 Sup. Ct. Eep. 518.) So where a case has been considered at length on its merits, and been remanded for further pro- ceedings, the defendant will not be permitted to amend his answer so as to deny a fact affirmatively passed iipon and de- termined by the Appellate court. Walker v. Brown, 86 Fed. 364; Hill V. Mutual L. Ins. Co. 113 Fed. 44; S. C. 55 C. C. A. 536, 118 Fed. 708 ; Brown v. Lanyon Zinc Co. 102 C. C. A. 497, 179 Fed. 311, and cases cited. Or where it reserves a single question of fact left open to be determined, that ques- tion alone can be tried. Ibid. ; Ee Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Eep. 291; Illinois ex rel. Hunt v. Illinois C. E. Co. 34 C. C. A. 138, 91 Fed. 957 ; S. C. 184 U. S. 92, 46 L. ed. 447, 22 Sup. Ct. Eep. 300. So where a decree is affirmed, the lower court can only record the decree and proceed with its execution. Durant v. Essex Co. (Durant v. Storrow), 101 U. S. 555, 25 L. ed. 961 ; Kimberly v. Arms, 40 Fed. 551 ; Ee Washington & G. E. Co. 140 U. S. 96, 35 L. ed. 341, 11 Sup. Ct. Eep. 673 ; Mutual L. Ins. Co. v. Hill, 55 C. C. A. 536, 118 Fed. 711. MANDATE. 795 The effect of the decrees and mandates of the circuit court of appeals is the same as that of the Supreme Court. Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. 19 0. C. A. 25, 43 U. S. App. 47, 72 Fed. 545. So in second appeals or error, only proceedings subsequent to mandate are carried up, and no inquiry is allowed into original judgment. Tyler v. Magwire, 17 Wall. 283, 284, 21 L. ed. 583, 584; Wayne County v. Kennicott, 94 U. S. 499, 24 L. ed. 260; Souer v. De Bary, 44 C. C. A. 484, 105 Fed. 293; Texas & P. R. Co. v. Wilder, 41 C. C. A, 305, 101 Fed. 198, 199, and cases cited. Issuing Execution. The appellate court cannot issue execution; if necessary it may be provided for in the mandate. § 10, act 1891, 26 Stat, at L. 829, chap. 517, U. S. Comp. Stat. 1901, p. 552. The court below must execute the mandate. Sibbald v. United States, 12 Pet. 492, 9 L. ed. 1169 ; Third Nat. Bank v. Gordon, 53 Fed. 473; Tyler v. Magwire, 17 Wall. 283, 21 L. ed. 583. Where a State court refuses to carry mandate into effect, the Supreme Court may on appeal proceed to a final decision and award execution. Tyler v. Magwire, 17 Wall. 290, 21 L. ed. 585 ; Stanley v. Schwalby, 162 U. S. 281, 40 L. ed. 969, 16 Sup. Ct. Rep. 754. Remedy if the Court Does Not Enforce the Mandate, It may be by appeal or mandamus. When by Appeal. Where the court below errs in construing opinion, the rem- edy is by appeal. James v. Central Trust Co. 47 C. C. A. 374, 108 Fed. 931, and eases cited, but in Perkins v. Tourni- quet, 14 How. 330, 14 L. ed. 442, it is said you may use either mandamus or appeal. Re Blake, 175 IT. S. 117, 44 L. ed. 95, 20 Sup. Ct. Rep. 42; See Re Westervelt, 39 C. C. A. 350, 98 Fed. 912; Tyler v. Magwire, 17 Wall. 290, 21 L. ed. 585 ; See Metcalf v. Watertown, 16 C. C. A. 37, 34 U. S. App. 107, 68 Fed. 861. 796 MANDATE. When hy Mandamus. Where the mandate leaves nothing to the judgment or discre- tion of the court below, and full effect is not given to the mandate, a mandamus may be applied for. Ee Blake, 175 TJ. S. 117, 44 L. ed. 95, 20 Sup. Ct. Eep. 42; Perkins v. Tourni- quet, 14 How. 330, 14 L. ed. 442; Ee Washington & G. E. Co. 140 U. S. 95, 35 L. ed. 341, 11 Sup. Ct. Eep. 673, and cases cited; City Nat. Bank v. Hunter, 152 U. S. 512, 38 L. ed. 534, 14 Sup. Ct. Eep. 675; Ee City Nat. Bank, 153 U. S. 246, 38 L. ed. 705, 14 Sup. Ct. Eep. 804; Gaines v. Eugg, 148 U. S. 243, 37 L. ed. 437, 13 Sup. Ct. Eep. 611; Ee Potts, 166 U. S. 263, 41 L. ed. 994, 17 Sup. Ct. Eep. 520; Ex parte Sawyer, 21 Wall. 235, 22 L. ed. 617; Ee Hugu- ley Mfg. Co. 184 TJ. S. 301, 46 L. ed. 551, 22 Sup. Ct. Eep. 455 ; Ee Sanford Pork & Tool Co. 160 TJ. S. 247, 40 L. ed. 414, 16 Sup. Ct. Eep. 291. In Mason v. Pewabic Min. Co. 153 U. S. 361, 38 L. ed. 745, 14 Sup. Ct. Eep. 847, it is said that where a mandate of the court has been misconstrued or disregarded, the proper remedy is by mandamus, but where the action of the lower court conforms to the mandate, there can be neither mandamus nor appeal. Texas & P. E. Co. v. Anderson, 149 TJ. S. 237, 37 L. ed. 717, 13 Sup. Ct. Eep. 843 ; TJnitcd States v. New York Indians, 17-3 TJ. S. 464, 43 L. ed. 769, 19 Sup. Ct. Eep. 464. Can Court Becall Mandate After Term. See Phipps v. Sedgwick, 131 TJ. S. cxxxix Appx., and 24 L. ed. 595 ; Gardner v. Goodyear Dental Vulcanite Co. 131 TJ. S. ciii Appx. and 21 L. ed. 141. See Herold v. Kahn, 90 C. C. A. 307, 163 Fed. 947, where mandate was recalled; also Bank of Commerce v. Tennessee, 163 TJ. S. 416, 41 L. ed. 211, 16 Sup. Ct. Eep. 1113. In Cannon v. United States, 116 TJ. S. 55, 29 L. ed. 561, 6 Sup. Ct. Eep. 278, the mandate was recalled for want of jurisdiction. In Eeynolds v. Man- hattan Trust Co. 48 C. C. A. 249, 109 Ped. 97 it is said the court has no power to recall a mandate after the term has ex- pired. See, also, Waskey v. Hammer, 102 C. C. A. 629, 179 Fed. 273. MANDATE. 797 Second Appeals. We have seen already that in second appeals no inquiry is allowed into the original judgment, and where the decision of the lower court is in accord with the mandate no appeal will he allowed. United States v. New York, 173 U. S. 464, 43 L. ed. 769, 19 Sup. Ct. Eep. 464; Kingsbury v. Buckner, 134 U. S. 650, 33 L. ed. 1047, 10 Sup. Ct. Rep. 638 ; Mackall V. Eichards, 116 TJ. S. 45, 29 L. ed. 558, 6 Sup. Ct. Sep. 234; Texas & P. R. Co. v. Anderson, 149 TJ. S. 237, 37 L. ed. 717, 13 Sup. Ct. Eep. 843. They apply when the mandate of the court has not properly executed (The Lady Pike [Pearce v. Germania Ins. Co.] 96 U. S. 461, 24 L. ed. 672), or when issues arise not settled by the mandate. (Hinckley v. Morton, 103 U. S. 764, 26 L. ed. 458). When allowed, they bring up only the proceedings subsequent to the mandate. Tyler v. Magwire, 17 Wall. 253, 21 L. ed. 576; Clark v. Keith, 106 U. S. 465, 27 L. ed. 302, 1 Sup. Ct. Eep. 568 ; United States v. Camou, 184 U. S. 572, 46 L. ed. 694, 22 Sup. Ct. Eep. 505 ; Wash- ington Bridge Co. v. Stewart, 3 How. 413, 11 L. ed. 658; StoU V. Loving, 120 Fed. 806, and cases cited; Guarantee Co. of ]Sr. A. V. Phenix Ins. Co. 59 C. C. A. 376, 124 Fed. 174; Montgomery County t. Cochran, 62 0. C. A. 70, 126 Fed. 456. CHAPTEK CXXI. EEMOVAI.S. There have always been two ways of removing a cause from a State court to a Federal court — one, as we have before seen under U. S. Kev. Stat. sec. 709, U. S. Comp. Stat. 1901, p. 575, by a writ of error from the Supreme Court of the United States to the court of last resort of a State ; the other, by petition and removal from a State court to a circuit court of the United States. This last provision for removal to a circuit court of the Unit- ed States was made by Congress in the judiciary act of 1789, section 12, U. S. Rev. Stat. sec. 639, clause 1, and- this act continued in force until 1875. Under this act no removal from a circuit court to a State court, based on the fact of a Fed- eral question could be made, but only when the jurisdiction rested upon diversity of citizenship, and it was not until 1875 that the fact that the case depended on a Federal question, that any removal from a State court to a circuit court of the United States was permitted. By the second section of the act of 1875, any suit of a civil nature where the matter in dispute exceeded the sum or value of five hundred dollars arising under the Constitution or laws of the United States, or treaties made, or in which the suit depended on a diversity of citizenship, etc., either party could remove it into the circuit court of the United States ; and, further, that when there was a separable controversy in a suit which could be wholly determined between citizens of different States, either one or more of the defendants, or plaintiffs so in- terested could remove the case from the State to the Federal court. Thus stood the law until 1887, when Congress passed an- other jurisdictional and removal act, which was revised and cor- rected in 1888, and known as the act of 1887 and 1888, which is now in force. 798 BEIIOVALS. ^99 The first section of the act has already been given and discussed in detail, and we saw the jurisdiction of the Federal courts was contracted by increasing the amount or value involved from five hundred to two thousand dollars, but the grounds of jurisdiction were not changed otherwise. Foulk v. Gray, 120 Fed. 159-161. By section 2 of the act of 1888, providing for removals, it was provided that any suit of a civil nature, in law or equity, arising under the Constitution, or laws of the United States, or treaties made or to be made, or which shall be made under their authority (of which the circuit courts of the United Slates are given original jurisdiction by the preceding section), which may now be pending, or which may hereafter be brought in any State court, may be removed by the defendant or defend- ants therein to lie circuit court of the United States for the Local Prejudice." J^ew Code, chap. 3, sec. 28. Thus far it provides for any suit depending on a Federal question to be removed to a Federal circuit court by the defend- ant or defendants. It then proceeds: Any other suits of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by section 1 of the act, which are now pending or may hereafter be brought in a State coiirt, may be removed into the circuit court of the United States by the defendant or defendants therein being nonresidents of the State. Again, it retained the separable clause of the Act of 1875, with a change as follows: "And when in any suit mentioned in section 2 there shall be a controversy which is wholly between citizens of different States, and which can be fully determined between them, then either one or more of the defendants actually interested can remove the case." It is thus seen by the act of 1888 jurisdiction by removal has been greatly restricted. First. The amount or value necessary to jurisdiction of the circuit courts of the United States was increased from five hundred dollars, exclusive of costs, to two thousand dollars, exclusive of interest and costs. Second. Jurisdiction by removal under this act is limited to cases of which the circuit court of the United States is given original jurisdiction by section 1, — that is, to such suits as might have been instituted by the plaintiff in the United 800 BEMOVALS. States circuit court under the first sectioa of the act Ex parte Wisner, 203 U. S. 449-457, 51 L. ed. 264-267, 27 Sup. Ot Eep. 150, and cases cited; Yellow Aster Min. & Mill. Co. v. Crane Co. 80 C. C. A. 566, 150 Fed. 580; Blunt v. Southern E. Co. 155 Fed. 499 ; Baxter, S. & S. Const. Co. v. Hammond Mfg. Co. 154 Fed. 992 (See chapter 122). Third. Instead of "either party," as in the act of 1875, having the right of removal, only the defendant, or defendants, under the act of 1888, can remove the case when the case de- pends on a Federal question, and in other cases only by defend- ant, or defendants, when nonresidents of the State in which the suit is brought. Monroe v. Williamson, 81 Fed. 988, 989 (See "Who Can Eemove"). Fourth. In the clause providing for the removal of a separ- able controversy by either party interested therein, only the de- fendant or the defendants who are nonresidents of the State can remove the controversy to the United States circuit court (See "Who Can Eemove," "When Controversy Separable"). See sec. 28, ISTew Code, chap. 3, providing no case can be removed relating to the liability of common carriers to their employees, brought in a State court. Effective January 1st, 1912. Local Influence. Under the same section (No. 2) of the act a provision is made for removal on the ground of local influence, and which provides that "where a suit is now pending or may hereafter be brought in a State court in which there is a controversy between a citizen of another State, any defendant being a cit- izen of another State may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to such circuit court that from prejudice or local influence he will not be able to obtain justice in such State court, or any other State court to which the defendant under the State laws may remove the same, because of such prejudices or local in- fluence; provided, however, that if it should further appear that there are other defendants not affected by such prejudice EEMOVALS. 801 or local influence, and there can be a separation of the parties to the suit who are affected by this local influence without pre- judice to those who are not affected, then the circuit court shall remand the cause as to such parties not affected by the local influence. Crotts v. Southern K Co. 90 Fed. 2 ; Fisk v. Hen- arie, 142 U. S. 468, 35 L. ed. 1082, 12 Sup. Ct. Eep. 207. (See "Practice" under this section. See "Kemoval on Ground of Local Prejudice.") ]S]"ew Code, chap. 3, sec. 28. S. Bq.— 51. CHAPTEE CXXII. PEOCEEDINGS IN STATE COUBTa. Time of Filing Petition. By section 3 of the act of 1888 it is provided that a petition must be filed in the State court asking for a removal of the suit to the United States circuit court (See "Motion to Re- mand;" First Nat. Bank v. Prager, 34 C. C. A. 51, 63 U. S. App. 703, 91 Fed. 689; Wilson v. Giberson, 124 Fed. 701), of the district in which the suit is brought; and requires the petition to be filed at or before the time when, by the law or practice of the State court, the petitioner is required to plead or answer to the suit (Kansas City, Ft. S. & M. K. Co. V. Daugherty, 138 U. S. 298, 34 L. ed. 963, 11 Sup. Ct. Pep. 306; Austin v. Gagan, 5 L.R.A. 476, 39 Fed. 626; Fox v. Southern E. Co. 80 Fed. 945 ; Heller v. Ilwaco Mill & Lumber Co. 178 Fed. 112). The cause cannot be removed by consent; petition and bond must be filed within the time required ; First Nat. Bank v. Prager, 34 C. C. A. 51, 63 U. S. App. 703, 91 Fed. 689. The petition should be verified, but if no objection made on this ground, the removal would not be affected. Porter v. North- ern P. E. Co. 161 Fed. 773; Howard v. Gold Eeefs, 102 Fed. 657; see Donovan v. Wells F. & Co. 22 L.E.A.(KS.) 1250, 94 C. C. A. 609, 169 Fed. 367 ; Canal & C. Streets E. Co. V. Hart, 114 U. S. 660, 29 L. ed. 228, 5 Sup. Ct. Eep. 1127. All essential averments showing jurisdiction on removal must be set forth. Gillespie v. Pocahontas Coal & Coke Co. 162 Fed. 744 ; Alexander Nat. Bank v. Willis C. Bates Co. 87 C. C. A. 643, 160 Fed. 839. Allegations not denied by the record are taken qs true. Atlanta K. & N. E. Co. v. Southern E. Co. 82 802 PEOCEEDINGS IN STATE COUETS. 803 C. C. A. 256, 153 Fed. 122, 11 A. & E. Ann. Cas. 766 ; Carlisle V. Sunset Teleph. & Teleg. Co. 116 Fed. 896. The record may be looked to, in aid of the allegations of the petition. Gillespie v. Pocahontas Coal & Coke Co. 162 Fed. 744; Had- field V. Northwestern Life Assur. Co. 105 Fed. 530. Section 29, chap. 3, ISTew Code, embodying sec 3 of the act of 1888, requires petition to be verified. Bond. With the petition for removal must be filed a^bond with good and sufiicient security, conditioned to file a copy of the record of the case pending in the State court in the circuit court of the United States on the first day of the next term of said court, and to pay all costs that may be awarded by said circuit court should it hold that the case has been wrongfully removed. Sec. 1, act 1888 ; Clark v. Guy, 114 Fed. 783 ; Austin v. Gagau, 5 L.K.A. 476, 39 Fed. 626, 628 ; Bryant Bros. Co. v. Robin- son, 79 C. C. A. 259, 149 Fed. 321 ; Mutual L. Ins. Co. v. Lang- ley, 145 Fed. 415 ; Probst v. Cowen, 91 Fed. 929, 930 ; People's Bank v. ^tna Ins. Co. 53 Fed. 161 ; Alexandria Nat. Btok v. Willis C. Bates Co. 87 C. C. A. 643, 160 Fed. 839. One good surety is sufiicient. Removal Cases, 100 U. S. 472, 25 L. ed. 599. It is not necessary for the removing party to sign. Groton Bridge & Mfg. Co. v. American Bridge Co. 137 Fed. 291. A seal is not necessary. Loop v. Winters, 115 Fed. 364. As to form, see Groton Bridge & Mfg. Co. v. American Bridge Co. supra. While informality in petition and bond may be waived by a failure to promptly object, yet a failure to file a bond is not waived. 25 Stat, at L. 435, chap. 866, U. S. Comp. Stat. 1901, p. 510; Alexandria Nat. Bank v. Willis C. Bates Co. 87 C. C. A. 643, 160 Fed. 839; Austin v. Gagan, 5 L.R.A. 476, 39 Fed. 626 ; Clark v. Guy, 114 Fed. 783. Informality may be waived or amended. Coburn v. Cedar Valley Land & Cattle Co. 25 Fed. 791 ; Johnson v. F. C. Aus- tin Mfg. Co. 76 Fed. 616; Probst v. Cowen, 91 Fed. 929; Deford'v. Mehaffy, 13 Fed. 487. It seems that when made by attorney without authority, it may be ratified before motion to remand. Ashe v. Union Cent. 804: PEOCEEDINGS IN STATE COURTS. L. Ins. Co. 115 Fed. 236. See Alexandria Nat. Bank v. Willis C. Bates Co. 87 C. C. A. 643, 160 Fed. 839. New Code, chap. 3, sec. 29. Effect of Filing Petition and Bond. The petition and bond must be filed in the county in which the venue is laid (Noble v. Massachusetts Ben. Asso. 48 Fed. 33Y), and a proper petition and bond having been filed, it does not require any order of the State court to remove the case; the jurisdiction of the State court ceases, and the juris- diction of the Federal court attaches at once. Eisenmann v. Delemar's Nevada Gold Min. Co., 87 Fed. 248; Mutual L. Ins. Co. V. Langiey, 145 Fed. 415; Barlow v. Chicago & N. W. E. Co., 164 Fed. 765; La Page v. Day, 74 Fed. 977; Mecke V. Valley Town Mineral Co., 89 Fed. 209 ; Johnson v. Comput- ing Scale Co., 139 Fed. 339 ; Postal Teleg. Cable Co., v. South- ern E. Co. 88 Fed. 803 ; Kern v. Huidekoper, 103 U. S. 485, 26 L. ed. 354; National S. S. Co., v. Tugman, 106 U. S. 118, 27 L. ed. 87, 1 Sup. Ct. Eep. 58 ; Burlington, C. E. & N. E. Co., V. Dunn, 122 U. S. 513, 30 L. ed. 1159, 7 Sup. Ct. Eep. 1262; Hamilton v. Fowler, 83 Fed. 325; Crehore v. Ohio & M. E. Co., 131 U. S. 243, 33 L. ed. 145, 9 Sup. Ct. Eep. 692. There has been much conflict as to the proposition of the eo instanti removal upon filing petition and bond. See Mays v. Newlin, 143 Fed. 576, 577, collecting authorities pro and con; Coker v. Monaghan Mills, 110 Fed. 806. The State court declining to remove does not affect the jurisdiction of the Unit- ed States court if the case is removable. Kern v. Huidekoper, 103 U. S. 490, 26 L. ed. 356 ; Kirby v. Chicago & N. W. E. Co., 106 Fed. 551 ; Atlantic Coast Line E. Co., v. Bailey, 151 Fed. 891. Whatever be the action of the State court the defendant may file the record in the Federal court and proceed with the case as if originally filed there, for the jurisdiction of the Fed- eral court depends on the removability of the case, and not the order of the State court (Lund v. Chicago, E. I. & P. E. Co., 78 Fed. 385 ; Hickman v. Missouri, K. & T. E. Co., 97 Fed. 113; Kirby v. Chicago & N. W. E. Co., 106 Fed. 551; Chesa- peake & d. E. Co., V. White, 111 U. S. 137, 28 L. ed. 378, 4 Sup. Ct. Eep. 353; Lake Street Elev. E. Co., v. Farmers' Loan & T. Co., 23 C. C. A. 448, 46 U. S. App. 630, 77 Fed. PKOCEEDINGS IN STATE COURTS. 805 773; Atlantic Coast Line R Co., v. Bailey, 151 Fed. 893); and should the Federal court decide for the defendant, he may enjoin the execution of a State judgment against him in the same case, or the State court from further proceeding (Atlantic Coast Line E. Co. v. Bailey, 151 Fed. 896; Dietzsch v. Huide- koper [Kern v. Huidekoper] 103 U. S. 498, 26 L. ed. 498 ; Wagner v. Drake, 31 Fed. 852 ; Frishman v. Insurance Cos., 41 Fed. 449; French v. Hay [French v. Stewart] 22 Wall. 252, 22 L. ed. 858; Chicago, E. L & P. E. Co., v. Stepp, 151 Fed. 909 ; Missouri, K & T. E. Co., v. Scott, 4 Woods, 386, 13 Fed. 793. See Coeur D'Alene E. & ISTav. Co., v. Spalding, 35 C. C. A. 302, 93 Fed. 280 ; Mutual L. Ins. Co., v. Langley, 145 Fed. 415), and thus protect its jurisdiction and judgment, as we have before seen. Baltimore & O. E. Co., v. Ford, 35 Fed. 173 ; Bowdoin CoUege v. Merritt, 59 Fed. 7. Where the State court proceeds to trial under these circumstances, its judgment would be a nullity if the cause had been properly removed. Texas & P. E. Co., v. Davis, 93 Tex. 378, 55 S. W. 562. See however. Pioneer Sav. & L. Co., v. Peck, 20 Tex. Civ. App. Ill, 49 S. W. 168. If the clerk of the State court refuses to furnish the record for removal after legal fees tendered, he subjects himself to a fine and imprisonment, or the district court may by writ of certiorari command the State court to send up the record, or, if impossible to obtain the record from any cause, the moving party may file a copy of the paper or proceeding by which the same was commenced, and the other party may be required to plead, and the action proceed to judgment. Sec. 39, New Code, chap. 3, effective January 1st, 1912. Notice of Filing Petition for Removal. When removal is based on diversity of citizenship, no notice is necessary of filing the petition (Ashe v. Union Cent. L. Ins. Co. 115 Fed. 235), and it has been repeatedly decided that there is no statute or rule of the Federal court which required notice of a petition for removal to be given. Chiato- Ndch V. Hanchett, 78 Fed. 194. See sec. 29, chap. 3, New Code, requiring notice of filing petition and bond for removal to be given prior 806 PROCEEDINGS IN STATE COUETS. to filing the same; the copy of the record to be filed in the United States district court within thirty days from the date of filing the petition and bond. The parties removing have thirty days after filing the record to plead, answer, or demur. Power of State Court. The rule is certain, that on the filing of the petition and bond in the State court for removal, in a removable case, no further action can be taken by the State court except to re- move, as it is divested of jurisdiction over the case (Boatmen's Bank V. Fritzlen, 68 C. C. A. 288, 135 Fed. 653 ; Home Ins. Co. V. Morse, 20 Wall. 454, 22 L. ed. 369 ; New Orleans, M. & T. K. Co. V. Mississippi, 102 U. S. 136, 141, 26 L. ed. 96, 98; Carson v. Dunham, 121 U. S. 427, 30 L. ed. 994, 7 Sup. Ct. Rep. 1030; Marshall v. Holmes, 141 U. S. 595, 35 L. ed. 872, 12 Sup. Ct. Rep. 62; Monroe v. Williamson, 81 Fed. 987; Ashe V. Union Cent. L. Ins. Co. 115 Fed. 234), and need not present petition to the Federal court. Waite v. Phoenix Ins. Co. 62 Fed. 769. New Code, chap. 3, sec. 29. But the State court is not altogether an automaton in deal- ing with the question of removal; it is not bound to surrender its jurisdiction on a petition for a removal, until a case is made which on the face of the record shows the petitioner has a right to the transfer. Stone v. South Carolina, 117 U. S. 430, 29 L. ed. 962, 6 Sup. Ct. Eep. 799 ; Mays v. ISTewlin, 143 Fed. 576 ; Coker v. Monaghan Mills, 110 Fed. 806 ; McAlister v. Chesapeake & 0. E. Co. 85 C. C. A. 316, 157 Fed. 742, 13 A. &. E. Ann. Cas. 1068 ; Home Ins. Co. v. Morse, 20 Wall. 459, 22 L. ed. 370; Kansas City, Ft. S. & M. R. Co. v. Daughtery, 138 U. S. 303, 34 L. ed. 964, 11 Sup. Ct. Rep. 306; Donovan V. Wells, F. & Co. 22 L.R.A.(N.S.) 1250, 94 C. C. A. 609, 169 Fed. 364; Crehore v. Ohio & M. R. Co. 131 U. S. 241- 243, 33 L. ed. 144, 145, 9 Sup. Ct. Rep. 692; Johnson v. Wells, F. & Co. 91 Fed. 25 ; Lake Street Elev. R. Co. v. Farm- ers' Loan & T. Co. 23 C. C. A. 448, 46 U. S. App. 630, 7t Fed. 773. It may act on the law, but not the facts (Powers v. Chesa- peake & 0. R. Co. 65 Fed. 132; Coker v. Monaghan Mills, PEOCEEDINGS IN STATE COUETS. 807 110 Fed. 806, and cases cited; Shane v. Butte Electric K. Co. 150 Fed. 801; Texas & P. R. Co. v. Eastin, — Tex. Civ. App. — , 89 S. W. 441, 442) ; but if solely a question of law the Federal court may pass upon it as well as the State court. Atlanta Coast Line E. Co. v. Bailey, 151 Fed. 892, 893. If a prima facie case is not shown by the record, then the court can refuse to remove. Stone v. South Carolina, 117 U. S. 432, 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Powers v. Chesapeake & 0. R. Co. 65 Fed. 182; Springer v. Howes, 69 Fed. 850; Crehore v. Ohio & M. R. Co. 131 U. S. 244, 33 L. ed. 145, 9 Sup. Ct. Rep. 692; La Montague v. T. W. Harvey Lumber Co. 44 Fed. 647; Tod v. Cleveland & M. Valley R. Co. 12 C. C. A. 521, 22 U. S. App. 707, 65 Fed. 148; Foster v. Para- gould Southeastern R. Co. 74 Fed. 273 ; Florida v. Charlotte Harbor Phosphate Co. 20 C. C. A. 538, 41 IT. S. App. 405, 74 Fed. 578 ; Wabash R. Co. v. Barbour, 19 C. C. A. 546, 43 U. S. App. 102, 73 Fed. 515 ; Donovan v. Wells, F. & Co. 22 L.R.A.(K'.S.) 1250, 94 C. C. A. 609, 169 Fed. 366. Issue of Fact as to Removability Tried in Federal Court. The State court can decide for itself whether, as a matter of law, the petitioner is entitled to removal. Coker v. Monaghan Mills, 110 Fed. 806, and authorities cited. If, however, the record makes a prima facie case, and the issues raised are upon facts stated in the petition, these issues must be tried in the Federal court, and the jurisdiction of the State court is in abey- ance until the Federal court trying the issues remands the case. Dow v. Bradstreet Co. 46 Fed. 828 ; Boatmen's Bank v. Fritz- len, 68 C. C. A. 288, 135 Fed. 653; Mutual L. Ins. Co. v. Langley, 145 Fed. 415; Kansas City, Ft S. & M. R. Co. v. Daughtry, 138 U. S. 308, 34 L. ed. 964, 11 Sup. Ct. Rep. 306 ; Donovan v. Wells, F. & Co. 22 L.R.A.(]Sr.S.) 1250, 94 C. C. A. 609, 169 Fed. 366 ; Chesapeake & 0. R. Co. v. McGabe, 213 U. S. 208, 53 L. ed. 766, 29 Sup. Ct. Rep. 430 ; Shane v. Butte Electric R. Co. 150 Fed. 801 ; Atlantic Coast Line R. Co. V. Bailey, 151 Fed. 891 ; see Snohomish County v. Puget Sound Nat. Bank, 81 Fed. 518. Should Be Presented to State Court. It has been held that the cause will be remanded, where it 808 PEOCEEDINGS IIT STATB COUETS. appears that tte petition and bond for removal were filed in the State court in vacation, and there V7as nothing to shov? that they were ever presented to the State court. Fox v. South- ern E. Co. 80 Fed. 945 ; see— Mays v. ISTewlin, 143 Fed. 576, 577; giving authorities pro and con; Roberts v. Chicago, St. P. M. & O. R. Co. 45 Fed. 433 ; Williams v. Massachusetts Ben. Asso. 47 Fed. 534. But in Groton Bridge & Mfg. Co. v. American Bridge Co. 137 Fed. 284-289, a contrary view is taken. Brovm v. Murray, M. & Co. 43 Fed. 614. The better rule is, that it should be brought to the attention of the State court (Ibid.), and may be so brought by one motion. Monroe V. Williamson, 81 Fed. 977; La Page v. Day, 74 Fed. 977; McAlister v. Chesapeake & O. R Co. 85 C. C. A. 316, 157 Fed. 742, 13 A. & E. Ann. Cas. 1068. It is the more decorous prac- tice, and the safer practice. Noble v. Massachusetts Ben. Asso. 48 Fed. 338-339. Order of Removal, It is not necessary to enter an order of removal (Mutual L. Ins. Co. V. Langley, 145 Fed. 415; La Page v. Day, 74 Fed. 978 ; Lund v. Chicago, R. I. & P. E. Co. 78 Fed. 385 ; IsToble V. Massachusetts Ben. Asso. 48 Fed. 338; Wilson v. Western TJ. Co. 34 Fed. 561 ; Groton Bridge & Mfg. Co. v. American Bridge Co. 137 Fed. 284) ; nor, as we have seen, would refusal affect the right, if removable. An exception to the rule that it Is necessary to present the petition and bond to the judge of the State court has been indi- cated in Brovyn v. Murray Nelson & Co. 43 Fed. 614 and Gro- ton Bridge & Mfg. Co. v. American Bridge Co. 137 Fed. 289. It seems under some conditions it may be granted by a judge in chambers (Mecke v. Valleytovra Mineral Co. 35 C. C. A. 151, 93 Fed. 697; Groton Bridge & Mfg. Co. v. American Bridge Co. 137 Fed. 288), and under some conditions by a clerk of the State court (Sanderlin v. People's Bank, 140 Fed. 191). If the State court refuses to enter an order of removal wrong- fully, but retains jurisdiction and hears the cause, the vyrong^ if any, can be remedied by reserving the question, and a final appeal to the Supreme Court of the United States, should the highest court of the State having jurisdiction on appeal sustain the ruling of the lower court on the application to remove. PEOCEEDINGS IN STATE COUBTS. 809 Coker v. Monaghan Mills, 110 Fed. 806; Home L. Ins. Co. V. Dmin, 19 Wall. 224, 225, 22 L. ed. 69 ; Springer v. Howes, 69 Fed. 849 ; McAlister v. Chesapeake & 0. K. Co. 85 C. C. A. 316, 157 Fed. 742, 13 A. & E. Ann. Cas. 1068. Or if right- fully removed, the Federal court may enjoin the further pro- ceeding in the State court, as heretofore stated. Traction Co. V. Madisonville St. Bernard Min. Co. 196 U. S. 245, 49 L. ed. 464, 25 Sup. Ct. Eep. 251 ; Chicago, K. I. & P. R Co. v. Stepp, 151 Fed. 914. Again, the refusal of the State court, rightfully or wrong- fully, does not prevent the removal. The petitioner can file the record in the Federal court and proceed vs'ith his case there, though pending in the State court; and filing defenses in the State court after removal would not affect his proceedings in the Federal court. See Mecke v. Valley Town Mineral Co. 89 Fed. 211 ; see Texas & P. E. Co. v. Eastin, 214 U. S. 153, 53 L. ed. 946, 29 Sup. Ct. Eep. 564, where an affirmative remedy asserted in the State court estopped a party from attacking the refusal of the State court to remove the case. The result would be that if the Federal court determines that the case is remov- able, and takes jurisdiction, the party removing may enjoin the action of the State court, or enjoin the plaintiff from proceed- ing under the decree of the State court. French v. Hay (French v. Stewart), 22 Wall. 252, 22 L. ed. 858; Mutual L. Ins. Co. V. Langley, 145 Fed. 421, 422; Dietzsch v. Huide- koper (Kern v. Huidekoper), 103 U. S. 498, 26 L. ed. 498. If the cause was removable, all action by the State court would be without jurisdiction, and void. Flint v. Coffin, 100 C. C. A. 342, 176 Fed. 872 ; Virginia v. Eives, 100 U. S. 317, 25 L. ed. 669 ; McAlister v. Chesapeake & 0. E. Co. 85 C. C. A. 316, 157 Fed. 741, 13 A. & E. Ann. Cas. 1068 ; Madisonville Trac- tion Co. V. St. Bernard Min. Co. 196 H. S. 239, 49 L. ed. 462, 25 Sup. Ct. Eep. 251 ; Kern v. Huidekoper, 103 U. S. 492, 26 L. ed. 357 ; Baltimore & O. E. Co. v. Koontz, 104 IT. S. 14, 26 L. ed. 645. Fower of the Federal Court Between Filing Petition for Re- moval and Filing the Record. We have just seen that as soon as the petition and bond for 810 PROCEEDINGS IN STATE COURTS. removal are filed in the State court its jurisdiction ceases, and the question becomes important as to what action the Federal court can take before the record is filed therein. Coeur D'Alene E. & IS^av. Co. V. Spalding, 35 C. C. A. 295, 93 Fed. 285, and authorities. It was held in Ee Barnesville & M. E. Co. 2 McCrary, 216, 4 Fed. 10, that the jurisdiction of the Federal court is not complete, so as to hear and determine the cause before the day f)rescribed by the statute, even though the transcript has been filed (Eemoval cases, 100 U. S. 475, 25 L. ed. 600), but that many incidental proceedings may be taken, and provisional remedies, such as attachment, etc., granted. Hamilton v. Fow- ler, 83 Fed. 321 ; Goldberg B. & Co. v. German Ins. Co. 152 Fed. 831; Eyder v. Bateman, 93 Fed. 23; Worth American Transp. & Trading Co. v. Howells, 58 C. C. A. 442, 121 Fed. 696. When the record is filed in the Federal court before the re- turn day, — that is, the next regular term after the removal, the Federal court cannot entertain a motion to remand even for want of jurisdiction. Kansas City & T. E. Co. v. Interstate Lumber Co. 36 Fed. 9 ; Torrent v. S. K. Martin Lumber Co. 37 Fed. 727. However, these cases were disapproved in Thompson v. Chicago, St. P. & K. C. E. Co. 60 Fed. 773, where the party moving to remand had filed the record and given prop- er notice of the motion, following Delbanco v. Singletary, 40 Fed. 181, and Mills v. Xewell, 41 Fed. 529. See Texas & St. L. E. Co. V. Eust, 5 McCrary, 348, 17 Fed. 275, 276. Cannot Enjoin. The Federal court cannot enjoin proceedings in a State court, where, though a petition and bond for removal have been filed, no action has been taken thereon by the State court, nor a copy of the record been entered in the Federal court. Cceur D'Alene E. & Nav. Co. V. Spalding, 35 C. C. A. 295, 93 Fed. 280. While it does not seem to be well settled what are the powers of a Federal court over the intermediate state of the case, be- tween the filing of the petition and bond in the State court, and the return day to the Federal court, which, as said, is the first day of the next succeeding term of the Federal court, yet I PEOCEEDINOS IN STATE COURTS. 811 think the rule may be stated, first, that the State court jurisdic- tion ceases, and the Federal court jurisdiction attaches upon the filing of the petition and bond for removal; second, that while the plaintiff in the State court has not to appear in the Federal court before the return day, and therefore the Federal court has no jurisdiction to proceed to hear the cause on its merits before such return day, or entertain any issue as to the removal itself, yet if any extraordinary proceeding be necessary to preserve the property or rights of the litigants, then upon no- tice either party may be required to appear for that purpose, and the court may grant the relief. Authorities above; Hamilton v. Fowler, 83 Fed. 321 ; Goldberg B. & Co. v. German Ins. Co. 152 Fed. 831 ; see Eyder v. Bateman, 93 Fed. 16. Cannot Take Depositions. It has been held that an application to take depositions, made to the Federal court while the case was in a state of transition, would not be granted, as no extraordinary condition appeared calling for the exercise of the power of the Federal court. North American Transp. & Trading Co. v. Howells, 58 C. C. A. 442, 121 Fed. 698. Your attention is called to a review of the cases upon the subject in Hamilton v. Fowler, 83 Fed. 321. Motion to Remand. In Hartford & C. W. R Co. v. Montague, 94 Fed. 227, it is declared the settled practice in the second circuit to allow a motion to remand to be made at once on the removal of a cause, without waiting for the next term, and the plaintiff may file the record if the defendant does not. Filing Transcript. We have seen that the filing of the petition and bond for removal vests jurisdiction in the Federal court for all pur- poses, but the regular course of proceeding is suspended until the record of the case below is filed in the Federal court. So filing the transcript, while not necessary to jurisdiction, yet is necessary for the court to proceed with the trial. Goldberg 812 PEOCEEDINGS IN STATE COTJETS. B. & Co. V. German Ins. Co. 152 Ted. 831. (See "Trans- mitting the Record.") The record of the removed case must be filed on or before the first day of the next session of the Federal court after the application for removal, and by this is meant the next session of the Federal court sitting in the Federal district to which the county where the suit originated attached. 30 Stat, at L. 397, chap. 236, U. S. Comp. Stat. 1901, p. 431; sec. 1, act 1888; 25 Stat, at L. p. 435, chap. 866, U. S. Comp. Stat. 1901, p. 510; Goldberg, B. & Co. v. German Ins. Co. 152 Fed. 831; Baltimore & 0. R. Co. v. Koontz, 104 U. S. 16, 26 L. ed. 646. But filing the record is not a question of juris- diction, and the right is not lost by delay, for the court may permit the record to be filed after the time appointed by stat- ute, for proper cause shown. Baltimore & 0. R. Co. v. Koontz, 104 U. S. 16, 26 L. ed. 646; Rowell v. Hill, 28 Fed. 434; Lucker v. Phoenix Assur. Co. 66 Fed. 162; Burgunder v. Browne, 59 Fed. 498 ; Eisenmann v. Delemar's Wevada Gold Min. Co. 87 Fed. 250 and cases cited; Pierce v. Corrigan, 77 Fed. 657; Hatcher v. Wadley, 84 Fed. 915. See JSTew Code, effective Jan. 1st, 1912, giving thirty days to file the record in the Federal Court, and giving parties thirty days from the filing in the Federal court to plead, answer, or demur to the com- plaint, etc. The cause then proceeds as if originally commenced in the Federal court. Sec. 29, chap. 3 ; also sec. 38, id. CHAPTEE CXXIII. STATUS AFTEE REMOVAL. The case is docketed in the Federal court, retaining the same status as to all process and proceedings that have been taken in the State court, and which have the same effect as if sued out in the Federal court. Sees. 4 and 6, act 1875 ; 1 TJ. S. Eev. Stat Supp. 83. See sec. 36, New Code, cha^. 3 ; also sec. 38, New Code, chap. 3. Cleaver v. Traders' Ins. Co. 40 Fed. 713 ; Davis v. St. Louis & S. F. R. Co. 25 Fed. 786 ; Bryant v. Thompson, 27 Fed. 881 ; Guernsey v. Cross, 153 Fed. 827 ; Chicago & A. Bridge Co. v. Anglo-American Packing & Provision Co. 46 Fed. 590; Duncan v. Gegan, 101 U. S. 810-812, 25 L. ed. 875, 876; Wabash Western E. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Eep. 126; Bragdon v. Perkins- Campbell Co. 82 Fed. 338; AUmark v. Platte S. S. Co. 76 Fed. 615; Champlain Constr. Co. v. O'Brien, 104 Fed. 930; Denison v. Shawmut Min. Co. 124 Fed. 860; Virginia-Caro- lina Chemical Co. v. Sundry Ins. Co. 108 Fed. 454; Eureka & K. E. Co. V. California & N. E. Co. 103 Fed. 897 ; Porter Land & Water Co. v. Baskin, 43 Fed. 325 ; Mercantile Nat. Bank v. Barron, 165 Fed. 832. Thus the lien of an attachment properly sued out in the State court is not affected by removal. Hatcher v. Hendrie & B. Mfg. & Supply Co. 68 C. C. A. 19, 133 Fed. 267; Hub- bard V. Central E. Co. 135 Fed. 256; Lebensberger v. Sco- field, 71 C. C. A. 476, 139 Fed. 380. And where the action in the State court against a nonresident is by attachment, the removal by him does not give the Federal court jurisdiction of his person. Wells v. Clark, 136 Fed. 462, overruled in 203 TJ. S. 164, 51 L. ed. 138, 27 Sup. Ct. Eep. 43, followed in Mercantile Nat. Bank v. Barron, 165 Fed. 832. See Purdy V. Wallace Miiller & Co. 81 Fed. 513. New Code, sec. 36. The rule as above given applies unless repugnant to the Con- stitution and laws. See Texas & P. E. Co. v. Wilder, 35 0. 813 814 STATUS AFTER REMOVAL. C. A. 105, 92 Fed. 957, refusing to allow depositions taken in the State court to be read in the Federal court. Zych v. Ameri- can Car & Foundry Co. 127 Fed. 726-727 ; see Texas & P. E. Co. V. Watson, 50 C. C. A. 230, 112 Fed. 402 ; Hanks Dental Asso. V. International Tooth Crown Co. 194 U. S. 309, 48 L. ed. 991, 24 Sup. Ct. Eep. 700. Defenses to be Heard in the Federal Court. The purpose of the removal act is to give the nonresident defendant the privilege of having his defenses heard in the Federal court (Wabash Western R. Co. v. Brow, 164 U. S. 277-278, 41 L. ed. 433, 434, 17 Sup. Ct. Eep. 126), and he is required to file his petition for removal on or before the time he is required to file his defenses in the State court. Martin V. Baltimore & 0. E. Co. (Gerling v. Baltimore & 0. E. Co.) 151 U. S. 686, 38 L. ed. 316, 14 Sup. Ct. Eep. 533; sec. 3, act 1875. (See "When Not Eemoved in Time," chapter 124). And this rule applies whatever may have been the proceed- ings in the State court before the time the defendant was re- quired to remove (Atlanta, K. & IST. E. Co. v. Southern E. Co. 66 C. C. A. 601, 131 Fed. 661; Champlain Constr. Co. v. O'Brien, 104 Fed. 930), unless trial on the merits has begun in the State courts though raised by demurrer (Alley v. Nott, 111 U. S. 476, 477, 28 L. ed. 492, 4 Sup. Ct. Eep. 495; Bank of Maysville v. Claypool, 120 U. S. 270, 30 L. ed. 633, 7 Sup. Ct. Eep. 545; Gregory v. Hartley, 113 U. S. 742-746, 28 L. ed. 1150-1152, 5 Sup. Ct. Eep. 743), but not hearing a preliminary motion to dissolve an injunction in the State court (Cella V. Brown, 136 Fed. 439, 440, and cases cited; see At- lanta, K. & N. E. Co. V. Southern E. Co. 66 C. C. A. 601, 131 Fed. 661-663). When Plaintiff Dismisses After Removed. Where plaintiff appears and dismisses his suit in the Fed- eral court after removal, he must file a new suit ; he cannot pro- ceed on the old pleading in the State court. Texas & P. E. Co. V. Huber, — Tex. Civ. App. — , 95 S. W. 569, 570. CHAPTEE CXXIV, EEMANDING. I have thus given the acts of Congress affecting the removal of a suit from the State court to the United States circuit court, and the status of the case after removal. It is not my purpose to discuss these acts further than may be necessary to develop the practice of the United States circuit court upon motions to remand. Excellent works on removals have been given to the profession, and these must be consulted for pro- cedure and forms. I shall assume that the cause has been removed under one of the provisions of the act as above given, and will only dis- cuss such steps as should be taken in the Eederal court after the removal. The first step to be taken after the case has been removed is to examine whether the defendant or defendants have com- plied with the Federal statutes in the procedure required, or the grounds upon which removals are permitted. They must be followed because jurisdictional. Mayo v. Dockery, 108 Eed. 899; Wabash Western K. Co., v. Brow, 164 U. S. 276, 41 L. ed. 433, 17 Sup. Ct. Eep. 126. And the right to deter- mine these questions is wholly with the Federal courts after removal (Dow v. Bradstreet Co., 46 Fed. 828 ; Kansas City, Ft. S. & M. R. Co. V. Daughtry, 138 U. S. 303, 34 L. ed. 964, 11 Sup. Ct. Eep. 306 ; Postal Teleg. Cable Co. v. Southern E. Co. 88 Fed. 805 ; Woodson County v. Toronto Bank, 128 Fed. 159), because, as said, on filing of the petition and bond the removal is effected at once (Mecke v. Valley Town Mineral Co. 89 Fed. 209-211). If the jurisdictional facts are not shown, however, the State court is not bound to give up its jurisdiction (Stone v. South Carolina, 117 U. S. 432, 29 L. ed. 962, Sup. Ct Eep. 799 ; Coker v. Monaghan Mills, 110 Fed. 806; Burlington, C. E. & 815 816 EEMAISTDING. K E. So. V. Dunn, 122 IT. S. 516, 30 L. ed. 1160, 7 Sup. Ct. Eep. 1262 ; Powers v. Chesapeake & O, K. Co. 169 U. S. 101, 42 L. ed. 676, 18 Sup. Ct Rep. 264) ; and if the case goes to judgment in the State court, you may review the refusal by writ of error to the Supreme Court of the United States. Ibid. ; Missouri, P. E. Co. v. Pitzgerald, 160 U. S. 557-582, 40 L. ed. 536-542, 16 Sup. Ct Eep. 389; Stone v. South Carolina, 117 U. S. 432, 29 L. ed. 962, 6 Sup. Ct Eep. 799. Statutes Controlling the Remanding of Causes. It is provided by section 5 of the act of 1875, that if in any suit removed to the Federal court from a State court it shall appear to the satisfaction of said circuit court at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy proper- ly within the jurisdiction of said court or that parties to such suit in the State court have been improperly or collusively joined, either as plaintiffs or defendants, for the purpose of creating a case removable into the Pederal court, the said cir- cuit court shall proceed no further therein, but shall remand it to the court from which it was removed, making such order as to costs as may be just. Again, under clause 2 of the act of 1888 it is provided for remanding causes removed on the ground of local prejudice as follows : "At any time before the trial of any suit which is now pending in any circuit court, or may be hereafter entered therein, and which has been removed from a State court on the ground of local prejudice, the circuit court shall, on the appli- cation of the other party, examine into the truth of the affidavit of local prejudice, and unless it shall appear to the satisfaction of the circuit court that said party will not obtain justice in the State court it shall cause the suit to be remanded to the State court. By the sixth clause of section 2 of the act there is no appeal from the order to remand. Causes for Bemanding. Thus, having seen the statutory duty of the circuit courts of REMANDING. 817 the United States as to remanding causes, I shall now inquire into the causes for remanding, assuming that a proper petition and bond have been filed ; and first — When Not Removed in Time, The first inquiry would be as to the time the petition and bond for removal were filed in the State court, and the Federal court must determine it. Fidelity Trust & S. Co. v. Newport Xews & ]\I. Valley Go. 70 Fed. 403. The statute, as we have seen, requires it to be filed at or before the time when by the State law the defendant is required to plead or answer to the petition in the State court, which, in Texas, must be on or before the second day of the return term of the citation. Tex. Ptev. Stat. 1447, 1263. First Nat. Bank v. Appleyard, 13,8 Fed. 939 ; Martin v. Baltimore & 0. K. Co. (Gerling v. Balti- more & 0. K. Co.) 151 U. S. 673, 38 L. ed. 311, 14 Sup. Ct. Eep. 533 ; Daugherty v. Western U. Teleg. Co. 61 Fed. 138 ; American Bonding Co. v. Mills, 81 C. C. A. 325, 152 Fed. 107; Goldberg v. German Ins. Co. 152 Fed. 831; Overholt V. German American Ins. Co. 155 Fed. 488 ; Quilhot v. Hamer, 158 Fed. 188 ; Goldey v. Morning News, 156 U. S. 524, 39 L. ed. 519, 15 Sup. Ct. Eep. 559 ; Fidelity & C. Co. v. Hub- bard, 117 Fed. 952 ; Oliver v. Iowa C. R. Co. 102 Fed. 371 ; Gregory v. Boston Safe Deposit & T. Co. 88 Fed. 4 ; Donahue V. Calumet Fire Clay Co. 94 Fed. 27 ; Maher v. Tower Hotel Co. 94 Fed. 226; First Littleton Bridge Co. v. Connecticut Eiver Lumber Co. 71 Fed. 225. See Winkler v. Chicago & E. I. E. Co.— see, also, 120 U. S. 786-794, 108 Fed. 307, as to the time required under the Federal acts of 1789, 1866, and 1875. When the service on the nonresident defendant has been made by publication, which is required to be published for a specific number of weeks, the full time must expire before the defendant is required to answer within the removal act, though the last publication was made before the time expired. Tenney V. American Pipe Mfg. Co. 96 Fed. 919; Batt's Eev. Stat. (Tex.) 1235, 1264. Again, when the State law permits a person served by publi- cation to have a retrial if appearing within a certain time, S. Eq.— 52. 818 EEMANDING. the cause could not be removed by such defendant on his appear- ance. Davis V. Harris, 124 Fed. 713. If the petition for removal is filed after the day upon which a dilatory plea or the answer is required to be filed by the State law, the State court may refuse the removal, and, if re- moved, the Federal court should remand (Head v. Selleck, 110 Fed. 786; Lantz v. Fretts, 173 Fed. 1008, and cases cited. First Nat. Bank v. A. E. Appleyard & Co. 138 Fed. 939; Martin v. Baltimore & O. R. Co. [Gerling v. Baltimore & O. E. Co.] 151 U. S. 673, 678, 38 L. ed. 311, 313, 14 Sup. Ct. Eep. 533 ; Gregory v. Boston Safe Deposit & T. Co. 88 Fed. 3 ; First Littleton Bridge Corp. v. Connecticut River Lumber Co. 71 Fed. 225 ; Daugherty v. Western U. Teleg. Co. 61 Fed. 138 ; Laidly v. Huntington, 121 II. S. 181, 30 L. ed. 884, 7 Sup. Ct. Rep. 855; Delbanco v. Singletary, 40 Fed. 178; South Dakota C. R. Co. v. Chicago, M. & St. P. R. Co. 73 C. C. A. 176, 141 Fed. 578) ; and when the action is joint, if by expiration of time one defendant loses his right the other is bound (Calderhead v. Downing, 103 Fed. 29 and cases cited; see Morgan's L. & T. R. & S. S. Co. v. Street, — Tex. Civ. App. — , 122 S. W. 270) ; but this failure to file the peti- tion in time may be waived, as it has been held that it is not essential to jurisdiction (Powers v. Chesapeake & O. R. Co. 169 U. S. 98, 42 L. ed. 675, 18 Sup. Ct. Rep. 264, and cases cited ; Martin v. Baltimore & 0. R. Co. [Gerling v. Baltimore & 0. R. Co.J 151 U. S. 688, 38 L. ed. 316, 14 Sup. Ct. Rep. 533; French v. Hay, 22 Wall. 238, 22 L. ed. 801; Knight v. International & G. IST. R. Co. 9 C. C. A. 376, 23 U. S. App. 356, 61 Fed. 90), and going to trial in the Federal court would waive (Newman v. Schwerin, 10 C. C. A. 129, 22 U. S. App. 393, 61 Fed. 870; Collins v. Stott, 76 Fed. 614). So where the plaintiff appears for any other purpose than to object to the removal, and to move to remand would waive. Again, where one consents to the removal he cannot object to the time of removal. Connell v. Smiley, 156 U. S. 339, 39 L. ed. 444, 15 Sup. Ct. Rep. 353. When the service of summons in the State court is void, the time limited by statute does not bind the defendant, but he may appear and remove even after judgment. Tortat v. Hardin Min. & Mfg. Co. Ill Fed. 426; Cady v. Associated EEMANDING. 819 Colonies, 119 Fed. 424; Ward v. Congress Constr. Co. 39 C. C. A. 669, 99 Fed. 598. ^Yhen Motion to Remand Made. The motion to remand on the ground that the petition for removal was not filed in time should be made promptly as it may be waived, because, as said, the failure to file in time is not fundamental, but in a sense modal and formal (Act 1888, sec. 3; Ayers v. Watson, 113 U. S. 598, 28 L. ed. 1094, 5 Sup. Ct. Rep. 641; Collins v. Stott, 76 Fed. 614; Powers v. Chesapeake & 0. E. Co. 169 TJ. S. 99, 42 L. ed. 675, 18 Sup. Ct. Eep. 264; Newman v. Schwerin, 10 C. C. A. 129, 22 U. S. App. 393, 61 Fed. 870) ; and acts recognizing the jurisdiction of the Federal court, or great delay in the motion to remand, would waive the failure of the defendant to file the petition for removal in time (Ibid. ; Guarantee Co. of N". A. v. Han- way, 44 C. C. A. 312, 104 Fed. 369, 374, and cases cited; Atlantic, K. "' X. R. Co. v. Southern R. Co. 66 C. C. A. 601, 131 Fed. 660, 661; Baltimore & O. R. Co. v. Ford, 35 Fed. 170 ; Hamilton v. Fowler, 83 Fed. 321 ; Newman v. Schwerin, 10 C. C. A. 129, 22 U. S. App. 393, 61 Fed. 870; Martin v. Baltimore & O. R. Co. [Gerling v. Baltimore & 0. R. Co.] 151 U. S. 688, 38 L. ed. 316, 14 Sup. Ct. Rep. 533). Effect of Extension of Time to Answer. The agreement of parties to extend the time to answer cannot change the statute requiring the petition for removal to be filed at or before the time required by the State law to answer, and it must be filed as required, whether there by an agreement to extend the time to answer or not. There has, however, been such conflict of opinion that it would be proper to say the rule varies in the different circuits. Tevis v. Palatine Ins. Co. 149 Fed. 561. Thus, the rule, as stated above, has been upheld in Austin V. Gagan, 5 L.R.A. 476, 39 Fed. 626 ; Dixon v. Western U. Teleg. Co. 38 Fed. 377; Martin v. Carter, 48 Fed. 596; Yar- nell V. Felton, 102 Fed. 369; same case 104 Fed. 161; Cham- plain Constr. Co. v. O'Brien, 104 Fed. 932, 933; Velie v. 820 EFFECT OF EXTENSIOIT OF TIME TO ANSWEE. Manufacturers' Acci. Indemnity Co. 40 Fed. 545 ; Ruty Can- yon Gold Min. Co. v. Hunter, 60 Fed. 305 ; Schipper v. Con- sumer Cordage Co. 72 Fed. 803. A distinction is drawn in this last case between an extension of time by agreement and by the order of the court. Ibid. ; Fidelity Trust & S. V. Co. V. Newport News & M. Valley Co. 70 Fed. 406; Mecke v. Valley Town Mineral Co. 89 Fed. 209 ; Price v. Lehigh Valley R. Co. 65 Fed. 826. See Spangler v. Atchison, T. & S. F. E. Co. 42 Fed. 305, as to distinction between order of court and rule of court as to extension of time. While it has been held contra in Russell v. Harriman Land Co. 145 Fed. 745 ; Groton Bridge & Mfg. Co. v. American Bridge Co. 137 Fed. 297-299 ; Chiatovich v. Hanchett, 78 Fed. 193 ; People's Bank V. ^tna Ins. Co. 53 Fed. 161 ; Cancel v. Goodyear Shoe Machinery Co. 106 Fed. 551; Rycroft v. Green, 49 Fed. 177; Lord V. Lehigh Valley R. Co. 104 Fed. 929; Mayer v. Ft. Worth & D. C. R. Co. 93 Fed. 601 ; Collins v. Stott, 76 Fed. 613 ; Phenix Ins. Co. v. Charleston Bridge Co. 13 C. C. A. 58, 25 U. S. App. 190, 65 Fed. 628; See Tevis v. Palatine Ins. Co. 149 Fed. 561, 562, collecting authorities pro and con. Again, it has been held that the time to file a petition for removal cannot be extended when the court extends the time to answer on an ex parte order (Hurd v. Gere, 38 Fed. 537) ; nor when the time has been extended by rule of court (See Spangler v. Atchison, T. & S. F. R. Co. 42 Fed. 305 as to distinction between order of court and rule of court). The Federal court will not take judicial notice of a rule of court extending the time for pleading beyond the statute. Yarnell V. Felton, 104 Fed. 161, S. C. 102 Fed. 369. The Federal courts do not take judicial notice of the rules of the State courts. Randall v. New England Order of Pro- tection, 118 Fed. 782. I submit the rule as first stated is correct; the act requires the petition to be filed at or before the time when answer is due according to the State law, and a proper construction clearly excludes the idea that it may be dependent on the agree- ment of parties, or the extension of time by a court to answer beyond that fixed by the statute. Besides, the right of removal must appear in the case as the plaintiff has made it, and does not in any way depend on the answer to be filed ; and the right WHEN BIGHT ARISES AFTEE TIME TO ANSWER. S21 of removal existing and apparent when the agreement to ex- tend the time for answering is made, should be construed to be a waiver of the right of removal, rather than an extension of the time to apply for it. When Right of Removal Arises After the Time Fixed by Statute. Sometimes the right of removal does not exist at the time when by the State law the answer is to be filed, but may arise in the subsequent proceedings in the State court, as where the amended petition first discloses the right to remove, or other defendants made (Jones v. Mosher, 46 C. C. A. 471, 107 Fed. 563; Guarantee Co. of IST. A. v. Hanway, 44 C. C. A. 312, 104 Eed. 374; Green v. Valley, 101 Fed. 884; Enders v. Lake Erie & W. E. Co. 101 Fed. 203 ; Bailey v. Mosher, 95 Fed. 223 ; Myrtle v. Nevada, C. & 0. E. Co. 137 Fed. 193 ; Barber V. Boston & M. E. Co. 145 Fed. 52 ; Eobinson v. Parker-Wash- ington Co. 170 Fed. 850; Eoberts v. Chicago, B. & Q. E. Co. 168 Fed. 316 ; Youtsey v. Hoffman, 108 Fed. 693 ; Ward v. Congress Constr. Co. 39 C. C. A. 669, 99 Fed. 598; West Virginia v. King, 112 Eed. 369), as, for instance, when by change of parties by dismissal, or otherwise, the controversy for the first time becomes one wholly between citizens of differ- ent States (Ibid. ; Powers v. Chesapeake & 0. E. Co. 169 TJ. S. 92, 42 L. ed. 673, 18 Sup. Ct. Eep. 264; Green v. Valley, 101 Eed. 882 ; Ward v. Congress Constr. Co. 39 C. C. A. 669, 99 Fed. 598 ; Diday v. New York, P. & 0. E. Co. 107 Fed. 567; Calderhead v. Downing, 103 Fed. 27; but the right may be lost, see Morgan's L. & T. E. & S. S. Co. v. Street, —Tex. Civ. App.— , 122 S. W. 270 ; Huber v. Texas & P. E. Co. — Tex. Civ. App.—, 113 S. W. 984) ; or when the original petition in the State court is for an amount not in excess of two thousand dollars, but plaintiff by amendment greatly in- creases the claim so as to bring it within Federal jurisdiction (Enders v. Lake Erie E. Co. 101 Eed. 203 ; Price v. Ellis, 129 Eed. 485, 486; Walcott v. Watson, 46 Eed. 529; Clarkson V. Manson, 18 Blatchf. 443, 4 Fed. 257; Jones v. Mosher, 46 C. C. A. 471, 107 Eed. 563, citing Northern P. E. Co. V. Austin, 135 U. S. 315, 34 L. ed. 218, 10 Sup. Ct. Eep. 822 EFFECT OF FILING ANSWER IN STATE COURT. 758; Swann v. Mutual Keserve Fund Life Asso. 116 Fed. 232; Peterson v. Chicago, M. & St. P. E. Co. 108 Ped. 561; Simmons v. Mutual Reserve Pund Life Asso. 114 Ped. 785) ; or where by amendment the cause of action is made to depend on a Pederal question not appearing in the original petition (Green v. "Valley, 101 Ped. 882 ; Bailey v. Mosher, 95 Ped. 223 ; Guarantee Co. of K A. v. Hanway, 44 C. C. A. 312, 104 Ped. 369) ; but the amendment must, in effect, state a new cause of action (Painter v. IsTew River Mineral Co. 98 Ped. 544). In either of the events happening as above stated, a motion to remove to the Pederal court promptly made should be sus- tained, and therefore a motion to remand when a motion is made under these conditions will not be sustained. In determining the promptness with which a motion to re- move is made, time must be calculated from the filing of the amended petition. Evans v. Dillingham, 43 Ped. 177. Effect of Filing Answer in State Court. The filing of an answer in the State court before the time has elapsed for pleading or answering under the State law, and the petition for removal to be filed, as when necessary to move the dismissal of a preliminary injunction, does not affect the right to remove within the period permitted by statute. Cella V. Brown, 136 Ped. 439; Powers v. Chesapeake & 0. R. Co. 169 U. S. 93, 42 L. ed. 673, 18 Sup. Ct. Rep. 264; Champlain Constr. Co. v. O'Brien, 104 Ped. 930; Wilcoxen v. Chicago, B. & Q. R. Co. 116 Ped. 444; Sidway v. Missouri Land & Live Stock Co. 116 Ped. 382-394, and cases cited. As to effect of plea to jurisdiction of the State court, see Olds v. City Trust S. D. & Surety Co. 114 Ped. 975. The rule may be stated that whether necessary to be filed in aid of some preliminary procedure or not, the mere filing of an answer in the State court before the time has elapsed to file a petition for removal does not bar the right to remove within the time permitted by statute. The right is only lost by going beyond the absolutely required time. Champlain Constr. Co. v. O'Brien, 104 Ped. 933; Donahue v. Calumet Pire Clay Co. 94 Ped. 27. But it seems that where a State fixes no time for filing an TEEM OF FEDEEAX COIJET TO EEMOVE. 823 answer, that a demurrer to the bill for insufficiency, wMcli was presented and overruled, would cut off the right to remove (Winkler v. Chicago & E. I. E. Co. 108 Eed. 305-307; Lantz V. Fretts, 173 Fed. 1007, 1008). The hearing and determina- tion of a demurrer in a State court bars the right of removal. Ibid. 1009, and cases cited; Eosenthal v. Coates, 148 U. S. 14:3, 37 L. ed. 399, 13 Sup. Ct. Eep. 576. Or when defendant files a demurrer and stipulates for a hearing of the cause. Case V. Olney, 106 Fed. 433. "^^Tiere one is sued in the State court in the same action both upon individual and partnership liability, the appearance in the State court to contest the validity of an attachment affect- ing his individual liability would not deprive him of the right as a member of the partnership to remove the cause. Calder- head v. Downing, 103 Fed. 27. Where Action Joint. The rule, however, is that when the action is joint, and one defendant answers and submits to the jurisdiction of the State court, it deprives the other of the privilege of removing the cause (Ibid.; Abel v. Book, 120 Fed. 47); or one defendant loses his right the other is bound, as where one partner loses the right to remove it subjects the other to the disability. Fletcher v. Hamlet, 116 U. S. 410, 29 L. ed. 680, 6 Sup. Ct. Eep. 426 ; Sogers v. Van Nortwick, 45 Fed. 514. To What Term, of the Federal Court Case Should Be Removed. The next point of observation should be as to whether the record from the State court has been filed at the proper term of the Federal court, and within proper time. Under section 7 of the act of 1875, 18 Stat, at L. 472, chap. 137, U. S. Comp. Stat. 1901, p. 512, it is provided that all causes removable under this act, if the term of the circuit court to which the same is removable then next to be hoi den shall commence within twenty days after filing the petition and bond for removal in the State court, then the one seeking to remove has twenty days from such application to file said copy of record in said circuit court and enter appearance there- 824 TEEM OF FEDEEAL COtTET TO REMOVE. in ; and if done within said twenty days, sucli filing an appear- ance shall be taken to satisfy the bond which requires the record to be filed on the first day of the next session of the circuit court of the United States after the removal is sued out. Sec. 7, act 1875; Goldberg, B. & Co. v. German Ins. Co. 152 Fed. 831. Under sec. 29, chap. 3 of the ISTew Code, to be effective January 1st, 1912, it is required that a certified copy of the record must be filed within thirty days from the date of filing the petition and bond, and the party removing has thirty days from filing the record to plead, answer, or demur. A failure to file the record in the Federal court within the time stated does not restore the jurisdiction of the State court (National S. S. Co. v. Tugman, 106 U. S. 122, 27 L. ed. 89, 1 Sup. Ct. Eep. 58), but is a cause for remanding the case. U. S. Eev. Stat., sec. 641, U. S. Comp. Stat. 1901, p. 520. Hatcher v. Wadley, 84 Fed. 913. However, many exceptions have been recognized, and Federal courts have refused to re- mand when a reasonable cause for the failure has been set up and proven. Hatcher v. Wadley, 84 Fed. 915 ; Lucker v. Phoe- nix Assur. Co. 66 Fed. 162; Pierce v. Corrigan, 77 Fed. 657; St. Paul & C. E. Co. V. McLean, 108 U. S. 217, 27 L. ed. 704, 2 Sup. Ct. Eep. 498; Baltimore & O. E. Co. v. Koontz, 104 U. S. 5, 26 L. ed. 643 ; Eowell v. Hill, 28 Fed. 433 ; Eisen- mann v. Delemar's Nevada Gold-Min. Co. 87 Fed. 248. (See "When Not Eemoved in Time.") Thus, in Kelly v. Chicago & S. E. Co. 122 Fed. 286, the removing defendant awaited the action of the State court upon his application to remove, and was thus delayed until after the time the transcript should have been filed in the Federal court. It was held a reasonable ground, and the court refused to re- mand the case. So it may be said that a failure to file the record in the Federal court within the statutory time required would be good ground for remanding, if the failure was with- out reasonable excuse. Eequiring the case to be removed to the next session of the circuit court to be held after the petition for removal had been filed created a hardship in Texas where the judicial districts were very large and were divided into several divisions. Where- upon Congress, by act of May 4, 1898, 30 Stat, at L. p. 397, chap. 236, U. S. Comp. Stat. 1901, p. 431, provided that in REMANDING. 825 case of removal of suits from the court of the State of Texas to the courts of the United States such removal shall be to the circuit court in the division where the county is situated from which the removal is made, and the time within which the re- moval shall be perfected, in so far as it is regulated by the terms of the United States courts, shall be deemed to refer to the United States courts in such division. To illustrate: If a case arises in a county attached to the Austin division of the western district, and a removal is sought, it is not necessary to file the record at San Antonio, though that may be the next session of the circuit court of the western district, but you have until the first session of the circuit at Austin to file the record. See Hyde v. Victoria Land Co. 125 Fed. 970. Transmitting the Record. The removing party must transmit the record (Hatcher v. Wadley, 84 Fed. 913), but adverse party may file it and move to remand. Ke Kewark & H. Traction Co. 110 Fed. 25. (See Filing Transcript.) Want of Jurisdiction as a Ground to Remand. Our next point of observation would be, did the State court have jurisdiction of the subject-matter ; for if the court a quo had none, the jurisdiction in the Federal court cannot attach by removal, even though the suit could have been originally brought in the Federal court. 25 Stat, at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 509 ; Thacker Coal & Coke Co. v. :N'orfolk & W. E. Co. 171 Fed. 271 ; Cowley v. Northern P. E. Co. 159 U. S. 583, 40 L. ed. 267, 16 Sup. Ct. Eep. 127; Swift & Co. V. Philadelphia & E. E. Co. 4 Inters. Com. Eep. 633, 58 Fed. 858, This question of the State's jurisdiction of the subject-matter may be raised in the Federal court after re- moval, whereupon the Federal court should dismiss, and not remand. Auracher v. Omaha & St. L. E. Co. 102 Fed. 1. To illustrate: An action in a State court upon some mat- ter exclusively within the jurisdiction of a Federal court, as an action founded upon the violation of the interstate lav;, is removable, and when removed will be dismissed (Sheldon v. Wabash E. Co. 105 Fed. 786; Swift & Co. v. Philadelphia 826 EEMANDlWa. & E. E. Co. 4 Inters. Com. Eep. 633, 58 Fed. 858; Fidelity Trust Co. V. Gill Car Co. 25 Fed. 737; Crowley v. Southern E. Co. 139 Fed. 853, 854), but if the State court had jurisdic- tion, the fact that defendant pleaded a defense of which the State court could not have taken cognizance would not affect the Federal jurisdiction. Lehigh Valley E. Co. v. Eainey, 99 Fed. 596. In a limited sense the jurisdiction of the Federal court in removal cases is derivative, so that if the State court had no jurisdiction the Federal court has none. Ibid. When Case Not Within the Jurisdictional Act. We must next look to see if the case in the State court falls within the terms of the Federal jurisdictional act, for if not, it will be remanded. See Ee Cilley, 58 Fed. 977 for construc- tion of act of 1888. Eemovals made on the ground of diversity of citizenship, proper amount, or a Federal question, apparent in the plain- tiff's case, touch the fundamental jurisdiction of the Federal court, and, as we have heretofore seen in such cases, it must clearly appear in the petition of plaintiff, if based on a Federal question; or may appear in the petition of plaintiff in the State court, or made to appear in the petition for removal if based on diversity of citizenship. Harrington v. Great North- ern E. Co. 169 Fed. 714; Huntington v. Pinney, 126 Fed, 237, 238; Johnson v. Wells, F. Co. 91 Fed. 3; Ysleta v. Can- da, 67 Fed. 8 ; Cella v. Brown, 75 C. C. A. 608, 144 Fed. 744 ; Fitzgerald v. Missouri P. E. Co. 45 Fed. 814 ; Chappell V. Waterworth, 155 U. S. 107, 39 L. ed. 87, 15 U. S. App. 34; Alexandria Nat. Bank v. Willis C. Bates Co. 87 C. C. A. 643, 160 Fed. 841; Walker v. Collins, 167 U. S. 59, 42 L. ed. 76, 17 Sup. Ct. Eep. 738; Carson v. Dunham, 121 U. S. 426, 30 L. ed. 993, 7 Sup. Ct. Eep. 1030; Broadway Ins. Co. v. Chicago G. W. E. Co. 101 Fed. 508; Helena Power Trans- mission Co. V. Spratt, 146 Fed. 311 ; Gillespie v. Pocahontas Coal & Coke Co. 162 Fed. 742 ; Willard v. Chicago, B. & Q. E. Co. 91 C. C. A. 215, 165 Fed. 181. (See "Eemoval on Diversity of Citizenship," and "On Ground of Federal Ques- tion.") By section 5 of the act of 1875, as we have seen, it is made EEMANDING. 82T the duty of the Federal court to remand the cause at any time after the suit is removed, when it appears that such suit does not involve a dispute or controversy properly within the juris- diction of the Federal court, or when parties have been col- lusively joined to make the cause removable (see chapter 92). liill V. Walker, 92 C. C. A. 633, 167 Fed. 241. E"ew Code, chap. 3, sec. 37. Whenever the cause is removed because of the alleged exist- ence of one of these grounds of jurisdiction, you may make the issue by motion to remand, and contest the truth of the al- legation, whether it be of citizenship, amount, or a Federal question. The issue can only be tried in the Federal court (Lake Street Elev. E. Co. V. Farmers' Loan & T. Co. 23 0. C. A. 448, 46 U. S. App. 630, 77 Fed. 773 ; Carson v. Hyatt, 118 U. S. 287, 30 L. ed. 169, 6 Sup. Ct. Eep. 1050; Burlington, C. K. 6 K K. Co. V. Dunn, 122 U. S. 515-517, 30 L. ed. 1160, 1161, 7 Sup. Ct. Eep. 1262 ; Kansas City, Ft. S. & M. E. Co. v. Daughtry, 138 U. S. 303, 34 L. ed. 964, 11 Sup. Ct. Eep. 306), and when raised it must be in the language of the stat- ute, and be proven to the satisfaction of the court that the juris- diction does not exist, or the case must be remanded. And when shown, it is the duty of the court to remand at any stage of the proceeding where it appears that the cause has been wrongfuly removed, though pleading and evidence have been permitted to be filed and taken in the Federal court. Broad- way Ins. Co. V. Chicago G. W. E. Co. 101 Fed. 508. Juris- diction cannot be inferred by acts of plaintiff or by consent. Crane Co. v. Guanica Centrale 132 Fed. 713. Again, this duty to remand cannot be aifected by the fact that there is no apparent cause of action stated, that is for the State court to determine. Broadway Ins. Co. v. Chicago G. W. E. Co. 101 Fed. 508; Ayres v. Wiswall, 112 U. S. 187- 193, 28 L. ed. 693-695, 5 Sup. Ct. Eep. 90; Evans v. Felton, 96 Fed. 176. When Question Doubtful Should Remand. It is the duty of the court to remand where there is doubt. Groel V. United Electric Co. 132 Fed. 265 and cases cited; Concord Coal Co. v. Haley, 76 Fed. 882 ; Hutcheson v. Big- bee, 56 Fed. 329. CHAPTEE OXXV. DIVEESITY OF CITIZENSHIP. When diversity of citizenship is set up as ground for re- moval it must appear to have existed vs^hen the suit began, as well as at the time the application for removal V7as made ; and if it does not so appear, the case should be remanded. Wilson V. Giberson, 124 Fed. 701; Huntington v. Pinney, 126 Fed. 237 ; Freeman v. Butler, 39 Fed. 1 ; German Sav. & L. Soc. v. Dormitzer, 53 C. C. A. 639, 116 Fed. 471 ; Zellam v. Keith, 144 U. S. 570, 36 L. ed. 544, 12 Sup. Ct Eep. 922; Mat- tingly V. Northwestern Virginia E. Co. 158 U. S. 56, 39 L. ed. 895, 15 Sup. Ct. Eep. 725 ; Oroville & N. E. Co. v. Leggett, 162 Fed. 572; Merchants' Cotton Press & Storage Co. v. In- surance Co. of ]Sr. A. 151 U. S. 384, 38 L. ed. 204, 4 Inters. Com. Eep. 499, 14 Sup. Ct. Eep. 367 ; Alexandria ISTat. Bank V. Willis C. Bates Co. 87 C. C. A. 643, 160 Fed. 841 ; Santa Clara County v. Goldy Mach. Co. 159 Fed. 750; Jones v. Adams Exp. Co. 129 Fed. 618; Irving v. Smith, 132 Fed. 207; Kansas City Southern E. Co. v. Prunty, 66 C. C. A. 163, 133 Fed. 13; Thompson v. Stalmann, 131 Fed. 809 ; Lawrence V. Southern P. Co. 165 Fed. 241. However, in determining diversity as ground of removal one is not bound by the manner in which parties are placed in the bill, but as has been before shown, the court will place or shift the parties according to their real interest, and if by thus shifting them the proper diversity can be shown the court will not remand. Hutton v. Joseph Bancroft & S. Co. 77 Fed. 482 ; Groel v. United Elec- tric Co. 132 Fed. 254; Harter Twp. v. Kernochan, 103 U. S. 566-567, 26 L. ed. 412; Adelbert College v. Toledo, W. h W. E. Co. 47 Fed. 844. Indispensable Parties are Alone Considered. Sioux City Terminal E. & Warehouse Co. v. Trust Co. of 828 DIVEKSITY OF CITIZENSHIP AS BASIS FOE REMANDING. 829 ]Sr. A. 27 C. C. A. 73, 49 U. S. App. 523, 82 Eed. 124 j Cella V. Brown, 136 Fed. 441; Kogers v. Penobscot Min. Co. 83 C. C. A. 380, 154 Fed. 610 and cases cited; Geer v. Mathie- son Alkali Works, 190 U. S. 428, 47 L. ed. 1122, 23 Sup. Ct. Rep. 807; Higgins v. Baltimore & 0. E. Co. 99 Fed. 641; Lucas V. Milliken, 139 Fed. 816. If the bill does not show diversity of citizenship to give jurisdiction, the petition for removal may set up the facts showing diversity of citizenship does exist by shifting the par- ties according to interest, or by striking out informal parties, or it may set up a collusion and fraudulent joinder of parties by plaiutifE in order to prevent removal. Santa Clara County V. G-oldy Mach. Co. 159 Fed. 750; Groel v. United Electric Co. 132 Fed. 254; Fife v. Whittell, 102 Fed. 537; Ysleta v. Canda, 67 Fed. 8; Hutton v. Joseph Bancroft & S. Co. 77 Fed. 482; Harter Twp. v. Kernochan, 103 U. S. 566, 567, 26 L. ed. 412, 413 ; Seaboard Air Line E. Co. v. North Caro- lina E. Co. 123 Fed. 630 ; Eeese v. Zinn, 103 Fed. 97 ; Kim- ball V. Cedar Eapids, 99 Fed. 132. If neither the bill nor the petition for removal shows juris- dictional facts, the circuit court will not permit an amendment to show jurisdiction and cause for removal, as we shall here- after see. Fife v. Whittell, 102 Fed. 537 ; Murphy v. Payette Alluvial Gold Co. 98 Fed. 321; Powers v. Chesapeake & 0. E. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Eep. 264; Sturgeon Eiver Boom Co. v. W. H. Sawyer Lumber Co. 89 Fed. 113. Where diversity is alleged but defectively, it may be amended as we will hereafter see. Thompson v. Stalmann, 131 Fed. 811 ; Stadlemann v. Whiteline Towing Co. 92 Fed. 209. (See "Amending Petition for Eemoval"). Diversity cannot be set up in a petition for removal by stating citizen- ship of partners, if not made parties to suit as individuals. Ealya Market Co. v. Armour & Co. 102 Fed; 530 ; see "Amend- ment of Petition." Fraudulent Joinder to Prevent Removal. The circuit court of the United States will not permit plain- tiff to join formal parties, or fraudulently join with the de- 830 DIVEBSITT OF CITIZENSHIP AS BASIS FOE EEMANDING. fendant parties whose citizenship would defeat a diversity of citizenship and thereby prevent reraoval. Free v. Western U. Teleg. Co. 122 Fed. 311; Kelly v. Chicago & A. K. Co. 122 Fed. 286; Crawford v. Illinois C. E. Co. 130 Fed. 395 and cases cited; Gustafson v. Chicago, E. I. & P. E. Co. 128 Fed. 86; Boatner v. American Exp. Co. 122 Fed. 714; Eoss v. Erie E. Co. 120 Fed. 703; McCormick v. Illinois C. E. Co. 100 Fed. 250 ; Union Terminal E. Co. v. Chicago, B. & Q. E. Co. 119 Fed. 209 ; Axline v. Toledo W. V. & O. E. Co. 138 Fed. 169; Offner v. Chicago & E. E. Co. 78 C. C. A. 359, 148 Fed. 202; Prince v. Illinois C. E. Co. 98 Fed. 1; Doremus V. Eoot, 94 Fed. 760; Dow v. Bradstreet Co. 46 Fed. 824; See Charman v. Lake Erie & W. E. Co. 105 Fed. 449, and Welch V. Cincinnati, N. O. & T. P. E. Co. 177 Fed. 760. Fraudulent Joinder to Remove. Nor can you fraudulently join a party to create diversity so as to remove. Pennsylvania E. Co. v. Alleghany Valley E. Co. 25 Fed. 113. Where the cause of action is joint, you may join a defendant, though the purpose is to prevent re- moval. Evansberg v. Insurance Stove, Eange & Foundry Co. 168 Fed. 1001 ; Hukill v. Maysville & B. S. E. Co. 72 Fed. 750 ; Thresher v. Western U. Teleg. Co. 148 Fed. 651 ; Gustaf- son V. Chicago, E. I. & P. E. Co. 128 Fed. 85 ; see Knuth v. Butte Electric E. Co. 148 Fed. 73. See "Motion to Eemand for Fraudulent Joinder, chapter 133." JSTew Code, chap. 3, sec. 37. Where Issue Determined. These issues are to be determined by the Federal court. Carlisle v. Sunset Teleph. & Teleg. Co. 116 Fed. 896; Kansas City Suburban Belt E. Co. v. Herman, 187 U. S. 70, 47 L. ed. 79, 23 Sup. Ct. Eep. 24; Woodson County v. Toronto Bank, 128 Fed. 157; Kansas City, Ft. S. & M. R Co. v. Daughtry, 138 U. S. 298, 34 L. ed. 963, 11 Sup. Ct. Eep. 306; Arrow- smith V. Nashville & D. E. Co. 57 Fed. 170; Thomas v. Great Northern E. Co. 77 C. C. A. 255, 147 Fed. 83 ; McGuire v. Great Northern E. Co. 153 Fed. 434. DIVEESITT OS" CITIZENSHIP AS BASIS FOE EBMANDING. 831 What Must be Alleged and Shown in Trial of Issue. It must appear that no cause of action is stated against the defendant alleged to be fraudulently joined; or that in law he has been improperly joined; or that the averments upon which he is joined are untrue so that a want of good faith in the joinder is apparent. Hukill v. Maysville & B. S. E. Co. 72 Fed. 745, 746 ; Warax v. Cincinnati, N. O. & T. P. E. Co. 72 Fed. 637, 638; Thomas v. Great Northern E. Co. 77 C. C. A. 255, 147 Fed. 83 ; Offner v. Chicago & E. E. Co. 78 C. C. A. 359, 148 Fed. 201 ; Union Terminal E. Co. v. Chicago, B. & Q. E. Co. 119 Fed. 209. General allegations are not suf- ficient. Ibid. See also Durkee v. Illinois C. E. Co. 81 Fed. 1; Landers v. Felton, 73 Fed. 311. Whether or not an allega- tion of a joint cause of action in the complaint is true or not may be put in issue by the petition for removal alleging a frau- dulent joinder to prevent removal. Gustafson v. Chicago, E. I. & P. E. Co. 128 Fed. 85 ; Bryce v. Southern E. Co. 122 Fed. 709. See Boatner v. American Exp. Co. 122 Fed. 714. How Issue Raised as to Diversity of Citizenship. The issue as to whether there is diversity of citizenship upon which to base the removal is raised in the circuit court of the United States in the same manner as the issue is raised to defeat the original jurisdiction of the circuit courts, which has already been sufSciently discussed, together with the proof re- quired. If the original bill does not show diversity, and the petition to remove does not specifically set forth facts showing it, then a simple motion to remand can be made. If, however, the pe- tition to remove sets forth facts showing diversity or that by shifting parties diversity would exist, or that there has been a collusion and fraudulent joinder of parties to prevent re- moval, then the motion to remand must take issue with the allegations of the petition for removal, which issues will be tried in the usual manner or as the court may direct. (See "Shifting Parties.") Harrington v. Great ISTorthern E. Co. 169 Fed. 714; Wetmore v. Eymer, 169 U. S. 115-119, 42 L. ed. 682-684, 18 Sup. Ct. Eep. 293; Boatmen's Bank v. Fritzlen, 66 C. C. A. 288, 135 Fed. 650. 832 EEMOVAL BY ALIENS. Bemoval hy Aliens. The question arises, Will a motion to remand a cause re- moved by an alien defendant be granted; or, in other words, can an alien remove a cause on the ground of his alienage ? I will briefy state the result of various cases in which the issue has been raised. In Texas v. Lewis, 12 Fed. 1, in a controversy between a State and an alien defendant the case was held removable. In 14 Fed. 65, the ease was again heard with a similar re- sult. These cases came under the second subdivision of Rev. Stat. 639, which was repealed by the act of 1875, and not re- instated in the act of 1887. In Cudahy v. McGeoch, 37 Fed. 1, it is held that an alien sued in the State of his residence by citizens of another State cannot remove the case to the Federal court under the act of 1887. The ground was that the suit was not a suit between citizens of different States ; and, secondly, that, though it was a suit between a citizen of a State and a foreign citizen, yet the foreign citizen was a resident of the State in which he was sued, and therefore did not come within the provisions of the removal act permitting only nonresident citizens to remove. King V. Cornell, 106 U. S. 398, 27 L. ed. 61, 1 Sup. Ct. Eep. 313; Walker v. O'Neil, 38 Fed. 375; Eddy v. Casas, 118 Fed. 363. By an examination of the act of 1888, section 2, affecting removals, two restrictions are attached to removals from a State to Federal courts: First. Removals are limited to cases in which the United States circuit court has original jurisdiction under section 1 of the act; and, second, the right to remove is limited to a nonresident defendant. Now, by the first section of the act, jurisdiction is given to the circuit courts when the controversy is between a citizen of a State and foreign State citizens or subjects. So, a citizen may sue an alien in the Federal court in the first instance, but if the alien should be sued in the State court his right to remove depends upon the second limitation as above stated, to wit, he must be a nonresident of the State in which he is sued to remove the case to the Federal court ; otherwise he cannot remove, and a motion to remand will be granted. Ibid. ; Cooley V. McArthur, 35 Fed. 372 ; Baumgarten v. Alliance REMOVAL BY ALIENS. 833 Assur. Co. 153 Eed. 301; Holton v. Helvetia-Swiss F. Ins. Co. 163 Fed. 660. But the question has arisen, Can a suit be removed from a State court in which a citizen of the State where the suit is brought has sued a nonresident citizen and alien jointly and both joining in the petition for removal? This identical ques- tion was raised in Eoberts v. Pacific & A. K. & Nav. Co. 58 C. C. A. 61, 121 Fed. 785, and it was held that the suit could be removed, but it will be noticed that the conclusion of the court was based on the ground that both the citizen and alien were nonresidents of the State in which the suit was brought, and if each had been sued separately could remove. But had the alien been a resident of the State, no removal could have been had unless the controversy was separable as to the non- resident citizen. This case repudiates the doctrine in Black's Dillon on Eemovals, sees. 68, 84, and seeks to avoid. Tracy V. Morel, 88 Fed. 803, and King v. Cornell, 106 U. S. 395, 27 L. ed. 60, 1 Sup. Ct. Kep. 313, referred to below, and minimizes the force of the word "wholly" in the act of 1888, sec. 2. However, an action by a nonresident against a citizen of the State, and alien is not removable. Hackett v. Kuhne, 157 Fed. 317, citing Martin v. Snyder, 148 U. S. 663, 37 L. ed. 602, 13 Sup. Ct. Eep. 706. Another question arises, to wit: Can a suit be removed by an alien sued jointly with a citizen of a State on the ground that the controversy with the alien is separable? In Insur- ance Co. of ]Sr. A. V. Delaware Mut. Ins. Co. 50 Fed. 257, the question is stated as a query, with the intimation by the court that the language of the act of 1887 entitled him to remove the cause if he be a nonresident alien. It says the test is actual interest in the separable controversy. In Creagh v. Equitable Life Assur. Soc. 88 Fed. 2, it is held that the statute limits removals in a separable controversy to cases where it is wholly between citizens of different States, and an alien who is a party to a separable controversy can not remove, and conversely a nonresident defendant cannot remove, a separable controversy with an alien plaintiff. Tracy v. Morel, 88 Fed. 803, citing King V. Cornell, 106 U. S. 395, 27 L. ed. 60, 1 Sup. Ct. Eep. 313; Merchants' Cotton Press & Storage Co. v. Insurance S. Eq.— 5.^ 834 EBMOVAT BY ALIENS. Co. of K A. 151 U. S. 368, 38 L. ed. 195, 4 Inters. Com. Kep. 499, 14 Sup. Ct. Eep. 367; Woodrum v. Clay, 33 Fed. 899; See Iowa Lillooet Gold Min. Co. v. Bliss, 144 Fed. 447. So the rules may be stated: First. That where an alien is sued alone in a State in which he does not reside, he may remove the cause to the Fed- eral court as a "nonresident" defendant. Second. That when an alien is sued jointly with a resident defendant in a State court, he cannot remove on the ground of a separate controversy, because the statute only permits a re- moval on the ground that the separable controversy must be wholly between citizens of different States. Third. That in view of this act a separaile controversy be- tween an alien plaintiff and a nonresident defendant cannot be removed by the nonresident defendant. Fourth. In view of the decision in Roberts v. Pacific & A. E. Co. 58 C. C. A. 61, 121 Fed. 785, if an alien is joined with a nonresident defendant, either of whom could remove if sued separately, then both may join in a removal to the Federal court. If, however, the alien joined with the nonresident de- fendant was a resident of the State in which he is sued, the case could not be removed. Fifth. Where alien sues nonresident the latter may re- move. Iowa Lillooet Gold Min. Co. v. Bliss, 144 Fed. 447; Barlow v. Chicago & K W. E. Co. 164 Fed. 765 ; S. C. 172 Fed. 514-516; Bagenas v. Southern P. E. Co. 180 Fed. 888. Suit brought by an alien against an officer of the United States being a nonresident of that State in which suit is brought may be removed into the district court in the district in which the defendant was served. New Code, sec. 34. Removal hy Corporations. Corporations are citizens of the State granting their charters, which determines citizenship in removals. Butler Bros. Shoe Co. V. United States Eubber Co. 84 C. C. A. 167, 156 Fed. 1 ; Lee V. Atlantic Coast Line E. Co. 150 Fed. 776. See Patch V. Wabash E. Co. 207 U. S. 277, 52 L. ed. 204, 28 Sup. Ct. Eep. 80, 12 A. & E. Ann. Cas. 518; Wasley v. Chicago, E. I. & P. E. Co. 147 Fed. 608. DIVBESITT OP CITIZENSHIP AS BASIS FOE EEMOVAL. 835 Who Can Remove the Case in Diversity of Citizenship. When jurisdiction is based on diversity of citizenship, then the nonresident defendant may remove, or when more than one defendant, then all nonresident defendants concurring may re- move (chap. 2 sec. 2, act 1SS8; State Trust Co. v. Kansas City P. & G. R. Co. 110 Fed. 10 ; Houston v. Filer & S. Co. 43 C. C. A. 457, 104 Fed. 162, and cases cited; Himtington v. Fin- ney, 126 Fed. 237 ; Blackburn v. Blackburn, 142 Fed. 901 ; German Sav. & L. Soc. v. Dormitzer, 53 C. C. A. 639, 116 Fed. 471 ; Chicago, E. I. & P. R. Co. v. Martin, 178 U. S. 248, 44 L. ed. 1056, 20 Sup. Ct. Eep. 854; Gableman v. Peoria, D. & E. E. Co. 179 U. S. 337, 45 L. ed. 221, 21 Sup. Ct. Rep. 171; Scott V. Choctaw, O. & G. E. Co. 112 Fed. 182; Parkin- son V. Barr, 105 Fed. 83, 84; Thompson v. Chicago, St. P. & K. C. R. Co. 60 Fed. 773 ; See Madisonville Traction Co. v. St. Bernard Min. Co. 130 Fed. 789, defining "nonresident" as used in the statute), and by the word "concurring" is meant that they must join in the petition for removal (Ibid. ; Tarnell V. Felton, 104 Fed. 161, S. C. 102 Fed. 369), and the peti- tion must show all the defendants are nonresidents and concur in the application (Parkinson v. Barr, 105 Fed. 83, 84; Bates V. Carpentier, 98 Fed. 452), unless cause separable. It is held, however, in First ISTat. Bank v. Bridgeport Trust Co. 117 Fed. 969, that the failure of the husband to join where the subject-matter of the litigation was the wife's interest in property was immaterial, and where one is only a nominal de- fendant against whom no relief is prayed his failure to join in the application will not affect the removal. Henderson v. Cabell, 43 Fed. 257. See "Nominal Party." There can be no removal on the ground of diversity of citi- zenship when the State is a party (Postal Teleg. Cable Co. v. United States [Postal Teleg. Cable Co. v. Alabama] 155 U. S. 482, 39 L. ed. 231, 15 Sup. Ct. Rep. 192; Indiana use of Delaware County v. Alleghany Oil Co. 85 Fed. 870; Pla- quemines Tropical Fruit Co. v. Henderson, 170 U. S. 520, 42 L. ed. 1130, 18 Sup. Ct. Rep. 685; ]\rissouri, K & T. R. Co. V. Missouri R. & Warehouse Comrs. [Missouri, K. & T. R. Co. V. Hickman] 183 U. S. 58, 46 L. ed. 80, 22 Sup. Ct. Rep. 18) ; nor when a nonresident is suing a nonresident in State 836 DIVERSITY OF CITIZENSHIP AS BASIS FOE EEMOVAL. court (Ex parte "Wisner, 203 TJ. S. 449, 51 L. ed. 264, 27 Sup. Ct. Eep. 150), unless the plaintiff assents (Moyer v. Chicago, M. & St. P. E. Co. 168 Fed. 105) ; hut if removed, the ohjec- tion is V7aived (Kreigh v. Westinghouse, C. K. & Co. 214 U. S. 249, 53 L. ed. 984, 29 Sup. Ct. Eep. 619; Ee Moore, 209 U. S. 490, 52 L. ed. 904, 28 Sup. Ct. Eep. 585, 14 A. & E. Ann. Cas. 1164; Western Loan & Sav. Co. v. Butte & B. Consol. Min. Co. 210 U. S. 368, 52 L. ed. 1101, 28 Sup. Ct. Eep. 720). See chapter 128. Joinder of Defendants Not Served. When the cause of action in which a defendant not served is joint, the nonresident served cannot remove as if a separable controversy (Patchin v. Hunter, 38 Fed. 51 ; Ames v. Chicago, S. P. & C. E. Co. 39 Fed. 881. See Putnam v. Ingraham, 114 U. S. 59, 29 L. ed. 66, 5 Sup. Ct. Eep. 746 ; Wilson v. Oswego Twp. 151 U. S. 66, 38 L. ed. 75, 14 Sup. Ct. Eep. 259 ; Sinclair v. Pierce, 50 Fed. 852 ; Carlisle v. Sunset Teleph. & Teleg. Co. 116 Fed. 896), unless there is an allegation of ' fraudulent joinder and no issue joined, says the court in Dishon V. Cincinnati, JST. D. & T. P. E. Co. 133 Fed. 471; Union Terminal E. Co. v. Chicago, B. & Q. E. Co. 119 Fed. 209. See "Effect of Eemoval on Service in State Court." In Tremper v. Schwabacher, 84 Fed. 415, the case rested upon the fact that the nature of the joint interest was one of copartnership, and therefore held that the other partners not being served would not prevent a removal by the nonresident partner served. Diday v. New York, P. & O. E. Co. 107 Fed. 569. If, however, it is removed and tried without objection, a severance will be presumed. Guarantee Co. v. Mechanics Sav. Bank & T. Co. 26 C. C. A. 146, 47 U. S. App. 91, 80 Fed. 766. If one joint defendant loses the right to remove, it cannot be exercised by the others in the absence of a separable con- troversy. Calderhead v. Downing, 103 Fed. 27; Fletcher v. Hamlet, 116 U. S. 410, 29 L. ed. 679, 6 Sup. Ct. Eep. 426; Brooks V. Clark, 119 U. S. 513, 30 L. ed. 485, 7 Sup. Ct. Eep. 301 ; Abel v. Book, 120 Fed. 47 ; Eogers v. Van ISTortwick, 45 Fed. 514. DIVERSITY OF CITIZENSHIP AS BASIS FOE EBMOVAL. 837 Misjoinder. Where there is a misjoinder of parties their presence may be disregarded in removal. Iowa Lillooet Gold Min. Co. v. Bliss, 144 Fed. 447; Politz v. Wabash K. Co. 153 Fed. 942; S. C. 100 C. C. A. 1, 176 Fed. 333 ; Helms v. Northern P. E. Co. 120 Fed. 395. Nominal Parties. itTominal parties, or parties against whom no relief is prayed, need not join in applying for removal, or it may be stated their failure to join in the petition for removal would not affect it (Eeeves v. Corning, 51 Fed. 778; Johnston E. Frog & Switch Co. V. Buda Foundry & Mfg. Co. 148 Fed. 883; Cella v. Brown, 75 C. C. A. 608, 144 Fed. 742; Eeese v. Zinn, 103 Fed. 97; Delaware, L. & W. E. Co. v. Frank, 110 Fed. 689; First Nat. Bank v. Bridgeport Trust Co. 117 Fed. 969; Loop v. Winters, 115 Fed. 362; Eogers v. Penobscot Min. Co. 83 C. C. A. 380, 154 Fed. 606, 607; Parkinson v. Barr, 105 Fed. 81 ; Higgins v. Baltimore & O. E. Co. 99 Fed. 640 ; Geer r. Mathieson Alkali Works, 190 U. S. 434, 47 L. ed. 1125, 23 Sup. Ct. Eep. 807 ; Carver v. Jarvis-Conklin Mortg. Trust Co. 73 Fed. 9 ; Missouri use of Public Schools v. Alt, 73 Fed. 302), as when defendant has only an option (Garrard v. Sil- ver Peak Mines, 76 Fed. 1). When Controversy Separable. While the rule, as given, that all the nonresident defendants must join the removal, or the court will remand (Bates v. Car- pentier, 98 Fed. 453; Moore v. Los Angeles Iron & Steel Co. 89 Fed. 78; Colburn v. Hill, 41 C. C. A. 467, 101 Fed. 500; Knight V. Lutcher & M. Lumber Co. 69 C. C. A. 248, 136 Fed. 405 — separate defenses, as we have heretofore seen, do not create a separable controversy — Graves v. Corbin, 132 U. S. 588, 33 L. ed. 468, 10 Sup. Ct. Eep. 196; Fidelity Ins. Trust & S. D. Co. v. Huntington, 117 U. S. 281, 29 L. ed. 899, 6 Sup. Ct. Eep. 733 ; Thurber v. Miller, 14 C. C. A. 432, 32 U. S. App. 209, 67 Fed. 375 ; Torrence v. Shedd, 144 U. S. 838 WHEEE CONTEOVBEST SEPABABLE AS GEOUITD FOB EEMOVAL. 530, 36 L. ed. 531, 12 Sup. Ct. Eep. 726), yet the rule is not applicable if there be a separable controversy between plaintiffs and one or more of the defendants, as heretofore explained; the nonresident defendant having the separate controversy may remove the case. Parkinson v. Barr, 105 Fed. 83, 84, and au- thorities cited; see clause 3, sec. 2, act 1888; Bates v. Carpen- tier, 98 Fed. 452; IsTev?- England Waterv^orks Co. v. Farmers' Loan & T. Co. 69 C, C. A. 297, 136 Fed. 525 ; Chicago, E. & P. E. Co. v. Martin, 178 U. S. 247, 44 L. ed. 1056, 20 Sup. Ct. Eep. 854; Laden v. Meek, 65 C. C. A. 361, 130 Fed. 877; American Bridge Co. v. Hunt, 64 G. C. A. 548, 130 Fed. 303; Harding v. Standard Oil Co. 170 Fed. 651 ; Batey v. Nashville, C. & St. L. E. Co. 95 Fed. 368. In equity the question of the existence of a separable con- troversy must be determined from the allegations of the bill, independent of the petition for removal. Elkins v. Howell, 140 Fed. 157, 159 and cases cited. Graves v. Corbin, 132 U. S. 585, 33 L. ed. 467, 10 Sup. Ct. Eep. 196. So also in tort. See Cleveland v. Cleveland, C. C. & St. L. E. Co. 77 C. C. A. 467, 147 Fed. 171; Blunt v. Southern E. Co. 155 Fed. 500; Louisville & IST. E. Co. v. Wangelin, 132 U. S. 601, 33 L. ed. 475, 10 Sup. Ct. Eep. 203 ; Thresher v. Western IT. Teleg. Co. 148 Fed. 651 ; Fogarty v. Southern P. Co. 123 Fed. 973, 974. To avoid repetition I must refer you to the discussion of a separable controversy and illustrative cases, as they apply to removal of causes as stated in the act of 1888, sec. 2. See for illustration Miller v. Clifford, 5 L.E.A.(jSr.S.) 49, 67 C. C. A. 52, 133 Fed. 881 ; Oroville & IST. E. Co. v. Leggett, 162 Fed. 572 ; Manufacturers' Commercial Co. v. Brown Alaska Co. 148 -Fed. 308; Elkins v. Howell, 140 Fed. 157; Heffel- finger v. Choctaw, A. & G. E. Co. 140 Fed. 75; Blackburn V. Blackburn, 142 Fed. 901 ; Lathrop, S. & H. Co. v. Interior Constr. & Improv. Co. 143 Fed. 687; Helena Power Trans- mission Co. V. Spratt, 146 Fed. 311 ; Thomas v. Great North- ern E. Co. 77 C. C. A. 255, 147 Fed. 83 ; Peninsular Iron Co. V. Stone, 121 U. S. 632, 633, 30 L. ed. 1020, 1021, 7 Sup. Ct. Eep. 1010; Geer v. Mathieson Alkali Works, 190 U. S. 428, 47 L. ed. 1122, 23 Sup. Ct. Eep. 807 ; Mac Ginniss v. Bos- ton & M. Consol. Copper & S. Min. Co. 55 C. C. A. 648 119 REMOVAL IN CASE OP TOET FEASORS. 839 Fed. 96; Hanover !N"at. Bank v. Credits Commutation Co. 118 Fed. 110; State Trust Co. v. Kansas City, P. & G. K. Co. 110 Fed. 10 ; German Sav. & L. See. v. Dormitzer, 53 C. C. A. 639, 116 Fed. 471; Miller v. LeMars Nat. Bank, 116 Fed. 551. Where the case is removed by one defendant on the ground of a separable controversy, you may dismiss as to him in order to remand the case. Youtsey v. Hoffman, 108 Fed. 699 ; Mc- Cabe V. Southern R. Co. 107 Fed. 213 ; Texas Transp. Co. v. Seeligson, 122 U. S. 519, 30 L. ed. 1150, 7 Sup. Ct. Rep. 1261 ; Torrence v. Shedd, 144 U. S. 533, 36 L. ed. 532, 12 Sup. Ct. Rep. 726 ; Texas Cotton Products Co. v. Starnes, 128 Fed. 183. An alien, as we have seen, cannot remove on the ground of a separable controversy. (See "Removal by Aliens.") Tort Feasors. Where tort feasors are joined, one cannot remove on the ground of a separable controversy. Chesapeake & 0. R. Co. V. Dixon, 179 U. S. 131, 45 L. ed. 121, 21 Sup. Ct. Rep. 67 ; Blunt v. Southern R. Co. 155 Fed. 499 ; Shaffer v. Union Brick Co. 128 Fed. 101; Gustafson v. Chicago, R. I. & P. R. Co. 128 Fed. 85 ; Dougherty v. Atchison, T. & S. F. R. Co. 126 Fed. 240; Keller v. Kansas City, St. L. & C. R. Co. 135 Fed. 202 ; Heffelfinger v. Choctaw, 0. & G. R. Co. 140 Fed. 75 ; Iowa Lillooet Gold Min. Co, v. Bliss, 144 Fed. 452 ; Knuth V. Butte Electric R. Co. 148 Fed. 73 ; Alabama, G. S. R. Co. v. Thompson, 200 U. S. 206, 50 L. ed. 441, 26 Sup. Ct. Rep. 161, 4 A. & E. Ann. Cas. 1147; Thresher v. Western TJ. Teleg. Co. 148 Fed. 651 ; American Bridge Co. v. Hunt, 64 C. C. A. 548, 130 Fed. 302; International & G. IST. R. Co. v. Hoyle, 79 C. C. A. 128, 149 Fed. 181 ; Davenport v. Southern R. Co. 68 C. C. A. 444, 135 Fed. 960 ; Person v. Illinois C. R. Co. 118 Fed. 342 ; Williard v. Spartanburg, U. & C. R. Co. 124 Fed. 797 ; Weaver v. Northern P. R. Co. 125 Fed. 155 ; Marrs V. Felton, 102 Fed. 775; Ward v. Franklin, 110 Fed. 794; Rupp V. Wheeling & L. E. R. Co. 58 C. C. A. 161, 121 Fed. 825 ; Willard v. Chicago, B. & Q. R. Co. 91 C. C. A. 215, 165 Fed. 181. The separable controversy miTst be determined by the face of the pleading. Thresher v. Western U. Teleg. Co. 148 Fed. 651 ; Fogarty v. Southern P. Co. 123 Fed. 973, 840 EEMOVAL IN CASE OF TOET FEASORS. 974; Eiser v. Southern E. Co. 116 Fed. 215. But where a corporation sues for damages alleged to have been sustained by the corporation by reason of the officers' misconduct, and no conspiracy is alleged, the action is severable. Sessions V. Southern P. Co. 134 Fed. 313 ; Davenport v. Southern E. Co. 68 C. C. A. 444, 135 Fed. 962, and cases cited; Youtsey v. Hoffman, 108 Fed. 693. Again, where two corporations are sued for a personal in- jury from falling down an elevator, one being sued as owner of the building and the other as having negligently built the elevator, it was held the cause was separable. Coker v. Monag- han Mills, 110 Fed. 803. So it has been held that a joint action cannot be maintained against a railroad company and an employer to recover for an injury resulting solely from the negligence of the employee; the causes of action, being based on separate grounds, are dis- tinct, and present a separable controversy. Helms v. Northern P. E. Co. 120 Fed. 389 ; Sessions v. Southern P. Co. 134 Fed. 313; Chicago, E. I. & P. E. Co. v. Stepp, 151 Fed. 909; Atlantic Coast Line E. Co. v. Bailey, 151 Fed. 891 ; Gustaf- son V. Chicago, E. I. & P. E. Co. 128 Fed. 87, 88 ; See Knuth V. Butte Electric E. Co. 148 Fed. 73; See Morris v. Louis- ville & N. E. Co. 175 Fed. 491. By referring to Warax v. Cincinnati, N. 0. & T. P. E. Co. 72 Fed. 637, 643, it will be seen that up to the date of its delivery the authorities were conflicting, and it seems that the cases have been differentiated and a rule of construction ap- plied to determine when the controversy in an action against the employer and employee for a personal injury can be made separable. The rule is that in all cases where the master is sought to be made liable for the negligent or wrongful act of his servant solely on the ground of his relationship as master, under the doctrine of respondeat superior, and not by reason of any personal share in the negligent or wrongful act by his presence, or express direction, he is liable severally only, and not jointly with his servant. Warax v. Cincinnati, E". 0. & T. P. E. Co. 72 Fed. 641, 642; Sessions v. Southern P. Co. 134 Fed. 315; Gustafson v. Chicago, E. I. & P. E. Co. 128 Fed. 93-96- Shaffer v. Union Brick Co. 128 Fed. 102; See Dishon v! 841 Cmcinnati, K O. & T. P. K. Co. 66 C. 0. A. 345, 133 Fed. 474; and Charman v. Lake Erie & W. K. Co. 105 Fed. 454; Adderson v. Southern K. Co. 177 Fed. 571. There must be some community in the wrong doing among the parties united as codefendants, and a co-operation in fact, and not a mere joint responsibility and based on entirely different grounds and presenting two causes of action in the same complaint. Helms v. Northern P. E. Co. 120 Fed. 394 ; Shaffer v. Union Brick Co. 128 Fed. 101. See Knuth v. Butte Electric E. Co. 148 Fed. 73; Davenport v. Southern E. Co. 68 C. C. A. 444, 135 Fed. 967. As to the rule when the law of the State permits it, see Charman v. Lake Erie & W. E. Co. 105 Fed. 449, 454; Helms v. Northern P. E. Co. 120 Fed. 397, 398. Again, it has been held that the employee is not liable to third persons for a nonperformance of duty, but only for acts of positive wrong and negligence; thus, an employee charged with the inspection of engines cannot be joined with the com- pany as defendant, so as to prevent a removal of the cause to the Federal court. Ibid. ; Kelly v. Chicago & A. E. Co. 122 Fed. 286. See Helms v. Northern P. E. Co. 120 Fed. 396, 397. See Eiser v. Southern E. Co. 116 Fed. 216, 217, citing Chesapeake & O. E. Co. v. Dixon, 179 U. S. 131, 45 L. ed. 121, 21 Sup. Ct. Eep. 67 (See "Joint and Several Liability"). The Whole Case is Removed. When a case is removed on the ground of a separable con- troversy, the whole case under the act of 1875 is taken up. Barney v. Latham, 103 TJ. S. 212-216, 26 L. ed. 517-518; Hoge V. Canton Ins. Office, 103 Fed. 513; Hyde v. Euble, 104 U. S. 407, 26 L. ed. 823 ; Atlantic & V. Fertilizing Co. V. Carter, 88 Fed. 708 ; Brooks v. Clark, 119 U. S. 502, 30 L. ed. 482, 7 Sup. Ct. Eep. 301; See Youtsey v. Hoffman, 108 Fed. 699. The case would be remanded if only the separable controversy was taken up. U. S. Eev. Stat, § 639, act of 1866 was repealed by the act of 1875 ; Hyde v. Euble, 104 TJ. S. 407, 26 L. ed. 823. See Deepwater E. Co. v. Western Pocahontas Coal & Lumber Co. 152 Fed. 830, 831, where a distinction is drawn between a "separate controversy" 842 DIVEBSITT OF CITIZENSHIP. and the joinder of wHolly distinct causes of action; in the latter case the rule does not apply. Substance of Petition to Remove. The petition to remove on the ground of separable controver- sy must show that there is in said suit a controversy wholly between citizens of different States, and which can be fully determined as between them. It should show the citizenship clearly, and not by inference, of the parties between whom the separable controversy exists. It should be determined by the condition of the record in the State court at the time of filing the petition for removal. Thomas v. Great IsTorthern E. Co. 77 C. C. A. 255, 147 Fed. 83 ; Davenport v. Southern R. Co. 68 C. C. A. 444, 135 Fed. 965, 966; Carp v. Queen Ins. Co. 168 Fed. 782; Alexandria Nat. Bank v. Willis C. Eates Co. 87 C. C. A. 643, 160 Fed. 839 ; Jones v. Adams Exp. Co. 129 Fed. 618 ; Little York Gold-Washing & Water Co. V. Eeyes, 96 U. S. 199, 24 L. ed. 656; Thompson v. Stalmann, 131 Fed. 811. See Elkins v. Howell, 140 Fed. 157, holding that in a suit in equity the separable controversy must be determined from the bill alone. Atlanta, K. & IST. E. Co. V. Southern E. Co. 82 C. C. A. 256, 153 Fed. 122, 11 A. & E. Ann. Cas. 766. It should show the nature of the controversy, and that the relief asked as between the parties to the separable controversy would not affect the others ; in a word, that in the issue only petitioner and plaintiff are interested, and then should follow a prayer for removal. Smedley v. Smedley, 110 Fed. 257. It must speak in exact language of the removal act (Earth V. Coler, 9 C. C. A. 81, 19 U. S. App. 646, 60 Fed. 469), in using the words "citizen," "resident" and "inhabitant." Overman Wheel Co. v. Eope Mfg. Co. 46 Fed. 578 ; Freeman V. Eutler, 39 Fed. 1. If, however, the separable controversy is settled by stipu- lations, the cause should be remanded. Eane v. Keefer, 66 Fed. 612 ; Torrence v. Shedd, 144 U. S. 533, 36 L. ed. 532 ; 12 Sup. Ct. Eep. 726. Need not be verified. Harley v. Home Ins. Co. 125 Fed. 792. See for form, 110 Fed. 257. CHAPTER CXXVL EEMOVAi ON GEOTJND OF FEDERAL QUESTION. When a Federal question is set up, upon which the removal is based, the mere allegation in the petition that a Federal question exists is not sufficient. The plaintiff's claim as set forth by himself must also show the Federal question, for if the court cannot find the Federal question in the statements of the claim made, it must remand without reference to the allegation that one exists. Nor can any statement in the petit-ion for removal or in any subsequent pleading belp the case, 25 Stat, at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 509; People's United States Bank v. Goodwin, 160 Fed. 727; Oregon v. Three Sisters Irrig. Co. 158 Fed. 346; Hall V. Chicago, E. I. & P. R. Co. 149 Fed. 564; Cella v. Brown, 75 C. C. A. 608, 144 Fed. 763 ; Arkansas v. Choctaw & M. R. Co. 134 Fed. 107; Dewey Min. Co. v. Miller, 96 Fed. 1; California Oil & Gas Co. v. Miller, 96 Fed. 12; IS^ew Castle V. Postal Teleg. Cable Co. 152 Fed. 572, 573 ; Broadway Ins. Co. V. Chicago, G. W. R. Co. 101 Fed. 508 ; Mayo v. Dockery, 108 Fed. 897 ; South Carolina v. Virginia-Carolina Chemical Co. 117 Fed. 728; Wichita v. Missouri & K. Teleg. Co. 122 Fed. 100 ; Minnesota v. Northern Securities Co. 194 U. S. 64, 48 L. ed. 878, 24 Sup. Ct. Rep. 598 ; Postal Teleg. Cable Co. V. United States (Postal Teleg. Cable Co. v. Alabama) 155 U. S. 482-487, 39 L. ed. 231-233, 15 Sup. Ct. Rep. 192; Pratt V. Paris Gaslight & Coke Co. 168 U. S. 255, 42 L. ed. 458, 18 Sup. Ct. Rep. 62; Caples v. Texas & P. R. Co. 67 Fed. 9. (See "How Federal Question Must Appear," chapter 28.) And it seems the State court may refuse to remove the case on this ground. Galveston, H. & S. A. R. Co. v. Texas, 170 U. S. 235, 42 L. ed. 1020, 18 Sup. Ct. Rep. 603. However, it seems that there is a class of cases when the Federal question may be set up in the petition to remove the case, as when the petition fails to assert the fact that would give the Federal court jurisdiction, in order to evade the juris- 843 84-i BEMOVAX ON GEOUHT) OP FEDEBAX QUESTION. diction of these courts. Texas & P. R. Co. v. Cody, 166 U. S. 610, 41 L. ed. 1134, 17 Sup. Ct. Eep. 703 ; Texas & P. E. Co. V. Davis, 93 Tex. 378, 54 S. W. 383, 55 S. W. 562; Scott V. Choctaw, O. & G. R. Co. 112 Fed. 181. See Winters v. Drake, 102 Fed. 545, as to proper application of the rule permitting removal though Federal question does not appear in the bill. When the corporation is acting under a Federal charter and the petition fails to allege it. Ibid. ; Martin v. St. Louis Southwestern R. Co. 134 Fed. 135, and cases cited. Scott v. Choctaw, 0. & G. R. Co. 112 Fed. 180 ; Heffelfinger v. Choc- taw, 0. & G. R. Co. 140 Fed. 75 ; Scott v. Choctaw, 0. & G. R. Co. 112 Fed. 180; Heffelfinger v. Choctaw, O. & G. R. Co. 140 Fed. 75 (see "Corporations Chartered by Congress" chapter, 25). If there are two corporation defendants, one chartered by Congress and the other not, both must join in the application for removal. Ibid. Nor will a mere attack on a State statute make a case under the removal act. Ralya Market Co. v. Armour & Co. 102 Fed. 530 ; see "Federal Question" for further discussion. Where the Supreme Court has decided the particular ques- tion of law upon which the suit is based, it ceases to be a Federal question for removal purposes. Myrtle v. Nevada, C. & 0. R. Co. 137 Fed. 195, 196, and cases cited. Who May Remove on Ground of Federal Question. The defendant or all of the defendants concurring must make the application (sec. 1, clause 1, act of 1888 ; Chicago, R. I. & P. R. Co. V. Martin, 178 U. S. 245, 44 L. ed. 1055, 20 Sup. Ct. Rep. 854; explains and modifies Mitchell v. Smale, 140 U. S. 406, 55 L. ed. 442, 11 Sup. Ct. Rep. 819, 840 ; Martin v. St Louis, Southwestern R. Co. 134 Fed. 135, 136; Yarnell v. Felton, 104 Fed. 161, S. C. 102 Fed. 369; Scott V. Choctaw, 0. & G. R. Co. 112 Fed. 180-182 ; Heffel- finger V. Choctaw, 0. & G. R. Co. 140 Fed. 75), unless, as before stated, the controversy with the moving defendant is separable, then the application need not be joint (Yarnell v. Felton, 102 Fed. 370 ; Parkinson v. Barr, 105 Fed. 83 ; Gatea Iron Works v. James E. Pepper & Co. 98 Fed. 449). CHAPTEE CXXVTI. AMOUNT AS GEOUND FOE MOTION TO EEMAND. We have seen that one of the fundamental grounds of juris- diction in the Federal courts is the amount or value of the sub- ject-matter in controversy, and this must appear in the petition of plaintiffs, or in the application for removal (Sturgeon River Boom Co. V. W. H. Sawyer Lumber Co. 89 Fed. 113 ; Order of R E. Telegraphers v. Louisville & K E. Co. 148 Fed. 437 ; South Dakota C. E. Co. v. Chicago, M. & St. P. E. Co. 73 C. C. A. 176, 141 Fed. 578-582; King v. Southern E. Co. 119 Fed. 1016 ; Southern Cash Eegister Co. v. ISTational Cash Eegister Co. 143 Fed. 659 ; Southern Cash Eegister Co. v. Montgomery, 143 Fed. 700 ; Waha-Lewiston Land & Water Co. V. Lewiston-Sweetwater Irrig. Co. 158 Fed. 137. See Porter v. Is^orthem P. E. Co. 161 Fed. 773, 774, and Davis v. Wells, 134 Fed. 139, as to value in action of ejectment. Johnson v. Wells, F. & Co. 91 Fed. 1; Daugherty v. Sharp, 171 Fed. 466; 'New Castle v. Western U. Teleg. Co. 152 Fed. 571; Simmons V. Mutual Eeserve Fund Life Asso. 114 Fed. 785; Lord v. DeWitt, 116 Fed. 713; Baltimore v. Postal Teleg. Cable Co. 62 Fed. 500 ; Western U. Teleg. Co. v. White, 102 Fed. 705 ; see "Amount to Give Jurisdiction"), and as alleged is suf- ficient if not colorable (Ibid.; Hayward v. Nordberg Mfg. Co. 29 C. C. A. 438, 54 IT. S. App. 639, 85 Fed. 4; Wakeman V. Throckmorton, 124 Fed. 1010; See Smith v. Western U. Teleg. Co. 79 Fed. 132). The amount or value in controversy must exceed two thou- sand dollars, exclusive of interest and costs (act 1888, sec. 1), or the case cannot be removed to the Federal court (Johnson v. Wells, F. & Co. 91 Fed. 1 ; Tod v. Cleveland & M. Valley E. Co. 12 C. C. A. 521, 22 U. S. App. 707, 65 Fed. 145; Sim- mons V. Mutual Eeserve Fund Life Asso. 114 Fed. 785 ; Swann v. Mutual Eeserve Fund Life Asso. 116 Fed. 232; E. A. 845 846 AMOUKT AS GROUND FOK MOTION TO EEMAND. Holmes & Co. v. United States F. Ins. Co. 142 Fed. 863; Memphis V. Postal Teleg. Cable Co. 76 C. C. A. 292, 145 Fed. 602 ; Amelia Mill Co. v. Tennessee Coal, Iron & R Co. 123 Fed. 811; Chambers v. McDougal, 42 Fed. 694; Stadle- mann v. White Line Towing Co. 92 Fed. 209 ; Langdon v. Hill- side Coal & I. Co. 41 Fed. 609 ; Detroit v. Detroit City E. Co. 54 Fed. 5), whether jurisdiction is based on diversity of citi- zenship or a Federal question, and the amount must be de- termined by the Federal court (Postal Teleg. Cable Co. v. Southern E. Co. 88 Fed. 803), and the burden is on the de- fendant. New Castle v. Western U. Teleg. Co. 152 Fed. 569. The amount, at the time of filing the application to remove, must exceed two thousand dollars, as above stated (Eiggs v. Clark, 18 C. C. A. 242, 37 U. S. App. 626, 71 Fed. 563; Maine v. Gilman, 11 Fed. 214; Carrick v. Landman, 20 Fed. 209 ; Sturgeon Eiver Boom Co. v. W. H. Sawyer Lumber Co. 89 Fed. 113; Western U. Teleg. Co. v. Campbell, 41 Tex. Civ. App. 204, 91 S. W. 312) ; but the question arises how far the plaintiff in the State court can diminish the amount to prevent removal. Whatever may have been the original demand, the plaintiff can diminish the amount before the bond perfecting the appli- cation for removal has been filed, and his motive does not affect his right. Maine v. Gilman, 11 Fed. 215, 216; Coffin V. Philadelphia, W. & B. E. Co. 118 Fed. 688. However in Peterson v. Chicago, M. & St. P. E. Co. 108 Fed. 561, it was held that where the original petition in the State court was based on a claim of ten thousand dollars, but was amended, re- ducing the amount to nineteen hundred and ninety-nine dollars, and the amendment was not served as required by the State law, before the application for removal was filed, that this re- ducing the amount by amendment would not prevent the re- moval. The decision, however, is extremely technical, and not supported by reason in view of the facts of the case. After the petition and bond for removal has been filed the jurisdiction of the Federal court attaches, and plaintiff cannot diminish his demand to defeat the Federal jurisdiction. John- son V. Computing Scale Co. 13D Fed. 339 ; Hay ward v. Nord- berg Mfg. Co-. 29 C. C. A. 438, 54 U. S. App. 639, 85 Fed. 4^9; Donovan v. Dixieland Amusement Co. 152 Fed. 661; AMOUNT AS GROUND FOE MOTION TO EEMAND. 847 CofSn V. Philadelphia, W. & B. K. Co. 118 Fed. 688; Waite V. Phoenix Ins. Co. 62 Fed. 769. The claim made at the time the removal takes place determines the jurisdiction for re- moval, but see exception to the rule, Hughes v. Pepper Tobacco Warehouse Co. 126 Fed. 687, where mistake in stating amount was shown. The fact that the amount is reduced below two thousand dollars by an attack on items would be no ground to remand, unless good faith attacked. Eoessler-Hasslacher Chem- ical Co. V. Doyle, 73 C. C. A. 174, 142 Fed. 118; Levin- ski V. Middlesex Bkg. Co. 34 C. C. A. 452, 92 Fed. 449. The party removing cannot attack amount to show want of juris- diction. Smith V. Western U. Teleg. Co. 79 Fed. 132 ; Eustis V. Henrietta, 20 C. C. A. 537, 41 U. S. App. 182, 74 Fed. 577. Effect of Filing C ounterclaim. The jurisdiction depends on the amount in controversy, as stated in the original petition in the State court, and not the counterclaim of the defendant, is said to be the rule in Illinois C. K. Co. V. Waller, 164 Fed. 359 ; Falls Wire Mfg. Co. v. Broderick, 2 McCrary, 489, 6 Fed. 654; Indian Mountain Jellieo Coal Co. v. AsheviUe Ice & Coal Co. 135 Fed. 837; La Montague v. T. W. Harvey Lumber Co. 44 Fed. 645 ; Ben- nett V. Devine, 45 Fed. 705; McKown v. Kansas & T. Coal Co. 105 Fed. 657; Waco Hardware Co. v. Michigan Stove Co. 33 C. C. A. 511, 63 U. S. App. 396, 91 Fed. 289. But it was held contra in Clarkson v. Manson, 18 Blatchf. 443, 4 Fed. 257. Price v. Ellis, 129 Fed. 482, reviewing the cases and concluding that the plaintiff may remove at and before the time he is called to plead to the counterclaim. The cases are conflicting and irreconcilable, but the better rule is that the original petition fixes the amount upon which jurisdiction to remove depends. Nor can the nonresident plaintiff, being de- fendant in the counterclaim, remove, McKown v. Kansas, & T. Coal Co. 105 Fed. 658. However, the query is presented in this case, whether the right of the nonresident plaintiff to remove would not exist, if under the State law he was required to plead to a counterclaim. CHAPTEE CXXVIII, MTTST BE A SUIT OF A CIVIL KATUEE. As to what is a suit of a civil nature, was said in Weston V. Charleston, 2 Pet. 449-464, 7 L. ed. 481-487, to apply to any proceeding in which one pursues in a court of justice a remedy which the law gives him to secure the right litigated. Ke Jarnecke Ditch, 69 Ped. 166. Waha-Lewiston Land & Water Co. v. Lewiston-Sweetwater Irrig. Co. 158 Fed. 140; Upshur County v. Eich, 135 U. S. 474, 34 L. ed. 199, 10 Sup. Ct. Eep. 651; Ee Stutsman County, 88 Fed. 337; Wahl v. Franz, 49 L.E.A. 62, 40 C. C. A. 638, 100 Fed. 682 ; Gruet- ter V. Cumberland Teleph. & Teleg. Co. 181 Fed. 249; Elk Garden Co. v. T. W. Thayer Co. 179 Fed. 556. Proceedings in garnishment is a removable suit. Baker v. Duwamish Mill Co. 149 Fed. 612. Suit for condemnation is a suit of a civil nature. Madisonville Traction Co. v. St. Bernard Min. Co. 130 Fed. 790, 791, and cases cited; Missis- sippi & E. Eiver Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206. So is a claim for alimony. Israel v. Israel, 130 Fed. 238, 239, and cases cited. Again, a suit to probate a will has been held not to be a suit of a civil nature within the meaning of the first section of the act of 1888, and therefore cannot be removed. (See "Probate Jurisdiction," chapter 43). Wahl v. Franz, 49 L.E.A. 62, 40 C. C. A. 638, 100 Fed. 683; Ee Cilley, 58 Fed. 977; Cope- land V. Pruning, 72 Fed. 5-8 ; Ee Aspinwall, 83 Fed. 851. So a suit or proceeding in a probate court to determine whether property is separate or community is not a suit of a civil nature within the removal act. Ee Foley, 80 Fed. 949. But not a suit to annul a will as a muniment of title. Saw- yer V. White, 58 C. C. A. 587, 122 Fed. 227, and cases cited. So a suit to enforce penalties for a violation of a "State stat- ute is not a suit of a civil nature. Indiana use of Delaware 848 MUST BE A SUIT OF A CIVIL NATURE. 849 County V. Alleghany Oil Co. 85 Fed. 870; Arkansas v. St. Louis & S. E. E. Co. 173 Fed. 574; South Carolina v. Vir- ginia Chemical Co. 117 Fed. 727, 728 ; Moloney v. American Tobacco Co. 72 Fed. 801. So a proceeding for an original writ of mandamus is not. Indiana ex rel. Muncie v. Lake Erie & W. K. Co. 85 Fed. 3 ; Mystic Milling Co. v. Chicago, M. & St. P. E. Co. 132 Fed. 289. So to test the title to an ofiBce in a corporation organized in a State. Place v. Illinois, 16 C. C. A. 300, 18 U. S. App. 724, 69 Fed. 481. So an appeal from hoard of commissioners assessing taxes. Waha-Lewiston Land & Water Co. v. Lewiston-Sweetwater Irrig. Co. 158 Fed. 140, 141; Upshur County v. Eich, 135 U. S. 470-477, 34 L. ed. 197-200, 10 Sup. Ct. Eep. 651 ; Ee Chicago, 64 Fed. 899. So a Federal Court cannot exercise the function of parens patrice for the determination of the right to custody, as, for instance, an insane person. Hoadly v. Chase, 126 Fed. 818. This authority resides in the States. Church of Jesus Christ of L. D. S. v. United States, 136 U. S. 3, 34 L. ed. 478, 10 Sup. Ct. Eep. 792; Fontain v. Eavenel, 17 How. 369- 384, 15 L. ed. 80-86; King v. McLean Asylum, 26 L.E.A. 784, 12 C. C. A. 145, 21 U. S. App. 481, 64 Fed. 351. ISTor where the suit deals with a fund in a State court. Daugherty V. Sharp, l7l Fed. 466. The Suit Must Be One That Could Be Originally Brought i?t, the Federal Court. By section 2 of the removal and jurisdictional act of 1888, it is provided that any suit arising under the Constitution and laws of the United States, of which the circuit courts of the United States are given original jurisdiction under section 1 of the act, can be removed by the defendant ; and all other suits of a civil nature, of which the circuit courts are given juris- diction by section 1 of the act, may be removed by the defend- ant or defendants if nonresidents. Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Eep. 150 ; Ee Winn, 213 U. S. 458-464, 53 L. ed. 873-875, 29 Sup. Ct. Eep. 515; citing Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 632, 47 L. ed. 626, 23 Sup. Ct. Eep. 434, and Ex parte Wisner, supra; Wahl v. Franz, 49 S. Eq.— 54. 850 MUST BE A SUIT JUSTICIABLE IN A FEDEEAL COUET. L.E.A. 62, 40 C. C. A. 638, 100 Fed. 681, 682, and cases cited; Kansas City & T. E. Co. v. Interstate Lumber Co. 37 Fed. 6, 7; Carp v. Queen Ins. Co. 168 Fed. 782; Hubbard v. Chi- cago, M. & St. P. E. Co. 176 Fed. 994; Southern P. Co. v. Burch, 82 C. C. A. 34, 152 Fed. 168 ; Goldberg, B. & Co. v. German Ins. Co. 152 Fed. 832 ; Yellow Aster Min. & Mill. Co. V. Crane Co. 80 C. C. A. 566, 150 Fed. 580 ; Blunt v. South- ern E. Co. 155 Fed. 499 ; Baxter, S. & S. Const. Co. v. Ham- mond Mfg. Co. 154 Fed. 992, 993; Kentucky v. Chicago, I. & L. E. Co. 123 Fed. 458; Minnesota v. ISTorthern Securities Co. 194 TJ. S. 03, 64, 48 L. ed. 877, 878, 24 Sup. Ct. Eep. 598; Foulk v. Gray, 120 Fed. 156; Eddy v. Casas, 118 Fed. 364. We thus see the right of removal is limited to such suits as could have been originally brought in the United States circuit courts under the first section of the jurisdictional act, which has already been discussed. While this was not the rule under the acts of 1789 and 1875, yet section 2 of the act of 1888, as above quoted, made a radical change in the right of removal by confining it to those suits that could be originally brought in the Federal court (Foulk v. Gray, 120 Fed. 161-163; Mexican ISTat. E. Co. v. Davidson, 157 U. S. 201, 39 L. ed. 672, 15 Sup. Ct. Eep. 563; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Eep. 654; Cochran V. Montgomery County, 199 U. S. 260, 50 L. ed. 182, 26 Sup. Ct. Eep. 58, 4 A. & E. Ann. Cas. 451; Madison ville Traction Co. v. St. Bernard Min. Co. 196 U. S. 240, 49 L. ed. 462, 25 Sup. Ct. Eep. 251; Blunt v. Southern E. Co. 155 Fed. 499; Ee Cilley, 58 Fed. 978, 979), and in which four things are necessary: First. It has to be a suit of a civil nature in law or equity. Second. It must involve a sum or value in controversy ex- ceeding two thousand dollars, exclusive of interest and costs. See "Amount as Ground for Eemanding." Third. It must arise between citizens of different States or under one of the conditions set forth in the first clause of that section, and not falling within any exception to the ju- risdiction as contained in that act. To illustrate: There is excepted out of the jurisdiction of the United States circuit court by the third clause of section MUST BE A SUIT JUSTICIABLE IN A FEDEHAL COURT. 851 1 of the act of 1888 any suit by an assignee of a chose in ac- tion, if such instrument be payable to bearer and not made by a corporation (and not a foreign bill of exchange) to recover the contents of such chose in action, imless such suit might be brought by the assignor in the Federal court. Therefore, if the assignor could not sue in the Federal court the case cannot be removed, though as between the assignee and defendant there be diversity of citizenship. Murphy v. Payette Alluvial Gold Co. 98 Fed. 321; Brooks v. Laurent, 39 C. C. A. 201, 98 Fed. 647. It had been frequently held that the circuit court would entertain a controversy removed from a State court, notwith- standing the fact that neither the plaintiff nor the defendant was resident within the district where the suit was brought, that the right of removal by the nonresident defendant had no relation to that clause of the act relating to the district in which the suit was brought, and consequently a class of cases arose where the removal was sustained though the suit could not have been originally brought in the Federal district. Thus, citizens of different States may sue each other in a State court ; in such case the nonresident defendant may remove the case to the Federal court of the district in which the suit is brought, though these nonresident citizens could not, by reason of the restriction on residence, have maintained the suit in the Federal court to which it was removed, as an origi- nal suit. Virginia-Carolina Chemical Co. v. Sundry Ins. Cos. 108 Fed. 454; Manufacturers Commercial Co. v. Brown Alaska Co. 148 Fed. 312, and cases cited; Hubbard v. Chicago, M. & St. P. K. Co. 176 Fed. 996, 997; Kansas City & T. E. Co. V. Interstate Lumber Co. 37 Fed. 3 ; Eome Petroleum & Iron Co. V. Hughes Specialty Well Drilling Co. 130 Fed. 585 ; Cowell V. City Water-Supply Co. 96 Fed. 769; Robert v. Pineland Club, 139 Fed. 1001. The theory is that the restrictive clause of the act is only a privilege which the defendant may plead or waive if sued out of his district, and by his petition and removal he waives the privilege and invokes the jurisdiction of the court. Foulk v. Gray, 120 Fed. 157. The plaintiff cannot object, as the right of removal is in- tended for the benefit of the nonresident defendant, and he 852 MUST BE A SUIT JUSTICIABLE IN A FEDEBAL COUET. may exercise the right if the grounds exist, without the remot- est reference to the wishes of the plaintiff. Virginia-Carolina Chemical Co. v. Sundry Ins. Cos. 108 Fed. 454; Mexican JSTat. E. Co. V. Davidson, 157 U. S. 201, 39 L. ed. 672, 15 Sup. Ct. Eep. 563; Duncan v. Associated Press, 81 Fed. 421; Burch V. Southern P. Co. 139 Fed. 350; Gregory v. Pike, 15 C. C. A. 33, 21 U. S. App. 658, 33 U. S. App. 76, 67 Fed. 847; Creagh v. Equitable Life Assur. Soc. 83 Fed. 849; Empire Min. Co. v. Propeller Tow-Boat Co. 108 Fed. 900; Baggs V. Martin, 179 U. S. 206, 45 L. ed. 155, 21 Sup. Ct. Eep. 109; Cowell v. City Water-Supply Co. 96 Fed. 769. And the filing of the petition and bond for removal waived the right of the defendant to be sued in his district. Whitworth V. Illinois C. E. Co. 107 Fed. 557 ; Faulk v. Gray, 120 Fed. 157; Memphis Sav. Bank v. Houchens, 52 C. C. A. 176, 115 Fed. 96. We see from the foregoing that there has been much con- flict of authority, but the stronger current was in favor of the rule "that suit must be brought in defendant's residence district, or in plaintiff's district if jurisdiction depended on diversity of citizenship, or in defendant's resident district if jurisdiction rested on a Federal question" did not apply to removals. Such was the understanding of the profession until the doctrine of the earlier cases was revised in Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Eep. 150. Wisner, a citizen of Michigan, sued Beardsley, a citizen of Louisiana, in the State Court in St. Louis, Missouri ; the defendant filed his petition for removal to the United States circuit court for the eastern district of Missouri, on the ground of diversity of citizenship. The motion to remand was refused on the au- thority of Foulk V. Gray, 120 Fed. 156, and Eome Petroleum & Iron Co. V. Hughes Specialty Well Drilling Co. 130 Fed. 585. An appeal was taken to the Supreme Court in the nature of a petition for prohibition and mandamus by Wisner on the ground that the circuit court had no jurisdiction. The court granted the writ of mandamus, ordering the circuit court to remand the case upon the ground that a citizen of one State suing a citizen of another State in a third State is not a removable case, as such suit could not have been originally brought in the Federal circuit court under sec. 2 of the jur- MUST BE A SUIT JUSTICIABLE IN A FEDEEAL COUKT. 853 isdictional and removal act of 1888. The Chief Justice re- ferred to the earlier cases for support, but unquestionably arrested the trend of authority as developed in the circuit courts, and states -without reservation that the removal by a nonresident defendant contemplated that the suit must have been brought by the plaintiff in the State and district of plain- tiff's citizenship. Hubbard v. Chicago, M. & St. P. E. Co. 176 Fed. 996, 997. Subsequently Ee Moore, 209 U. S. 490, 52 L. ed. 904, 28 Sup. Ct. Eep. 585, 706, 14 A. & E. Ann. Cas. 1164, came before the Supreme Court, involving the same qi:estions. It was held that nothing in Ex parte Wisner, supra, changed the rule that parties may waive the objection that the case was not brought in or removed to the particular Federal court required by statute. That where both parties consent to the jurisdiction of the Federal Court, as evidenced by the defendant in filing his petition and bond for removal, and by the plaintiff amending his pleading without challenging the jurisdiction or proceeding to trial, then the Federal Court could proceed to judgment. Western Loan & Sav. Co. v. Butte & B. Consol. Min. Co. 210 U. S. 369, 52 L. ed. 1101, 28 Sup. Ct. Eep. 720 ; Moyer v. Chicago, M. & St. P. E. Co. 168 Fed. 105; Kreigh v. Westinghouse, C. K. & Co. 214 U. S, 249, 53 L. ed. 984, 29 Sup. Ct. Eep. 619 ; De Valle Da Costa V. Southern P. Co. 160 Fed. 217 ; Louisville & K E. Co. v. Fisher, 11 L.E.A.(KS.) 926, 83 C. C. A. 584, 155 Fed. 68 ; Clark v. Southern P. Co. 175 Fed. 123 ; Philadelphia & B. Face Brick Co. v. Warford, 123 Fed. 843. But when a plea to the jurisdiction of the Federal court is seasonably made under the conditions as above stated, it should be sustained and the case remanded. Macon Grocery Co. v. Atlantic Coast Line E. Co. 215 U. S. 501, 54 L. ed. 300, 30 Sup. Ct. Eep. 184; Hubbard v. Chicago, M. & St. P. E. Co. 176 Fed. 997; Shawnee Nat. Bank v. Missouri, K. & T. E. Co. 175 Fed. 456; Bottoms v. St. Louis & S. F. E. Co. 179 Fed. 319; Lawrence v. Southern Pacific Co. 180 Fed. 827. The rule, then, seems now to be established that while a suit by a citizen of one State against a citizen of another State, brought in a third State, would be fatal to its removal, if seasonably ob- jected to, yet if the suit is otherwise within Federal jurisdic- tion, and is removed, and both parties recognize the jurisdic- 854: UUST BE A SUIT JUSTICIABLE IN A FEDERAL COUET. tion of the Federal court by proceeding with the case therein, then the court may adjudicate the case. Where a cause is removed and it appears from the record that the parties are not citizens of the State in which the suit is brought, the Federal court will allow the petition for removal to be amend- ed to show that the plaintiff was in fact a citizen of the district of suit. Harding v. Standard Oil Co. 170 Fed. 651. But there is a class of cases which, by reason of the procedure necessary to prosecute them, cannot be brought originally in the Federal court, yet may be removed. Kirby v. Chicago, N. W. R Co. 106 Fed. 552; West Virginia v. King, 112 Fed. 369; Union Terminal E. Co. v. Chicago, B. & Q. K. Co. 119 Fed. 213, 214; Wilson v. Smith, 66 Fed. 81; Re Jarnecke Ditch, 69 Fed. 163. As in condemnation suits. Colorado Midland R. Co. v. Jones, 29 Fed. 193; Union Terminal R. Co. V. Chicago, B. & Q. R. Co. 119 Fed. 210 ; Searl v. School Dist. No. 2, 124 U. S. 199, 31 L. ed. 416, 8 Sup. Ct. Rep. 460 ; Madisonville Traction Co. v. St. Bernard Min. Co. 130 Fed. 790, 791; South Dakota C. R, Co. v. Chicago, M. & St. P. R. Co. 73 C. C. A. 176, 141 Fed. 578 ; Broadmoor Land Co. V. Curr, 73 C. C. A. 537, 142 Fed. 421. Thus a suit under a statute of a State to collect taxes may require such procedure as would prevent an original action in the Federal court, yet the controversy may present every ele- ment necessary under the first section of the act of 1888 ; in such case the suit can be removed to the Federal court. Re Stutsman County, 88 Fed. 337 ; Re Jarnecke Ditch, 69 Fed. 163 ; Waha Lewiston Land & Water Co. v. Lewiston-Sweet- water Irrig. Co. 158 Fed. 141 ; Union Terminal R. Co. v. Chicago, B. & Q. R. Co. 119 Fed. 209. The conferring of exclusive jurisdiction by States on its own courts by prescribing exclusive methods can affect the right of removal if it be a suit of a civil nature cognizable in law or equity. Barber Asphalt Paving Co. v. Morris, 67 L.R.A. 761, 66 C. C. A. 55, 132 Fed. 949, and eases cited; Morrill V. American Reserve Bond Co. 151 Fed. 306. CHAPTER CXXIX. AME]N"DINQ PETITION TOE REMOVAL. The rule is, a petition for removal cannot be amended if the jurisdiction is not stated, but can if imperfectly stated. Santa Clara County v. Goldy Mach. Co. 159 Fed. Y51; Cre- hore V. Ohio & M. E. Co. 131 TJ. S. 240-245, 33 L. ed. 144, 145, 9 Sup. Ct. Eep. 692; Shane v." Butte Electric E. Co. 150 Fed. 801-814; Fife v. Whittell, 102 Fed. 537; Healy r. McCormick, 157 Fed. 318 ; Wallenburg v. Missouri, P. R. Co. 159 Fed. 217; Fred Macey Co. v. Macey, 68 C. C. A. 363, 135 Fed. 729; Dinet v. Delavan, 117 Fed. 978; Dalton V. Milwaukee Mechanics' Ins. Co. 118 Fed. 877; Dalton v. Germania Ins. Co. 118 Fed. 936; Fitzgerald v. Missouri P. E. Co. 45 Fed. 814. Thus, allegations as citizenship have been permitted to be amended when defectively stated (Thompson v. Stalman, 131 Fed. 809 ; Powers v. Chesapeake & 0. E. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Eep. 264; Kinney v. Columbia Sav. & L. Asso. 191 U. S. 78, 48 L. ed. 103, 24 Sup. Ct. Eep. 30; Muller v. Chicago, I. & L. E. Co. 149 Fed. 939, 940; Flynn v. Fidelity & 0. Co. 145 Fed. 265; Hodge v. Chicago & A. E. Co. 57 C. C. A. 388, 121 Fed. 48; Kerr v. Modern Woodmen, 54 C. C. A. 655, 117 Fed. 595 ; Kyle v. Chicago, E. I. & P. E. Co. 173 Fed. 238; Kansas City Southern E. Co. v. Prunty, 66 C. C. A. 163, 133 Fed. 14; De La Montanya v. De La Montanya, 158 Fed. 117 ; Wilbur V. Eed Jacket Consol. Coal & Coke Co. 153 Fed. 662 ; Crehore V. Ohio & M. E. Co. 131 U. S. 245, 33 L. ed. 145, 9 Sup. Ct. Eep. 692; Johnson v. F. C. Austin Mfg. Co. 76 Fed. 616; Tremper v. Schwabacher, 84 Fed. 414; Powers v. Chesa- peake & O. E. Co. 169 U. S. 101, 42 L. ed. 676, 18 Sup. Ct. Eep. 264; Stadleman v. White Line Towing Co. 92 Fed. 209 ; Hadfield v. Northwestern Life Assur. Co. 105 Fed. 530) ; 855 856 AMENDING PETITION FOE EEMOV Al- and it seems under certain conditions the State court may permit an amendment. Roberts v. Pacific & A. K. & Nav. Co. 104 Eed. 577. With the exceptions above stated, you must stand on your case as made, showing jurisdiction. Ibid. ; Fife v. Whittell, 102 Fed. 537 ; Murphy v. Payette Alluvial Gold Co. 98 Fed. 321; Martin v. Baltimore & O. E. Co. (Gerling v. Baltimore & 0. R. Co.), 151 U. S. 676, 88 L. ed. 312, 14 Sup. Ct. Eep. 533; Copies v. Texas & P. R. Co. 67 Fed. 9; Grand Trunk R. Co. v. Twitchell, 8 C. C. A. 237, 21 U. S. App. 45, 59 Fed. 729, and cases cited; Waite v. Phoenix Ins. Co. 62 Fed. 769 ; Carson v. Dunham, 121 U. S. 430, 30 L. ed. 995, 7 Sup. Ct. Rep. 1030; Stevens v. Nichols, 130 U. S. 231, 32 L. ed. 915, 9 Sup. Ct. Rep. 518 (see authorities under "Petition Cannot be Amended"). But whatever the rule may be, if the circuit court of the United States permits the amendment, it will not be reversed on appeal. Ayres v. Watson, 137 U. S. 584, 34 L. ed. 803, 11 Sup. Ct. Rep. 201. CHAPTEE CXXX. SEEVICE OF PEOCESS IN A STATE COUET AFFECTING EEMOVAL. We have seen that when a case is removed it retains the same status as to all process and proceedings that have been taken in the State court. Sec. 4 and 6, act of 1875. I -will now speak of how far the service or nonservice of process in the State court will bind the Federal court in removing a cause, or after its removal. In discussing who may remove a cause when the right of re- moval depends on diversity of citizenship, it was stated as a rule that where the cause of action was joint and the suit brought against a resident and nonresident defendant, the fact that the resident was not served at the time the application for removal should be made did not give the nonresident the right of removal. Patchin v. Hunter, 38 Fed. 51 ; Putnam v. In- graham, 114 U. S. 57, 29 L. ed. 65, 5 Sup. Ct. Eep. 74C; Brooks V. Clark, 119 TJ. S. 502, 30 L. ed. 482, 7 Sup. Ct. Eep. 301 ; Lederer v. Sire, 105 Fed. 529. The nonservice of the resident defendant cannot change the character of the suit. Ibid, and the U. S. Eev. Stat. sec. 737, U. S. Comp. Stat. 1901, p. 587, authorizing the court to pro- ceed to the trial of the suit between the parties properly before the court, does not apply to removals. Ames v. Chicago, S. F. & C. E. Co. 39 Fed. 881. See Whitcomb v. Smithson, 175 U. S. 637, 638, 44 L. ed. 305, 20 Sup. Ct. Eep. 248. However, if the cause of action be joint, and both parties sued, but the resident not served is dismissed from the suit, or if both resident and nonresident be served and the resident be dismissed, then the nonresident defendant may remove the cause to the Federal court as soon as the resident is dismissed, though the time for removal has elapsed; but as long as the plaintiff seeks to recover against both the resident and non- resident, and for that purpose holds them in the case, the fact that he has not served the resident would not give the nonresi- dent the right of removal. Powers v. Chesapeake & 0. E. Co. 857 858 PEOCESS IN A STATE COUET AFFECTING EEMOVAL. 169 D". S. 92-102, 42 L. ed. 673-677, 18 Sup. Ct. Eep. 264; Doremus v. Eoot, 94 Fed. 762 ; Kansas City Suburban Belt E. Co. V. Herman, 187 U. S. 69, 47 L. ed. 78, 23 Sup. Ct. Eep. 24. In Tremper v. Schwabacher, 84 Fed. 413, anotber rule is indicated, whicb is as follows: Wbere by a State statute a suit is brought against several parties, residents and nonresi- dents, the nature of whose interest in the subject-matter is one of copartnership, and a joint judgment against all can be recovered on a service on one of them, thereby subjecting their joint interest to execution under such judgment, then, where the service is made on the nonresident only, he may remove. See, also, Diday v. New York, P. & O. E. Co. 107 Fed. 569. If, however, both resident and nonresident be served, and joint as well as individual judgments be sought, then tlie nonresident cannot remove. See "Partners as Parties." Another rule to which your attention is called is as follows : If the plaintiff sues on a joint and several liability a resident and nonresident defendant, and serves only the nonresident, and proceeds against him, this is an election to sever, and gives the nonresident the right to remove as soon as the purpose is evident that he alone is to be sued. Berry v. St. Louis & S. F. E. Co. 118 Fed. 911-915 ; Powers v. Chesapeake & O. E. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Eep. 264. See Carlisle v. Sunset Teleph. & Teleg. Co. 116 Fed. 896. Another rule to be deduced from the authorities is that the fact that resident parties to the suit are merely formal parties, or not sufficiently identified in interest as to be materially af- fected by a, judgment, or joined under some pretense without any real interest, then whether they be served or not with pro- cess will not affect the right of a nonresident defendant or de- fendants joining in the application from removing the cause to the Federal court. Myers v. Murray, N. & Co. 11 L.E.A. 216, 43 Fed. 696 ; Nelson v. Hennessey, 33 Fed. 113 ; May v. St. John, 38 Fed. 770; Parkinson v. Barr, 105 Fed. 81; Loop V. Winters, 115 Fed. 362-366; Henderson v. Cabell, 43 Fed. 258; Wood v. Davis, 18 How. 467, 15 L. ed. 460. (See "Nominal Parties.") Again, where a suit is brought against a resident and non- resident, if the interest of the resident defendant is identical PEOCESS IIT A STATE COUKT AFFECTING REMOVAL. 859 with that of the plaintiff, the nonresident defendant may re- move, though the resident be served or not with process. Brown V. Murray, Nelson & Co. 43 Fed. 614; Hutton v. Bancroft & S. Co. 77 Fed. 481. Second. Removal does not waive the question as to the proper service of process in the State courts. The special appearance of the defendant to petition for re- moval is not such an appearance as will waive objection to service after removal. Lathrop-Shea & H. Co. v. Interior Constr. & Improv. Co. 150 Fed. 666-670, and cases cited; Cady V. Associated Colonies, 119 Fed. 420 ; Remington v. Central Pacific E. Co. 19S U. S. 95, 49 L. ed. 959, 25 Sup. Ct. Rep. 577; Davis v. Cleveland C. C. & St. L. R. Co. 146 Fed. 403 ; Goepfert v. Compagnie Generale Transatlantique, 156 Fed. 199, 200; Louden Machinery Co. v. American Malleable Iron Co. 127 Fed. 1008 ; West v. Cincinnati, N. 0. & T. P. R Co. 170 Fed. 349 ; Conley v. Mathieson Alkali Works, 110 Fed. 730, S. C. 190 U. S. 411, 47 L. ed. 1115, 23 Sup. Ct. Rep. 728; Stowe v. Santa Fe Pacific R. Co. 117 Fed. 368; Collins V. American Spirit Mfg. Co. 96 Fed. 133 ; Mecke v. Valley Town Mineral Co. 89 Fed. 114; Calderhead v. Dovsti- ing, 103 Fed. 30. But in New York Constr. Co. v. Simon, 53 Fed. 1, it was declared that it was the settled rule of the sixth circuit that a removing defendant could not object to service unless the objection was raised in the State court. Bentlif v. London & C. Finance Corp. 44 Fed. 667, dis- approved. If the State court did not rightly acquire jurisdiction, it may be raised in the Federal court. ( See authorities above. ) Empire Min. Co. v. Propeller Tow-Boat Co. 108 Fed. 903; Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. 559; Wabash Western R. Co. Brow, 164 U. S. 276, 41 L. ed. 433, 17 Sup. Ct. Rep. 126 ; Cady v. Associated Colonies, 119 Fed. 423; Peterson v. Morris, 98 Fed. 49; Aur- acher v. Omaha & St. L. R. Co. 102 Fed. 1 ; Case v. Smith, L. & Co. 152 Fed. 730. It seems that if the State court has overruled the motion to set aside service, the Federal court will not rehear it, that is where the service in the State court is valid the Federal court should not set it aside, even though it may have been, 860 PROCESS IN A STATE OOUET AlfFECTINCl REMOVAL. had the suit been originally brought in the Federal court. Sleicher v. Pullman Co. 170 Ted. 365, 366; AUmark v. Platte S. S. Co. 76 Fed. 615. But when a motion is made in a State court and not acted on, it may be heard in the Federal court (Kauffman v. Kennedy, 25 Fed. 785) ; and where service is by publication, objection that the State court was without, jur- isdiction for want of a res to support it may be made. Ahlhaus- er V. Butler, 50 Fed. 705 ; Atchison v. Morris, 11 Biss. 191, 11 Fed. 582. The rule may be stated that the authority to determine whether the state court had jurisdiction is not limited by state laws. Cady v. Associated Colonies, 119 Fed. 423^ 424, and cases cited; Case v. Smith, L. & Co. 152 Fed. 730; Goldey v. Morning News, 156 U. S. 523, 39 L. ed, 519, 15 Sup. Ct. Eep. 559. Where the service was by publication on the foreclosure of a mortgage, the Federal court will not set aside the service so far as the foreclosure is concerned, but will not give a per- sonal judgment on the service. Du Pont v. Abel, 81 Fed. 534. Where service is by attachment in State court without per- sonal service, it is no ground to remand. Purdy v. Wallace Miiller & Co. 81 Fed. 513 ; Lebensberger v. Scofield, 71 C. C. A. 476, 139 Fed. 380; Long v. Long, 73 Fed. 369; Vermilya V. Brown, 65 Fed. 149 ; Kichmond v. Brookings, 48 Fed. 241. See Clark v. Wells, 203 TJ. S. 164, 51 L. ed. 138, 27 Sup. Ct. Eep. 43. (See chapter 122, "Status after Eemoval.") Amending Service After Removal. Whatever may be the defects of service, a state officer can- not amend after removal. Tallman v. Baltimore & 0. E. Co. 45 Fed. 156; Hawkins v. Peirce, 79 Fed. 452. Nor has the Federal court after removal any power to issue process to perfect the service of the State court. Stowe v. Santa Fe P. E. Co. 117 Fed. 368. Therefore the Federal court must, in the absence of proper service, dismiss the case, because if the State court had no jurisdiction it cannot take any. Ibid. But thus dismissing the case will not prevent the State court from again taking jurisdiction on the same cause of action. Gass- man v. Jarvis, 100 Fed. 146 ; Texas Cotton Products Co. v. StaTnes, 128 Fed. 183, 184, and eases cited. CHAPTEE OXXXL EEMOVAL ON GEOUND Ol? LOCAL PEEJUDICE. Who May Remove. I have already referred to tlie statute permitting the re- movals from State courts by any defendant being a nonresident, at any time iefore the trial in the State court, when it shall be made to appear to the United States circuit court that from prejudice or local influence, such defendant will not be able to obtain justice in the State court in which the suit is pending or in any other State court to which the said defendant may, under the laws of the State, remove the same, provided, the amount in controversy be over two thousand dollars. Water Comrs. V. Eobbins, 125 Fed. 656 ; Cochran v. Montgomery County, 199 U. S. 271, 50 L. ed. 187, 26 Sup. Ct. Eep. 58, 4 A. & E. Ann. Cas. 451; Ee Pennsylvania Co. 137 II. S 451, 34 L. ed. 738, 11 Sup. Ct. Eep. 141 ; Malone v. Eichmond & D. E. Co. 35 Eed. 625 ; Fisk v. Henarie, 142 U. S. 468, 35 L. ed. 1082, 12 Sup. Ct. Eep. 207. JSTew Code, sees. 28, 29. There has been much controversy over the fact as to whether, under the language of the act, a nonresident defendant could remove unless there was a separable controversy; but, what- ever may have been the rule under U. S. Eev. Stat. sec. 639, see Fisk v. Henarie, 142 IT. S. 467, 35 L. ed. 1082, 12 Sup. Ct. Eep. 207, yet the recognized rule under the act of 1888 permits any nonresident defendant, though joined with resident citizen, to remove the case, if prejudice or local influence exists. Holmes v. Southern E. Co. 125 Fed. 301; Whelan v. New York L. E. & W. E. Co. 1 L.E.A. 65, 35 Fed. 849 ; Boatmen's Bank v. Fritzlen, 68 C. C. A. 288, 135 Fed. 665, and cases cited; Montgomery County v. Cochran, 116 Fed. 994; Bart- lett V. Gates, 117 Fed. 362 ; Seaboard Air Line E. Co. v. ISTortli Carolina E. Co. 123 Fed. 629 ; Jackson & S. Co. v. Pearson, 861 862 EEMOVAI- ON GEOUND OF LOCAL PEEJUDICE. 60 Fed. 113 ; Haire v. Eome E. Co. 57 Fed. 321 ; Fisk v. Henarie, 32 Fed. 417. The weight of authority is certainly in favor of the text, as far as numbers go, at least, but the cases upholding this rule rest upon the fact that sec. 2 of the act of 1888, 25 Stat, at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 509, allowing a removal for existing prejudice, or local influence is a dis- tinct, or rather independent, ground for removal. It will be seen, however, that the case of Cochran v. Montgomery County, cited above, was appealed to the Supreme Court of the United States, in which a citizen of Alabama had sued a citizen of Alabama and a citizen of Maryland in the State court of Al- abama, which was removed to the Federal court in Alabama upon the petition of the Maryland defendant, setting up pre- judice and local influence. The case was reversed and re- manded to the State court because improperly removed, the court stating that the 4th clause of section 2 of the act of 1888 does not furnish a separate and independent ground of Federal jurisdiction, but only a special condition to be ap- plied in the preceding clauses; that is, the local prejudice clause does not describe a new class of suits that may be removed from the State courts, but a ground for removing a class of suits previously defined. Therefore the Chief Justice concludes that the construction given by the various cases, above cited, to the local prejudice clause, to wit, that the words "any defendant being such citizen of another State may re- move" implied that there might be defendants who were not citizens of another State, and yet the cause be removable was erroneous, and in the light of the preceding section of the re- moval act, requiring the controversy to be removed, to be between a citizen or citizens of one State and a citizen or cit- izens of another or other States, did not include cases where the controversy was partly between citizens of the same State, and consequently the local prejudice clause could not apply to the latter condition. Again, it is assumed that to reach a different conclusion would conflict with the rule that a cause is only removable when it may have been originally brought in the Federal court. This case was followed in Cleveland v. Cleveland, C. C. & St. L. R Co. 77 C. C. A. 467, 147 Fed. 173, and in Southern E. Co. v. Thomason, 77 C. C. A. 170, EEMOVAL ON GEOUND OF LOCAL PMEJUDICE. 863 146 Eed. 974. So the rule seems to be established that to remove on the ground of local prejudice, etc., it must be a suit in which there is a controversy between citizens of dif- ferent States, as required under the rule of jurisdiction by diversity of citizenship. Terre Haute v. Evansville & T. H. E. Co. 106 Fed. 549; Campbell v. Milliken, 119 Fed. 982; Rosenthal v. Coates, 148 U. S. 146, 37 L. ed. 400, 13 Sup. Ct. Eep. 576. Must Defendants All Join in Petition The act says, "any defendant being a citizen of another State may remove," and it is said in Cochran v. Montgomery Coun- ty, 199 U. S. 273, 50 L. ed. 188, 26 Sup. Ct. Eep. 58, 4 A. & E. Ann. Cas. 451, that these words were inserted in order that a defendant entitled to remove may not be cut off from the right by a refusal of codefendants to join in the applica- tion. "Holmes v. Southern E. Co. 125 Eed. 302, 303 ; Bonner V. Meikle, 77 Fed. 485. One defendant cannot remove because of local prejudice as between him and another defendant. Hanrick v. Hanrick, 153 U. S. 198, 38 L. ed. 687, 14 Sup. Ct. Eep. 835. Petition for Removal. The petition must be sworn to and presented to the Federal court before the trial of the cause in the State court, and when removed the plaintiff must join issue in the Federal court, where alone the facts can be tried. Act of 1888, section 2 ; Bonner v. Meikle, 77 Fed. 485 ; Hanrick v. Hanrick, 153 U. S. 197, 38 L. ed. 687, 14 Sup. Ct. Eep. 835 ; Short v. Chicago, M. & St. P. E. Co. 34 Fed. 225 ; Hobart v. Hlinois C. E. Co. 81 Eed. 5; Kaitel v. Wylie, 38 Eed. 865; Farmers' & M. jSTat. Bank v. Schuster, 29 C. C. A. 649, 52 U. S. App. 612, 86 Fed. 161; Fisk v. Henarie, 142 IJ. S. 467, 35 L. ed. 1082, 12 Sup. Ct. Eep. 207. See Montgomery County v. Cochran, 116 Fed. 986, for form of petition. Also Weldon v. Eritzlen, 128 Fed. 609, 610. See New Code, sees. 28, 29. What to State. It is not sufficient to state that one has reason to believe 864 EEMOVAL ON GEOUND OF LOCAL PEEJUDICE. that from prejudice, etc., he will be unable to obtain justice. The existence of prejudice must be alleged as a matter of fact. Collins v. Campbell, 62 Fed. 850. (See affidavit) Where Application Made and When. We see the application must be made to the Federal court, and can be made "at any time before the trial" in the State court of the case on its merits. Fisk v. Henarie, 142 U. S. 467, 35 L. ed. 1082, 12 Sup. Ot. Eep. 207; Hobart v. Illinois C. K. Co. 81 Fed. 5, but see Whelan v. E"ew York, L. E. & "W. K. Co. 1 L.K.A. 65, 35 Fed. 849, holding not too late after demurrer heard in the State court, but not after trial in the State court, though a mistrial. Farmers' & M. ISTat. Bank V. Schuster, 29 C. C. A. 649, 52 U. S. App. 612, 86 Fed. 161 ; Eosenthal v. Coates, 148 U. S. 143, 37 L. ed. 399, 13 Sup. Ct. Kep. 576. The Affidavit. The affidavit for removal should set forth the facts and cir- cumstances so as to satisfy the court, if true, of the existence of prejudice or adverse local influence. Amy v. Manning, 38 Fed. 868; Ee Pennsylvania Co. 137 U. S. 457, 34 L. ed. 741, 11 Sup. Ct. Eep. 154. New Code, sec. 28. It should not rest upon mere 5elief or opinion, but be direct in its allegations. Franz v. Wahl, 81 Fed. 9 ; Short v. Chicago, M. & St. P. E. Co. 33 Fed. 114; Schwenk v. Strang, 8 C. C. A. 92, 19 U. S. App. 300, 59 Fed. 209 ; Crotts v. Southern E. Co. 90 Fed. 2; Curnow v. Phoenix Ins. Co. 44 Fed. 305; Hall V. Chattanooga Agri. Works, 48 Fed. 602. In Collins v. Campbell, 62 Fed. 851, and Crotts v. South- ern E. Co. 90 Fed. 2, it is said that the petition and affidavit need not set out the facts upon which the belief in the existence of the prejudice is founded, but the existence of the prejudice must be alleged as a fact. The affidavit may be filed in the State court, and a certified copy in the Federal court. Short v. Chicago, M. & St. P. E. Co. 34 Fed. 225. See Crotts v. Southern E. Co. 90 Fed. 1; Montgomery County v. Cochran, 116 Fed. 987, 988, for form of affidavit REMOVAL ON GEOUKD OB LOCAL PREJUDICE. 865 See affidavit held insufficient. Dennison v. Brown, 38 Fed. 635; Hakes v. Burns, 40 Fed. 83; Short v. Chicago, M. & St. P. K. Co. 34 Fed. 225; Turnbull Wagon Co. v. Linthicum Carriage Co. 80 Fed. 4; Collins v. Campbell, 62 Fed. 850. See sec. 28, New Code, chap. 3. Notice. EeasonaUe notice of the application to the Federal court ought to be given to the adverse party, so that an opportunity to contest the application in the Federal court may be had. Schwenk v. Strang, 8 C. C. A. 92, 19 II. S. App. 300, 59 Fed. 209-211 ; Carson & E. Lumber Co. v. Holtzclaw, 39 Fed. 578; Malone v. Eichmond & D. E. Co. 35 Fed. 625. See Crotts V. Southern E. Co. 90 Fed. 1 ; and authorities cited, where it is held that the removal may be granted on an ex parte hearing (Montgomery County v. Cochran, 116 Fed. 985), but when so granted plaintiff may thereafter contest the allega- tions of the petition (Ellison v. Louisville & ]lT. E. Co. 50 C. C. A. 530, 112 Fed. 805) ; but, giving notice of the application is the better practice. Hemdon v. Southern E. Co. T3 Fed. 307; Bonner v. Meikle, 77 Fed. 485; Eeeves v. Corning, 51 Fed. 774. But when obtained without notice the court will permit the plaintiff to contest the allegations, and will give a reasonable time to do so. Ellison v. Louisville & IST. E. Co. 60 C. C. A. 530, 112 Fed. 805. How Issue Tried. The judiciary act of 1888, section 2, provides that the cir- cuit court shall examine into the truth of the affidavit and the grounds thereof on application of the plaintiff. The is- sue may be tried in such manner as the court may direct ; that is, by affidavits, depositions, or by oral evidence. Short v. Chicago, M. & St. P. E. Co. 33 Fed. 117; Ee Pennsylvania Co. 137 U. S. 456, 457, 34 L. ed. 741, 11 Sup. Ct. Eep. 141; Carpenter v. Chicago, M. & St. P. E. Co. 47 Fed. 535 ; Car- son V. Dunham, 121 IJ. S. 425, 30 L. ed. 993, 7 Sup. Ct. Eep. 1030 ; Carlisle v. Sunset Teleph. & Teleg. Co. 116 Fed. 896. (See l^ature of Proof.) ISTew Code, sec. 28. S. Eq.— 55. 866 EEMOVAI, ON GEOUND OF LOCAI. PEEJUDICE. Nature of Proof. The amount and manner of proof required must be left to the discretion of the court (Crotts v. Southern E. Co. 90 Fed. 1 ; Tacoma v. Wright, 84 Fed. 836 ; Smith v. Crosby Limiber Co. 46 Fed. 819; Parker v. Vanderbilt, 136 Fed. 250; Mont- gomery County V. Cochran, 116 Fed. 985; Amy v. Manning, 38 Fed. 868; Maher v. Tower Hotel Co. 94 Fed. 225; Detroit V. Detroit City K. Co. 54 Fed. 2; Southworth v. Eeid, 36 Fed. 451; Bellaire v. Baltimore & O. E. Co. 146 U. S. 118, 36 L. ed. 911, 13 Sup. Ct. Eep. 16), but the inability to obtain justice because of prejudice or local influence in the State court in which the suit is brought, as well as in any State court to which under the laws of the State the case could be removed, must appear to the legal satisfaction of the court (Ibid. ; Fisk V. Henarie, 142 U. S. 468, 35 L. ed. 1082, 12 Sup. Ct. Eep. 207), as to changing venue in case of local prejudice. As to what is sufficient to create legal satisfaction will be found discussed in Ee Pennsylvania Co. 137 U. S. 457, 34 L. ed. 741, 11 Sup. Ct. Eep. 141, and it need not be shown that the prejudice or influence primarily exists against the party seeking removal, but it may be a prejudice in favor of his ad- versary (Neale v. Foster, 31 Fed. 55 ; Parks v. Southern E. Co. 90 Fed. 4; Bartlett v. Gates, 117 Fed. 362), and to which the judge is exposed. Montgomery County v. Cochran, 116 Fed. 985, is a case where the facts were held sufficient. De- troit V. Detroit City E. Co. 54 Fed. 18. Order of Removal. The circuit court issues its order to the clerk of the State court in which the cause is pending, and requires him to cer- tify to the United States circuit court a transcript of the proceedings in the cause (see 90 Fed. 2-4, for forms or order) ; and while the law does not require it, proper respect for State courts demands that the certified copy of the order of removal be filed in the State court. Bartlett v. Gates, 117 Fed. 362. Motion to Remand. The plaintiff may contest in the Federal court the grounds EEMOVAL ON GEOUND OF LOCAL PKEJUDICE. 8C7 of the petition for removal to prevent it, if seasonably notified of the application, or he may after removal, upon motion to remand, contest the allegations of the petition for removal. Ellison V. Louisville & N. E. Co. 50 C. C. A. 530, 112 Fed. 805; Montgomery County v. Cochran, 116 Fed. 985. As to form of motion to remand, see 116 Fed. 988. The suit may be divided and remanded in part. Fisk v. Hen- arie, 142 U. S. 468, 35 L. ed. 1082, 12 Sup. Ct. Kep. 207. By clause 4 of section 2 of the act of 1888, it is provided that if it further appear that said suit can be fully determined as to other defendants in a State court, unaffected by prejudice, and no party to the suit will be prejudiced by a separation of the parties, said court may direct the suit to be remanded as to such parties. Holmes v. Southern R, Co. 125 Fed. 303. Burden of Proof. We thus see what issue can be made in a motion to remand the cause to the State court, and where the allegations of the petition by which the case has been removed have thus been put in issue, the burden is on the defendant to establish the juris- diction he seeks. Carson v. Dunham, 121 U. S. 421, 30 L. ed. 992, 7 Sup. Ct. Eep. 1030. Remedy When Remand Refused. If the remand for any cause is refused, file your bill of ex- ceptions as follows: Title as in cause. In the United States Court District of , , A. D. 19 ... . Bill of Exceptions. Be it remembered that on this day came on to be heard the plaintiff's mo- tion to remand the above entitled and numbered cause to the State court from whence it was removed, and the court having heard the motion and argument of counsel thereon, and having considered tlie same, said motion was by said court in all things overruled and held for naught, to which ruling of the court plaintiff excepted, and here tenders his bill of exceptions asking that the same be approved and made a part of the record, wliich in accordingly done. 868 EEMOVAL ON QEOUND OF LOCAL PftEJTXDICE. The object is to reserve the point in case the cause is appealed. There is no appeal from an order to remand (German Nat. Bank V. Speckert, 181 U. S. 407-409, 45 L. ed. 926, 927, 21 Sup. Ct. Eep. 688; Ee Pennsylvania Co. 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Kep. 141; sec. 2, act 1888, clause 6) ; but where jurisdiction is retained by overruling the motion to remand, it may be revised by the appellate court. Mansfield, C. & L. M. E. Co. V. Swan, 111 U. S. 379, 28 L. ed. 462, 4 Sup. Ct. Eep. 510; Powers v. Chesapeake & O. E. Co. 169 TJ. S. 98, 42 L. ed. 675, 18 Sup. Ct. Eep. 264; Missouri P. E. Co. v. Fitzgerald, 160 U. S. 557-582, 40 L. ed. 536-543, 16 Sup. Ct. Eep. 389. Mandamus as Remedy When Remund Refused. Ee Dunn, 212 TJ. S. 375, 53 L. ed. 558, 29 Sup. Ct. Eep. 299 ; Ee Winn, 213 U. S. 458, 53 L. ed. 873, 29 Sup. Ct. Eep. 515 ; Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Eep. 150. Ejfect of Order Remanding. The order is conclusive on the State court. Western U. Teleg. Co. v. Luck, 91 Tex. 178, 66 Am. St. Eep. 869, 41 S. W. 469 ; Missouri P. E. Co. v. Fitzgerald, 160 U. S. 557, 40 L. ed. 536, 16 Sup. Ct. Eep. 389 ; Pioneer Sav. & L. Co. v. Peck, 20 Tex. Civ. App. Ill, 49 S. W. 168. CHAPTEE CXXXII. EEMOVAL BY EECEIVEES. I will briefly refer to removals by Federal receivers when sued in a State court, only to suggest when motions to remand may be made. By section 3 of the act of 1888, amending the act of 1887, 25 Stat at L. 436, chap. 866, U. S. Comp. Stat. 1901, p. 582, a Federal receiver can be sued in a State court in respect of any act or transaction of his in carrying on the business con- nected with the property of which he is a receiver, without the previous leave of the court appointing him. As to the right of Federal receivers to remove a case brought in the State court under this act, there has been conflict in the cases, but I thini: the questions are now settled with reasonable definiteness. In Gableman v. Peoria, D. & E. E. Co. 179 U. S. 335, 45 L. ed. 220, 21 Sup. Ct. Eep. 171, the direct questions arose in an effort by a Federal receiver to remove a case from the State court on the sole ground that he was sued as a Federal receiver. S. C. 41 C. C. A. 160, 101 Fed. 5; Eural Home Teleph. Co. v. Powers, 176 Fed. 986. The court, construing the act above referred to, says : "This act gave the citizen the right to determine in his local court by verdict of a jury the amount and justness of his cause of action, and the manifest object rejects the construction of many of the circuit courts that the act of 1888 did not change the law further than to relieve one from contempt for suing the re- ceiver in the State court." Pepper v. Eogers, 128 Fed. 988 , Chesapeake, O. & S. W. E. Co. v. Smith, 101 Ky. 707, 42 S. W. 538 ; Central Trust Co. v. East Tennessee, V. & G. E. Co. 59 Fed. 523. To permit such a construction eliminated the very spirit, if not the letter, of the act, for if it could be removed to the Fed- 869 870 EEMOVAL BY EECEIVEES. eral court simply because the receiver was appointed by a Fed' eral court, wherein was the benefit to the citizen to sue in his local court ? The privilege in no way interferes with the receiver's cus- tody of the property, for this is abundantly protected by the lat- ter clause of section 3 of the act against such interference. Ibid. ; Gableman v. Peoria, D. & E. E. Co. 179 U. S. 338, 45 L. ed. 222, 21 Sup. Ct. Eep. 171 ; Marrs v. Felton, 102 Fed. 778. This case reasonably settles the question that the right to sue a Federal receiver in a State court to establish a claim growing out of any act or transaction of such receivers in carrying on the business is a substantial right and presents no Federal question, nor a case arising under the Constitution and laws of the United States simply by reason of the fact that the defendant was a Federal receiver. Consquently, a case removed on this ground can be remanded on motion. In Pope V. Louisville, IST. A. & C. E. Co. 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Eep. 500, the court held that the order of a Federal court appointing a receiver was not equivalent to a law of the United States in the meaning of the Constitution. Bausman v. Dixon, 173 U. S. 114, 43 L. ed. 634, 19 Sup. Ct. Eep. 316. Of course, if the suit in the State court against the Federal receiver substantially involves a controversy dependent on the construction of the Constitution, laws, or treaties of the United States, and which appears in the case as stated by the plaintiff, or on any other ground of Federal jurisdiction appearing, then receivers, like any other citizen, may remove the case from the State to the Federal courts. Gableman v. Peoria, D. & E. E. Co. 179 U. S. 341, 342, 45 L. ed. 223, 224, 21 Sup. Ct. Eep. 171. What has thus been said about the right of removal by Fed- eral receivers does not apply to receivers of corporations created by Congress. Such corporations are exceptions to the rules applicable to the jurisdiction of the Federal courts, and the bare statement in the petition for removal that the applicant is a receiver of a Federal corporation, would be sufficient to sup- port the removal of the cause. I have, however, sufficiently discussed this anomaly. EEMOVAL BY EECEIVEES 871 National Banks. ITational banks, though created by Congress, are excluded from this privilege attached to a national charter. By act of 1882, 22 Stat, at L. 162, chap. 290, U. S. Comp. Stat. 1901, p. 3457, they are put upon the same plane with banks not organ- ized under the laws of the United States. In Leather Mfg. Nat. Bank v. Cooper, 120 U. S. 779, 30 L. ed. 817, 7 Sup. Ct. Rep. 777, this act was construed, and it was held that removals by these banks from the State to the Federal courts were prohibited unless some ground of Federal jurisdiction existed other than their creation by Congress. Wichita E"at. Bank v. Smith, 19 C. C. A. 42, 36 U. S. App. 630, 72 Fed. 568 ; Burnham v. First Nat. Bank, 3 C. C. A. 486, 10 U. S. App. 485, 53 Fed. 163. By section 4 of the act of 1888, 25 Stat, at L. 436, chap. 866, TJ. S. Comp. Stat. 1901, p. 514, all banking associations for the purpose of jurisdiction were to be deemed citizens of the • State in which they were located, and Federal jurisdiction was conferred to the grounds upon which other citizens may invoke it, except in cases where the affairs of the bank were being wound up, or in suits by the United States, its officers or agents. Guarantee Co. v. Hanway, 44 C. C. A, 312, 104 Fed. 369 ; International Trust Co. v. Weeks, 116 Fed. 898. Intervention for Removal., In closing this subject, I shall call your attention to cases removed by interveners, and causes for remanding the same. The question arises as to whether a party can intervene in a suit and remove it to the Federal court, there being no ground of Federal jurisdiction prior to his intervention. It is clear that whatever may have been the right of removal by the defendant before one has intervened, if at the time of the intervention the right has been lost by lapse of time, or from any other cause by the defendant, then the intervener who causes himself to be associated with, or substituted for, the de- fendant cannot remove the case to the Federal court. One com- ing voluntarily into the action must take the case as he finds it. Nash V. McNamara, 145 Fed. 543, and cases cited; Cable 872 REMOVAL BY EECEIVEES. V. Ellis, 110 U. S. 389, 28 L. ed. 186, 4 Sup. Ct. Eep. 85 ; Speckert v. German ISTat. Bank, 38 C. C. A. 682, 98 Fed. 154, 155; Kidder v. ISTorthwestern Mut. L. Ins. Co. 117 Fed. 997; Farmers' & M. ITat. Bank v. Schuster, *29 C. C. A. 649, 52 U. S. App. 612, 86 Fed. 161; Richmond & D. R. Co. v. Findley, 32 Fed. 642; Olds Wagon Works v. Benedict, 14 C. C. A. 285, 32 U. S. App. 116, 67 Fed. 1; McDonnell v. Jordan, 178 U. S. 238, 44 L. ed. 1052, 20 Sup. Ct. Rep. 886. A substituted party comes in only with the rights of the party whose place he takes. Houston & T. C. R. Co. v. Shir- ley, 111 U. S. 358, 28 L. ed. 455, 4 Sup. Ct. Rep. 472. So a party who purchases property pendente lite comes in subject to the disabilities of the original parties so far as removal is con- cerned. Jefferson v. Driver, 117 U. S. 272, 29 L. ed. 897, & Sup. Ct. Rep. 729. So an intervener who introduces himself into an action to protect himself as against an indemnity to the defendant cannot remove it if the defendant cannot; or if he holds in privity with defendant. Ibid. ; Olds Wagon Worka v. Benedict, 14 C. C. A. 285, 32 IT. S. App. 116, 67 Fed. 1-4;, Goodnow V. Dolliver, 26 Fed. 470 ; Weller v. J. B. Pace To- bacco Co. 32 Fed. 860; Concord Coal Co. v. Haley, 76 Fed. 882 ; Grand Trunk R. Co. v. Twitchell, 8 C. C. A. 237, 21 U. S. App. 45, 59 Fed. 727. So parties brought into a suit by cross bill in a State court, who have succeeded to the in- terests of plaintiff, cannot remove as defendants. ISTash v. Mc- ISTamara, 145 Fed. 541. So where one intervenes in a suit claiming the proceeds of a check sued upon cannot remove the case if the right of removal did not exist when he intervened. Kidder v. Northwestern Mut L. Ins. Co. 117 Fed. 997-999,. and authorities cited; Cable v. Ellis, 110 TJ. S. 389, 28 L. ed. 186, 4 Sup. Ct Rep. 85. In Kidder v. Northwestern Mut. L. Ins. Co. 117 Fed. 998, it is said the statute makes no provision for a removal by anyone except the "defendant or defendants therein." It makes no provision at the instance of persons who may be pecuniarily in- terested to intervene and remove the cause to the Federal court. Nor does it make any provision for compelling or allowing- other parties to be influenced or substituted as defendants, and thereby make a removable cause out of one which was previous- ly not removable EEMOVAL BY liECEIVEES. 873 If the State court refuses iutervention, the Federal courts are bound by it, and an intervener cannot remove to test his right to intervene. Kidder v. JSTorthwestern Mut. L. Ins. Co. 117 Fed. 998, 999. The Snow v. Texas Trunk R Co. 16 Fed. 1, and American Nat. Bank v. JSTational Ben. & Casualty Co. 70 Fed. 420, are noted, but declared erroneous. Where a petition has not been granted they are not parties, and cannot remove. As to the effect of the refusal of an ap- plication to intervene, see Credits Commutation Co. v. United States, 177 U. S. 314, 315, 44 L. ed. 784, 785, 20 Sup. Ct. Eep. 636 ; Land Title & T. Co. v. Asphalt Co. 127 Fed. 21 ; Massachusetts Loan & T. Co. v. Kansas City & A. R. Co. 49 G. C. A. 18, 110 Fed. 30. But it seems where the intervener is the substantial party to the contest he may intervene and remove. Chase v. Beech Creek R. Co. 144 Fed. 572. A re- ceiver may intervene, where the bank of which he is receiver is being wound up, when the bank is sued, and such receiver may remove the case to the Federal court. Speckart v. German Nat. Bank, 85 Fed. 12. Interpleader. When he may remove. First Nat. Bank v. Bridgeport Trust Co. 117 Fed. 969. CHAPTER CXXXIII. MOTION TO REMAND. By Whom Made. The motion to remand must be made by the plaintiff in the suit, as the party removing is estopped from making it (Tod V. Cleveland & M. Valley E. Co. 12 C. C. A. 521, 22 TJ. S. App. 707, 65 Fed. 145 ; Long v. Long, 73 Fed. 372 ; Edwards V. Connecticut Mut. L. Ins. Co. 20 Fed. 452; Cowley v. .ISTorthern P. E. Co. 159 U. S. 569, 40 L. ed. 263, 16 Sup. Ct. Eep. 127; Empire Min. Co. v. Propeller Tow-Boat Co. 108 Fed. 903 ; Philadelphia & B. Face Brick Co. v. Warford, 123 Fed. 843), unless the court a quo had no jurisdiction, then he may dismiss (Tootte v. Coleman, 57 L.E.A. 120, 46 C. C. A. 132, 107 Fed. 41-45; Swift v. Philadelphia & E. E. Co. 58 Fed. 858; see Purdy v. Wallace, MuUer & Co. 81 Fed. 515). Effect Of. It IS equivalent to a special plea to the jurisdiction (Mans- field, C. & L. M. E. Co. V. Swan, 111 U. S. 384, 28 L. ed. 464, 4 Sup. Ct. Eep. 510; Phillips v. Western Terra Cotta Co. 174 Fed. 873), and an order refusing it is subject to reconsideration imtil final judgment (Missouri P. E. Co. v. Fitzgerald, 160 TJ. S. 580, 40 L. ed. 542, 16 Sup. Ct. Eep. 389). In considering the motion the presumption is against the party objecting to the jurisdiction. Evers v. Watson, 156 U. S. 531, 39 L. ed. 522, 15 Sup. Ct. Eep. 430. The petition for removal is a part of the record (Supreme Lodge, K. P. V. Wilson, 14 C. C. A. 264, 30 TJ. S. App. 234; 66 Fed. 785), and the jurisdictional facts set out in the peti- tion are presumed to be true on motion to remand, and unless evidence is introduced to contradict them, or the record shows 874 MOTION TO EEMAND. 875 the contrary, the remand will be refused. Durkee v. Illinois C. R. Co. SI Fed. 1 ; Loop v. Winters, 115 Fed. 362 ; Carlisle V. Sunset Teleph. & Teleg. Co. 116 Fed. 896. They are not put in issue by a mere motion to remand. Ibid. Time to Be Made. "We have seen that the motion to remand must be made promptly, — especially where the ground of the motion is a failure to remove the case in time, which is not fundament- ally jurisdictional; and this is true, where the motion would be made, on any irregularity, which may be waived by ac- quiescence or delay. Wyly v. Eichmond & D. E. Co. 63 Fed. 487 ; Tod v. Cleveland & M. Valley E. Co. 12 C. C. A. 521, 22 U. S. App. 707, 65 Fed. 145; see Collins v. Stott, 7l5 Fed. 613. Of course, if the objection goes to some fundamental ground of jurisdiction, it would be the duty of the court, under section 5 of the act of 1875, to remand the cause at any time, when it appeared that the suit did not involve a contro- versy properly within the jurisdiction. Indiana v. Tolleston Club, 53 Fed. 18 ; Indiana ex rel. Muncie v. Lake Erie & W. E. Co. 85 Fed. 2 ; Mansfield, C. & L. M. E. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462, 4 Sup. Ct. Eep. 510; International & G. ]Sr. E. Co. V. Hoyle, 79 C. C. A. 128, 149 Fed. 180- 182 ; Broadway Ins. Co. v. Chicago, G. W. E. Co. 101 Fed. 510 ; American Bridge Co. v. Hunt, 64 C. C. A. 548, 130 Fed. 302. See sec. 37, chap. 3, K'ew Code, embodying sec. 5, act of 1875, effective January 1st, 1912. In discussing what power the Federal court had between petition to remove and the removal, we spoke of the right to remand within that period, to which you are referred. Whdt Acts May Waive the Bight to Bemand. When the ground for remanding is of such a nature that it may be waived, then any act of the plaintiff after removal, recognizing the jurisdiction of the Federal court, would have that effect, as entering a general appearance in the Federal court (Corwin Mfg. Co. v. Henrici Washer Co. 151 Fed. 938; 876 MOTION TO EEMAND. Foulk V. Gray, 120 Fed. 156; Moyer v. Chicago, M. & St. P. E. Co. 168 Fed. 105 ; Ee Moore, 209 TJ. S. 490, 491, 52 L. ed. 904, 28 Sup. Ct. Eep. 585, 706, 14 A. & E. Ann. Cas. 1164; Louisville & JST. E. Co. v. Fisher, 11 L.E.A.(]Sr.S.) 926, S3 C. C. A. 584, 155 Fed. 68) ; or delay on motion to re- mand (Wyly V. Eichmond & D. E. Co. 63 Fed. 487 ; Tod v. Cleveland & M. Valley E. Co. 12 C. C. A. 521, 22 U. S. App. 707, 65 Fed. 145; Mulcahey v. Lake Erie & W. E. Co. 69 Fed. 172; Proctor Coal Co. v. United States Fidelity & G. Co. 158 Fed. 211). However, not to give the court juris- diction if it had none. Indiana ex rel. Muneie v. Lake Erie & W. E. Co. 85 Fed. 1. It is held in Parkinson v. Barr, 105 Fed. 82-83, that the plaintiff appearing in the Federal court by asking to file an amended eomplaiat did not waive his right to move to re- mand. See Frisbie v. Chesapeake & 0. E. Co. 57 Fed. 1 ; Thomas v. Great Northern E. Co. 77 C. C. A. 255, 147 Fed. 83. Again (Collins v. Stott, 76 Fed. 613), the plaintiff was allowed to withdraw his pleading and move to remand. Form of Motion to Remand. Title as in suit. In the Circuit Court of the UniteiJ States for the District of And now comes the plaintiff and moves the court to remand the above entitled cause to the State court from whence it was removed for trial for the following reasons: Because some of the defendants herein are residents and citizens of the State of and plaintiff is a resident and citizen of the State of , or a corporation duly incorporated under and by virtue of the laws of , and that there is involved in this suit no separable controversy which is wholly between citizens of another state on the one hand and citizens of the State of on the other hand, all of which facts are apparent in the record in this cause. Wherefore plaintiff says this court has no jurisdiction to try and deter- mine this case and prays that the same may be remanded to district court of the State of from whence it came. R. F., Solicitor, etc. MOTION TO EEMAND. 87Y See Parkinson v. Barr, 105 Fed. 82 ; Weldon v. Tritzlen, 128 Fed. 611; Carothers v. McKinley, Min. & Smelting Co. 122 Ped. 305. Or you may set up that defendant, who removes the cause on the ground that he is a nonresident of the State, is in truth and fact a resident and citizen of the State, and, therefore, the diversity of citizenship, upon which the jurisdiction is claimed, does not exist, but, in fact, the controversy is wholly between citizens of the State. (Helena Power Transmission Co. V. Spratt, 146 Fed. 311), or that there was no fraudulent joinder of parties, as alleged. Louisville & IST. E. Co. v. Wangelin, 132 U. S. 599, 33 L. ed. 474, 10 Sup. Ct. Eep. 203 ; Hukill v. MaysviUe & B. S. E. Co. 72 Fed. 751 ; Kelly V. Chicago & A. E. Co. 122 Fed. 286. Or that a party claim- ing to be an alien is a naturalized citizen of the United States and a citizen of the State of suit where the suit was brought; subsequent change would not affect the jurisdiction. Hara- covic V. Standard Oil Co. 105 Fed. 785. Or that it is not shown from the claims set up that it arises under the Constitu- tion and laws of the United States, or is dependent for re- covery upon a proper construction or application of either, etc. See jSTew Castle v. Postal Teleg. Cable Co. 152 Fed. 572; Mayo V. Dockery, 108 Fed. 899 ; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Eep. 654; Chappell V. Waterworth, 155 U. S. 107, 39 L. ed. 87, 15 Sup. Ct. Eep. 34; Walker v. Collins, 167 U. S. 59, 42 L. ed. 76, 17 Sup. Ct. Eep. 738. Or that the suit was not one that could have been originally brought in the Federal court. See authorities below. Or that amount was not sufficient. New Castle v. Western U. Teleg. Co. 152 Fed. 569-571 and cases cited. As we have seen, a dismissal as to the removing defendant gives the right to remand. Youtsey v. Hoffman, 108 Fed. 699 ; Cassidy v. Atlanta & C. Air Line E. Co. 109 Fed. 673. If the jurisdiction is doubtful on a motion to remand, it should be remanded. McKown v. Kansas & T. Coal Co. 105 Fed. 657; Kessinger v. Vannatta, 27 Fed. 890; ISTash v. MclSTamara, 145 Fed. 542 ; Plant v. Harrison, 101 Fed. 307 ; Ernst V. American Spirits Mfg. Co. 114 Fed. 981; Mathews Slate Co. V. Mathews, 148 Fed. 490. And the duty to remand 878 MOTION TO EEMAND. should not be affected by the fact that no cause of action it stated; that is a question for the State court. Broadway Ins. Co. V. Chicago, G. W. E. Co. 101 Fed. 507. Nor can the consolidation of a suit, with one pending in the Federal court, affect the right to remand. Colburn v. Hill, 41 C. C. A. 467, 101 Fed. 500. When a suit is prosecuted in a State court of equity, and, if removed, . would fall on the law side of the Federal court, then it should be remanded. Gombert v. Lyon, 80 Fed. 305 ; Gates v. Allen, 149 TJ. S. 460, 37 L. ed. 808, 13 Sup. Ct. Rep. 883, 977. Consent cannot remand. Lawton V. Blitch, 30 Fed. 641. How Issue Joined and Tried. We have already seen how the issue is to be joined and tried when diverse citizenship is put in issue. The existence of a Federal question, we have seen, must appear in the case as made by the plaintiff's petition in the State court, and cannot be raised by the petition to remove; so the issue in the motion to remand must rest upon the state- ments in plaintiff's original or amended petition in the State court. The burden is on the removing party (Swann v. Mutual Reserve Fund Life Asso. 116 Fed. 232), to sustain juris- diction. See Thresher v. Western U. Teleg. Co. 148 Fed. 649. Fraudulent Joinder. Again, we have seen that the plaintiff cannot fraudulently join parties as defendants in order to evade Federal juris- diction and prevent removal. If the fact exists, the petition for removal may set it up, and the issue is to be tried in the Federal court. Kansas City, Ft. S. & M. E. Co. v. Daughtry, 138 U. S. 303, 34 L. ed. 964, 11 Sup. Ct. Rep. 306 ; Carlisle V. Sunset Teleph. & Teleg. Co. 116 Fed. 896; McGuire v. Great Northern E. Co. 153 Fed. 434; Kelly v. Chicago & A. R. Co. 122 Fed. 289 ; Shane v. Butte Electric R. Co. 150 Fed. 801 ; Prince v. Illinois C. R. Co. 98 Fed. 1. The allegation of the jurisdictional fact, being taken as prima facie true is MOTION TO EEMAND. 879 sufficient for the removal. Arrowsmitli v. Nashville & D. R. Co. 57 Fed. 170 ; Kelly v. Chicago & A. E. Co. 122 Fed. 289 ; Eoss v. Erie E. Co. 120 Fed. 703. See sec. 37, chap. 3 of the New Code. When the petition for removal alleges the fact of a fraudu- lent joinder, it is the practice of some of the Federal courts to require an issue to be raised, or, upon failure to do so, the truth of the petition is presumed, and the case will not be re- manded ; •while, in otter jurisdictions, the petition in treated as traversed without express denial, and on motion to remand to place the burden of proving such allegations on the de- fendant. Boatner v. American Exp. Co. 122 Fed. 714. This latter ruling is based on Xouisville & X. E. Co. v. Wangelin, 132 TJ. S. 601, 33 L. ed. 475, 10 Snp. Ct. Eep. 203, in which the Supreme Court says that the removal cannot be maintained unless the petitioner both alleges and proves that the defendants were wrongfully joined for the purpose of preventing a removal. Wecker v. ISTational Enameling & Stamping Co. 204 U. S. 182, 183, 51 L. ed. 434, 435, 27 Sup. Ct. Eep. 184, 9 A. & E. Ann. Cas. 757 ; Union Terminal E. Co. V. Chicago, B. & Q. E. Co. 119 Fed. 210, 211. There is no question that an action brought in a State court for a tort against several, or where the plaintiff has a legal right to bring a joint action, that neither of the defend- ants can remove the same to a Federal court, even though the plaintiff may have brought the action against each defendant separately. Louisville & ?^. E. Co. v. Wangelin, 132 U. S. 601, 33 L. ed. 475, 10 Sup. Ct. Eep. 203; Knuth v. Butte, Electjic E. Co. 148 Fed. 73 ; Atlantic Coast Line E. Co. v. Daniels, 175 Fed. 302. As to how the suit is to be brought is entirely within the discretion of the plaintiff; so, when the petition is filed, if fraudulent joinder be charged and the cause removed, the Federal court must determine the right of removal by the peti- tion as filed by the plaintiff ; that is, it must act on the record as made in the State court when the petition for removal was filed. It will so act when a motion to rem'and is made, unless the moving petitioner proves his allegations of fraudulent joinder. This right to elect whether the suit shall be joint or several must be overcome when the suit is brought against 880 MOTION TO EEMANQ. several defendants, by the removing defendant, by allegation and proof that the joinder was fraudulent, otherwise the suit as brought must control upon motion to remand. Louisville E. Co. V. Wangelin, 132 U. S. 601, 33 L. ed. 475, 10 Sup. Ct. Eep. 203 ; Charman v. Lake Erie & W. E. Co. 105 Fed. 449 ; Bryce v. Southern E. Co. 122 Fed. YlO; Prince v. Illinois C. E. Co. 98 Fed. 2; Iowa Lillooet Gold Min. Co. v. Bliss, 144 Fed. 452 ; Alabama, G. S. E. Co. v. Thompson, 200 U. S. 206, 50 L. ed. 441, 26 Sup. Ot Eep. 161, 4 A. & E. Ann. Cas. 1147 ; Cincinnati, IST. O. & T. P. E. Co. v. Bohon, 200 U. S. 221, 50 L. ed. 448, 26 Sup. Ct. Eep. 166, 4 A. & E. Ann. Cas. 1152 ; HukiU v. Maysville & B. S. E. Co. 72 Fed. 750, 75L So we see that the issue is raised between the petition for the plaintiff and the allegations for removal, and it is not necessary to specially deny the allegations of the removal peti- tion in order to remand. Nature of Proof. In order to justify a removal on the ground of fraudulent joinder, it must appear not only that they were not joined for that purpose, but that no cause of action is stated against them, or that they are, in law, improperly joined, or that the allegations of the petition joining therein a common liability are so palpably untrue or unfounded as to make the want of good faith of the plaintiff apparent. Winters v. Drake, 102 Fed. 550; HukiU v. Maysville & B. S. E. Co. 72 Fed. 745, 746; Warax v. Cincinnati, K O. & T. P. E. Co. 72 Fed. 638; Shane v. Butte Electric E. Co. 150 Fed. 801; Wecker v. National Enameling & Stamping Co. 204 U. S. 176, 51 L. ed. 430, 27 Sup. Ct. Eep. 184, 9 A. & E. Ann. Cas. 757 ; MeGuire V. Great ISTorthem E. Co. 153 Fed. 434. The burden of proof is on the removing party to show the fraudulent joinder. Swann v. Mutual Eeserve Fund Life Asso. 116 Fed. 232 ; Thresher v. Western U. Teleg. Co. 148 Fed. 649; Bryce v. Southern E. Co. 122 Fed. 709; Union Terminal E. Co. v. Chicago, B. & Q. E. Co. 119 Fed. 211; Woodson County v. Toronto Bank, 128 Fed. 157. As to causes for remanding, see International & G. N. E. Co. v. Hoyle, MOTION TO EEMAND. 881 79 C. C. A. 128, 149 Fed. ISO; Utah-Nevada Co. v. De Lamar, 75 C. C. A. 1, 145 Fed. 505 ; Mathews Slate Co. v. Mathews, 148 Fed. 490; Goldberg, B. & Co. v. German Ins. Co. 152 Fed. 832 ; Helena Power Transmission Co. v. Spratt, 146 Fed. 311; People's United States Bank v. Goodwin, 160 Fed. 727. If a cause is properly removable it will not be remanded because the procedure was irregular. Bryant Bros. Co. v. Robinson, 79 C. C. A. 259, 149 Fed. 321. S. Eq.— 56. CHAPTER OXXXIV. EECASTIlsG j?LJiAl>IKGS In jurisdictions, where legal and equitable causes of action may be joined, we have often causes removed from the State to the Federal courts in this condition. The equitable cause cannot be tried on the law side, nor the action at law on the equity side, nor even an equitable defense permitted. North- ern P. E. Co. V. Paine, 119 U. S. 563, 30 L. ed. 514, T Sup. Ct. Rep. 323; Bennett v. Butterworth, 11 How. 674, 675, 13 L. ed. 861, 862; Pettus v. Smith, 117 Fed. 967^ India Rubber Co. v. Consolidated Rubber Tire Co. 117 Fed. 354; Mulqueen v. Schlichter Jute Cordage Co. 108 Fed. 931;. Berkey v. Cornell, 90 Fed. 717 ; Davis v. Davis, 18 C. C. A. 438, 30 U. S. App.-723, 72 Fed. 83, 84; Lerma v. Stevenson, 40 Fed. 359; Smythe v. Henry, 41 Fed. 715; Hatcher v. Hendrie & B. Mfg. & Supply Co. 68 C. C. A. 19, 133 Fed. 271. So it becomes necessary to recast the pleadings in order that the equitable cause of action may be prosecuted according to the procedure and usages of courts of equity. Thornton N. Motley Co. v. Detroit Steel & Spring Co. 130 Fed. 396 ; Re Foley, 76 Fed. 390; Bryant Bros. Co. v. Robinson, 79 C. C. A. 259, 149 Fed. 321; Stockton v. Oregon Short Line R Co.. 170 Fed. 633 ; Fletcher v. Burt, 63 C. C. A. 201, 126 Fed. 619-621; Phelps v. Elliott, 23 Blatchf. 470, 26 Fed. 881- Benedict v. Williams, 20 Blatchf. 276, 10 Fed. 208; Hurt V. Hollingsworth, 100 U. S. 103, 25 L. ed. 570 ; Coosaw Min. Co. V. South Carolina, 144 U. S. 550, 36 L. ed. 537, 12 Sup. Ct. Rep. 689. As the case becomes one in law or equity as. the nature of the case demands. North Alabama Develop- ment Co. V. Ormond, 6 C. C. A. 22, 13 U. S. App. 215, 55 Fed. 20; Wilson v. Smith, 66 Fed. 81. See Detroit v. De- troit City R. Co. 55 Fed. 569. Where the case was in Chancery ix the State court and removed and by the Stat« 882 EECASTING PLEADINGS. 883 equity rules the defendant may have affirmative relief set up in his answer, the defendant need not recast his pleadings by setting up his case by cross bill. When the case is removed, then the clerk dockets it. If the case is purely equitable, such as mere foreclosure of a mort- gage, the clerk by request can at once assign it to the equity docket, but if purely legal, such an action to try title or simply recover money, he may assign it at once to the law docket. Should the case be equitable in its nature and not placed on the equity docket, either party may move the court for a trans- fer to the proper docket. United States Bank v. Lyon County, 48 Fed. 634 ; Cancel v. United Shoe Machinery Co. 120 Fed. 840. You may use the following form: Title as in case. In the United States Circuit Court for the District of , sitting at And now comes (plaintiff or defendant) in the above cause and shows to the court that this is a suit to recover certain taxes and to foreclose a tax lien thereon for the amount of said taxes, with a prayer for foreclosure of the lien (or whatever may be the cause of action show- ing that it is a case in equity), and the says that the relief sought can be more fully granted in equity than on the law side of this Honorable Court, wherefore he prays that said cause be transferred to the equity docket for trial. R. F., Attorney of Record. Issue may be taken on the motion, and the case shown to be fully remediable at law. If the cause is transferred to the equity side of the docket, the court may order the pleadings changed to conform to the equity rules, or it may be required on the motion of either party, in which event the court orders the bill to be filed by a certain time and the defendant to demur, plead or answer by a certain other time, usually pursuing the time permitted by the rules. Hurt v. HoUingsworth, 100 U. S. 100, 25 L. ed. 569. The plaintiff may recast his pleading as soon as the order is made transferring his case to the equity side, without any order of court or motion to require or permit it. You must bear in mind that as soon as your case is docketed as an equity suit, you must pursue the equity rules in preparing it for hear- 884 RECASTING PLEADINGS. ing on the merits, and you at once become subject to the penal- ties for noncompliance with them. Rule 19 C. C. A. ; Utah- A^evada Co. v. De Lamar, 75 C. G. A. 1, 145 I'ed. 507. If the plaintiff elects to stand on his pleading as it comes from the State court, which in a simple foreclosure you may do if your petition has been properly drawn in the State court (Phelps V. Elliott, 23 Blatchf. 470, 26 Fed. 883), you must so state in answer to the order to replead if one has been made, and file your reply as notice to the defendant to answer within the rules. Thus, where a case in vequity in a State court has been removed, and the chancery rules of that State permit affirmative relief to be set up by way of cross bill in the answer, you need not file cross bill. Detroit v. Detroit City E. Co. 55 Fed. 569, 570. In case no order has been made to recast your pleadings, and you have elected to stand on your petition as filed in the State court, you should at once notify the defendant so that he may demur, plead, or answer by the next rule day as re- quired, and if so notified and he does not plead under the rules, you may enter a judgment pro confesso. Sometimes the defendant has, in advance of the day he is required to plead in the State court, filed a demurrer and general issue in said court, and the case, though an equitable one, comes up to the Federal court when removed with the issue so joined. Such a paper is neither good as a demurrer or answer to a suit in equity in the Federal court, and if the cause has been transferred to the equity side, will not be noticed, and consequently will not prevent a judgment pro confesso, if the defendant has not plead, demurrer, or answered under the rules. The defendant being notified that the cause is upon the equity side of the docket, and that the plaintiff stands upon his pleading as it came from the State court, or that the plaintiff has recast his pleadings and filed his bill, must demur, plead, or answer within the rules as heretofore explained. But sometimes the case as it comes from the State court carries two distinct causes of action: one equitable and the other legal. It may be necessary to divide them, retaining the legal cause of action on the law side and transferring the equitable cause to the equity side, and thus have the divided KECASTING PLEADINGS. 885 suits pending at the same time. C. C. rule 19, 75 C. 0. A. 1, 145 Fed. 507; Perkins v. Hendrys, 23 Fed. 418; Lacroix v. Lyons, 27 Fed. 403; Stoclvton v. Oregon Short Line K. Co. 170 Fed. 633 ; Utah-Xevada Co. v. De Lamar, 75 C. C. A. 1, 145 Fed. 505-507. To illustrate: You may have a simple money claim against the defendant, evidenced by a note, and you may have a claim evidenced by a note, but the latter secured by a mortgage. You may sue the defendant in the State court on both causes of action in the same suit. The defendant appears in the State court and on suiScient ground removes the cause to the Federal court; here there is no question, you must divide your suit and carry your foreclosure to the equity side. To do this you must necessarily recast your pleadings. If each note is in excess of tv70 thousand dollars, exclusive of interest and costs, there is no difficulty as you have the necessary amount to give the Federal court jurisdiction on either side of the divided system. But suppose neither note is for two thousand dollars, or one of the notes was under and the other exceed the jurisdictional amount, clearly the court must remand the case, unless the plaintiff waives the fore- closure and sues on the law side for the aggregated amount of the two notes. If one note is in excess and the other under the amount, the Federal court by the removal may retain jurisdiction of the note in excess of two thousand dollars, but cannot retain jurisdiction of the other, unless the equitable phase of the case has been abandoned and the amounts aggre- gated. Often eases go up from the State court in which ancillary process has been sued out to preserve the subject-matter or status until the judgment at law can be recovered. If in such cases the ancillary proceeding is an equitable proceeding, such as an injunction, the pleadings must be recast and the in- junction carried to the equity side of the docket. Again, your cause of action may be legal, but an equitable remedy be sought. This fact would carry your case to the equity docket, for, as we have seen, courts of equity take juris- diction, both when the cause of action or the remedy sought is equitable. However, it seems that when a case is pending in a State equity court, which, if removed, would, by the nature 886 EECASTiisro pleadings. of the case, go to the law side, the court should remand and not require the pleading to be recast. Gombert v. Lyon, 80 Fed. 305 ; Gates v. Allen, 149 TJ. S. 460, 37 L. ed. 808, 13 Sup. Ct. Eep. 883, 977. If the object of the suit is to obtain a perpetual injunction, or any other essential equitable remedy, you must go to the equity side, even though damages are involved and are prayed for. Du Pont v. Abel, 81 Fed. 535. APPENDIX. THE JUDICIAL CODE. CHAPTER ONE. DISTRICT COUBTS — OEQANIZATION. Sec. 1. District courts established; ap- pointment and residence of judges. 2. Salaries of district judges. 3. Clerks. 4. Deputy clerks. 5. Criers and bailiflfs. 6. Records; where kept. 7. Effect of altering terms. 8. Trials not discontinued by new term. 9. Court always open as courts of admiralty and equity. 10. Monthly adjournments for trial of criminal causes. 11. Special terms. 12. Adjournment in case of nonat- tendance of judge. 13. Designation of another judge in case of disability of judge. Sec. 14. Designation of another judge in case of an accumulation of business. 15. When designation to be made by Chief Justice. 16. New appointment and revoca- tion. 17. Designation of district judge in aid of another judge. 18. When circuit judge may be des- ignated to hold district court. 19. Duty of district and circuit judge in such cases. 20. When district judge is interest- ed or related to parties. 21. When affidavit of personal bias or prejudice of judge is filed. 22. Continuance in case of vacancy in office. 23. Districts having more than one judge; division of business. Sec. 1. In each of the districts described in chapter five, there shall be a court called a district court, for which there shall be appointed one judge, to be called a district judge; except that in the northern district of California, the northern district of Illinois, the district of Maryland, the district of Minnesota, the district of Nebraska, the dis- trict of New Jersey, the eastern district of New York, the northern and southern districts of Ohio, the district of Oregon, the eastern and west- ern districts of Pennsylvania, and the western district of Washington, there shall be an additional district judge in each, and in the southern district of New York, three additional district judges: Provided, That whenever a vacancy shall occur in the office of the district judge for the district of Maryland, senior in commission, such vacancy shall not be filled, and thereafter there shall be but one district judge in said dis- 887 888 APPENDIX triet: Provided further. That there shall be one judge for the eastern and western districts of South Carolina, one judge for the eastern and middle districts of Tennessee, and one judge for the northern and southern dis- tricts of Mississippi: Provided further, That the district judge for the middle district of Alabama shall continue as heretofore to be a district judge for the northern district thereof. Every district judge shall reside in the district or one of the districts for which he is appointed, and for offending against this provision shall be deemed guilty of a high misde- meanor. Sec. 2. Each of the district judges shall receive a salary of six thousand dollars a year, to be paid in monthly installments. Sec. 3. A clerk shall be appointed for each district court by the judge thereof, except in cases otherwise provided for by law. Sec. 4. Except as otherwise specially provided by law, the clerk of the district court for each district may, with the approval of the district judge thereof, appoint such -number of deputy clerks as may be deemed necessary by such judge, who may be designated to reside and maintain offices at such places of holding court as the judge may determine. Such deputies may be removed at the pleasure of the clerk appointing them, with the concurrence of the district judge. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk, in his name, until a clerk is appointed and qualified; and for the default or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such default or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. Sec. 5. The district court for each district may appoint a crier for the court; and the marshal may appoint such number of persons, not exceed- ing five, as the judge may determine, to wait upon the grand and other juries, and for other necessary purposes. Sec. 6. The records of a, district court shall be kept at the place where the court is held. When it is held at more than one place in any district and the place of keeping the records is not specially provided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge. Sec. 7. No action, suit, proceeding, or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court, but the same shall be deemed to be returnable to, pend- ing, and triable in the terms established next after the return day thereof. Sec. 8. When the trial or hearing of any cause, civil or criminal, in a district court has been commenced and is in progress before a jury or the court, it shall not be stayed or discontinued bv the arrival of the time fixed by law for another session of said court; but the court may proceed therein and bring it to a conclusion in the same manner and with the same eifect as if another stated term of the court had not intervened. APPENDIX. 889 Sec. 9. The district courts, as courts of admiralty and as courts of equity, sliall be deemed always open for the purpose of filing any plead- ing, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other pro- ceedings preparatory to the hearing, upon their merits, of all causes pend- ing therein. Any district judge may, upon reasonable notice to the par- ties, make, direct, and award, at chambers or in the clerk's ofiBce, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Sec. 10. District courts shall hold monthly adjournments of their reg- ular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such cases. Sec. 11. A special term of any district court may be held at the same place where any regular term is held, or at such other place in the dis- trict as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge. Any business may be transacted at such special term which might be transacted at a regular term. Sec. 12. If the judge of any district court is unable to attend at the commencement of any regular, adjourned, or special term, or any time dur- ing such term, the court may be adjourned by the marshal, or clerk, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct. Sec. 13. When any district judge is prevented, by any disability, from holding any stated or appointed term of his district court, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, any such circuit judge or justice may, if in his judgment the public interests so require, designate and appoint the judge of any other district in the same circuit to hold said court, and to discharge all the judicial duties of the judge so disabled, during such dis- ability. Whenever it shall be certified by any such circuit judge or, in his absence, by the circuit justice of the circuit in which the district lies, that for any sufficient reason it is impracticable to designate and appoint a judge of another district within the circuit to perform the duties of such disabled judge, the chief justice may, if in his judgment the public interests so require, designate and appoint the judge of any district in another circuit to hold said court and to discharge all the judicial duties of the judge so disabled, during such disability. Such appointment shall be filed in the clerk's office, and entered on the minutes of the said dis- trict court, and a certified copy thereof, under the seal of the court, shall be transmitted by the clerk to the judge so designated and appointed. Sec. 14. When, from the accumulation or urgency of business in any district court, the public interests require the designation and appoint- ment hereinafter provided, and the fact is made to appear, by the certif- 890 APPENDIX, icate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, such circuit judge or justice may designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested in the judge thereof. Each of the said district judges may, in case of such appointment, hold separately at the same time a district court in such district, and discharge all the judicial duties of the district judge therein. Sec. 15. If all the circuit judges and the circuit justice are absent from the circuit, or are unable to execute the provisions of either of the two preceding sections, or if the district judge so designated ia dis- abled or neglects to hold the court and transact the business for which he is designated, the clerk of the district court shall certify the fact to the Chief Justice of the United States, who may thereupon designate and appoint in the manner aforesaid the judge of any district within such circuit or within any other circuit; and said appointment shall be trans- mitted to the clerk and be acted upon by him as directed in the preceding section. Sec. 16. Any such circuit judge, or circuit justice, or the Chief Justice, as the case may be, may, from time to time, if in his judgment the public interests so require, make a new designation and appointment of any other district judge, in the manner, for the duties, and with the powers mentioned in the three preceding sections, and revoke any previous designa- tion and appointment. Sec. 17. It shall be the duty of the senior circuit judge then present in the circuit, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section fourteen, the district judge of any judicial district within his cir- cuit to hold a district court in the place or in aid of any other district judge within the same circuit. Sec. 18. Whenever, in the judgment of the senior circuit judge of the circuit in which the district lies, or of the circuit justice assigned to such circuit, or of the Chief Justice, the public interest shall require, the said judge, or associate justice, or Chief Justice, shall designate and appoint any circuit judge of the circuit to hold said district court. Sec. 19. It shall be the duty of the district or circuit judge who is designated and appointed under either of the six preceding sections, to discharge all the judicial duties for which he is so appointed, during the time for which he is so appointed; and all the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provi- sions, shall have the same effect and validity as if done by or before the district judge of the said district. Sec. 20. Whenever it appea^-s that the judge of any district court is in any way concerned in intei-st in any suit pending therein, or has been of counsel or is a material witness for either party, or is so related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application by either APPENDIX. 891 party, to cause the fact to be entered on the records of the court; and also an order that an authenticated copy thereof shall be forthwith certi- fied to the senior circuit judge for said circuit then present in the circuit; and thereupon such proceedings shall be had as are provided in section fourteen. Sec 21. Whenever a party to any action or proceeding, civil or criminal, shall make and file an afiidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be desig- nated in the manner prescribed in the section last preceding, or chosen in the maimer prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a. certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action. Sec. 22. When the office of judge of any district court becomes vacant, all process, pleadings, and proceedings pending before such court shall, if necessary, be continued by the clerk thereof until such times as a, judge shall be appointed, or designated to hold such court; and the judge so designated, while holding such court, shall possess the powers conferred by, and be subject to the provisions contained in, section nineteen. Sec. 23. In districts having more than one district judge, the judges may agree upon the division of business and assignment of cases for trial in said district; but in case they do not so agree, the senior circuit judge of the circuit in which the district lies, shall make all necessary orders for the division of business and the assignment oi cases for trial in said district. 892 APPENDIX. CHAPTER TWO. MSTBICT COTJBTS — JUBISMCTION. 16. 17. See. 24. Original jurisdiction. Par. 1. Where the United States are plain- tiffs; and of civil suits at common law or in equity. 2. Of crimes and of- fenses. 3. Of admiralty causes, seizures, and priz- es. 4. Of suits under any law relating to the slave trade. 5. Of cases under inter- nal revenue, cus- toms, and tonnage laws. 6. Of suits under postal laws. 7. Of suits under the patent, the copy- right, and the trade-marlc laws. 8. Of suits for violation of interstate com- merce laws. 9. Of penalties and for- feitures. 10. Of suits on deben- tures. 11. Of suits for injuries on account of acts done under laws of the United States. 12. Of suits concerning civil rights. 13. Of suits against per- sons having Icnowl- edge of conspiracy, etc. 14. Of suits to redress the deprivation, under color of law, of civil rights. Sec. 24. The district courts shall have original jurisdiction as fol- lows: First. Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same State claiming lands under grants from different States; or, where the matter in controversy exceeds, ex- See. 24. Original jurisdiction — Cont'd. Par. 15. Of suits to recover certain ofBces. Of suits against na- tional-banking as- sociations. Of suits by aliens for torts. 18. Of suits against con- suls and vice-con- suls. 19. Of suits and proceed- ings in bankrupt- cy. 20. Of suits against the United States. Of suits for the un- lawful inclosure of public lands. Of suits under immi- gration and con- tract-labor laws. 23. Of suits against trusts, monopolies, and unlawful com- binations. Of suits concerning allotments of land to Indians. 25. Of partition suits where United States is joint ten- ant. 25. Appellate jurisdiction under Chinese-exclusion laws. 26. Appellate jurisdiction over Yel- lowstone National Park. 27. Jurisdiction of crimes on Indi- an reservations in South Da- kota. 21. 22. 24. APPENDIX. 893 elusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or -which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects. No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prose- cuted in such court to recover upon said note or other chose in action if no assignment had been made: Provided, however, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding para- graphs of this section. Second. Of all crimes and offenses cognizable under the authority of the United States. Third. Of all civil causes of admiralty and maritime jurisdiction, sav- ing to suitors in all cases the right of a common-law remedy where the common law is competent to give it; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of prop- erty taken as prize. Fourth. Of all suits arising under any law relating to the slave trade. Fifth. Of all cases arising under any law providing for internal rev- enue, or from revenue from imports or tonnage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been conferred upon the Court of Customs Appeals. Sixth. Of all cases arising under the postal laws. Seventh. Of all suits at law or in equity arising under the patent, the copyright, and the trade-mark laws. Eighth. Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court. Ninth. Of all suits and proceedings for the enforcement of penalties and forfeitures incurred under any law of the United States. Tenth. Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the per- son to whom such debenture was originally granted, or against any in- dorser thereof, to recover the amount of such debenture. Eleventh. Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several States. Twelfth. Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or prop- erty, or of the deprivation of any right or privilege of a citizen of the 894: APPENDIX. United States, by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty, Revised Statutes. Thirteenth. Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to be done, and, having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act. Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the juris- diction of the United States. Fifteenth. Of all suits to recover possession of any office, except that of elector of President or Vice-President, Representative in or Delegate to Congress, or member of a State legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such ofiSce arises out of the denial of the right to vote to any citizen oflFering to vote, on account of race, color, or previous condition of servi- tude: Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States. Sixteenth. Of all cases commenced by the United States, or by direc- tion of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title "National Banks," Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking asso- ciations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located. Seventeenth. Of all suits brought by any alien for a tort only, in viola- tion of the laws of nations or of a treaty of the United States, Eighteenth. Of all suits against consuls and vice consuls. Nineteenth. Of all matters and proceedings in bankruptcy. Twentieth. Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, witli the Government of the United States, or for damages, liquidated or unliqui- dated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all APPENDIX. 895 set-offs, counterclaims, claims for damages, whether liquidated or unliqui- dated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, however, That nothing in this paragraph shall be con- strued aa giving to either the district courts or the C!ourt of Claims juris- diction to hear and determine claims growing out of the late Civil War, and commonly known as "war claims," or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commission authorized to hear and determine the same, or to hear and determine claims for pensions; or as giving to the dis- trict courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as as- signees or legal representatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And provided further. That no suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persona beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury. Twenty-first. Of proceedings in equity, by writ of injunction, to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands; and it shall be sufficient to give the court jurisdiction if service of original process be had in any civil pro- ceeding on any agent or employee having charge or control of the in- closure. Twenty-second. Of all suits and proceedings arising under any law regulating the immigration of aliens, or under the contract labor laws. Twenty-third. Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies. Twenty-fourth. Of all actions, suits, or proceedings involving the right of any person, in whole or in part of Indian blood or descent, to any allot- ment of land under any law or treaty. Twenty-fifth. Of suits in equity brought by any tenant in common or joint tenajit for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate. Sec. 25. The district courts shall have appellate jurisdiction of the 896 APPENDIX. judgments and orders of United States commissioners in cases arising under the Chinese exclusion laws. Sec. 26. The district court for the district of Wyoming shall have jurisdiction of all felonies committed within the Yellowstone National Park and appellate jurisdiction of judgments in cases of conviction be- fore the commissioner authorized to be appointed under section five of an act entitled "An Act to protect the birds and animals in Yellowstone National Park, and to punish crimes in said Park, and for other pur- poses," approved May seventh, eighteen hundred and ninety-four. Sec. 27. The district court of the United States for the district of South Dakota shall have jurisdiction to hear, try, and determine all actions and proceedings in which any person shall be charged with the crime of murder, manslaughter, rape, assault with intent to kill, arson, burglary, larceny, or assault with a, dangerous weapon, committed within the limits of any Indian reservation in the State of South Dakota. CHAPTER THREE. DISTBICT COIIETS — BEMOVAL OF CAUSES. Sec. 28. Removal of suits from State to United States district courts. 29. Procedure for removal. 30. Suits under grants of land from different States. 31. Removal of causes against per- sons denied any civil rights, etc. 32. When petitioner is in actual custody of State court. 33. Suits and prosecutions against revenue ofl&cers, etc. Sec. 34. Removal of suits by aliens. 35. When copies of records are re- fused by clerk of State court. 36. Previous attachment bonds, or- ders, etc., remain valid. 37. Suits improperly in district court may be dismissed or re- manded. 38. Proceedings in suits removed. 39. Time for filing record; return of record, how enforced. Sec. 28. Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any State court, may be removed into the district court of the United States for the proper district by the defendant or de- fendants therein, being nonresidents of that State. And when in any suit mentioned in this section there shall be a controversy which is wholly be- tween citizens of different States, and which can be fully determined as be- tween them, then either one or more of the defendants actually interested \n such controversy may remove said suit into the district court of the APPENDIX. 897 Lnited States for the proper district. And where a suit is now pending, or may hereafter be brought, in any State court, in which there is a contro- versy between a citizen of the State in which the suit is brought and a citi- zen of another State, any defendant, being such citizen of another State, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause : Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the State court, without being aiiected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other de- fendants, to the State court, to be proceeded with therein. At any time be- fore the trial of anj suit which is now pending in any district court, or inay hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had rea- son to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State court, the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in said State court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execu- tion, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed: Provided, That no case arising under an act entitled "An Act relating to the liability of common carriers by railroad to their employees in certain cases," approved April twenty- second, nineteen hundred and eight, or any amendment thereto, and brought in any State court of competent jurisdiction shall be removed to any court of the United States. Sec. 29. Whenever any party entitled to remove any suit mentioned in the last preceding section, except suits removable on the grounds of prejudice or local influence, may desire to remove such suit from a State court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court to be held in the district where such suit is pend- ing, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such district court, within thirty days S. Eq.— 57. 898 APPENDIX. from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. Written notice of said petition and bond for re- moval shall be given the adverse party or parties prior to filing the same. The said copy being entered within said thirty days as aforesaid in said district court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declara- tion or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said district court. Sec. 30. If in any action commenced in a. State court the title of land be concerned, and the parties are citizens of the same State and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such informa- tion may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the district court of the United States next to be holden in such district; and any one of either party re- moving the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim. Sec. 31. When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is de- nied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any ofBcer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or com- mitted by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prose- cution may, upon the petition of such defendant, filed in said State court at any time befoie the trial or final hearing of the cause, stating the facts APPENDIX. 899 and verified by oath, be removed for trial into the next district court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the State courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the ease in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a, declaration, petition, or complaint in the cause; and, in ease of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the district court, as herein provided, a certificate, imder the seal of the district court, stating such failure, shall be given, and upon the production thereof in said State court the cause shall proceed therein as if no petition for removal had been filed. Sec. 32. When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said State court a dupli- cate copy of said writ Sec. 33. When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by au- thority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law; or when any suit is commenced against any person for on account of anything done by him while an officer of either House of Congress in the discharge of his official duty, in executing any order of such House, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial 900 APPENDIX. into the district court next to be holden in the district where the same is pending, upon the petition of such defendant to said district court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit, and, together with a certifi- cate signed by an attorney or counselor at law of some court of record of the State where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and tliat he believes them to be true, shall be pre- sented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the district court, and shall proceed as a cause originally commenced in that court; but all bail and otlier security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. When the suit is commenced in the State court by sum- mons, subpoena, petition, or other process except capias, the clerk of the district court shall issue a writ of certiorari to the State court, requiring it to send to the district court the record and proceedings in the cause. When it is commenced by capias or by any other similar form or proceed- ing by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the State court, or left at his office, by the marshal of the district or his deputy, or -by some person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the district court, and any further proceedings, trial, or judgment therein in the State court shall be void. If the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the de- fendant into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the district court that no copy of the record and proceedings therein in the State court can be obtained, the district court may allow and re- quire the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said district court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for the defendant. Sec. 34. Whenever a personal action has been or shall be brought in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States, being a nonresident of that State wherein jurisdiction is obtained by the State court, by personal service of process, such action may be removed into the district court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner APPENDIX. 901 as now provided for the removal of an action brought in a State court by the provisions of the preceding section. Sec. 35. In any case where a party is entitled to copies of the records and proceedings in any suit or prosecution in' a State court, to be used in any court of the United States, if the clerk of said State court, upon de- mand, and the payment or tender of the legal fees, refuses or neglects to deliver to him certified copies of such records and proceedings, the court of the United States in which such records and proceedings are needed may, on proof by affidavit that the clerk of said State court has refused or neglected to deliver copies thereof, on demand as aforesaid, direct such record to be supplied by afiBdavit or otherwise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial, and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceed- ings had been regularly before the said court. Sec. 36. When any suit shall be removed from a State court to a dis- trict court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which said suit was commenced. All bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual notwithstanding said removal; and all injunctions, or- ders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed. See. 37. If in any suit commenced in a district court, or removed from a State court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the juris- diction of said district court, or that the parties to said suit have been improperly or coUusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was re- moved, as justice may require, and shall make such order as to costs as shall be just. Sec. 38. The district court of the United States shall, in all suits re- moved under the provisions of this chapter, proceed therein as if the suit had been originally commenced in said district court, and the same pro- ceedings had been taken in such suit in said district court as shall have been had therein in said State court prior to its removal. Sec. 39. In all causes removable under this chapter, if the clerk of the State court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to remove the same, a copy of the record therein, after tender of legal fees for such copy, 902 APPENDIX. said clerk so offending shall, on conviction thereof in the district court of the United States to which said action or proceeding was removed, be fined not more than one thousand dollars, or imprisoned not more than one year, or both. The district court to which any cause shall be removable under this chapter shall have power to issue a writ of certiorari to said State court commanding such State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plain- tiffs or defendants have complied with the provisions of this chapter for the removal of the same, and enforce said writ according to law. If it shall be impossible for the parties or persons removing any cause under this chapter, or complying with the provisions for the removal thereof, to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the district court shall make an order requiring the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty, as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said district court shall require the other party to plead, and said action or proceeding shall proceed to final judgment. The said district court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as afore- said, shall be discharged so far as it requires copy of the record to be filed as aforesaid. CHAPTER FOUR. MSTEICT COTJBTS — MISCELLANEOUS PKOVISIOrrS. Sec. 40. Capital cases; where triable. 41. Offenses on the high seas, etc., where triable. 42. Offenses begun in one district and completed in another. 43. Suits for penalties and forfeit- ures, where brought. 44. Suits for internal-revenue taxes, where brought. 45. Seizures, where cognizable. 46. Capture of insurrectionary prop- erty, where cognizable. 47. Certain seizures cognizable in any district into which the property is taken. 48. Jurisdiction in patent cases. 49. Proceedings to enjoin Comptrol- ler of the Currency. 50. When a, part of several defend- ants can not be served. 51. Civil suits; where to be brought. 52. Suits in States containing more than one district. Sec. 53. Districts containing more than one division; where suit to be brought; transfer of criminal cases. 54. Suits of a local nature, where to be brought. 55. When property lies in different districts in same State. 56. When property lies in different States in same circuit; juris- diction of receiver. 57. Absent defendants in suits to en- force liens, remove clouds on .titles, etc. 58. Civil causes may be transferred to another division of district by agreement. 59. Upon creation of new district or division, where prosecution to be instituted or action brought. APPENDIX. 903 Sec. 60. Creation of new district, or transfer of territory not to divest lien; how lien to be en- forced. 61. Commissioners to administer oaths to appraisers. 62. Transfer of records to district court when a Territory be- comes a State. 63. District judge shall demand and compel delivery of records of territorial court. Sec. 64. Jurisdiction of district courts in cases transferred from terri- torial courts. 65. Receivers to manage property ac- cording to State laws. 66. Suits against receiver. 67. Certain persons not to be ap- pointed or employed as offi- cers of courts. 68. Certain persons not to be mas- ters or receivers. Sec. 40. The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done with- out great inconvenience. Sec. 41. The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought. Sec 4i When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been eommirted in either, and may be dealt with, inquired of, tried, deter- mined, and panished in either district, in the same manner as if it had been acmally and wholly committed therein. S^c- 43. All pectmiaxy penalties and forfeitures may be sued for and reeoTered either in the district where they accrue or in the district where the offender is found. Sec. 44. Taxes accruing under any law providing internal revenue may be sued for and recovered either in the district where the liability for such tax occurs or in the district where the delinquent resides. Sec. 45. Proceedings on seizures made on the high seas, for forfeiture xinder any law of the United States, may be prosecuted in any district into vrMch the property so seized is brought and proceedings instituted. Pro- ceedings on such seizures made within any district shall be prosecuted in the district where the seizure is made, except in cases where it is otherwise provided. .See. 46. Proceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on account of its being purchased or ac- ijuired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting, or promoting any insur- rection against the Government of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted in anr district where the same may be seized, or into which it may be taken and proceedings first instituted. Sec. 47. Proceedings on seizures for forfeiture of any vessel or cargo entering any port of entry which has been closed by the President in pursuance of law. or of goods and chattels coming from a State or section declared by proclamation of the President to be in insurrection into other 904: APPENDIX. parts of the United States, or of any vessel or vehicle conveying such property, or conveying persons to or from such State or section, or of any vessel belonging, in whole or in part, to any inhabitant of such State or section, may be prosecuted in any district into vphich the property so seized may be taken and proceedings / instituted ; and the district court thereof shall have as full jurisdiction over such proceedings as if the seizure was made in that district. Sec. 48. In suits brought for the infringement of letters patent the dis- trict courts of the United States shall have jurisdiction, in law or in equity, in the district in which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corpo- ration, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regu- lar and established place of business, service of process, summons, or sub- poeua upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought. Sec. 49. All proceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating to national banking associations, shall be had in the district where such association is located. Sec. 50. Where there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer ; and non-joinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit. Sec. 51. Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sec- tions, no civil suit shall be brought in any district court against any per- son by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Sec. 52. When a State contains more than one district, every suit not of a local nature, in the district court thereof, against a single defendant, inhabitant of such State, must be brought in the district where he re- sides; but if there are two or more defendants, residing in different dis- tricts of the State, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides. The clerk issuing the APPENDIX. 905 duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit; and upon any judgment or decree rendered therein, execution may be issued, directed to the mar- shal of any district in the same State. Sec. 53. When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides ; but if there are two or more defendants residing in different divisions of the district it may be brought in either division. All mesne and final process subject to the provisions of this section may be served and executed in any or all of the divisions of the district, or if the State contains more than one district, then in any of such districts, as provided in the preceding section. All prosecutions for crimes or offenses shall be had within the division of such districts where the same were com- mitted, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to an- other division of the district. When a transfer is ordered by the court or judge, all the papers in the ease, or certified copies thereof, shall be trans- mitted by the clerk, under the seal of the court, to the division to which the cause is so ordered transferred; and thereupon the cause shall be pro- ceeded with in said division in the same manner as if the offense had been committed therein. In all cases of the removal of suits from the courts of a State to the district court of the United States such removal shall be to the United States district court in the division in which the county is situated from which the removal is made; and the time within which the removal shall be perfected, in so far as it refers to or is regulated by the terms of the United States courts, shall be deemed to refer to the terms of the United States district court in such division. Sec. 54. In suits of a local nature, where the defendant resides in a dif- ferent district, in the same State, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the district in which he resides. Sec. 55. Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same State, may be brouglit in the district court of either district; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject- matter were wholly within the district for which such court is consti- tuted. Sec. 56. Where in any suit in which a receiver shall be appointed the land or other property of a fixed character, the subject of the suit, lies within different States in the same judicial circuit, the receiver so ap- pointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and control over all the property, the sub- ject of the suit, lying or being within such circuit; subject, however, to the disapproval of such order, within thirty days thereafter, by the 906 APPENDIX. circuit court of appeals for such circuit, or by a circuit judge thereof, after reasonable notice to adverse parties and an opportunity to be heard upon the motion for such disapproval; and subject, also, to the filing and entering in the district court for each district of the circuit in which any portion of the property may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The dis- approval of such appointment within such thirty days, or the failure to file such certified copy of the bill and order of appointment within ten days, as herein required, shall divest such receiver of jurisdiction over all such property except that portion thereof lying or being within the State in which the suit is brought. In any case coming within the provisions of this section, in which a receiver shall be appointed, process may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district; hut orders affecting such property shall be entered of record in each district in which the property affected may lie or be. Sec. 57. When in any suit commenced in any district court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or foimd within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defend- ant or defendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a, week for six consecutive weeks. In case such absent defendant shall not appear, plead, answer, or de- mur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the directions con- tained in the same, it shall be lawful for the court to entertain juris- diction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the prop- erty which shall have been the subject of the suit and under the juris- diction of the court therein, within such district; and when a part of the said real or personal property against which such proceedings shall be talcen shall be within another district, but within the same State, such suit may be brought in either district in said State: Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting APPENDIX. 907 aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law. Sec. 58. Any ciyil cause, at law or in equity, may, on written stipula- tion of the parties or of their attorneys of record signed and filed with the papers in the ease, in vacation or in term, and on the written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term, be transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause shall be ordered to be transferred to a, court in any other division, it shall be the duty of the clerk of the court from which the transfer is made to carefully transmit to the clerk of the court to which the transfer is made the entire file of papers in the cause and all documents and deposits in his court pertaining thereto, together with a certified transcript of the records of all orders, interlocu- tory decrees, or other entries in the cause; and he shall certify, luider the seal of the court, that the papers sent are all which are on file in said court belonging to the cause; for the performance of which duties said clerk so transmitting and certifying shall receive the same fees as are now allowed by law for similar services, to be taxed in the bill of costs, and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth constitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and original papers shall file the same and the case shall then proceed to final disposition as other cases of em district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bastrop, Blanco, Burle- son, Burnet, Caldwell, Gillespie, Hays, Kimble, Lampasas, Lee, Llano, Mason, IXcCulloch, San Saba, Travis, Washington, and Williamson, which shall constitute the Austin division; also the territory embraced on the date last mentioned in the counties of Atascosa, Bandera, Bexar, Comal, Dimmit, Edwards, Frio, Gonzales, Guadalupe, Karnes, Kendall, Kerr, Jledina, and Wilson, which shall constitute the San Antonio division; also the territory embraced on the date last mentioned in the counties of Brewster, Crane, Ector. El Paso, Jeflf Davis, Loving, Reeves, Presidio, Ward, and Winkler, which shall constitute the El Paso division; also the territory embraced on the date last mentioned in the counties of Bell, Bosque, Coryell, Falls, Hamilton, Freestone, Hill, Leon, Limestone, Mc- Lennan, ililam, Robertson, and Somervell, which shall constitute the Waco division; also the territory embraced on the date last mentioned in the counties of Kinney, Maverick, Pecos, Terrell, Uvalde, Valverde, and Zavalla, which shall constitute the Del Rio division. Terms of the district court for the Austin division shall be held at Austin on the fourth ilonday in January and the second Monday in June; for the Waco divi- sion, at Waco on the fourth Monday in February and the second Monday in November; for the San Antonio division, at San Antonio on the first Monday in May and the third Monday in December; for the El Paso division, at El Paso on the first Monday in April and the first Monday in October; and for the Del Rio division, at Del Rio on the third Monday in March and the fourth Monday in October. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Austin, at El Paso, and at Del Rio, which shall be kept open at all times for the transaction of business. The southern district shall include the territory embraced on the first of July, nineteen hundred and ten, in the counties of Duval, La Salle, McMullen, Nueces, Webb, and Zapata, which shall constitute the Laredo division; also the territory embraced on the date last mentioned in the counties of Cameron, Hidalgo, and Starr, which shall constitute the Brownsville division; also the territory embraced on the date last mentioned in the counties of Austin, Brazoria, Chambers, Galveston, Fort Bend, Matagorda, and Wharton, which shall constitute the Galveston division; also the territory embraced on the date last men- tioned, in the counties of Brazos, Colorado, Fayette, Grimes, Harris, La- vaca, Madison, Montgomery, Polk, San Jacinto, Trinity, Walker, and Waller, which shall constitute the Houston division; also the territory embraced on the date last mentioned, in the counties of Bee, Calhoun, Dewitt, Goliad, Jackson, Live Oak, Refugio, Aransas, San Patricio, and Victoria, which shall constitute the Victoria division. Terms of the dis- trict court for the Galveston division shall be held at Galveston on the second Monday in January and the first Monday in June; for the Houston division, at Houston on the fourth Mondays in February and Septem- ter; for the Laredo division, at Laredo on the third Monday in April and the second Monday in November; for the Brownsville division, at Brownsville on the second Monday in May and the first Monday in Decem- 936 APPENDIX. ber; and for the Victoria division, at Victoria on the first Monday in May and the fourth Monday in November. The clerk of the court for the southern district shall maintain an oflfice in charge of himself or a. deputy at each of the places now designated for holding court in said district. Sec. 109. The State of Utah shall constitute one judicial district, to be known as the district of Utah. It is divided into two divisions, to be known as the northern and central divisions. The northern division shall Include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bo.xelder, Cache, Davis, Morgan, Rich, and Weber. The central division shall include the territory embraced on the date last mentioned in the counties of Beaver, Carbon, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Piute, Salt Lake, San Juan, San Pete, Sevier, Summit, Tooele, Uinta, Utah, Wasatch, Washington, and Wayne. Terms of the district court for the northern division shall be held at Ogden on the second Mondays in March and September; and for the central division, at Salt Lake City on the second Mondays in April and November. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at each of the places where the court is now required to be held in the district. Sec. 110. The State of Vermont shall constitute one judicial district, to be known as the district of Vermont. Terms of the district court shall be held at Burlington on the fourth Tuesday in February; at Windsor on the third Tuesday in May; and at Rutland on the first Tuesday in October. In each year one of the stated terms of the district court may, when ad- journed, be adjourned to meet at Montpelier, and one at Newport. Sec. 111. The State of Virginia is divided into two districts, to be known as the eastern and western districts of Virginia. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Accomac, Alexandria, Amelia, Bruns- wick, Caroline, Charles City, Chesterfield, Culpeper, Dinwiddie, Elizabeth City, Essex, Fairfax, Fauquier, Gloucester, Goochland, Greensville, Han- over, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Loudoun, Louisa, Lunenburg, Mathews, Meck- lenburg, Middlesex, Nansemond, New Kent, Norfolk, Northampton, North- umberland, Nottoway, Orange, Powhatan, Prince Edward, Prince George, Prince William, Princess Anne, Richmond, Southampton, Spottsylvania, Stafford, Surry, Sussex, Warwick, Westmoreland, and York. Terms of the district court shall be held at Richmond on the first Mondays in April and October; at Norfolk on the first Mondays in May and Novem- ber; and at Alexandria on the first Mondays in January and July. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alleghany, Albemarle, Amherst, Appomattox, Augusta, Bath, Bedford, Bland, Bote- tourt, Buchanan, Buckingham, Campbell, Carroll, Charlotte, Clarke, Craio- Cumberland, Dickenson, Floyd, Fluvanna, Franklin, Frederick, Giles, Gray- son, Greene, Halifax, Henry, Highland, Lee, Madison, Montgomery, Nelson, Page, Patrick, Pulaski, Pittsylvania, Rappahannock, Roanoke, Rockbridge, Rockingham, Russell, Scott, Shenandoah, Smyth, Tazewell, Warren, Wash- APPEIS'DIX. 937 ington, Wise, and Wythe. Terms of the district court shall be held at Lynchburg on the Tuesdays after the second ilondays in March and Sep- tember; at Danville on the Tuesdays after the second Mondays in April and November; at Abingdon on the Tuesdays after the first Mondays in May and October; at Harrisonburg on the Tuesdays after the first Mondays in June and December; at Charlottesville on the second Monday in January and the first Monday in July; at Roanoke on the third Mon- day in February and the third Monday in June; and at Big Stone Gap on the fourth Monday in January and the second Monday in August. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Lynchburg, at Danville, at Charlottes- ville, at Roanoke, Abingdon, and at Big Stone Gap, which shall be kept open at all times for the transaction of the business of the court. Sec. 112. The State of Washington is divided into two districts, to be known as the eastern and western districts of Washington. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Spokane, Stevens, Ferry, Okanogan, Chelan, Grant, Douglas, Lincoln, and Adams, with the waters thereof, including all Indian reservations within said counties, which shall constitute the northern division; also the territory embraced on the date last mentioned in t'ae counties of Asotin, Garfield, Wliitman, Columbia, Franklin, Walla Walla, Benton, Klickitat, Kittitas, and Yakima, with the waters thereof, including all Indian reservations within said counties, which shall constitute the southern division of said district. Terms of the district court for the northern division shall be held at Spokane on the first Tuesdays in April and September; for the southern division, at Walla Walla on the first Tuesdays in June and December, and at North Yakima on the first Tuesdays in May and October. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Whatcom, Skagit, Snohomish, King, San Juan, Island, Kitsap, Clallam, and Jefferson, with the waters thereof, including all Indian reservations within said counties, which shall con- stitute the northern division; also the territory embraced on the date last mentioned in the counties of Pierce, Mason, Thurston, Chehalis, Pacific, Lewis, Wahkiakum, Cowlitz, Clarke, and Skamania, with the waters there- of, including all Indian reservations within said counties, which shall con- stitute the southern division of said district. Terms of the district court for the northern division shall be held at Bellingham on the first Tuesdays in April and October; at Seattle on the first Tuesdays in May and Novem- ber; and for the southern division, at Tacoma on the first Tuesdays in February and July. The clerks of the courts for the eastern and western districts shall maintain an office in charge of himself or a deputy at each place in their respective districts where terms of court are now required to be held. Sec. 113. The State of West Virginia is divided into two districts, to be known as the northern and southern districts of West Virginia, The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Hancock, Brooke, 938 APPENDIX. Ohio, Marshall, Tyler, Pleasants, Wood, Wirt, Ritchie, Doddridge, VS'etzol. Monongalia, Marion, Harrison, Lewis, Gilmer, Calhoun, Upshur, Barljour, Taylor, Preston, Tucker, Randolph, Pendleton, Hardy, Grant, Mineral, Hampshire, Morgan, Berkeley, and Jefferson, with the waters thereof. Terms of the district court for the northern district shall be held at jNIartinsburg, the first Tuesday of April and the third Tuesday of Sep- tember; at Clarksburg, the second Tuesday of April and the first Tues- day of October; at Wheeling the first Tuesday of May and the third Tues- day of October; at Philippi, the fourth Tuesday of May and the first Tuesday of November; at Parkersburg, the second Tuesday of January and the second Tuesday of June : Provided, That a, place for holding court at Philippi shall be furnished the Government free of cost by Barbour County until other provision is made therefor by law. The southern dis- trict shall include the territory embraced on the first day of July, nine- teen hundred and ten, in the counties of Jackson, Roane, Clay, Braxton, Webster, Nicholas, Pocahontas, Greenbrier, Fayette, Boone, Kanawha, Put- nam, Mason, Cabell, Wayne, Lincoln, Logan, Mingo, Raleigh, W^yoming, McDowell, Mercer, Summers, and Monroe, with the waters thereof. Terms of the district court for the southern district shall be held at Charleston on the first Tuesday in June and the third Tuesday in November; at Huntington, on the first Tuesday in April and the first Tuesday after the third Monday in September; at Bluefield on the first Tuesday in May and the third Tuesday in October; at Addison on the first Monday in September; and at Lewisburg on the second Tuesday in February: Pro- vided, That accommodations for holding court at Addison shall be fur- nished without cost to the United States. Sec. 114. The State of Wisconsin is divided into two districts, to be known as the eastern and western districts of Wisconsin. The eastern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Brown, Calumet, Dodge, Door, Flor- ence, Fond du Lac, Forest, Green Lake, Kenosha, Kewaunee, Langlade, Manitowoc, Marinette, Marquette, Milwaukee, Oconto, Outagamie, Ozaukee, Racine, Shawano, Sheboygan, Walworth, Washington, Waukesha, Wau- paca, Waushara, and Winnebago. Terms of the district court for said district shall be held at Milwaukee on the first Mondays in January and October; at Oshkosh on the second Tuesday in June; and at Green Bay on the first Tuesday in April. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Ashland, Barron, Bayfield, Buffalo, Burnett, Chip- pewa, Clark, Columbia, Crawford, Dane, Dunn, Douglas, Eau Claire, Grant, Green, Iowa, Iron, Jackson, Jefferson, Juneau, La Crosse, La- fayette, Lincoln, Marathon, Monroe, Oneida, Pepin, Pierce, Polk, Port- age, Price, Richland, Rock, Rusk, Saint Croix, Sauk, Sawyer, Taylor, Trempealeau, Vernon, Vilas, Washburn, and Wood. Terms of the dis- trict court for said district shall be held at Madison on the first Tues- day in December; at Eau Claire on the first Tuesday in June; at La Crosse on the third Tuesday in September; and at Superior on the fourth Tuesday in January and the second Tuesday in July. The district court APPENDIX. 939 for each of said districts sliall be open at all times for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction, so far as the same can be done without a jury. The clerk of the court for the western district shall maintain an office in charge of himself or ii deputy at Madison, at La Crosse, and at Superior, which shall be kept open at all times for the transaction of the business of the court. The marshal for the western district shall appoint a deputy marshal who shall reside and keep his office at Superior. All writs and other process, except criminal warrants, issued at Superior, may be made re- turnable at Superior; and the clerk at that place shall keep in his office the original records of all actions, prosecutions, and special proceedings so commenced and pending therein. Criminal warrants may be re- turned at any place within the district where court is held. Whenever warrants issued at Superior shall be returned at any other place, the clerk of the court wherein the warrant is returned, shall certify the same, under the seal of the court, together with the plea and other proceedings had thereon, and the determination of the court upon such plea or pro- ceedings, with all papers or orders filed in reference thereto, to the clerk of the court at Superior; and the clerk at Superior shall enter upon his records a minute of the proceedings had upon the return of said warrant, certified as aforesaid. All causes and proceedings insti- tuted in the court at Superior, shall be tried therein, unless by consent of the parties, or upon the order of the court, they are transferred to another place for trial. Sec. 115. The State of Wyoming and the Yellowstone National Park shall constitute one judicial district, to be known as the district of Wyoming. Terms of the district court for said district shall be held at Cheyenne on the second Mondays in May and November; at Evanston on the second Tuesday in July; and at Lander on the first Monday in October; and the said court shall hold one session annually at Sheri- dan, and in said national park, on such dates as the court may order. The marshal and clerk of the said court shall each, respectively, ap- point at least one deputy to reside at Evanston, and one to reside at Lander, unless he himself shall reside there, and shall also maintain an office at each of those places: Provided, That until a public building is provided at Lander, suitable accommodations for holding court in said town shall be furnished the Government at an expense not to exceed three hundred dollars annually. The marshal of the United States for the said district may appoint one or more deputy marshals for the Yellowstone National Park, who shall reside in said park. 940 APPENDIX. CHAPTER SIX. CIKCtllT COTJETS OF APPEALS. Sec. 110. Circuits. 117. Circuit courts of appeals. 118. Circuit judges. 119. Allotment of justices to the cir- cuits. 120. Chief justice and associate jus- tices of Supreme Court, and district judges, may sit in cir- cuit court of appeals. 121. Justices, allotted to circuits, how designated. 122. Seals, forms of process, and rules. 123. Marshals. 124. Clerks. 125. Deputy clerks; appointment and removal. 126. Terms. 127. Rooms for court, how provided. 128. Jurisdiction; when judgment final. Sec. 129. Appeals in proceedings for in- junctions and receivers. 130. Appellate and supervisory ju- risdiction under the bankrupt act. 131. Appeals from the United States court for China. 132. Allowance of appeals, etc. 133. Writs of error and appeals from the supreme courts of Arizona and New Mexico. 134. Writs of error and appeals from district court for Alaska to circuit court of appeals for ninth circuit; court may cer- tify question to the Supreme Court. 135. Appeals and writs of error from Alaska; where heard. Sec. 116. There shall be nine judicial circuits of the United States, constituted as follows: First. The first circuit shall include the districts of Rhode Island, Massachusetts, New Hampshire, and Maine. Second. The second circuit shall include the districts of Vermont, Connecticut, and New York. Third. The third circuit shall include the districts of Pennsylvania, New Jersey, and Delaware. Fourth. The fourth circuit shall include the districts of Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Fifth. The fifth circuit shall include the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. Sixth. The sixth circuit shall include the districts of Ohio, Michigan, Kentucky, and Tennessee. Seventh. The seventh circuit shall include the districts of Indiana, Illinois, and Wisconsin. Eighth. Thb eighth circuit shall include the districts of Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, Colorado, Wyoming, North Dakota, South Dakota, Utah and Oklahoma. Ninth. The ninth circuit shall include the districts of California, Oregon, Nevada, Washington, Idaho, Montana, and Hawaii. Sec. 117. There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record, with appellate jurisdic- tion as hereinafter limited and established. APPENDIX. 9il Sec. 118. There shall be in the second, seventh, and eighth circuits, respectively, four circuit judges, in the fourth circuit, two circuit judges, and in each of the other circuits, tliree circuit judges, to be appointed by tlie President, by and with the advice and consent of the Senate. They shall be entitled to receive a. salary at the rate of seven thousand dollars a year, each, payable monthly. Each circuit judge shall reside within his circuit. Sec. 119. The Chief Justice and associate justices of the Supreme Court shall be allotted among the circuits by an order of the court, and a. new allotment shall be made whenever it becomes necessary or con- venient by reason of the alteration of any circuit, or of the new ap- pointment of a Chief Justice or associate justice, or otherwise. If a new allotment becomes necessary at any other time than during a term, it shall be made by the Chief Justice, and shall be binding until the next term and until a. new allotment by the court. Whenever, by reason of death or resignation, no justice is allotted to a. circuit, the Chief Justice may, until a justice is regularly allotted thereto, temporarily assign a justice of another circuit to such circuit. Sec. 120. The Chief Justice and the associate justices of the Supreme Court assigned to each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits. In case the Chief Justice or an associate justice of the Supreme Court shall attend at any session of the circuit court of appeals, he shall preside. In the absence of such Chief Justice, or associate justice, the circuit judges in attendance upon the court shall preside in the order of the seniority of their respective commissions. In case the full court at any time shall not be made up by the attend- ance of the Chief Justice or the associate justice, and the circuit judges, one or more district judges within the circuit shall sit in the court ac- cording to such order or provision among the district judges as either by general or particular assignment shall be designated by the court: Provided, That no judge before whom a, cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of ap- peals. Sec. 121. The words "circuit justice" and "justice of a circuit," when used in this title, shall be understood to designate the justice of the Supreme Court who is allotted to any circuit; but the word "judge," when applied generally to any circuit, shall be understood to include such justice. Sec. 122. Each of said circuit courts of appeals shall prescribe the form and style of its seal, and the form of writs and other process and pro- cedure as may be conformable to the exercise of its jurisdiction; and shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law. Sec. 123. The United States marshals in and for the several districts of said courts shall be the marshals of said circuit courts of appeals, and shall exercise the same powers and perform the same duties, under 942 APPENDIX. the regulations of the court, as are exercised and performed by the mar- shal of the Supreme Court of the United States, so far as the same may be applicable. Sec. 124. Each court shall appoint a clerk, who shall exercise the same powers and perform the same duties in regard to all matters within its jurisdiction, as are exercised and performed by the clerk of the Supreme Court, so far as the same may be applicable. Sec. 125. The clerk of the circuit court of appeals for each circuit may, with the approval of the court, appoint such number of deputy clerks as the court may deem necessary. Such deputies may be re- moved at the pleasure of the clerk appointing them, with the approval of the court. In case of the death of the clerk his deputy or deputies shall, unless removed by the court, continue in office and perform the duties of the clerk in his name until a clerk is appointed and has qualified; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable, and his executor or administrator shall have such remedy for such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. Sec. 126. A term shall be held annually by the circuit courts of appeals in the several judicial circuits at the following places, and at such times as may be fixed by said courts, respectively: In the first circuit, in Boston; in the second circuit, in New York; in the third circuit, in Philadelphia; in the fourth circuit, in Richmond; in the fifth circuit, in New Orleans, Atlanta, Fort Worth, and Montgomery; in the sixth circuit, in Cincinnati; in the seventh circuit, in Chicago; in the eighth circuit, in Saint Louis, Denver, or Cheyenne, and Saint Paul; in the ninth circuit, in San Francisco, and each year in two other places in said circuit to be designated by the judges of said court; and in each of the above circuits, terms may be held at such other times and in such other places as said courts, respectively, may from time to time designate: Provided, That terms shall be held in Atlanta on the first Monday in October, in Fort Worth on the first Monday in November, in Montgomery on the third Monday in October, in Denver or in Cheyenne on the first Monday in September, and in Saint Paul on the first Monday in May. All appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the dis- trict courts of the United States in the State of Georgia, in the State of Texas, and in the State of Alabama, to the circuit court of appeals for the fifth judicial circuit shall be heard and disposed of, respectively, by said court at the terms held in Atlanta, in Fort Worth, and in Montgomery, except that appeals or writs of error in cases of injunctions and in all other cases which, under the statutes and rules, or in the opinion of the court, are entitled to be brought to a speedy hearincr may be heard and disposed of wherever said court may be sitting. All appeals, writs of errors, and other appellate proceedings which may hereafter be taken or prosecuted from the district court of the United APPENDIX. 943 States at Beaumont, Texas, to the circuit court of appeals for the fifth circuit, shall be heard and disposed of by the said circuit court of ap- peals at the terms of court held at New Orleans: Provided, That nothing herein shall prevent the court from hearing appeals or writs of error wherever the said court shall sit, in eases of injunctions and in all other cases which, under the statutes and the rules, or in the opinion of the court, are entitled to be brought to a speedy hearing. All ap- peals, writs of error, and other appellate proceedings which may be taken or prosecuted from the district courts of the United States in the States of Colorado, Utah, and Wyoming, and the supreme court of the Territory of New Jlexico to the circuit court of appeals for the eighth judicial circuit, shall be heard and disposed of by said court at the terms held either in Denver or in Cheyenne, except that any case arising in any of said States or Territory may, by consent of all the parties, be heard and disposed of at a, term of said court other than the one held in Denver or Cheyenne. Sec. 127. The marshals for the several districts in which said cirucit courts of appeals may be held shall, under the direction of the Attorney General, and with his approval, provide such rooms in the public build- ings of the United States as may be necessary for the business of said courts, and pay all incidental expenses of said court, including criers, bailiffs, and messengers: Provided, That in case proper rooms can not be provided in such buildings, then the marshals, with the approval of the Attorney General, may, from time to time, lease such rooms as may be necessary for such courts. Sec. 128. The circuit courts of appeals shall exercise appellate juris- diction to review by appeal or writ of error final decisions in the dis- trict courts, including the United States district court for Hawaii, in all eases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in section two hundred and thirty-eight, unless otherwise provided by law; and, except as provided in sections two hundred and thirty-nine and two hundred and forty, the judgments and decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States, or citizens of different States; also in all cases arising under the patent laws, under the copyright laws, under the reve- nue laws, and under the criminal laws, and in admiralty cases. Sec. 129. Where upon a, hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an applica- tion to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve, an injunction, or appointing a re- ceiver, to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal 944 APPENDIX. must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal: Provided, however. That the court below may, in its discretion, require as a condition of the appeal an additional bond. Sec. 130. The circuit courts of appeals shall have the appellate and supervisory jurisdiction conferred upon them by the Act entitled "An Act to establish a uniform system of bankruptcy throughout the United States,'' approved July first, eighteen hundred and ninety-eight, and all laws amendatory thereof, and shall exercise the same in the manner therein prescribed. Sec. 131. The circuit court of appeals for the ninth circuit is em- powered to hear and determine writs of error and appeals from the United States court for China, as provided in the Act entitled "An Act creating a United States court for China and prescribing the juris- diction thereof," approved June thirtieth, nineteen hundred and six. Sec. 132. Any judge of a circuit court of appeals, in respect of cases brought or to be brought before that court, shall have the same powers and duties as to allowances of appeals and writs of error, and the conditions of such allowances, as by law belong to the justices or judges in respect of other courts of the United States, respectively. Sec. 133. The circuit courts of appeals, in cases in which their judg- ments and decrees are made final by this title, shall have appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the supreme courts of Arizona and New Mexico, as by this title they may have to review the judgments, orders, and decrees of the district courts; and for that purpose said Territories shall, by orders of the Supreme Court of the United States, to be made from time to time, be assigned to particular circuits. See. 134. In all cases other than those in which a writ of error or appeal will lie direct to the Supreme Court of the United States as provided in section two hundred and forty-seven, in which the amount involved or the value of the subject-matter in controversy shall exceed five hundred dollars, and in all criminal cases, writs of error and appeals shall lie from the district court for Alaska or from any division thereof, to the circuit court of appeals for the ninth circuit, and the judgments, orders, and decrees of said court shall be final in all such cases. But whenever such circuit court of appeals may desire the instruction of the Supreme Court of the United States upon any question or proposition of law which shall have arisen in any such case, the court may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court shall give its instruction upon the question or proposi- tion certified to it, and its instructions shall be binding upon the circuit court of appeals. Sec. 135. All appeals, and writs of error, and other cases, coming from the district court for the district of Alaska to the circuit court of a'ppeals APPENDIX. 945 for the ninth circuit, shall be entered upon the docket and heard at San Francisco, California, or at Portland, Oregon, or at Seattle, Washington, as the trial court before whom the case was tried below shall fix and determine: Provided, That at any time before the hearing of any ap- peal, writ of error, or other case, the parties thereto, through their re- spective attorneys, may stipulate at which of the above-named places the same shall be heard, in which case the case shall be remitted to and entered upon the docket at the place so stipulated and shall be heard there. CHAPTER SEVEN. THE COUET OF CLAIMS. Sec. 136. Appointment, oath, and salary of judges. 137. Seal. 138. Session; quorum. 139. Officers of the court. 140. Salaries of officers. 141. Clerk's bond. 142. Contingent fund. 143. Reports to Congress; copies for departments, etc. 144. Members of Congress not to practice in the court. 145. Jurisdiction. Par. 1. Claims against the United States. 2. Set-ofiFs. 3. Disbursing officers. 146. Judgments for set-off or coun- ter-claims; how enforced. 147. Decree on accounts of disburs- ing officers. 148. Claims referred by depart- ments. 149. Procedure in cases transmitted by departments. 150. Judgments in cases transmit- ted by departments; how paid. 151. Either House of Congress may refer certain claims to court. 152. Costs may be allowed prevail- ing party. 153. Claims growing out of treaties not cognizable therein. 154. Claims pending in other courts. 155. Aliens. 156. All claims to be filled within six years; exceptions. 157. Rules of practice; may punish contempts. S. Bq.— 60. 158. Oaths and acknowledgments. 159. Petitions and verification. 160. Petition dismissed, when. 161. Burden of proof and evidence as to loyalty. 162. Claims for proceeds arising from sales of abandoned prop- erty. 163. Commissioners to take testi- mony. 164. Power to call upon departments for information. 165. When testimony not to be tak- en. 166. Examination of claimant. 167. Testimony; where taken. 168. Witnesses before commission- ers. 169. Cross-examinations. 170. Witnesses; how sworn. 171. Eees of commissioners, by whom paid. 172. Claims forfeited for fraud. 173. Claims under act of June 10, 1874. 174. New trial on motion of claim- ant. 175. New trial on motion of United States. 176. Cost of printing record. 177. No interest on claims. 178. Effect of payment of judgment. 179. Final judgments a bar. 180. Debtors to the United States may have amount due ascer- tained. 181. Appeals. 182. Appeals in Indian cases. 946 APPENDIX. Sec. 183. Attorney General's report to Congress. 184. Loyalty a jurisdictional fact in certain cases. 185. Attorney General to appear for the defense. Sec. 186. Persons not to be excluded as witnesses on account of col- or or because of interest; plaintiff may be witness for Government. 187. Reports of court to Congress. Sec. 136. The Court of Claims, established by the Act of February twenty-fourth, eighteen hundred and fifty-five, shall be continued. It shall consist of a chief justice and four judges, who shall be appointed by the President, by and with the advice and consent of the Senate, and hold their offices during good behavior. Each of them shall take an oath to support the Constitution of the United States, and to dis- charge faithfully the duties of his office. The chief justice shall be en- titled to receive an annual salary of six thousand five hundred dollars, and each of the other judges an annual salary of six thousand dollars, payable monthly, from the Treasury. Sec. 137. The Court of Claims shall have a seal, with such device as it may order. Sec. 138. The Court of Claims shall hold one annual session at the city of Washington, beginning on the first Monday in December and continuing as long as may be necessary for the prompt disposition of the business of the court. Any three of the judges of said court shall constitute a quorum, and may hold a court for the transaction of busi- ness: Provided, That the concurrence of three judges shall be necessary to the decision of any case. Sec. 139. The said court shall appoint a chief clerk, an assistant clerk, if deemed necessary, a bailiff, and a chief messenger. The clerks shall take an oath for the faithful discharge of their duties, and shall be under the direction of the court in the performance thereof; and for misconduct or incapacity they may be removed by it from office; but the court shall report such removals, with the cause thereof, to Con- gress, if in session, or if not, at the next session. The bailiff shall hold his office for a term of four years, unless sooner removed by the court for cause. Sec. 140. The salary of the chief clerk shall be three thousand five hundred dollars a year; of the assistant clerk two thousand five hundred dollars a year; of the bailiff one thousand five hundred dollars a year, and of the chief messenger one thousand dollars a year, payable monthly from the Treasury. Sec. 141. The chief clerk shall give bond to the United States in such amount, in such form, and with such security as shall be approved by the Secretary of the Treasury.. Sec. 142. The said clerk shall have authority when he has given bond as provided in the preceding section, to disburse, under the direction of the court, the contingent fund which may from time to time be appro- priated for its use; and his accounts shall be settled by the proper accounting officers of the Treasury in the same way as the accounts of other disbursing agents of the Government are settled. APPENDIX. 947 Sec. 143. On the first day of every regular session of Congress, the clerk of the Court of Claims shall transmit to Congress a full and com- plete statement of all the judgments rendered by the court during the previous year, stating the amounts thereof and the parties in whose favor they were rendered, together with a brief synopsis of the nature of the claims upon which they were rendered. At the end of every term of the court he shall transmit a copy of its decisions to the heads of departments; to the Solicitor, the Comptroller, and the Auditors of the Treasury; to the Commissioner of the General Land Office and of Indian Aifairs; to the chiefs of bureaus, and to other officers charged with the adjustment of claims against the United States. Sec. 144. Whoever, being elected or appointed a Senator, Member of, or Delegate to Congress, or a Resident Commissioner, shall, after his election or appointment, and either before or after he has qualified, and during his continuance in office, practice in the Court of Claims, shall be fined not more than ten thousand dollars and imprisoned not more than two years; and shall, moreover, thereafter be incapable of holding any office of honor, trust, or profit under the Government of the United States. Sec. 145. The Court of Claims shall have jurisdiction to hear and determine the following matters: First. All claims (except for pensions) founded upon the Constitu- tion of the United States or any law of Congress, upon any regulation of an Executive Department, upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would he entitled to redress against the United States either in a, court of law, equity, or admiralty if the United States were suable: Provided, however. That nothing in this section shall be con- strued as giving to the said court jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as "war claims," or to hear and determine other claims which, prior to March third, eighteen hundred and eighty-seven, had been rejected or reported on adversely by any court, department, or commission author- ized to hear and determine the same. Second. All set-offs, counterclaims, claims for damages, whether liqui- dated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, That no suit against the Gov- ernment of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed under this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the proper accounting officer of the Treasury fails to act finally thereon within six months after the account is received in said office. Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of 948 APPENDIX. loss by capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such offi- cer was and is held responsible. Sec. 146. Upon the trial of any cause in which any set-off, counter- claim, claim for damages, or other demand is set up on the part of the Government against any person making claim against the Government in said court, the court shall hear and determine such claim or demand both for and against the 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 effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk's oflice of any district court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such court are enforced. See. 147. Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other disbursing oflScer, 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. Sec. 148. When any claim or matter is pending in any of the executive departments which involves controverted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, documents, and proofs pertaining thereto, to the Court of Claims and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall report its findings to the department by which it was transmitted for its guidance and action: Provided, however, That if it shall have been transmitted with the consent of the claimant, or if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter it has jurisdiction to render judgment or decree thereon, it shall pro- ceed to do so, in the latter case giving to either party such further opportunity for hearing as in its judgment justice shall require, and shall report its findings therein to the department by which the same was re- ferred to said court. The Secretary of the Treasury may, upon the cer- tificate of any auditor, or of the Comptroller of the Treasury, direct any claim or matter, of which, by reason of the subject matter or character, the said court might under existing laws, take jurisdiction on the volun- tary action of the claimant, to be transmitted, with all the vouchers, papers, documents and proofs pertaining thereto, to the said court for trial and adjudication. Sec. 149. All cases transmitted by the head of any department, or upon the certificate of any auditor, or of the Comptroller of the Treasury, according to the provisions of the preceding section, shall be proceeded APPENDIX. 949 in as other cases pending in the Court of Claims, and shall, in all re- spects, be subject to the same rules and regulations. See. 150. The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the Court of Claims under the two preceding sections, shall be paid out of any specific appropria- tion applicable to the case, if any such there be; and where no such ap- propriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court. Sec. 151. Whenever any bill, except for a pension, is pending in either House of Congress providing for the payment of a claim against the United States, legal or equitable, or for a grant, gift, or bounty to any person, the House in which such bill is pending may, for the investiga- tion and determination of facts, refer the same to the Court of Claims, which shall proceed with the same in accordance with such rules as it may adopt and report to such House the facts in the case and the amount, where the same can be liquidated, including any facts bearing upon the question whether there has been delay or laches in presenting such claim or applying for such grant, gift, or bounty, and any facts bearing upon the question whether the bar of any statute of limitations should be removed or which shall be claimed to excuse the claimant for not having resorted to any established legal remedy, together with such conclusions as shall be sufficient to inform Congress of the nature and character of the demand, either as a claim, legal or equitable, or as a gratuity against the United States, and the amount, if any, legally or equitably due from the United States to the claimant: Provided, how- ever, That if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chap- ter, the subject matter of the bill is such that it has jurisdiction to ren- der judgment or decree thereon, it shall proceed to do so, giving to either party such further opportunity for hearing as in its judgment justice shall require, and it shall report its proceedings therein to the House of Congress by which the same was referred to said court. Sec. 152. If the Government of the United States shall put in issue the right of the plaintiff to recover, the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue. Such costs, however, shall include only what is actually incurred for witnesses, and for summoning the same, and fees paid to the clerk of the court. See. 153. The jurisdiction of the said court shall not extend to any claim against the Government not pending therein on December first, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign nations or with the Indian tribes. Sec. 154. No person shall file or prosecute in the Court of Claims, or in the Supreme Court an appeal therefrom, any claim for or in re- spect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto. 950 APPENDIX. acting or professing to act, mediately or immediately, under the author- ity of the United States. Sec. 155. Aliens who are citizens or subjects of any government which accords to citizens pf the United States the right to prosecute claims against such government in its courts, shall have the privilege of prose- cuting claims against the United States in tlie Court of Claims, whereof such court, by reason of their subject matter and character, might take jurisdiction. Sec. 156. Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives, as provided by law, within six years after the claim first accrues: Pro- vided, That the claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minor- ity, 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. Sec. 157. The said court shall have power to establish rules for its government and for the regulation of practice therein, and it may pun- ish for contempt in the manner prescribed by the common law, may appoint commissioners, and may exercise such powers are are necessary to carry into efl'ect the powers granted to it by law. Sec. 158. The judges and clerks of said court may administer oaths and affirmations, taking acknowledgments of instruments in writing, and give certificates of the same. Sec. 159. The claimant shall in all cases fully set forth in his peti- tion the claim, the action thereon in Congress or by any of the depart- ments, if such action has been had, what persons are owners thereof or interested therein, when and upon what consideration such persons became so interested; that no assignment or transfer of said claim or oi any part thereof or interest therein 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 allowing all just credits and off- sets; that the claimant and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to the Government of the United States, and, whether a ci-tizen or not, has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government, and that he believes the facts as stated in the said petition to be true. The said petition shall be verified by the affidavit of the claimant, his agent or attorney. Sec. 160. The said allegations as to true allegiance and voluntary aiding, abetting, or giving encouragement to rebellion against the Gov- ernment may be traversed by the Government, and if on the trial such APPENDIX. 951 issues shall be decided against the claimant, his petition shall be dis- missed. Sec. 161. Whenever it is material in any claim to ascertain whether any person did or did not give any aid or comfort to forces or government of the late Confederate States during the Civil War, the claimant as- serting the loyalty of any such person to the United States during such Civil War shall be required to prove affirmatively that such person did, during said Civil War, consistently adhere to the United States and did give no aid or comfort to persons engaged in said Confederate service in said Civil War. Sec. 162. The Court of Claims shall have jurisdiction to hear and de- termine the claims of those whose property was taken subsequent to June the first, eighteen hundred and sixty-five, under the provisions of the Act of Congress approved March twelfth, eighteen hundred and sixty- three, entitled "An Act to provide for the collection of abandoned prop- erty and for the prevention of frauds in insurrectionary districts within the United States," and Acts amendatory thereof where the property so taken was sold and the net proceeds thereof was placed in the Treasury of the United States; and the Secretary of the Treasury shall return said net proceeds to the owners thereof, on the judgment of said court, and full jurisdiction is given to said court to adjudge said claims, any statutes of limitations to the contrary notwithstanding. Sec. 163. The Court of Claims shall have power to appoint commis- sioners to take testimony to be used in the investigation of claims which come before it, to prescribe the fees which they shall receive for their services, and to issue commissions for the taking of such tes- timony, whether taken at the instance of the claimant or of the United States. Sec. 164. The said court shall have power to call upon any of the departments for any information or papers it may deem necessary, and shall have the use of all recorded and printed records made by the committees of each House of Congress, when deemed necessary in the prosecution of its business. But the head of any department may refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injurious to the public interest. Sec. 165. When it appears to the court in any case that the facts set forth in the petition of the claimant do not furnish any ground for relief, it shall not authorize the taking of any testimony therein. Sec. 166. The court may, at the instance of the attorney or solicitor appearing in behalf of the United States, make an order in any case pending therein, 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 the said commissioner, and be returned to and filed in the court, and may, at the discretion of the attorney or solicitor of the United 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, 952 APPENDIX. 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 dis- cretion, 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. Sec. 167. The testimony in cases pending before the Court of Claims shall be taken in the county where the witness resides, when the same can be conveniently done. Sec. 168. The Court of Claims may issue subpoenas to require the attendance of witnesses in order to be examined before any person com- missioned to take testimony therein. Such subpoenas shall have the same force as if issued from a district court, and compliance there- with shall be compelled under such rules and orders as the court shall establish. Sec. 169. In taking testimony to be used in support of any claim, opportunity shall be given to the United States to file interrogatories, or by attorney to examine witnesses, under such regulations as said court shall prescribe; and like opportunity shall be aflforded the claim- ant, in cases where testimony is taken on behalf of the United States, under like regulations. Sec. 170. The commissioner taking testimony to be used in the Court of Claims shall administer an oath or aflBrmation to the witness brought before him for examination. Sec. 171. When testimony is taken for the claimant, the fees of the commissioner before whom it is taken, and the cost of the commission and notice, shall be paid by such claimant; and when it is taken at the instance of the Government, such fees shall be paid out of the con- tingent fund provided for the Court of Claims, or other appropriation made by Congress for that purpose. See. 172. Any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, estab- lishment, or allowance of any claim or of any part of any claim against the United States shall, ipso facto, forfeit the same to the Govern- ment; and it shall be the duty of the Court of Claims, in such cases, to find specifically that such fraud was practiced or attempted to be practiced, and thereuj.on to give judgment that such claim is forfeited to the Government, and that the claimant be forever barred from prose- cuting the same. Sec. 173. No claim shall be allowed by the accounting ofiicers under the provisions of the Act of Congress approved June sixteenth, eighteen hundred and seventy-four, or by the Court of Claims, or by Congress, to any person where such claimant, or those under whom he claims, shall wilfully, knowingly, and with intent to defraud the United States, have claimed more than was justly due in respect of such claim, or presented any false evidence to Congress, or to any department or court, in support thereof. Sec. 174. When judgment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common APPENDIX. 953 law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial. Sec. 175. The Court of Claims, at any time while any claim is pend- ing 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 judg- ment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now pro- vided by law. Sec. 176. There shall be taxed against the losing party in each and every cause pending in the Court of Claims the cost of printing the rec- ord in such case, which shall be collected, except when the judgment is against the United States, by the clerk of said court and paid into the Treasury of the United States. Sec. 177. No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest. Sec 178. The payment of the amount due by any judgment of the Court of Claims, and of any interest thereon allowed by law, as pro- vided by law, shall be a full discharge to the United States of all claim and demand touching any of the matters involved in the contro- versy. Sec. 179. Any final judgment against the claimant on any claim prosecuted as provided in this chapter shall forever bar any further claim or demand against the United States arising out of the matters involved in the controversy. Sec. 180. Whenever any person shall present his petition to the Court of Claims alleging that he is or has been indebted to the United States as an officer or agent thereof, or by virtue of any contract therewith, or that he is the guarantor, or surety, or personal representative of any officer or agent or contractor so indebted, or that he or the person for whom he is such surety, guarantor, or personal representative has heM any office or agency under the United States, or entered into any contract therewith, under which it may be or has been claimed that an indebtedness to the United States had arisen and exists, and that he or the person he represents has applied to the proper department of the Government requesting that the account of such office, agency, or indebtedness may be adjusted and settled, and that three years have elapsed from the date of such application, and said account still remains unsettled and unadjusted, and that no suit upon the same has been brought by the United States, said court shall, due notice first being given to the head of said department and to the Attorney General of the United States, proceed to hear the parties and to ascertain the amount, if any, due the United States on said account. The Attorney General shall represent the United States at the hearing of said cause. The court may postpone the same from time to time whenever . justice 954 APPENDIX. shall require. The judgment of said court or of the Supreme Court of the United States, to which an appeal shall lie, as in other cases, as to the amount due, shall be binding and conclusive upon the parties. The payment of such amount so found due by the court shall discharge such obligation. An action shall accrue to the United States against such principal, or surety, or representative to recover the amount so found due, which may be brought at any time within three years after the final judgment of said court; and unless suit shall be brought within said time, such claim and the claim on the original indebtedness shall be forever barred. The provisions of section one hundred and sixty-six shall apply to cases under this section. Sec. 181. The plaintiff or the United States, in any suit brought under the provision of the section last preceding, shall have the same right of appeal as is conferred under sections two hundred and forty-two and two hundred and forty -three; and such right shall be exercised only within the time and in the manner therein prescribed. Sec. 182. In any case brought in the Court of Claims under any Act of Congress by which that court is authorized to render a judgment or decree against the United States, or against any Indian tribe or any Indians, or against any fund held in trust by the United States for any Indian tribe or for any Indians, the claimant, or the United States, or the tribe of Indians, or other party in interest shall have the same right of appeal as is conferred under sections two hundred and forty-two and two hundred and forty-three; and such right shall be exercised only within the time and in the manner therein prescribed. Sec. 183. The Attorney General shall report to Congress, at the begin- ning of eaeh regular session, the suits under section one hundred and eighty, in which a final judgment or decree has been rendered, giving the date of each and a statement of the costs taxed in each case. Sec. 184. In any case of a claim for supplies or stores taken by or fur- nished to any part of the military or naval forces of the United States for their use during the late Civil War, the petition shall aver that the person who furnished such supplies or stores, or from whom such sup- plies or stores were taken, did not give any aid or comfort to said rebel- lion, 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 per- son who furnished such supplies or stores, or from whom the same were taken as aforesaid, was loyal to the Government of the United States throughout said war, the court shall not have jurisdiction of such cause, and the same shall, without further proceedings, be dismissed. Sec. 185. The Attorney-General, or his assistants under his direction, shall appear for the defense and protection of the interests of the United States in all cases which may be transmitted to the Court of Claims under the provisions of this chapter, with the same power to interpose counter claims, offsets, defenses for fraud practiced or attempted to be practiced by claimants, and other defenses, in like manner as he is re- quired to defend the United States in said court. APPENDIX. 955 Sec. 186. No person shall be excluded as a witness in the Court of Claims on account of color, because he or she is a party to or interested in the cause or proceeding; and any plaintiff or party in interest may be examined as a witness on the part of the Government. Sec. 187. Reports of the Court of Claims to Congress, under sections one hundred and forty-eight and one hundred and fifty-one, if not finally acted upon during the session at which they are reported, shall be con- tinued from session to session and from Congress to Congress until the same shall be finally acted upon. CHAPTER EIGHT. THE COUBT OF CUSTOMS APPEALS. Sec. 188. Court of Customs Appeals; ap- pointment and salary of judg- es; quorum; circuit and dis- trict judges may act in place of judge disqualified, etc. 189. Court to be always open for business; terms may be held in any circuit; when expenses of judges to be paid. 190. Marshal of the court; appoint- ment, salary, and duties. 191. Clerk of the court; appoint- ment, salary, and duties. 192. Assistant clerk, stenographic clerks, and reporter; appoint- ment, salary, and duties. 193. Rooms for holding court to be provided; bailiffs and messen- gers. 194. To be a court of record; to pre- scribe form and style of seal, and establish rules and regu- lations; may afiirm, modify, or reverse and remand case, etc. Sec. 195. Final decisions of Board of General Appraisers to be re- viewed only by Customs Court. 196. Other courts deprived of juris- diction in customs cases; pending cases excepted. 197. Transfer to Customs Court of pending cases; completion of testimony. 198. Appeals from Board of General Appraisers ; time within which to be taken; record to be transmitted to Customs Court. 199. Records filed in Customs Court to be at once placed on cal- endar; calendar to be called every sixty days. Sec. 188. There shall be a United States Court of Customs Appeals, which shall consist of a presiding judge and four associate judges, each of whom shall be appointed by the President, by and with the advice and consent of the Senate, and shall receive a salary of seven thousand dol- lars a year. The presiding judge shall be so designated in the order of appointment and in the commission issued to him by the President; and the associate judges shall have precedence according to the date of their commissions. Any three members of said court shall constitute a quor- um, and the concurrence of three members shall he necessary to any deci- sion thereof. In case of a vacancy or of the temporary inability or dis- qualification, for any reason, of one or two of the judges of said court, the President may, upon the request of the presiding judge of said court, 956 APPENDIX. designate any qualified United States circuit or district judge or judges to act in liis or their place; and such circuit or district judges shall be duly qualified to so act. Sec. 189. The said Court of Customs Appeals shall always be open for the transaction of business, and sessions thereof may, in the discretion of the court, be held in the several judicial circuits, and at such places as said court may from time to time designate. Any judge who, in pur- suance of the provisions of this chapter, shall attend a session of said court at any place other than the city of Washington, shall be paid, upon his written and itemized certificate, by the marshal of the district in which the court shall be held, his actual and necessary expenses in- curred for travel and attendance, and the actual and necessary expenses of one stenographic clerk who may accompany him; and such payments shall be allowed the marshal in the settlement of his accounts with the United States. Sec. 390. Said court shall have the services of a marshal, with the same duties and powers, under the regulations of the court, as are now provided for the marshal of the Supreme Court of the United States, so far as the same may be applicable. Said services within the District of Colimibia shall be performed by a marshal to be appointed by and to hold office during the pleasure of the court, who shall receive a salary of three thousand dollars per annum. Said services outside of the District of Columbia shall be performed by the United States marshals in and for the districts where sessions of said court may be held; and to this end said marshals shall be the marshals of said court. The marshal of said court for the District of Columbia, is authorized to purchase, under the direction of the presiding judge, such books, periodicals, and sta- tionery, as may be necessary for the use of said court; and such expend- itures shall be allowed and paid by the Secretary of the Treasury upon claim duly made and approved by said presiding judge. Sec. 191. The court shall appoint a clerk, whose office shall be in the city of Washington, District of Columbia, and who shall perform and exercise the same duties and powers in regard to all matters within the jurisdiction of said court as are now exercised and performed by the clerk of the Supreme Court of the United States, so far as the same may be applicable. The salary of the clerk shall be three thousand five hundred dollars per annum, which sum shall be in full payment for all services rendered by such clerk; and all fees of any kind whatever, and all costs shall be by him turned into the United States Treasury. Said clerk shall not be appointed by the court or any judge thereof as H, commissioner, master, receiver, or referee. The costs and fees in the said court be fixed and established by said court in a table of fees to be adopted and approved by the Supreme Court of the United States within four months after the organization of said court: Provided, That the costs and fees so fixed shall not, with respect to any item, exceed the costs and fees charged in the Supreme Court of the United States; and the same shall be expended, accounted for, and paid over to the Treasury of the United States. APPENDIX. 00 i Sec. 192. In addition to the clerk, the court may appoint an assistant clerk at a salary of two thousand dollars per annum, five stenographic clerks at a salary of one thousand six hundred dollars per annum each, one stenographic reporter at a salary of two thousand five hundred dol- lars per annum, and a, messenger at a salary of eight hundred and forty dollars per annum, all payable in equal monthly installments, and all of whom, including the clerk, shall hold ofiBoe during the pleasure of and perform such duties as are assigned them by the court. Said report- er shall prepare and transmit to the Secretary of the Treasury once a week in time for publication in the Treasury Decisions copies of all decisions rendered to that date by said court, and prepare and transmit, under the direction of said court, at least once a year, reports of said decisions rendered to that date, constituting a volume, which shall be printed by the Treasury Department in such numbers and distributed or sold in such manner as the Secretary of the Treasury shall direct. See. 193. The marshal of said court for the District of Columbia and the marshals of the several districts in which said Court of Customs Appeals may be held shall, under the direction of the Attorney General, and with his approval, provide such rooms in the public buildings of the United States as may be necessary for said court: Provided, That in case proper rooms can not be provided in such buildings, then the said marshals, with the approval of the Attorney-General, may, from time to time, lease such rooms as may be necessary for said court. The bailiffs and messengers of said court shall be allowed the same compensation for their respective services as are allowed for similar services in the existing district courts. In no case shall said marshals secure other rooms than those regularly occupied by existing district courts, or other public officers, except where such can not, by reason of actual occupancy or use, be occupied or used by said Court of Customs Appeals. Sec. 194. The said Court of Customs Appeals shall be a court of rec- ord, with jurisdiction as in this chapter established and limited. It shall prescribe the form and style of its seal, and the form of its writs and other process and procedure, and exercise such powers conferred by law as may be conformable and necessary to the exercise of its jurisdic- tion. It shall have power to establish all rules and regulations for the conduct of the business of the court, and as may be needful for the uni- formity of decisions within its jurisdiction as conferred by law. It shall have power to review any decision or matter within its jurisdiction, and may affirm, modify, or reverse the same and remand the case with such orders as may seem to it proper in the premises, which shall be execut- ed accordingly. Sec. 195. The Court of Customs Appeals established by this chapter shall exercise exclusive appellate jurisdiction to review by appeal, as herein provided, final decisions by a Board of General Appraisers in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty imposed thereon under such classification, and the fees and charges connected therewith, and all appealable questions as to the jurisdiction of said board, and all 958 APPENDIX. appealable questions as to the laws and regulations governing the col- lection of the customs revenues; and the judgments and decrees of said Court of Customs Appeals shall be final in all such cases. Sec. 196. After the organization of said court, no appeal shall be taken or allowed from any Board of United States General Appraisers to any other court, and no appellate jurisdiction shall thereafter be exercised or allowed by any other courts in cases decided by said Board of United States General Appraisers; but all appeals allowed by law from such Board of General Appraisers shall be subject to review only in the Court of Customs Appeals hereby established, according to the provisions of this chapter: Provided, That nothing in this chapter shall be deemed to deprive the Supreme Court of the United States of juris- diction to hear and determine all customs cases which have heretofore been certified to said court from the United States circuit courts of appeals on applications for writs of certiorari or otherwise, nor to review by writ of certiorari any customs case heretofore decided or now pend- ing and hereafter decided by any circuit court of appeals, provided appli- cation for said writ be made within six months after August fifth, nineteen hundred and nine: Provided further, That all customs cases decided by a circuit or district court of the United States or a court of a Territory of the United States prior to said date above mentioned, and which have not been removed from said courts by appeal or writ of error, and all such cases theretofore submitted for decision in said courts and remaining undecided may be reviewed on appeal at the in- stance of either party by the United States Court of Customs Appeals, provided such appeal be taken within one year from the date of the entry of the ordeT, judgment, or decrees sought to be reviewed. Sec. 197. Immediately upon the organization of the Court of Cus- toms Appeals, all eases within the jurisdiction of that court pending and not submitted for decision in any of the United States circuit courts of appeals, United States circuit, territorial or district courts, shall, with the record and samples therein, be certified by said courts to said Court of Customs Appeals for further proceedings in accordance here- with: Provided, That where orders for the taking of further testimony before a referee have been made in any of such cases, the taking of such testimony shall be completed before such certification. Sec. 198. If the importer, owner, consignee, or agent of any imported merchandise, or the collector or Secretary of the Treasury, shall be dis- satisfied with the decision of the Board of General Appraisers as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such class- ification, or with any other appealable decision of said board, they, or either of them, may, within sixty days next after the entry of such decree or judgment, and not afterwards, apply to the Court of Customs Appeals for a review of the questions of law and fact involved in such decision: Provided, That in Alaska and in the insular and other outside possessions of the United States ninety days shall be allowed for mak- ing such application to the Court of Customs Appeals. Such applica- APPENDIX. 959 tion shall be made by filing in the office of the clerk of said court a con- cise statement of errors of law and fact complained of; and a copy of such statement shall be served on the collector, or on the importer, owner, consignee, or agent, as the case may be. Thereupon the court shall immediately order the Board of General Appraisers to transmit to said court the record and evidence taken by them, together with the certified statement of the facts involved in the case and their decision thereon; and all the evidence taken by and before said board shall be competent evidence before said Court of Customs Appeals. The deci- sion of said Court of Customs Appeals shall be final, and such cause shall be remanded to said Board of General Appraisers for further pro- ceedings to be taken in pursuance of such determination. Sec. 199. Immediately upon receipt of any record transmitted to said court for determination the clerk thereof shall place the same upon the calendar for hearing and submission; and such calendar shall be called and all cases thereupon submitted, except for good cause shown, at least once every sixty days: Provided, That such calendar need not be called during the months of July and August of any year. CHAPTER NINE. THE COMMEBOE COtlRT. Sec. 200. Commerce Court created; judg- es of, appointment and desig- nation; expense allowance to judges. 201. Additional circuit judges; ap- pointment and assignment. 202. Officers of the court; clerk, marshal, etc.; salaries, etc. 203. Court to be always open for business; sessions of, to be held in Washington and else- where. 204. Marshals to provide rooms for holding court outside of Washington. 205. Assignment of judges to other duty; vacancies, how filled. 206. Powers of court and judges; writs, process, procedure, etc. 207. Jurisdiction of the court. 208. Suits to enjoin, etc., orders of Interstate Commerce Commis- sions to be against United States ; restraining orders, when granted without notice. Sec. 209. Jurisdiction of the court, how invoked; practice and proced- ure. 210. Final judgments and decrees re- viewable in Supreme Court. 211. Suits to be against United States; when United States may intervene. 212. Attorney General to control all cases ; Interstate Commerce Commission may appear as of right; parties interested may intervene, etc. 213. Complainants may appear and be made parties to case. 214. Pending cases to be transferred to Commerce Court; excep- tion; status of transferred cases. Sec. 200. There shall be a court of the United States, to be known as the Commerce Court, which shall be a court of record, and shall have a seal of such form and style as the court may prescribe. The 960 APPENDIX. said court shall be composed of five judges, to be from time to time designated and assigned thereto by the Chief Justice of the United States, from among the circuit judges of the United States, for the period of five years, except that in the first instance the court shall be composed of the five additional circuit judges referred to in the next succeeding section, who shall be designated by the President to serve for one, two, three, four, and five years, respectively, in order that the period of designation of one of the said judges shall expire in each year thereafter. In case of the death, resignation, or termination of assignment of any judge so designated, the Chief Justice shall designate a circuit judge to fill the vacancy so caused and to serve during the unexpired period for which the original designation was made. After the year nineteen hundred and fourteen no circuit judge shall be redes- ignated to serve in the Commerce Court until the expiration of at least one year after the expiration of the period of his last previous designa- tion. The judge first designated for the five year period shall be pre- isiding judge of said court, and thereafter the judge senior in designa- tion shall be the presiding judge. The associate judges shall have prec- edence and shall succeed to the place and powers of the presiding judge whenever he may be absent or incapable of acting in the order of the date of their designations. Four of said judges shall constitute a quor- um, and at least a majority of the court shall concur in all decisions. Each of the judges during the period of his service in the Commerce Court shall, on account of the regular sessions of the court being held in the city of Washington, receive in addition to his salary as circuit judge an expense allowance at the rate of one thousand five hundred dollars per annum. Sec. 201. The five additional circuit judges authorized by the Act to create a Commerce Court, and for other purposes, approved June eigh- teenth, nineteen hundred and ten, shall hold office during good behavior, and from time to time shall be designated and assigned by the Chief Justice of the United States for service in the district court of any dis- trict, or the circuit court of appeals for any circuit, or in the Commerce Court, and when so designated and assigned for service in a district court or circuit court of appeals shall have the powers and jurisdiction in this Act conferred upon a circuit judge in his circuit. Sec. 202. The court shall also have a clerk and a marshal, with the same duties and powers, so far as they may be appropriate and are not altered by rule of the court, as are now possessed by the clerk and marshal, respectively, of the Supreme Court of the United States. The offices of the clerk and marshal of the court shall be in the city of Washington, in the District of Columbia. The judges of the court shall appoint the clerk and marshal, and may also appoint, if they find it necessary, a deputy clerk and deputy marshal; and such clerk, marshal, deputy clerk, and deputy marshal, shall hold office during the pleasure of the court. The salary of the clerk shall be four thousand dollars per annum; the salary of the marshal three thousand dollars per annum;' the salary of the deputy clerk two thousand five hundred APPENDrx. ^ 961 dollars per annum; and the salary of the deputy marshal two thou- sand five hundred dollars per annum. The said clerk and marshal may, with the approval of the court, employ all requisite assistance. The costs and fees in said court shall be established by the court in a table thereof, approved by the Supreme Court of the United States, within four months after the organization of the court; but such costs and fees shall in no case exceed those charged in the Supreme Court of the United States, and shall be accovmted for and paid into the Treasury of the United States. Sec. 203. The Commerce Court shall always be open for the transac- tion of business. Its regular sessions shall be held in the city of Wash- ington, in the District of Columbia; but the powers of the court or of any judge thereof, or of the clerk, marshal, deputy clerk, or deputy mar- shal, may be exercised anywhere in the United States; and for expedi- tion of the work of the court and the avoidance of undue expense or in- convenience to suitors the court shall hold sessions in different parts of the United States as may be found desirable. The actual and necessary expenses of the judges, clerk, marshal, deputy clerk, and deputy marshal of the court incurred for travel and attendance elsewhere than in the city of Washington shall be paid upon the written and itemized certifi- cate of such judge, clerk, marshal, deputy clerk, or deputy marshal, by the marshal of the court, and shall be allowed to him in the settlement of his acounts with the United States. Sec. 204. The United States marshals of the several districts outside of the city of Washington in which the Commerce Court may hold its sessions shall provide, under the direction and with the approval of the Attorney General, such rooms in the public buildings of the United States as may be necessary for the court's use; but in case proper rooms can not be provided in such public buildings, said marshals, with the approval of the Attorney General, may then lease from time to time other neces- sary rooms for the court. Sec. 205. If, at any time, the business of the Commerce Court does not require the services of all the judges, the Chief Justice of the United States may, by writing, signed by him and filed in the Department of Justice, terminate the assignment of any of the judges or temporarily assign him for service in any district court or circuit court of appeals. In cases of illness or other disability of any judge assigned to the Com- merce Court the Chief Justice of the United States may assign any other circuit judge of the United States to act in his place, and may terminate such assignment when the exigency therefor shall cease; and any circuit judge so assigned to act in place of such judge shall, during his assignment, exercise all the powers and perform all the functions of such judge. Sec. 206. In all cases within its jurisdiction the Commerce Court, and each of the judges assigned thereto, shall, respectively, have and may exercise any and all of the powers of a district court of the United States and of the judges of said court, respectively, so far as the same mav be appropriate to the effective exercise of the jurisdiction hereby S. Eq.— 61. 962 APPENDIX. conferred. The Commerce Court may issue all writs and process ap- propriate to the full exercise of its jurisdiction and powers and may prescribe the form thereof. It may also, from time to time, establish such rules and regulations concerning pleading, practice, or procedure in cases or matters within its jurisdiction as to the court shall seem wise and proper. Its orders, writs, and process may run, be served, and be returnable anywhere in the United States; and the marshal and dep- uty marshal of said court and also the United States marshals and deputy marshals in the several districts of the United States shall have like .powers and be under like duties to act for and in behalf of said court as pertain to United States marshals and deputy marshals gen- erally when acting under like conditions concerning suits or matters in the district courts of the United States. See. 207. The Commerce Court shall have the jurisdiction possessed by circuit courts of the United States and the judges thereof immediate- ly prior to June eighteenth, nineteen hundred and ten, over all cases of the following kinds: First. All cases for the enforcement, otherwise than by adjudication and collection of a forfeiture or penalty or by infliction of criminal punishment, of any order of the Interstate Commerce Commission other than for the payment of money. Second. Cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission. Third. Such cases as by section three of the Act entitled "An Act to further regulate commerce with foreign nations and among the States," approved February nineteenth, nineteen hundred and three, are author- ized to be maintained in a circuit court of the United States. Fourth. All such mandamus proceedings as under the provisions of section twenty or section twenty-three of the Act entitled "An Act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, as amended, are authorized to be maintained in a circuit court of the United States. Nothing contained in this chapter shall be construed as enlarging the jurisdiction now possessed by the circuit courts of the United States or the judges thereof, that is hereby transferred to and vested in the Com- merce Court. The jurisdiction of the Commerce Court over cases of the foregoing classes shall be exclusive; but this chapter shall not affect the jurisdic- tion possessed by any circuit or district court of the United States over cases or proceedings of a kind not within the above-enumerated classes. Sec. 208. Suits to enjoin, set aside, annul, or suspend any order of the Interstate Commerce Commission shall he brought in the Commerce Court against the United States. The pendency of such suit shall not of itself stay or suspend the operation of the order of the Interstate Com- merce Commission; but the Commerce Court, in its discretion, may restrain or suspend, in whole or in part, the operation of the commis- sion's order pending the final hearing and determination of the suit APPENDIX. 963 No order or injunction so restraining or suspending an order of the In- terstate Commerce Commission sliall be made by the Commerce Court otherwise than vipon notice and after hearing, except that in cases where irreparable damage would otherwise ensue to the petitioner, said court, or a judge thereof may, on hearing after not less than three days' notice to the Interstate Commerce Commission and the Attorney Gen- eral, allow a temporary stay or suspension in whole or in part of the operation of the order of the Interstate Commerce Commission for not more than sixty days from the date of the order of such court or judge, pending application to the court for its order or injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judge making the order and identified by reference thereto, that such irreparable damage would result to the petitioner and specifying the nature of the damage. The court may, at the time of hearing such application, upon a, like finding, continue the tempo- rary stay or suspension in whole or in part until its decision upon the application. Sec. 209. The jurisdiction of the Commerce Court shall be invoked by filing in the office of the clerk of the court a written petition setting forth briefly and succinctly the facts constituting the petitioner's cause of action, and specifying the relief sought. A copy of such petition shall be forthwith served by the marshal or a, deputy marshal of the Com- merce Court or by the proper United States marshal or deputy marshal upon every defendant therein named, and when the United States is a party defendant, the service shall be made by filing a, copy of said peti- tion in the office of the Secretary of the Interstate Commerce Commis- sion and in the Department of Justice. Within thirty days after the petition is served, unless that time is extended by order of the court or a judge thereof, an answer to the petition shall be filed in the clerk's office, and a copy thereof mailed to the petitioner's attorney, which answer shall briefly and categorically respond to the allegations of the petition. Xo replication need be flled to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of ax;tion or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed. In case no answer shall be filed as provided herein the petitioner may apply to the court on notice for such relief as may be proper upon the facts alleged in the petition. The court may, by rule, prescribe the method of taking evidence in cases pending in said court; and may prescribe that the evidence be taken before a single judge of the court, with power to rule upon the admis- sion of evidence. Except as may be otherwise provided in this chapter, or by rule of the court, the practice and procedure in the Commerce Court shall conform as nearly as may be to that in like cases in a dis- trict court of the United States. Sec. 210. A final judgment or decree of the Commerce Court may be reviewed by the Supreme Court of the United States if appeal to the Supreme Court be taken by an aggrieved party within sixty days after 964 APPENDIX. the entry of said final judgment or decree. Such appeal may be taken in like manner as appeals from a district court of the United States to the Supreme Court, and the Commerce Court may direct the original record to be transmitted on appeal instead of a transcript tliereof. The Supreme Court may affirm, reverse, or modify the final judgment or decree of the Commerce Court as the case may require. Appeal to the Supreme Court, however, shall in no case supersede or stay the judg- ment or decree of the Commerce Court appealed from, unless the Supreme Court or a justice thereof shall so direct; and appellant shall give bond in such form and of such amount as the Supreme Court, or the justice of that court alloviring the stay, may require. An appeal may also be taken to the Supreme Court of the United States from an interlocutory order or decree of the Commerce Court granting or continuing an injunc- tion restraining the enforcement of an order of the Interstate Commerce Commission, provided such appeal be taken within thirty days from the entry of such order or decree. Appeals to the Supreme Court under this section shall have priority in hearing and determination over all other causes except criminal causes in that court. Sec. 211. All cases and proceedings in the Commerce Court which but for this chapter would be brought by or against the Interstate Com- merce Commission, shall be brought by or against the United States, and the United States may intervene in any case or pi-oceeding in the Commerce Court whenever, though it has not been made a party, public interests are involved. Sec. 212. The Attorney General shall have charge and control of the interests of the Government in all cases and proceedings in the Com- merce Court, and in the Supreme Court of the United States upon appeal from the Commerce Court. If in his opinion the public interest requires it, he may retain and employ in the name of the United States, within the appropriations from time to time made by the Congress for such purposes, such special attorneys and counselors at law as he may think necessary to assist in the discharge of any of the duties incumbent upon him and his subordinate attorneys; and the Attorney-General shall stip- ulate with such special attorneys and counsel the amount of their com- pensation, which shall not be in excess of the sums appropriated there- for by Congress for such purposes, and shall have supervision of their action: Provided, That the Interstate Commerce Commission and any party or parties in interest to the proceeding before the commission, in which an order or requirement is made, may appear as parties thereto of their own motion and as of right, and be represented by their coun- sel, in any suit wherein is involved the validity of such order or require- ment or any part thereof, and the interest of such party; and the court wherein is pending such suit may make all such rules and orders as to such appearances and representations, the number of counsel, and all matters of procedure, and otherwise, as to subserve the ends of justice and speed the determination of such suits: Provided further, That com- munities, associations, corporations, firms, and individuals who are inter- APPENDIX, 965 ested in the controversy or question before the Interstate Commerce Commission, or in any suit wliich may be brought by any one under the provisions of this chapter, or the Acts of which it is amendatory or which are amendatory of it, relating to action of the Interstate Com- merce Commission, may intervene in said suit or proceedings at any time after the institution thereof; and the Attorney General shall not dispose of or discontinue said suit or proceeding over the objection of such party or intervener aforesaid, but said intervener or intervenors may prosecute, defend, or continue said suit or proceeding unaffected by the action or non-action of the Attorney General therein. See. 213. Complainants before the Interstate Commerce Commission interested in a, case shall have the right to appear and be made parties to the case and be represented before the courts by counsel, under such regulations as are now permitted in similar circumstances under the rules and practice of equity courts of the United States. Sec. 214. Until the opening of the Commerce Court, all cases and pro- ceedings of which from that time the Commerce Court is hereby given exclusive jurisdiction may be brought in the same courts and conducted in like manner and with like effect as is now provided by law; and if any such case or proceeding shall have gone to final judgment or decree before the opening of the Commerce Court, appeal may be taken from such final judgment or decree in like manner and with like effect as is now provided by law. Any such case or proceeding within the jurisdic- tion of the Commerce Court which may have been begun in any other court as hereby allowed, before the said date, shall be forthwith trans- ferred to the Commerce Court, if it has not yet proceeded to final judg- ment or decree in such other court unless it has been finally submitted for the decision of such court, in which case the cause shall proceed in such court to final judgment or decree and further proceeding there- after, and appeal may be taken direct to the Supreme Court; and if remanded, such cause may be sent back to the court from which the appeal was taken or to the Commerce Court for further proceeding as the Supreme Court shall direct. All previous proceedings in such trans- ferred case shall stand and operate notwithstanding the transfer, sub- ject to the same control over them by the Commerce Court and to the same right of subsequent action in the case or proceeding as if the transferred case or proceeding had been originally begun in the Com- merce Court. The clerk of the court from which any case or proceed- ing is so transferred to the Commerce Court shall transmit to and file in the Commerce Court the originals of all papers filed in such case oi- proceeding and a certified transcript of all record entries in the case or proceeding up to the time of transfer. 966 APPENDIX. CHAPTER TEN. THE SUPEBME COUET. Sec. 215. Number of justices. 216. Precedents of the associate jus- tices. 217. Vacancy in the office of Chief Justice. 218. Salaries of justices. 219. Clerk, marshal, and reporter. 220. The clerk to give bond. 221. Deputies of the clerk. 222. Records of the old court of ap- peals. 223. Tables of fees. 224. Marshal of the Supreme Court. 225. Duties of the reporter. 226. Reporter's salary and allow- ances. 227. Distribution of reports and di- 228. Additional reports and digests; limitation upon cost; esti- mates to be submitted to Con- gress annually. 229. Distribution of Federal Report- er, etc., and Digests. 230. Terms. 231. Adjournment for want of a quorum. 232. Certain orders made by less than quorum. 233. Original disposition. 234. Writs of prohibition and man- damus. 235. Issues of fact. 236. Appellate jurisdiction. 237. Writs of error from judgments and decrees of State courts. Appeals and writs of error from United States district courts. Circuit court of appeals may certify questions to Supreme Court for instructions. 238. 239. Sec. 240. Certiorari to circuit court of appeals. 241. Appeals and writs of error in other cases. 242. Appeals from Court of Claims. 243. Time and manner of appeals from the Court of Claims. 244. Writs of error and appeals from supreme court of and United States district court of Porto Rico. 245. Writs of error and appeals from the Supreme Courts of Arizo- na and New Mexico. Writs of error and appeals from the Supreme Court of Hawaii. Appeals and writs of error from the district court for Alaska direct to Supreme Court in certain oases. Appeals and writs of error from the Supreme Court of the Philippine Islands. Appeals and writs of error when a Territory becomes a State. Appeals and writs of error from the Court of Appeals of the District of Columbia. 251. Certiorari to Court of Appeals, District of Columbia. Appellate jurisdiction under the bankruptcy act. Precedence of writs of error to State courts. Cost of printing records. Women may be admitted to practice. 246. 247. 248. 249. 250. 252. 253. 254. 255. Sec. 215. The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. Sec. 216. The associate justices shall have precedence according to the dates of their commissions, or, when the commissions of two or more of them bear the same date, according to their ages. Sec. 217. In case of a vacancy in the office of Chief Justice, or of his APPENDIX. 967 inability to perform the duties and powers of his ofBce, they shall de- volve upon the associate justice wlio 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 suc- ceeds to the office of Chief Justice. Sec. 218. The Chief Justice of the Supreme Court of the United States shall receive the sum of fifteen thousand dollars a. year, and the justices thereof shall receive the sum of fourteen thousand five hundred dollars a year each, to be paid monthly. Sec. 219. The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions. Sec. 220. The clerk of the Supreme Court shall, before he enters upon the execution of his office, give bond, with sufficient sureties, to be ap- proved by the court, to the United States, in the sum of not less than five thousand and not more than twenty thousand dollars, to be deter- mined and regulated by the Attorney General, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments, and determinations of the court. The Supreme Court may at any time, upon the motion of the Attorney General, to be made upon thirty days' notice, require a new bond, or a bond for an increased amount within the limits above prescribed; and the failure of the clerk to execute the same shall vacate his office. All bonds given by the clerk shall, after approval, be recorded in his office, and copies thereof from the records, certified by the clerk under seal of the court, shall be competent evidence in any court. The original bonds shall be filed in the Department of Justice. Sec. 221. One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and may be removed at the pleasure of the court. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk in his name until a clerk is appointed and qualified; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. See. 222. The records and proceedings of the court of appeals, ap- pointed previous to the adoption of the present Constitution, shall be kept in the office of the clerk of the Supreme Court, who shall give copies thereof to any person requiring and paying for them, in the manner provided by law for giving copies of the records and proceedings of the Supreme Court; and such copies shall have like faith and credit with all other proceedings of said court. Sec. 223. The Supreme Court is authorized and empowered to prepare the tables of fees to be charged by the clerk thereof. Sec. 224. The marshal is entitled to receive a salary at the rate of four thousand five hundred dollars a, year. He shall attend the court 968 APPENDIX. 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 pursu- ance 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 similar grade. Sec. 225. The reporter shall cause the decisions of the Supreme Court to be printed and published within eight months after they are made; and within the same time he shall deliver three hundred copies of the volumes of said reports to the Attorney General. The reporter shall, in any year when he is so directed by the court, cause to be printed and published a second volume of said decisions, of which he shall deliver a, like number of copies in like manner and time. See. 226. The reporter shall be entitled to receive from the Treasury an annual salary of four thousand five hundred dollars when his report of said decisions constitutes one volume, and an additional sum of one thousand two hundred dollars when, by direction of the court, he causes to be printed and published in any year a second volume; and said reporter shall be annually entitled to clerk hire In the sum of one thou- sand two hundred dollars, and to oflSce rent, stationery, and contingent expenses in the sum of six hundred dollars: Provided, That the volumes of the decisions of the court heretofore published shall be furnished by the reporter to the public at a sum not exceeding two dollars per vol- ume, and those hereafter published at a sum not exceeding one dollar and seventy- five cents per volume ; and the number of volumes now required to be delivered to the Attorney General shall be furnished by the reporter without any charge therefor. Said salary and compensa- tion, respectively, shall be paid only when he causes such decisions to be printed, published, and delivered within the time and in the manner prescribed by law, and upon the condition that the volumes of said re- ports shall be sold by him to the public for a price not exceeding one dollar and seventy-five cents a volume. Sec. 227. The Attorney General shall distribute copies of the Supreme Court reports, as follows: To the President, the justices of the Supreme Court, the judges of the Commerce Court, the judges of the Court of Customs Appeals, the judges of the circuit courts of appeals, the judges, of the district courts, the judges of the Court of Claims, the judges of the Court of Appeals and of the Supreme Court of the District of Colum- bia, the judges of the several Territorial courts, the Secretary of State, the Secretary of the Treasury, the Secretary of War, the Secretary of the Navy, the Secretary of the Interior, the Postmaster General, the Attorney General, the Secretary of Agriculture, the Secretary of Com- merce and Labor, the Solicitor General, the Assistant to the Attornev General, each Assistant Attorney General, each United States district attorney, each Assistant Secretary of each Executive Department, the Assistant Postmasters General, the Secretary of the Senate for the use of the Senate, the clerk of the House of Representatives for the use of the APPENDIX, 969 House of Kepresentatives, the Governors of the Territories, the Solic- itor for the Department of State, the Treasurer of the United States, the Solicitor of the Treasurj', the Register of the Treasury, the Comp- troller of the Treasury, the Comptroller of the Currency, the Commis- sioner of Internal Revenue, the Director of the Mint, each of the six Auditors in the Treasury Department, the Judge Advocate General, War Department, the Paymaster General, War Department, the Judge Advocate General, Navy Department, the Commissioner of Indian Af- fairs, the Commissioner of Pensions, the Commissioner of the General Land OiSce, the Commissioner of Patents, the Commissioner of Educa- tion, the Commissioner of Labor, the Commissioner of Navigation, the Commissioner of Corporations, the Commissioner General of Immigra- tion, the Chief of the Bureau of Manufactures, the Director of the Geo- logical Survey, the Director of the Census, the Forester, Department of Agriculture, the Purchasing Agent, Post Office Department, the Inter- state Commerce Commission, the Clerk of the Supreme Court of the United States, the Marshal of the Supreme Court of the United States, the Attorney for the District of Columbia, the Naval Academy at Annap- olis, the Military Academy at West Point, and the heads of such other executive offices as may be provided by law, of equal grade with any of said oifices, each one copy; to the Law Library of the Supreme Court, twenty-five copies; to the Law Library of the Department of the Interior, two copies; to the Law Library of the Department of Justice, two copies; to the Secretary of the Senate for the use of the committees of the Senate, twenty-five copies; to the Clerk of the House of Represen- tatives for the use of the committees of the House, thirty copies; to the Marshal of the Supreme Court of the United States, as custodian of the public property used by the court, for the use of the justices thereof in the conference room, robing room, and court room, three copies; to the Secretary of War for the use of the proper courts and officers of the Philippine Islands and for the headquarters of military departments in the United States, twelve copies; and to each of the places where district courts of the United States are now holden, including Hawaii, and Porto Rico, one copy. He shall also distribute one complete set of said reports, and one set of the digests thereof, to such executive officers as are entitled to receive said reports under this section and have not already received them, to each United States judge and to each United States district attorney who has not received a. set, to each of the places where district courts are now held to which said reports have not been distributed, and to each of the places at which a district court may hereafter be held, the edition of said reports and digests to be selected by the judge or officer receiving them. No dis- tribution of reports and digests under this section shall be made to any place where the court is held in a building not owned by the United States, unless there be at such place a United States officer to whose responsible custody they can be committed. The clerks of said courts (except the Supreme Court) shall in all cases keep said reports and digest for the use of the courts and of the officers thereof. 970 APPENDIX. Such reports and digest shall remain the property of the United States and shall be preserved by the officers above named and by them turned over to their successors in office. Sec. 228. The publishers of the decisions of the Supreme Court shall deliver to the Attorney General, in addition to the three hundred copies delivered by the Reporter, such number of copies of each report here- tofore published, as the Attorney General may require, for which he shall pay not more than two dollars per volume, and such number of copies of each report hereafter published as he may require, for which he shall , pay not more than one dollar and seventy-five cents per volume. The Attorney General shall include in his annual estimates submitted to Congress, an estimate for the current volumes of such reports, and also for the additional sets of reports and digests required for distribution under the section last preceding. Sec. 229. The Attorney General is authorized to procure complete sets of the Federal Reporter or, in his discretion, other publication contain- ing the decisions of the circuit courts of appeals, circuits courts, and dis- trict courts, and digests thereof, and also future volumes of the same as issued, and distribute a copy of each such reports and digests to each place where a, circuit court of appeals, or a district court, is now or may hereafter regularly be held, and to the Supreme Court of the United States, the Court of Claims, the court of Customs Appeals, the Com- merce Court, the Court of Appeals and the Supreme Court of the Dis- trict of Columbia, the Attorney General, the Solicitor General, the Solici- tor of the Treasury, the Assistant Attorney General for the Department of the Interior, the Commissioner of Patents, and the Interstate Com- merce Commission; and to the Secretary of the Senate, for the use of the Senate, and to the Clerk of the House of Representatives, for the use of the House of Representatives, not more than three sets each. Whenever any such court room, office, or officer shall have a partial or complete set of any such reports, or digests, already purchased or owned by the United States, the Attorney General shall distribute to such court room, office, or officer, only sufficient volumes to make a complete set thereof. No distribution of reports or digests under this section shall be made to any place where the court is held in a, building not owned by the United States, unless there be at such place a United States officer to whose responsible custody they can be committed. The clerks of the courts (except the Supreme Court) to which the reports and digests are distributed under this section, shall keep such reports and digests for the use of the courts and the officers thereof. All reports and digests distributed under the provisions of this section shall be and remain the property of the United States and, before distribu- tion, shall be plainly marked on their covers with the words "The Prop- erty of the United States," and shall be transmitted by the officers receiving them to their successors in office. Not to exceed two dollars per volume shall be paid for the back and current volumes of the Fed eral Reporter or other publication purchased under the provisions of this section, and not to exceed five dollars per volume for the diwest APPEISTDIX. 971 the said money to be disbursed under the direction of the Attorney General; and the Attorney General shall include in his annual estimates submitted to Congress, an estimate for the back and current volumes of such reports and digests, the distribution of which is provided for in this section. Sec. 230. The Supreme Court shall hold at the seat of government, one term annually, commencing on the second Monday in October, and such adjourned or special terms as it may find necessary for the dis- patch of business. Sec. 231. If, at any session of the Supreme Court, a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn the court from day to day for twenty days after said appointed time, unless there be sooner a quorum. If a quorum does not attend within said twenty days the business of the court shall be con- tinued over till the next appointed session; and if, during a term, after a quorum has assembled, less than that number attend on any day, the justices attending may adjourn the court from day to day until there is ■a, quorum, or may adjourn without day. Sec. 232. The justices attending at any term, when less than a quor- um is present, may, within the twenty days mentioned in the preceding section, make all necessary orders touching any suit, proceeding, or process, depending in or returned to the court, preparatory to the hear- ing, trial, or decision thereof. Sec. 233. The Supreme Court shall have exclusive jurisdiction 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, in which latter cases it shall have original, but not exclusive, jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations; and original, but not e.xclusive, jurisdiction, of all suits brought by ambassadors, or other public ministers, or in which a consul or vice consul is a party. Sec. 234. The Supreme Court shall have power to issue writs of pro- hibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a State, or an ambassador, or other public minister, or a consul, or vice consul is a party. Sec. 235. The trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. Sec. 236. The Supreme Court shall have appellate jurisdiction in the cases hereinafter specially provided for. Sec. 237. A final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exer- cised under, the United States, and the decision is against their valid- 972 APPENDIX. ity; or where la drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repug- nant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity espe- cially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. Tlie writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of such State court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ. Sec. 238. Appeals and writs of error may be taken from the district courts, including the United States district court for Hawaii, direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue, in which case the question of juris- diction alone shall be certified to the Supreme Court from the court below for decision; from the final sentences and decrees in prize causes; in any case that involves the construction or application of the Consti- tution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question; and in any ease in which the constitution or law of a State is claimed to be in contra- vention of the Constitution of the United States. Sec. 239. In any case within its appellate jurisdiction, as defined in section one hundred and twenty-eight, the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruc- tion of that court for its proper decision; and thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. Sec. 240. In any case, civil or criminal, in which the judgment or decree of the circuit court of appeals is made final by the provisions of this Title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be 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. Sec. 241. In any case in which the judgment or decree of the circuit court of appeals is not made final by the provisions of this Title, there shall be of right an appeal or writ of error to the Supreme Court of the APPENDIX. 973 United States where the matter in controversy shall exceed one thou- sand dollars, besides costs. Sec. 242. An appeal to the Supreme Court shall be allowed on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court as provided in section one hundred and seventy-two. Sec. 243. All appeals from the Court of Claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regulations as the Supreme Court may direct. Sec. 244. Writs of error and appeals from the final judgments and decrees of the supreme court of, and the United States district court for, Porto Rico, may be taken and prosecuted to the Supreme Court of the United States, in any case wherein is involved the validity of any copyright, or in which is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States, or wherein the Constitution of the United States, or a treaty thereof, or an act of Congress is brought in question and the right claimed thereunder is denied, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Such writs of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken to the Supreme Court of the United States from the district courts. Sec. 245. Writs of error and appeals from the final judgments and decrees of the supreme courts of the Territories of Arizona and New Mexico may be taken and prosecuted to the Supreme Court of the United States in any case wherein is involved the validity of any copyright, or in which is drawn in question the validity of a treaty or statvite of, or au- thority exercised under, the United States, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascer- tained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Sec. '246. Writs of error and appeals from the final judgments and decrees of the supreme court of the Territory of Hawaii may be taken and prosecuted to the Supreme Court of the United States, within the same time, in the same manner, under the same regulations, and in the same classes of cases, in which writs of error and appeals from the final judgments and decrees of the highest court of a State in which a decision in the suit could be had, may be taken and prosecuted to the Supreme Court of the United States under the provisions of section two hundred and thirty-seven ; and also in all cases wherein the amount involved, exclusive of costs, to be ascertained by the oath of either party 974 APPENDIX. or of other competent witnesses, exceeds the sum or value of five thou- sand dollars. See. 247. Appeals and writs of error may be taken and prosecuted from final judgments and decrees of the district court for the district of Alaska or for any division thereof, direct to the Supreme Court of the United States, in the following cases: In prize cases; and in all cases which involve the construction or application of the Constitution of the United States, or in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority is drawn in question, or in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States. Such writs of error and appeal shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the district courts to the Supreme Court. Sec. 248. The Supreme Court of the United States shall have juris- diction to review, revise, reverse, modify, or affirm the final judgments and decrees of the supreme court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter deter- mined thereby, in which the Constitution, or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent witnesses, is involved or brought in ques- tion; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme Court on appeal or writ of error by the party aggrieved, within the same time, in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the district courts of the United States. Sec. 249. 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. See. 250. Any final judgment or decree of the court of appeals of the District of Columbia may be re-examined and affirmed, reversed, or modi- fled by the Supreme Court of the United States, upon writ of error or appeal, in the following cases: First. In cases in which the jurisdiction of the trial court is in issue; but when any such case is not otherwise reviewable in said Supreme Court, then the question of jurisdiction alone shall be certified to said Supreme Court for decision. Second. In prize cases. Third. In cases involving the construction or application of the Con- APPENDIX. 975 stitution of the United States, or the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority. Fourth. In cases in which the constitution, or any law of a State, is claimed to be in contravention of the Constitution of the United States. Fifth. In cases in which the validity of any authority exercised under the United States, or the existence or scope of any power or duty of an oflEeer of the United States is drawn in question. Sixth. In cases in which the construction of any law of the United States is dra^ii in question by the defendant. Except as provided in the next succeeding section, the judgments and decrees of said court of appeals shall be final in all cases arising under the patent laws, the copyright laws, the revenue laws, the criminal laws, and in admiralty cases; and, except as provided in the next suc- ceeding section, the judgments and decrees of said court of appeals shall be final in all cases not reviewable as hereinbefore provided. Writs of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the circuit courts of appeals to the Supreme Court of the United States. Sec. 251. In any case in which the judgment or decree of said court of appeals is made final by the section last preceding, it shall be com- petent for the Supreme Court of the United States to require, by cer- tiorari or otherwise, any such case to be certified to it for its review and determination, with the same power and authority in the case as if it had been carried by writ of error or appeal to said Supreme Court. It shall also be competent for said court of appeals, in any case in which its judgment or decree is made final under the section last preceding, at any time to certify to the Supreme Court of the United States any ques- tions or propositions of law concerning which it desires the instruction of that court for their proper decision; and thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon said court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. Sec. 252. The Supreme Court of the United States is hereby invested with appellate jurisdiction of controversies arising in bankruptcy pro- ceedings, from the courts of bankruptcy, from which it has appellate jurisdiction in other cases; and shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the supreme court of the District of Columbia. An appeal may be taken to the Supreme Court of the United States from any final decision of a court of appeals allowing or rejecting a claim under the laws relating to bankruptcy, under such rules and within puch time as may be prescribed by said Supreme Court, in the follow- ing cases and no other: 976 APPENDIX. First. Where the amount in controversy exceeds tlie sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a State to the Supreme Court of the United States; or Second. Where some justice of the Supreme Court shall certify that in his opinion the determination of the question involved in the allow- ance or rejection of such claim is essential to a. uniform construction of the laws relating to bankruptcy throughout the United States. Coiltroversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof, and may issue writs of certiorari pur- suant to the provisions of the United States laws now in force or such as may be hereafter enacted. Sec. 253. Cases on writ of error to revise the judgment of a State court in any criminal case shall have precedence on the docket of the Supreme Court, of all cases to which the Government of the United States is not a party, excepting only such eases as the court, in its discretion, may decide to be of public importance. Sec. 254. There shall be taxed against the losing party in each and every cause pending in the Supreme Court the cost of printing the record in such case, except when the judgment is against the United States. Sec. 255. Any woman who shall have been a member of the bar- of the highest court of any State or Territory, or of the court of appeals of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a per- son of good moral character, shall, on motion, and the production of such record, be admitted to practice before the Supreme Court of the United States. CHAPTER ELEVEN. PEOVISIONS COMMON TO MORE THAN ONE COUBT. See. 256. Cases in which jurisdiction of United States courts shall be exclusive of State courts. 257. Oath of United States judges. 258. Judges prohibited from practic- ing law. 259. Traveling expenses, etc., of cir- cuit justices and circuit and district judges. 260. Salary of judges after resigna- tion. 261. Writs of ne exeat. 262. Power to issue writs. 263. Temporary restraining orders. 264. Injunctions; in what cases judge may grant. Sec. 265. Injunctions to stay proceedings in State courts. 266. Injunctions based upon alleged unconstitutionality of State statutes; when and by whom may be granted. 267. When suits in equity may be maintained. 268. Power to administer oaths and punish contempts. 269. New trials. 270. Power to hold to security for the peace and good behavior. 271. Power to enforce awards of for- eign consuls, etc., in certain cases. APPENDIX. 977 Sec. 272. Parties may manage their caus- es personally or by counsel. 273. Certain officers forbidden to act as attorneys. Sec. 274. Penalty for violating preceding section. Sec. 256. The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: First. Of all crimes and offenses cognizable under the authority of the United States. Second. Of all suits for penalties and forfeitures incurred under the laws of the United States. Third. Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. Fourth. Of all seizures under the laws of the United States, on land or on waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. Fifth. Of all cases arising under the patent-right or copyright laws of the United States. Sixth. Of all matters and proceedings in bankruptcy. Seventh. Of all controversies of a civil nature, where a. State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens. Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice-consuls. Sec. 257. The justices of the Supreme Court, the circuit judges, and the district judges, hereafter appointed, shall take the following oath hefore they proceed to perform the duties of their respective offices: "I, , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and per- form all the duties incumbent upon me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States: So help me God." Sec. 258. It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or employ- ment of counsel or attorney, or to be engaged in the practice of the law. Any person offending against the prohibition of this section shall be deemed guilty of a high misdemeanor. Sec. 259. The circuit justices, the circuit and district judges of the United States, and the judges of the district courts of the United States in Alaska, Hawaii, and Porto Eico, shall each be allowed and paid his necessary expenses of travel, and his reasonable expenses (not to ex- ceed ten dollars per day) actually incurred for maintenance, consequent upon his attending court or transacting other official business in pur- S. Eq.— 62. 978 APPENDIX. suance of law at any place other than his official place of residence, said expenses to be paid by the marshal of the district in which such court is held or official business transacted, upon the written certificate of the justice or judge. The official place of residence of each justice and of each circuit judge while assigned to the Commerce Court shall be at Washington; and the official place of residence of each circuit and district judge, and of each judge of the district courts of the United States in Alaska, Hawaii, and Porto Rico, shall be at that place nearest his actual residence at which either a circuit court of appeals or a. dis- trict court is regularly held. Every such judge shall, upon his appoint- ment, and from time to time thereafter whenever he may change his official residence, in writing notify the Department of Justice of his official place of residence. Sec. 260. When any judge of any court of the United States appointed to hold his office during good behavior resigns his office, after having held a commission or commissions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the salary which is payable at the time of his retirement for the office that he held at the time of his resignation. Sec. 261. Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any district judge, in cases where they might be granted by the district court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defend- ant designs quickly to depart from the United States. See. 262. The Supreme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. Sec. 263. Whenever notice is given of a motion for an injunction out of a district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge. Sec. 264. Writs of injunction may be granted by any justice of the Supreme Court in cases where tliey might be granted by the Supreme Court; and by any judge of a, district court in cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such j)laee outside of the same as the parties may stipulate in writing, except when it can not be heard by the district judge of the district. In case of the absence from the dis- APPENDIX. 9Y9 triet of the disti-ict judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction or restraining order in any case pending in the district court, where the same might be granted by the district judge. Sec. 265. The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. Sec. 266. Xo interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a State by restrain- ing the action of any officer of such State in the enforcement or execu- tion of such statute, shall be issued or granted by any justice of the Supreme Court, or by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice of the Supreme Court, or to a, judge, he shall immediately call to his assistance to hear and determine the application two other judges: Provided, however, That one of such three judges shall be a, justice of the Supreme Court, or a. circuit judge. Said application shall not be heard or determined before at least five days' notice of the hearing has been given to the governor and to the attorney general of the State, and to such other persons as may be de- fendants in the suit: Provided, That if of opinion that irreparable loss or damage would result to the complainant unless a temporary restrain- ing order is granted, any justice of the Supreme Court, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an interlocutory injunction, but such temporary restraining order shall remain in force only until the hearing and determination of the applica- tion for an interlocutory injunction upon notice as aforesaid. The hear- ing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Su- preme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case. Sec. 267. Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law. Sec. 268. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the dis- cretion of the court, contempts of their authority: Provided, That such 980 APPENDIX. power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near there- to as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the dis- obedience or resistance by any such officer, or by any party, juror, wit- ness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts. Sec. 269. All of the said courts shall have power to grant new trials, in cases wliere there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. Sec. 270. The judges of the Supreme Court and of the circuit courts of appeals and district courts. United States commissioners, and the judges and other magistrates of the several States, who are or may be authorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them. Sec. 271. The district courts and the United States commissioners shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or commercial agent of any foreign nation, made or rendered by virtue of authority conferred on him as such consul, vice consul, or com- mercial agent, to sit as judge or arbitrator in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to his charge, application for the exercise of such power being first made to such court or commissioner, by petition of such consul, vice consul, or commercial agent. And said courts and commissioners may issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration, or decree, and to enforce obedience thereto by imprisonment in the jail or other place of confinement in the district in which the United States may law- fully imprison any person arrested under the authority of the United States, until such award, arbitration, or decree is complied with, or the parties are otherwise discharged therefrom, by the consent in writin" of such consul, vice consul, or commercial agent, or his successor in office, or by the authority of the foreign government appointing such consul, vice consul, or commercial agent: Provided, however, That the expenses of the said imprisonment and maintenance of the prisoners, and the cost of the proceedings, shall be borne by such foreign gov- ernment, or by its consul, vice consul, or commercial agent requiring such imprisonment. The marshals of the United States shall serve all such process, and do all other acts necessary and proper to carry into effect the premises, under the authority of the said courts and com- missioners. Sec. 272. In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such APPENDIX. 981 counsel or attorneys at law as, by the rules of the said courts, respect- ively, are permitted to manage and conduct causes therein. Sec. 273. No clerk, or assistant or deputy clerk, of any Territorial, district, or circuit court of appeals, or of the Court of Claims, or of the Supreme Court of the United States, or marshal or deputy marshal of the United States within the district for which he is appointed, shall act as a solicitor, proctor, attorney, or counsel in any cause depending in any of said courts, or in any district for which he is acting as such officer. Sec. 274. Whoever shall violate the provisions of the preceding sec- tion shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice and be heard in his defense; and in the case of a marshal or deputy marshal so acting, he shall be recommended by the court for dismissal from office. CHAPTER TWELVE. See. 275. Qualifications and exemptions of jurors. 276. Jurors, how drawn. 277. Jurors, how to be apportioned in the district. 278. Race or color not to exclude. 279. Venire, how issued and served. 280. Talesmen for petit juries. 281. Special juries. 282. Number of grand jurors. See. 283. Foreman of grand jury. 284. Grand juries, when summoned. 285. Discharge of grand juries. 286. Jurors not to serve more than once a year. 287. Challenges. 288. Persons disqualified for service on jury in prosecutions for polygamy, etc. Sec. 275. 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 may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned. Sec. 276. All such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in the section last preceding, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, or by the judge senior in commission in districts having more than one judge, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, 982 APPENDIX. without reference to party affiliations until the whole number required shall be placed therein. Sec. 277. Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service. Sec. 278. No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude. Sec. 279. Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or, in case the marshal or hia 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. Any person named in such writ who resides elsewhere than at the place at which the court is held, shall be served by the marshal mailing a copy thereof to such person commanding him to attend as a juror at a time and place designated therein, which copy shall be registered and deposited in the post office addressed to such person at his usual post-office address. And the re- ceipt of the person so addressed for such registered copy shall be re- garded as personal service of such writ upon such person, and no mile- age shall be allowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settle- ment of his accounts. Sec. 280. When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may ap- point, and such person shall be sworn, as provided in the preceding sec- tion. Sec. 281. When special juries are ordered in any district court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several States. Sec. 282. Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. If of the person summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors suffi- cient to complete the grand jury, the court shall make ' a like order to APPEITDIX. 983 the maiehal to summon a sufficient number of persona for tliat pur- pose. Sec. 283. From the persons summoned and accepted as grand jurors, the court shall appoint the foreman, who shall have power to admin- ister oaths and affirmations to witnesses appearing before the grand jury. Sec. 284. No grand jury shall be summoned to attend any district court unless the judge thereof, in his own discretion or upon a noti- fication by the district attorney that such jury will be needed, orders a. venire to issue therefor. If the United States attorney for any district which has a city or borough containing at least three hundred thousand inhabitants shall certify in writing to the district judge, or the senior district judge of the district, that the exigencies of the public service require it, the judge may, in his discretion, also order a venire to issue for a second grand jury. And said court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so. But noth- ing herein shall operate to extend beyond the time permitted by law the imprisonment before indictment found of a person accused of a crime or offense, or the time during which a person so accused may be beld under recognizance before indictment found. Sec. 285. The district courts, the district courts of the Territories, and the Supreme Court of the District of Columbia may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary. See. 286. No person shall serve as a petit juror in any district court more than one term in a year; and it shall be sufficient cause of chal- lenge to any juror called to be sworn in any cause that he has been summoned and attended said court as a juror at any term of said court held within one year prior to the time of such challenge. Sec. 287. When the offense charged is treason or a, capital offense, the defendant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to six peremptory chal- lenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. Sec. 288. In any prosecution for bigamy, polygamy, or unlawful co- habitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman — First, that he is or has been living in the practice of bigamy, polyg- amy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable either by sections one or 984 APPENDIX. three of an act entitled "An Act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes," approved March twenty-second, eigh- teen hundred and eighty-two, or by section fifty-three hundred and fifty- two of the Revised Statutes of the United States, or the Act of July first, eighteen hundred and sixty-two, entitled "An Act to punish and prevent the practice of Polygamy in the Territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of the territory of Utah;" or Second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman. Any person appearing or oflFered as a juror or talesman, and chal- lenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge; and other evi- dence may be introduced bearing upon the question raised by such chal- lenge; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if >ie shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any off'ense ahove named; but if he declines to answer on any ground, he shall be rejected as incompetent. CHAPTER THIRTEEN. GENEKAL PKOVISIONS. Sec 289. Circuit courts abolished; rec- ords of to be transferred to district courts. 290. Suits pending in circuit courts to be disposed of in district courts. 291. Powers and duties of circuit courts imposed upon district courts. 292. References to laws revised in this act deemed to refer to sections of act. Sec. 293. Sections 1 to 5, Revised Stat- utes, to govern construction of this act. 294. Laws revised in this act to be construed as continuations of existing laws. 295. Inference of legislative con- struction not to be drawn by reason of arrangement of sec- tions. 296. Act may be designated as "The Judicial Code." Sec. 289. The circuit courts of the United States, upon the taking efi'ect of this act, shall be, and hereby are, abolished; and thereupon, on said date, the clerks of said courts shall deliver to the clerks of the district courts of the United States for their respective districts all the journals, dockets, books, files, records, and other books and papers of or belonging to or in any manner connected with said circuit courts; APPENDIX. 985 and shall also on said date deliver to the clerks of said district courts all moneys, from whatever source received, then remaining in their hands or under their control as clerks of said circuit courts, or received by them by virtue of their said offices. The journals, dockets, books, files, records, and other books and papers so delivered to the clerks of the several district courts shall be and remain u, part of the official records of said district courts, and copies thereof, when certified under the hand and seal of the clerk of the district court, shall be received as evidence equally with the originals thereof; and the clerks of the several district courts shall have the same authority to exercise all the powers and to perform all the duties with respect thereto as the clerks of the several circuit courts had prior to the taking effect of this act. Sec 290. All suits and proceedings pending in said circuit courts on the date of the taking effect of this act, whether originally brought therein or certified thereto from the district courts, shall thereupon and thereafter be proceeded with and disposed of in the district courts in the same manner and with the same effect as if originally begun there- in, the record thereof being entered in the records of the circuit courts so transferred as above provided. Sec. 291. Wherever, in any law not embraced within this act, any reference is made to, or any power or duty is conferred or imposed upony the circuit courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the district courts. Sec. 292. Wherever, in any law not contained within this act, a ref- erence is made to any law revised or embraced herein, such reference, upon the taking effect hereof, shall be construed to refer to the section of this act into which has been carried or revised the provision of law to which reference is so made. Sec. 293. The provisions of sections one to five, both inclusive, of the Revised Statutes, shall apply to and govern the construction of the pro- visions of this act. The words "this title," wherever they occur herein, shall be construed to mean this act. Sec 294. The provisions of this act, so far as they are substantially the same as existing statutes, shall be construed as continuations there- of, and not as new enactments, and there shall be no implication of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest. Sec. 295. The arrangement and classification of the several sections of this act have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presump- tion of a legislative construction is to be dravni by reason of the chap- ter under which any particular section is placed. Sec. 296. This act may be designated and cited as "The Judicial Code." 986 APPENDIX. CHAPTEK FOURTEEN, EEPEALING PBOVISIONS. Sec. 297. 298. 299. Sections, acts, and parts of acts repealed. Repeal not to affect tenure of office, or salary, or compensa- tion of incumbents, etc. Accrued rights, etc., not affect- ed. Sec. 300. Offenses committed, and penal- ties, forfeitures, and liabili- ties incurred, how to be prose- cuted and enforced. 301. Date this act shall be effective. Sec. 297. The following sections of the Revised Statutes and acta and parts of acts are hereby repealed: Sections five hundred and thirty to five hundred and sixty, both in- clusive; sections five hundred and sixty-two to five hundred and sixty- four, both inclusive; sections five hundred and sixty-seven to six hun- dred and twenty-seven, both inclusive; sections six hundred and twenty- nine to six hundred and forty-seven, both inclusive; sections six hun- dred and fifty to six hundred and ninety-seven, both inclusive; section six hundred and ninety-nine; sections seven hundred and two to seven hundred and fourteen, both inclusive; sections seven hundred and six- teen to seven hundred and twenty, both inclusive; section seven hun- dred and twenty- three; sections seven hundred and twenty-five to seven hundred and forty-nine, both inclusive; sections eight hundred to eight hundred and twenty- two, both inclusive; sections ten hundred and forty- nine to ten hundred and eighty-eight, both inclusive; sections ten hun- dred and ninety-one to ten hundred and ninety-three, both inclusive, of the Revised Statutes. "An act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from State courts, and- for other purposes," approved March third, eighteen hundred and seventy- five. Section five of an act entitled "An Act to am«nd section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in leference to bigamy, and for other purposes," approved March twenty- second, eighteen hundred and eighty-two; but sections six, seven, and eight of said act, and sections one, two, and twenty-six of an act en- titled "An act to amend an act entitled 'An act to amend section fifty- three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes,' approved March twenty- second, eighteen hundred and eighty-two," approved March third, eight- teen hundred and eighty-seven are hereby continued in force. "An act to afford assistance and relief to Congress and executive departments in the investigation of claims and demands against the Government," approved March third, eighteen hundred and eighty-three. "An Act regulating appeals from the supreme court of the District APPENDIX. 987 of Columbia and the supreme courts of the several Territories,'' ap- proved March third, eighteen hundred and eighty-five. "An act to provide for the bringing of suits against the Government of the United States," approved March third, eighteen hundred and eighty-seven, except sections four, five, six, seven, and ten thereof. Sections one, two, three, four, six, and seven of an act entitled "An act to correct the enrollment of an act approved March third, eighteen hundred and eighty-seven, entitled 'An act to amend sections one, two, three, and ten of an act to determine the jurisdiction of the circuit courts of the Uhited States, and to regulate the removal of causes from the State courts, and for other purposes,' approved March third, eighteen hundred and seventy-five," approved August thirteenth, eighteen hun- dred and eighty-eight. "An act to provide for the bringing of suits against the Government cases not capital and confer the same on the circuit courts of appeals," approved January twentieth, eighteen hundred and ninety-seven. "An act to amend sections one and two of the act of March third, eighteen hundred and eighty-seven, Twenty-fourth Statutes at Large, chapter three hundred and fifty-nine," approved June twenty-seventh, eighteen hundred and ninety-eight. "An act to amend the seventh section of the act entitled 'An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March third, eighteen hundred and ninety-one, and the several acts amendatory thereto," approved April fourteenth, nine- teen hundred and six. All acts and parts of acts authorizing the appointment of United States circuit or district judges, or creating or changing judicial circuits, or judicial districts or divisions thereof, or fixing or changing the times or places of holding court therein, enacted prior to February first, nineteen hundred and eleven. Sections one, two, three, four, five, the first paragraph of section six, an section seventeen of an act entitled "An Act to create a commerce court, and to amend an Act entitled 'An Act to regulate commerce,' ap- proved February fourth, eighteen hundred and eighty-seven, as heretofore amended, and for other purposes," approved June eighteenth, nineteen hundred and ten. Also other acts and parts of acts, in so far as they are embraced within and superseded by this act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this Act has not been passed. Sec. 298. The repeal of existing laws providing for the appointment of judges and other ofiicers mentioned in this act, or affecting the organ- ization of the courts, shall not be construed to affect the tenure of office of the incumbents (except the office be abolished), but they shall continue to hold their respective oflices during the terms for which appointed, unless removed as provided by law; nor (except the office be abolished) 988 APPENDIX. shall such repeal affect the salary or fees or compensation of any officer or person holding office or position by virtue of any law. Sec. 299. The repeal of existing laws, or the amendments thereof, em- braced in this act, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding, including those pending on writ of error, appeal, certificate, or writ of certiorari, in any appellate court re- ferred to or included within, the provisions of this act, pending at the time of the taJfing effect of this act, but all such suits and proceedings, and suits and proceedings for causes arising or acts done prior to such date, may be commenced and prosecuted within the same time, and with the same effect, as if said repeal or amendments had not been made. Sec. 300. All offenses committed, and all penalties, forfeitures, or lia- bilities incurred prior to the taking effect hereof, under any law embraced in, amended, or repealed by this act, may be prosecuted and punished, or sued for and recovered, in the district courts, in the same manner and with the same effect as if this act had not been passed. Sec. 301. This act shall take effect and be in force on and after Jan- uary first, nineteen hundred and twelve. Approved, March 3, 1911. JURISDICTIONAL ACTS OF 1875 AS AMENDED BY THE ACT OF 1888 IN FORCE UNTIL JANUARY 1, 1912. An act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes. Sec, 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the first section of an act entitled "An act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from State courts, and for other purposes," approved March third, eighteen hundred and seventy-five, be, and the same is hereby, amended so as to read as follows : ORIGINAL JUEISDICTION OF CIRCUIT COURTS. That the circuit courts of the United States shall have original cogniz- ance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, (1) where the matter in dispute exceeds exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, (2) or in which controversy the United States are plaintiffs or petitioners (3) or in which there shall be a, controversy between citizens of different APPENDIX. 989 States in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, (4) or a controversy between citizens of the same State claiming lands under grants of different States, (5) or a controversy between citizens of a State and foreign States, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, (6) and shall have exclusive cog- nizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent juris- diction with the district courts of the crimes and offenses cognizable by them. PLACE OF STJIT. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintifif or the defendant. SUIT BY ASSIGNEE. Nor shall any circuit or district court have cognizance of any suit (except upon foreign bills of exchange), to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder, if such instrument be payable to the bearer (and be not made by any corporation ) , unless such suit might have been prose- cuted in such court to recover the said contents if no assignment or trans- fer had been made; and the circuit courts shall also have appellate juris- diction from the district courts under the regulations and restrictions pre- scribed by law. JUBISDICTION BY BEMOVAL FEOM STATE COUET — SUIT INVOLVING FEDERAL QUESTION. See. 2. That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding sec- tion, which may now be pending, or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. BEMOVAL OF 0T7IEE SUITS. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding 990 APPENDIX. section, and which are now pending, or which may hereafter be brought, in any State court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State. SEVERABLE CONTBOVEBST. And when in any suit mentioned in this section there shall be a con- troversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. EEMOVAL FOB LOCAL INFLTJENCE. And where a suit is now pending, or may be hereafter brought, in any State court, in which there is a controversy between a, citizen of the State in which the suit is brought and a, citizen of another State, any defendant, being such citizen of another State, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State have the right, on account of such prejudice or local influence, to remove said cause; provided, that if it further appear that said suit can be fully and justly determined as to other defendants in the State court without being affected by such preju- dice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be re- manded, so far as relates to such other defendants, to the State court, to be proceeded with therein. EEMAND OF CASE BEMOVBD FOE LOCAl INFLTJENCE. At any time before the trial of any suit which is now pending in any circuit court, or may hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State court, the circuit court shall, upon application of the other party, examine into the truth of said affldavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such State court, it shall cause the same to be re- manded thereto. NO APPEAL FEOM EEMANDING OEDEB. Whenever any cause shall be removed from any State court into anv APPBNDIS. 991 circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed. PROCEEDINGS IN STATE CODET. Sec. 3. That whenever any party entitled to remove any suit mentioned in the next preceding section, except in such cases as are provided for in the last clause of said section, may desire to remove such suit from a State court to the circuit court of the United States, he may make and file a, petition in such suit in such State court at the time, or any time before the defeifdant is required by the laws of the State or the rule of the State court in wliich suit is brought to answer or plead to the decla- ration or complaint of the plaintiff, for the removal of such suit iiito the circuit court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond, and proceed no further in such suit; and the said company being entered as aforesaid in said circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court. EEMOVAL OP STJIT AS TO TITLE TJNDEB GBANTS FROM DIFFERENT STATES. And if in any action commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceed the sum or value of two thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a. right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such infor- mation, or otherwise not be allowed to plead such grant or give it in evidence upon the trial; and if he or they inform that he or they do claim under such grant, anyone or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this act remove the cause for trial to the circuit court of the United 992 APPENDIX. States next to be holden in such district; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim. BEMOVAL — ^ATTACHMENTS — INJUNCTIONS. Sec. 4. That when any suit shall be removed from a State court to a circuit court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which such suit was commenced. And all bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual, notwithstanding said removal. And all injunctions, orders, and the proceedings had in such court prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed. LACK or JURISDICTION — SUIT DISMISSED OE BEMANDED TO STATE COUET. Sec. 5. That if, in any suit commenced in a circuit court, or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a, dispute or controversy properly within the juris- diction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defend- ants for the purpose of creating a, case cognizable or removable under this act the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just. BEMOVAL — PEACTICE AFTER. Sec. 6. That the circuit court of the United States shall, in all suits removed under the provisions of this act, proceed therein as if the suit had been originally commenced in said circuit court, and the same proceed- ings had been taken in such suit in said circuit court as shall have been had therein in said State court prior to its removal. REMOVAL — PRACTICE AS TO. Sec. 7. That in all causes removable under this act, if the term of the circuit court to which the same is removable, then next to be holden APPENDIX. 993 shall commence within twenty days after filing the petition and bond in the State court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said circuit court and enter appearance therein; and if done within said twenty days such filing and appearance shall be taken to satisfy the said bond in that behalf. That if the clerk of the State court in which any such cause shall be pending, shall refuse to any one or more of the parties or persons applying to remove the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so oiiending shall be deemed guilty of a misdemeanor, and, on conviction thereof in the circuit court of the United States to which said action or proceeding was removed, shall be pun- ished by imprisonment not more than one year, or by fine not exceeding one thousand dollars, or both in the discretion of the court. And the circuit court to which any cause shall be removable under this act shall have power to issue a writ of certiorari to said State court commanding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this act for the removal of the same, and enforce said writ according to law. And if it shall be impossible for the parties or persons removing any cause under this act, or complying with the provisions for the removal thereof, to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the circuit court shall make an order requiring a prosecutor in any such action or proceeding to enforce forfeiture or recover penalty as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding. But if said order shall be complied with, then said circuit court shall require the other party to plead, and said action, or proceeding, shall pro- ceed to final judgment; and the said circuit court may make an order requiring the parties thereto to plead de novo; and the bond given, con- ditional as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid. StriT TO ENFOECE POSSESSION, ETC. — SEEVICE BY PUBLICATIOIS'. Sec. 8. That when in any suit, commenced in any circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any encumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such absent defendant or de- S. Eq.— 63. 994 APPENDIX. fendants, if practieatle, wherever found, and also upon the person or per- sons in possession or charge of said property, if any there be. Or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. And in case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon the proof of the service or publication of said order, and of the performance of the directions con- tained in the same, it shall be lawful for the court to entertain juris- diction, and proceed to the hearing and adjudication of such suit in the same manner as > if such absent defendant had been served with process within the said district. But said adjudication shall, as regards said absent defendant or de- fendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district. And when a part of the said real or personal property against which such proceeding shall be taken shall be within another district, but within the same State, said suit may be brought in either district in said State, provided, however, that any defendant or defendants not actually person- ally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said circuit court, and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law. DEATH OP PABTT — SDBSTITtlTION OF EEPEESENTATIVE. Sec. 9. That whenever 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 \o 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 an appeal taken or writ of error brought, notice to his repre- sentative 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. EEPEAL. Sec. 10. That all acts and parts of acts in conflict with the provisions of this act are hereby repealed. APPENDIX. 995 FURTHER AMENDMENT TO ACT 1875. An Act Approved August 13, 1888, to Amend Sections 1, 2, 3, and 10 of an Act to Determine the Jurisdiction of the Circuit Courts, etc. 25 Stat, at Large, p. 436. EECEIVEK SHALL MANAGE PEOPEKTY ACCOKDING TO LOCAL LAW. Sec. 2. That whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property accord- ing to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or pos- sessor thereof would be bound to do if in possession thereof. Any re- ceiver or manager who shall wilfully violate the provisions of this section shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by a, fine not exceeding three thousand dollars, or by impris- onment not exceeding one year, or by both said punishments, in the dis- cretion of the court. EECEIVEE MAT BE SUED WITHOUT LEAVE — COUET APPOINTING EECEIVEK TO RETAIN CONTEOL. Sec. 3. That every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or trans- action of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity juris- diction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice. SUITS BY OE AGAINST NATIONAL BANKS. See. 4. That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and in all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State. The provisions of this cection shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any oflScer thereof, or cases for winding up the affairs of any such bank. 996 APPENDIX. JUEISDICTION SAVED. Sec. 5. That nothing in this act shall be held, deemed, or construed to repeal or aflfect any jurisdiction or right mentioned either in sections six hundred and forty-one, or in six hundred and forty-two, or in six hundred and forty-three, or in seven hundred and twenty-tvpo, or in title twenty- four of the Revised Statutes of the United States, or mentioned in section eight of the act of Congress of which this act is an amendment, or in the act of Congress approved March first, eighteen hundred and seventy- five, entitled "An act to protect all citizens in their civil and legal rights." BEPEAL. Sec. 6. That the last paragraph of section five of the act of Congress approved March third, eighteen hundred and seventy-five, entitled "An act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from State courts, and for other purposes," and section six hundred and forty of the Revised Statutes, and all laws and parts of laws in conflict with the provisions of this act, be and the same are hereby repealed; provided, that this act shall not afltect the jurisdiction over or disposition of any suit removed from the court of any State, or suit commenced in any court of the United States, before the passage hereof except as otherwise expressly provided in this act. EELATIVE OF JXTDGB NOT TO BE EMPLOYED IN COTJBT. Sec. 7. That no person related to any justice or judge of any court of the United States by aflBnity or consanguinity within the degree of first cousin shall hereafter be appointed by such court or judge to, or employed by such court or judge in, any office or duty in any court of which such justice or judge may be a member. APPENDIX. 997 EULES OF PRACTICE COURTS OF EQUITY OF THE UNITED STATES. EULE L Court always open. — ^The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings; for issuing and returning mesne and final process and com- missions; and for making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to hearing of all causes upon their merits. EULE n. Rule day. — The clerk's oflBce shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceedings, which are grantable of course and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. Orders at chamhers. — Any judge of the circuit court, as well in vacation as in term, may at chambers, or on the rule days, at the clerk's office, make and direct all such interlocutory orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the circuit court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party or his solicitor to appear and show cause to the contrary at the next rule day thereafter, unless some other time is assigned by the judge for the hearing. Order hoojc — entry of motions. — All motions, rules, orders, and other proceedings, made and directed at chambers, or on rule days at the clerk's office, whether special or of course, shall be entered by the clerk in aji order book to be kept at the clerk's office, on the day when they are made APPENDIX. and directed; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And except in cases where personal or other notice is specially required or directed, such entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices and other proceedings entered in such order book, touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders, or other proceedings not re- quiring personal service on the parties, in their discretion. ETJLE V. Motions grantable l>y clerk. — ^AU motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees ; for filing bills, answers, pleas, demurrers, and other plead- ings; for making amendments to bills and answers; for taking bills pro confesso; for filing exceptions; and for other proceedings in the clerk's office which do not, by the rules hereinafter prescribed, require any al- lowance or order of the court or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded, by any judge of the court, upon special cause shown. BULE VI. Motions not of course. — All motions for rules or orders or other proceed- ings which are not grantable of course or without notice shall, under a different time be assigned by a judge of the court, be made on a rule day, and entered in the order book, and shall be heard at the rule day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion. BULB VII. Mesne process. — The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill; and unless otherwise provided in these rules, or specially ordered by the circuit court, a, writ of attachment, and, if the defendant can not be found a writ of sequestration, or a writ of assistance to enforce a delivery of possession as the case may require, shall be the proper process to issue for the pur- APPENDIX. 999 pose of compelling obedience to any interlocutory or final order or deerw of the court. RULE VIII. Final process. — Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a, writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the pay- ment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and affidavit, enlarging the time for the perform- ance thereof. If the delinquent party can not be found, a writ of seques- tration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. EtJLE IX. Writ of assistance. — When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. Persons not parties. — Every person, not being a party in an cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person, not being a, party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obed- ience to such orders as if he were a. party in the cause. Issuance of subpwna. — No process or subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. EULE XII. Return of suhpoena. — Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the 1000 APPENDIX. plaintiff, which shall be returnable into the clerk's office the next rule day, or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of issuing thereof. At the bottom of the subpoena shall be placed a memorandum that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; otherwise the bill may be taken pra confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each de- fendant, except in the case of husband and wife defendants, or a, joint subpoena against all the defendants. EULE xm. Manner of service of sulpcena. — The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who i& a member or resident in the family. Alias suipcena. — Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpoena, toties quoties, against each defendant, if he shall require it, until due service is made. BTJLE XV. By whom served. — ^The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some person specially appointed by the court for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof. Docketing cause. — ^Upon the return of the subpoena as served and exe- cuted upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. KTTLE XVII. Appearance, when and how entered. — The appearance day of the de- fendant shall be the rule day to which the subpcena is made returnable provided he has been served with the process twenty days before that day; otherwise his appearance day shall be the next rule day succeeding the rule day when the process is returnable. The appearance of the defendant, either personally or by his solicitor shall be entered in the order book on the day thereof by the clerk. APPENDIX. 1001 EULE xvm. Default and decree pro confesso. — It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer or answer to the bill in the clerk's office on the rule day next succeeding that of entering his appearance. In default thereof the plaintiff may, at his election, enter an order (as of course) in the order book that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order if the same can be done without an answer, and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause. ETILE XIX. Decree pro confesso — default set aside. — When the bill is taken pro confesso the court may proceed to a decree at any time after the expira- tion of thirty days from and after the entry of the order to take the bill pro confesso and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affidavit of the de- fendant. And no such motion shall be granted unless upon the payment of the costs of the plaintiflF in the suit up to that time, or such part thereof as the court shall deem reasonaljle, and unless the defendant shall under- take to file his answer within such time as the court shall direct, and sub- mit to such other terms as the court shall direct, for the purpose of speeding the cause. ETTLE XX. Bill, form of. — Every bill, in the introductory part thereof, shall contain the names, places of abode and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in sub- stance, shall be as follows: "To the judges of the circuit court of the United States for the district of : A. B., of , and a citizen of the State of , brings this his bill against C. D., of , and a citizen of the State of and E. F., of , and a citizen of the State of . And thereupon your orator complains and says that," etc. 1002 APPENDIX, Clauses omitted from lill. — The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common con- federacy clause of the bill, averring a, confederacy between the defend- ants to injure or defraud the plaintiff; also what is commonly called the charging part of the bill, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defense to the bill; also what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the defendant is with- out any remedy at law, and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or starting part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant by way of defense or excuse to the case made by the plaintiff for relief. The prayer of the bill shall ask the special relief to which the plaintiff supposes himself en- titled, and also shall contain a prayer for general relief; and if an in- junction, or a writ of ne exeat regno, or any other special order, pending the suit, is required, is shall be specially asked for. EULE XXII. Parties beyond jurisdiction. — If any persona, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without jurisdiction of the court, or that they can not be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. BTJLE XXIII. Prayer for process. — The prayer for process of subpoena in the bill shall contain the names of the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact so that the court may take order thereon, as justice may require, upon the return of the process. If an injunction or a writ of ne exeat regno, or any other special order, pending the suit, is asked for in the prayer for relief, that shall be suffi- cient, without repeating the same in the prayer for process. RULE XXIV. Counsel must sign iill. — Every bill shall contain the signature of coun- sel annexed to it, which shall be considered as an affirmation on his part that, upon the instructions given to him and the case laid before him there is good ground for the suit in the manner in which it is framed. APPENDIX. 1003 BULB XXV. Costs — purposes of taxation. — In order to prevent unnecessary costs and expenses and, to promote brevity, succinctness and directness in the allegations of bills and answers, the regular taxable costs of every bill and answer shall in no case exceed the sum which is allowed in the State court of chancery in the district, if any there be; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer. KULE XXVI. Contents of till — exceptions. — Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unneces- sary recitals of deeds, documents, contracts or other instruments m fweo verba or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on exceptions, be referred to a iiaster by any judge of the court, for impertinence or scandal; and ii so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or Impertinent, the plaintiff shall be entitled to all costs occasioned by the reference. RULE xxvn. Exceptions for scandal or impertinence. — No order shall be made by any judge for referring any bill, answer or pleading, or other matter or proceeding, depending before the court, for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the par- ticular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule day after the process of the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any unnec- essary delay, procure the master to examine and report on the same on or before the next succeeding rule day, or the master shall certify that further time Is necessary for him to complete the examination. EULE XXVIII. Bills amended — costs paid and copy furnished. — ^The plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill, in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filling blanks, correcting errors of dates, misnomer of parties, misdescrip- tion of premises, clerical errors, and generally in matters of form. But if he amend in a material point, as he may do of course, after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall 1004 APPENDIX. pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free of expense, with suitable references to the place where the same are to be inserted. And if the amendments are numerous he shall furnish, in like manner, to the defendant, a copy of the whole bill as amended; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. EULE XXIX. Atnendment of bill. — ^After an answer or plea or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule day, upon payment of costs or without payment of costs, as the court or a judge thereof may in his dis- cretion direct. But after replication filed, the plaintiff shall not be per- mitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by afiSdavit that the same is not mad» for the purpose of vexation or delay, or that the matter of the proposed amend- ment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. BULE XXX. Ahandonment and proceeding thereon. — If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. EULE XXXI. Certificate of counsel — affidavit. — ^No demurrer or plea shall be allowed to be filed to any bill unless upon a certificate of counsel that in his opin- ion is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay; and if a plea, that it is true in point of fact. BULE XXXII. Defendant may demur, plead, or answer. — The defendant may at any time before the bill is taken for confessed, or afterward with the leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part and answer to the residue; but in every case in which the bill specially charges fraud or combination a plea to such part must be accompanied with an answer fortifying the plea APPENDIX. 1005 and explicitly denying the fraud and combination, and the facts on which the charge is founded. EULE xxxin. Setting down for argument. — ^The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. EtTLB xxxrv. Proceedings on overruling demurrer or plea. — If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant has good ground, in point of law or fact, to interpose the same, and it was not interposed vexatiously or for delay. And, upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or de- murrer, the next succeeding rule day, or at such other period as, con- sistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done; in default whereof, the bill shall be taken against him pro confesso, and the matter thereof pro- ceeded in and decreed accordingly. EULE XXXV. // sustained — amendment of hill. — If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill, upon such terms as it shall deem reasonable. EULE XXXVL Extent of demurrer or plea. — ^No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to. EULE xxxvir. Answer as affecting demurrer or plea. — No demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea, EULE xxxvm. Failure to reply or to set down for argument. — If the plaintiff shall 1006 APPENDIX. not reply to any plea, or set down any plea or demurrer for argument, on the rule day when the same is filed, or on the next succeeding rule day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course unless a judge of the court shall allow him further time for the purpose. Answer. — The rule that if a defendant submits to answer he shall answer or discovery of his title than he would be in any answer in support where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases, by answer, to insist upon all matter of defense (not being matters of abatement, or to the character of the parties, or matters of form), in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar; and in such answer he shall not be compellable to answer any other matters that he would be compellable to answer and discover upon filing a, plea in bar and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defense. Thus, for example, a iona fide purchaser for a valuable consideration, without notTce, may set up that defense by way of answer instead of plea, and shall be entitled to the same protection and shall not be compellable to make any further answer fully to all the matters of the bill shall no longer apply in cases of such plea. BUIE XLI. Interrogatories. — ^It shall not hereafter be necessary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so to obtain a discovery. BTJLB XXXIX. Interrogatories continued. — (1) The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3, etc. ; and the inter- rogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say: "The defendant (A. B.) is required to answer the inter- rogatories numbered respectively 1, 2, 3," etc.; and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole bill. (2) If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain speci- fied interrogatories, the answer of the defendant, though under oath, ex- cept such part thereof as shall be directly responsive to such interrog- atories, shall not be evidence in his favor, unless the cause be set down for APPENDIX. 1007 hearing on bill and answer only; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dis- solve an injunction, or on any other incidental motion in the cause; but this shall not prevent a defendant from becoming a. witness in his own behalf under section 3 of the act of Congress of July 2, 1864, BtlLE XLII. 'Note specifying interrogatories to 6e answered, part of iill. — The note at the foot of the bill specifying the interrogatories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addi- tion to such note, after the bill is filed, shall be considered and treated as an amendment of the bill. BULE XLIII. Form when interrogatories are used. — Instead of the words of the bill now in use, preceding the interrogating part thereof, and beginning with the words: "To the end, therefore," there shall hereafter be used words in the form or to the effect following: "To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective cor- poral oaths, and according to the best and utmost of their several and re- spective knowledge, remembrance, information and belief, full, true, direct and perfect answer make to such of the several interrogatories hereinafter numbered and set forth by the note hereunder written they are respectively required to answer; that is to say: "1. Whether, etc. "2. Whether," etc. EULE XLIV. When interrogatories need not be answered. — A defendant shall be at liberty, by answer, to decline answering any interrogatory, or part of an interrogatory, from answering which he might have protected himself by demurrer; ajid he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer. BTTLE XLV. Special replication not allowed. — No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without payment of costs, as the court, or a judge thereof, may in his discretion direct. 1008 APPENDIX. EULE XLVI. Answer to amended hill. — ^In every case where an amendment sball be made after answer filed, the defendant shall put in a new or supple- mental answer on or before the next succeeding rule day after that on which the amendment or bill is filed, unless the time is enlarged or other- wise ordered by a judge of the court; and upon his default, the like pro- ceedings may be had as in cases of an omission to put in an answer. EUUE XLvn. Omission of parties. — In all oases where it shall appear to the court that persons, who might otherwise be deemed necessary or proper parties to the suit, can not be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. BULB XLVIIL Parties, when numerous. — Where the parties on either side are very numerous, and can not, without manifest inconvenience and oppressive de- lays in the suit, be all brought before it, the court, in its discretion, may dispense with making all of them parties, and may proceed in the suit, having sufiicient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But, in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. BULE XT.TX. Buits hy trustees. — In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits in the same manner and to the same extent as the executors or administrators in suits con- cerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit; but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. BTJLE L. Heir, when party and when not. — In suits to execute the trusts of a APPENDIX. 1009 ■will, it shall not be necessary to make the heir at law a party: but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will established against him. Joint and several demands. — In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the' court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. EtiLB m. Defect of parties. — Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order book, in the form or to the effect following (that is to say) : "Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objec- tion shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. BULE Lin. Objection, of defect of parties. — If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description of parties to whom the objection applies, the court, if it shall think fit, shall be at liberty to make a decree saving the rights of the absent parties. EULE LIV. Nominal parties. — Where no account, payment, conveyance or other di- rect relief is sought against a, party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill; but he may appear and answer at his option; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. S. Eq. — 64. 1010 APPENDIX Injunctions. — ^Whenever an injunction is asked for by the bill to stay proceedings at law, if tlie defendant do not enter his appearance, and plead, demur or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled, as of course, upon motion, without notice, to such injunction. But special injunctions shall be grant- able only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case where an injunction — either the common injunction or a, special in- junction — is awarded in vacation, it shall, unless previously dissolved by the judge granting the same, continue until the next term of the court, or until it is dissolved by some other order of the court. Revivor of suit. — Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the ease may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time, and, upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk requiring the proper of representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course, BULE LVII. Supplemental till. — ^Whenever a suit in equity shall become defective from any event happening after the filing of the bill, as, for example, by change of interest in the parties, or for any other reason, a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule day upon proper cause shown and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead or answer thereto on the next succeeding rule day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court. ECLE Lvm. Bills of reviiior or supplement. — It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the origi- nal suit, unless the special circumstances of the case may require it. APPENDIX. 1011 ETJLE LIX. Answer verified before whom. — Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a State or Territory, or notary public. Amendment of answer. — After an answer is put in it may be amended as of course in any matter of form or by filling up a blank, or correcting a date, or reference to a, document, or other small matter, and be resworn, at any time before a, replication is put in, or the cause is set down for a hearing upon bill and answer. But after replication or such setting down for hearing it shall not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original state- ments, except by special leave of the court, or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by affidavit; and in every ease where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom. Exceptions for insufficiency. — After an answer is filed on any rule day the plaintiff shall be allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a judge thereof; and, if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. RULE Lxn. Costs of separate amsuxrs. — ^When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other pro- ceedings had by two or more of the defendants separately, costs shall not be allowed for such separate answers, or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. BULB Lxra. Setting down exceptions for argument. — Where exceptions shall be filed to the answer for insufficiency, within the period prescribed by these 1012 APPENDIX. rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule day, the plaintifif shall forthwith set them down for a hearing on the next succeeding rule day thereafter, before a judge of the court, and shall enter, as of course, in the order book, an order for that purpose; and if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed sufficient; provided, however, that the court, or any judge thereof, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. EULE LXIV. // exceptions sustained, further answer. — If, at the hearing, the excep- tions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto on the next succeeding rule day; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant, when he is in custody upon such a writ, shall not be discharged therefrom but by an order of the court, or of a, judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct. EXJLE LXV. Costs on exception. — If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hear- ing upon the exceptions. EULE LXVI. Replication. — Whenever the answer of the defendant shall not be ex- cepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule day thereafter; and in all cases where the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defend- ant shall be entitled to an order, as of course, for a dismissal of the suit- and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion, for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. APPENDIX. 1013 EULE LXVn. Testimony — Jiovo taken. — (1) After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commission; and if no cross-interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases the commissioner or commissioners shall be named by the court or by a judge thereof. Ordered, that the sixty-seventh rule governing equity practice be so amended as to allow the presiding judge of any court exer- cising jurisdiction, either in term time or in vacation, to vest in the clerk of said court general power to name commissioners to take testimony in like manner that the court or judge thereof can now do by the said sixty- seventh rule. (2) Either party may give notice to the other that he desires the evi- dence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the exam- iners of the court or before an examiner to be specially appointed by the court, the examiner, if he so request, shall be furnished with a. copy of the pleadings; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-examination, and which shall be conducted as near as may be in the mode now used in common law courts. The depositions taken upon such oral examinations shall be reduced to writing by the examiner, in the form of question put and answer given; provided, that by consent of parties, the examiner may take down the testimony of any witness in the form of narrative. At the request of either party, with reasonable notice, the deposition of any witness shall, under the direction of the examiner, be taken down either by a skilful stenographer or by a skilful typewriter, as the exam- iner may elect, and when taken stenographically shall be put into type- writing or other writing; provided, that such stenographer or typewriter has been appointed by the court, or is approved by both parties. The testimony of each witness, after such reduction to writing, shall be read over to him and signed by him in the presence of the examiner and of such of the parties or counsel as may attend; provided, that if the wittiess shall refuse to sign his deposition so taken, then the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may, upon all examinations, state any special matters to the court as he shall think fit; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materialty or relevancy of the questions; and the court shall have power to deal with the costs of incompetent, immaterial or irrelevant depositions, or parts of them, as may be just. 1014 APPENDIX. In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same prac- tice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. When the examination of witnesses before the examiner is concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record, in the same mode as prescribed in section 865 of the Revised Statutes. Testimony may be taken on commission in the usual way, by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons, satisfactory to the court or judge. Where the evidence to be adduced in a cause is to be taken orally, as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of^ the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply; and no further evidence shall be taken in the cause, unless by agreement of the parties or by leave of court first obtained, on motion for cause shown. The expense of the taking down of depositions by a stenographer and of putting them into typewriting or other writing shall be paid in the first instance by the party calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge should ultimately bear them. Upon due notice given as prescribed by previous order, the court may, at its discretion, permit the whole, or any specific part, of the evidence to be adduced orally in open court on final hearing. ETXLE LXVIII. Under acts of Congress. — Testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witness, either under a commission or by a new deposition taken under the acts of Congress, if a court or judge thereof shall, under all the circumstances, deem it reason- able. KTILE LXIX. Time for testimony.— Three months, and no more, shall be allowed for APPENDIX. 1015 the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be enlarged as he may deem reasonable under all the circumstances; but, by consent of the parties, publication of the testimony may at any time pass into the clerk's office, such consent being in writing, and a copy thereof entered in the order books, or indorsed upon the deposition or testimony. EtTLE LXX. Infirm, single or about to depart. — After any bill filed, and before the defendant hath answered the same, upon affidavit made that any of plain- tiff's witnesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a, material fact, the clerk of the court shall, as of course, upon the application of the plaintiff issue a com- mission to such commissioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse upon giving due notice to the adverse party of the time and place of taking his testimony. BTILE LXXI. Last interrogatory. — The last interrogatory in the written interrogato- ries to take testimony now commonly in use shall in the future be altered, and stated in substance thus: "Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer. ECIE Lxxn. Gross-'bill — ansioer to. — Where m. defendant in equity files a cross bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross bill. The answer of the original plaintiff to such cross bill may be read and used by the party filing the cross bill at the hearing, in the same manner and under the same restric- tions as the answer praying relief may now be read and used. BTTLE LXXIII. Accotmt of estate. — Every decree for an account of the personal estate 1016 APPENDIX. of a testator or intestate shall contain a direction to the master, to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of„ unless the court shall otherwise direct. EULE ILXXIV. Proceedings on reference. — Whenever any reference of any matter is made to a master to examine and report thereon, the party at whose instance or for whose benefit the reference was made shall cause the same to be presented to the master for hearing on or before the next rule day succeeding the time when the reference is made; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. BTILE LXXV. Master, proceedings hefore. — Upon every such reference, it shall be the- duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors; and if either party shall fail to appear at the time and place appointed the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, ajid to certify to the court or judge the reasons for any delay. BTJLE LXXVI, Master's report. — ^In the reports made by the master to the court, no part of any state of facts, charge, afiSdavit, deposition, examination or answer brought in or used before them shall be stated or recited. But such state of facts, charges, affidavits, deposition, examination or answer shall be identified, specified and referred to, so as to inform the court what state of facts, charge, affidavit, deposition or answer were so brought in or used. ETJLE LXXVII. Duty and power of master. — The master shall regulate all the proceed- ings in every hearing before liim upon every such reference; and he shall have full authority to examine the parties in the cause, upon oath touch- ing all matters contained in the reference; and also to require the pro- APPENDIX. 1017 ductlon of all books, papers, writings, vouchers and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken under a commission to be issued upon his certificate from the clerk's office or by deposition, according to the acta of Congress, or otherwise, as hereinafter provided; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and pro- ceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. EXILE LXXVIII. Attendance of mtnesses. — Witnesses who live within the district may, upon due notice to ihe opposite party, be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court; and if any witness shall refuse to appear or give evidence, it shall be deemed a con- tempt of the court, which being certified to the clerk's office by the com- missioner, master or examiner, an attachment may issue thereupon by order of the court, or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein contained shall prevent the examination of witnesses viva voce when produced in open court, if the <^ou^t shall, in its discretion, deem it advisable. BULE LXXIX, Form, of accounts. — All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct. BULB LXXX. What used hefore master. — All affidavits, depositions and documents which have been previously made, read or used in the court, upon any proceeding in any cause or matter, may be used before the master. ETOE LXXXI. Who may le examined. — The master shall be at liberty to examine any 1018 APPENDIX. creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. BtlLE LXXXn. Appointment — fees. — The circuit courts may appoint standing masters in chancery in their respective districts, both the judges concurring in the appointment; and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master in chancery for his services in any particular case shall be fixed by the circuit court, in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation; but, when the compensation is allowed by the court, he shall be entitled to an attach- ment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. ETJLE Lxxxin. Return and entry of master's report. — ^The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file exceptions thereto, and, if no exceptions are within that period filed by either party, the report shall stand confirmed on the next rule day after the month is expired. If exceptions are filed they shall stand for hearing before the court if the court is then in session, or, if not, then at the next sitting of the court which shall be held thereafter, by adjournment or otherwise. RULE Lxxxrv. Costs on frivolous causes. — ^And, in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs; the costs to be fixed in each case by the court, by a standing rule of the circuit court. EULE LXXXV. Correction of decree. — Clerical mistakes in decrees or decretal orders or errors arising from any accidental slip or omission, may, at anv time APPENDIX. 1019 before an actual enrollment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. KULE LXXXVI. Decree, form of. — In drawing up decrees and orders, neither the bill nor answer, nor other pleadings, nor any part thereof, nor the report of ajiy master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as follows: "This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as fol- lows, viz.:" (Here insert the decree or order.) EXILE LXXXVII. Suits ty or against incompetents — Guardians ad litem to defend a suit, may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for them. EXILE Lxxxvm. Rehearing. — ^Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court in the discretion of the court. ETJLE LXXXIX. Rules ty circuit court. — ^The circuit courts (a majority of all the judges thereof, including the justice of the supreme court, the circuit judges and the district judge for the district concurring therein) may make any other and further rules and regulations for the practice, proceedings, and proc- ess, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. BTJLE XC. Rules of practice. — In all cases where the rules prescribed by this court 1020 APPENDIX. or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice. Affirmation. — Whenever, under these rules, an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. RULE XCII. Decree in foreclosure cases. — In suits in equity for the foreclosure of mortgages in the circuit court of the United States, or in any court of the Territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collec- tion of the same, as is provided in the eighth rule of this court regulating the equity practice, where the decree is solely for the payment of money. RULE XCIII. Injunction — on appeal. — When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a, justice or judge who took part in the decision of the cause, he may, in his discre- tion, at the time of such allowance, make an order suspending or modifying the injunction during the pendency of the appeal, upon such terms as to bond or otherwise as he may consider proper for the security of the rights of the opposite party. ETJLE xcrv. Bill hy stockholder. — Every bill brought by one or more stockholders in a corporation, against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a. share- holder at the time of the transaction of which he complains, or that his share had devolved on him since, by operation of law, and that the suit is not a collusive one to confer on a, court of the United States juris- diction of a case of which it would not otherwise have cognizance. It must set forth with particularity the eflforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and if necessary, of the shareholders and the causes of his failure to obtain such action. APPENDIX. 1021 RULES FOR PRACTICE AND PROCEDURE IN COPYRIGHT CASES. 1. The existing rules of equity practice, so far as tliey may be applicable, shall be enforced in proceedings instituted under section twenty -five (25) of the act of March 4th, 1909, entitled "An act to amend and consolidate the acts respecting copyright." 2. A copy of the alleged infringement of copyright, if actually made, and a. copy of the work alleged to be infringed, should accompany the peti- tion, or its absence be explained; except in cases of alleged infringement by the public performance of dramatic and dramatico-musical composi- tions, the delivery of lectures, sermons, addresses, and so forth, the in- fringement of copyright upon sculptures and other similar works, and in any case where it is not feasible. Upon the institution of any action, suit, or proceeding, or at any time thereafter, and before the entry of final judgment or decree therein, the plaintiflF or complainant, or his authorized agent or attorney, may file with the clerk of any court given jurisdiction under sec. 34 of the act of March 4th, 1909, an affidavit stating upon the best of his knowledge, information, and belief, the number and location, as near as may be, of the alleged infringing copies, records, plates, molds, matrices, etc., or other means for making the copies alleged to infringe the copyright, and the value of the same, and with such affidavit shall file with the clerk a bond executed by at least two sureties and approved by the court, or a commissioner thereof. Such bond shall bind the sureties in a specified sum, to be fixed by the court, but not less than twice the reasonable value of such infringing copies, plates, records, molds, matrices, or other means for making such infringing copies, and be conditioned for the prompt prosecution of the action, suit or proceedings; for the return of said articles to the defend- ant, if they or any of them are adjudged not to be infringements, or if the action abates, or is discontinued before they are returned to the de- fendant; and for the payment to the defendant of any damages which the court may award to him against the plaintiff or complainant. Upon the 1022 APPENDIX. filing of said affidavit and bond, and the approval of said bond, the clerk shall issue a writ directed to the marshal of the district where the said infringing copies, plates, records, molds, matrices, etc., or other means of making such infringing copies shall be stated in said affidavit to be located, and generally to any marshal of the United States, directing the said marshal to forthwith seize and hold the same, subject to the order of the court issuing said writ, or of the court of the district in which the seiz- ure shall be made. The marshal shall thereupon seize said articles or any smaller or larger part thereof he may then or thereafter find, using such force as may be reasonably necessary in the premises, and serve on the defendant a copy of the affidavit, writ, and bond, by delivering the same to him personally, if he can be found within the district, or, if he cannot be found, to hia agent, if any, or to the person from whose possession the articles are taken, or, if the owner, agent, or such person cannot be found within the district, by leaving said copy at the usual place of abode of such owner or agent, with a person of suitable age and discretion, or at the place where said articles are found, and shall make immediate return of such seizure, or attempted seizure, to the court. He shall also attach to said articles a tag or label stating the fact of such seizure, and warning all persons from in any manner interfering therewith. 6. A marshal who has seized alleged infringing articles shall retain them in his possession, keeping them in a secure place, subject to the order of the court. 7. Within three days after the articles are seized, and a copy of the affi- davit, writ, and bond are served, as hereinbefore provided, the defendant shall serve upon the clerk a, notice that he excepts to the amount of the penalty of the bond, or to the sureties of ths plaintiff or complainant, or both, otherwise he shall be deemed to have waived all objection to the amount of the penalty of the bond and the sufficiency of the sureties thereon. If the court sustain the exceptions, it may order a new bond to be executed by the plaintiff or complainant, or, in default thereof, within a time to be named by the court, the property to be returned to the de- fendant. 8. Within ten days after service of such notice, the attorney of the plain- tiff or complainant shall serve upon the defendant or his attorney a no- APPENDIX. 1023 tice of the justification of the sureties, and said sureties shall justify before the court or a judge thereof at the time therein stated. 9. The defendant, if he does not except to the amount of the penalty of the bond or the suflBciency of the sureties of the plaintiff or complainant, may make application to the court for the return to him of the articles seized, upon filing an affidavit stating all material facts and circumstances tending to show that the articles seized are not infringing copies, records, plates, molds, matrices, or means for making the copies alleged to infringe the copyright. 10. Thereupon the court, in its discretion, and after such hearing as it may direct, may order such return upon the filing by the defendant of a bond executed by at least two sureties, binding them in a, specified sum, to be fixed in the discretion of the court, and conditioned for the delivery of said specified articles, to abide the order of the court. The plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond. 11. Upon the granting of such application and the justification of the sur- eties on the bond, the marshal shall immediately deliver the articles seized to the defendant. 12. Any service required to be performed by any marshal may be performed by any deputy of such marshal. 13. For services in cases arising under this section, the marshal shall be entitled to the same fees as are allowed for similar services in other cases. 1024: APPENDIX. STATUTES AFFECTING PEACTICE AND PEOCBDUEE. United States Revised Statutes, sections 917 and 918, gives to the Supreme Court of the United States and the United States circuit courts power to promulgate rules of practice for courts of equity. United States Revised Statutes, sections 911-912, provides for the man- ner of issuing process from the courts of the United States, and how tested. United States Revised Statutes, section 913, refers to forms of mesne process and proceedings in courts of equity. United States Revised Statutes, section 717, provides for granting writs of ne exeat. United States Revised Statutes, sections 718 and 719, provide for issuing injunctions as well as the manner and place where granted. United States Revised Statutes, section 720, prohibits injunctions to stay proceedings in the courts of the State. United States Revised Statutes, section 723, forbidding suits in equity when there is an adequate remedy at law. LIEN OF DECREE. An Act to regulate the lien of judgments and decrees of the courts of the United States, approved August 1, 1888. 25 Stat, at Large, 357. LIEN OF JUDGMENT IN FEDERAL COURT — DOCKETING FEDERAL JUDGMENT IN STATE OFFICE. Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That judgments and decrees rendered in a circuit or district court of the United States within any State, shall be liens on property throughout such State in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general juris- diction of such State: provided, that, whenever the laws of any State require a judgment or decree of a State court to be registered, recorded. APPENDIX. 1025 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 before a lien shall attach, this act shall be applicable therein whenever and only whenever the laves of such State shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed, or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the State. CLEBK TO KEEP JUDGMENT DOCKET. Sec 2. That the clerks of the several courts of the United States shall prepare and keep in their respective offices complete and convenient indices and cross-indices of the judgment records of said courts, and such indices and records shall at all times be open to the inspection and examination of the publit. JUDGMENT OF EEDEKAL COUBT NEED NOT BE DOCKETED IN COUNTY WHEEE BENDEBED. See. 3. 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 parish in the State of Louisiana in which the judgment or decree is rendered, in order that such judgment or decree may be a lien on any property within such county. APPELLATE COURT ACT OF MARCH 3, 1891. An Act to establish the circuit court of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes. Approved March 3, 1891. ADDITIONAL CIKCUIT JUDGES TO BE APPOINTED. Section 1. Be it enacted by the Senate and House of Eepresentatives of the United States of America in Congress assembled. That there shall be appointed by the President of the United States by and with the advice and consent of the Senate, in each circuit an additional circuit judge, who shall have the same qualifications, and shall have the same power and jurisdiction therein that the circuit judges of the United States, within their respective circuits, now have under existing laws, and who shall be entitled to the same compensation as the circuit judges of the United States in their respective circuits now have. S. Eq.— 65. 1026 APPENDIX. CIRCUIT COUBT OF APPEALS CEEATED IN EACH CIBCUIT — OEGANIZATION CLEBK — MABSHAL — FEES. Sec. 2. That there is herehy created in each circuit a circuit court of appeals, which shall consist of three Judges, of whom two shall constitute a quorum, and which shall be a court of record with appellate jurisdic- tion, as is hereafter limited and established. Such court shall prescribe the form and style of its seal and the forms of writs and other process and procedure as may be conformable to the exercise of its jurisdiction as shall be conferred by law. It shall have the appointment of the mar- shal of the court with the same duties and powers under the regulations of the court as are now provided for the marshal of the Supreme Court of the United States, so far as the same may be applicable. The court shall also appoint » clerk, who shall perform and exercise the same duties and powers in regard to all matters within its jurisdiction as are now exercised and performed by the clerk of the Supreme Court of the United States, 80 far as the same may be applicable. The salary of the mar- shal of the court shall be twenty-five hundred dollars a year, and the salary of the clerk of the court shall be three thousand dollars a year, to be paid in equal portions quarterly. The costs and fees in the Supreme Court now provided for by law shall be costs and fees in the circuit courts of appeals; and the same shall be expended, accounted for, and paid for, and paid over to the Treasury Department of the United States in the same manner as is provided in respect to the costs and fees in the Supreme Court. BULES. The court shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law. JXJBGES WHO MAT HOLD CIECUIT COUBT OF APPEALS. Sec. 3. That the Chief Justice and the associate justices of the Supreme Court assigned to each circuit, and the circuit judges within each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits in the manner hereinafter provided. In case the Chief Justice or an asso- ciate justice of the Supreme Court should attend at any session of the circuit court of appeals he shall preside, and the circuit judges in attend- ance upon the court in the absence of the chief justice or associate justice of the Supreme Court shall preside in the order of the seniority of their respective commissions. DI8TEICT JUDGE MAT BIT — JUDGE NOT TO EEVIKW HIS OWN JUDGMENT. In case the full report shall not at any time be made up by the APPENDIX. 1027 attendance of the Chief Justice or an associate justice of the Supreme Court and circuit judges, one or more district judges within the circuit shall be competent to sit in the court according to such order or pro- vision among the district judges as either by general or particular assign- ment shall be designated by the court; provided, that no justice or judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals. APPELLATE JTJBISDICTION OF CIRCUIT OODBTS ABOLISHED JUDGMENTS OF CIRCUIT AKD DISTKICT COUETS TO BE REVISED ONLY BY THE UNITED STATES SUPREME COURT OR BY CIRCUIT COURTS OF APPEALS. Sec. 4. That no appeal, whether by writ of error or otherwise, shall hereafter be taken or allowed from any district court to the existing cir- cuit courts, and no appellate jurisdiction shall hereafter be exercised or allowed by said existing circuit courts; but all appeals by writ of error [or] otherwise, from said district courts, shall only be subject to review in the Supreme Court of the United States, or in the circuit court of appeals hereby established, as is hereinafter provided, and the review, by appeal, by writ of error, or otherwise, from the existing circuit courts, shall be had only in the Supreme Court of the United States, or in the circuit courts of appeals hereby established, according to the provisions of this act regulating the same. DIBBCT APPEAL FROM TRIAL COURT TO SUPREME COURT — ^WHEN ALLOWED. Sec. 5. That appeals or writs of error may be taken from the district courts or from the existing circuit courts, direct to the Supreme Court, in the following cases: 1. In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision. 2. From the final sentences and decrees in prize causes. 3. In cases of conviction of a capital or otherwise infamous crime. 4. In any case that involves the construction or application of the Constitution of the United States. 5. In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its au- thority, is drawn in question. 6. In any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States. THIS STATUTE NOT TO AFFECT APPEALS FROM THE HIGHEST COURT Or A STATE TO THE SUPREME COURT. Nothing in this act shall affect the jurisdiction of the Supreme Court in 1028 APPENDIX. cases appealed from the highest court of a. State, nor the construction oi the statute providing for a review of such cases. JUEISDICTION or CIKCUIT COUBTS OF APPEALS — WHEN FINAL. Sec. 6. That the circuit courts of appeals established by this act shall exercise appellate jurisdiction to revievf by appeal or by writ of error final decision [s] in the district court [s] and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law, and the judgments or decrees of the circuit courts of appeals shall be final in all cases in which the juris- diction is dependent entirely upon the opposite parties to the suit or controversy, being aliens or citizens of the United States or citizens of different States; also in all cases arising under the patent laws, under the revenue laws and under the criminal laws and in admiralty cases. REVISION OP JUDGMENT OP CIRCUIT COURT OF APPEALS BY SUPREME COURT. Excepting that, in every such subject within its appellate jurisdiction, the circuit court of appeals, at any time, may certify to the Supreme Court of the United States, any questions or propositions of law, concern- ing which it desires the instruction of that court for its proper decision. And thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit courts of appeals in such case; or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy, in the same man- ner as if it had been brought there for review, by writ of error or appeal. And excepting also, that in any such case as is hereinbefore made final in the circuit court of appeals, it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its 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. In all cases not hereinbefore, in this section, made final, there shall be of right an appeal, or writ of error, or review of the case by the Supreme Court of the United States, where the matter in controversy shall exceed one thousand dollers, besides costs. But no such appeal shall be taken, or writ of error sued out, unless within one year after the entry of the order, judgment, or decree sought to be reviewed. APPEAL TO CIRCUIT COURT OP APPEALS FROM INTERLOCUTORY DECREE GRANT- ING OB CONTINUING AN INJUNCTION. Sec. 7. That where, upon a hearing in equity in a district court or in an existing circuit court, an injunction shall be granted or continued by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court APPENDIX, 1029 of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the circuit court of appeals; provided, that the appeals must be taken within thirty days from the entry of such order or decree; and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal. CASES EEVIEWED BY THE SUPEEME COUBT OB BY A CIBCinT COURT OF APPEALS TO BE BEMANDED TO THE PBOPEB CIBCUII OB DISTKICT COUET. See. 10. That whenever on appeal or writ of error or otherwise a, case coming directly from the district court or existing circuit court shall be reviewed and determined in the Supreme Court, the cause shall be re- manded to the proper district or circuit court for further proceedings to be taken in pursuance of such determination. And whenever on appeal or writ or [of] error or otherwise a case coming from a circuit court of appeals shall be reviewed and determined in the 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. When- ever on appeal or writ of error or otherwise a case coming from a dis- trict or circuit court shall be reviewed and determined in the circuit court of appeals in a, case in which the decision in the circuit court of appeals is final, such cause shall be remanded to the said district or circuit court for further proceedings to be there taken in pursuance of such determina- tion. APPEAL TO CIBCTJIT COTTET OF APPEALS TO BE TAKEN WITHIN SIX MONTHS OE LESS. Sec. 11. That no appeal or writ of error, by which any order, judgment, or decree may be reviewed in the circuit courts of appeals, under the pro- visions of this act, shall be taken or sued out, except within six months after the entry of the order, judgment, or decree sought to be reviewed; provided, however, that in all cases in which a, lesser time is now by law limited for appeals or writs of error, such limits of time shall apply to appeals or writs of error in such cases taken to, or sued out from, the circuit courts of appeals. PEACTICE AS TO APPEALS. And all provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this act, in respect of the circuit courts of appeals, including all provisions for bonds, or other securities, to be required and taken on such appeals and writs of error, and any judge of the circuit courts of appeals, in respect of cases brought or to be brought to that court, shall have the same 1030 APPENDIX. powers and duties, as to the allowance of appeals or writs of error, and .the condition of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respectively. POWEE OF CIKCUIT COTJBT OF APPEALS TO ISSUE WEITS. Sec. 12. That the circuit court of appeals shall have the powers speci- fied in section seven hundred and sixteen of the Revised Statutes of the United States. Section 716 of the Revised Statutes is as follows: The Supreme Court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. EEPEAL. Sec. 14. Tliat section six hundred and ninety-one of the Revised Stat- utes of the United States and section three of an act entitled "An act to facilitate the disposition of cases in the Supreme Court, and for other purposes," approved February sixteenth, eighteen hundred and seventy- five, be, and the same are hereby repealed. And all acts amd parts of acts relating to appeals or writs of error inconsistent with the provisions for review by appeals or writs of error in the preceding sections five and six of this act are hereby repealed. Section 691 of the Revised Statutes, repealed by this section provided for a writ of error from the United States Supreme Court to circuit courts to review their final judgments when the matter in dispute exceeded $2,000. Section 3 of the act of February 16, 1875, repealed by this section, pro- vided that, in order that judgments and decree of circuit courts might be reviewed by the Supreme Court, the value in dispute must be $5000 where before it had been $2000. The unrepealed part of the act of February 16, 1875, is printed in full post. APPEAL FEOM SUPREME COUET OF TE8RIT0ET TO CIECUIT COUET OF APPEALS. Sec. 15. That the circuit court of appeals in cases in which the judg- ments of the circuit courts of appeal are made final by this act shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the Supreme Courts of the several Ter- ritories as by this act they may have to review the judgments, orders, and decrees of the district court and circuit courts; and for that purpose the several Territories shall, by orders of the Supreme Court, to be made from time to time, be assigned to particular circuits. Approved March 3, 1891. See 175 U. S., 684, and 142 U. S., 459. APPENDIX. 1031 RULES OF PRACTICE IN THE CIRCUIT COURT OF APPEALS. While rules were originally adopted by the Supreme Court governing the practice and procedure in the United States circuit court of appeals, yet many of these rules have been amended in the different circuits, as to the judges seemed necessary to advance and expedite justice; so I will not undertake to print these rules, but will refer the student to the 90th Federal Reporter, from page v to clxx, where the original act creating these courts and amendments thereto are fully set forth; also the orig- inal rules promulgated by the Supreme Court to govern the practice and the various amendments to these rules that have been made in the nine circuits, accompanied with full annotations. Section 699 of the United States Revised Statutes provides for appeals in special cases, without reference to amount in dispute, and the following sections of the United States Revised Statutes, governing procedure in error and on appeal, are still in force, to wit: Sections 997, 998, 999, 1000, 1003, 1004, 1005, 1007, 1008, 1010. UNITED STATES SUPREME COURT RULES. EtIXE 5. — ^PEOCESS, HOW ISSUED AND SEEVED. 1. All process of this court shall be in the name of the President of the United States. 2. When process at common law or in equity shall issue against a State, the same shall be served on the governor or chief executive magistrate and attorney general of such State. 3. Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return day of said process; and if the defendant, on such service of the subpoena, shall not appear at the return day, the complainant shall be at liberty to proceed ex parte. EULE 6. — MOTIONS. 1. All motions to the court shall be reduced to writing, and shall con- tain a brief statement of the facts and objects of the motion. 2. One hour on each side shall be allowed to the argument of a motion, and no more, without special leave of the court granted before the argu- ment begins. 3. No motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. 1032 APPENDIX. 4. All motions to dismiss writs of error and appeals, except motions to docket and dismiss under rule 9, must be submitted in the first instance on printed briefs or arguments. If the court desires further argument on that subject, it will be ordered in connection with the hearing on the merits. The party moving to dismiss shall serve notice of the motion, with a copy of his brief of argument, on the counsel for plaintiff in error or appellant of record in this court, at least three weeks before the time fixed for submitting the motion, in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. Afiidavits of the deposit in the mail of the notice and brief to the proper address of the counsel to be served, duly postpaid, at such time as to reach him by due course of mail three weeks or thirty days before the time fixed by the notice, will be regarded as prima facie evidence of service on counsel who reside without the District of Columbia. On proof of such service, the motion will be con- sidered, unless, for satisfactory reasons, further time be given by the court to either party. 5. There may be united, with a motion to dismiss a writ of error or an appeal, a motion to affirm on the ground that, although the record may show that this court has jurisdiction, it is manifest the writ or appeal was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. 6. The court will not hear arguments on Saturday (unless for special cause it shall order to the contrary), but will devote that day to the other business of the court. The motion day shall be Monday of each week; and motions not required by the rules of the court to be put on the docket shall be entitled to preference immediately after the reading of opinions, if such motions shall be made before the court shall have entered upon the hearing of a case upon the docket. EtJLE 8. — WBIT OF EBBOE, BETUBN AND BECOED. 1. The clerk of the court to which any writ of error may be directed shall make return of the same, by transmitting a true copy of the record, and of the assignment of errors, and of all proceedings in the case, under his hand and the seal of the court. 2. In all cases brought to this court, by writ of error or appeal, to review any judgment or decree, the clerk of the court by which such judgment or decree was rendered shall annex to and transmit with the record a copy of the opinion or opinions filed in the case, and in eases at law a complete copy of the charge of the court to the jury. 3. No case will be heard until a complete record, containing in itself, and not by reference, all the papers, exhibits, depositions, and other pro- ceedings which are necessary to the hearing in this court, shall be filed. 4. Whenever it shall be necessary or proper, in the opinion of the pre- siding judge in any circuit court, or district court exercising circuit court jurisdiction, that original papers of any kind should be inspected in this court, upon writ of error or appeal, such presiding judge may make such APPENDIX. 1033 rule or order for the safe keeping, transporting, and return of such orig- inal papers as to him may seem proper, and this court will receive and consider such original papers in connection with the transcript of the proceedings. 5. AH appeals, writs of error, and citations must be made returnahle not exceeding thirty days from the day of signing the citation, whether the return day fall in vacation or in term time, and be served before the return day. 6. The record in cases of admiralty and maritime jurisdiction, when under the requirements of law the facts have been found in the court below, and the power of review is limited to the determination of ques- tions of law arising on the record, shall be confined to the pleadings, the findings of fact, and conclusions of law thereon, the bills of exceptions, the final judgment or decree, and such interlocutory orders and decrees as may be necessary to a proper review of the case. EULE 11. DOCUMENT IN FOREIGN LANGUAGE. Whenever any record transmitted to this court upon a writ of error or appeal shall contain any document, paper, testimony, or other proceedings in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceeding, made under the authority of the inferior court, or admitted to be correct, the record shall not be printed; but the case shall be reported to this court by the clerk, and the court will thereupon remand it to the inferior court, in order that a translation may be there supplied and inserted in the record. EU1.E 12. — ^DEPOSITIONS IN SUPREME COURT. 1. In all cases where further proof is ordered by the court, the deposi- tions which may be taken shall be by a commission, to be issued from this court, or from any circuit court of the United States. 2. In all cases of admiralty and maritime jurisdiction, where new evi- dence shall be admissible in this court, the evidence by testimony of wit- nesses shall be taken under a commission to be issued from this court, or from any circuit court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon inter- rogatories to be filed by the party applying for the commission and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross interrogatories within twenty days from the service of such notice; provided, however, that nothing in this rule shall prevent any party from giving oral testimony in open court in cases where by law it is admissible. EULE 13. OBJECTIONS TO EVIDENCE IN BECORD. In all cases of equity or admiralty jurisdiction, heard in this court, no objection shall hereafter be allowed to be taken to the admissibility 1034 APPENDIX. of any deposition, deed, grant, or other exliibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record; but the same shall otherwise be deemed to have been admitted by consent. EULE 14. — ^DIMINUTION OF BECOBD. No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party be verified by affidavit. And all motions for certiorari must be made at the first term of the entry of the case; otherwise, the same will not be granted, unless upon special cause shown to the court, accounting satis- factorily for the delay. BULB 15. — DEATH OP PABTT. 1. Whenever, pending a. writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the case shall be heard and determined as in other cases; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the judgment or decree reversed, if it be erroneous; provided, however, that a copy of every such order shall be printed in some newspaper of general circulation within the State, Territory, or district from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. 2. When the death of a party is suggested, and the representatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. 3. When either party to a suit in a circuit court of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States from any final judgment or decree rendered in the circuit court, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead and have no proper representative within the jurisdiction of the court which rendered such final judgment or decree, so that the suit can not be revived in that court, but shall have a proper representative in some State or Territory of the United States, the party desiring such writ of error or appeal may procure the same, and may have proceedings on such judgment or decree superseded APPENDIX. 1035 or stayed in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the commencement of the term to which such writ of error or appeal is returnable, the plaintiff in error or appellant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper repre- sentative in some State or Territory of the United States, and stating therein the name and character of such representative and the State or Territory in which such representative resides; and, upon such suggestion he may, on motion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed if the same be erroneous; provided, however, that a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing; and provided, also, that in every such case, if the representative of the deceased party does not appear by the tenth day of the term next succeeding said suggestion, and the measures above provided to compel the appearance of such representative have not been taken within time as above required by the opposite party, the case shall abate; and provided, also, that the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and determined as in other cases. BULK 16. — NO APPEARANCE OF PLAINTIFF. Where no counsel appears and no brief has been filed by the plaintiff in error, or appellant, when the case is called for trial the defendant may have the plaintiff called and the writ of error or appeal dismissed, or may open the record or pray for an affirmance. EULE 17. NO APPEARANCE OF DEFENDANT. Where the defendant fails to appear when the case is called for trial, the court may proceed to hear an argument on the part of the plaintiff and to give judgment according to the right of the case. EULE 18. NO APPEARANCE OF EITHER PARTY. When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dismissed at the cost of the plaintiff. 1036 APPENDIX. BTTLE 19. — NEITHBB PARTY EEADT AT SECOND TEBM. When a case is called for argument at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dismissed at the cost of the plaintiff, unless sufficient cause is shown for further postponement. EXJIE 20. — PBINTED ARGUMENTS. 1. In all cases brought here on writ of error, appeal, or otherwise, the court will receive printed arguments without regard to the number of the case on the docket, if the counsel on both sides shall choose to submit the same within the first ninety days of the term; and, in addition, appeals from the court of claims may be submitted by both parties within thirty days after they are docketed, but not after the first day of April; but twenty-five copies of the arguments, signed by attorneys or counselors of this court must be first filed. 2. When a case is reached in a. regular call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. 3. When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument for the opposite party will be received, imless it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ece pa/rte argument. 4. No brief or argument will be received, either through the clerk or otherwise, after a. case has been argued or submitted, except upon leave granted in open court after notice to opposing counsel. RXTLE 21. — BRIEFS. 1. The counel for plaintiff in error or appellant shall file with the clerk of the court, at least six days before the case is called for argument, twenty-five copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side. 2. This brief shall contain, in the order here stated — (1) A concise abstract or statement of the case, presenting succinctly the questions involved and the manner in which they are raised. .(2) A specification of the errors relied upon, which, in cases brought up by writ of error shall set out separately and particularly each error asserted and intended to be urged; and in cases brought up by appeal the specification sliall state, as particularly as may be, in what the decree is alleged to be erroneous. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full snbstanne of the evidence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set out the part referred to toidem verbis whether it be instructions given or instructions refused. When the error alleged is to a ruling upon the report of a master, the APPENDIX. 1037 specification shall state the exception to the report and the action of the court upon it. (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a State is cited, so much thereof as may be deemed necessary to the de- cision of the ease shall be printed at length. 3. The counsel for a defendant in error or an appellee shall file with the clerk twenty-five printed copies of his argument, at least three days before the case is called for hearing. His brief shall be of like character with that required of the plaintiff in error of appellant, except that no specification of errors shall be required, and no statement of the case, un- less that presented by the plaintiff in error or appellant is controverted. 4. When there is no assignment of errors, as required by section 997 of the Revised Statutes, counsel will not be heard, except at the request of the court; and errors not specified according to this rule will be disre- garded; but the court, at its option, may notice a plain error not assigned or specified. 5. When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion; and when a defendant in error or an appellee is in default, he will not be heard, except on consent of his adversary, and by request of the court. 6. When no oral argument is made for one of the parties, only one coun- sel will be heard for the adverse party. (See Rule 31 as to form and size.) ETJLE 22. DEAL ABGUMENTS. 1. The plaintiff or appellant in this court shall be entitled to open and conclude the argument of the case. But when there are cross-appeals, they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argument. 2. Only two counsel will be heard for each party on the argument of a case. 3. Two hours on each side will be allowed for the argument, and no more, without special leave of the court, granted before the argument be- gins. The time thus allowed may be apportioned between the counsel on the same side, at their discretion; provided, always, that a fair open- ing of the case shall be made by the party having the opening and closing arguments. EtTLE 28. — ^DISMISSING CASES IN VACATION. Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in an appeal, shall in vacation, by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed, as to costs, and shall pay to the clerk 1038 APPENDIX. any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agreement filed; but no mandate or other process shall issue without an order of the court. EULE 29. — SUPERSEDEAS. Supersedeas bonds in the circuit courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to affect, and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin and in suits on mortgages, or where the property is in the custody of the marshal under admiralty process, as in case of capture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and de- tention of the property, and the costs of the suit, and just damages for delay and costs and interest on the appeal. EULE 30. — EEHEAEINQ. A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave granted during the term; and must be printed and briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines. EULE 31. — FOEM OF FEINTED EECORDS AND BRIEFS. All records, arguments, and briefs for the use of the court must be in such form and size that they can be conveniently bound together so as to make an ordinary octavo volume, and, as well as all quotations contained therein, and the covers thereof, must be printed in clear type (never smaller than small pica ) , and on unglazed paper. 178 U. S. 618, 179 U. S. 294. EULE 32. — WRITS OF BEEOE AND APPEALS UNDER THE ACT OF FEBRUARY 25, 1889, CHAPTER 236, OR UNDER SECTION 5 OF THE ACT OF MARCH 3, 1891, CHAPTER 517. Cases brought to this court by writ of error or appeal, under the act of February 25, 1889, chapter 236, or under section 5 of the act of March 3, 1891, chapter 517, where the only question in issue is the question of APPENDIX. 1039 the jurisdiction of the court below, will be advanced on motion, and heard under the rules prescribed by rule 6, in regard to motions to dismiss writs of error and appeals. 194 U. S. 194. BULE 35. — ASSIGNMENT OF EBBOBS. 1. Where an appeal or a writ of error is taken from a district court or a circuit court direct to this court, under section 5 of the act entitled "An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March 3, 1891, the plaintiff in error or appel - lant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separ- ately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full sub- stance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part re- ferred to totidem veriis, whether it be in instructions given or in instruc- tions refused. Such assignment of errors shall form part of the tran- script of the record, and be printed with it. When this is not done counsel will not be heard, except at the request of the court; and errors not as- signed according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned. 2. The plaintiflf in error or appellant shall cause the record to be printed according to the provisions of sections 2, 3, 4, 5, 6 and 9 of rule 10. BULE 36. — APPEALS AND WEITS OF EEEOE. 1. An appeal or a writ of error from a circuit court or a district court direct to this court, in the cases provided for in sections 5 and 6 of the act entitled "An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March 3, 1891, may be allowed, in term time or in vacation, by any justice of this court, or by any circuit judge within his circuit, or by any district judge within his dis- trict, and the proper security be taken and the citation signed by him, and he may also grant a supersedeas and stay of execution or of proceed- ings, pending such writ of error or appeal. 2. Where such writ of error is allowed in the case of a, conviction of an infamous crime, or in another criminal case in which it will lie under said sections 5 and 6, the circuit court or district court, or any justice or judge thereof, shall have power, after the citation is served, to admit the accused to bail in such amount as may be fixed. 1040 APPENDIX. EDIE 37. OASES rBOM CIECUIT COUBT OF APPEALS. 1. Where, under section 6 of the said act, a circuit court of appeals shall certify to this court a question or proposition of law concerning which it desires the instruction of this court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises. 2. If application is thereupon made to this court that the whole record and cause may be sent up to it for its consideration, the party making such application shall, as a part thereof, furnish this court with a certified copy of the whole of said record. 3. Where application is made to this court under section 6 of the said act to require a case to be certified to it for its review and determination, a certified copy of the entire record of the case in the circuit court of appeals shall be furnished to this court by the applicant, as part of the application. EULE 39. — MANDATES. Mandates shall issue as of course after the expiration of thirty days from the day the judgment or decree is entered, unless the time is enlarged by order of the court, or of a justice thereof when the court is not in ses- sion, but during the term. INDEX. ABATEMENT, pleas in, 409. another suit pending, 409. ADEQUATE REMEDY AT LAW, 22. must be practical and efficient, 22. sec. 723 construed, 31. when must be set up as defense, 31. how defense to be made, 34. conrt may dismiss though set up, 33. see Remedy at Law. five rules given aa tests, 22, 24. AGGREGATING AMOUNTS, to obtain jurisdiction, 176. when it can be done, 176, 178. what may be included, 178. in special cases, 180. when interests joined are distinct, 176. when common fund involved, 177. not several defendants owning distinct amoxints, 177. when by assignment, 220. ALIEN CORPORATIONS, 115. citizenship of, 81. where may be sued, 116. ALIENS, right to sue and be sued, 85. citizenship of, 85. statutes affecting jurisdiction, 85. citizenship of alien corporations, 8L alien and citizen uniting, 86. alien suing alien, 87. as to allegation of, 88. S. Eq.— 68. 1041 1042 INDEX. ALIENS — continued. suits between aliens and citizens, 85. must sue citizen in his district, 86. alien sued in district where found, 85. see Removal by. ALLOWANCE OF APPEAL, 701. in forma pauperis, 702. jurisdiction of appellate court attaches when allowed, 703. see Appeals. AMENDING BILL, 353. when bill can be amended, 353. amendments not of course, 354. at and after trial, 356. after decree, 359. to cure jurisdiction, 359. to show jurisdiction, 206. when not of course, 351. as to amount, 360. effect of amendment, 360. motion to amend, 361. form and notice, 361. when to be filed, 363. after appeal, 363. after replication, 354. answer may make it necessary, 355. when to be accompanied with affidavit, 362. to conform to proof, 357. must harmonize with case, 358. cannot make a new suit, 357. tests in discretion of court, 355. amending prayer, 282. after replication, 282. making new parties by, 264. amending cross bill, 481. AMENDMENTS, office of, 353. not of course, 354. at and after trial, 356. after decree, 359. amending decree, 611. to cure jurisdiction, 359. as to amount, 360. effect of amendment, 360. motion to amend, 361. when to be filed, 363. INDEX. AMENDMENTS— continued. amendment after appeal, 363. not affected by State statutes, 363. of judgment, 611. petition for removal, 855. of process, 315. answer, 455. in appellate court, 753. fourteenth amendment, 148-151. amendment of return, 315. AMOUNT, 169. act of 1888 stated and construed, 169. matter in dispute, 169. is jurisdictional, 169. increased in New Code, 42. when suit for money 170, 171. when property sued for, 170. must be in good faith, 171, 174. reducing by credits, 172, 173. by limitation, 174. cases classified, 172. see Aggbegating Amount, 176. in foreclosing a mortgage, 180. in creditors' suits, 180. what may be included in amount, 178. in suits by and against receivers, 182. in injunction suits, 185. value of right in issue, 191. cancelation and rescission, 192. quieting title, 193. dissolution of partnerships, 194. in partition suits, 194. in suits for office, 195. in cases sounding in damages, 195. how amount alleged, 196, 276. affidavits to show, 197, 204. how issue is raised, 198, 199. when by plea or answer, 200. when by demurrer, 199. form of plea and demurrer, 201. how the issue is tried, 203. burden of proof, 205. in appellate jurisdiction, 779. amendment as to, 197, 360. as ground to remand, 845. 1043 1044 INDEX. ANCILLARY SUITS, see AuxiLiABT Suits. ANSWER, framing answer, 429. each allegation of the bill must be fully and fairly met, 429. must be direct and positive, 430. on knowledge, information, or belief, or no belief, 430. free from scandal and impertinence, 430, inconsistent matter not allowed, 431. not argumentative, 431. may set up affirmative matter, 431, 432. allegations of answer may cure bill, 432. form of answer, 432. verifying answer, 433. form of oath, 433. ■when need not answer fully under equity rule, 39, 434. may object to parties under equity rule 52, 435. eflfect of answer, 436. first as a pleading, 436. second as evidence, 437. exceptions to rule, 437, 438. efiFect of admissions in answer, 439. as evidence against the codefendant, 439. effect of new matter in, 439. effect when oath waived, 440, 439. how oath waived, 440. when evidence though oath waived, 441. answer of corporations not under oath, 441. should be made by officers, 442. affirmative relief in answer, 442. hearing on bill and answer, 444. answer admits case, 445. who must set down for hearing, 446. form for, 446. exceptions to answer, 448. effect of waiving, oath on exceptions to answer, 450. form of exceptions, 451. when exceptions to be filed, 452. setting exceptions for hearing, 453. form for, 453. effect of sustaining exceptions, 453. overruling exceptions, 454. to answer of corporations, 454. amending answer, 455. form of application for, 456. notice of motion, 457. INDEX. 1045 ANSWER— continued, form for, 457. of order of amendment granted, 457. different rule applied to answers than to amending bills, 457, 458. must not conflict with original answer, 468. after cause ready for hearing, 459. supplemental answer, 460. form for demurring, pleading, and answering at same time, 460, 461. APPEALS, two methods, 644. by writ of error, 644. by appeal, 644. by appeal is the method of equity, 644, is the right absolute, 692. acts governing, 645. sec. 5 of the act stated, 645. effect of act of 1891 on appeals, 645. from State to United States Supreme Court, 645, 646. sec. 6, act 1891, providing final appellate jurisdiction of circuit court of appeals, 646, 647. from interlocutory decrees, 650, 647, acts governing, 651, 647, 649. time to be taken out, 649, 653. how limited, 652. bond in, 653. effect of appeal on injunction, 653, 654. rules governing courts in considering appeals of this kind, 654, 655. effect as supersedeas, 654. entering decree on merits on appeal, 655. from decree appointing receivers, 656, final decree as basis of appeal, 657. statutes stated, 657. what is a final decree, 658. rules testing, 659, 661. judgments not final illustrated, 661, 663. judgment for costs not, 663. judgment by consent not, 663. time in which various appeals to be taken, 648. in interlocutory decrees, 649-653. from circuit to Supreme Court, 764. to circuit court of appeals, 687. from circuit court of appeals to Supreme Court, 648. from State to United States Supreme Court, 779. how lapse of time calculated, 788. appeals, where taken, 665. from circuit or district court to the Supreme Court direct, 665. 1046 INDEX. APPEALS— continued. three classes of oases, 665, 666. first, when jurisdiction of circuit or district court in issue, 665. second, cases involving construction of the Constitution, 666. third, when constitutionality of a law of Congress or a State in issue, 666. certiiication required, 667. grounds of certification, 669. certification is a prerequisite, 673. what record must show, 670. form certification must assume, 674. certificate to be granted in term, 675. form of certificate, 676. how issue presented and decided, 670. four conditions under which it may be presented, 670, 671. can same party sue out two appeals, 672, 673. appeals under clauses 4, 5, 6, sec. 5, act 189], 677. can circuit court of appeals determine questions of juris- diction, 679. its jurisdiction when the appeal is based on clauses 4, 5, 6 of act of 1891, 681, 684. election court of appeals or Supreme Court, 678. Supreme Court taking jurisdiction decides all questions in- volved, 679. appeal to circuit court of appeals, 685. jurisdiction in appeal, 685. statute stated, 685. wholly appellate, 685. practice in appeals; statutes, 686. time to be taken, 687. notice of appeal, 689. when is appeal said to be taken, 689. petition for appeal, 690. form of, 691. motion for supersedeas, 692. form for, 692. see Supersedeas. assignment of errors, must be filed with petition, 695. equity rule 35 stated, 695. purpose of assignment, 696. must be specific, 696. form of assignment, 697. time of filing, 698. confined to issues, 698. to the admission or rejection of evidence, 699. not allowed to consent decree, 699. INDEX. 1047 APPEALS— continued. cross errors not assignable, 696. allowance of appeal, 701. who may allow, 692, 702. what considered allowance, 702. in forma pawperis, 702. when jurisdiction attaches, 703. bond, 704. amount of bond, 704. form of bond on appeal, 705. conditions in bond, 706. by whom signed, 706. approval of bond, 707. effect of irregularities in giving bond, 708. amendment of bond, 709. when it becomes insufficient after appeal, 709. bond may be given while appeal alive, 708. supersedeas bond, 710. power to grant, 710. effect of, 711. liability on, 712. damages covered by, 713. failure to prosecute appeal, 713. sureties on, 714. motion to vacate supersedeas, 714. form of, 714. citation on appeal, 716. when necessary, 716. may be waived, 717. form of, 718. when may be issued and when returnable, 719. how served, 720. alias citation, 721. who may appeal, 728, 722. summons and severance, 723. when parties are not parties to the original proceedings, 724. effect of death on, 747, 725. as to parties in the suit not appealing, 725. from a fictitious case, 726. appeal by interveners, 726. by and against receivers, 727. by partners, 728. cross appeals, 728. transcript, 730. what to contain, 731. form of stipulation by counsel, 735. certificate to transcript, 735. form of certificate, 736. 1048 INDEX. APPEALS— continued. no bill of exceptions in equity, 737, filing transcript, 739. waiving irregularity in filing, 740. docketing case in circuit court of appeals, 740. printing record for hearing, 741. diminution of record, 742. dismissing appeal, 744. certificate of clerk below as a basis of dismissal, necessary, 741. twelve grounds on which motion to dismiss may be based, 744, 746. motion to dismiss, 746. form of, 747. submitting case to appellate court, 751. briefs, 751, 752. oral argument, 752. rules applied when cause called for hearing, 752, 753. amendments allowed in appellate court, 753. to show jurisdiction, 753. to cure defective pleadings, 753, 754. to cure defective procedure, 754. rules applied in considering cases on appeal, 755. rehearing in appellate court, 756. filing petition for, 757. new question not allowed, 757. from circuit court of appeals to Supreme Court, 647, 758. appellate jurisdiction of Supreme Court over, 758. several methods of appeal stated, 758, 759. first by certifiying legal question, 759. second may order whole record up, 759. third ordering up in case of final jurisdiction, 759. fourth review by appeal when judgment not final, 759. review by certifying question to Supreme Court, 759. ordering up entire record, 760. by certiorari, 761. petition for, and form, 762. notice of application to be given, 763. time to sue out writ, 764. effect of granting writ, 764. review by Supreme Court when ease not final in court of ap- peals, 765. petition for appeal or writ of error, 768. form of, 768. assignment of errors, 769. appeal from State courts to United States Supreme Court, 770. statutes stated, 154, 157, 645, 646, 770, 771. seven rules stated governing these appeals, 771-778. time within which to appeal, 779. INDEX. 1049 APPEALS— continued. amount involved affecting jurisdiction, 779, 781. practice in these appeals, 781. statutes stated, 781. petition for writ and form, 781, 782. citation, 786. by whom citation signed and allowed, 782. order of allowance and form, 783, 784. effect of allowance by State judge, 785. bond, 787. ■when writ a supersedeas, 787. time within which to obtain, 788. not after sixty days, 789. act must be followed to obtain, 789. when supersedeas bond impaired, 790. see Mandate. APPEARANCE, 325. equity rules governing, 325. form for entry, 325. formal entry required, 325. many privileges waived by it, 326, 332. such as objections to the writ, its service or return, 326. special appearance necessary to these preliminary objections, 326. special appearance, 327. form of, 327. should be accompanied by motion to quash, 328. form of motion, 328. form of motion when sued out of residence district, 328. care in drawing motion, 329. for objecting to service, 329. general appearance, effect of, 332. form of entry, 325. does not waive fundamental jurisdiction, 332. when entered without authority, 332, 333. may be withdrawn, 333. any defensive pleading is equivalent to, 333. APPENDIX, Judicial Code, 887. jurisdictional acts, 988. rules in equity, 997. rules in copyright cases, 1021. practice acts, 1024. circuit courts of appeals act, 1026. rules of Supreme Court, 1031. 1050 INDEX. ARGUMENT IN APPELLATE COURT, by brief, 751. oral argument, 752. ASSIGNMENT, 208. jurisdiction by, 208. history of assignment clause in judiciary act, 216. acts 1789 and 1875 stated, 208. act of 1888 stated and construed, 209. what are choses in action within the statute, 210. illustrations of promissory notes payable to bearer made by cor- porations, 214. assignment must be genuine, 221. effect of reassignment, 210. how assignment alleged on bill, 220. change after jurisdiction attached does not affect the suit, 221. how issue raised, 221. form for, 221. ASSIGNMENT OP ERRORS, 695, 769. cross errors, 696. confined to the issues, 698, must be specific, 696. form of, 697, time of filing, 698. AUXILIARY SUITS, 505. what are, 605. defined, 505. distinction between auxiliary and original bill, 507, 505. supported by jurisdiction of main suit, 505. illustrations given, 506. not affected by citizenship, residence, or amount, 507. substituted service of process in, 508. service on agents, 508. character of attorney on whom made, 510. how service obtained, 510. form of application for, 510, 511. motion to vacate service, 511. form of, 511. see Intebpleadeb. BANKRUPTCY, appeals in, 647, 769, 676. INDEX. 1051 BANKS, citizenship, 83. parties to suit, 83. removal by, 871. Federal question, 145. BILL, 265. old form, 265. present form under equity rules, 266. form of commencement, 267. by corporation, 267. must allege citizenship of parties, 268, 269. Federal district of residence, 270. necessity of accuracy, 271. statement of the case, 272. four parts necessary, 273. discussed, 273, 274, 275, 396. stating part important, 278. equity rule 21 stated, 278. allegation of Federal question, 275, 276. amount, 276. fraud, 276, 277. laches must be explained, 277. the prayer, 279. form of, 279, 280. for ne exeat, 280. for injunction, 280. for process, 281. form of, 281. amendment of prayer, 282. after replication, 282. see Amended Bill. signing bills, 282. verifying bills, 283. form of verification, 283. see Double Aspect. see Bills op Discoveby. filing the bill, 306. issuing process on, 306. how to examine to make defenses, 396, 397. how to waive oath to answer, 440. BILL, CROSS, see Cboss Bill. BILL OF DISCOVERY, 286. brief sketch of, 286. 1052 INDEX. BILL OF DISCOVERY— continued, necessity of discussed, 288. advantage of, at certain times suggested, 288. waiving oath to answer prevents discovery, 289. BILL OF EXCEPTIONS. to the report of a master, 591. form of, 591, 592. applies to writs of error and not to appeals, 737, 738. to remanding a case, when refused, 867. form of bill, 867, 868. how exceptions noted in equity, 738. BILL OF REVIEW, purpose of, 629. differs from rehearing, 629. for what it lies, 630. first, for error apparent, 630. second, new matter since decree, 631, third, newly discovered evidence, 631. fourth, for fraud in decree, 632. what bill must show, 633. form of, 635. time of filing, 633. leave to file, 634. not appealable, 635. parties to bill, 637. who may attack decree, 637. bill of, after appeal, 637. who determines application, 639. BILL OF REVIVOR, 376. equity rule and statute, 376. nature of bill, 377. parties to, 377. when sole plaintifT dies, 378. when sole defendant dies, 378. when one of several plaintiffs dies, 378. when one of several defendants dies, 378. when bill dismissed, 379. revival by defendant, 379. when to be filed, 380. causes for revival, 380. what must be alleged, 381. form of, 382. revival after decree, 382. INDEX. 1053 BILL, SUPPLEMENTAL, see Supplemental Bill. BOND, see Appeal. in appeal, 704-709. when supersedeas, 710. BRIEFS, 751, 752. CERTIFICATE, of clerk, see Appeal. CERTIORARI, 758. appeal by, 761. petition for, 762. form of, 762, 763. notice of application, 763. time for, 764. effect of granting, 764. CHAMBERS, orders in, 304. CIRCUIT COURT OF APPEALS ACT, 1024. CITATION EST APPEAL, 717-721. alias citation, 721. see Appeal. CITIZENSHIP. See Diversity of Citizenship, 31. inhabitant defined, 93. word used collectively, 54. how issue raised and proof, 120. residence and domicil defined, 120. burden of proof, 121, 125, 126. issue by demurrer and form, 122. plea raising issue and form, 123, 124. form if corporation, 124, 125. want of appearing at trial, 127. sec. 5, act 1875, stated and discussed, 127. motion and form to dismiss, 128. how tried, 129. not material when Federal question, 166. must be stated in bill, 268, 269. how stated, 269, 271. must be citizenship, not residence, 120, 209. of corporations, 73. alien corporations, 81. joint stock companies, 82. partnership, 83. 1054 iinjEX. CITIZENSHIP— continued, national banks, 83. iparried women, 84. aliens, 84. of representative parties, 54. exceptions to rule, 55, 56. change of, affecting suit, 57. who are not within meaning of act, 60. CIVIL SUIT, 41, 848. one that could be originally brought in the Federal court, 849. CLERK, certificate of, see Appeal. CODE. the Judicial Code, 887. COMMON LAW, 19, 20. CONGRESSIONAL CHARTERS, 141. as Federal question, 141, 145. CONSENT, cannot give jurisdiction, 43. bill cannot lie to impeach consent decree, 642. cannot appeal from, 663. COPYRIGHT. rules in copyright cases, 1021. CORPORATIONS, state may prescribe conditions, 75, 112. citizenship of corporations, 73, 105. only of State where incorporated, 74, 75. cannot change citizenship, 75, 80., illustrations given, 76, 77. citizenship when consolidated, 78. is a citizen of each State where incorporated, 78. rules given, testing citizenship, 79, 80. citizenship of alien corporations, 81. where corporations may be sued, 105. effect of incorporating in different States on place of suit, 105. venue in the act of 1888 as to where corporations are to be sued when based on diversity of citizenship, 105, 107. rules governing venue of suit against corporations, 108. State statutes cannot affect, 109. what district is the domicil of a corporation. 111. corporation must be "doing business" where sued, 108, 112, 322. illustrations of doing business, 113, 114. INDEX. 1055 CORPORATIONS— continued. nonresidents and aliens must sue corporations where incorpo- rated, 115. where alien corporation must be sued, 115, 116. as to corporations chartered by Congress, 141. national banks, 145. when notes made by corporation payable to bearer, 214. form of commencement of a bill by or against a corporation, 267. service of process on, 317. stockholders of, as parties, equity rule 94 discussed, 239, 240. cross bill by and against, 483. removal by, 834. COSTS, in equity, 605. on dismissal by court, 580. allowed in taking and reading depositions, 573. COUNTERCLAIM, effect of, in motion to remand, 847. jurisdiction not affected by a defense that may reduce amount, 173. COURTS, what courts created, 38. creation of Supreme Court, 38, 39. jurisdiction of, 39. New Code, 39. circuit courts, 39. see JtrEiSMcnoN of CiBcinT Cotjkts. as courts of equity in the Federal system, 4, 5, 6. judiciary acts, see Appendix. CROSS APPEAL, 728. must pursue rules for appeals, 728. CROSS BILL. nature of, 469. is auxiliary suit, 470. subject-matter of, 470. independent in some respects, 471. uses of, 471. first, to obtain aflSrmative relief, 472. second, as to discovery, 474. third, as a means of defense, 475. fourth, to settle matters between the defendants, 476. fifth, to determine all matters, 477. form of cross bill, 477, 478. 1056 INDEX. CROSS BILL— continued, parties to, 478. filing cross bill, 479. no delay in filing, 479. process for parties to, 479, 480. service of, 480. amendment of, 481. extent of amendment, 481. hearing on, 481. decree on cross bill, 481, 482. effect of dismissal of original bill on, 482. cross bill by and against corporations, 483. answer to is evidence when sworn to, 471. DAMAGES, when court of equity will give, 27, 28. must be connected with the equity sought, 28, 29. DEATH, effect on suit, 376. effect when complainant dies, 468. effect on appeal, 747, 748. DE BENE ESSE, 523. see Evidence. DECREE, definition, 606. classified, 606. ■pro confesso, 383. interlocutory, 606. final, what is, 607. framing decree, 608. who to prepare, 608. rules for drawing decree, 609. correcting errors in, 610. recording decree, 610. amending decree, 611. effect of decree, 612. presumed to be right, 613. extraterritorial effect, 613. acting on the person, 613. lieu of decree, 614, 1024. enforcement of, 614, 615. equity rules 7, 8, 9, 10 applied, 615, 616. when attachment or sequestration needed, 615, 618. delivery of possession, 617. execution of, in foreclosure, 617. INDEX- 1057 DECREE— continued. sales under, 619. sale by master, 619. motion to confirm, 620. exceptions to sale, 620. eflfect of bid, 621. purchaser under, 621. notice of proceedings after decree, 622. vacating decree, 640. for fraud, 641. on ground of mistake, 642. third party impeaching, 643. cannot impeach consent decree, 642. ■who may attack decree, 637. see Bnx of Review. DECREE PRO CONFESSO, 383. equity rules governing, 383. when can be taken, 384. order to take bill as confessed, 386. serving notice of the decree, 387. form of order, 386. form for decree pro confesso, 387. is proof necessary to enter final decree, 388. effect of final decree, 388, 389. can defendant offer proof, 389. final decree not matter of course, 389. compelling an answer, 390. right of defendant after default, 390. setting aside decree, 391. form of motion to set aside, 392. DEFENSES, equity rules governing, 393. demur, plead, or answer, 393. may demur in part, plead in part and answer as to residue, 393, 394. demurrer, first, as to jurisdiction, 395. second, defect of parties, 395. third, sufficiency of substance of bill, 396. fourth, as to matter of form, 396, 397. cannot plead, answer, and demur to whole bill at same time, 393. subsequent pleading waives former, 393. see Plea and Awsweb. DEMURRER, classified, 398. effect of, 398. S. Eq.— «7 1058 INDEX. DEMURRER— continued, form of, 400. by corporation, 400, 401. Betting down for argument, 401, 402. form for, 402. necessity for, 402, 405. when and where heard, 403. rules governing consideration, 403. allowing demurrer, effect, 404. overruling demurrer, effect, 405. when fraud charged, must be accompanied with an answer denying fraud, 406. dismissing bill because demurrer not set down for argument, 405. form for ordering dismissal, 405. cannot demur to answer, 444. setting down for hearing on bill and answer ia a demurrer to answer, 444. DEPOSITION, see Evidence. de bene esse, 523. in ret perpetuam, 532. dedimus potestatem, 534. after issue joined, 538. returning and filing, 559. by mail, 559. to foreign countries, 561. publication of, 560. letters rogatory, 562. suppressing, 564. on law side, 570. costs allowed in taking and reading, 673. DISCOVERY, see Bill of. DISMISSAL OF BILL, 349. by plaintiff, 349. when may dismiss, 349. when he cannot, 349, 350, form of motion, 351. without prejudice, 351, 352. dismissing removing defendant in order to remand, 839. after removal, 814. dismissal by defendant, 466. equity rules 38 and 66 stated, 466. form of notice to clerk, 466. for motion to dismiss for want of jurisdiction, 467. INDEX. 1059 DISMISSAL OF BILL— continued. when no replication filed, 467. when motion filed, 467. when complainant dies, 468. when demurrer not set down for hearing, 405. dismissal by court, 574. when court will dismiss, 33, 574. sec. 5, act 1875, stated and applied, 574. duty of court, 574, 575. rule prior to 1875 not in force, 575. reason why plea to jurisdiction should be filed, 575, 578. for want of parties, 392. for want of equity, 33, 577. when jurisdiction collusive, 578. effect of dismissal, 579. costs in, 580. when complainant has parted with interest, 577. DISMISSING APPEALS, 744. thirteen grounds stated, 744, 746. DIVERSITY OF CITIZENSHIP, 48. statutes governing, 48. character of citizenship, 48, 120. not controlled by 14th Amendment, 48. who are not citizens within act, 60. where diversity must appear, 49. how appear, 49. rule under act of 1875, 50. of 1888, 50. illustrations of, 51. each plaintiflF and each defendant must be competent to sue or be sued in the State and district where suit is brought, 51, 52. rule explained and illustrated and exceptions stated, 52, 54. citizens of different States cannot sue in third State, 50, 62, 53. citizens of same State cannot sue each other in another State, 61; word "citizen" used collectively, 54. citizenship of representative parties, 54. exceptions to rule, 55. suit by next friend, 56. "for use of," 56. effect of change of citizenship pending suit, 57. transfer of property to create diversity, 59. see assignment to get diversity, 208. to be alleged in bill, 220. who are not citizens in meaning of act, 60. State not, 60. citizens of territories not, 60, 61, 1060 INDEX. DIVERSITY OF CITIZENSHIP— continued, nor District of Columbia, 61. shifting parties to create diversity, 62. discussed and explained, 63. identity of interest in determining diversity, 64. separable controversy creating, 67. diversity in joint and several contracts, 71. citizenship of corporations, 73-81. see Citizenship. when want of diversity appears in trial, 127. form of motion to dismiss in such case, 128. issue how tried, 129. diversity in removals, 828. DOING BUSINESS. See Cobpobations. must be doing business where sued, 108, 112, 322. illustrations of, 113, 114. DOUBLE ASPECT, 284. bills with, 284. cannot be alternative prayer for inconsistent relief, 284, 285. llustrations, 284, 285. as to bills with double sound, 285. DUCES TECUM, 549. nature of, 549. application for, 550. exceptions to rule, 551. in equity cases, 551, 552. penalty for refusal, 553, 552. how issued under U. S. Rev. Stat., 869, 550. DUE PROCESS OF LAW, 148, 149. Federal question, 148, 149. EQUAL PROTECTION OF THE LAWS, 149. Federal question, 149. EQUITY COURTS, JURISDICTION, 35. see JtJBISDICTION. EQUITY RULES, 298, 997. see Rule Days. EVIDENCE IN EQUITY SUITS, statutes and rules controlling, 513, 514. who may be examined as witnesses, 515. who to issue commission, 515, 516. INDEX. 1061 EVIDENCE IN EQUITY SUITS— continued, before whom taken, 516. how witnesses are brought before examiner or master, etc., 517-520. see Exci:ption, 519. made to testify, 518, 548. according to State methods, 514, 539. statute discussed, 530. only in manner of taking, 530, 531. time to begin taking, 521. before issue joined, 522. by de bene esse, 522, 523. notice of taking de bene esse, 524. form of, 524, 525. service of notice, 525. taking de bene esse, 525. certificate of ofiBcer when so taken, 527. form of certificate, 527, 528. informality in, 529. in rei perpetuam, 532, 533. usages in chancery explained, 533. when may issue in equity, 533. may take under State law, 534. dedimus potestatem, 534, 535. causes for, 534, 535. certificate to a dedimus, 536. procedure under, 536. form of order to take, 537. depositions after issue joined, 539. time to be taken, 539. equity rules 69 and 67 stated, 539, 540. taken orally may assign time to each party, 540. framing interrogatories, 540. three ways of examining witnesses after issue joined stated, 541. first, by interrogatories on commission, 541. second, by oral examination, 543. third, by oral examination at the hearing, 556. by interrogatories on commission, 541. under rule 67 or State practice, 614, 530, 541. rule 67 stated, 541. before whom taken, 542. by oral examination, 543. appointment of examiners, 544. form of application for, 544. when appointed beyond jurisdiction of court, 544. order appointing, 545. form of, 545. examiner to be served with copy of order and pleadings, 645. power to appoint beyond jurisdiction of court discussed, 545, 546, 1062 INDEX. EVIDENCE IN EQUITY SUITS— continued. time within which testimony to be taken before examiner, 546. notice of examination, 546. form of, 546. practice as to notice stated, 547. examination of witnesses before, 547, 548. how witnesses subpoenaed, 547, 548. subpoena issue issued by clerk, 548. by whom served, 548. U. S. Eev. Stat. 863, 876, 868 stated, 548. witness must answer, 518, 548. see DUCES tecum. how examination to be conducted, 554. to be reduced to writing, 555. equity rule 67 applied, 554, 555. by stenographer or typewriter, 555. when witness refuses to sign, 555. how authenticated and transmitted, 555, 559. see Mailing Depositions. oral examination at hearing, 556. statute and rules discussed, 556. application to be taken at hearing orally, and form, 557. time to be made, 558. must be reduced to writing, 558. returning and filing depositions, 559. by mail, 559. publication of, 560. form for consent to, 560. exhibits to depositions, 560, 561. depositions to foreign countries, 561. by commission or dedimus, 561. before whom taken, 562. by letters rogatory, 562. form of, 562, 563. suppressing depositions, 564. first, as to notice of taking, 564. , second, because of defect in commission, 565. third, when defectively taken, 565. when certificate defective, 566. when interrogatories not answered, 566. when taken by attorney, 566, 567. witness adopting previous answers, 566. irregularities may be waived, 564-566. grounds to suppress, 567, 568. motion to suppress, 568. effect of death on depositions, 569. when destroyed, 569. evidence in a former case, 569. INDEX. 1063 EVIDENCE IN EQUITY SUITS— continued, evidence taken after time allowed, 540. depositions on law side, 570. brief discussion of, 570, 571. ■who may use deposition, 573. costs allowed in taking and reading, 573. special statutes controlling evidence, 572. EXAMINERS, appointment of, 544. notice of appointment, 544. beyond territorial jurisdiction, 544. form of motion to appoint, 544. form of order appointing, 545. time within which testimony is to be taken before, 546. notice of examination, 546. form of notice, 546. examination of witnesses before, 547. EXCEPTIONS TO ANSWER, 448. see Answeb. see Bill op Exceptions. EXHIBITS. bill and exhibits taken together in hearing demurrer, 403. exhibits to depositions, 560, 561. FEDERAL COMMON LAW, 19, 20. FEDERAL JURISDICTION. see JUEISDICTION. FEDERAL QUESTION, statute of 1888 stated, 133. as ground of jurisdiction, 133, 134. what is a Federal question, 135. two classes, 137. illustrations given, 138, 139. corporations chartered by Congress, 141. this character of Federal question discussed, 141, 145. national banks, 145, 146. impairing obligation as, 147. State legislation conflicting with 14th Amendment, United States Const. 148, 151. where Federal question must appear, 152. remedy when it does not appear in the bill, 153. sec. 709, U. S. Rev. Stat, stated and discussed, 154, 157. how Federal question must appear, 158. 1064 INDEX. FEDERAL QUESTION— continued, illustrations given, 159, 162. mere reference to Federal Constitution and laws not sufficient, 158, 159, when Federal receivers are parties, 163. anticipating Federal question, 164. issue, how raised, 166. form of plea or answer, 168. citizenship not material if Federal question, 166, venue fixed in district of defendant's residence, 166. may support jurisdiction though it does not appear in the trial, 167. allegation of, in bill, 275, 276. removal on ground of, 843. FEDERAL SYSTEM, 1. fixed by the Constitution, 3, 4. law and equity distinct, 4, 5. legislation cannot change it, 4, 5. status of courts of equity in the system, 6. practice based on high court of chancery in England, 6. blended systems criticized, 7. FINAL DECREE, 607. see Decree. what is, 658. as a basis of appeals, 657. FOREIGN CORPORATIONS, see Alien Cobpobations. must be doing business in the State where sued, 112, 322, 323. service of process on, 319-322. upon whom served, 320-324. citizcehip of, 74, 105. vhen incorporated in several States, 105. State may require conditions before doing business, 75, 76. FORMAL PARTIES, 229. FORMS, see subject for which form desired. FRAUD, how alleged in bill, 276, 277. on jurisdiction, 578. when fraud charged plea must be supported by answer denying, 418. fraudulent joinder to prevent removal, 829. fraudulent joinder to remove, 830. INDEX. 1065 FRAUD— continued. stating amount fraudulently, 171, 174. setting aside judgments for, 249. HEARING, setting down demurrer, 401, 402. form for, 402. setting down plea, 420. form for, 421. setting down on bill and answer, 445. form of, 446. on exceptions to answer, 453. form for, 451. form for hearing, 453. on all pleadings, 463, 466. setting down on bill and answer is equivalent to a demurrer to the answer, 444. for hearing answer admits case, 445. who must set down for hearing on bill and answer, 446. complainant in all cases must set down for hearing, 402, 420, 453. final hearing, 581. set down by either party, 581. form for, 581. preparation for, 582. effect on previous orders, 582. in appellate courts, 751, 752. HIGH COURT OF CHANCERY, practice of this court furnishes rule if none promulgated, 30. equity rule, 90. IDENTITY OF INTERESTS, 64. in shifting parties, 64. IMPAIRING OBLIGATION, 145. Federal question, 145. IMPERTINENCE, 346. in bill, 346. exceptions to, 347. form of, 347. in answer, 448. see Scandal. INDISPENSABLE PARTIES, defined, 231, 232. test of, 233. court cannot proceed in absence of, 97. 1066 INDEX. INDISPENSABLE PARTIES— continued, alone considered in removal, 828, 829. illustrations of, 233. INFANTS, guardians ad litem for, 244. suing by next friend, 56. form, when bill exhibited by, 263. IN FORMA PAUPERIS, see P. 702 fob act authorizing suit iw. allowance of appeal in, 702, 703. INJUNCTIONS, as interlocutory proceeding, 497. by whom granted, 497. life of, 497. New Code as to granting, 497, 498. notice for, 498. time and place may be issued, 498. as to proceedings in State courts, 498. what are proceedings, 499. when sec. 72Q, U. S. Rev. Stat., does not apply, 499, 500. in conflicts between State and Federal jurisdiction, 501, 502. when jurisdiction attaches, 501. see Auxiliary Suits. appeal from, 650, 651. see Appeals. amount in suing out, 185-190. INTERLOCUTORY ORDERS, 496. nature of, 496. injunctions, 497. all interlocutory orders remain under direction of court, 490. when facts to be set up in bill, 497. ne exeat, 503. may be granted at any stage of the suit, 496. motion for, 496, 497'. by whom granted, 497. INTERLOCUTORY PROCEEDINGS, see Interlocutory Orders. INTERPLEADER, bill of, 512. one in possession, but with no interest, may file, 512. bill in nature of interpleader, 512. when can be filed, 512. removal bv. 873. INDEX. 1067 INTERSTATE COMMERCE, exclusive jurisdiction in Federal courts, 44, 45. INTERVENTION, what is, 484. two kinds, 484. first, right discretionary, 484. second, absolute, 484. when right discretionary discussed, 485. when right absolute discussed, 485. procedure, 486. form of application, 486. contesting application, 487. form of order when granted, 487. effect of order, 487. waiving order, 488. notice of intervention, 488. making defendant by, 488, 489. intervention pro suo interesse, 491. when will not lie, 492. form of intervention pro suo, 493. citizenship and amount as affecting intervention, 494. supported by jurisdiction of parties in main suit, 494, 495. nor is amount important, 495. amendment of bill for, 495. intervention for removal, 871. JOINDER, to defeat jurisdiction, 829, 830. fraudulent joinder to remove, 830. joint action to defeat removal, 823. fraudulent joinder to prevent removal, 829, 878. JOINT AND SEVERABLE LIABILITY, as affecting separable controversy, 71. tort feasors, 839^ JOINT STOCK COMPANIES, citizenship of, in diversity, 82. JUDGMENTS. See Decbee. vacating, 640. setting aside for fraud, 641. mistake, 642. impeached by third party, 643. amending, 611. correcting errors in, 610. force of, 612. lien of, 614, 1024. 1068 INDEX. JURISDICTION, defined, 35. two conditions considered in Federal courts, 35. first, equitable as distinguished from legal, 35. second. Federal as distinguished from State, 35. of circuit courts stated, 36, 40. of Supreme Court, 38, 39. act 1888 stated, 40, 41. New Judicial Code as to jurisdiction stated, 42. jurisdictional acts, see Appendix. as to exclusive jurisdiction of Federal courts, 44. courts of equity deal only with property rights, 43. jurisdiction limited, 44. no presumption of, 44. U. S. Rev. Stat. sec. 723, testing equity jurisdiction discussed, 11, 12. maxims controlling, 9-14. "remedy at law" discussed, 15. what remedies will bar equity jurisdiction, 25, 26. when equity will enforce purely legal remedy, 27. when equity will give damages, 27, 28. equity courts do not readily decline jurisdiction, 34. jurisdiction to be stated accurately, 271. concurrent with State courts, 40. jurisdiction distributed by Congress, 37. courts established by Congress, 38, 39. conferring power on State courts, 41, 42, diversity of citizenship as basis, 48. see DiVEBSiTT or Citizenship. territorial jurisdiction, 46, 47, 89. Federal question as basis of, 133. see Federal Question. amount as basis of, 176. see Amount. amending to show jurisdiction, 206, 207, 359. consent cannot give, 32, 43. nor in removal, 827. jurisdiction by assignment, 208. see Assignment. transferring property to get, 59. see JuKisDiCTiON OF Circuit Courts. see Territoriai, Jurisdiction. jurisdiction in probate matters, 245, 249. Vow issue raised and form of plea, 305. in diversity of citizenship, 122, 124, 125, 128. in Federal question, 166, 168. as to amount, 201, 202. how issue tried, 203, 125, 129, INDEX. 1069 JURISDICTION— continued. effect of fraud and collusion on, 128, 171. see Feaud. as to venue or district of suit, 130. in Federal question, 16G. waiving jurisdiction as to venue, 117, 132. who may object to venue, 119. conflict of, between State and Federal courts, 601, 502. when jurisdiction attaches, 501. by assignment, 208. see Assignment. JURISDICTION OF CIRCUIT COURTS, see JOBISDICTION. in equity, 35. sec. 723 discussed, 11. equitable as distinguished from legal, 35. Federal as distinguished from State, 35. permitted by the Constitution, 36. established by Congress, 40, 41. statutes controlling, 40. concurrent with State courts, 40. New Judicial Code, 42. deals only with property rights, 43. limited, no presumption of, 44, 47. their territorial jurisdiction, 46. see Tebeitoeial Jubisdictioit. special acts creating exclusive jurisdiction, 44. not controlled by State statutes, 17. but State remedies will be enforced, 17, 19. "plain, adequate, and complete" discussed, 22. five tests given, 22-24. character of legal remedy that will bar equity, 25. when legal remedy will be enforced in equity, 27-30. three rules stated, 27-30. when sec. 723 must be set up as a defense, 31. must be set up in limine, 31, 32. when court will dismiss bill though not set up, 33. consent cannot give jurisdiction, 43. jurisdiction involving corporations, 73-82. aliens, 85-88. married women, 84. see Diversity of Citizenship, Fedebai, QTmsTioir, Amount, Tebbi- TOBLAL JUBISDICTION, ASSIGNMENT. JURY IN EQUITY, 12, 13. LACHES, 277. 1070 INDEX. LEGAL REMEDY IN EQUITY COURTS, 27. LIEN, of judgment, 614, 1024. LIS PENDENS, 409, 411. LOCAL INFLUENCE, 800. removal on ground of, 800. court to examine into truth, 816. local prejudice, 861. see Removals on Ground of Looai. iNFLUENca MANDATE, Supreme Court may affirm, modify, or reverse, 791. may direct judgment, 791. fiow issued, 791. ' when issued, 791. executing mandate, 792. effect of, 793. issuing execution, 795. appellate court does not issue, 795. remedy of court does not enforce, 795. when by appeal, 795. when by mandamus, 796. can court recall after term, 796. as to second appeals when mandate not executed, 797. MARRIED WOMEN, citizenship of, 84. as parties, 238. issue as to coverture how plead, 264. MASTERS IN CHANCERY, rule of court and statutes stated, 583. nature of office, 583. who to be appointed, 583. object and effect of appointment, 584. when reference may be made, 584. motion for reference, 586. form of reference, 585. form when whole case submitted by consent, 586. action after reference made, 587. duty of master on receiving order of referjence, 688. authority of the master, 588. authority beyond territorial jurisdiction, 588, 589. procedure before master, 589. taking evidence, 589. INDEX. 1071 MASTERS IN CHANCERY— continued, report of master, 590. exceptions to, 591. when to be heard, 591. form of exceptions, 591, 592. exceptions to be specific, 593. withdrawal of exceptions, 594. waiving exceptions when not taken before master, 594, 599. effect of master's report, 600, 601. effect when reference by consent, 602. rereference to master, 604. compensation of master, 605. MAXIMS, to be considered in going into a court of equity, 9-11. sec. 723 as a maxim, 11. construed with 7th Amendment to United States Const., 12. sec. 723 declared declaratory, 14. MISJOINDER. See Multifabiousness. in misjoinder, presence of parties so misjoined disregarded in re- moval, 837, MOTIONS, 304, 305. nature of, 305. ex parte and on notice, 305. to be entered in clerk's order book, 305. what may be submitted on, 305. to strike out answer, 451. to remand. See Remand. MULTIFARIOUSNESS, 290. in what it consists, 290. how it arises, 290. five test rules given, 291, 292. in discretion of court to declare its existence, 291. formula controlling discretion, 294. no appeal from court's action, 291. illustrations of, 292, 293, 295. why it should be set up, 296. how set up, 296. demurrer to bill on account of, 296. form of, 297. MULTIPLICITY OF SUITS, ground of jurisdiction, 29. who may invoke jurisdiction, 30. illustrations, 29, 30. 1072 I27D£X. NATIONAL BANKS, citizenship of, 83. exclusive jurisdiction in winding up, 84. removal by, 871. see Banks. NE EXEAT, equity rule and statute stated, 280. prayer for, 280. purpose of, 503, 504. how writ discharged, 503. force of writ, 504. NONRESIDENCE, see DivEBSiTT OP Citizenship. only can remove, 835. OFFICERS OF CORPORATIONS AS PARTIES, when no personal judgment can be taken, 442. answer should be made by principal officers of, 442. OPINION IN TRANSCRIPT, 732. effect of, 732. ORAL EXAMINATIONS, taking depositions by, 543. examining under, 547. application for, at hearing, 557, 558. when to make, 558. must be reduced to writing, 558. see Examiners. ORDER BOOK, 303. entry in, as notice, 303. orders in chambers, 304. motions to be entered in, 305. ORDERS IN CHAMBERS, granted any time at chambers, 304. made to facilitate trials, 304. any order but final judgment can be made, 304. orders grantable of course, 301. orders not grantable of course, 302. PARTIES, 223. who should be in equity, 223. nature of interest to become, 224, 225. rule of parties in Federal courts, 224, 225. INDEX. 1073 PARTIES— continued. exceptions when not found in district, 225. rules and statutes governing, 226, 227. effect of the exceptions, 227, 228. sec. 737, U. S. Rev. Stat, stated and applied, 226. equity rules 22 and 47 stated, 226, 227. three classes of parties in Federal courts of equity, 229. these classes defined and discussed, 228-235. unknown parties, 235. three rules governing making parties to a bill, 236. rule when parties are niunerous, equity rule 48, 227, 237. effect of sec. 8, act 1875, 236. joint and several parties, 239. married women as, 239. stockholders as, 239, 243. partnerships as, 243. representative parties, 244. guardians ad litem, 244. executors and administrators as parties, 245-249. when fraud intervenes, 249. trustees as, 250. beneficiaries as, 252. receivers as, 253, 256. power of receivers to sue in a foreign district, 256. parties in removing cloud, 257. defect of parties and issue, 259. by demurrer, 260. form for, 260. by plea, 260. form for, 260. equity rule 52 disposing of issue discussed, 261. equity rule 52 applied, 261, 262. tried in fourteen days, 261. equity rule 39 stated, 263. local rules may control, 263. form when demurrer or plea is raised because of infancy, 263. in case of lunacy, 263. in case of administrators, 264. in case of coverture, 264. making new parties by amendment, 264. stranger cannot make himself party defendant, 488, 489. shifting to create diversity, 62. change of interest by plaintiff pending suit defeats bill, 364. bring in new parties by supplemental bill, 365. PARTNERSHIP, citizenship of, 83. as parties, 243. S. Eq.— 68. L/ / 1074 IKDEX. PENDENTE LITE, see Plea. PLAIN, ADEQUATE, AND COMPLETE, remedy at law discussed, 22-26. five rules guiding the courts in test of, 22-24. the remedy confined to simple suit for money or recovery of prop- erty, 26. PLEA, 407. equity rules 18 and 32 stated, 407. office of plea, 407, 408. diflFerence between plea and demurrer, 407, 408. classification of pleas, 409. pleas in abatement, 409. venue and other grounds of abatement stated, 409. defect of parties, 409. another suit pending, 409, 410. pleas in bar, 412, 413. various pleas in bar stated, 412. effectiveness of, discussed, 413. equity rule 39 considered, 413. form of plea in bar, 414. certificate and affidavit, 414. characteristics of plea, 415. must be single, 415. averments positive, 416. not conclusions of law, 417. effect of pure plea on bill, 417. pure plea defined, 417, 418. when plea must be supported by answer, 418. form of answer to support, 419. setting down plea for hearing, 420. praecipe for, 421. may take order of dismissal of bill if not, 422. form of note to dismiss, 421, 422. ■when plea to only part of bill, 422. overruling plea for insufficiency, 422. effect on answer, 423. sustaining plea for sufficiency, 423. issue on by replication, 424. form of replication, 424. effect of replying to plea, 424. nature of issue, 425. burden of proof, 425. effect when plea not proved, 426. effect when proved, 427, 428. may withdraw answer to file, 428. IITDEX. 1075 PRACTICE IN APPEALS, 650. see Appeals. who may appeal, 722. from interlocutory orders, 651. where taken, 665. from circuit to Supreme Court, 665. under clauses 4, 5 and 6, act 1891, 677. to circuit court of appeals, 685. allowance of appeal, 701. when jurisdiction of appellate court attaches, 703. bond in appeal, 704. supersedeas, 710. citation in appeal, 716. transcript in, 730. dismissing appeals, 744. submitting case, 751. rehearing on, 756. from circuit court of appeals to the Supreme Court, 758. from State court to United States Supreme Court, 770. practice and procedure, 779, 781. order of allowance, 783. PRAYER OF BILL, 278. see Bill. form of special prayer, 278, 280. rule of general prayer, 278. for ne exeat; 280. for process, 281. form of, 281. amendment of prayer, 282. after replication, 282. of supplemental bill, 372. PROBATE JURISDICTION, executors and administrators as parties, 245-249. when fraud intervenes, 249. PROCESS. See Seevice of Pbocess; Subpcena. prayer for, 281. form of, 281. courts always open to issue, 306. PRO CONFESSO JUDGMENT, 383. equity rules governing, 383. when can be taken, 384. order to take bill as confessed, 386. form of, 386, form of decree for, 387. 1076 INDEX. PRO CONFESSO JUDGMENT— continued, serving notice of the decree, 387. is proof necessary before entering, 388. effect of final decree, 388, 389. can defendant offer proof, 389. final decree not matter of course, 389. compelling answer, 390. right of defendant after default, 390. setting aside decree, 391. form of motion to set aside, 302. PRO SUO INTERESSE, 491. see Intekvention. applicant not party to main suit, 491. possession by court of fund gives this right of intervention, 491, 492. form for intervention, 493. RECASTING PLEADINGS, 882. in removal, 882. whether case in law or equity controls, 882. motion to file case on equity side, 883. RECEIVERS, as parties, 253, 256. power to sue in foreign jurisdiction, 256. suits by and against, 182, 184. sec. 3, act of 1888, stated and construed, 182. in ancillary suits amount and citizenship not important, 183, 184. suit by, as involving a Federal question, 163. appeals by and against, 727. removal by receivers, 869. REHEARING, 623. power of court to rehear, 623. nature of, 623. time of filing, 624, 757. order to show cause, 624. grounds of application, 624. newly discovered evidence, 625. if material, 625. on error in law, 625, 626. on ground defendant not represented, 626. effect of granting, 626. on interlocutory orders, 626. when time for appeal not included, 626. hearing application after term, 627. form of petition for rehearing, 627, 628. by appellate court, 756. INDEX. 1077 REHEARING— continued. petition must conform to equity rule 29, 757. as to time of filing, 757. cannot introduce new question, 757. REMANDING, 815, 817. statutes controlling, 816. causes for, 816. when not removed in time, 817. in this case, when motion to be made, 819. effect of extension of time to answer, 819. want of jurisdiction as ground to remand, 825. when case not in jurisdictional act, 826. when question doubtful, 827. amount as ground for motion to remand, 845. remand when local prejudice ground of removal, 866. remedy when remand refused, 867, 868. effect of order remanding, 868. by whom motion made, 874. in removals, 811. effect of motion to remand, 874. time to be made, 875. what acts waive right, 875. form of motion to remand, 876. how issue joined and tried, 878. when there was fraudulent joinder to remove, 878. nature of proof, 880. duty to remand at any stage, 827. when in separable controversy nonresident removes may dismiss as to him to remand, 839. REMEDY AT LAW, 15-19. Federal common law, 19. REMOVALS, 798. statutes stated, 798, 799. right restricted by act of 1888, 799. must be a suit of a civil nature to remove, 848. must be one that could have been brought originally in the Federal court, 849. proceedings in State court, 802. time of filing petition for, 802. petition to be verified, 802, 803. see New Code as to, 803. substance of petition, 842. time of filing bond, 803. effect of filing petition and bond, 804. notice of filing petition, 805. 1078 INDEX. REMOVALS— continued. New Code requires it, 805, 806. power of State court, 806. prima facie case for removal must be shown, 807. issue of fact as to, must be tried in Federal court, 807. petition and bond must be presented in State court, 807. order of removal, 808. not necessary, 808. jurisdiction of Federal court between petition for, and filing the record in that court, 809. can Federal court issue injunction during this time, 810, 811. cannot take depositions, 811. plaintiff may file record and make motion to remand, 811. filing record in Federal court, 811. cutting oflF right of removal, 815. when petition for, not filed in time, 817. when motion for this cause to remand is made, 819. when hearing demurrer in State court will prevent, 822, 823. filing answer in State court before time for filing petition will not prevent removal, 822. answer by one joint defendant in joint action prevents removal, 823. to what term of Federal court to remove, 823. statutes stated, 823. to what district, 824, 825. transmitting the record 825. extension of time to answer, effect, 819. when right to remove arises after time to answer, 821. status after removal, 813. as to attachments, etc., 813. all defenses heard in the Federal court, 814. removal does not waive question of proper service, 859. issue tried in Federal court, 859, 860. dismissal for want of service may sue again, 860. amending service after removal, 860. when petition for removal may be amended, 855. dismissing by plaintiff after removal, 814. diversity of citizenship as ground for removal, 828. indispensable parties alone considered, 828, 829. fraudulent joinder to prevent not allowed, 829, 830. nor is it allowed to create diversity, 830. issues of this kind determined by the Federal court, 830. as to allegation and proof, 831. how issue raised as to diversity of citizenship in removal, 831. who can remove in case of diversity, 835. how issue raised, 831. when cause of action joint, 836. when there is a misjoinder, 837. UTDEX. 1079 REMOVALS — continued. when parties nominal, 837. when controversy separable, 837. whole case removed, 841. in tort feasors, 839. substance of petition in case of diversity, 842. fraudulent joinder to remove, 830. citizens of different States suing in State court, 851, 852. see DrvEESiTY or Citizenship. but may waive objection, 853. removal on ground of Federal question, 843. who may remove, 844. amount necessary for removal, 845. effect of filing counterclaim, 847. removal on ground of local prejudice, who may remove, 861. all defendants need not join, 863. petition for removal when to be presented in such cases, 863. what petition to State, 863, 864. when and where application made, 864. as to the affidavit for removal, 864. notice of, must be given, 865. how issue tried, 865. nature of proof, 866. motion to remand, 866, 867. burden of proof, 867. remedy when remand refused, 867. mandamus as remedy, 868, 852. effect of order remanding, 868. removal by receivers, by national banks, 871. by intervener, 871. by interpleader, 873. removal by aliens, 832. by corporations, 834. remanding. See Remanding. REMOVING CLOUD, amount involved, 193. parties to suit, 257. serving nonresident, 343. REPLICATION, 462. time of filing, 462. no special replication allowed, 463. effect of, 462. . form of, 463. 1080 INDEX. REPLICATION— continued, essentials in framing, 464. trial without, 465. RES JUDICATA, as plea, 412. REVIEW, see Buj, op Review. REVIVOR, see Bill of Revivob. RULE DAYS, first Monday in each month, 301. purpose of, 300, 301. RULES IN COPYRIGHT CASES, 1021. RULES IN EQUITY. See Appendix, p. 997. source, object, and purpose, 298. what courts may promulgate, 298, 299. have force of statute, 299. statutes stated, 299. if no rule practice of high court of chancery governs, 300. rule 94 discussed, 239, 240. RULES OF SUPREME COURT, 1031. SALES BY MASTER, 619. how made, 619. effect of bid, 621. purchaser under, 621. motion to confirm, 620. exceptions to sale, 620. parties to suit not bound to take notice of subsequent proceedings after final decree, 622. SALES UNDER DECREES, 619. how made, 619. see Sales by Mastee. SCANDAL AND IMPERTINENCE, 346. equity rules stated and discussed, 346. what is, 346. exceptions for, 347. form of exceptions, 347. signed and filed when, 347. INDEX. 1081 SCANDAL AND IMPERTINENCE— continued, issue may be made by motion, 347. must be promptly made, 347. must refer promptly to a master, 348. applies to answers, 346. action of master on reference, 348. see Impebtinence. SECTIONS OF U. S. REV. STAT. AFFECTING JURISDICTION IN EQUITY, sec. 723, 11, 31. 720, 498, 499. 8, act 1875, 98, 99, 334-345. see Sebvice or Process. 5, act 1875, 574-576. 740, 101. embodied in sec. 52, New Code, 101. 709, appeal from State courts, 154, 770-790. SEPARABLE CONTROVERSY, statutes stated, 67. what is, 67. test of, 68, 69. cause of action divisible, 68. illustrations, 69, 70. purpose of the clause, 68. in joint and severable liability, 71. in cases of tort, 71. as basis for removal, 837. see Removals. SERVICE OF PROCESS. See Stjbpcl.va. subposna, 306. service of, 309, 310. see Subpoena. under sec. 8, act of 1875, 99, 334. sec. 8, retained in act 1888, 335, 98, 99. sec. 8 stated and applied, 99, 100. New Code embodies it, 335. applies to certain character of suits, 334. purpose to bring in defendants out of State, 99, 100, 334, 335. proceed by warning order instead subpoena, 336. form of peiition for warning order, 336, 337. form when defendant is a corporation, 337. form of warning order, 338. duty of clerk in, 339. who and how served, 339. when may be served by publication, 339, 340. 1082 INDEX. SERVICE OF PROCESS— continued. act does not enlarge jurisdiction, 341. act applies in suit for title to stock, 342. to cancel instruments, 342. in specific performance, 342. to remove cloud, 343. foreclosure of liens, 343. in trying title, 343, 344. does not apply to unknown heirs, 344. service of process on corporations, 315. Federal courts will follow State laws in serving corporations, 320. illustrations of service on corporations, 320-322. to serve corporation must be doing business where suit brought, 322, 323, 112. service of process may be attacked after removal, 859. service of cross bills, 480. service in supplemental bills, 370. SHIFTING PARTIES, to get diversity of citizenship, 62, 64, 828. SPECIAL APPEARANCE, grounds for entering, 326. how entered, 327. form for, 327. forms of motions to be filed after entering special appearance, 328. care in stating motion, 329. when objections to service is purpose, 329, 330. STATE, not a citizen, 60. service of subpoena on, 312. conflict between state and Federal jurisdiction, 501, 502. enjoining proceedings in state courts, 498, 499. when judgment obtained by fraud, 501. STATE COURTS. See State. STOCKHOLDER AS PARTY, 239-243. equity riile 94 discussed, 239, 243. SUBMITTING CASE TO APPELLATE COURT, practice, 751-757. SUBPCENA. See Sebvice of Pbocess. courts always open to issue, 306. praecipe for, 307. INDEX. 1083 SXJBPCENA— continued. when more than one defendant, 307. ■when made returnable, 307. form of test of subpoena, 307. office of, 308. delivery to marshal, 309. service of, 309, 310. how made, 310. where made, 310. when service on attorney, 311. on agent, 311. on executor or guardian, 312. service on State, 312. when subpoena cannot be served, 312. as where defendant privileged, 312. must be served before return day, 313. effect of valid service, 313. may amend writ, 315. return of subpoena, 313. motion to quash, 314. may amend service, 315. when not allowed to amend, 316. sec. 740 is now the rule applied to all districts by New Code, sec. 52, 101-104. can issue subpoena to another Federal district, 103-104. see Duces Tecxim. SUBSTITUTED SERVICE, what is, 508. applies generally to auxiliary suits, 508. must be an order for, 508, 510. sec. 8 of act of 1875 is a form of, 508. on agents and attorneys, 509. character of attorney to sustain, 510. how this service is obtained, 510. form of application for, 510. motion to vacate, 511. form of motion, 511. SUIT PEMDING, plea, 409, 410. what is, 40, 848. SUPERSEDEAS, petition for, 691, 692. form of, 692, 693. form of decree for, 693, 694. when appellate court may issue, 694. 1084 INDEX. SUPERSEDEAS — continued, who allows, 692, 710. supersedeas bond, 710. power to grant, 710. within what time to be perfected, 711. effect of bond, 711, 712. liability on, 712, 713. damages covered, 713. failure to prosecute appeal, 713, 714. sureties on, 714. motion to vacate, 714. form of,' 714. in writ of error from State to United States Supreme court, 787 after sixty days cannot obtain supersedeas, 789. rule to calculate time, 788. act must be followed, 789. bond to be given, 787. when bond becomes impaired, 790. SUPPLEMENTAL BILL, 364. equity rules governing, 364. nature of and grounds for filing, 365. if amendment proper no necessity for supplemental bill, 365, 366. illustrations given, 366. when no cause in original bill, 366. supplemental bill after decree, 367. motion to file, 368. form of motion, 368. notice of motion, 369. form of notice, 369. service of motion, 369. making parties by, 370. process in such cases, 370. relation of supplemental to the original bill, 371, 373. form of supplemental bill, 371, 372. prayer of bill, 372. bill in nature of supplemental bill, 373. equity rule 57 stated, 373. distinction between bills in nature of supplemental bills and original bills, 373. illustrations given, 374. SUPREME COURT, only constitutional court, 36. original exclusive jurisdiction, 38, 39. appellate powers, 38, 39. appeal from State courts, 770-790. from circuit courts, 665-681, 768-764. INDEX. 1085 SUPREME COTJRT— continued. circuit court of appeals, 765-769. see Appeals. rules of, 1031. TERRITORIAL JURISDICTION, limits of, 46, 47. statutes stated, 89. statute does not apply to removals if objection not made, 851-854. two forums in diversity of citizenship, 90. defendant must be sued in district of residence when other grounds for jurisdiction is basis of suit, 91. venue when jurisdiction depends on both diversity and Federal ques- tion, 91. exceptions to rule, 91. "inhabitant" in statute defined, 93. venue when two or more plaintiffs and defendants, 94. see sec. 8, act of 1875, stated and applied as to territorial jurisdic- tion, 99, 100. see Service or Process. rule of venue under other provisions of sec. 1, act 1888, 96. U. S. Rev. Stat. sec. 741, 742 stated, 97. U. S. Rev. Stat. sec. 740 stated, 101. sec. 740 embodied in New Judicial Code, 104. process can be served beyond the territorial limits of the district, 104. where a. corporation may be sued, 105-111 what district is the domicil of a corporation. 111. see COEPOEATIONS. where alien corporations may be sued, 115. territorial jurisdiction may be waived, 117. acts of waiver, 117. must be plead, 117. who may object to want of territorial jurisdiction, 119. objection that defendant is not sued in his district, 124, 125, how made, 124, 125. when defendant a corporation, 124. TORT FEASORS, no separable controversy in, 71, 839. TRANSCRIPT, 730. see Appeal. TRUSTEES, as parties, 250. equity rule 49 stated and applied, 250. necessary party when suit to defeat the trust, 251. 80 suit to recover property, 251. 1086 INDEX. TRUSTEES— continued. when income of trust estate is sought to be reached, 251. equity rule 50 stated, 252. UNKNOWN HEIRS, 344. UNKNOWN PARTIES, 235. see Unknown Heies as Pabties, p. 244. VENUE, 89. see Territobial Jubisdiction. in diversity of citizenship, 89, 9]. provisions of act 1888 stated, 89. rule of venue under other provisions of the act, 91, 97. when jurisdiction depends on Federal question, 166. issue as to district of suit in diversity of citizenship, 130. how raised and form of plea, 130, 131. issue as to Federal question, 166. form of plea, 168. venue in suing corporations, 105-111. where is the domicil of a corporation, 111. see Waiveb. VERIFYING ANSWER, 433. form of, 433. VERIFYING BILL, 283. form of, 283. WAIVER. privileges waived by general appearance, 326. of oath to answer, 439. effect of, 439, 440. how waiver of oath noted in bill, 439, 440. when answer evidence though oath waived, 441. waiver of jurisdiction, 117. acts of waiver, 117, 118. taking depositions as, 118. removal as waiver of jurisdiction, waiver of exceptions to master's report, 594, 595. by withdrawing, 594. waiver of exceptions not taken before master, 594, 595, 597. rule when reference by consent, 603, 604. waiving irregularity in filing transcript, 740. waiving citation in appeal, 717. waiving order to intervene, 488. waiving defense under sec. 723 of U. S. Rev. Stat., 31. waiving defect in certificate to depositions, 566, 567. INDEX. WITNESSES, who may be examined as, 515. how brought before examiner or master, 517, 518. examination of, 547, 548. where refuses to appear or answer, 548, 518. how examination conducted, 554. oral examination at hearing, 556. witnesses on law side, 571. 1087