^i QJnrtipU ICam Bc\^ao\ Hthftaty „_ „_ , Cornell University Library KF8858.Z9L84 1917 Ou'line of the jurisdiction and procedur 3 1924 020 096 750 Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020096750 OUTLINE OF THE Jurisdiction and Procedure OF THE FEDERAL COURTS By JOSEPH R. LgNG Professor of Law in Washington and Lee University; Author of "Law of Irrigation," "Law of Domestic Relations," "Notes on Roman Law," etc. THIRD EDITION CHICAGO CALLAGHAN AND COMPANY 1917 Copyright, 1910 by JOSEPH E. LONG Copyright, 1911 by JOSEPH E. LONG Copyright, 1917 by JOSEPH E. LONG PREFACE This book is intended as a manual or ready reference book for law students and others who may desire to learn or make use of the elements of the subject of Federal Jurisdiction and Procedure without having to search through the voluminous Works which treat this subject exhaustively. The main part of the book is based upon a course of lectures which the author delivered for a number of years in the School of Law of Washington and Lee University. It presents ia a brief but fairly compre- hensive manner the subject of federal jurisdiction in general, and describes fuUy the several courts of the fed- eral judicial system, with the details of their organization, jurisdiction, etc. One chapter is devoted to the subject of Eemoval of Causes and another to a brief description of the procedure of the federal courts. Then follows an outline of a suit in equity under the new Federal Equity Kules. The Appendix consists of the complete text of the Judi- cial Code of 1911, with the amendments thereto, and the new Equity Kules which went into effect February 1, 1913. In the present edition of this book considerable new matter has been added and the entire book has been thoroughly revised. J. E. L. Lexington, Ya., January, 1917. TABLE OF CONTENTS CHAPTER I THE JUDICIAL POWER IN GENERAL Page § 1. The judicial power as defined by the constitution 1 § 2. Analysis of jurisdiction — Two classes of cases 2 § 3. Distinction between law and equity 4 § 4. Jurisdiction at law — In general 5 § 5. The federal common law — ^In general 6 § 6. General commercial law 9 § 7. Swift V. Tyson 10 § 8. Other authorities 13 § 9. Classification of federal common law 16 § 10. Jurisdiction in equity — In general 17 § 11. Independence of federal equity jurisdiction 19 § 12. Criminal jurisdiction 20 § 13. International law 21 CHAPTEE II GENERAL SCOPE OF JUDICIAL POWER § 14. Definition and nature of the judicial power 23 § 15. Power of the courts to declare statutes unconstitutional 25 § 16. Views of the constitutional convention on this subject 26 § 17. View of Alexander Hamilton 28 § 18. View of John Marshall 30 § 19. How the power has been exercised by the Supreme Court 31 CHAPTEE in PARTICULAR INSTANCES OP JURISDICTION § 20. In general 34 § 21. Cases involving a federal question 35 § 22. Cases affecting ambassadors, etc 36 V vi Contents Page § 23. Cases of admiralty and maritime jurisdiction ^ 36 § 24. What waters are within admiralty jurisdiction 37 § 25. Legislation in admiralty and maritime matters 38 § 26. Exclusiveness of admiralty jurisdiction 40 § 27. Scope of admiralty jurisdiction 40 § 28. Controversies to which the United States is a party 42 § 29. Controversies between two or more states 44 § 30. Controversies between a state and citizens of another state 45 § 31. Controversies between citizens of different states 46 § 32. Who are citizens 47 § 33. Corporations as citizens 48 § 34. Corporation chartered by two or more states 50 § 35. Corporation chartered by the United States 51 § 36. Change of citizenship 52 § 37. Controversies involving conflicting land grants 52 § 38. Controversies between a state, etc., and foreign states, etc 52 CHAPTER IV DISTRIBUTION OP JUEISDICTTON — FEDERAL AND STATE JURISDICTION § 39. Legislation affecting jurisdiction 54 § 40. Exclusive jurisdiction of federal courts 55 § 41. Concurrent jurisdiction — Administration of federal law by state courts 57 § 42. Administration of state law by federal courts 59 § 43. State laws and decisions as rules of decision 61 § 44. Effect of changes in decisions of state courts 64 § 45. Comity between state and federal courts 66 § 46. Comity between federal courts inter se 67 CHAPTEB V THE FEDERAL JUDICIAL SYSTEM IN GENERAL § 47. The constitutional provisions 69 § 48. Judicial districts and circuits 69 § 49. The federal judges 70 § 50. Enumeration of the federal courts 72 CHAPTEE VI THE INFERIOR FEDERAL COURTS § 51. The former circuit courts 73 § 52. The district courts — Organization and terms 74 § 53. Jurisdiction of district courts 74 Contents vii Page i 54. Appeals from the district courts 76 i 55. The circuit courts of appeals — Establishment 76 i 56. Organization and terms 77 i 57. Jurisdiction — In general 77 i 58. Final jurisdiction 79 i 59. Appeals from the circuit courts of appeals 80 CHAPTEE Vn THE SUPKFME CODKT § 60. Organization and terms 81 § 61. Jurisdiction — In general 82 § 62. Original jurisdiction 83 § 63. Exclusive original jurisdiction 86 § 64. Enforcement of judgments against a state. . , 87 § 65. Appellate jurisdiction — In general 91 § 66. Appeals from district courts 93 § 67. Appeals from circuit courts of appeals 94 § 68. Appeals from other federal and congressional courts 96 § 69. Writ of error to state courts — The statute 97 § 70. Text of the statute 99 § 71. The amendment of 1914 100 § 72. General propositions relating to review by Supreme Court 102 § 73. Procedure 105 § 74. Eule where other than federal questions are involved 106 CHAPTER Vin SPECIAL COUETS AND QUASI COURTS § 75. The Court of Claims 107 § 76. The Court of Customs Appeals 108 § 77. The Commerce Court (now abolished) 108 § 78. Courts of the District of Columbia 109 § 79. Territorial and insular courts 110 § 80. The court of private land claims 112 § 81. Consular courts — United States court for China 112 § 82. The department of justice 113 § 83. The general land office 114 § 84. The Interstate Commerce Commission 114 § 85. Military courts 115 viii Contents CHAPTER IX BEMOVAIi OF CAUSE Page § 86. From one federal court to another 117 § 87. From a state court to a federal court — In general 117 § 88. Text of statute providing for removal 119 § 89. What suits may be removed — In general 121 § 90. Enumeration of removable causes 122 § 91. Who may remove 125 § 92. Amount in controversy 125 § 93. Waiver or forfeiture of right of removal 125 § 94. Procedure for removal 126 § 95. Procedure after removal 129 § 96. Eemanding cause to state court 129 § 97. Procedure in state court after removal 130 CHAPTER X PEOCEDUEE — ^m GENEBAIi § 98. In general 132 § 99. Procedure at law 132 § 100. Criminal procedure 133 § 101. Procedure in admiralty 135 § 102. Procedure in bankruptcy 136 CHAPTER XI PROOEDUBE IN EQUITY § 103. Federal equity procedure in general 137 § 104. General course of a suit in equity 139 § 105. The pleadings — General provisions 139 § 106. The bill 141 § 107. Parties 143 § 108. Process 149 § 109. Defenses — ^In general 150 § 110. The answer 151 § 111. Plaintiff's course after answer filed 152 § 112. The trial— Evidence 153 § 113. Continuances 155 § 114. Injunctions 156 § 115. The decree 156 § 116. Decree pro conf esso 157 § 117. Enforcement of decree 158 Contents ix CHAPTER xn. THE rEDERAL REPORTS AND STATUTES Page § 118. Supreme Court reports 160 § 119. Reports of inferior courts 161 § 120. Federal statutes 165 APPENDIX THE JUDICIAL CODE CHAPTER I DISTRICT COURTS — ORGANIZATION § 1. District courts established — Appointment and residence of judges 171 § 2. Salaries of district judges 171 § 3. Clerks 171 § 4. Deputy clerks 171 § 5. Criers and bailiffs 172 § 6. Records — Where kept 173 § 7. Effect of altering terms 172 § 8. Trials not discontinued by new term 173 § 9. Court always open as courts of admiralty and equity 173 § 10. Monthly adjournments for trial of criminal causes 173 § 11. Special terms 173 § »12. Adjournment in case of nonattendance of judge 174 § 13. Designation of another judge in case of disability of judge 174 § 14. Designation of another judge in case of an accumulation of business 175 § 15. When designation to be made by Chief Justice 175 § 16. New appointment and revocation 175 § 17. Designation of district judge in aid of another judge 176 § 18. When circuit judge may be designated to hold district court. . . . 176 § 19. Duty of district and circuit judge in such cases 177 § 20. When district judge is interested or related to parties 177 § 21. When affidavit of personal bias or prejudice of judge is filed. . . . 178 § 22. Continuance in case of vacancy in office 178 § 23. Districts having more than one judge — ^Division of business. . . . 178 CHAPTER II DISTRICT COURTS — JURISDICTION §24. Original jurisdiction. Par. 1. Where the United States are plaintiffs — And of civil suits at common law or in equity 181 X Contents Page Par. 2. Of crimes and offenses 181 3. Of admiralty causes, seizures, and prizes 181 4. Of suits under any law relating to the slave trade . . 182 5. Of eases under internal revenue, customs and ton- nage laws 182 6. Of suits under postal laws '. 182 7. Of suits under the patent, the copyright, and the trade-mark laws 182 8. Of suits for violation of interstate commerce laws. . 182 9. Of penalties and forfeitures 182 10. Of suits on debentures 182 11. Of suits for injuries on account of acts done under laws of the United States 183 12. Of suits concerning civil rights 183 13. Of suits against persons having knowledge of con- spiracy, etc 183 14. Of suits to redress the deprivation, under color of law, of civil rights 183 15. Of suits to recover certain offices 184 16. Of suits against national-banking associations 184 17. Of suits by alien for torts 184 18. Of suits against consuls and vice-consuls 185 19. Of suits and proceedings in bankruptcy 185 20. Of suits against the United States 185 21. Of suits for the unlawful inclosure of public lands. . 186 22. Of suits under immigration and contract-labor laws 186 23. Of suits against trusts, monopolies, and unlawful combinations 186 24. Of suits concerning allotments of land to Indians.. 186 25. Of partition suits where United States is joint tenant 187 § 25. Appellate jurisdiction under Chinese-exclusion laws 187 § 26. Appellate jurisdiction over Yellowstone National Park 187 § 27. Jurisdiction of crimes on Indian reservations in South Dakota. . 187 CHAPTEE III DISTRICT COURTS — REMOVAL OP CAUSES § 28. Removal of suits from State to United States district courts. . . 188 § 29. Procedure for removal 190 § 30. Suits under grants of land from different states 191 § 31. Removal of causes against persons denied any civil rights, ete. . 192 § 32. When petitioner is in actual custody of state court 193 § 33. Suits and prosecutions against revenue officers, etc 194 § 34. Removal of suits by aliens 196 Contents xi Page § 35. When copies of record are refused by clerk of state court 196 § 36. Previous attachment bonds, orders, etc., remain valid 197 § 37. Suits improperly in district court may be dismissed or remanded 197 § 38. Proceedings in suits removed 198 § 39. Time for filing record — Return of record, how enforced 198 CHAPTER IV DISTRICT COURTS — MISCELLANEOUS PROVISIONS § 40. Capital cases — Where triable 201 § 41. Offenses on the high seas, etc., where triable 201 § 42. Offenses begun in one district and completed in another 201 § 43. Suits for penalties and forfeitures, where brought 201 § 44. Suits for internal-revenue taxes, where brought 201 § 45. Seizures, where cognizable 201 § 46. Capture of insurrectionary property, where cognizable 202 § 47. Certain seizures cognizable in any district into which the prop- erty is taken 202 § 48. Jurisdiction in patent cases 202 § 49. Proceedings to enjoin comptroller of the currency 203 § 50. When a part of several defendants can not be served 203 § 51. Civil suits — Where to be brought 203 § 52. Suits in states containing more than one district 204 § 53. Districts containing more than one division — Where suit to be brought — Transfer of criminal cases 204 § 54. Suits of a local nature, where to be brought 205 § 55. When property lies in diflferent districts in same state 205 § 56. When property lies in different states in same circuit — Juris- diction of receiver 205 § 57. Absent defendants in suits to enforce liens, remove clouds on titles, etc 206 § 58. Civil causes may be transferred to another division of district by agreement 208 § 59. Upon creation of new district or division, where prosecution to be instituted or action brought '. 208 § 60. Creation of new district, or transfer of territory not to divest lien — How lien to be enforced 209 § 61. Commissioners to administer oaths to appraisers 210 § 62. Transfer of records to district court when a territory becomes a state 210 § 63. District judge shall demand and compel delivery of records of territorial court 210 § 64. Jurisdiction of district courts in cases transferred from terri- torial courts 211 § 65. Receivers to manage property according to state laws 211 xii Contents Page § 66. Suits against receiver 211 § 67. Certain persons not to be appointed or employed as oflScers of courts 211 § 68. Certain persons not to be masters or receivers 212 CHAPTER V DISTRICT COUETS — DISTRICTS, AND PEOVISIONS APPLICABLE TO PAKTICULAE STATES § 69. Judicial districts 213 § 70. Alabama 213 § 00. Arizona 216 § 71. Arkansas 216 § 72. California 218 § 73. Colorado 219 § 74. Connecticut 219 § 75. Delaware 219 § 76. Florida 219 § 77. Georgia 220 § 78. Idaho 222 § 79. Illinois 223 § 80. Indiana 225 § 81. Iowa 225 § 82. Kansas 227 § 83. Kentucky 229 § 84. Louisiana ■. 230 § 85. Maine 232 § 86. Maryland 232 § 87. Massachusetts 233 § 88. Michigan 233 § 89. Minnesota 235 § 90. Mississippi 236 § 91. Missouri 238 § 92. Montana 240 § 93. Nebraska 240 § 94. Nevada 242 § 95. New Hampshire 242 § 96. New Jersey 242 § 97. New York 242 § 98. North Carolina 244 § 99. North Dakota 246 § 100. Ohio 247 § 101. Oklahoma 249 § 102. Oregon 250 § 103. Pennsylvania 250 Contents xiii Page § 104. Ehode Island 252 § 105. South Carolina 252 § 106. South Dakota 253 § 107. Tennessee . .' 254 § 108. Texas 256 § 109. Utah 260 § 110. Vermont 261 § 111. Virginia 261 § 112. Washington 263 § 113. West Virginia 264 § 114. Wisconsin 265 § 115. Wyoming . . , 266 CHAPTER VI CIRCUIT COUKTS OF APPEALS § lie. Circuits 268 § 117. Circuit courts of appeals 269 § 118. Circuit judges 269 § 119. Allotment of justice to the circuits 270 § 120. Chief justice and associate justices of supreme court, and dis- trict judges, may sit in circuit court of appeals 270 § 121. Justices allotted to circuits, how designated 271 § 122. Seals, forms of process, and rules 271 § 123. Marshals -. 271 § 124. Clerks 271 § 125. Deputy clerks — Appointment and removal 272 § 126. Terms 272 § 127. Booms for court, how provided 274 § 128. Jurisdiction — When judgment final 274 § 129. Appeals in proceedings for injunctions and receivers 274 § 130. Appellate and supervisory jurisdiction under the bankrupt act 275 § 131. Appeals from the United States court for China 275 § 132. Allowance of appeals, etc 276 § 133. Writs of error and appeals from the supreme courts of Arizona and New Mexico 276 § 134. Writs of error and appeals from district court for Alaska to circuit court of appeals for ninth circuit — Court may certify questions to the supreme court 276 § 135. Appeals and writs of error from Alaska — Where heard 277 CHAPTER VII THE COURT OP CLAIMS § 136. Appointment, oath, and salary of judges 279 § 137. Seal 279 xiv Contents Page § 138. Session— Quorum : 279 § 139. Officers of the court 280 § 140. Salaries of Officers •. . . 280 § 141. Clerk's bond 280 § 142. Contingent fund 280 §143. Reports to Congress — Copies for departments, etc 281 § 144. Members of Congress not to practice in the court 281 § 145. Jurisdiction 281 Par. 1. Claims against the United States 281 2. Set-offs 282 3. Disbursing officers 282 §146. Judgments for set-offs of counterclaims — How enforced 283 § 147. Decree on accounts of disbursing officers 283 § 148. Claims referred by departments 283 § 149. Procedure in cases transmitted by departments 284 § 150. Judgments in cases transmitted by departments — How paid. . . 284 § 151. Either house of congress may refer certain claims to court. . . . 284 § 152. Costs may be allowed prevailing party 285 § 153. Claims growing out of treaties not cognizable therein 286 § 154. Claims pending in other courts 286 § 155. Aliens 286 § 156. All claims to be filed within six years — Exceptions 286 § 157. Rules of practice — ^May punish contempts 287 § 158. Oaths and acknowledgments 287 § 159. Petitions and verifications 287 § 160. Petition dismissed, when 288 § 161. Burden of proof and evidence as to loyalty 288 § 162. Claims for proceeds arising from sales of abandoned property. 288 § 163. Commissioners to take testimony 289 § 164. Power to call upon departments for information 289 § 165. When testimony not to be taken 289 § 166. Examination of claimant 289 § 167. Testimony — Where taken 290 § 168. Witnesses before commissioners 290 § 169. Cross-examinations 290 S 170. Witnesses — How sworn 291 § 171. Fees of commissioners, by whom paid 291 § 172. Claims forfeited for fraud 291 § 173. Claims under act of June 16, 1874 291 § 174. New trial on motion of claimant 292 § 175. New trial on motion of United States 292 § 176. Cost of printing record 292 § 177. No interest on claims 292 § 178. Effect of payment of judgment 292 § 179. Final judgments a bar 293 § 180. Debtors to the United States may have amount due ascertained 293 Contents xv Page § 181. Appeals 294 § 182. Appeals in Indian cases 294 § 183. Attorney general 's report to congress 294 § 184. Loyalty a jurisdictional fact in certain cases 295 § 185. Attorney general to appear for the defense 295 § 186. Persons not to be excluded as witnesses on account of color or the cause of interest — Plaintiff may be witness for govern- ment 295 § 187. Eeports of court to 'congress 296 CHAPTER Vm THE COTJBT OP CUSTOMS APPEALS § 188. Court of Custniflg Appeals — Appointment and salary of judges -Quorum — Circuit and district judges may act in place of judge disqualified, etc 297 § 189. Court to be always open for business — Terms may be held in any circuit — When expenses of judges to be paid 298 § 190. Marshal of the court — Appointment, salary, and duties 298 § 191. Clerk of the court — Appointment, salary, and duties 299 § 192. Assistant clerk, stenographic clerks, and reporter — Appoint- ment, salary, and duties 299 g 193. Booms for holding court to be provided — Bailiffs and mes- sengers 300 § 194. To be a court of record — To prescribe form and style of seal, and establish rules and regulations — May affirm, modify, or reverse and remand case, etc 300 § 195. Final decisions of Board of General Appraisers to be reviewed only by Customs Court 301 § 196. Other courts deprived of jurisdiction in customs cases — Pend- ing cases excepted 302 § 197. Transfer to Customs Court of pending cases — Completion of testimony 303 § 198. Appeals from Board of General Appraisers — Time within which to be taken — Eecord to be transmitted to Customs Court . . 303 § 199. Eeeords filed in Customs Court to be at once placed on calendar — Calendar to be called every sixty days 304 CHAPTER IX THE COMMERCE COUET § 200. Commerce Court created — Judges of, appointment and designa- tion — Expense allowance to judges 305 § 201. Additional circuit judges — Appointment and assignment 306 xvi Contents Page § 202. Officers of the court— Clerk, marshal, etc.— Salaries, etc 307 § 203. Court to be always open for business — Sessions of, to be held in Washington and elsewhere 307 § 204. Marshals to provide rooms for holding court outside of Wash- ington 308 § 205. Assignment of judges to other duty — ^Vacancies, how filled. . . . 308 § 206. Powers of court and judges — Writs, process, procedure, etc .... 309 § 207. Jurisdiction of the court 309 § 208. Suits to enjoin, etc., orders of Interstate Commerce Commis- sion to be against United States — Restraining orders, when granted without notice 310 § 209. Jurisdiction of the court, how invoked — Practice and procedure 311 § 210. Pinal judgments and decrees reviewable in Supreme Court. — 312 § 211. Suits to be against United States — When United States may intervene 313 § 212. Attorney General to control all cases — Interstate Commerce Commission may appear as of right — ^Parties interested may intervene, etc 313 § 213. Complainants may appear and be made parties to case 314 § 214. Pending cases to be transferred to Commerce Court — Excep- tion — Status of transferred cases 314 CHAPTER X THE STJPEEME COUET § 215. Number of justices 317 § 216. Precedents [Precedence] of the associate justices 317 § 217. Vacancy in the office of Chief Justice 317 § 218. Salaries of justices 317 § 219. Clerk, marshal, and reporter 318 § 220. The clerk to give bond 318 § 221. Deputies of the Clerk 318 § 222. Records of the old court of appeals 319 § 223. Tables of fees 319 § 224. Marshal of the Supreme Court 319 § 225. Duties of the reporter 319 § 226. Reporter 's salary and allowances 320 § 227. Distribution of reports and digests 320 § 228. Additional reports and digests — ^Limitation upon cost — ^Esti- mates to be submitted to Congress annually 323 § 229. Distribution of Federal Reporter, etc., and Digests 323 § 230. Terms 324 § 231. Adjournment for want of a quorum 325 § 232. Certain orders made by less than quorum 325 § 233. Original disposition [Exclusive jurisdiction] 325 Contents xvii Page § 234. Writs of prohibition and mandamus 326 § 235. Issues of fact 326 § 236. Appellate jurisdiction 326 § 237. "Writs of error from judgments and decree of State courts 326 § 238. Appeals and writs of error from United States district courts. . 327 § 239. Circuit court of appeals may certify questions to Supreme Court for instructions 328 § 240. Certiorari to circuit court of appeals 328 § 241. Appeals and writs of error in other cases 328 § 242. Appeals from Court of Claims 329 § 243. Time and manner of appeals from the Court of Claims 329 § 244. "Writs of error and appeals from Supreme Court of and United States district court for Porto Eico 329 § 245. Writs of error and appeals from the Supreme Courts of Arizona and New Mexico. 330 § 246. Writs of error and appeals from the Supreme Court of Hawaii 330 § 247. Appeals and writs of error from the district court for Alaska direct to Supreme Court in certain cases 331 § 248. Appeals and writs of error from the Supreme Court of the Philippine Islands 332 § 249. Appeals and writs of error when a Territory becomes a State. . 332 § 250. Appeals and writs of error from the Court of Appeals of the District of Columbia 332 § 251. Certiorari to Court of Appeals, District of Columbia 334 § 252. Appellate jurisdiction under the bankruptcy act 334 § 253. Precedence of writs of error to State courts 335 § 254. Cost of printing records 335 § 255. Women may be admitted to practice 335 CHAPTER XI PROVISIONS COMMON TO MOEE THAN ONE COURT § 256. Cases in whicb jurisdiction of United States courts shall be exclusive of States courts 337 § 257. Oath of United States judges 338 § 258. Judges prohibited from practicing law 338 § 259. Traveling expenses, etc., of circuit justices and circuit and district judges 339 § 260. Salary of judges after resignation 339 § 261. Writs of ne exeat 340 § 262. Power to issue writs 340 § 263. Temporary restraining orders 340 § 264. Injunctions — In what cases judge may grant 340 § 265. Injunctions to stay proceedings in State courts 341 § 266. Injunctions based upon alleged unconstitutionality of State statutes — ^When and by whom may be granted 341 xviii Contents Page § 267. When suits in equity may be maintained 343 § 268. Power to administer oaths and punish contempts 343 § 269. New trials 343 § 270. Power to hold to security for the peace and good behavior 343 § 271. Power to enforce awards of foreign consuls, etc., in certain cases 344 § 272. Parties may manage their causes personally or by counsel .... 345 § 273. Certain officers forbidden to act as attorneys 345 § 274. Penalty for violating preceding section 345 § 274a. Amendment of suit brought on wrong side of court 345 § 274b. Equitable defenses interposed in actions at law 346 § 274c. Amendment where diverse citizenship is defectively alleged. 346 CHAPTEE XII JURIES § 275. Qualifications and exemptions of jurors 347 § 276. Jurors, how drawn 347 § 277. Jurors, how to be apportioned in the district 348 § 278. Eace or color not to exclude 348 § 279. "Venire, how issued and served 348 § 280. Talesmen for petit juries 349 § 281. Special juries 349 § 282. Number of grand jurors 349 § 283. Foreman of grand jury 350 § 284. Grand juries, when summoned 350 § 285. Discharge of grand juries 350 § 286. Jurors not to serve more than once a year 351 § 287. Challenges 351 § 288. Persons disqualified for service on jury in prosecutions for polygamy; etc 351 CHAPTEE Xin QINIKAL PROVISIONS § 289. Circuit courts abolished — Eecords of to be transferred to dis- trict courts 353 § 290. Suits pending in circuit courts to be disposed of in district courts 354 § 291. Powers and duties of circuit courts imposed upon district courts 354 § 292. Eef erences to laws revised in this act deemed to refer to sections of act 354 § 293. Sections 1 to 5, Eevised Statutes, to govern construction of this act 354 Contents xix Page §294. Laws revised in this act to be construed as eontinuations of existing laws 354 § 295. Inference of legislative construction not to be drawn by reason of arrangement of sections 355 § 296. Act may be designated as ' ' The Judicial Code " 355 CHAPTER XIV EEPEALING PROVISIONS § 297. Sections, acts, and parts of acts repealed 356 § 298. Bepeal not to affect tenure of ofice, or salary, or compensation of incumbents, etc 358 § 299. Accrued rights, etc., not affected 359 §300. Offenses committed, and penalties, forfeitures, and liabilities incurred, how to be prosecuted and enforced 359 § 301. Date this act shall be effective 359 EQUITY RULES Rule 1. District court always open for certain purposes — Orders at chambers 360 Rule 2. Clerk 's office always open, except, etc 360 Rule 3. Books kept by clerk and entries therein 360 Rule 4. Notice of orders 361 Rule 5. Motions grantable as of course by clerk 361 Rule 6. Motion day 362 Rule 7. Process, mesne and final 362 Rule 8. Enforcement of final decrees 362 Rule 9. Writ of assistance 363 Rule 10. Decree for deficiency in foreclosure, etc 363 Rule 11. Process in behalf of and against persons not parties 364 Rule 12. Issue of subpoena — Time for answer 364 Rule 13. Mode of serving subpoena 364 Rule 14. Alias subpoena 364 Rule 15. Process, by whom served 365 Rule 16. Defendant to answer — Default — Decree pro conf esso 365 Rule 17. Decree pro conf esso to be followed by final decree — Setting aside default 365 Rule 18. Pleadings — Technical forms abrogated 365 Rule 19. Amendments generally 366 Rule 20. Further and particular statement in pleading may be required 366 Rule 21. Scandal and impertinence 366 Rule 22. Action at law erroneously begun as suit in equity — Transfer 366 Rule 23. Matters ordinarily determinable at law, when arising in suit in equity to be disposed of therein 366 XX Contents Page Rule 24. Signature of counsel 367 Eule 25. Bill of complaint — Contents 367 Eule 26. Joinder of causes of action 367 Eule 27. Stockholders' bill 368 Eule 28. Amendment of bill as of course 368 Eule 29. Defenses — How presented 369 Eule 30. Answer — Contents — Counter claim 369 Eule 31. Eeply — When required — When cause at issue 370 Eule 32. Answer to amended bill 370 Eule 33. Testing sufficiency of defense 371 Eule 34. Supplemental pleading 371 Eule 35. Bills of revivor and supplemental bills — Form 371 Eule 36. Officers before whom pleadings verified 371 Eule 37. Parties generally — Intervention 371 Eule 38. Eepresentatives of class 372 Eule 39. Absence of persons who would be proper parties 372 Eule 40. Nominal parties 372 Eule 41. Suit to execute trusts of will — Heir as party 373 Eule 42. Joint and several demands 373 Eule 43. Defect of parties — Eesisting objection 373 Eule 44. Defect of parties — Tardy objection 374 Eule 45. Death of party — Eevivor 374 Eule 46. Trial — Testimony usually taken in open court — Eulings on objections to evidence 374 Eule 47. Depositions — To be taken in exceptional instances 375 Eule 48. Testimony of expert witnesses in patent and trade-mark cases 375 Eule 49. Evidence taken before examiners, etc 376 Eule 50. Stenographer — Appointment — ^Fees 376 Eule 51. Evidence taken before examiners, etc 376 Eule 52. Attendance of witnesses before commissioner, master or examiner 376 Eule 53. Notice of taking testimony before examiner, etc 377 Eule 54. Depositions under Eev. Stat., §§ 863, 865, 866, 867 — Cross- examination 377 Eule 55. Deposition deemed published when filed 378 Eule 56. On expiration of time for depositions, case goes on trial calendar 378 Eule 57. Continuances 378 Eule 58. Discovery — Interrogatories — Inspection and production of documents — Admission of execution and genuineness .... 379 Eule 59. Eeference to master — ^Exceptional, not usual 380 Eule 60. Proceedings before master 381 Eule 61. Master's report — Documents identified but not set forth.. 381 Eule 62. Powers of master 381 Eule 63. Form of accounts before master 382 Contents xxi Page Rule 64. rormer deposition, etc., may be used before master 382 Eule 65. Claimants before master examinable by him 382 Eule 66. Return of master's report — Exceptions — Hearing 383 Rule 67. Costs on exceptions to master's report 383 Rule 68. Appointment and compensation of masters 383 Rule 69. Petition for rehearing 384 Rule 70. Suits by or against incompetents 384 Rule 71. Form of decree 384 Rule 72. Correction of clerical mistakes in orders and decrees.... 384 Rule 73. Preliminary injunctions and temporary restraining orders. 385 Rule 74. Injunction pending appeal 385 Rule 75. Record on appeal — Reduction and preparation 386 Rule 76. Record on appeal — ^Reduction and preparation — Costs — Con- nection of omissions 387 Rule 77. Record on appeal — Agreed statement 387 Rule 78. Aflrmation in lieu of oath 388 Rule 79. Additional rules by district court 388 Rule 80. Computation of time — Sundays and holidays 388 Rule 81. These rules effective February 1, 1913 — Old rules abrogated 389 FEDERAL JURISDICTION AND PROCEDURE CHAPTER I THE JUDICIAL POWEB IN GENERAL S 1. The judicial power as defined by the constitution. § 2. Analysis of jurisdiction — Two classes of cases. § 3. Distinction between law and equity. § 4. Jurisdiction at law — In general. § 5. The federal common law — In general. § 6. General commercial law. § 7. Swift V. Tyson. § 8. Other authorities. S 9. Classification of federal common law. § 10. Jurisdiction in equity — In general. § 11. Independence of federal equity jurisdiction. § 12. Criminal jurisdiction. § 13. International law. § 1. The judicial power as defined by the canstitution. The judicial power, like all other powers of the United States, is conferred and defined by the Constitution, which provides that: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public minis- ters and consuls; to all cases of admiralty and maritime juris- diction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state ; between citizens of different states, between citizens of the same state claiming lands under 1 2 Fedebal Jueisdiction and Peocedxieb grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. ' ' ^ Case Defined. A "case" within the meaning of this section of the Constitution is any subject on which the judicial power is capable of acting, and which has been submitted to it by a party in the forms required by law. A case may consist of the right of either party, plaintiff or defendant, and the provision embraces alike civil and criminal cases.^ Controversy Defined. A "controversy" in the above connection is any dispute concerning rights or wrongs cognizable by law, and which may, therefore, be the sub- ject of an action or involved therein. It is a less compre- hensive term than "case" and seems to be included therein. It applies to civil matters only.^ §2. Analysis of jurisdiction — Two classes of causes. The jurisdiction conferred by the above comprises two general classes of causes : (1) Those in which the jurisdiction depends upon the nature of the subject matter involved, and, (2) Those in which the jurisdiction depends upon the character or citizenship of the parties to the suit. Causes of the first class comprise "all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, ' ' and ' ' all cases of admiralty and maritime jurisdiction." The former group, that is, cases arising under the Constitution, laws, and treaties of the United States, are known generally as cases "involv- 1— Const. Art. Ill, §2. 3— Fish v. Henarie, 32 Fed. 423; 2 — Cohens v. Virginia, 6 Wheat. In re Pacific E. Conimission, 32 Fed. 264; Osborn v. Bank, 9 Wheat 738; 241. See, also, Interstate Commerce Tennessee v. Davis, 100 U. S. 257; Com. v. Brimson, 154 XJ. S. 447. Smith V. Adams, 130 XT. S. 167; La Abra Silver Mining Co. v. United States, 175 XJ. 8. 423. The Judicial Power in Genebal 3 ing a federal question," that is, a question of federal law. The federal judicial power extends to all causes of this first class without regard to the character of the parties to the suit. The second class of causes embraces all the other sub- jects to which the federal judicial power extends, and in this class the jurisdiction, as stated above, depends en- tirely upon the character or citizenship of the parties to the suit, without reference to the nature of the issues involved or the law to be implied. This class includes ' ' all cases affecting ambassadors, other public ministers, and consuls," and "controversies" to which the United States shall be a party, controversies between two or more states, controversies between a state and citizens of another state, etc. The situation may also be stated in the language of Chief Justice Marshall as follows : * "The second section of the third article of the Consti- tution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the Union in two classes of cases. In the first their jurisdic- tion depends upon the character of the cause, whoever may be the parties. This class comprehends 'all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. ' This clause extends the jurisdiction of the court to all the cases described, with- out making in its terms any exception whatever, and with- out any regard to the condition of the party. If there be any exception, it is to be implied against the express words of the article. "In the second class the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more states, between a state and citizen of another state,' and 'between a state 4 — Cohens v. Virginia, 6 Wheat. 264. 4 Fedekax. Jueisdiction and Pbocedueb and foreign states, citizens, or subjects. ' If these be the parties, it is entirely unimportant what may be the sub- ject of controversy. Be it what it may, those parties have a constitutional right to come into the courts of the Union. ' ' It will be observed that the instances given by the chief justice are not exhaustive but simply illustrative of each class of cases. The distinction between the two classes will appear more clearly when the particular instances of jurisdiction are considered. The jurisdic- tion includes the familiar divisions, jurisdiction at law, jurisdiction in equity, criminal jurisdiction, etc. § 3. Distinction between law and equity. The Consti- tution preserves the familiar distinction between law and equity in the language ' ' The judicial power shall extend to all cases, in law and equity, arising," etc.^ This dis- tinction has been observed in practice in all the federal courts throughout the United States notwithstanding the fact that in many states the distinction between actions at law and suits in equity has been abolished by statute.® But while the distinction is maintained in the federal courts, there are not, as formerly in England and still in a few of the states, separate courts of law and equity, but the same court sits in both capacities. It may be worthy of remark that although the Constitu- tional provision clearly means that the federal judicial power shall extend to the adjudication of rights involving both legal and equitable principles, it does not necessarily mean that separate forms of action shall be preserved. It is doubtless competent for Congress to abolish this dis- tinction, as has been done in the so-called "code states," and establish a single system of judicial procedure, pro- vided that in so doing the Constitutional right to a jury 5 — See Irvine v. Marshall, 20 6— Bennett v. Butterworth, 11 How. 558; Smith v. American Nat. How. 669; Fenn v. Holme, 21 How. Bank, 89 Fed. 832. 481. The Judicial Power in General 5 trial guaranteed by the Seventh Amendment be not im- paired. As a matter of fact, however, the single form of procedure is a modem innovation and was unknown when the federal judicial system was established, and the legis- lation of Congress has always recognized the double sys- tem of procedure J §4. Jurisdiction at law— In general. The Constitution provides that "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." Taken literally, this language would seem to include cases of a legal na- ture in the technical sense, such as were within the juris- diction of the courts of common law, arising under the Constitution, laws and treaties of the United States, that is, cases of a legal nature arising under the federal writ- ten law. Under this construction, while the principles of the common law as to procedure, evidence, construction, etc., might be applied in the determination of causes aris- ing under the federal Constitution, laws and treaties, there would be no room for the contention that by this clause the judicial power is extended to cases at common law generally unconnected with the Constitution, laws or treaties of the United States. In other words, this clause, so construed, does not amount to an adoption for the United States at large of the common law generally in the same sense in which the several states, by constitu- tional provision or statute, have adopted the common law. In those cases of which the federal courts have jurisdic- tion because of the citizenship or character of the parties, the character of the suit, as at law, in equity, etc., and the nature of the subject matter involved, are immaterial, and in all such cases, of course, the judicial power extends 7— See Street, Ted. Eq. Prac, §§ 11, 12. 6 Federal Jubisdiction and Peoceduke to cases at law, as well as to those in equity, etc., pro- vided the requirement as to citizenship or character of the parties is satisfied. § 5. The federal common law — In general. In view of the fact that the federal government is a government of delegated powers and may exercise only such powers as are granted to it in the Constitution, and the further fact that the Constitution has nowhere in terms formally ex- tended the judicial power of the United States to the com- mon law as a whole, but only to cases at law arising under the Constitution, etc., of the United States, it has long been customary to declare that there is no national or federal common law. Thus in 1834 the Supreme Court, by McLean, J., said : ^ "It is clear there can be no common law of the United States. The federal government is composed of twenty- four sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union and has the authority of law that is not embodied in the Consti- tution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption. When, therefore, a common law right is as- serted, we must look to the state in which the contro- versy originated." Again, Mr. Justice Miller, in 1887, declared:^ "There is no common law of the United States, and yet the main body of the rights of the people of this country rest upon and are governed by principles derived from the common law of England and established as the laws of the different states." Such declarations, however, do not accurately state the law as it has now been developed by the Supreme Court. 8— Wheaton v. Peters, 8 Pet. 591, IT. S. 555, 583. See, also, Smith v. 658. Alabama, 124 U. S. 465. And see 9 — Bucher v. Cheshire E. Co., 125 Hughes' Fed. Proe. (2d ed.) 5. The Judicial Power in Geneeal 7 "We shall find that along certain lines there is a well developed federal common law. The federal written law (constitution, statutes, and treaties) does not and cannot constitute in itself a com- plete system of law, but is fragmentary and covers only a portion of the great range of subjects with which a court of justice may be called upon to deal, and these often only partially, and much of the law administered by the fed- eral courts comes from other sources. Thus in many of the cases in the federal courts no question of federal law at all is involved, but the jurisdiction of the court depends upon the citizenship or character of the parties. In some cases the law involved is the statute law of a state, but most of these cases are to be determined wholly or in part by the common law. In thus administering the common law, it is commonly considered that the federal courts are administering not a federal common law, but the common law of the states in which they are sitting. This is undoubtedly true in many cases. Thus, a federal court sitting in New York in a case in which its jurisdiction is derived solely from diversity of citizenship of the parties, as where a citizen of New Jersey is suing a citi- zen of New York about a matter involving no question of federal law, will administer the law applicable to the case, which in many cases will be the common law of New York. In administering the common law the federal courts generally follow the decisions of the courts of the state — practically always in matters of purely local inter- est, as, for example, in matters relating to the title to real property within the state, or the status and relations of persons within state jurisdiction. In this class of cases they are administering state law.^*' But it frequently happens that the case is one to which the local law of the state is not applicable, and to which also there is no federal written law that can apply. A case involving interstate commerce, which is exclusively 10— See post, §42. 8 Federal Jubisdiction and Peocedube within federal jurisdiction, and as to which Congress has not legislated, affords a good example. Such cases must be decided by some common law, and plainly this can only be a federal common law. Another example is found in the case of controversies between two states. In such a case the proper law to be applied cannot be the law of either state but must be a law of common recognition, which, of course, can be only a general, or interstate com- mon law, or, in other words, a federal common law. And, by implication, the Constitution in conferring upon the federal courts jurisdiction of controversies between two states must be understood to have conferred upon such courts power to administer the appropriate law to be applied thereto. In a case of this sort it is possible that Congress might have power to legislate under the "nec- essary and proper" clause of the Constitution, as has been done in cases of admiralty and maritime jurisdic- tion, for it is not to be supposed that the law governing controversies between two states, or any other contro- versies to which state law is not applicable and over which Congress is not expressly authorized to legislate, shall be forever unalterable, or alterable only by judicial legislation. But however this may be, the Constitution certainly contemplates that such cases shall be deter- mined according to some law, and where there is no fed- eral written law on the subject, and yet the case is clearly within federal and not state jurisdiction, it would seem to be fairly implied that in extending the judicial power to such cases the Constitution has adopted the principles of the English common law so far as applicable to such cases. This, at least, has been the practical construction by the courts. The case of Western Union Telegraph Co. v. Call ^^ illustrates the first of the above classes. This was a suit brought by a publisher in Nebraska to recover from a 11— Western tjnion Telegraph Co. V. Can, 181 TT. S. 92. The Judicial Powee in Genebal 9 telegrapli company the amount of an overcharge for tele- graphic service paid under protest. The company was doing an interstate business but Congress had not regu- lated the matter of rates, which, of course, it had power to do. As interstate rates cannot be fixed by the law of a state, either its statute law or common law, and there was no federal statute, the company contended that there was no applicable law, and until Congress acted it was wholly uncontrolled in the matter of fixing its rates for service. The Supreme Court held, however, that the case was governed by the common law, which, of course, could be only the federal common law, and the plaintiff recov- ered. In so holding the court, by Brewer, J., said : ' * The principles of the common law are operative upon all interstate commercial transactions except so far as they are modified by Congressional enactment." The second class of cases above suggested is illustrated by the case of Kansas v. Colorado,^^ in which the common law of fiparian rights was applied in a suit between the two states involving the use of the Arkansas Eiver, an interstate stream. In this case, after reviewing a number of cases involving more or less the recognition of a fed- eral common law, the court said: "In other words, through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law. ' ' § 6. General commercial law. The development of a federal common law by the federal courts in connection with the classes of controversies mentioned in the preced- ing section involves, it would seem, no usurpation of power. In conferring upon the federal courts jurisdic- tion of controversies to which no state law can properly apply, the Constitution must be deemed, by implication, to have granted to these courts authority to apply their 12— Kansas v. Colorado, 206 U. 8. 46. 10 Fedbeal Jukisdiction" and Peocedube own doctrine of common law in the absence of legislation by Congress. And tMs is true not only in cases in respect to wMcli Congress has power to legislate but has not done so, but also as to cases not subject to Congressional control. There can, therefore, be no objection on con- stitutional grounds to the administration by the federal courts of a federal common law within the limits indicated. But where a case falls within the law of a state and comes within the jurisdiction of the federal courts solely because of the character of the parties to the suit, a very different question is presented. Thus where a citizen of one state sues a citizen of another state in a federal court on a cause of action arising under the law of one of these states, it would seem too clear for argument that the law to be applied is the law of such state, and not fed- eral law. And in such case, if the law on the point in- yplved has been settled by the courts of that state, the federal court should apply the state law as so estab- lished. However, in a long line of decisions, the Supreme Court, by what seems to be an extraordinary exercise of power, has established a different doctrine. It is well settled that in matters of "general commercial law" the federal courts will exercise an independent judgment, and will decide cases coming before them on the ground of diverse citizenship according to their own notions of the common law, notwithstanding the law has been otherwise settled in the courts of the states in which the causes of action arise. § 7. Swift V. Tyson. The case in which this doctrine was first announced was Swift v. Tyson,'^^ decided in 1842. This wa-s an action by Swift (of Maine) against Tyson (of New York) as acceptor of a bill of exchange drawn in Portland, Maine, upon him and accepted by 13— Swift V. Tyson, 16 Pet. 1. The Judicial Power in Gtenekal H him in New York City. The bill was drawn to the order of the drawers and was endorsed by one of them to Swift, who took the bill before maturity in payment of a pre-existing debt due to him from the drawers of the bill. The defendant, Tyson, pleaded failure of consideration as between himself and the drawers. Swift claimed that this defense was not good as against him who had re- ceived the bill as a holder in due course, for value, and without notice of any equities between the other parties thereto. The question in the case was, whether Swift, having taken the bill in payment of a pre-existing debt, was a holder for valuable consideration, that is, whether a pre-existing debt is a valuable consideration within the law of negotiable instruments. The acceptance having been in New York, it was contended that the contract was a New York contract and governed by the law of New York state. The Supreme Court reviewed the New York authorities and expressed a doubt whether it was certainly and finally settled that in that state a pre-existing debt was not a valuable consideration. The court by Story, J., then continued: "But admitting the doctrine to be fully settled in New York, it remains to be considered whether it is obligatory upon this court, if it differs from the principles established in the general commercial law. It is observable that the courts of New York do not found their decisions upon any local statute, or positive, fixed, or ancient local usage ; but they deduce the doctrine from the general principles of commercial law. It is, however, contended that the 34th section of the Judiciary Act of 1789, e. 20, furnishes a rule obligatory upon this court to follow the decisions of the state tribunals in all cases to which they apply. That section provides Hhat the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, 12 Fedebal Jueisdiction and Peooedubb in cases where they apply. ' " In order to maintain the argument, it is essential, therefore, to hold that the word 'laws' in this section includes within the scope of its meaning the decisions of the local tribunals. In the or- dinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not of them- selves laws. They are often re-examined, reversed, and qualified by the courts themselves whenever they are found to be defective or ill-founded or otherwise incor- rect. . . . And we have now not the slightest difficulty in holding that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not ex- tend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will re- ceive, the most deliberate attention and respect of this court; but they cannot furnish positive rules, or con- clusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. E. 882, 887, to be in a great measure, not the law of a single country only, but of the commercial world. 'Non erit alia lex Romae, alia Athenis, alia nunc, alia post hoc, sed et apud omnes gentes, et omni tempore, una eademque lex obtinehit.' "It becomes necessary for us, therefore, upon the pres- ent occasion, to express our own opinion of the true result of the commercial law upon the question now before us. And we have no hesitation in saying, that a pre-existing 14— See post, § 43. The Judicial Power in General 13 debt does constitute a valuable consideration in the sense of the general rule already stated, as applicable to nego- tiable instruments. ' ' The doctrine established by this case has been consist- ently applied by the Supreme Court in later cases, but it has nevertheless been severely criticized, and, it seems, with justice, as an unwarranted and regrettable assump- tion of power by the Supreme Court.^^ As a consequence of this doctrine different rules of law may prevail in the federal and state courts.^" § 8. Other authorities. In the same year (1842) in re- viewing the judgment of the United States Circuit Court for the district of Rhode Island in a suit on a fire insur- ance policy the Supreme Court, by Story, J., said : ^^ "We have not thought it necessary upon this occasion to go into an examination of the cases cited from the New York and Massachusetts reports. . . . The ques- tions under our consideration are questions of general commercial law and depend upon the construction of a contract of insurance, which is by no means local in its character or regulated by any local policy or customs. Whatever respect, therefore, the decisions of state tri- bunals may have on such a subject, and they certainly are entitled to great respect, they cannot conclude the 15 — See Carson, History of Su- In restating the rule that a fed-' preme Court, 319. Mr. Justice eral court is not bound to follow the Mitchell in Forepaugh v. Delaware, decisions of the state courts in mat- etc, E. Co., 128 Pa. St. 228, remarks ters of general commercial law, Mr. that since "the unfortunate mis-step Justice Miller in Bueher v. Cheshire that was made in the opinion in E. Co., 125 U. S. 555,. 583, said: Swift V. Tyson, the courts of the ' ' There is, therefore, a large field of United States have persisted in the jurisprudence left in which the ques- reeognition of a mythical commer- tion of how far the decisions of state cial law, and have professed to de- courts constitute the law of those eide so-called commercial questions states is an embarrassing one." by it, in entire disregard of the law 17 — Carpenter v. Providence Wash- of the state where the question arose. ington Insurance Co., 16 Pet. 495. 16 — ^Pennsylvania E. Co. v. Hughes, 191 V. S. 477. 14 Federal Jukisdiction and Pbocbduee - judgment of this court. On the contrary, we are bound to interpret this instrument according to our own opinion its true intent and objects, aided by all the lights which can be obtained from all external sources whatsoever, and if the result to which we have arrived differs from that of these learned state courts, we may regret it, but it cannot be permitted to alter our judgment. ' ' In a leading common carrier case the plaintiff was in- jured while traveling on a stock train of the defendant railroad from Buffalo to Albany with a shipment of his cattle. The injury was caused by the negligence of the defendant but the plaintiff was riding on a drover's pass containing a provision exempting the carrier from liabil- ity for personal injuries though caused by negligence. The New York courts held such contracts valid, but the Supreme Court refused to follow this ruling.^* In affirm- ing a judgment for the plaintiff, Bradley, J., said : " On a question of general commercial law, the federal courts administering justice in New York have equal and co-ordinate jurisdiction with the courts of that state. And in deciding a case which involves a question of such importance to the whole country, a question on which the courts of New York have expressed such diverse views, and have so recently and with such slight preponderancy of judicial suffrage, come to the conclusion that they have, we should not feel satisfied without being able to place our decision upon grounds satisfactory to our- selves, and resting upon what we consider sound prin- ciples of law." Again, in another case,^® on the question as to whether certain property had been dedicated to public use, the Supreme Court held that it was not bound by a decision of the state court that the property had been so dedicated. In so holding Mr. Justice Miller said : ' ' This question of dedication, on which the whole of that case turned, was 18 — Railroad Company v. Lock- 19 — Yates v. MUwaukee, 10 WalL wood, 17 Wall. 357. 497. The Judicial Power in General 15 one of fact to be determined by ascertaining tbe intention of those who laid out the lots from what they did and from the application of general common law principles to their acts. This does not depend upon state statute or local state law. The law which governs the case is the common law, on which this court has never acknowledged the right of the state courts to control our decisions, ex- cept, perhaps, in a class of cases where the state courts have established, by repeated decisions, a rule of prop- erty in regard to land titles peculiar to the state." The doctrine of the Supreme Court as to its jurisdiction in cases of this character is stated by the court in a recent case as follows: ^° "Since the decision in Swift v. Tyson, 16 Pet. 1, 19, it has been the accepted doctrine of this court that, in respect to the doctrines of commercial law and general jurisprudence the courts of the United States will exercise their own independent judgment, and in re- spect to such doctrines will not be controlled by decisions based upon local statutes or local usage, althought if the question is balanced with doubt, the courts of the United States, for the sake of harmony, will lean to an agree- ment of views with the state courts. ' ' Among the subjects which have been held to fall within the term "general commercial law" or "general juris- prudence" within the doctrine now under consideration are questions of insurance,^ ^ or negotiable instruments,^^ or negligence resulting in personal injuries,^^ or ques- tions affecting the relations of common carriers (not necessarily interstate) and their employees,^* or passen- 20 — Presidio County v. Noel- 239 ; Eailroad Co. v. National Bank, Young Bond Co., 212 U. S. 58. 102 U. S. 14. 21 — Carpenter v. Providence Wash- 23 — City of Chicago v. Bobbins, ington Ins. Co., 16 Pet. 495; Aetna 2 Black 418. Life Ins. Co. v. Moore, 231 U. S. 543. 24— Hough v. Railway Co., 100 U. 22— Swift V. Tyson, 16 Pet. 1; S. 213 ; Bait. & Ohio E. Co. v. Baugh, Watson V. Tarpley, 18 How. 517; 149 U. S. 368. Gates V. National Bank., 100 U. S. 16 Federal Jueisdiction and Pbocbdxjeb gers,^^ or sliippers,^® or questions as to the validity of municipal bonds.^^ §9. Classification of federal common law. On the whole, the tendency seems to be rather to extend than to restrict the range of the independent common-law juris- diction of the federal courts in matters of general inter- est, and thus the body of what may very properly be termed "federal common law" is being steadily enlarged. We conclude that there is a national common law in at least two general classes of cases : (1) Cases involving matters of general interest not placed by the Constitution within the federal legislative power and to which, fey reason of the nature of the sub- ject or the character of the parties, the law of a state could not properly apply. (2) Cases connected with subjects placed by the Con- stitution within federal legislative control exclusively but in respect to which Congress has not legislated. These cases must be governed by a federal common law or be subject to no law at all, which clearly cannot be permitted. A curious situation arises in connection with cases of the first class involving subjects not within the federal legislative power. As to these cases there exists a com- mon law which cannot be altered or affected by legisla- tion. In commenting upon the rule of the federal courts to formulate their own rule as to questions of general jurisprudence or commercial law, a recent able writer says: "The fundamental objection to this rule of the court is that as Congress cannot under the Constitution legislate on any other than a federal subject matter, the 25 — ^Railroad Company v. Lock- 27 — Supervisors v. Schenck, 8 wood, 17 Wall. 357; Lake Shore, etc., Wall. 772; Pana v. Bowler, 107 U. E. Co. V. Prentice, 147 U. S. 101. S. 529; Presidio County v. Noel- ■ 26 — Myriok v. Michigan Cent. E. Young Bond Co., 212 U. S. 58. Co., 107 TJ. S. 102; Liverpool, etc., Steam Co. v. Phoenix Insurance Co., 129 V. S. 327. The Judicial Power in Geneeal 17 enforcement by the federal court, in controversies as to contracts, or commercial obligations, or title to real prop- erty [depending upon general principles of law], of a law different from the state law, as formulated in its acts of legislation and in the judgments of its courts, is noth- ing else than the establishment and enforcement of a body of judge-made law with no statutory basis and without possibility of legislative amendment. ' ' ^^ § 10. Jurisdiction in equity — In general. The equity jurisdiction of the federal courts is granted in the same terms as the jurisdiction at law. The judicial power is extended "to all cases, in law and equity," arising under the Constitution, laws, and treaties of the United States. Also, the jurisdiction depending upon the character of the parties, for example, on the ground of diverse citizen- ship, is entirely general, and, by implication, extends to law and equity alike. Nowhere is a more extensive juris- diction in equity than at law granted in express terms or by natural implication. Jurisdiction in both branches is granted in identical terms. It would be expected, there- fore, that jurisdiction in equity would be co-extensive, but only co-extensive, with jurisdiction at law. From the beginning, however, a different doctrine has been asserted by the Supreme Court. While denying that there was a general common-law jurisdiction of the fed- eral courts, it has always claimed and exercised an inde- pendent jurisdiction in equity. There is, therefore, a federal equity jurisdiction practically distinct from that of the state courts. The equity jurisdiction of the federal courts is, in gen- eral, the same as that possessed by the former High 28 — Patterson, United States and challenged by the Pennsylvania court States under the Constitution, p. 242. in Forepaugh v. Delaware, etc., R. The doctrine that there is a gen- Co., 128 Pa. St. 228, and has been era! commercial law independent of frequently criticized as an anomaly, the law of the states was vigorously Long — 2 18 Fedeeal Jueisdiction and Peocedube Court of Chancery in England, except, of course, that it is restricted to matters of federal cognizance. The juris- diction, however, is not confined to the very rights and remedies recognized and employed at the time of the adoption of the Constitution. The principles and prac- tice of the High Court of Chancery constitute the founda- tion upon which the equitable jurisprudence of the fed- eral courts is based, but upon this basis these courts have built up and developed a distinct system of equitable doc- trines suited to conditions existing in this country at the present time.^® In general the equity jurisdiction and practice of the federal courts is uniform throughout the United States, though to a limited extent variations in practice and pro- cedure occur as a result of the regulation by the several courts of their own practice in matters not covered by acts of Congress or by rules prescribed by the Supreme Court.3" It is provided by statute that "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. " ^^ This provision, in practically identical terms, was included in the Judiciary Act of 1789, and its effect has often been stated by the Supreme Court. It is deemed to be merely declaratory of the familiar rule of equity jurisdiction, and seems to have been intended mainly to emphasize the rule and to impress it upon the attention of the courts.^ ^ The rule has a special sig- nificance in the federal courts in view of the provision of the Constitution that "In suits at common law, where 29 — Eobinson v. Campbell, 3 Wheat. 108; Payne v. Hook, 7 Wall. Wheat. 212; Contain v. Eavenel, 17 425. How. 369; Payne v. Hook, 7 Wall. 31 — Judicial Code, §267. 425; Ellis v. Davis, 109 U. S. 485. 32— Boyce v. Grundy, 3 Pet. 210; See generally, as to federal equity New York Guaranty Co. v. Memphis jurisdiction, 4 Ted. St. Ann. 530- Water Co., 107 U. S. 205; Buzard 534; 9 Ibid. 81-8S. v. Houston, 119 U. 8. 347; Wehrman 30— United States v. Howland, 4 v. Conklin, 155 U. 8. 314. The Judicial Poweb in General 19 the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. ' ' ^* For a court of equity to assume jurisdiction of cases cognizable by the common law courts would, of course, violate this provision since the parties would thus be deprived of the right of trial by jury. § 11. Independence of federal equity jurisdiction. The equity jurisdiction of the United States is, of course, en- tirely beyond the control of the states, and the equity powers granted by the Constitution cannot be limited or restrained by state legislation.^* However, the federal courts may enforce new rights or grant new equitable remedies or relief created by the legislation of the state in which the court sits or where the right to be enforced arose, and thus the equitable jurisdiction of the federal courts may be to some extent enlarged by the legislation of the state.^^ But the federal courts are not bound by the decisions of the state courts upon questions of equity law.^^ In so holding, Mr. Justice Curtis said: ^'^ "Wherever a case in equity may arise and be determined, nnder the judicial power of the United States, the same principles of equity must be applied to it, and it is for the courts of the United States and for this court [the Supreme Court] in the last resort, to decide what those principles are, and to apply such of them, to each particular case, as they may find justly applicable thereto. These principles may make 33 — Const. Amend VII. A conspicuous instance of the in- 34 — Kirby v. Lake Shore, etc., dependence of the federal courts is Eailroad, 120 TJ. S. 130; Mississippi afforded by the well-known case of MiUs V. Cohn, 150 U. S. 202. Nichols v. Eaton, 91 U. S. 716, in 35 — Brine v. Insurance Co., 96 which the Supreme Court, in a case U. S. 627; United States v. Wilson, coming up from Ehode Island, re- 118 U. S. 86; Shefdeld Furnace Co. pudiated the doctrine of the Ehode V. Witherow, 149 U. 8. 574. Island court as to the validity of 36 — ^Eussell v. Southard, 12 How. spendthrift trusts. 139; Neves v. Scott, 13 How. 268. 37— Neves v. Scott, 13 How. 268. 20 Fedeeal Jurisdiction and Peoceduee part of the law of a state, or they may have been modified by its legislation or usages, or they may never have ex- isted in its jurisprudence. Instances of each kind may be found in the several states. But in all the states the equity law, recognized by the Constitution and by acts of Congress, and modified by the latter, is administered by the courts of the United States, and upon appeal by this court. ' ' Such has long been the settled doctrine of this court, repeatedly and steadily affirmed in whatever form the question has been presented. In The United States v. Eowland, 4 Wheat. 115, Chief Justice Marshall said: 'As the courts of the Union have a chancery jurisdiction in every state, and the judiciary act confers the same chancery powers on all and gives the same rule of deci- sion, the jurisdiction in Massachusetts must be the same as in other states.' So Mr. Justice Story, in Boyle v. Zacharie et al., 6 Pet. 658, says : ' The chancery jurisdic- tion given by the Constitution and laws of the United States is the same in all the states of the Union and the rules of decision are the same in all. ' ' ' So also, in a recent (1914) case,^^ in refusing to be bound by state decisions, the Supreme Court, by Van Devanter, J., said: "By the legislation of Congress and repeated decisions of this court it has long been settled that the remedies afforded and modes of proceeding pur- sued in the federal courts, sitting as courts of equity, are not determined by local laws or rules of decision, but by general principles, rules, and usages of equity having uniform operation in those courts wherever sitting." § 12. Criminal jurisdiction. The question as to whether the federal courts have a common law jurisdic- tion of crimes is in fact a part of the general question whether there is a federal common law, and in accordance 38— GufEey v. Smith, 237 IT. S. 101. The Judicial Powee in General 21 with the doctrine that was long in theory held that there is no federal common law, it has for a long time been held, and may be regarded as settled, that there are no com- mon law offenses against the United States, and no one can be prosecuted criminally in the federal courts except for a violation of a statute, or for the crime of treason, which is defined by the Constitution.^® Nevertheless, when Congress adopts or creates a com- mon-law offense, without clearly defining it, the courts may generally adopt the common-law definition.*" There are numerous statutory offenses, such as counterfeiting, offenses under the postal laws, or against the revenue laws, etc.*^ It may be not without interest to note that in several very early cases the federal courts assumed jurisdiction of common law offenses against the United States, and that as late as 1816 the Supreme Court regarded the ques- tion of jurisdiction of such cases as unsettled.*^ § 13. International law. The federal courts as the only national courts of the United States have, of course, juris- diction over causes involving questions of international law, which, in the language of Chief Justice Marshall, "is the law of all tribunals in the society of nations, and is 39 — ^United States v. Eaton, 144 indictments at common law were U. S. 677. sustained in the federal courts, Mr. 40 — ^United States v. Palmer, 3 Wharton says, "Such was the state Wheat. 610; In re Greene, 52 Ted. of the law when Judge Chase, in 104. Worrell's case [2 Dall. 384, decided 41_8ee the new Penal Code of in 1798 by Judges' Chase and Peters 1909. 35 Stat. L. 1080; Supp. (1909> in the circuit court], . . . Fed. St. Ann. 405. without waiting to learn what had 42— United States v. Coolidge, 1 been decided by his predecessors, Wheat. 415. See the earlier case startled his colleague and the bar United States v. Hudson (1812), 7 by announcing that he would enter- Cranch 32. For a statement and tain no indictment at common law. ' ' discussion of the earlier cases, see In this ease, the court being equally 1 Whart. Crim. Law, §§ 156-173. divided, a verdict of guilty was sus- After stating several cases in which tained. 22 Fedeeal Jubisdiction and Pbocedueb supposed to be equally understood by all."*^ And as Mr. Justice Gray in a well-considered case said : ** "In- ternational law is part of our law, and must be ascer- tained and administered by the courts of justice of ap- propriate jurisdiction, as often as questions of rigbt depending upon it are duly presented for their determin- ation. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial de- cision, resort must be had to the customs and usages of civilized nations ; and, as evidence of those, to the works of jurists and commentators, who by years of labor, re- search and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. ' ' 43 — Rose V. Himely, 4 Cranch 241, ing principles of international law, 277. see The Mereide, 9 Craneh 388; The 44 — The Paquette Habana, 175 U. Prize Cases, 2 Black 635; The S. 677. Springbok, 5 Wall. 1; The Peter- For examples of important de- hoff, 5 Wall. 28. cisions of the Supreme Court involv- CHAPTER n GENERAL SCOPE OF JUDICIAL POWER § 14. Definition and nature of the judicial power. § 15. Power of the courts to declare statutes unconstitutional. § 16. Views of the constitutional convention on the subject. § 17. View of Alexander Hamilton. § 18. View of John Marshall. § 19. How the power has been exercised by the Supreme Court. § 14. Definition and nature of the judicial power. The judicial power is clearly differentiated in the Constitu- tion from the executive and legislative powers. As de- fined by Mr. Justice Miller, "Judicial power is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." ^ It is not the function of a court to make laws, but rather to ascertain and apply the law in the settlement of an actual controversy between the parties before it. Incidentally, of course, the court exerts a very active and important influence in the mak- ing of law, for whatever the court in the settlement of a controversy declares to be the law for the case has practically the force of law. The federal court has been very careful to exercise only judicial functions. Thus the Supreme Court justices at the beginning declined as judges to discharge adminis- trative duties.^ Moreover, the court will not take cog- 1 — ^Miller, Constitution, p. 314, 409; United States v. Yale Todd, 13 quoted in Muskrat v. United States, How. 52 note; United States v. Fer- 219 U. S. 340. The opinion in this eira, 13 How. 40. These cases are case contains an extensive discussion sometimes cited as holding acts of of the nature of the judicial power. Congress unconstitutional (see Ap- 2 — Carson, History of Supreme pendix to 131 U. S. p. ccxxxv), but Court, 162; Hayburn's Case, 2 Ball. the validity of acts of Congress was, 23 2i Fedebal Jurisdiction and Pbocedube nizauce of merely moot questions, but will act only in a litigated case properly brought before it.^ And the Su- preme Court has declined to render advisory opinions,* although this is done by several state courts under con- stitutions providing for such opinions. The judicial power extends to the settlement of dis- putes justiciable in their nature, and in particular the courts will not undertake to settle political questions.® Nor can the court control the exercise of official discre- tion.^ Inferior executive officers may be compelled by mandamus to perform ministerial acts.'' It would seem that the President of the United States is not subject to compulsory judicial process of any kind ; ® certainly he can neither be compelled to enforce the laws,® nor re- strained from enforcing them.^" The members of his cabinet, however, may be controlled by the court in mat- ters not involving discretion.^^ in fact, not directly passed upon. See, also, United States v. Evans, 213 U. S. 297. 3— Muskrat v. United States, 219 U. S. 346; Stearns v. Wood, 236 U. S. 75 ; United States v. Hamburg- American Co., 239 U. S. 466. 4 — Carson, History of Supreme Court, 164; Thayer, Legal Essays, 53, citing Marshall, Life of Wash- ington, vol. 5, p. 441. 5 — ^Luther v. Borden, 7 How. 1; State of Georgia v. Stanton, Secre- tary of War, 6 Wall. 50; Taylor v. Beckham, 178 U. S. 548; Neeley v. Henkel, 180 U.S. 109; Pacific States Telephone, etc., Co. v. Oregon, 223 U. S. 118. 6 — Decatur v. Paulding, Secretary of the Navy, 14 Pet. 497; State of Mississippi v. President Johnson, 4 Wall. 475; State of Louisiana v. McAdoo, Secretary of the Treasury, 234 U. S. 627. 7 — ^Marbury v. Madison, Secre- tary of State, 1 Craneh 137; Ken- dall, Postmaster General v. Stockton & Stokes, 12 Pet. 527. 8 — Upon the trial of Aaron Burr for treason Chief Justice Marshall issued a subpoena duces tecum, sum- moning President Jefferson to pro- duce certain documents as evidence for Burr. Jefferson, who was per- sonally hostile to both Marshall and Burr, refused to recognize the juris- diction of the court to summon thq executive, but the documents were nevertheless furnished. Marshall, however, while holding it to be his duty to issue the writ did not claim power to enforce obedience. Magru- der. Life of Marshall, 216-225. 9 — See State of Mississippi v. President Johnson, 4 Wall. 475, 499. 10 — State of Mississippi v. Presi- dent Johnson, 4 Wall. 475. 11 — See cases cited in note 7, supra. Scope op Judicial, Power 25 § 15. Power of the courts to declare statutes unconsti- tutional. One of the most important functions of the federal courts consists in their exercise of a restraining influence on Congress by refusing to enforce statutes which they deem unconstitutional. The power of the courts to declare acts of the legislature unconstitutional exists inevitably under our constitutional system. With a written Constitution defining the limits of legislative power, the courts must choose between the Constitution and a statute where they conflict. For the court to en- force a statute which is in conflict with the Constitution would be to violate the judicial oath to support the Con- stitution, and to accept an act of Congress as superior to the Constitution. When, therefore, a court is asked to enforce a statute it has a right, and is under the duty, to determine whether the statute conflicts with the Consti- tution, and if it finds that such is the case, it must refuse to enforce the statute. These propositions seem almost self-evident, but, as a remarkable instance of intellectual eccentricity, we find that, especially in the last few years, they have been vigorously combatted by a few persons who have exerted an influence on the public mind far out of proportion to the ability and fairness with which they have dealt with the subject. This influence has now waned and the real facts in the case are better understood and the public mind has turned to other matters, but nevertheless the subject is of such importance that it may be well to present it briefly. Among the charges that have been made is that, until the Supreme Court under John Marshall declared a stat- ute unconstitutional such a thing had never been done, or if done at all, had been done under such conditions and with such results as to demonstrate that such action was indefensible. Also it is asserted that in no other country in the world would a court presume to take such a liberty with a statute, the work of a co-ordinate branch 26 Fedbbal Jurisdiction and Peoceduee of government. The charge of novelty and uniqueness is not quite accurate, but is also completely answered by a reminder that written constitutions imposing limitations on legislative power are also novel and unique. Another, and still more inexcusable charge is that the framers of the Constitution and the ratifying conventions never in- tended or contemplated that the courts should declare acts of Congress unconstitutional and void, and even that a proposition to confer such power on the courts was presented to the Constitutional Convention and rejected. This charge is so absolutely in conflict with the notorious facts in the case, that it is difficult to im- derstand how it could be seriously made. The evidence against it is overwhelming as will be seen from some ex- tracts presented in the sections immediately following. ^^ § 16, Views of the Constitutional Convention on this subject. Considerable prominence has been given to the alleged rejection by the Convention of a proposition to submit the question of the constitutionality of legislation to the judges. No such proposition was ever made. It was, indeed, proposed that a certain number of the judges should be associated with the executive in the ex- ercise of a revisionary power over legislation passed by Congress practically identical with the power exercised by the executive alone under the Constitution as adopted. This arrangement would, of course, have given the judges a part, though a negative part, in the making of laws. In the exercise of the revisionary power they would consider 12 — The original evidence on the "Power of Federal Judiciary Over subject will be found largely in Legislation" is also an excellent Elliot's Debates and Farrand's Eec- small work. Either of these books ords of the Federal Convention. The may be read in an evening or two case is well summarized in Prof. and with the evidence so easy to Charles A. Beard's small but very examine it is inexcusable that cer- valuable and readable book, "The tain persons should stiU publicly Supreme Court and the Constitu- misrepresent the facts. tion." J. Hampden Dougherty's Scope of Judicial Power 27 not only the constitutionality but also the expediency of proposed legislation. The difference between this power and the power to disregard an unconstitutional statute in a litigated case is apparent. The proposal for a revision- ary council was rejected. Not only was no proposition to confer upon the judges the power in litigated cases to declare unconstitutional legislation void ever presented to the Convention, but the existence of such a power was expressly recognized in the debates on the proposition to create the revisionary council. ^^ And one of the arguments urged against the power of revision was that it would constitute an addi- tional check which the judges would have over lawmak- ing. In opposing the measure Luther Martin said : ^* "As to the constitutionality of laws, that point will come before the judges in their proper official character. In this character they will have a negative on the laws. Join them with the executive in the revision and they will have a double negative." The views of the members of the Constitutional Con- vention on the subject of the power of the judges to de- clare unconstitutional statutes void have recently been very carefully examined. It appears that of the fifty-five members of the Convention at least one-third took little or no part in its proceedings. As to some of the rest there is no evidence indicating their opinion on the ques- tion. But it is clearly established that a decided majority of the active members of the Convention held that the judges would have the power in the exercise of their judi- cial office to pass upon the constitutionality of legislation and to refuse to enforce those laws found unconstitu- tional. Only three members are known to have been of a contrary opinion, and they were men of no special prominence. ^^ 13— See Beard, Chapter II. 15— Beard, p. 51. 14 — Beard, p. 34; 2 Farrand, p. 76. 28 Federal Jueisdiction and Peocedueb The enactment of the twenty-fifth section of the Judi- ciary Act of 1789, giving the Supreme Court the power to review the judgments of state courts as to the constitu- tionality of state and federal legislation, is an impressive contemporaneous recognition of the power of the courts to pass on the constitutionality of statutes. Several of the members of the Convention participating in the enact- ment of this statute had been members also of the Con- stitutional Convention. § 17. View of Alexander Hamilton. The evidence on this subject is abundant and conclusive and is easily ac- cessible to all. It is not necessary, therefore, to set it out in detail. It may be useful, however, to present the views of two of the most conspicuous men of the times, Alexan- der Hamilton and John Marshall. The views of Hamilton are found in the Federalist, a work which though written for the specific purpose of persuading the people of New York state to ratify the Constitution, has always been regarded as the most authoritative of the early expositions of the Constitu- tion. Hamilton, the principal author of the Federalist, had been a member of the Convention and was one of the ablest men this country has produced. His views on the subject in question are, in part, as follows : ^^ "The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a lim- ited constitution I understand one which contains cer- tain specified exemptions to the legislative authority, such, for instance, as that it shall pass no bills of at- tainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the mani- 16— The Tederalist, No. 78. The entire number is of interest in this connection. Scope of Judicial Power 29 fest tenor of the Constitution void. Without this, all the reservation of particular rights or privileges would amount to nothing. . . . There is no position which de- pends on clearer principles than that every act of a dele- gated authority contrary to the tenor of the commission under which it is exercised is void. No legislative act, therefore, contrary to th'C Constitution can be valid. . . . If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to sub- stitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar function of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must, therefore, belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclu- sion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both ; and that where the, will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Consti- 30 Fedbeal Jubisdiction and Peoceduee tution, the judges ought to be governed by the latter rather than the former. ' ' § 18. View of John Marshall. The power and duty of the courts to pass upon the constitutionality of legisla- tion were expressly recognized in the discussions of some of the state conventions that ratified the Constitution. Thus we find the express declarations of James Wilson before the Pennsylvania convention,^'' of Oliver Ells- worth before the Connecticut convention,^* and of John Marshall before the Virginia convention.^® A peculiar interest attaches to the remarks of Marshall on this sub- ject as he afteinvards as chief justice was the first to de- clare a federal statute void. Objections having been raised in the Virginia convention respecting the danger of the encroachment of the federal power on that of the states, Marshall pointed out that the proposed federal government was one of enumerated and limited powers and said : "Has the government of the United States power to make laws on every subject? . . . Can they make laws affecting the mode of transferring property, or contracts, or claims between citizens of the same state? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated it 17 — ^Mr. Wilson said: "If a law of the general government. If the should be made inconsistent with general legislature should at any those powers vested by this instru- time overleap their limits, the judi- ment in Congress, the judges, as a eial department is a constitutional consequence of their independence, check. If the United States go be- and the particular powers of gov- yond their powers, if they make a ernment being defined, will declare law which the Constitution does not such law to be null and void. !For authorize, it is void ; and the judicial the power of the Constitution pre- power, the national judges, who, to dominates. Anything, therefore, secure their impartiality, are to be that shall be enacted by Congress made independent, will declare it to contrary thereto vfill not have the be void." Beard, p. 72; 2 Elliot's force of law." — ^Beard, p. 71. Debates, 196. 18 — Mr. Ellsworth, afterwards 19 — Beard, p. 69; 3 Elliot's De- Chief Justice, said : ' ' This Consti- ^ bates, 553. tution defines the extent and powers Scope of Judicial Power 31 would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coining under their jurisdic- tion. They would declare it void. ' ' Fifteen years later for the first and only time in his long career as chief justice he exercised the power so clearly announced by him before the Virginia convention. § 19. How the power has been exercised by the Supreme Court. While a good deal of attention has been paid in the past to the question as to whether the courts may rightfully declare a statute unconstitutional, the con- nected but distinct question as to how the court has used that power has been largely overlooked. It appears to have been assumed in some of the discussions that a great many acts of Congress have been nullified in this manner by the Supreme Court. This, however, is not the fact. The first case in which an act of Congress was held un- constitutional was the famous case of Marhury v. Madi- son ^^ decided by Chief Justice Marshall in 1803. Sixty- two years elapsed before the second case, in which, as in the first case, the Supreme Court dismissed a suit for want of jurisdiction.^^ Since then statutes or parts of statutes have been held unconstitutional in twenty-nine cases.^^ 20 — 1 Cranch 137. For account of count of this case, see the opinion in this case, see post, § 62. United States v. Jones, 119 U. 8. The Supreme Court first assumed 477. jurisdiction to pass upon the con- 22 — Ex parte Garland (1866), 4 stitutionality of an act of Congress Wall. 33; Eeiehart v. Felps (1867), in 1795 in the case of Hylton v. 6 Wall. 160; The Alicia (1868), 7 United States, 3 Ball. 171, in which Wall. 571; Hepburn v. Griswold a tax law was unanimously held con- (1869), 8 Wall. 603; United States stitutional. v. Dewitt (1869), 9 Wall. 41; Jus- 21— Gordon v. United States, 2 tices v. Murray (1869), 9 Wall. 274; WaU. 561. Per the opinion in this United States v. Klein (1872), 13 case, said to be the last opinion Wall. 322; United States v. Eeese written by Chief Justice Taney, see (1875), 92 U. S. 214; United States 117 U. S. 697, and for a further ac- v. Tox (1877), 95 U. S. 670; Trade 32 Fedebal Jttbisdiction and Peoceduke In two other cases it was held that certain statutes could not constitutionally be applied as done in the cases before the court,'^* In one case a statute was pronounced uncon- stitutional in a dictum.2* And in one case a resolution of the House of Eepresentatives was held void,^^ and in an- other a joint resolution of both houses.^^* Only one statute was held void prior to the Civil War. Ten cases related to legislation growing out of the war. Ten cases have arisen in the present century. The deci- sion has been unanimous in sixteen cases. The vote stood five to four against the statute in only four cases.^® One of the cases in which the court had held a statute uncon- stitutional was afterwards overruled.^^ One at least of Mark Cases (1879), 100 V. S. 82; United States v. Harris (1883), 106 U. S. 629; Civil Rights Cases (1883), 109 XJ. S. 3; Boyd v. TJnited States (1886), 116 V. S. 616; Baldwin v. Franks (1887), 120 U. S. 678; Cal- lan V. Wilson (1888), 127 U. S. 540; Monongahela Navigation Co. v. United States (1893), 148 U. S. 312; Pollock V. Farmers' Loan & Trust Co. (1895), 157 U. 8. 429, 158 U. 8. 601; Wong Wing v. United States (1896), 163 U. S. 228; Fairbanks v. United States (1901), 181 U. S. 283; James v. Bowman (1903), 190 U. 8. 127; In re Heff (1905), 197 U. 8. 488; Eassmussen v. United States (1905), 197 U. S. 516; Hodges V. United States (1906), 203 V. S. 1; Employers Liability Cases (1908), 207 U. S. 463; Adair v. United States (1908), 208 U. S. 161; Keller v. United States (1909), 213 U. S. 138; Muskrat v. United States (1911), 219 U. 8. 346; Butts V. Merchants, etc.. Transportation Co. (1913), 230 U. 8. 126; United States V. Hvoslef (1915), 237 TJ. S. 1. To these may perhaps be added Connselman v. Hitchcock (1892), 142 U. S. 547, in which the court seemed to consider the statute in question unconstitutional, though possibly it was not necessary to de- cide the point. See also § 14, note 2, ante. 23— Collector v. Day (1870), 11 Wall. 113; United States v. Railroad Co. (1872), 17 Wall. 322. 24— Dred Scott v. Sanford (1857), 19 How. 393. 25 — Kilburu v. Thompson (1880), 103 U. 8. 168. 25a — Jones v. Meehan (1894), 175 U. S. 1. See also. Smith v. Stevens, 10 Wall. 371 26— Ex parte Garland, 4 WaU. 33 ; Pollock V. Farmers' Loan & Trust Co., 158 U. S. 601 (Income Tax Case); Fairbanks v. United States, 181 U. 8. 283; Employers Liability Cases, 207 U. S. 463. 27 — Hepburn v. Griswold, 8 Wall. 603, overruled in the Legal Tender Cases, 12 WaU. "457. Scope of Judicial Powee 33 the statutes held unconstitutional has been re-enacted so as to meet the objection raised by the court,^* and in sev- eral of the cases the object of the statute could have been accomplished by slightly different legislation. One de- cision has led to an amendment to the Constitution.^" On the whole, when one considers the many thousands of acts that have been passed by Congress, this record of the court 's action seems conservative enough. 28 — ^Employers Liability Cases, 29 — PoUoek v. Farmers' Loan & 207 U. S. 463. The re-enacted stat- Trust Co., 158 U. S. 601. This de- ute was upheld in the Second Em- cision led to the adoption of the ployers Liability Cases, 223 U. S. 1. Sixteenth Amendment. tong — 3 CHAPTER III PAETICULAB INSTANCES OF JUEISDICTION § 20. In general. § 21. Cases involving a federal question. § 22. Cases affecting ambassadors, etc. § 23. Cases of admiralty and maritime jurisdiction. § 24. What waters are within admiralty jurisdiction. § 25. Legislation in admiralty and maritime matters. § 26. Exolusiveness of admiralty jurisdiction. § 27. Scope of admiralty jurisdiction. § 28. Controversies to which the United States is a party. § 29. Controversies between two or more states. § 30. Controversies between a state and citizens of another state. § 31. Controversies between citizens of different states. § 32. Who are citizens. § 33. Corporations as citizens. § 34. Corporation chartered by two or more states. § 35. Corporation chartered by the United States. § 36. Change of citizenship. § 37. Controversies involving conflicting land grants. § 38. Controversies between a state, etc., and foreign states, etc. § 20. In general. By the constitutional provision tlie federal judicial power is extended to nine distinct classes of cases, as follows : (1) All cases, in law and equity, arising under the Constitution, laws, and treaties of the United States. (2) All cases affecting ambassadors, other public min- isters and consuls. (3) All cases of admiralty and maritime jurisdiction. (4) Controversies to which the United States shall be a party. (5) Controversies between two or more states. (6) Controversies between a state and citizens of an- other state. (7) Controversies between citizens of different states. 34 Paeticulab Instances of Jurisdiction 35 (8) Controversies between citizens of the same state claiming lands under grants of different states, and (9) Controversies between a state, or the citizens thereof, and foreign states, citizens or subjects. We shall consider each case separately. § 21. Cases involving a federal question. The judicial power extends to, "All cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." In the language of Chief Justice Marshall a case may be said "to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either, " ^ or when ' ' the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, or sus- tained by the opposite construction. " ^ It is such as grows out of the Constitution, etc., and may consist in whole or in part of the right, claim, privilege, protection, or defense of the party asserting it, and this in either civil or criminal suits.^ 1 — Cohens v. Virginia, 6 Wheat. invalidated by some provision of the 264, 379. Constitution of the ITuited States. 2 — Osborn v. Bank of the United Although such allegations show that States, 9 Wheat. 738, 822. very likely, in the course of the liti- 3 — Tennessee v. Davis, 100 IT. S. gation, a question under the Consti- 257. See, also, Shoshone Mining Co. tution would arise, they do not show v. Butter, 177 U. S. 505; Macon that the suit, that is, the plaintiff's Grocery Co. v. Atlantic Coast Line original cause of action, arises un- E. Co., 215 U. 8. 501. der the Constitution." Per Moody, "A suit arises under the Consti- J., in Louisville, etc., E. Co. v. Mot- tution and laws of the United States ley, 211 U. S. 149. See, also. Gold- only when the plaintiff 's statement Washing, etc., Co. v. Keyes, 96 U. S. of his own cause of action shows 199, 203. that it is based upon those laws or Where a corporation derives all that Constitution. It is not enough its rights from an act of Congress, that the plaintiff alleges some antici- a suit brought against it on account pated defense to his cause of ac- of its action, arises under the Con- tion and asserts that the defense is atitution or laws of the United 36 Federal Jueisdiction" and Peoceduee Cases included in this clause are said to involve a "fed- eral question," and the jurisdiction of the federal courts depends solely upon this fact and is wholly independent of the citizenship or character of the parties. Incidental jurisdiction. It may be noted that when, a federal court acquires jurisdiction of a case because a federal question is involved, its jurisdiction extends also to the determination of all questions presented of what- ever character, and irrespective of the disposition that may be made of the federal question.^* §22. Cases aifectin^ ambassadors, etc. Cases affecting ambassadors, other public ministers and consuls are suits brought by or against ambassadors, etc., or in which they are personally interested as parties or privies in the re- sult of the litigation. A prosecution by the government for an assault upon a foreign minister is not a case affect- ing him within this clause.* The jurisdiction of cases under this clause grows out of the character of the parties and the subject matter in dispute is immaterial. §23. Cases of admiralty and maritime jurisdiction. The judicial power is extended "to all cases of admiralty and maritime jurisdiction. ' ' This is a distinct grant of jurisdiction and does not come within the grant of juris- diction over all cases in law and equity arising under the Constitution, laws and treaties of the United States. "A case in admiralty," said Chief Justice Marshall, "does not, in fact, arise under the Constitution or laws of the states. Pacific Railroad Removal See also, In re Baiz, 135 U. S. Cases, 115 U. S. 1; Matter of Dunn, 403; Osboru v. United States Bank, 212 U. S. 374. 9 Wheat. 738; Ohio Tax Cases, 232 3a — Osborn v. United States Bank, U. S. 576; Louisville, etc., R. Co. v. 9 Wheat. 738; Louisville, etc., R. Finn, 235 U. S. 601. Co. v. Finn, 235 U. S. 601 4 — United States v. Ortega, 11 Wheat. 467. Paeticulak Instances op Jurisdiction 37 United States. These cases are as old as navigation it- self; and the law, admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise. ' ' ^ The jurisdiction, therefore, exists under this clause and not under the first clause of this section. § 24. What waters are within admiralty jurisdiction. For a number of years after the adoption of the Con- stitution the admiralty jurisdiction of the United States was deemed to be limited to tide waters, and the Supreme Court refused to recognize such jurisdiction except upon waters affected by the ebb and' flow of the tide." These early decisions simply followed the English authorities, which limited admiralty jurisdiction to tide water, as was reasonable enough in England where there are no navi- gable waters except those in which the tide ebbs and flows. In that country navigable water and tide water are synonymous terms. This doctrine is plainly inap- plicable in this country with its great inland lakes and navigable rivers not subject to tidal flow, and the early cases were overruled in 1851 in the leading case of The Genesee Chief, in which it was held that the admiralty jurisdiction of the United States extends to the navigable lakes and streams of the country without regard to the ebb and flow of the tide.''^ This decision has been fol- lowed by the court ever since as establishing the correct doctrine.* While a fundamental test of admiralty jurisdiction is the navigability of the water in question, it is a further requisite that such navigable water should constitute a 5 — Ameriean Ins. Co. v. Canter, 1 v. Fitzhugh, 12 How. 443. This is Pet. 511. one of the most important instances 6 — The Thomas Jefferson, 10 in which the Supreme Court has over- Wheat. 428, followed in PeyroUx v. ruled its former decisions. Howard, 7 Pet. 324; The Steamboat 8— The Daniel Ball, 10 Wall. .557; Orleans v. Phoebus, 11 Pet. 175; In re Garnett, 141 IT. S. 1; The United States v. Coombs, 12 Pet. 72. Robert W. Parsons, 191 U. S 17. 7 — The Propeller Genesee Chief 38 Fedeeal Jueisdiotion and Peoceduee highway of commerce with other states or with foreign countries. A river or inland lake lying wholly within the limits of a state and having no navigable outlet by which it is so connected with other waters as to form a part of a highway of interstate or foreign commerce, is within the exclusive jurisdiction of the state, and, al- though itself navigable, is not a navigable water of the United States and is not within the federal admiralty jurisdiction.^ The reason for this doctrine is that admiralty juris- diction, at the time of the adoption of the Constitution, was understood to relate to the ocean and the arms thereof with a view of uniformity in respect to inter- national commerce, and hence while admiralty jurisdic- tion extends to all navigable waters so long as they connect with the sea, it cannot extend to landlocked waters, though navigable, lying wholly within the limits of a state.^" But if the stream is navigable and forms a part of an interstate highway, this is all that is re- quired; thus the Erie Canal, though an artificial water- way constructed and owned by the state of New York, is within the admiralty jurisdiction.^^ And the jurisdic- tion attaches even to vessels engaged wholly in intrastate commerce.^^ § 25. Legislation in admiralty and maritime matters. The Constitution nowhere expressly grants to Congress power to legislate in matters of admiralty and maritime jurisdiction. In most cases such power may properly be exercised in connection with the regulation of inter- state and foreign commerce, but, in addition, it is well settled that Congress has an independent power tp legis- 9— The Montello, 11 Wall. 411; 11— The Robert W. Parsons, 191 20 Wall. 430. The point was rais^ed TJ. S. 17. but not decided in Ex parte Boyer, 12 — The Belfast, 7 Wall. 624; The 109 U. S. 629. Eobert W. Parsons, 191 U. S. 17. 10 — See The Propeller Genesee Chief V. Pitzhugh, 12 How. 443. Paeticulab Instances op Jurisdiction 39 late in these matters in aid of the judicial jjower; that is, the extension of the judicial power to cases of admir- alty and maritime jurisdiction operates incidentally as a grant of an auxiliary legislative power to Congress. This seems to be a legitimate application of the "neces- sary and proper" clause of the Constitution. The power of Congress, then, to legislate in admiralty and maritime matters is an entirely distinct power from the power to regulate commerce and has no necessary connection therewith.^^ And it may be exercised in mat- ters wholly intrastate.^* With reference to the power of Congress in this con- nection, Mr. Justice Bradley, in a leading case, said : ^^ "It cannot be supposed that the framers of the Consti- tution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed. The scope of the maritime law and that of commercial regulation are not co-terminous, it is true, but the latter embraces much the largest portion of ground covered by the former. Under it Congress has regulated the registry, enrollment, license and nationality of ships and vessels; the method of re- cording bills of sale and mortgages thereon; the rights and duties of seamen; the limitations of the responsi- bility of ship owners for the negligence and misconduct of their crews ; and many other things of a character truly maritime." The legislative power of Congress in admiralty matters is exclusive, at least where Congress has acted on the subject.^** Any other rule would defeat the manifest 13 — The Propeller Genesee Chief 16 — This is merely one application V. Fitzhugh, 12 How. 443 ; In re Gar- of the general principle that where nett, 141 U. 8. 1. Congress legislates in respect to a 14 — In re Garnett, 141 U. S. 1. ' matter within its jurisdiction such 15 — The Lottawanna, 21 Wall, legislation is exclusive. 558. 40 Federal Jurisdiction and Peocedueb intent of the Constitution that the system of admiralty- law should be co-extensive with the whole country and operate uniformly therein. However, it has been held that until Congress has acted, a state may legislate in regard to the duties and liabilities of its citizens and corporations while on the high seas and not within the territory of any other sovereign.^'^ § 26. Exclusiveness of admiralty jvirisdiction. Section 9 of the Judiciary Act of 1789 provided "That the dis- trict courts . . . shall also have exclusive original cognizance 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. ' ' ^® This provision is substan- tially repeated in Section 256 of the Judicial Code. The admiralty jurisdiction of the federal courts is not only exclusive but cannot be enlarged or restricted by state legislation. No state legislation can bring within the federal jurisdiction a subject not maritime in its nature, but when a right maritime in its nature, and to be enforced by admiralty process, has been given by a statute of a state, the federal courts have jurisdiction, which is exclusive, to enforce that right according to their own rules of procedure.^" But under the saving clause of the above section, the state courts may enforce maritime rights by common-law proceedings. Thus a bill in equity, as distinguished from proceedings in ad- miralty, may be maintained in a state court to enforce a common-law lien for towage.^" §27. Scope of admiralty jurisdiction. In extending the federal judicial power to cases of admiralty and 17— The Hamilton, 207 U. S. 398. . 20— Knapp, Stout & Co. v. Mc- 18—1 Stat. L. 76. Caffrey, 177 U. S. 638. 19— The J. E. Eumbell, 148 U. S. 1; The Glide, 167 V. S. 606. Pabtictjlar Instances of Jurisdiction 41 maritime jurisdiction the Constitution nowhere defines such jurisdiction. The phrase ' ' admiralty and maritime jurisdiction" is assumed to be well understood. In de- veloping the subject in this country the Supreme Court has been governed largely by the English and continental authorities, but has not felt bound to adopt completely or exclusively their conclusions. The federal doctrines of admiralty, while based upon the usages and authorities prevailing both abroad and in this country at the time of the adoption of the Constitution, have been developed and are finally determined by the decisions of the Su- preme Court and the laws of Congress on the subject. On this point Mr. Justice Bradley, in a leading case, said : '^^ "It is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. . . . That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Con- stitution was adopted was most certainly intended and referred- to when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.' But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it. . . . It assumes that the meaning of the phrase 'admiralty and maritime jurisdiction' is well understood. ... To ascertain, therefore, what the maritime law of this country is, it is not enough to read the French, German, Italian and other foreign works on the subject, or the codes which they have framed; but we must have regard to our own legal history. Constitu- tion, legislation, usages and adjudications as well. The decisions of this court illustrative of these sources, and 21 — The Lottawanna, 21 Wall. 558. « 42 Federal Jueisdiction and Pbocedueb giving construction to the laws and Constitution are espe- cially to be considered; and when these fail us, we must resort to the principles by which they have been governed." Cases of admiralty and maritime jurisdiction embrace generally all cases growing out of the transportation of passengers and goods upon the high seas and on the navigable waters of the United States, including particu- larly maritime contracts, torts, etc. The cases are quite fully enumerated by Mr. Justice Clifford as follows : ^^ "Wide differences of opinion have existed as to the extent of the admiralty jurisdiction ; but it may now be said, without fear of contradiction, that it extends to all contracts, claims and services essentially maritime, among which are bottomry bonds, contracts of affreight- ment and contracts for the conveyance of passengers, pilotage on the high seas, wharfage, agreements of con- sortship, surveys of vessels damaged by the perils of the seas, the claims of material men and others for the repair and outfit of ships belonging to foreign nations or to other states, and the wages of mariners ; and also to civil marine torts and injuries, among which are assaults or other personal injuries, collision, spoliation, and damage, illegal seizures or other depredations on property, illegal dispossession or withholding: of possession from the owners of ships, controveries between the part owners as to the employment of ships, municipal seizures of ships, and cases of salvage and marine insurance. ' ' §28. Controversies to which the United States is a party. The United States may be plaintiff in a suit, and by its consent, but not otherwise,^^ may be sued as de- fendant. This clause covers causes to which the United States is a party either as plaintiff or as defendant. As 22— Ex parte Easton, 95 IT. S. 68. 23— United States v. Lee, 106 U. S. 196. Pabticulab Instances of Jurisdiction 43 plaintiff the United States has ordinarily the same civil remedies as individuals have, but it may be sued only in such courts and in such cases and under such conditions and regulations as Congress may prescribe.^* The United States has consented to be sued in certain cases in the Court of Claims, which has jurisdiction of such suits.^^ But the United States has never consented to be sued in the courts of a state.^" The question whether a suit is in legal effect a suit against the United States is not always determined by the fact that it is not named as a party on the record, but rather by the effect of the judg- ment or decree that can be rendered. Thus a suit against an officer of the United States may be in effect a suit against the United States.^'^ And no officer of the United States can waive its immunity from suit.^® Suits between United States and a state. The United States may sue a state without any further consent on the part of the state than the latter 's acceptance of the Con- stitution.^' But the United States cannot be sued by a state without its special consent.*" Suits may be brought by a state against the United States in the Court of Claims, the United States having consented to such suits.* ^ And, in general, a state may maintain a suit against the United States with its consent expressed by act of Congress.*^ 24—29 Am. & Eng. Enc. L. 171- 28— Stanley v. Schwalby, 162 TJ. S. 174. 255. 25— See post, § 75. 29— United States v. Texas, 143 26— Stanley v. SchwaUy, 162 U. U. S. 621. S. 255. 30— Kansas v. United States, 204 27 — Louisiana v. MeAdoo, 234 U. U. S. 331 ; Louisiana v. MeAdoo, 234 S. 627. In this case a suit against U. S. 627. the Secretary of the Treasury was 31 — See South Carolina v. United held to be a suit against the United States, 199 U. S. 437. States and an application for leave 32 — See Minnesota v. Hitchcock, to file suit was denied. See also 185 U. ^. 373. Oregon v. Hitchcock, 202 U. S. 60. 44 Fedeeal Jueisdiction and Pkocedueb § 29. Controversies between two or more states. Many such controversies between states have arisen, usually in connection with disputed boundaries, as for example, the cases of Virginia against "West Virginia,^^ of Louisiana against Mississippi," "Washington against Oregon,^^ and others. A number of suits on other subjects have also been brought, for example, the case of Missouri against Illinois 3® to restrain the pollution of the Mississippi Eiver, or, of South Dakota against North Carolina ^'' on bonds of the defendant state, or of Kansas against Colo- rado ^* to restrain the diversion of the Arkansas Eiver, or of Virginia against "West Virginia ^^ for an appor- tionment of the state debt. To come within the meaning of this clause the con- troversy must be one arising directly between the states and not a controversy in vindication of the grievances of particular individuals. Private persons will not be per- mitted, under this clause, to make use of the name of a state as nominal plaintiff in order to prosecute their claims against another state.*" But where a state is the bona fide holder of a claim against another state, it may sue thereon, notwithstand- ing such claim was received as a gift from a private individual who made the gift in the expectation that the donee would sue on the claim and that such suit might inure to his benefit as the owner of other like claims.*^ 33—11 Wall. 39. 393,929.50, including principal ($4,- 34—202 U. S. 1. 215,622.28) and interest ($8,178,- 35—211 TJ. S. 127. 307.22), with interest at five per 36 — 200 U. S. 496. cent, per annum until paid. Virginia 37—192 TJ. S. 286. v. West Virginia, 238 IT. S. 202. 38—206 V. S. 46. 40— Louisiana v. Texas, 176 TT. S. 39—206 IT. S. 290; 220 U. S. 1; 1. See, also. New Hampshire v. 222 U. S. 17; 234 V. S. 117; 238 Louisiana, 108 U. S. 76. U. S. 203. 41— South Dakota v. North Care- A decree has been rendered in this lina, 192 U. S. 286. case in favor of Virginia for $12,- Paeticulae Instances of Jurisdiction 45 § 30, Controversies between a state and citizens of an- other state. This clause clearly includes suits by a state against a citizen of another state.* ^ And by its terms it seems to include also suits against a state by a citizen of another state, and it was so held in 1793 in the cele- brated case of Chisholm v. Georgia in which the Supreme Court entertained a suit by a citizen of South Carolina against the state of Georgia.*^ This decision led to the adoption of the Eleventh Amendment, which provides that "The judicial power of the United States shall not be con- strued to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. ' ' Since the adoption of this amendment no state can be sued by a citizen of another state without its consent, and the fact that the case involves a federal question does not give the federal courts jurisdiction of such a suit.** The determination of the question "what constitutes a suit against a state 1 ' ' within the meaning of this amend- 42 — See Texas v. White, 7 Wall, "never executed. In February- Term, 700. , 1798, after the adoption of the 43 — 2 Dall. 419. The decision in Eleventh Amendment, the court re- this case that the court had juris- fused to exercise any jurisdiction in diction and that judgment by default any such cases, ' ' past or future. ' ' should be entered against the state Hollingsworth v. Virginia, 3 Dall. unless it should appear and show 378. cause to the contrary by the first The case of Chisholm v. Georgia day of the next term, was pro- was the first important case to come nounced February 18, 1793. Two before the Supreme Court and the days later the Eleventh Amendment only case of importance during the was proposed in Congress and was brief term of John Jay as chief acted upon by Congress in the fol- justice. The decision was reviewed lowing December. The amendment and questioned in Hans v. Louisiana, was declared adopted January 8, 134 U. S. 1. See also. The Eederal- 1798. In February Term, 1794, ist. No. 81. judgment was rendered by default 44 — Hollingsworth v. Virginia, 3 in favor of the plaintiff, but was Dall. 378. 4:6 Federal Jueisdiction and Procbdtjeb ment is frequently a matter of no little difficulty, and numerous cases involving this question have arisen.* ^ It is to be noted that the federal jurisdiction does not extend to controversies between a state and its own citi- zens unless a federal question is involved.*® Nor can a state be sued in a federal court by one of its own citizens even on a federal question unless it has consented to such suit.*^ § 31. Controversies between citizens of different states. This is one of the most important classes of cases within the federal jurisdiction. The object of placing these con- troversies within the jurisdiction of the federal courts is plainly to secure their settlement by an impartial tri- bunal.** And the jurisdiction so conferred upon the national courts, cannot be abridged or impaired by any statute of a state.*" To bring a suit within the federal judicial power under this clause, it is sufficient that the plaintiff and defendant are citizens of different states. If this requirement of diversity of citizenship is satisfied, it is immaterial what is the subject matter of the controversy, or whether the suit involves questions of federal or of state law. The Constitution does not require that any particular amount should be involved in the controversy in order to give the federal courts jurisdiction of the cause. Con- gress, however, has never provided for the complete exercise of judicial power over this class of causes. By the Judiciary Act of 1789 jurisdiction was conferred only where the amount in controversy exceeded $500, exclusive of interest and costs. By the act of 1887 this amount 45— See 9 Fed. St. Ann. 362-374. 48— Burgess v. Seligman, 107- U, See also, the title "States" in Cyclo- S. 20, 34; Barrow Steamship Co. v. pedia of Law and Procedure. Kane, 170 U. S. 100. 46— Pennsylvania v. Quicksilver 49 — Barrow Steamship Co. v. Co., 10 Wall. 553. Kane, 170 U. S. 100. 47 — Hans v. Louisiana, 134 U. S.l. Paeticulak Instances op Jurisdiction 47 was raised to $2,000, and by the Judicial Code of 1911 the amount is fixed at $3,000. At present, therefore, suits between citizens of different states involving less than $3,000 can be brought only in the state courts unless some other ground of federal jurisdiction than diverse citizen- ship exists. To satisfy the requirement of diversity where there are several plaintiffs or defendants, all the plaintiffs must be of different citizenship from all the defendants ; if one of the plaintiffs is from the same state as one of the defend- ants, the federal courts have no jurisdiction.^" But the fact that a mere formal party having no con- trol of or interest in the suit is a citizen of the same state as the adverse party, does not oust the federal court of jurisdiction if the real parties in interest are citizens of different states.®^ It should be noted that, generally, an assignee of a chose in action cannot sue thereon in a federal court unless his assignor could have done so.^^ § 32. Who are citizens. It is important to determine who are citizens of a state within the meaning of this and kindred provisions. In 1832 it was held by the Supreme Court that a citizen of the United States (in this case a naturalized citizen) residing in any state of the union, is a citizen of that state, within the meaning of this section. ^^ But in the famous Bred Scott Case it was held that a free negro whose ancestors had been brought to this coun- try as slaves was not a citizen of a state in which he lived and could not become such.^* This led to the adoption 50—4 Fed. St. Ann. 294; Straw- 151 U. S. 56; 4 Fed. St. Ann. 293. bridge V. Curtiss, 3 Cranch 267; 52 — Judicial Code, § 24, par. 1. Case of Sewing Machine Companies, 53 — Gassies v. Ballon, 6 Pet. 761. 18 Wall. 553 (removal cases) ; Peper See, also, Shelton v. Tiffin, 6 How. V. Fordyce, 119 U. S. 469; Hooe v. 163. Jamieson, 166 TJ. S. 395. 54—19 How. 393. 51 — ^Wilson V. Oswego Township, 48 Fedeeal Jueisdiction and Pboceduee of the provision of the Fourteenth Amendment that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. ' ' A state is not a citizen within the meaning of the Con- stitution.'^'' A territory is not a state, and its citizens are not citizens of a state, within the meaning of this sec- tion.5® And the same rule applies to the District of Columbia.^''^ § 33. Corporations as citizens. A corporation is not a citizen of a state within the meaning of the provision of the Constitution that, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." ^^ But for judicial purposes a corporation is regarded as a citizen of the state which created it, regardless of the citizenship of its stockholders or members, the location of its principal office, or the field of its operations.^^ This is a very important principle for it operates to secure to the federal courts jurisdiction of many cases in which corporations are interested which could not otherwise have been brought in the federal courts. Thus citizens of a state may organize and operate a corporation in every way a local concern, and, by the simple device of securing a charter from some other state, oust the state courts of jurisdiction over many of the controversies in which the corporation may become involved and which 55 — stone v. South Carolina, 117 S. 181; Blake v. McClung, 172 U. S. U. S. 430; Minnesota v. Northern 239. Securities Co., 194 XJ. S. 48. 59 — Shaw v. Quincy Mining Co., 56— New Orleans v. Winter, 1 145 TJ. S. 444. Wheat. 91. A municipal corporation created 57 — Hooe V. Jamieson, 166 XT. S. by a state within its own limits is, 395; 4 Fed. St. Ann. 290. for the purposes of jurisdiction, a 58 — Const. Art. IV, Sec. 2 ; Paul citizen of that state. Cowles v. Mer- V. Virginia, 8 Wall. 168; Pembina cer County, 7 Wall. 118. Mining Co. v. Pennsylvania, 125 IT. Pabticulae Instances of Jueisdiction 49 would not be cognizable by the federal courts but for the fictitious foreign citizenship of the corporation. And it may be that the main object in securing a foreign charter was to secure immunity from suit in the local courts. This doctrine of corporate citizenship was developed gradually. The jurisdiction of the federal courts of suits between a citizen of one state and a corporation char- tered by another state, on the ground of diverse citizen- ship, was first maintained upon the theory that all the persons composing the corporation were individually of different citizenship from the other party to the suit. The members of the corporation were presumed to be citizens of the state by which the corporation was char- tered, but this presumption could be rebutted, and upon proof that one or more of the members of the corporation were citizens of the same state as the other party to the suit, the federal jurisdiction was ousted. This was the doctrine laid down by Chief Justice Marshall in 1809.**" In so holding he said : ' ' That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently cannot sue in the courts of the United States, unless the rights of the members, in this respect, can be exercised in the corporate name. If the corporation be considered as a mere faculty, and not as a company of individuals, who, in transacting their joint concerns, may use a legal name, they must be excluded from the courts of the union. . . . The court feels itself authorized . . . to look to the character of the individuals who compose the corporation. . . . Being authorized to sue in their corporate name, they could make the averment [of citizenship], and it must apply to the plaintiffs as indi- viduals, because it could not be true as applied to the corporation." This decision was followed by the Su- preme Court as late as 1840.®^ 60 — Bank of the United States v. 61 — Commercial & Eailroad Bank Deveaux, 5 Cranch 61. v. Slocomb, 14 Pet. 60. Long — i 50 Federal Jueisdiction and Peocedube These cases were overruled in 1844 in a case in which it was declared that ' ' a corporation created by and doing business in a particular state is to be deemed to all in- tents and purposes as a person, although an artificial person, an inhabitant of the same state, for the purposfe of its incorporation, capable of being treated as a citizen of that state, as much as a natural person. ""^ The, present doctrine is well stated by Mr. Justice Gray as follows : ^* "It has become the settled law of this court that, for the purposes of suing and being sued in the courts of the United States, a corporation created by and doing busi- ness in a state is, although an artificial person, to be considered as a citizen of the state, as much as a natural person ; and there is a conclusive presumption of law that the persons composing the corporation are citizens of the same state with the corporation." § 34.- state court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cvm causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof ; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ. See B. S. § 642, 4 Fed. St. Ann. 260. § 33. When any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law ; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law ; or when any suit is commenced against any person for on account, of anything done by him while an officer of either House of Congress in the discharge of his official duty, in execut- ing any order of such House, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the district court next to be holden in the district where the same is pending, upon the petition of such defendant to said district court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit, and, together with a certificate 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 DiSTKicT Courts — Removal op Cause 195 petitioner, he has examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the district court, and shall proceed as a cause originally commenced in that court ; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had pro- ceeded 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 proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a dupli- cate 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 dis- trict court, and any further proceedings, trial, or judg- ment 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 mar- shal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof ; and if, upon the removal of such suit or prosecution, it is made to appear to the district court that no copy of the record and proceedings therein in the state court can be 196 The Judicial Code obtained, the district court may allow and require tlie plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon pro- ceed 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. See K. S. § 643, 4 Fed. St. Ann. 260. § 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 non- resident of that state wherein jurisdiction is obtained by the state court, by personal service of process, such action may be removed into the district court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a state court by the provisions of the preceding section. See E. S. § 644, 4 Fed. St. Ann. 264. § 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 demand, and the pay- ment or tender of the legal fees, refuses or neglects to deliver to him certified copies of such records and pro- ceedings, 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 afore- said, direct such record to be supplied by affidavit or otherwise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial, and judgment may be had in the said court of the United States, and all such processes awarded, as if certified DiSTEICT COUETS REMOVAL OF CaUSE 197 copies of such records and proceedings had been regularly before the said court. E. S. § 645, 4 Fed. St. Ann. 264. § 36. When any suit shall be removed from a state court to a district court of the United States, any attach- ment 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 secur- ity given by either party in such suit prior to its removal shall remain valid and effectual notwithstanding said removal; and all injunctions, orders, and other proceed- ings 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 E. S. § 646, 4 Fed. St. Ann. 264. § 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 prop- erly within the jurisdiction of sai,d district court, or that the parties to said suit have been improperly or collu- sively made or joined, either as plaintiffs, or defendants, for the purpose of creating a case cognizable or remov- able under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just. See Act of March 3, 1875, c. 137, § 5, as amended by Act of Aug. 13, 1888, 18 Stat. L. 472, 4 Fed. St. Ann. 371. 198 The Judicial Code § 38. The district court of the United States shall, in all suits removed under the provisions of this chapter, proceed therein as if the suit had been originally com- menced in said district court, and the same proceedings had been taken in such suit in said district court as shall have been had therein in said state court prior to its removal. See Act of March 3, 1875, c. 137, § 6, 18 Stat. L. 472, 4 Fed. St. Ann. 378. § 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 rec- ord therein, after tender of legal fees for such copy, said clerk so offending shall, on conviction thereof in the dis- trict 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 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 provi- sions of this chapter for the removal of the same, and enforce said writ according to law. If it shall be impos- sible 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 District Courts — Removal of Cause 199 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 judg- ment. The said district court may make an order requir- ing the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid. See Act of March 3, 1875, c. 137, § 7, 18 Stat. L. 472, 4 Fed. St. Ann. 378. CHAPTER IV DISTRICT COURTS— MISCELLANEOUS PROVISIONS § 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 forfeitures, where brought. § 44. Suits for internal-revenue taxes, where brought. § 45. Seizures, where cognizable. § 46. Capture of insurrectionary property, where cognizable. § 47. Certain seizures cognizable in any district into which the property is taken. § 48. Jurisdiction in patent cases. § 49. Proceedings to enjoin comptroller of the currency. § 50. "When a part of several defendants can not be served. § 51. Civil suits — Where to be brought. § 52. Suits in states containing more than one district. § 53. Districts containing more than one division — Where suit to be brought — Transfer of criminal cases. § 54. Suits of a local nature, where to be brought. § 55. When property lies in different districts in same state. § 56. When property lies in different states in same circuit — Jurisdiction of receiver. § 57. Absent defendants in suits to enforce liens, remove clouds on titles, etc. § 58. Civil causes may be transferred to another division of district by agreement. § 59. Upon creation of new district or division, where prosecution to be instituted or action brought. § 60. Creation of new district, or transfer of territory not to divest lien — How lien to be enforced. § 61. Commissioners to administer oaths to appraisers. § 62. Transfer of records to district court when a territory becomes a state. § 63. District judge shall demand and compel delivery of records of terri- torial court. § 64. Jurisdiction of district courts in cases transferred from territorial courts. § 65. Receivers to manage property according to state laws. § 66. Suits against receiver. § 67. Certain persons not to be appointed or employed as officers of courts. § 68. Certain persons not to be masters or receivers. 200 DiSTEICT COUETS MISCELLANEOUS PbOVISIONS 201 § 40. The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience. B. S. § 729; 2 Fed. St. Ann. 354. § 41. The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particu- lar state or district, shall be in the district where the offender is found, or into which he is first brought. E. S. §730; 2 Fed. St. Ann. 345. § 42. When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein. E. S. § 731; 2 Fed. St. Ann. 347. § 43. All pecuniary penalties and forfeitures may be sued for and recovered either in the district where they accrue or in the district where the offender is found. E. S. § 732; 3 Fed. St. Ann. 94. § 44. Taxes accruing under any law providing internal revenue may be sued for and recovered either in the dis- trict where the liability for such tax occurs or in the district where the delinquent resides. E. S. § 733; 3 Fed. St. Ann. 595. § 45. Proceedings on seizures made on the high seas, for forfeiture under any law of the United States, may be prosecuted in any district into which the property so seized is brought and proceedings instituted. Proceed- ings 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 E. S. § 734; 3 Fed. St. Ann. 95. 202 The Judicial Code § 46. Proceedings for tlie condemnation of any prop- erty captured, whether on the high seas or elsewhere out of the limits of any judicial district, or within any dis- trict, on account of its being purchased or acquired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting, or promoting any insurrection against the Government of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted. E. S. § 735; 6 Fed. St. Ann. 70. § 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 parts of the United States, or of any vessel or vehicle conveying such property, or conveying persons to or from such state or section, or of any vessel belonging, in whole or in part, to any inhabitant of such state or section, may be prosecuted in any district into which the property so seized may be taken and proceedings insti- tuted; and the district court thereof shall have as full jurisdiction over such proceedings as if the seizure was made in that district. E. S. § 564; 4 Fed. St. Ann. 236. § 48. In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corpora- tion, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an DiSTEict Courts — Miscellaneous Provisions 203 inhabitant, but in whicli sueli defendant has a regular and established place of business, service of process, sum- mons, or subpoena 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. Act of March 3, 1897, e. 395, 29 Stat. L. 695; 5 Fed. St. Ann. 566. § 49. All proceedings by any national banking associa- tion to enjoin the comptroller of the currency, under the provisions of any law relating to national banking asso- ciations, shall be had in the district which such associa- tion is located. E. S. § 736; 5 Fed. St. Ann. 197. § 50. When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain 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 inhab- itants of nor found vsdthin the district, as aforesaid, shall not constitute matter of abatement or objection to the suit. E. S. § 737; 4 Fed. St. Ann. 552. § 51. Except as provided in the five succeeding sec- tions, 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 sections, no civil suit shall be brought in any district court 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 204 The Judicial Code be brought only in the district of the residence of either the plaintiff or the defendant. See Act of March 3, 1875, c. 137, § 1, 18 Stat. L. 470; 4 Fed. St. Ann. 265. § 52. When a state contains more than one district, every suit not of a local nature, in the district court thereof, against a single defendant, inhabitant of such state, must be brought in the district where he resides ; but if there are two or more defendants, residing in different districts of the state, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other dis- trict in which any defendant resides. The clerk issuing the duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district ; and such original and duplicate writs, when executed and returned into the office from which they issue, shall con- stitute and be proceeded on as one suit; and upon any judgment or decree rendered therein, execution may be issued, directed to the marshal of any district in the same state, E. S. § 740; 4 Fed. St. Ann. 554. § 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 divi- sion. All mesne and final process subject to the provi- sions of this section may be served and executed in any or all of the divisions of the district, or if the state eon- tains 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 committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for District Coubts — Miscellaneous Pkovisions 205 prosecution to another division of the district. When a transfer is ordered by the court or judge, all the papers in the case, or certified copies thereof, shall be transmitted by the clerk, under the seal of the court, to the division to which the cause is so ordered transferred; and there- upon the cause shall be proceeded with in said division in the same manner as if the offense had been committed therein. In all cases of the removal of suits from the courts of a state to the district court of the United States such removal shall be to the United States District Court in the division in which the county is situated from which the removal is made; and the time within which the re- moval 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 Dis- trict Court in such division. § 54. In suits of a local nature, where the defendant resides in a different district, in the same state, from that in which the suit is brotight, the plaintiff may have orig- inal and final process against him, directed to the marshal of the district in which he resides. E. S. § 741; 4 Fed. St. Ann. 555. § 55. Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same state, may be brought in the district court of either district ; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject-matter were wholly within the district for which such court is constituted. R. S. § 742; 4 Fed. St. Ann. 555. § 56. Where in any suit in which a receiver shall be ap- pointed the land or other property of a fixed character, the subject of the suit, lies within different states in the 206 The Judicial Code same judicial circuit, tlie receiver so appointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and control over all the property, the subject of the suit, lying or being within such circuit; subject, however, to the disapproval of such order, within thirty days thereafter, by the circuit court of appeals for such circuit, or by a circuit judge thereof, after reasonable notice to adverse parties and an oppor- tunity to be heard upon the motion for such disapproval ; and subject, also, to the filing and entering in the district court for each district of the circuit in which any portion of the property may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The disapproval of such appointment within such thirty days, or the failure to file such certified copy of the bill and order of appointment within ten days, as herein 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, proc- ess may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district; but orders affecting such property shall be entered of record in each district in which the property affected may lie or be. § 57. When in any suit commenced in any district court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear. DiSTBICT COUETS MISCELLANEOUS PbOVISIONS 207 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 prac- ticable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. In case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the 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 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 proceedings shall be taken shall be within another dis- trict, 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 noti- fied as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just ; and there- upon said suit shall be proceeded with to final judgment according to law. ' See Act of March 3, 1875, c. 137, § 8, 18 Stat. L. 472; 4 Fed. St. Ann. 380. 208 The Judicial Code § 58. Any civil cause, at law or in equity, may, on writ- ten stipulation of the parties or of their attorneys of record signed and filed with the papers in the case, in vacation or in term, and on the written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term, be transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause shall be ordered to be transferred 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, interlocutory decrees, or other entries in the cause; and he shall certify, under the seal of the court, that the papers sent are all which are on file in said court belonging to the cause; for the performance of which duties said clerk so transmitting and certifying shall receive the same fees as are now allowed by law for similar services, to be taxed in the bill of costs, and regu- larly collected with the other costs in the cause ; and such transcript, when so certified and received, shall hence- forth 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 disposi- tion as other cases of a like nature. § 59. Whenever any new district or division has been or shall be established, or any county or territory has been or shall be transferred from one district or division to another district or division, prosecutions for crimes and offenses committed within such district, division, county or territory prior to such transfer, shall be com- menced and proceeded with the same as if such new District Couets — Miscellaneous Pbovisions 209 district or division had not been created, or sucli county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the cause to be removed to the new district or division for trial. Civil actions pending at the time of the creation of any such district or division, or the transfer of any such county or territory, and arising within the district or division so created or the county or territory so trans- ferred, shall be tried in the district or division as it existed at the time of the institution of the action, or in the district or division so created, or to which the county or territory is or shall be so transferred, as may be agreed upon by the parties, or as the court shall direct. The transfer of such prosecutions and actions shall be made in the manner provided in the section last pre- cediug. § 60. The creation of a new district or division, or the transfer of any county or territory from one district or division to another district or division, shall not affect or divest any lien theretofore acquired in the circuit or dis- trict court by virtue of a decree, judgment, execution, attachment, seizure or otherwise, upon property situated or being within the district or division so created, or the county or territory so transferred. To enforce any such lien, the clerk of the court in which the same is acquired, upon the request and at the cost of the party desiring the same, shall make a true and certified copy of the record thereof, which, when so made and certified, and filed in the proper court of the district or division in which such property is situated or shall be, after such transfer, shall constitute the record of such lien in such court, and shall be evidence in all courts and places equally with the original thereof; and thereafter like proceedings shall be had thereon, and with the same effect, as though the cause or proceeding had been originally instituted in such court. The provisions of this section shall apply not only Long — 14 210 The Judicial Code in all cases where a district or division is created, or a county or any territory is transferred by this or any future act, but also in all cases where a district or division has been created, or a county or any territory has been transferred by any law heretofore enacted. § 61. Any district judge may appoint commissioners, before whom appraisers of vessels or goods and mer- chandise seized for breaches of any law of the United States, may be sworn ; and such oaths, so taken, shall be as effectual as if taken before the judge in open court. E. S. § 570; 4 Fed. St. Ann. 79. § 62. When any territory is admitted as a state, and a district court is established therein, all the records of the proceedings in the several cases pending in the highest court of said territory at the time of such admission, and all records of the proceedings in the several cases in which judgments or decrees had been rendered in said territorial court before that time, and from which writs of error could have been sued out or appeals could have been taken, or from which writs of error had been sued out or appeals had been taken and prosecuted to the supreme court or to the circuit court of appeals, shall be transferred to and deposited in the district court for the said state. See K. S. §567; 4 Fed. St. Ann. 237. § 63. It shall be the duty of the district judge, in the case provided in the preceding section, to demand of the clerk, or other person having possession or custody of the records therein mentioned, the delivery thereof, to be deposited in said district court ; and in case of the refusal of such clerk or person to comply with such demand, the said district judge shall compel the delivery of such rec- ords by attachment or otherwise, according to law. E. S. §568; 4 Fed. St. Ann. 238. District Courts — Miscellaneous Provisions 211 § 64. When any territory is admitted as a state, and a district court is established therein, the said district court shall take cognizance of all cases which were pend- ing and undetermined in the trial courts of such territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the supreme court or to the circuit court of appeals, and shall proceed to hear and determine the same. See E. S. § 569; 4 Fed. St. Ann. 238. § 65. Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the state in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall willfully violate any provision of this section shall be fined not more than three thousand dollars, or imprisoned not more than one year, or both. See Act of Aug. 13, 1888, c. 866, § 2, 25 Stat. L. 436; 4 Fed. St. Ann. 386. § 66. Every receiver or manager of any property ap- pointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or man- ager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice. See Act of Aug. 13, 1888, c. 866, § 3, 25 Stat. L. 436, 4 Fed. St. Ann. 387. § 67. No person shall be appointed to or employed in any office or duty in any court who is related by affinity 212 The Judicial Code or consanguinity within the degree of first cousin to the judge of such court. See Act of Aug. 13, 1888, c. 866, § 7, 25 Stat. L. 437, 4 Fed. St. Ann. 69. § 68. No clerk of a district court of the United States or his deputy shall be appointed a receiver or master in any case, except where the judge of said court shall deter- mine that special reasons exist therefor, to be assigned in the order of appointment. See Act of March 3, 1879, c. 183, 20 Stat. L. 415, 4 Fed. St. Ann. 81. CHAPTEE V * DISTRICT COURTS— DISTRICTS, AND PROVISIONS APPLICABLE TO PARTICULAR STATES § 69. Judicial districts. § 84. Louisiana. §100. Ohio. § 70. Alabama. § 85. Maine. §101. Oklahoma. § 00. Arizona. § 86. Maryland. §102. Oregon. § 71. Arkansas. § 87. Massachusetts. §103. Pennsylvania. § 72. California. § 88. Michigan. §104. Rhode Island. § 73. Colorado. § 89. Minnesota. §105. South Carolina. § 74. Connecticut. § 90. Mississippi. §106. South Dakota. § 75. Delaware. § 91. Missouri. §107. Tennessee. § 76. Florida. § 92. Montana. §108. Texas. § 77. Georgia. § 93. Nebraska. §109. Utah. § 78. Idaho. § 94. Nevada. §110. Vermont. § 79. niinois. § 95. New Hampshire. §11L Virginia. § 80. Indiana. § 96. New Jersey. §112. Washington. § 81. Iowa. § 97. New York. §113. West Virginia. § 82. Kansas. § 98. North Carolina. §114. Wisconsin. § 83. Kentucky. § 99. North Dakota. §115. Wyoming. § 69. The United States are divided into judicial dis- tricts as follows : Tor the former statutes defining the judicial districts, see R. S. §§ 530- 550 ; 4 Fed. St. Ann. 16, et seq. § 70. The state of Alabama is divided into three judi- cial districts, to be known as the northern, middle and southern districts of Alabama. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Cull- man, Jackson, Lawrence, Limestone, Madison and Mor- gan, which shall constitute the northeastern division of said district ; also the territory embraced on the date last mentioned in the counties of Colbert, Franklin and *The provisions of this chapter are constantly being amended, especially with respect to the times and places of holding court. 213 214 The Judicial Code Lauderdale, which shall constitute the northwestern divi- sion of said district; also the territory embraced on the date last mentioned in the counties of Cherokee, De Kalb, Etowah, Marshall and Saint Clair, which shall constitute the middle division of said district; also the territory eonbraced on the date last mentioned in the counties of Blount, Jefferson and Shelby, which shall constitute the southern division of said district; also the territory em- braced on the date last mentioned in the counties of Walker, Winston, Marion, Fayette and Lamar, which shall constitute the Jasper division of said district ; also the territory embraced on the date last mentioned in the counties of Calhoun, Clay, Cleburne and Talladega, which shall constitute the eastern division of said district ; also the territory embraced on the date last mentioned in the counties of Bibb, Greene, Pickens, Sumter and Tusca- loosa, which shall constitute the western division of said district. Terms of the district court for the northeastern division shall be held at Huntsville on the first Tuesday in April and the second Tuesday in October; for the northwestern division, at Florence on the second Tuesday in February and the third Tuesday in October: Pro- vided, That suitable rooms and accommodations for hold- ing court at Florence shall be furnished free of expense to the Government; for the middle division, at Gadsden on the first Tuesdays in February and August : Provided, That suitable rooms and accommodations for the holding court at Gadsden shall be furnished free of expense to the Government; for the southern division, at Birming- ham on the first Mondays in March and September, which courts shall remain in session for the transaction of busi- ness at least six months in each calendar year ; for the Jas- per division, at Jasper on the second Tuesdays in January and June: Provided, That suitable rooms and accom- modations for holding court at Jasper shall be furnished free of expense to the Government ; for the "eastern divi- sion, at Anniston on the first Mondays in May and Novem- Judicial Districts 215 ber; and for the western division, at Tuscaloosa on the first Tuesdays in January and June. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Anniston, at Florence, at Jasper and at Gadsden, which shall be kept open at all times for the transaction of the business of said court. The district judge for the northern district shall reside at Birmingham. The middle district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Autauga, Barbour, Bul- lock, Butler, Chilton, Coosa, Covington, Crenshaw, El- more, Lowndes, Montgomery and Pike, which shall constitute the northern division of said district; also the territory embraced ,on the date last mentioned in the counties of Coffee, Dale, Geneva, Henry and Houston, which shall constitute the southern division of said district; also the territory embraced on the date last mentioned in the counties of Chambers, Lee, Macon, Randolph, Eussell and Tallapoosa, which shall constitute the eastern division of said middle district. Terms of the district court for the northern division shall be held at Montgomery on the first Tuesdays in May and December ; and for the southern division, at Dothan on the first Mondays in June and December; and for the eastern division, at Opelika on the first Mondays in April and November: Provided, That suitable rooms and accom- modations for holding court at Opelika shall be furnished free of expense to the Government. The clerk of the court for the middle district shall maintain an office, in charge of himself or a deputy, at Dothan, and shall main- tain an office in charge of himself or a deputy at Opelika, which said offices at Dothan and Opelika shall be kept open at all times for the transaction of the business of said divisions. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Baldwin, Choctaw, Clarke, Conecuh, Escambia, Mobile, Monroe and Wash- 216 The Judicial Code ington, whicli shall constitute the southern division of said district ; also the territory embraced on the date last mentioned in the counties of Dallas, Hale, Marengo, Perry, and "Wilcox, which shall constitute the northern division of said district. Terms of the district court for the southern division shall be held at Mobile on the fourth Mondays in May and November; and for the northern division, at Selma on the first Mondays in May and November. As amended by Act of Teb. 28, 1913 (38 Stat. L. 698, Supp. (1914) Fed. St. Ann-. 223). § 00. [The state of Arizona shall constitute one judicial district, to be known as the district of Arizona. Terms of the district court shall be held iii Tucson on the first Mondays in May and November; at Phoenix on the first Mondays in April and October; at Prescott on the first Mondays in March and September ; and at Globe on the first Mondays in June and December. Causes, civil and criminal, may be transferred by the court or judge thereof from any of the aforesaid places where court shall be held in said district to any of the places hereinbefore mentioned in said district when the convenience of the parties or the ends of justice would be promoted by the transfer; and any interlocutory order may be made by the court or judge thereof in any of the hereinbefore mentioned places.] Act of Oct. 3, 1913 (38 Stat. L. 203, Supp. (1914) Fed. St. Ann. 229). § 71. The state of Arkansas is divided into two dis- tricts, to be known as the eastern and western districts of Arkansas. The western district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Sevier, Howard, Little Eiver, Pike, Hempstead, Miller, Lafayette, Columbia, Nevada, Ouachita, Union and Calhoun, which shall constitute the Texarkana division of said district; also the territory enibraced on the date last mentioned in the counties of Judicial Distbiots 217 Polk, Scott, Yell, Logan, Sebastian, Franklin, Crawford, Washington, Benton and Johnson, which shall constitute the Fort Smith division of said district ; also the territory embraced on the date last mentioned in the counties of Baxter, Boone, Carroll, Madison, Marion, Newton and Searcy, which shall constitute the Harrison division of said district. Terms of the district court for the Texar- kana division shall be held at Texarkana on the second Mondays in May and November; for the Fort Smith division, at Fort Smith on the second Mondays in Janu- ary and June ; and for the Harrison division, at Harrison on the second Mondays in April and October. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Lee, Phillips, Saint Francis, Cross, Monroe and Woodruff, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Independence, Cleburne, Stone, Izard, Sharp and Jackson, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Crittenden, Clay, Craighead, Greene, Mississippi, Poin- sett, Fulton, Eandolph and Lawrence, which shall consti- tute the Jonesboro division of said district ; and also the territory embraced on the date last mentioned in the counties of Arkansas, Ashley, Bradley, Chicot, Clark, Cleveland, Conway, Dallas, Desha, Drew, Faulkner, Gar- land, Grant, Hot Spring, Jefferson, Lincoln, Lonoke, Montgomery, Perry, Pope, Prairie, Pulaski, Saline, Van Buren and White, which shall constitute the western division of said district. Terms of the district court for the eastern division shall be held at Helena on the second Monday in March and the first Monday in October; for the northern division, at Batesville on the fourth Monday in May and the second Monday in December; for the Jonesboro division, at Jonesboro on the second Mondays in May and November; and for the western division, at 218 The Judicial Code Little Eock on the first Monday in April and the third Monday in October. The clerk of the court for the east- ern district shall maintain an office in charge of himself or a deputy at Little Rock, at Helena, at Jonesboro, and at Batesville, which shall be kept open at all times for the transaction of the business of the court. And the clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Fort Smith, at Harrison, and at Texarkana, which shall be kept open at all times for the transaction of the business of the court. By Act of Sept. 9, 1914 (38 Stat. L. 713, Supp. (1916) Fed. St. Ann. 133), the terms of the district court for the Jonesboro division of the eastern district of Arkansas were fixed for the first Monday in May and the fourth Monday in November. By Act of March 4, 1915 (38 Stat. L. 1193, Supp. (1916) Fed. St. Ann. 142), Desha and Chicot counties were transferred to the eastern division of the eastern district, and Yell county was made a part of the western division of the eastern district. § 72. The state of California is divided into two dis- tricts, to be known as the northern and southern districts of California. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced and Tulare, which shall constitute the northern division of said district ; also the territory embraced on the date last mentioned in the ' counties of Imperial, Los Angeles, Orange, Eiverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara and Ventura, which shall constitute the southern division of said district. Terms of the district court for the northern division shall be held at Fresno on the first Monday in May and the second Monday in November; and for the southern division, at Los Angeles, on the second Monday in January and the second Monday in July, and at San Diego on the second Mondays in March and September. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Judicial Disteicts 219 Norte, El Dorado, Glenn, Humboldt, Lake, Lassen, Marin, Mendocino, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo and Yuba. Terms of the district court for the northern district shall be held at San Francisco on the first Monday in March, the second Monday in July, and the first Monday in November; at Sacramento on the second Monday in April ; and at Eureka on the third Monday in July. § 73. The state of Colorado shall constitute one judicial district, to be known as the district of Colorado. Terms of the district court shall be held at Denver on the first Tuesday in May and November; at Pueblo on the first Tuesday in April; and at Montrose on the second Tues- day in September. § 74. The state of Connecticut shall constitute one judi- cial district, to be known as the district of Connecticut. Terms of the district court shall be held at New Haven on the fourth Tuesdays in February and September, and at Hartford on the fourth Tuesday in May and the first Tuesday in December. § 75. The state of Delaware shall constitute one judicial district, to be known as the district of Delaware. Terms of the district court shall be held at Wilmington on the second Tuesdays in March, June, September and December. § 76. The state of Florida is divided into two districts, to be known as the northern and southern districts of Florida. The southern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Baker, Bradford, Brevard, 220 The Judicial Code Citrus, Clay, Columbia, Dade, De Soto, Duval, Hamilton, Hernando, Hillsboro, Lake, Lee, Madison, Manatee, Marion, Monroe, Nassau, Orange, Osceola, Palm Beach, Pasco, Polk, Putnam, Saint John, Sumter, Suwanee, Saint Lucie and Volusia. Terms of the district court for the southern district shall be held at Ocala on the third Monday in January; at Tampa on the second Monday in February ; at Key West on the first Mondays in May and November; at Jacksonville on the first Monday in December; at Fernandina on the first Monday in April; and at Miami on the fourth Monday in April. The dis- trict court for the' southern district shall be open at all times for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction. The northern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alachua, Calhoun, Escambia, Franklin, Gadsden, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Santa Rosa, Taylor, Wakulla, Walton and Washington. Terms of the district court for the northern district shall be held at Tallahassee on the second Monday in January; at Pensacola on the first Mondays in May and November ; at Marianna on the first Monday in April ; and at Gaines- ville on the second Mondays in June and December. § 77. The state of Georgia is divided into two districts, to be known as the northern and southern districts of Georgia. The northern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Campbell, Carroll, Clayton, Cobb, Coweta, Cherokee, Dekalb, Douglas, Dawson, Fan- nin, Fayette, Fulton, Forsyth, Gilmer, Gwinnett, Hall, Henry, Lumpkin, Milton, Newton, Pickens, Eockdale, Spalding, Towns and "Union, which shall constitute the northern division of said district ; also the territory em- braced on the date last mentioned in the counties of Baiiks, Clarke, Elbert, Franklin, Greene, Habersham, Judicial Districts 221 Hart, Jackson, Morgan, Madison, Oglethorpe, Oconee, Eabun, Stephens, "Walton and White, which shall consti- tute the eastern division of said district ; also the territory embraced on the date last mentioned in the counties of Chattahoochee, Clay, Early, Harris, Heard, Meriwether, Marion, Muscogee, Quitman, Eandolph, Schley, Stewart, Talbot, Taylor, Terrell, Troup and Webster, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Bartow, Chattooga, Catoosa, Dade, Floyd, Gordon, Haralson, Murray, Paulding, Polk, Walker and Whitfield, which shall constitute the northwestern divi- sion of said district. Terms of the district court for northern division of said district shall be held at Atlanta on the second Monday in March and the first Monday in October, and at Gainesville on the fourth Mondays in April and November, and it shall be the duty of the judge to assign such cases, both civil and criminal, as may in his judgment be most convenient to the parties to said cases, and as may be in the interest of economical ex- penditures by the Government ; for the eastern division, at Athens on the second Monday in April and the first Monday in November ; for the western division, at Colum- bus on the first Mondays in May and December ; and for the northwestern division, at Eome on the third Mondays in May and November. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Athens, at Columbus and at Eome, which shall be kept open at all times for the transaction of the business of the court. The southern district shall include the territory embraced on the said first day of July, nineteen hundred and ten, in the counties of Ap- pling, Bulloch, Bryan, Camden, Chatham, Emanuel, Effingham, Glynn, Jeff Davis, Liberty, Montgomery, Mcintosh, Screven, Tatnall, Toombs and Wayne, which shall constitute the eastern division of said district ; also the territory embraced on the date last mentioned in the 222 The Judicial Code counties of Baldwin, Bibb, Butts, Crawford, Dodge, Dooly, Hancock, Houston, Jasper, Jones, Laurens, Macon, Monroe, Pike, Pulaski, Putnam, Sumter, Telfair, Twiggs, Upson, Wilcox and Wilkinson, which shall con- stitute the western division ; also the territory embraced on the date last mentioned in the counties of Burke, Columbia, Glascock, Jefferson, Jenkins, Johnson, Lincoln, McDuffie, Richmond, Taliaferro, Washington, Wilkes and Warren, which shall constitute the northeastern division ; also the territory embraced on the date last mentioned in the counties of Berrien, Brooks, Charlton, Clinch, Coffee, Decatur, Echols, Grady, Irwin, Lowndes, Pierce and Ware, which shall constitute the southwestern division; and also the territory embraced on the date last men- tioned in the counties of Baker, Ben Hill, Calhoun, Crisp, Colquitt, Dougherty, Lee, Miller, Mitchell, Thomas, Tift, Turner and Worth, which shall constitute the Albany division. Terms of the district court for the western division shall be held at Macon on the first Mondays in May and October ; for the eastern division, at Savannah on the second Tuesdays in February, May, August and November; for the northeastern division, at Augusta on the first Monday in April and the third Monday in Novem- ber; for the southwestern division, at Valdosta on the second Mondays in June and December; and for the Albany division, at Albany on the third Mondays in June and December. As amended by Act of March 4, 1913 (37 Stat. L. 1017, Supp. (1914) Fed. St. Ann. 228). By Act of March 3, 1915 (38 Stat. L. 960, Supp. (1916) Fed. St. Ann. 139), the counties of Candler, Jenkins and Evans were attached to the eastern division of the southeast district, and the counties of Bacon and Thomas to the southwestern division of the southern district. § 78. The state of Idaho shall constitute one judicial district, to be known as the district of Idaho. It is divided into four divisions, to be known as the northern, central, southern and eastern divisions. The territory embraced on the first day of July, nineteen hundred and Judicial Districts 223 ten, in the counties of Bonner, Kootenai and Shoshone, shall constitute the northern division of said district ; and the territory embraced on the date last mentioned in the counties of Idaho, Latah and Nez Perce, shall constitute the central division of said district; and the territory embraced on the date last mentioned in the counties of Ada, Boise, Blaine, Cassia, Twin Falls, Canyon, Elmore, Lincoln, Owyhee and Washington, shall constitute the southern division of said district; and the territory em- braced on the date last mentioned in the counties of Bannock, Bear Lake, Bingham, Custer, Fremont, Lemhi and Oneida, shall constitute the eastern division of said district. Terms of the district court for the northern division of said district shall be held at Coeur d'Alene City on the fourth Monday in May and the third Monday in November; for the central division, at Moscow on the second Monday in May and the first Monday in Novem- ber ; for the southern division, at Boise City on the second Mondays in February and September ; and for the eastern division, at Pocatello on the second Mondays in March and October. The clerk of the court shall maintain an office in charge of himself or a deputy at Coeur d'Alene City, at Moscow, at Boise City and at Pocatello, which shall be open at all times for the transaction of the busi- ness of the court. § 79. The state of Illinois is divided into three districts, to be known as the northern, southern and eastern dis- tricts of Illinois. The northern district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Cook, Dekalb, Dupage, Grundy, Kane, Kendall, Lake, LaSalle, McHenry and Will, which shall constitute the eastern division ; also the territory embraced on the date last mentioned in the counties of Boone, Carroll, Jo Daviess, Lee, Ogle, Stephenson, Whiteside and Winnebago, which shall con- stitute the western division. Terms of the district court 224 The Judicial Code for the eastern division shall be held at Chicago on the first Mondays in February, March, April, May, June, July, September, October and November, and the third Monday in December; and for the western division, at Freeport on the third Mondays in April and October, The clerk of the court for the northern district shall main- tain an office in charge of himself or a deputy at Chicago and at Freeport, which shall be kept open at all times for the transaction of the business of the court. The marshal for the northern district shall miaintain an office in the division in which he himself does not reside and shall appoint at least one deputy who shall reside therein. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bureau, Fulton, Henderson, Henry, Knox, Livingston, McDonough, Marshall, Mercer, Putnam, Peoria, Eock Island, Stark, Tazewell, Warren and Wood- ford, which shall constitute the northern division; also the territory embraced on the date last mentioned in the counties of Adams, Bond, Brown, Calhoun, Cass, Chris- tian, Dewitt, Green, Hancock, Jersey, Logan, McLean, Macon, Macoupin, Madison, Mason, Menard, Mont- gomery, Morgan, Pike, Sangamon, Schuyler and Scott, which shall constitute the southern division. Terms of the district court for the northern division shall be held at Peoria on the third Mondays in April and October ; for the southern division, at Springfield on the first Mondays in January and June, and at Quincy on the first Mondays in March and September. The clerk of the court for the southern district shall maintain an office in charge of himself or a deputy at Peoria, at Springfield and at Quincy, which shall be kept open at all times for the transaction of the business of the court. The marshal for said southern district shall appoint at least one deputy residing in the said northern division, who shall maintain an office at Peoria. The eastern district shall include the territory embraced on the first day of July, Judicial Districts 225 nineteen hundred and ten, in the counties of Alexander, Champaign, Clark, Clay, Clinton, Coles, Crawford, Cum- berland, Douglas, Edgar, Edwards, Effingham, Fayette, Ford, Franklin, Gallatin, Hamilton, Hardin, Iroquois, Jackson, Jasper, Jefferson, Johnson, Kankakee, Law- rence, Marion, Massac, Monroe, Moultrie, Perry, Piatt, Pope, Pulaski, Eandolph, Richland, Saint Clair, Saline, Shelby, Union, Vermilion, Wabash, Washington, Wayne, White and Williamson. The terms of the district court for the eastern district shall be held at Danville on the first Mondays in March and September ; at Cairo on the first Mondays in April and October; and at East Saint Louis on the first Mondays in May and November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Danville, at Cairo and at East Saint Louis, which shall be kept open at all times for the transaction of the business of the court, and shall there keep the records, files and docu- ments pertaining to the court at that place. § 80. The state of Indiana shall constitute one judicial district, to be known as the district of Indiana. Terms of the district court shall be held at Indianapolis on the first Tuesdays in May and November ; at New Albany on the first Mondays in January and July; at Evansville on the first Mondays in April and October ; at Fort Wayne on the second Tuesdays in June and December; and at Hammond on the third Tuesdays in April and October. The clerk of the court shall appoint four deputy clerks, one of whom shall reside and keep his office at New Al- bany, one at Evansville, one at Fort Wayne and one at Hammond. Each deputy shall keep in his office full records of all actions and proceedings of the district court held at that place. § 81. The state of Iowa is divided into two judicial dis- tricts, to be known as the northern and southern districts Long — 15 226 The Judicial Code of Iowa. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allamakee, Dubuque, Buchanan, Clayton, Delaware, Fayette, Winneshiek, Howard, Chick- asaw, Bremer, Blackhawk, Floyd, Mitchell and Jackson, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Jones, Cedar, Linn, Johnson, Iowa, Ben- ton, Tama, Grundy and Hardin, which shall constitute the Cedar Eapids division; also the territory embraced on the date last mentioned in the counties of Emmet, Palo Alto, Pocahontas, Calhoun, Carroll, Kossuth, Humboldt, Webster, Winnebago, Hancock, Wright, Hamilton, Worth, Cerro Gordo, Franklin and Butler, which shall constitute the central division; also the territory em- braced on the date last mentioned in the counties of Dickinson, Clay, Buena Vista, Sac, Osceola, O'Brien, Cherokee, Ida, Lyon, Sioux, Plymouth, Woodbury and Monona, which shall constitute the western division. Terms of the district court for the eastern division shall be held at Dubuque on the fourth Tuesday in April and the first Tuesday in December, and at Waterloo on the second Tuesdays in May and September; for the Cedar Eapids division, at Cedar Eapids on the first Tuesday in April and the fourth Tuesday in September; for the central division, at Fort Dodge on the second Tuesdays in June and November ; and for the western division, at Sioux City on the fourth Tuesday in May and the third Tuesday in October. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Louisa, Henry, Des Moines, Lee and Van Buren, which shall constitute the eastern division of said district; also the territory em- braced on the date last mentioned in the counties of Marshall, Story, Boone, Greene, Guthrie, Dallas, Polk, Jasper, Poweshiek, Marion, Warren and Madison, which shall constitute the central division of said district ; also Judicial Disteicts 227 the territory embraced on the date last mentioned in the counties of Cari;oll, Crawford, Harrison, Shelby, Audu- bon, Cass, Pottawattamie, Mills and Montgomery, which shall constitute the western division of said district ; also the territory embraced on the date last mentioned in the counties of Adair, Adams, Clarke, Decatur, Fremont, Lucas, Page, Einggold, Taylor, Union and Wayne, which shall constitute the southern division of said district ; also the territory embraced on the date last mentioned in the counties of Scott, Muscatine, Washington and Clinton, which shall constitute the Davenport division of said dis- trict; also the territory embraced on the date last men- tioned in the counties of Davis, Appanoose, Mahaska, Keokuk, Jefferson, Monroe and Wapello, which shall con- stitute the Ottumwa division of said district. Terms of the district court for the eastern division shall be held at Keokuk on the second Tuesday in April and the third Tuesday in October; for the central division, at Des Moines on the second Tuesday in May and the third Tues- day in November; for the western division, at Council Bluffs on the second Tuesday in March and the third Tuesday in September ; for the southern division, at Cres- ton on the fourth Tuesday in March and the first Tuesday in November; for the Davenport division, at Davenport on the fourth Tuesday in April and the first Tuesday in October; and for the Ottumwa division, at Ottumwa on the first Monday after the fourth Tuesday in March, and the first Monday after the third Tuesday in October. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at Davenport and at Ottumwa, for the transaction of the business of said divisions. See Act of March 3, 1913 (37 Stat. L. 734, Supp. (1914) Fed. St. Ann. 225). § 82. The state of Kansas shall constitute one judicial district, to be known as the district of Kansas. It is divided into three divisions, to be known as the first. 228 The Judicial Code second and third divisions of the district of Kansas. The first division shall include the territory embraced on the first day of July, nineteen hundred and ten, in the coun- ties of Atchison, Brown, Chase, Cheyenne, Clay, Cloud, Decatur, Dickinson, Doniphan, Douglas, Ellis, Franklin, Geary, Gove, Graham, Jackson, Jefferson, Jewell, John- son, Leavenworth, Lincoln, Logan, Lyon, Marion, Mar- shall, Mitchell, Morris, Nemaha, Norton, Osage, Osborne, Ottawa, Phillips, Pottawatomie, Eawlins, Republic, Riley, Rooks, Russell, Saline, Shawnee, Sheridan, Sherman, Smith, Thomas, Trego, Wabaunsee, Wallace, Washington and Wyandotte. The second division shall include the territory embraced on the date last mentioned in the counties of Barber, Barton, Butler, Clark, Comanche, Cowley, Edwards, Ellsworth, Finney, Ford, Grant, Gray, Greeley, Hamilton, Harper, Harvey, Hodgeman, Haskell, Kingman, Kiowa, Kearny, Lane, McPherson, Morton, Meade, Ness, Pratt, Pawnee, Reno, Rice, Rush, Scott, Sedgwick, Stafford, Stevens, Seward, Sumner, Stanton and Wichita. The third division shall include the terri- tory embraced on the said date last mentioned in the counties of Allen, Anderson, Bourbon, Cherokee, Coffey, Chautauqua, Crawford, Elk, Greenwood, Labette, Linn, Miami, Montgomery, Neosho, Wilson and Woodson. Terms of the district court for the first division shall be held at Leavenworth on the second Monday in October ; at Topeka on the second Monday in April ; at Kansas City on the second Monday in January and the first Monday in October ; and at Salina on the second Monday in May ; but no cause, action or proceeding shall be tried or con- sidered at any term held at Salina unless by consent of all the parties thereto, or by order of the court for cause. Terms of the district court for the second division shall be held at Wichita on the second Mondays in March and September ; and for the third division, at Fort Scott on the first Monday in May and the second Monday in November. The clerk of the district court shall appoint Judicial Districts 229 two deputies, one of whom shall reside and keep his office at Fort Scott, and the other at Wichita ; and the marshal shall appoint a deputy who shall reside and keep his office at Fort Scott. § 83. The state of Kentucky is divided into two dis- tricts, to be known as the eastern and western districts of Kentucky. The eastern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Carroll, Trimble, Henry, Shelby, Anderson, Mercer, Boyle, Gallatin, Boone, Ken- ton, Campbell, Pendleton, Grant, Owen, Franklin, Bour- bon, Scott, Woodford, Fayette, Jessamine, Garrard, Madison, Lincoln, Rockcastle, Pulaski, Wayne, Whitley, Bell, Knox, Harlan, Laurel, Clay, Leslie, Letcher, Perry, Owsley, Jackson, Estill, Lee, Breathitt, Knott, Pike, Floyd, Magoffin, Martin, Johnson, Lawrence, Boyd, Greenup, Carter, Elliott, Morgan, Wolfe, Powell, Meni- fee, Clark, Montgomery, Bath, Rowan, Lewis, Fleming, Mason, Bracken, Robertson, Nicholas and Harrison, with the waters thereof. Terms of the district court for the eastern district shall be held at Frankfort on the second Monday in March and the fourth Monday in September ; at Covington on the first Monday in April and the third Monday in October; at Richmond on the fourth Mon- day in April and the second Monday in November; at London on the second Monday in May and the fourth Monday in May and the second Monday in December ; and at Jackson on the first Monday in March and the third Monday in September: Provided, That suitable rooms and accommodations are furnished for holding court at Jackson free of expense to the Govern- ment until such time as a public building shall be erected there. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Oldham, Jefferson, Spencer, Bullitt, Nelson, Washington, Marion, Larue, Taylor, Casey, 230 The Judicial Code Green, Adair, Eussell, Clinton, Cumberland, Monroe, Metcalf , Allen, Barren, Simpson, Logan, Warren, Butler, Hart, Edmonson, Brayson, Hardin, Meade, Breckinridge, Hancock, Daviess, Ohio, McLean, Muhlenberg, Todd, Christian, Trigg, Lyon, Caldwell, Livingston, Crittenden, Hopkins, Webster, Henderson, Union, Marshall, Callo- way, McCracken, Graves, Ballard, Carlisle, Hickman and Fulton, with the waters thereof. Terms of the district court for the western district shall be held at Louisville on the second Mondays in March and October ; at Owens- boro on the first Monday in May and the fourth Monday in November ; at Paducah on the third Mondays in April and November ; and at Bowling Green on the third Mon- day in May and the second Monday in December. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Frankfort, at Covington, at Richmond, at London, at Catlettsburg and at Jackson; and the clerk for the western district shall maintain an office in charge of himself or a deputy at Louisville, at Owensboro, at Paducah, and at Bowling Green, each of which offices shall be kept open at all times for the transaction of the business of said court. The clerks of the courts for the eastern and western districts, upon issuing original process in a civil action, shall* make it returnable to the court nearest to the county of the residence of the defendant, or of that defendant whose county is nearest to a court, and shall, immediately upon payment by the plaintiff of his fees accrued, send the papers filed to the clerk of the court to which the process is made returnable ; and whenever the process is not thus made returnable, any defendant may, upon motion, on or before the calling of the cause, have it transferred to the court to which it should have been sent had the clerk known the residence of the defendant when the action was brought. § 84. The state of Louisiana is divided into two judicial districts, to be known as the eastern and western districts Judicial Districts 231 of Louisiana. The eastern district shall include the ter- ritory embraced on the first day of July, nineteen hundred and ten, in the parishes of Assumption, Iberia, Jefferson, Lafourche, Orleans, Plaquemines, Saint Bernard, Saint Charles, Saint James, Saint Jojin the Baptist, Saint Mary, Saint Tammany, Tangipahoa, Terrebonne and Washington, which shall constitute the New Orleans division; also the territory embraced on the date last mentioned in the parishes of Ascension, East Baton Eouge, East Feliciana, Livingston, Pointe Coupee, Saint Helena, West Baton Rouge, Iberville and West Feliciana, which shall constitute the Baton Rouge division of said district. ' Terms of the district court for the New Orleans division shall be held at New Orleans on the third Mon- days in February, May and November ; and for the Baton Eouge division, at Baton Rouge on the second Mondays in April and November. The clerk of the court for the eastern district shall maintain an office in charge of him- self or a deputy at New Orleans and at Baton Rouge which shall be kept open at all times for the transaction of the business of the court. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the parishes of Saint Lan- dry, Evangeline, Saint Martin, Lafayette and Vermilion, which shall constitute the Opelousas division of said district; also the territory embraced on the date last mentioned in the parishes of Rapides, Avoyelles, Cata- houla, La Salle, Grant and Winn, which shall constitute the Alexandria division of said district ; also the territory embraced on the said date last mentioned in the parishes of Caddo, De Soto, Bossier, Webster, Claiborne, Bien- ville, Natchitoches, Sabine and Red River, which shall constitute the Shreveport division of said district; also the territory embraced on the date last mentioned in the parishes of Ouachita, Franklin, Richland, Morehouse, East Carroll, West Carroll, Madison, Tensas, Concordia, Union, Caldwell, Jackson and Lincoln, which shall consti- 232 The Judicial Code tute the Monroe division of said district; also tlie terri- tory embraced on the date last mentioned in the parishes of Acadia, Calcasieu, Cameron and Vernon, which shall constitute the Lake Charles division of said district. Terms of the district court for the Opelousas division shall be held at Opelousas on the first Mondays in Janu- ary and June ; for the Alexandria division, at Alexandria on the fourth Mondays in January and June; for the Shreveport division, at Shreveport on the third Mondays in February and October; for the Monroe division, at Monroe on the first Mondays in April and October ; and for the Lake Charles division, at Lake Charles on the third Mondays in May and December. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Opelousas, at Alex- andria, at Shreveport, at Monroe and at Lake Charles, which shall be kept open at all times for the transaction of the business of the court. § 85. The state of Maine shall continue one judicial district, to be known as the district of Maine. Terms of the district court shall be held at Portland on the first Tuesdays in February and December ; at Bangor on the first Tuesday in June ; and at Bath on the first Tuesday in September. § 86. The state of Maryland shall constitute one judi- cial district, to be known as the district of Maryland. Terms of the district court shall be held at Baltimore on the first Tuesdays in March, June, September and Decem- ber; and at Cumberland on the second Monday in May and the last Monday in September. The clerk of the court shall appoint a deputy who shall reside and main- tain an oflSee at Cumberland, unless the clerk shall himself reside there ; and the marshal shall also appoint a deputy, who shall reside and maintain an oflSce at Cumberland, unless he shall himself reside there. Judicial Distbicts 233 § 87. The state of Massachusetts shall constitute one judicial district, to be known as the district of Massachu- setts. Terms of the district court shall be held at Boston on the third Tuesday in March, the fourth Tuesday in June, the second Tuesday in September and the first Tuesday in December; and at Springfield, on the second Tuesdays in May and December: Provided, That suit- able rooms and accommodations for holding court at Springfield shall be furnished free of expense to the Government until such time as a federal building shall be erected there for that purpose. The marshal and the clerk for said district shall each appoint at least one deputy, to reside in Springfield and to maintain an ofiSce at that place. § 88. The state of Michigan is divided into two judicial districts, to be known as the eastern and western districts of Michigan. The eastern district shall include the ter- ritory embraced on the first day of July, nineteen hundred and ten, in the counties of Alcona, Alpena, Arenac, Bay, Cheboygan, Clare, Crawford, Genesee, Gladwin, Gratiot, Huron, Iosco, Isabella, Midland, Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, Eoscommon, Saginaw, Shia- wassee and Tuscolo, which shall constitute the northern division; also the territory embraced on the date last mentioned in the counties of Branch, Calhoun, Clinton, Hillsdale, Ingham, Jackson, Lapeer, Lenawee, Livingston, Macomb, Monroe, Oakland, St. Clair, Sanilac, Washte- naw and Wayne, which shall constitute the southern division of said district. Terms of the district court for the southern division shall be held at Detroit on the first Tuesdays in March, June and November ; for the northern division, at Bay City on the first Tuesdays in May and October, and at Port Huron in the discretion of the judge of said court and at such times as he shall appoint there- for. There shall also be held a special or adjourned term of the district court at Bay City for the hearing of 234 The Jtjdiciai, Code admiralty causes, beginning in the month, of February in each year. The western district shall include the ter- ritory embraced on the first day of July, nineteen hundred and ten, in the counties of Alger, Baraga, Chippewa, Delta, Dickinson, Gogebic, Houghton, Iron, Keweenaw, Luce, Mackinac, Marquette, Menominee, Ontonagon and Schoolcraft, which shall constitute the northern division ; also the territory embraced on the said date last men- tioned in the counties of Allegan, Antrim, Barry, Benzie, Berrien, Cass, Charlevoix, Eaton, Emmet, Grand Traverse, Ionia, Kalamazoo, Kalkaska, Kent, Lake, Lee- lanau, Manistee, Mason, Macosta, Missaukee, Montcalm, Muskegon, Newaygo, Oceana, Osceola, Ottawa, St. Joseph, Van Buren and "Wexford, which shall constitute the southern division of said district. Terms of the district court for the southern division shall be held at Grant Eapids on the first Tuesdays in March and Octo- ber; and for the northern division, at Marquette on the first Tuesdays in May and September. All issues of fact shall be tried at the terms held in the division where such suit shall be commenced. Actions in rem and admiralty may be brought in whichever division of the eastern dis- trict service can be had upon the res. Nothing herein contained shall prevent the district court of the western division from regulating, by general rule, the venue of transitory actions either at law or in equity, or from changing the same for cause. The clerk of the court for the western district shall reside and keep his oflfice at Grand Eapids, and shall also appoint a deputy clerk for said court held at Marquette, who shall reside and keep his office at that place. The marshal for said western district shall keep an office and a deputy marshal at Marquette. The clerk of the court for the eastern dis- trict shall keep his office at the city of Detroit, and shall appoint a deputy for the court held at Bay City, who shall reside and keep his office at that place. The mar- shal for said district shall keep an office and a deputy Judicial, Districts 235 marshal at Bay City, and mileage on service of process in said northern division shall be computed from Bay City. By Act of July 9, 1912 (37 Stat. L. 190, Supp. (1914) Fed. St. Ann. 219), the terms of the court for the western district for the southern division were fixed for Grand Eapids on the first Tuesdays of March, June, October and December, and for the northern division at Marquette on the second Tuesdays of April and September, and at Sault Sainte Marie on the sec- ond Tuesdays of January and July. § 89. The state of Minnesota shall constitute one judi- cial district, to be known as the district of Minnesota. It is divided into six divisions, to be known as the first, second, third, fourth, fifth and sixth divisions. The first division shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Winona, Wabasha, Olmsted, Dodge, Steele, Mower, Fill- more and Houston. The second division shall include the territory embraced on the date last mentioned in the counties of Freeborn, Faribault, Martin, Jackson, Nobles, Eock, Pipestone, Murray, Cottonwood, Watonwan, Blue Earth, Waseca, Lesueur, Nicollet, Brown, Redwood, Lyon, Lincoln, Yellow Medicine, Sibley and Lac qui Parle. The third division shall include the territory embraced on the date last mentioned in the counties of Chisago, Washington, Eamsey, Dakota, Goodhue, Eice, and Scott. The fourth division shall include the territory embraced on the date last mentioned in the counties of Hennepin, Wright, Meeker, Kandiyohi, Swift, Chippewa, Eenville, McLeod, Carver, Anoka, Sherburne, and Isanti. The fifth division shall include the territory embraced on the date last mentioned in the counties of Cook, Lake, Saint Louis, Itasca, Koochiching, Cass, Crow Wing, Aikin, Carlton, Pine, Kanabec, Mille Lacs, Morrison, and Ben- ton. The sixth division shall include the territory embraced on the date last mentioned in the counties of Stearns, Pope, Stevens, Bigstone, Traverse, Grant, Douglas, Todd, Ottertail, Eoseau, Wilkin, Clay, Becker, 236 The JuDiciAii Code Wadena, Norman, Polk, Red Lake, Marshall, Kittson, Beltrami Clearwater, Mahnomen, and Hubbard. Terms of the district court for the first division shall be held at Winona on the third Tuesdays in May and November; for the second division, at Mankato on the fourth Tues- days in April and October ; for the third division, at Saint Paul on the first Tuesdays in June and December ; for the fourth division, at Minneapolis on the first Tuesdays in April and October; for the fifth division, at Duluth- on the second Tuesdays in January and July; and for the sixth division, at Fergus Falls on the first Tuesday in May and second Tuesday in November. The clerk of the court shall appoint a deputy clerk at each place where the court is now required to be held at which the clerk shall not himself reside, who shall keep his office and reside at the place appointed for the holding of said court. § 90. The state of Mississippi is divided into two judi- cial districts, to be known as the northern and southern district of Mississippi. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alcorn, Attala, Chickasaw, Choctaw, Clay, Itawamba, Lee, Lowndes, Monroe, Oktibbeha, Ponotoc, Prentiss, Tisho- mingo, and Winston, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Benton, Cal- houn, Carroll, De Soto, Grenada, Lafayette, Marshall, Montgomery, Panola, Tate, Tippah, Union, Webster, and Yalobusha, which shall constitute the western division of said district ; also the territory embraced on the date last mentioned in the counties of Bolivar, Coahoma, Leflore, Quitman, Sunflower, Tallahatchie, and Tunica, which shall constitute the Delta division of said district. The terms of the district court for the eastern division shall be held at Aberdeen on the first Mondays in April and October ; and for the western division, at Oxford on the Judicial Disteicts 237 first Mondays in June and December; and for tlie Delta division, at Clarksdale on tlie fourth Mondays in January and July : Provided, That suitable rooms and accommo- dations for holding court at Clarksdale are furnished free of expense to the United States. The southern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Amite, Copiah, Covington, Franklin, Hinds, Holmes, Jefferson, Jefferson Davis, Lawrence, Lincoln, Madison, Pike, Eankin, Simpson, Smith, Scott, Wilkin- son, and Yazoo, which shall constitute the Jackson divi- sion; also the territory embraced on the date last men- tioned in the counties of Claiborne, Issaquena, Sharkey, Warren, and Washington, which shall constitute the western division ; also the territory embraced on the date last mentioned in the counties of Clarke, Jones, Jasper, Kemper, Lauderdale, Leake, Neshoba, Newton, Moxubee, and Wayne, which shall constitute the eastern division; also the territory embraced on the date last mentioned in the counties of Forrest, Greene, Hancock, Harrison, Jackson, Lamar, Marion, Perry, and Pearl River, which constitutes the southern division of said district. Terms of the district court for the Jackson division shall be held at Jackson on the first Mondays in May and November ; for the western division, at Vicksburg on the first Mon- days in January and July; for the eastern division, at Meridian on the second Mondays in March and Septem- ber ; and for the southern division, at Biloxi on the third Mondays in February and August. The clerk of the court for each district shall maintain an office in charge of himself or a deputy at each plape in his district at which court is now required to be held, at which he shall not himself reside, which shall be kept open at all times for the transaction of the business of the court. The mar- shal for each of said districts shall maintain an office in 238 The Judicial Code charge of himself or a deputy at each place of holding court in his district. Act of May 27, 1912 (37 Stat. L. 118, Supp. (1914) Fed. St. Ann. 218). See also Act of March 23, 1912 (37 Stat. L. 76). § 91. The state of Missouri is divided into two judicial districts, to be known as the eastern and western districts of Missouri. The eastern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the city of Saint Louis and the counties of Audrain, Crawford, Dent, Franklin, Gasconade, Iron, Jefferson, Lincoln, Maries, Montgomery, Phelps, Saint Charles, Saint Francois, Sainte Genevieve, Saint Louis, Warren, and Washington, which shall constitute the east- em division of said district; also the territory embraced on the date last mentioned in the counties of Adair, Chari- ton, Clark, Knox, Lewis, Linn, Macon, Marion, Monroe, Pike, Ealls, Randolph, Schuyler, Scotland, and Shelby, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Bollinger, Butler, Cape Girardeau, Carter, Dunklin, Madison, Mississippi, New Madrid, Pemiscot, Perry, Eeynolds, Ripley, Scott, Shan- non, Stoddard, and Wayne, which shall constitute the southeastern division of said district. Terms of the district court for the eastern division shall be held at Saint Louis on the first Mondays in May and November, and at Rolla on the second Mondays in January and June : Provided, That suitable rooms and accommoda- tions for holding court at Rolla are furnished free of expense to the United States ; for the northern division, at Hannibal on the fourth Monday in May and the first Monday in December ; and for the southeastern division at Cape Girardeau on the second Mondays in April and October. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bates, Caldwell, Carroll, Cass, Judicial Districts 239 Clay, Grundy, Henry, Jackson, Johnson, Lafayette, Liv- ingston, Mercer, Putnam, Ray, Saint Clair, Saline and Sullivan, which shall constitute the western division ; also the territory embraced on the date last mentioned in the counties of Barton, Barry, Jasper, Lawrence, McDonald, Newton, Stone, and Vernon, which shall constitute the southwestern division; also the territory embraced on the date last mentioned in the counties of Andrew, Atchi- son, Buchanan, Clinton, Daviess, Dekalb, Gentry, Holt, Harrison, Nodaway, Platte, and Worth, which shall con- stitute the Saint Joseph division; also the territory embraced on the date last mentioned in the counties of Benton, Boone, Callaway, Cooper, Camden, Cole, Hick- ory, Howard, Miller, Moniteau, Morgan, Osage, and Pettis, which shall constitute the central division; also the territory embraced on the date last mentioned in the counties of Christian, Cedar, Dade, Dallas, Douglas, Greene, Howell, Laclede, Oregon, Ozark, Polk, Pulaski, Taney, Texas, Webster, and Wright, which constitutes the southern division. Terms of the district court for the western division shall be held at Kansas City on the fourth Monday in April and first Monday in November, and at Chillicothe on the fourth Monday in May and the first Monday in December: Provided, That suitable rooms and accommodations for holding court at Chilli- cothe are furnished free of expense to the United States ; for the southwestern division, at Joplin on the second Mondays in June and January; for the Saint Joseph division, at Saint Joseph on the first Monday in March and third Monday in September ; for the central division, at Jefferson City on the third Mondays in March and October; and for the southern division at Springfield on the first Mondays in April and October. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Kansas City, at Jeffer- son City, at Saint Joseph, at Chillicothe, at Joplin, and at Springfield, which shall be kept open at all times for the 240 The Judicial Code transaction of the business of the court. The marshal for each district shall also maintain an office in charge of himself or a deputy at each place at which court is now held in his district. § 92. The state of Montana shall constitute one judicial district, to be known as the district of Montana. Terms of the district court shall be held at Helena on the first Mondays in April and November; at Butte on the first Tuesdays in February and September ; at Great Falls on the first Mondays in May and October; at Missoula on the first Mondays in January and June ; and at Billings on the first Mondays in March and August. Causes, civil and criminal, may be transferred by the court or judge thereof from Helena to Butte or from Butte to Helena, or from Helena or Butte to Great Falls, or from Great Falls to Helena or Butte, in said district, when the convenience of the parties or the ends of justice would be promoted by the transfer; and any interlocutory order may be made by the court or judge thereof in either place. § 93. The state of Nebraska shall constitute one judi- cial district to be known as the district of Nebraska. Said district is divided into eight divisions. The territory embraced on the first day of July, nineteen hundred and ten, in the counties of Douglas, Sarpy, Washington, Dodge, Colfax, Platte, Nance, Boone, Wheeler, Burt, Thurston, Dakota, Cuming, Cedar, and Dixon, shall con- stitute the Omaha division; the territory embraced on the date last mentioned in the counties of Madison, Ante- lope, Knox, Pierce, Stanton, Wayne, Holt, Boyd, Eock, Brown, and Keya Paha, shall constitute the Norfolk divi- sion; the territory embraced on the date last mentioned in the counties of Cherry, Sheridan, Dawes, Boxbutte, and Sioux, shall constitute the Chadron division; the territory embraced on the date last mentioned in the counties of Hall, Merrick, Howard, Greeley, Garfield, Judicial Districts 241 Valley, Sherman, Buffalo, Custer, Loup, Blaine, Thomas, Hooker, and Grant, shall constitute the Grand Island division; the territory embraced on the date last men- tioned in the counties of Lincoln, Dawson, Logan, McPherson, Keith, Deuel, Garden, Morrill, Cheyenne, Kimball, Banner, and Scott's Bluff, shall constitute the North Platte division ; the territory embraced on the date last mentioned in the counties of Cass, Otoe, Johnson, Nemaha, Pawnee, Eichardson, Gage, Lancaster, Saun- ders, Butler, Seward, Saline, Jefferson, Thayer, Fillmore, York, Polk, and Hamilton, shall constitute the Lincoln division; the territory embraced on the date last men- tioned in the counties of Clay, Nuckolls, Webster, Adams, Kearney, Franklin, Harlan, and Phelps, shall constitute the Hastings division; and the territory embraced on the' date last mentioned in the counties of Gosper, Furnas, Red Willow, Frontier, Hayes, Hitchcock, Dundy, Chase, and Perkins, shall constitute the McCook division. Terms of the district court for the Omaha division shall be held at Omaha on the first Monday in April and the fourth Monday in September; for the Norfolk division, at Norfolk on the third Monday in September; for the Chadron division, at Chadron on the second Monday in September; for the Grand Island division, at Grand Island on the second Monday in January ; for the North Platte division, at North Platte on the second Monday in June ; for the Lincoln division, at Lincoln on the second Monday in May and the first Monday in October ; for the Hastings division, at Hastings on the second Monday in March ; and for the McCook division, at McCook on the first Monday in March : Provided, That where provision is made herein for holding court at places where there are no Federal buildings, a suitable room in which to hold court, together with light and heat, shall be provided by the city or county where such court is held, without any expense to the United States. The clerk of the court shall appoint a deputy for each division of the district Long — 16 242 The Judicial Code in whicli he does not himself reside, who shall keep his office and reside at the place of holding court in the division for which he is appointed, § 94. The state of Nevada shall constitute one judicial district, to be known as the district of Nevada. Terms of the district court shall be held at Carson City on the first Mondays in February, May, and October. § 95. The state of New Hampshire shall constitute one judicial district, to be known as the district of New Hamp- shire. Terms of the district court shall be held at Ports- mouth on the last Tuesday in October, at Concord on the last Tuesday in April and the second Tuesday in Decem- ber, and at Littleton on the third Tuesday in September. Act of August 23, 1912 (37 Stat. L. 357). § 96. The state of New Jersey shall constitute one judicial district, to be known as the district of New Jer- sey. Terms of the district court shall be held at Newark on the first Tuesday in April and the first Tuesday in November, and at Trenton on the third Tuesday in Janu- ary and the second Tuesday in September of each year. The clerk of the court for the district of New Jersey shall maintain an office, in charge of himself or a deputy, at Newark and at Trenton, each of which offices shall be kept open at all times for the transaction of the business of the court; and the marshal shall also maintain an office, in charge of himself or a deputy, at Newark and at Trenton, each of which offices shall be kept open at all times for the transaction of the business of the court. Act of Feb. 14, 1913 (37 Stat. L. 674, Supp. (1914) Fed. St. Ann. 223). See also Act of Aug. 9, 1912 (37 Stat. L. 265). § 97. The state of New York is divided into four judi- cial districts, to be known as the northern, eastern, south- em, and western districts of New York. The northern district shall include the territory embraced on the first Judicial Disteicts 243 day of July, nineteen hundred and ten, in the counties of Albany, Broome, Cayuga, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Madison, Montgomery, Oneida, Onon- daga, Oswego, Otsego, Rensselaer, Saint Lawrence, Sara- toga, Schenectady, Schoharie, Tioga, Tompkins, Warren, and Washington, with the waters thereof. Terms of the district court for said district shall be held at Albany on the second Tuesday in February ; at Utica on the first Tuesday in December; at Binghamton on the second Tuesday in June; at Auburn on the first Tuesday in October ; at Syracuse on the first Tuesday in April ; and in the discretion of the judge of the court, one term annually at such time and place within the counties of Saratoga, Onondaga, Saint Lawrence, Clinton, Jefferson, Oswego, and Franklin, as he may from time to time appoint. Such appointment shall be made by notice of at least twenty days published in a newspaper published at the place where said court is to be held. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Richmond, Kings, Queens, Nassau, and Suffolk, with the waters thereof. Terms of the district court for said district shall be held at Brooklyn on the first Wednesday in every month. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Columbia, Dutchess, Greene, New York, Orange, Putnam, Eockland, Sullivan, Ulster, and Westchester, with the waters thereof. Terms of the district court for said district shall be held at New York City on the first Tuesday in each month. The dis- trict courts of the southern and eastern districts shall have concurrent jurisdiction over the waters within the counties of New York, Kings, Queens, Nassau, Richmond, and Suffolk, and over all seizures made and all matters done in such waters ; all processes or orders issued within either of said courts or by any judge thereof shall run and 244 The Judicial Code be executed in any part of said waters. The western dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allegheny, Cattaraugus, Chautauqua, Chemung, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, "Wayne, Wyoming, and Yates, with the waters thereof. Terms of the district court for said district shall be held at Elmira on the second Tues- day in January; at Buffalo on the second Tuesdays in March and November; at Eochester on the second Tues- day in May; at Jamestown on the second Tuesday in July ; at Loekport on the second Tuesday in October ; and at Canandaigua on the second Tuesday in September. The regular sessions of the district court for the western district for the hearing of motions and for proceedings in bankruptcy and the trial of causes in admiralty, shall be held at Buffalo at least two weeks in each month of the year, except August, unless the business is sooner dis- posed of. The times for holding the same and such other special sessions as the court shall deem necessary shall be fixed by rules of the court. All process in admiralty causes and proceedings shall be made returnable at Buffalo. The judge of any district in the state of New York may perform the duties of the judge of any other district in such state upon the request of any resident judge entered in the minutes of his court; and in such cases such judges shall have the same powers as are vested in the resident judge. § 98. The state of North Carolina is divided into two districts, to be known as the eastern and western districts of North Carolina. The eastern district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Beaufort, Bertie, Bladen, Brunswick, Camden, Chatham, Cumberland, Currituck, Craven, Columbus, Chowan, Carteret, Dare, Duplin, Dur- ham, Edgecombe, Franklin, Gates, Granville, Greene, Judicial Districts 245 Halifax, Harnett, Hertford, Hyde, Jolmston, Jones, Lenoir, Lee, Martin, Moore, Nash, New Hanover, North- ampton, Onslow, Pamlico, Pasquotank, Pender, Per- quimans, Person, Pitt, Robeson, Richmond, Sampson, Scotland, Tyrell, Vance, Wake, Warren, Washington, Wayne, and Wilson. Terms of the district court for the eastern district shall be held at Laurinburg on the last Mondays in March and September ; at Wilson on the first Mondays in April and October ; at Elizabeth City on the second Mondays in April and October; at Washington on the third Mondays in April and October ; at Newbern on the fourth Mondays in April and October ; at Wilming- ton on the second Monday after the fourth Mondays in April and October ; and at Raleigh on the fourth Monday after the fourth Mondays in April and October: Pro- vided, That the city of Washington, the city of Laurin- burg, and the city of Wilson shall each provide and furnish at its own expense a suitable and convenient place for holding the district court at Washington, at Laurin- burg, and at Wilson, until a courthouse shall be con- structed by the United States. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Raleigh, at Wilmington, at New- bern, at Elizabeth City, at Washington, at Laurinburg, and at Wilson, which shall be kept open at all times for the transaction of the business of the court. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alamance, Alexander, Ashe, Alleghany, Anson, Bun- combe, Burke, Caswell, Cabarrus, Catawba, Cleveland, Caldwell, Clay, Cherokee, Davidson, Davie, Forsyth, Guilford, Gaston, Graham, Henderson, Haywood, Iredell, Jackson, Lincoln, Montgomery, Mecklenburg, Mitchell, McDowell, Madison, Macon, Orange, Polk, Randolph, Rockingham, Rowan, Rutherford, Stanly, Stokes, Surry, Swain, Transylvania, Union, Wilkes, Watauga, Yadkin, and Yancey. Terms of the district court for the western 246 The Judicial Code district shall be held at Greensboro on the first Mondays in June and December ; at Statesville on the third Mon- days in April and October; at Salisbury on the fourth Mondays in April and October ; at Asheville on the first Mondays in May and November ; at Charlotte on the first Mondays in April and October ; and at Wilkesboro on the fourth Mondays in May and November. The clerk oi the court for the western district shall maintain an office in charge of himself or a deputy at Gre6nsboro, at Ashe- ville, at Statesville, and at Wilkesboro, which shall be kept open at all times for the transaction of the business of the court. Act of Oct. 7, 1914 (38 Stat. L. 728, Supp. (1916) Fed. St. Ann. 134). § 99. The state of North Dakota shall constitute one judicial district, to be known as the district of North Dakota. The territory embraced on the first day of July, nineteen hundred and ten, in the counties of Burleigh, Stutsman, Logan, Mcintosh, Emmons, Kidder, Foster, Wells, McLean, Sheridan, Adams, Bowman, Dunn, Het- tinger, Morton, Stark, and McKenzie, shall constitute the southwestern division of said district; and the territory embraced on the date last mentioned in the counties of Cass, Eichland, Barnes, Dickey, Sargent, Lamoure, Ran- som, Griggs, and Steele, shall constitute the southeastern division; and the territory embraced on the date last mentioned in the counties of Grand Forks, Traill, Walsh, Pembina, Cavalier, and Nelson, shall constitute the northeastern division; and the territory embraced on the date last mentioned in the counties of Ramsey, Eddy, Benson, Towner, Rolette, Bottineau, Pierce, and McHenry, shall constitute the northwestern division ; and the territory embraced on the date last mentioned in the counties of Ward, Williams, Montraille, Burk, and Ren- ville, shall constitute the western division. The several Indian reservations and parts thereof within said state shall constitute a part of the several divisions within Judicial Districts 247 wMcli they are respectively situated. Terms of the dis- trict court for the southwestern division shall be held at Bismarck on the first Tuesday in March; for the south- eastern division, at Fargo on the third Tuesday in May ; for the northeastern division, at Grand Forks on the second Tuesday in November ; for the northwestern divi- sion, at Devils Lake on the first Tuesday in July; and for the western division, at Minot on the second Tuesday in October. The clerk of the court shall maintain an office in charge of himself or a deputy at each place at which court is now held in his district. Act of Feb. 5, 1912 (37 Stat. L. 60, Supp. (1914) Fed. Ann. St. 216). § 100. The state of Ohio is divided into two judicial districts, to be known as the northern and southern dis- tricts of Ohio. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Ashland, Ashtabula, Cuyahoga, Carroll, Columbiana, Crawford, Geauga, Holmes, Lake, Lorain, Medina, Mahoning, Portage, Rich- land, Summit, Stark, Tuscarawas, Trumbull, and Wayne, which shall constitute the eastern division ; also the terri- tory embraced on the date last mentioned in the counties of Auglaize, Allen, Defiance, Erie, Fulton, Henry, Han- cock, Hardin, Huron, Lucas, Mercer, Marion, Ottawa, Paulding, Putnam, Seneca, Sandusky, Van "Wert, Wil- liams, Wood, and Wyandotte, which shall constitute the western division of said district. Terms of the district court for the eastern division shall be held at Cleveland on the first Tuesdays in February, April, and October, and at Youngstown on the first Tuesday after the first Monday in March; and for the western division, at Toledo on the last Tuesdays in April and October. Grand and petit jurors summoned for service at a term of court to be held at Cleveland may, if in the opinion of the court the public convenience so requires, be directed to serve also at the term then being held or authorized to 248 The Judicial Code be held at Youngstown. Crimes and offenses committed in tlie eastern division shall be cognizable at the terms held at Cleveland, or at Youngstown, as the court may direct. Any suit brought in the eastern division may, in the discretion of the court, be tried at the term held at Youngstown. The southern district shall include the ter- ritory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Adams, Brown, Butler Champaign, Clark, Clermont, Clinton, Darke, Greene, Hamilton, Highland, Lawrence, Miami, Montgomery, Preble, Scioto, Shelby, and Warren, which shall consti- tute the western division; also the territory embraced on the date last mentioned in the counties of Athens, Behnont, Coshocton, Delaware, Fairfield, Fayette, Frank- lin, Gallia, Guernsey, Harrison, Hocking, Jackson, Jef- ferson, Knox, Licking, Logan, Madison, Meigs, Monroe, Morgan Morrow, Muskingum, Noble, Perry, Pickaway, Pike, Ross, Union, Vinton, and Washington, which shall constitute the eastern division of said district. Terms of the district court for the western division shall be held at Cincinnati on the first Tuesdays in February, April, and October ; and for the eastern division, at Columbus on the first Tuesdays in June and December, and at Steubenville on the first Tuesdays of March and September. Grand and petit juries summoned for service at a term of court held at Columbus may, if in the opinion of the court the public convenience so requires, be directed to serve also at the term being held or authorized to be held at Steub- enville. Crimes and offenses committed in the eastern division shall be cognizable at the terms held at Colum- bus, or at Steubenville, as the court may direct. Any suit brought in the eastern division may, in the discretion of the court, be tried at the term held at Steubenville. Provided, That suitable rooms and accommodations for holding court at Steubenville shall be furnished free of expense to the Government until the completion of the Federal building : And provided further, That terms of Judiciaij Districts 249 the district court for tlie soutHern district shall be held at Dayton on the first Mondays in May and November. Prosecutions for crimes and offenses committed in any part of said district shall also be cognizable at the terms held at Dayton. All suits which may be brought within the southern district, or either division thereof, may be instituted, tried, and determined at the terms held at Dayton. Act of March 4, 1915 (38 Stat. L. 1187). § 101. The state of Oklahoma is divided into two judi- cial districts, to be known as the eastern and the western districts of Oklahoma. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adair, Atoka, Bryan, Craig, Cherokee, Creek, Choctaw, Coal, Carter, Dela- ware, Garvin, Grady, Haskell, Hughes, Johnston, Jeffer- son, Latimer, Le Flore, Love, McClain, Mayes, Muskogee, Mcintosh, McCurtain, Murray, Marshall, Nowata, Ottawa, Okmulgee, Ofuskee, Pittsburg, Pushmataha, Pontotoc, Eogers, Stephens, Sequoyah, Seminole, Tulsa, "Washington, and "Wagoner. Terms of the district court for the eastern district shall be held at Muskogee on the first Monday in January; at Vinita on the first Monday in March ; at Tulsa on the first Monday in April ; at South McAlester on the first Monday in June ; at Ardmore on the first Monday in October; and at Chickasha on the first Monday in November in each year. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alfalfa, Beaver, Beckham, Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche, Custer, Dewey, Ellis, Garfield, Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, Logan, Majors, Noble, Okla- homa, Osage, Pawnee, Payne, Pottowatomie, Eoger Mills, Texas, Tilhnan, "Washita, "Woods, and Woodward. Terms of the district court for the western district shall be held 250 The Judicial Code at Gutlirie on the first Monday in January ; at Oklahoma City on the first Monday in March; at Enid on the first Monday in June ; at Lawton on the first Monday in Sep- tember ; and at Woodward on the first Monday in Novem- ber. Provided, That suitable rooms and accommodations for holding court at Woodward are furnished free of expense to the United States. The clerk of the district court for the eastern district shall keep his office at Muskogee, and the clerk for the western district at Guthrie, and shall maintain an office in charge of himself or a deputy at Oklahoma City. § 102. The state of Oregon shall constitute one judicial district, to be known as the district of Oregon. Terms of the district court shall be held at Portland on the first Mondays in March, July, and November ; at Pendleton on the first Tuesday in April; and at Medford on the first Tuesday in October. The marshal and the clerk for said district shall each appoint, in the manner provided by law, at least one deputy at Pendleton and one at Medford, who shall reside and maintain an office at each of said places. § 103. The state of Pennsylvania is divided into three judicial districts, to be known as the eastern, middle, and western districts of Pennsylvania. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Berks, Bucks, Chester, Delaware, Lancastier, Lehigh, Montgom- ery, Northampton, Philadelphia, and Schuylkill. Terms of the district court shall be held at Philadelphia on the second Mondays in March and June, the third Monday in September, and the second Monday in December, each term to continue until the succeeding term begins. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Bradford, Cameron, Carbon, Center, Judicial Districts 251 Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lackawanna, Lebanon, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northum- berland, Perry, Pike, Potter, Snyder, Sullivan, Susque- hanna, Tioga, Union, Wayne, Wyoming, and York. Terms of the district court shall be held at Scranton on the second Monday in March and the third Monday in October ; at Harrisburg on the first Mondays in May and December; at Sunbury on the second Monday in Janu- ary; and at Williamsport on the first Monday in June. The clerk of the court for the middle district shall main- tain an office in charge of himself or a deputy at Harris- burg ; and civil suits instituted at that place shall be tried there, if either party resides nearest that place of holding court, unless by consent of parties they are removed to another place for trial. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allegheny, Arm- strong, Beaver, Bedford, Blair, Butler, Cambria, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, McKean, Mercer, Somer- set, Venango, Warren, Washington, and Westmoreland. Terms of the district court shall be held at Pittsburgh on the first Monday of May and the second Monday of November, and terms of the court shall be held at Erie on the third Monday of March, and the third Monday of September. The clerk and marshal of said district shall have their principal office at Pittsburgh, and shall main- tain, by themselves or by their deputies, offices at Erie. The clerk shall place all cases in which the defendants reside in the counties of said district nearest Erie upon the trial list for trial at Erie, where the same shall be tried, unless the parties thereto stipulate that the same may be tried at Pittsburgh. Act of September 9, 1914 (38 Stat. L. 713, Supp. (1916) Fed. St. Ann. 133). 252 The Judicial Code § 104. The state of Ehode Island shall constitute one judicial district, to be known as the district of Rhode Island. Terms of the district court shall be held at Prov- idence on the fourth Tuesday in May and the third Tuesday in November. Act of Feb. 1, 1912 (37 Stat. L. 59, Supp. (1914) Fed. St. Ann. 215). § 105. The state of South Carolina is divided into two districts, to be known as the eastern and western districts of South Carolina. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Abbeville, Anderson, Cherokee, Chester, Edgefield, Fairfield, Greenville, Greenwood, Lancaster, Laurens, Newberry, Oconee, Pickens, Saluda, Spartanburg, Union, and York. Terms of the district court for the western district shall be held at Greenville on the third Tuesdays in April and October. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Aiken, Bamberg, Barnwell, Beaufort, Berkeley, Calhoun, Charleston, Chesterfield, Clarendon Colleton, Darlington, Dillon, Dorchester, Florence, Georgetown, Hampton, Horry, Kershaw, Lee, Lexington, Marion, Marlboro, Orangeburg, Richland, Sumter, and Williamsburg. Terms of the district court for the east- em district shall be held at Charleston on the first Tues- days in June and December; at Columbia on the third Tuesday in January and the first Tuesday in November, the latter term to be solely for the trial of civil eases ; and at Florence on the first Tuesday in March. The offices of the clerk of the district court shall be at Greenville and at Charleston; and the clerk shall reside in one of said cities and have a deputy in the other. By Act of March 3, 1915 (38 Stat. L. 961, Supp. (1916) Fed. St. Ann. 140) it is provided that "These terms of the district court for the eastern district shall be held at Charleston on the first Tuesdays in June and Beeember ; at Columbia on the third Tuesday in January, first Tuesday in November; at Florence, first Tuesday in March; and at Aiken on the Judicial Distbicts 253 first Tuesdays in AprU and October. Terms of the district court for the western district shall be held at Greenville and the first Tuesday in April and the first Tuesday in October; at Eock HiU, the second Tuesdays in March and September; and at Greenwood, the first Tuesdays in J'ebruary and November. The office of the clerk of the district court for the western district shall be at Greenville and the office of the clerk of the district court for the eastern district shall be at Charleston." The same act provides for a district judge, a district attorney and a marshal for each district. § 106. The state of South Dakota shall constitute one judicial district, to be known as the district of South Dakota. The territory embraced on the first day of July, nineteen hundred and ten, in the counties of Aurora, Beadle, Bon Homme, Brookings, Brule, Charles Mix, Clay, Davison, Douglas, Gregory, Hanson, Hutchinson, Kingsbury, Lake, Lincoln, McCook, Miner, Minnehaha, Moody, Sanborn, Turner, Union, and Yankton, and in the Yankton Indian reservation, shall constitute the southern division of said district; the territory embraced on the date last mentioned in the counties of Brown, Campbell, Clark, Codington, Corson, Day, Deuel, Edmunds, Grant, Hamlin, McPherson, Marshall, Roberts, Schnasse, Spink, and Walworth, and in the Sisseton and Wahpeton Indian reservation, and in that portion of the Standing Eock Indian reservation lying in South Dakota, shall consti- tute the northern division ; the territory embraced on the date last mentioned in the counties of Armstrong, Buf- falo, Dewey, Faulk, Hand, Hughes, Hyde, Jerauld, Lyman, Potter, Stanley, and Sully, and in the Cheyenne River, Lower Brule, and Crow Creek Indian reservations, shall constitute the central division; and the territory embraced on the date last mentioned in the counties of Bennett, Butte, Custer, Fall River, Harding, Lawrence, Meade, Mellette, Pennington, Perkins, Shannon, Todd, Tripp, Washabaugh, and "Washington, and in the Rose- bud and Pine Ridge Indian reservations, shall constitute the western division. Terms of the district court for the southern division shall be held at Sioux Falls on the first 254 The Judicial Code Tuesday in April and the third Tuesday in October ; for the northern division, at Aberdeen on the first Tuesday in May and the second Tuesday in November; for the central division, at Pierre on the second Tuesday in June and the first Tuesday in October; and for the western division, at Deadwood on the third Tuesday in May and the first Tuesday in September. The clerk of the district court shall maintain an oflBce in charge .of himself or a deputy at Sioux Falls, at Pierre, at Aberdeen, and at Deadwood, which shall be kept open for the transaction of the business of the court. § 107. The state of Tennessee is divided into three dis- tricts, to be known as the eastern, middle, and western districts of Tennessee. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bledsoe, Bradley, Hamilton, James, McMinn, Marion, Meigs, Polk, Ehea, and Sequatchie, which shall constitute the southern divi- sion of said district; also the territory embraced on the date last mentioned in the counties of Anderson, Blount, Campbell, Claiborne, Grainger, Jefferson, Knox, Loudon, Monroe, Morgan, Roane, Sevier, Scott, and Union, which shall constitute the northern division of said district ; also the territory embraced on the date last mentioned in the counties of Carter, Cocke, Green, Hamblen, Hancock, Hawkins, Johnson, Sullivan, Unicoi, and Washington, which shall constitute the northeastern division of said district. Terms of the district court for the southern division of said district shall be held at Chattanooga on the fourth Monday in April and the second Monday in November ; for the northern division, at Knoxville on the fourth Monday in May and the first Monday in December; and for the northeastern division, at Greeneville on the first Monday in March and the third Monday in Septem- ber. The middle district shall include the territory embraced on the first day of July, nineteen hundred and Judicial Disteicts 255 ten, in the counties of Bedford, Cannon, Cheatham, Coffee, Davidson, Dickson, Franklin, Giles, Grundy, Hickman, Humphreys, Houston, Lawrence, Lewis, Lincoln, Marshall, Maury, Montgomery, Moore, Eobert- son, Eutherford, Stewart, Sumner, Trousdale, Warren, Wayne, Williamson, and Wilson, which shall constitute the Nashville division of said district ; also the territory embraced on the date last mentioned in the counties of Clay, Cumberland, DeKalb, Fentress, Jackson, Macon, Overton, Pickett, Putnam, Smith, Van Buren, and White, which shall constitute the northeastern division of said district. Terms of the district court for the Nashville division of said district shall be held at Nashville on the second Monday in March and the fourth Monday in Sep- tember; and for the northeastern division, at Cookeville on the third Monday in April and the first Monday in November : Provided, That suitable accommodations for holding court at Cookeville shall be provided by the county or municipal authorities without expense to the United States. The western district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Dyer, Fayette, Haywood, Lauderdale, Shelby, and Tipton, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Benton, Carroll, Chester, Crockett, Decatur, Gibson, Hardeman, Hardin, Henderson, Henry, Lake, McNairy, Madison, Obion, Perry and Weakley, including the waters of the Tennessee River to low water mark on the eastern shore thereof wherever such river forms the boundary line between the western and middle districts of Tennes- see, from the north line of the state of Alabama north to the point in Henry county, Tennessee, where the south boundary line of the state of Kentucky strikes the west bank of the river, which shall constitute the eastern divi- sion of said district. Terms of the district court for the western division of said district shall be held at Memphis 256 The Judicial Code on the fourth Mondays in May and November; and for the eastern division, at Jackson on the fourth Mondays in April and October. The clerk of the court for the western district shall appoint a deputy who shall reside at Jackson, The marshal for the western district shall appoint a deputy who shall reside at Jackson. The mar- shal for the eastern district shall appoint a deputy who shall reside in Chattanooga. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Knoxville, at Chattanooga, and at Greeneville, which shall be kept open at all times for the transaction of the business of the court. Act of Aug. 20, 1912 (37 Stat. L. 314, Supp. (1914) Fed. St. ^nn. 220). § 108. The state of Texas is divided into four districts, to be known as the northern, eastern, western, and south- em districts of Texas. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Dallas, Elllis, Hunt, Johnson, Kaufman, Navarro, and Eockwell, which shall constitute the Dallas division; also the territory embraced on the date last mentioned in the counties of Archer, Baylor, Clay, Comanche, Erath, Foard, Harde- man, Hood, Jack, Palo Pinto, Parker, Tarrant, Wichita, Wilbarger, Wise, and Young, which shall constitute the Fort Worth division ; also the territory embraced on the date last mentioned in the counties of Armstrong, Bailey, Briscoe, Carson, Castro, Childress, Cochran, Collings- worth, Cottle, Crosby, Dallam, Deaf Smith, Dickens, Donley, Floyd, Gray, Hale, Hall, Hansford, Hartley, Hemphill, Hockley, Hutchinson, King, Lamb, Lipscomb, Lubbock, Moore, Motley, Ochiltree, Oldham, Parmer, Potter, Eandall, Eoberts, Sherman, Swisher, and Wheeler, which shall constitute the Amarillo division; also the territory embraced on the date last mentioned in the counties of Andrews, Borden, Callahan, Dawson, Eastland, Fisher, Gaines, Garza, Haskell, Howard, Jones, Judicial, Districts 257 Kent, Knox, Lynn, Martin, Midland, Mitchell, Nolan, Scurry, Shackelford, Stephens, Stonewall, Taylor, Terry, Throckmorton and Yoakum, which shall constitute the Abilene division ; also the territory embraced on the date last mentioned in the counties of Brown, Coke, Coleman, Concho, Crockett, Glasscock, Iron, Manard, Mills, Run- nels, Schleicher, Sterling, Sutton, Tom Green, and Upton, which shall constitute the San Angelo division of the said district. Terms of the district court for the Dallas division shall be held at Dallas on the second Monday in January and the first Monday in May; for the Fort "Worth division, at Fort "Worth on the first Monday in November and the second Monday in March; for the Amarillo division, at Amarillo on the third Monday ia. April and the fourth Monday in September; for the Abilene division, at Abilene on the first Monday in Octo- ber and the second Monday in April; and for the San Angelo division at San Angelo on the third Monday in October and the fourth Monday in April. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Dallas, at Fort Worth, at Amarillo, at Abilene, and at San Angelo, which shall be kept open at all times for the transaction of the busi- nesa of the court. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Panola, Eains, Rusk, Smith, "Van Zandt, and Wood, which shall constitute the Tyler division; also the territory embraced on the date last mentioned in the counties of Hardin, Jasper, Jefferson, Liberty, Newton, Orange, Sabine, San Augustine, Shelby, and Tyler, which shall constitute the Beaumont division; also the territory embraced on the date last mentioned in the counties of Collin, Cook, Denton, Grayson, and Montague, which shall constitute the Sherman division; also the territory embraced on the date last mentioned in the counties of Long — 17 258 The Judicial Code Camp, Cass, Harrison, Hopkins, Marion, Morris, and UpsWr, which shall constitute the Jefferson division; also the territory embraced on the date last mentioned in the counties of Delta, Fannin, Red Eiver, and Lamar, which shall constitute the Paris division; also the terri- tory embraced on the date last mentioned in the counties of IBowie, Franklin, and Titus, which shall constitute the Texarkana division. Terms of the district court for the Tyler division shall be held at Tyler on the fourth Mon- days in January and April; for the Jefferson division, at Jefferson on the first Monday in October and the third Monday in February; for the Beaumont division, at Beaumont on the third Monday in November and the first Monday in April ; for the Sherman division, at Sherman on the first Monday in January and the third Monday in May ; for the Paris division, at Paris on the third Monday in October and the first Monday in March; and for the Texarkana division at Texarkana on the third Monday in March and the first Monday in November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Sherman, at Beaumont, and at Texarkana, which shall be kept open at all times for the transaction of the business of said court. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bastrop, Blanco, Burleson, Burnet, Caldwell, Gillespie, Hays, Kimble, Lampasas, Lee, Llano, Mason, McCuUoch, San Saba, Travis, Washington, and William- son, 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, Medina, 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, Jeff Davis, Loving, Reeves, Presidio, Ward, and Winkler, which shall constitute the El Paso division ; also Judicial. Disteicts 259 the territory embraced on the date last mentioned in the counties of Bell, Bosque, Coryell, Falls, Hamilton, Free- stone, Hill, Leon, Limestone, McLennan, Milan, Robert- son, 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 con- stitute the Del Rio division. Terms of the district court for the Austin division shall be held at Austin on the fourth Monday in January and the second Monday in June; for the "Waco division 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 ter- ritory 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 consti- tute the G-alveston division; also the territory embraced on the date last mentioned, in the counties of Brazos, Colorado, Fayette; Grimes, Harris, Lavaca, 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 260 The Judicial Code counties of Bee, Calhoun, Dewitt, Goliad, Jackson, Live Oak, Eefugio, Aransas, San Patricio, and Victoria, which shall constitute the Victoria division.- Terms of the district court for the Galveston division shall be held at Galveston on the second Monday in January and the first Monday in June ; for the Houston division, at Hous- ton on the Fourth Mondays in February and September ; 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 Mon- day in May and the first Monday in December ; 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 office in charge of himself or a deputy at each of the places now designated for holding court in said district. By Act of May 29, 1912, it was provided "That the counties of Bee, Live Oak, Aransas, San Patricio, Nueces, Jim Wells, Duval, Brooks, and Willacy shall constitute a division of the southern judicial district of Texas," also that the terms of the district court for the southern district of Texas shall be held twice a year at Corpus Christi at times to be fixed by the judge of the court (37 Stat. L. 120, Supp. (1914) Fed. St. Ann. 219). By Act of Feb. 5, 1913, it was provided "That the counties of Reeves, Ward, Martin, Eeagan, Winkler, Ector, Gaines, Andrews, Upton, Mid- land, Loving, Jeff Davis, and Crane shall constitute a division of the western judicial district of Texas," and that terms of the district court for the western district shall be held twice a year at Pecos at times to be fixed by the judge (37 Stat. L. 663, Supp. (1914) Fed. St. Ann. 222). § 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 cen- tral divisions. The northern division shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Boxelder, Cache, Davis, Morgan, Eich, and Weber. The ceiltral 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 Judicial Districts 261 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 him- self or a deputy at each of the places where the court is now required to be held in the district. § 110. The state of Vermont shall constitute one judi- cial 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 Eutland on the first Tuesday in October, and at Brattleboro on the third Tuesday in December. In each year one of the stated terms of the district court may, when adjourned, be adjourned to meet at Montpelier, and one at Newport : Provided, however, That suitable rooms and accommodations shall be fur- nished for the holdings of said court and for the use of the officers of said court at Brattleboro free of expense to the Government of the United States until the public building provided for by Act of Congress shall be erected. Act of Feb. 1, 1912 (37 Stat. L. 58, Supp. (1914) Fed. St. Ann. 214). § 111. The state of Virginia is divided into two dis- tricts, to be known as the eastern and western districts of Virginia. The eastern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Accomac, Alexandria, Amelia, Brunswick, CaroUne, Charles City, Chesterfield, Cul- peper, Dinwiddle, Elizabeth City, Essex, Fairfax, Fau- quier, Gloucester, Goochland, Greensville, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Loudoun, Louisa, Lunenburg, Mathews, Mecklenburg, Middle- 262 The Judicial Code sex, Nansemond, New Kent, Norfolk, Northampton, Northumberland, Nottoway, Orange, Powhatan, Prince Edward, Prince George, Prince William, Princess Anne, Eichmond, Southampton, Spottsylvania, Stafford, Surry, Sussex, Warwick, Westmoreland, and York. Terms of the district court shall be held at Eichmond on the first Mondays in April and October; at Norfolk on the first Mondays in May and November; and at Alexandria, on the first Mondays in 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, Botetourt, Buchanan, Bucking- ham, Campbell, Carroll, Charlotte, Clarke, Craig, Cum- berland, Dickenson, Floyd, Fluvanna, Franklin, Fred- erick, Giles, Grayson, Greene, Halifax, Henry, Highland, Lee, Madison, Montgomery, Nelson, Page, Patrick, Pulaski, Pittsylvania, Eappahannock, Eoanoke, Eock- ridge, Eockingham, Eussell, Scott, Shenandoah, Smyth, Tazewell, Warren, Washington, Wise, and Wythe. Terms of the district court shall be held at Lynchburg on the Tuesdays after the second Mondays in March and September ; 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 Eoanoke on the third Monday in February and the third Monday in June; and at Big Stone Gap on the fourth Monday in January and the second Monday in August. The clerk of the court for the western district shall main- tain an office in charge of himself or a deputy at Lynch- burg, at Danville, at Charlottesville, at Eoanoke, at Abingdon, and at Big Stone Gap, which shall be kept open at all times for the transaction of the business of the court. Judicial Distkicts 263 § 112. The state of Washington is divided into two dis- tricts, to be known as the eastern and western districts of Washington. The eastern district shall include the terri- tory 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 the counties of Asotin, Garfield, Whitman, 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 noi'them division shall be held at Spokane on the first Tuesdays in April and Sep- tember; for the southern division, at Walla Walla on the first Tuesdays in June and December, and at North 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 constitute the northern divi- sion; also the territory embraced on the date last men- tioned in the counties of Pierce, Mason, Thurston, Chehalis, Pacific, Lewis, Wahkiakum, Cowlitz, Clarke, and Skamania, 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 Bellingham on the first Tuesdays in April and October; at Seattle on the first Tuesdays in May and November ; and for the southern division, at Tacoma on the first Tuesdays in February and July. The clerks of courts for the eastern and western districts shall main- 264 The Judicial Code tain 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. § 113. The state of "West Virginia is divided into two districts, to be known as the northern and southern dis- tricts of West Virginia. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the coimties of Hancock, Brooke, Ohio, Marshall, Tyler, Pleasants, "Wood, Wirt, Ritchie, Doddridge, Wetzel, Monongalia, Marion, Harri- son, Lewis, Gilmer, Calhoun, Upshur, Barbour, 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 Martinsburg, the first Tuesday of April and the third Tuesday of Sep- tember ; at Clarksburg, the second Tuesday of April and the first Tuesday of October ; at Wheeling, the first Tues- day of May and the third Tuesday of October ; at Philippi, the fourth Tuesday of May and second Tuesday of Novem- ber; at Elkins on the first Tuesday in July and the first Tuesday in December; and at Parkersburg, the second Tuesday of January and second Tuesday of June : Pro- vided, 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 district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Jackson, Eoane, Clay, Braxton, Webster, Nicholas, Pocahontas, Greenbrier, Fayette, Boone, Kanawha, Putnam, Mason, Cabell, Wayne, Lincoln, Logan, Mingo, Raleigh, Wyoming, McDowell, Mercer, Summers and Monroe, with the waters thereof. Terms of the district court for the southern district shall be held at Charleston on the first Tuesday of June and the third Tuesday of November ; at Huntington, on the first Tues- Judicial Districts 265 day of April and the first Tuesday after the third Mon- day of September; at Bluefield on the first Tuesday of May and the third Tuesday of October; at Williamson on the first Tuesday of October ; at Webster Springs on the first Tuesday of September; and at Lewisburg on the second Tuesday of July: Provided, That a place for holding court at Webster Springs shall be furnished free of cost to the United States: And provided further, That a place for holding court at Williamson shall be furnished free of cost to the United States by Miago County until other provisions is made therefor by law. Act of Aug. 22, 1914 (38 Stat. L. 702, Supp. (1916) Fed. St. Ann. 131). See also Act of March 23, 1912 (37 Stat. L. 76). § 114. The state of Wisconsin is divided into two dis- tricts, to be known as the eastern and western districts of Wisconsin. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Brown, Calumet, Dodge, Door, Florence, Fond du Lac, Forest, Green Lake, Kenosha, Kewaunee, Langlade, Manitowoc, Marinette, Marquette, Milwaukee, Oconto, Outagamie, Ozaukee, Eacine, Shawano, Sheboygan, Walworth, Washington, Waukesha, Waupaca, Waushara and Winnebago. Terms of the district court for said district shall be held at Milwaukee on the first Mondays in January and October; at Oshkosh on the second Tuesday in June ; and at Green Bay on the first Tuesday in April. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Ashland, Barron, Bayfield, Buffalo, Burnett, Chippewa, Clark, Columbia, Crawford, Dane, Dunn, Douglas, Eau Claire, Grant, Green, Iowa, Iron, Jackson, Jefferson, Juneau, La Crosse, Lafayette, Lincoln, Marathon, Mon- roe, Oneida, Pepin, Pierce, Polk, Portage, Price, Eich- land, Eock, Eusk, Saint Croix, Sauk Sawyer, Taylor, Trempealeau, Vernon, Vilas, Washburn and Wood. 266 The Judicial Code Terms of the district court for said district shall be held at Madison on the first Tuesday in December; at Eau Claire on the first Tuesday in June ; at La Crosse on the third Tuesday in September; and at Superior on the fourth Tuesday in January and the second Tuesday in July. The district court for each of said districts shall be open at all times for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction, so far as the same can be done without a jury. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Madison, at La Crosse, and at Superior, which shall be kept open at all times for the transaction of the business of the court. The marshal for the western district shall appoint a deputy marshal who shall reside and keep his office at Superior. All writs and other process, except criminal warrants, issued at Superior, may be made returnable at Superior ; and the clerk at that place shall keep in his office the original records of all actions, prosecutions and special proceedings so commenced and pending therein. Criminal warrants may be returned at any place within the district where court is held. Whenever warrants issued at Superior shall be returned at any other place, the clerk of the court wherein the warrant is returned shall certify the same, under the seal of the court, to- gether with the plea and other proceedings had thereon, and the determination of the court upon such plea or proceedings, with all papers and 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, un- less by consent of the parties, or upon the order of the court, they are transferred to another place for trial. § 115. The state of "Wyoming and the Yellowstone National Park shall constitute one judicial district, to be Judicial Disibicts 267 known as the district of Wyoming. Terms of the district court for said district shall be held at Cheyenne on the second Mondays in May and November ; at Evanston on the second Tuesday in July; and at Lander on the first Monday in October; and the said court shall hold one session annually at Sheridan, and in said national park, on such dates as the court may order. The marshal and clerk of the said court shall each, respectively, appoint at least one deputy to reside at Evanston, and one to reside at Lander, unless he himself shall reside there, and shall also maintain an office at each of those places : Provided, That until a public building is provided at Lander, suit- able 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. CHAPTER VI CIRCUIT COUETS OF APPEALS §116. Circuits. § 117. Circuit courts of appeals. § 118. Circuit judges. § 119. Allotment of justice to the circuits. § 120. Chief justice and associate justices of supreme court, and district judges, may sit in circuit 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. Eooms for court, how provided. § 128. Jurisdiction — ^When judgment final. § 129. Appeals in proceedings for injunctions and receivers. § 130. Appellate and supervisory jurisdiction 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 certify questions to the supreme court. § 135. Appeals and writs of error from Alaska — Where heard. § 116. There shall be nine judicial circuits of the United States, constituted as follows : First. The first circuit shall include the districts of Rhode Island, Massachusetts, New Hampshire, Maine and Porto Rico. 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 268 ClBCXJIT COUKTS OP APPEALS 269 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 dis- tricts of Indiana, Illinois and Wisconsin. Eighth. The eighth circuit shall include the districts of Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkan- sas, Colorado, Wyoming, North Dakota, South Dakota, Utah and Oklahoma. Ninth. The ninth circuit shall include the districts of California, Oregon, Nevada, Washington, Idaho, Mon- tana and Hawaii. See E. 8. § 604; 4 Ted. St. Ann. 59. Porto Eico was added to the first circuit by Act of Jan. 28, 1915 (38 Stat. L. 803). § 117. There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record, with appellate jurisdiction, as hereinafter limited and established. For the text of the Act of March 3, 1891, establishing the circuit courts of appeals, and substantially re-enacted in this chapter, see 26 Stat. L. 826; 4 Fed. St. Ann. 395; 90 Fed. XXIX; 150 Fed. V. § 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 cir- cuits, three circuit judges, to be appointed by the Presi- dent, 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. The circuit judges in each circuit shall be judges of the circuit court of appeals in that circuit, and it shall be the duty 270 The Judicial Code of each circuit judge in each circuit to sit as one of the judges of the circuit court of appeals in that circuit from time to time according to law : Provided, That nothing in this section shall be construed to prevent any circuit judge holding district court or serving in the commerce court, or otherwise, as provided for and authorized in other sections of this Act. Act of Jan. 13, 1912 (37 Stat. L. 52, Supp. (1914) Ted. St. Ann. 213). § 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 convenient by reason of the alteration of any circuit, or of the new appointment of a chief justice or associate justice, or otherwise. If a new allotment becomes necessary at any other time than during a term, it shall be made by the chief justice, and shall be binding until the next term and until a new allotment by the court. 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 cir'cuit to such circuit. See E. S. § 606, 4 Fed. St. Ann. 238. § 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 ag judges of the circuit court of appeals within their respective circuits. In case the chief justice or an asso- ciate justice of the supreme court shall attend at any session of the circuit court of appeals, he shall preside. In the absence of such chief justice, or associate justice, the circuit judges in attendance upon the court shall preside in the order of the seniority of their respective commissions. In case the full court at any time shall not be made up by the attendance of the chief justice or the ClECXJIT COUETS OF ApPEALS 271 associate justice, and the circuit judges, one or more district judges within the circuit shall sit in the court according to such order or provision among the district judges as either by general or particular 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 appeals. § 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 gen- erally to any circuit, shall be understood to include such justice. B. S. § 605, 4 Fed. St. Ann. 238. § 122. Each of said circuit courts of appeals shall pre- scribe the form and style of its seal, and the form of writs and other process and procedure as may be conformable to the exercise of its jurisdiction; and shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as con- ferred by law. § 123. The United States marshals in and for the sev- eral districts of said courts shall be the marshals of said circuit courts of appeals, and shall exercise the same powers and perform the same duties, under the regula- tions of the court, as are exercised and performed by the marshal of the Supreme Court of the United States, so far as the same may be applicable. § 124. Each court shall appoint a clerk, who shall exer- cise the same powers and perform the same duties in regard to all matters within its jurisdiction, as are exer- 272 The Judiciax, Code cised and performed by the clerk of tlie supreme court, so far as the same may be applicable. § 125. The clerk of the circuit court of appeals for each circuit may, with the approval of the court, appoint such number of deputy clerks as the court may deem necessary. Such deputies may be removed at the pleasure of the clerk appointing them, with the approval of the court. In case of the death of the clerk his deputy or deputies shall, unless removed by the court, continue in office and perform the duties of the clerk in his name until a clerk is appointed and has qualified; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable, and his executor or administrator shall have such remedy for such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. See E. S. § 558, 4 Fed. St. Ann. 74. § 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 Eichmond ; 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 siaid courts, respectively, may from time to time designate : Provided, That terms shall be held in Atlanta on the first CiEcuiT Courts of Appeals 273 Monday in October, in Fort Worth on the first Monday in November, in Montgomery on the third Monday in Octo- ber, in Denver or in Cheyenne on the first Monday in September, and in Saint Paul on the first Monday in May. All appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the district courts of the United States in the state of Georgia, in the state of Texas and in the state of Ala- bama, 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 hearing may be heard and disposed of wherever said court may be sitting. All appeals, writs of errors, and other appellate proceedings which may hereafter be taken or prosecuted from the Dis- trict Court of the United States at Beaumont, Texas, to the circuit court of appeals for the fifth circuit, shall be heard and disposed of by the said circuit court of appeals at the terms of court held at New Orleans: Provided, That nothing herein shall prevent the court from hearing appeals or writs of error wherever the said courts shall sit, in cases of 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 appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the District Courts of the United States in the states of Colo- rado, Utah and Wyoming, and the Supreme Court of the territory of New Mexico to the circuit court of appeals for the eighth judicial circuit, shall be heard and disposed of by said court at the terms held either in Denver or in Cheyenne, except that any case arising in any of said states or territory may, by consent of all the parties, be Long — 18 S74 The Judicial Code heard and disposed of at a term of said court other than the one held in Denver or Cheyenne. § 127. The marshals for the several districts in which said circuit courts of 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 the business of said courts, and pay all incidental expenses of said court, in- cluding criers, bailiffs and messengers : Provided, That in case proper rooms can not be provided in such build- ings, 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. § 128. The circuit courts of appeals shall exercise ap- pellate jurisdiction to review by appeal or writ of error final decisions in the district courts, including the United States District Court for Hawaii, and the United States District Court for Porto Eico, in all cases 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 trade-mark laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in admiralty cases. Act of Jan. 28, 1915 (Stat. L. 804, Supp. (1916) Ped. St. Ann. 136). § 129. Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction CiBCUiT Courts of Appeals 275 shall be granted, continued, refused or dissolved by an interlocutory order or decree, or an application to dis- solve 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 refus- ing to dissolve an injunction, or appointing a receiver, to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the supreme court : Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take 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 pend- ency of such appeal : Provided, however, That the court below may, in its discretion, require as a condition of the appeal an additional bond. This section, is an amendment of section 7 of the act of 1891, which had previously been amended in 1895 (Act Feb. 18, 1895, c. 96, 28 Stat. L. 666), and in 1900 (Act June 6, 1900, c. 803, 31 Stat. L. 660, 4 Fed. St. Ann. 423), and again in 1906 (Act AprU 14, 1906, §7, 34 Stat. L. 116, Supp. (1909) Fed. St. Ann. 291). § 130. The circuit courts of appeals shall have the ap- pellate 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. As to the finality of decisions of the circuit court of appeals in bank- ruptcy cases, see Act of" Jan. 28, 1915, sec. 4 (38 Stat. L. 804). § 131. The circuit court of appeals for the ninth district is empowered to hear and determine writs of error and appeals from the United States Court for China, is pro- vided in the act entitled "An Act creating a United States 276 The Judiciax, Code court for China and prescribing the jurisdiction thereof," approved June thirtieth, nineteen hundred and six. § 132, Any judge of a circuit court of appeals, in re- spect 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. § 133. The circuit courts of appeals, in cases in which their judgments and decrees are made final by this title, shall have appellate jurisdiction, by writ of error or appeal, to review the judgments, orders and decrees of the supreme courts of Arizona and New Mexico, as by this title they 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. § 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 hun- dred 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 de- crees 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 ques- tion or proposition to the supreme court, and thereupon the supreme court shall give its instruction upon the Circuit Couets of Appeals 277 question or proposition certified to it, and its instructions shall be binding upon the circuit court of appeals. § 135. All appeals, and writs of error, and other cases, coming from the district court for the district of Alaska to the circuit court of appeals for the ninth circuit, shall be entered upon the docket and heard at San Francisco, California, or at Portland, Oregon, or at Seattle, Wash- ington, as the trial court before whom the case was tried below shall fix and determine: Provided, That at any- time before the hearing of any appeal, writ of error, or other case, the parties thereto, through their respective 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 VII THE COUET OF CLAIMS i 136. Appointment, oath, and salary of judges. i 137. Seal. i 138. Session — Quorum. i 139. Officers of the court. i 140. Salaries of officers. il41. Clerk's bond. i 142. Contingent fund. i 143. Reports to Congress — Copies for departments, etc. i 144. Members of congress not to practice in the court. i 145. Jurisdiction. Par. 1. Claims against the United States. 2. Set-offs. 3. Disbursing officers. i 146. Judgments for set-ofE of counterclaims — How enforced. i 147. Decree on accounts of disbursing officers. ) 148. Claims referred by departments. ) 149. Procedure in cases transpiitted by departments. j 150. Judgments in cases transmitted by departments — How paid. j 151. Either house of congress may refer certain claims to court. j 152. Costs may be allowed prevailing party. ! 153. Claims growing out of treaties not cognizable therein. \ 154. Claims pending in other courts. ; 155. Aliens. 5 156. All claims to be filed within six years — ^Exceptions. 1 157. Rules of practice — May punish contempts. 1 158. Oaths and acknowledgments. 1 159. Petitions and verification. ] 160. Petition dismissed, when. 1 161. Burden of proof and evidence as to loyalty. § 162. Claims for proceeds arising from sales of abandoned property. § 163. Commissioners to take testimony. § 164. Power to call upon departments for information. § 165. "When testimony not to be taken. § 166. Examination of claimant. § 167. Testimony — ^Where taken. § 168. Witnesses before commissioners. § 169. Cross-examinations. § 170. Witnesses — How sworn. 278 The Cotjbt of Claims 279 § 171. Pees of commissioners, by whom paid. § 172. Claims forfeited for fraud. § 173. Claims under act of June 16, 1874. § 174. New trial on motion of claimant. § 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 ascertained. § 181. Appeals. § 182. Appeals in Indian cases. § 183. Attorney general 's report to congress. § 184. Loyalty a jurisdictional fact in certain cases. § 185. Attorney general to appear for the defense. § 186. Persons not to be excluded as witnesses on account of color or bC cause of interest — Plaintiff may be witness for government. § 187. Eeports of court to congress. § 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 discharge faithfully the duties of his office. The chief justice shall be entitled to receive an annuad salary of six thousand five hundred dollars, and each of the other judges an annual salary of six thou- sand dollars, payable monthly, from the treasury. See E. S. § 1049; 2 Fed. St. Ann. 53. § 137. The court of claims shall have a seal, with such device as it may order. E. S. § 1050, 2 Fed. St. Ann. 53. § 138. The court of claims shall hold one annual ses- sion 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 280 The Judicial Code constitute a quorum, and may hold a court for the trans- action of business: Provided, That the concurrence of three judges shall be necessary to the decision of any case. E. S. § 1052; Act of June 23, 1874, c. 468, 18 Stat. L. 252, 2 Fed. St. Ann. 54. § 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 mis- conduct or incapacity they may be removed by it from office ; but the court shall report such removals, with the cause thereof, to Congress, if in session, or if not, at the next session. The bailiff shall hold his office for a term of four years, unless sooner removed by the court for cause. E. S. §1053, 2 Fed. St. Ann. 54. § 140. The salary of the chief clerk shall be three thou- sand 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. See E. S. § 1054, 2 Fed. St. Ann. 54. § 141. The chief clerk shall give bond to the United States in such amount, in such form, and with such secur- ity as shall be approved by the secretary of the treasury. E. S. § 1055, 2 Fed. St. Ann. 54. § 142. The said clerk shall have authority when he has given bond as provided in the preceding section, to dis- burse, under the direction of the court, the contingent fund which may from time to time be appropriated for its use ; and his accounts shall be settled by the proper ac- The Court of Claims 281 counting officers of the treasury in tlie same way as the accounts of other disbursing agents of the Government are settled. E. S. § 1056, 2 Fed. St. Ann. 54. § 143. On the first day of every regular session of Con- gress, the clerk of the court of claims shall transmit to Congress a full and complete statement of all the judg- ments 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 ren- dered. At the end of every term of the court he shall transmit a copy of its decisions to the heads of depart- ments ; to the solicitor, the comptroller, and the auditors of the Treasury; to the commission of the General Land Office and of Indian Affairs ; to the chiefs of bureaus, and to other officers charged with the adjustment of claims against the United States. E. S. § 1057, 2 Fed. St. Ann. 55. § 144. Whoever, being elected or appointed a senator, member of, or delegate to Congress, or a resident com- missioner, shall, after his election or appointment, and either before or after he has qualified, and during his con- tinuance 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. See E. S. § 1058, 2 Fed. St. Ann. 55. § 145. The court of claims shall have jurisdiction to hear and determine the following matters : First. All claims (except for pensions) founded upon the Constitution of the United States or any law of Congress, upon any regulation of an executive depart- ment, upon any contract, express or implied, with the 282 The Judicial Code Governmept of the United States, or for damages, liqui- dated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable : Provided, however, That nothing in this section shall be construed as giving to the said court jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as "war claims," or to hear and determine other claims, which prior to March third, eighteen hundred and eighty-seven, had been rejected or reported on adversely by any court, department, or com- mission authorized to hear and determine the same. Second. All set-offs, counterclaims', claims for dam- ages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Gov- ernment in said court: Provided, That no suit against the Government of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed under this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the 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 loss by cap- ture or otherwise, while in the line of his duty, of Govern- ment funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible. See E. S. § 1059, 2 Fed. St. Ann. 55. As to the jurisdiction of the court of claims of claims for the use by the United States of patented inventions, see Act of June 25, 1910, c. 423, 36 Stat. L. 851. The Coubt of Claims 283 § 146. Upon the trial of any cause in which any set-off, counterclaim, claim for damages, or other demand is set up on the part of the 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 office of any district court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such court are enforced. E. S. § 1061, 2 Fed. St. Ann. 61. § 147. Whenever the court of claims ascertains the facts of any loss by any paymaster, quartermaster, com- missary of subsiste^jice, or other disbursing officer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the Treasury shall allow to such officer the amount so decreed as a credit in the settlement of his accounts. E. S. § 1062, 2 Fed. St. Ann. 61. § 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 find- ings to the department by which it was transmitted for its guidance and action: Provided, however, That if it 284 The Judicial Code shall have been transmitted with the consent of the claim- ant, or if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, in the latter case giving to either party such further oppor- tunity for hearing as in its judgment justice shall require, and shall report its findings therein to the department by which the same was referred to said court. The secretary of the Treasury may, upon the certificate of any auditor, or of the comptroller of the Treasury, direct any claim or matter, of which, by reason of the subject matter or character, the said court might under existing laws, take jurisdiction on the voluntary action of the claimant, to be transmitted, with all the vouchers, papers, documents and proofs pertaining thereto, to the said court for trial and adjudication. See E. S. § 1063, 2 Fed. St. Ann. 63. § 149. All cases transmitted by the 'head of any depart- ment, or upon the certificate of any auditor, or of the comptroller of the Treasury, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the court of claims, and shall, in all respects, be subject to the same rules and regulations. E. S. § 1064, 2 Fed. St. Ann. 63. § 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 appropriation applicable to the case, if any such there be; and where no such appropriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court. E. S. § 1065, 2 Fed. St. Ann. 64. § 151. Whenever any bill, except for a pension, is pend- ing in either House of Congress providing for the pa,y- The Coxjbt of Claims 285 ment 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 investigation 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 limitation should be removed or which shall be claimed to excuse the claimant for not having resorted to any established legal remedy, together with such conclusions as shall be sufficient to inform Congress of the nature and character of the demand, either as a claim, legal or equitable, or as a gratuity against the United States, and the amount, if any, legally or equitably due from the United States to the claimant : Provided, however, That if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter, the subject matter of the bill is such that it has juris- diction to render judgment or decree thereon, it shall proceed to do so, giving to either party such further opportunity for hearing as in its judgment justice shall require, and it shall report its proceedings therein to the House of Congress by which the same was referred to said court. See Act of March 3, 1887, c. 359, § 14, 24 Stat. L. 507, 2 Fed. St. Ann. 87. § 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, how- ever, shall include only what is actually incurred for 286 The Judiciax. Code witnesses, and for summoning the same, and fees paid to the clerk of the court. Aet of March 3, 1887, c. 359, § 15, 24 Stat. L. 508, 2 Ted. St. Ann. 88. § 153. The jurisdiction of the said court shall not ex- tend 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 stipula- tion entered into with foreign nations or with the Indian tribes. . R. S. § 1066, 2 Fed. St. Ann. 64. § 154. No person shall file or prosecute in the court of claims, or in the supreme court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or im- mediately, under the authority of the United States. E. S. § 1067, 2 Fed. St. Ann. 64. § 155. Aliens who are citizens or subjects of any gov- ernment which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the court of claims, whereof such court, by reason of their subject matter and char- acter, might take jurisdiction. K. S. § 1068, 2 Fed. St. Ann. 64. § 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 Eepresentatives, as provided by law, within six years after the claim first accrues: Provided, That the claims of married women, first ao- The Court of Claims 287 crued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in 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. E. S. § 1069, 2 Fed. St. Ann. 65. § 157. The said court shall have power to establish rules for its government and for the regulation of prac- tice therein, and it may punish for contempt in the manner prescribed by the common law, may appoint commissioners, and may exercise such powers as are necessary to carry into effect the powers granted to it by law. E. 8. § 1070, 2 Fed. St. Ann. 67. § 158. The judges and clerks of said court may admin- ister oaths and affirmations, take acknowledgments of instruments in writing, and give certificates of the same. E. S. § 1071, 2 Fed. St. Ann. 67. § 159. The claimant shall in all cases fully set forth in his petition the claim, the action thereon in Congress or by any of the departments, if such action has been had, what persons are owners thereof or interested therein, when and upon what consideration such persons became so interested; that no assignment or transfer of said claim or of any part thereof or interest therein has been made, except as stated in the petition ; that said claimant is justly entitled to the amount therein claimed from the United States after allowing all just credits and offsets ; that the claimant and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to the Government 288 The Judicial Code of the United States, and, whether a citizen or not, has not in any way voluntarily aided, abetted, or given encour- agement to rebellion against the said Government, and that he believes the facts as stated in the said petition to be true. TJie said petition shall be verified by the affida- vit of the claimant, his agent or attorney. E. S. § 1072, 2 Fed. St. Ann. 67. § 160. The said allegations as to true allegiance and voluntary aiding, abetting, or giving encouragement to rebellion against the Government may be traversed by the Government, and if on the trial such issues shall be decided against the claimant, his petition shall 'be dismissed. E. S. § 1073, 2 Fed. St. Ann. 68. § 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 asserting 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. E. S. §1074, 2 Fed. St. Ann. 68 (omitting term "rebellion"). § 162. The court of claims shall have jurisdiction to hear and determine the claims of those whose property was taken subsequent to June the first, eighteen hundred and sixty-five, under the provisions of the Act of Congress approved March twelfth, eighteen hundred and sixty- three, entitled "An Act to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States," and acts amendatory thereof where the property so taken was sold and the net proceeds thereof were placed in the The Couet of Claims 289 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 jurisdic- tion is given to said court to adjudge said claims, any statutes of limitations to the contrary notwithstanding. See R. S. § 1059, 2 Fed. St. Ann. 60. § 163. The court of claims shall have power to appoint commissioners to take testimony to be used in the investi- gation 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 testimony, whether taken at the instance of the claimant or of the United States. E. S. § 1075, 2 Fed. St. Ann. 68. § 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 reports made by the committees of each House of Congress, when deemed necessary in the prosecution of its business. But the head of any department may refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injurious to the public interest. E. S. § 1076, 2 Fed. St. Ann. 69. § 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. See E. S. § 1077, 2 Fed. St. Ann. 69. § 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 claim- ant in such case to appear, upon reasonable notice, before any commissioner of the court and be examined on oath Long — 19 290 The Judicial Code 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, fails to appear, or refuses to testify or answer fully as to all matters within his knowl- edge material to the issue, the court may, in its discretion, order that the said cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises. E. S. § 1080, 2 Fed. St. Ann. 70. § 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. E. S. § 1081, 2 Fed. St. Ann. 70. § 168. The court of claims may issue subpoenas to re- quire the attendance of witnesses in order to be examined before any person commissioned to take testimony there- in. Such subpoenas shall have the same force as if issued from a district court, and compliance therewith shall be compelled under such rules and orders as the court shall establish. E. S. § 1082, 2 Fed. St. Ann. 70. § 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 wit- nesses, under such regulations as said court shall prescribe ; and like opportunity shall be afforded the claimant, in cases where testimony is taken on behalf of the United States, under like regulations. E. S. § 1083, 2 Fed. St. Ann. 71. The Couet of Claims 291 § 170. The commissioner taking testimony to be used in the court of claims shall administer an oath or affirmation to the witnesses brought before him for examination. E. S. § 1084, 2 Fed. St. Ann. 71. § 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 contingent fund provided for the court of claims, or other appropria- tion made by Congress for that purpose. E. S. § 1085, 2 Ted. St. Ann. 71. § 172. Any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment or allowance of any claim or of any part of any claim against the United States shall, ipso facto, forfeit the same to the Government; and it shall be the duty of the court of claims, in such cases, to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judg- ment that such claim is forfeited to the Government, and that the claimant be forever barred from prosecuting the same. E. S. § 1086, 2 Fed. St. Ann. 71. § 173. No claim shall be allowed by the accounting offi- cers 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 will- fully, 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 Con- gress, or to any department or court, in support thereof. See Act of April 30, 1878, c. 77, § 2, 20 Stat. L. 524, 2 Fed. St. Ann. 19. 292 The Judicial Code § 174. When judgment is rendered against any claim- ant, the court may grant a new trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial. E. S. § 1087, 2 Fed. St. Ann. 71. § 175. The court of claims, at any time while any claim is pending before it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion, on behalf of the United States, grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong or injustice in the prem- ises has been done to the United States; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law. E. S. § 1088, 2 Fed. St. Ann. 72. § 176. There shall be taxed against the losing party in each and every cause pending in the court of claims the cost of printing the record in such case, which shall be collected, except when the judgment is against the United States, by the clerk of said court and paid into the Treasury of the United States. See Act of March 3, 1877, c. 105, 19 Stat. L. 344, 2 Fed. St. Ann. 293. See, post, § 254. § 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 stipu- lating for the payment of interest. E. S. § 1091, 2 Fed. St. Ann. 73. § 178. The payment of the amount due by any judgment of the court of claims, and of any interest thereon allowed by law, as provided by law, shall be a full discharge to the United States of all claim and demand touching any of the matters involved in the controversy. See E. S. § 1092, 2 Fed. St. Ann. 74. The Couet of Claims 293 § 179. Any final judgment against the claimant on any claim prosecuted as provided in this chapter shall forever bar any further claim or demand against the United States arising out of the matters involved in the con- troversy. E. S. § 1093, 2 Fed. St. Ann. 74. § 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 there- of, or by virtue of any contract therewith, or that he is the guarantor, or surety, or personal representative of any officer or agent or contractor so indebted, or that he or the person for whom he is such surety, guarantor, or personal representative has held any office or agency under the United States, or entered into any contract therewith, under which it may be or has been claimed that an indebtedness to the United States has 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 jus- tice 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 294 The Judicial Code STicli obligation. An action shall accrue to the United States against such principal, or surety, or representa- tive 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. See Tucker Act of March 3, 1887, c. 359, § 3, 24 Stat. L. 505, 2 Fed. St. Ann. 83. § 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. See Act of March 3. 1887, c. 359, § 9, 24 Stat. L. 507, 2 Fed. St. Ann. 85. § 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 con- ferred 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. See Act of March 3, 1891, c. 538, § 10, 26 Stat. L. 854, 2 Fed. St. Ann. 100. § 183. The attorney general shall report to Congress, at the beginning of each regular session, the suits under section 180, in which a final judgment or decree has been The Couet op Claims 295 rendered, giving the date of each and a statement of the costs taxed in each case. See Act of March 3, 1891, c. 538, § 8, 26 Stat. L. 853, 2 Fed. St. Ann. 99. § 184. In any case of a claim for supplies or stores taken by or furnished to any part of the military or naval forces of the United States for their use during the late civil war, the petition shall aver that the person who furnished such supplies or stores, or from whom such supplies or stores were taken, did not give any aid or comfort to said rebellion, but was throughout that war loyal to the Government of the United States, and the fact of such loyalty shall be a jurisdictional fact; and unless the said court shall, on a preliminary inquiry, find that the person who furnished such supplies or stores, or from whom the same were taken as aforesaid, was loyal to the Government of the United States throughout said war, the court shall not have jurisdiction of such cause, and the same shall, without further proceedings, be dismissed. Bowman Act of March 3, 1883, c. 116, §4, 22 Stat. L. 485, 2 Fed. St. Ann. 79 (term "rebellion" omitted except in one instance). § 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 required to defend the United States in said court. Act of March 3, 1883, c. 116, § 5, 22 Stat. L. 486, 2 Fed. St. Ann. 79. § 186. No person shall be excluded as a witness in the court of claims on account of color or because he or she is a party to or interested in the cause or proceeding; and 296 The Judicial Code any plaintiff or party in interest may be examined as a witness on the part of the Government. This section is a combination of E. S. § 1078 (2 Fed. St. Ann. 69), and S 6 of the Bowman Act (2 Fed. St. Ann. 79), and § 8 of the Tucker Act (2 Fed. St. Ann. 85). Act of Feb. 5, 1912 (37 Stat. L. 61, Supp. (1914) Fed. St. Ann. 217). § 187. Reports of the court of claims to Congress, under sections one hundred and forty-eight and one hun- dred and fifty-one, if not finally acted upon during the session at which they are reported, shall be continued from session to session and from Congress to Congress until the same shall be finally acted upon. See Act of March 3, 1887, c. 116, § 7, 22 Stat. L. 486, 2 Fed. St. Ann. 79. CHAPTER Vni THE COURT OF CUSTOMS APPEALS § 188. Court of Customs Appeals — Appointment and salary of judges — Quorum — Circuit and district 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 — Appointment, salary, and duties. § 191. Clerk of the court — Appointment, salary, and duties. § 192. Assistant clerk, stenographic clerks, and reporter — Appointment, salary, and duties. § 193. Eooms for holding court to be provided — ^Bailiffs and messengers. § 194: To be a court of record — To prescribe form and style of seal, and establish rules and regulations — May affirm, modify, or reverse and remand case, etc. § 195. Pinal decisions of Board of General Appraisers to be reviewed only by Customs Court. § 196. Other courts deprived of jurisdiction in customs cases — Pending cases excepted. § 197. Transfer to Customs Court of pending cases — Completion of testi- mony. § 198. Appeals from Board of General Appraisers — Time within which to be taken — Eecord to be transmitted to customs court. § 199. Eecords filed in Customs Court to be at once placed on calendar — Calendar to be called every sixty days. § 188. There shall be a United States court of customs appeals, which shall consist of a presiding judge and four associate judges, each of whom shall be appointed by the President, by and with the advice and consent of the Senate, and shall receive a salary of seven thousand dollars a year. The presiding judge shall be so desig- nated 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 com- missions. Any three members of said court shall consti- tute a quorum, and the concurrence of three members 297 298 The Judicial Code shall be necessary to any decision thereof. In case of a vacancy or of the temporary inability or disqualification, for any reason, of one or two of the judges of said court, the President may, upon the request of the presiding judge of said court, designate any qualified United States circuit or district judge or judges to act in his or their place; and such circuit or district judges shall be duly qualified to so act. This chapter is a re-enactment, with changes, of the Act of August 5, 1909, establishing the Court of Customs Appeals. Act of Aug. 5, 1909, e. 6, i§ 28-30, 36 Stat. L. 105, Supp. (1909) Fed. St. Aon. 821. § 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 incurred for travel and attendance, and the actual and necessary expenses of one stenographic clerk who may accompany him ; and such payments shall be allowed the marshal in the settlement of his accounts with the United States. § 190. Said court shall have the services of a marshal, with the same duties and powers, under the regulations of the court, as are now 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 Columbia 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 mar- The Couet of Customs Appeals 299 shals 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, period- icals, and stationery, as may be necessary for the use of said court; and such expenditures shall be allowed and paid by the secretary of the treasury upon claim duly made and approved by said presiding judge. § 191. The court shall appoint a clerk, whose office shaU 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 shall be in full payment for all service rendered by such clerk; and all fees of any kind whatever, and all costs shall be by him turned into the United States treas- ury. Said clerk shall not be appointed by the court or any judge thereof as a commissioner, master, receiver, or referee. The costs and fees in the said court shall be fixed and established by said court in a table of fees to be adopted and approved by the supreme court of the United States within four months after the organization of said court : Provided,, That the costs and fees so fixed shall not, with respect to any item, exceed the costs and fees charged in the supreme court of the United States ; and the same shall be expended, accounted for, and paid over to the treasury of the United States. § 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 thou- sand six hundred dollars per annum each, one steno- graphic reporter at a salary of two thousand five hundred 300 The Judicial Code dollars 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 office during the pleasure of and per- form such duties as are assigned them by the court. Said reporter 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 of said court, at least once a year, reports of said decisions rendered to that date, constituting a vol- ume, 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. § 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. § 194. The said court of customs appeals shall be a court of record, with jurisdiction as in this chapter estab- lished and limited. It shall prescribe the form and style of its seal, and the form of its writs and other process and The Couet of Customs Appeals 301 procedure, and exercise sucli powers conferred by law as may be comformable and necessary to the exercise of its jurisdiction. It shall have power to establish all rules and regulations for the conduct of the business of the court, and as may be needful for the uniformity of deci- sions within its jurisdiction as conferred by law. It shall have power to review any decision or matter within its jurisdiction, and may affirm, modify, or reverse the same and remand the case with such orders as may seem to it proper in the premises, which shall be executed accordingly. § 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 con- struction of the law and the facts respecting the classifica- tion 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 appealable questions as to the laws and regulations governing the collections of the customs revenues; and the judgments and decrees of said court of customs appeals shall be final in all such cases : Provided, however, That in any case in which the judgment or decree of the court of cus- toms appeals is made final by the provisions of this title, it shall be competent for the supreme court, upon the petition of either party, filed within sixty days next after the issue by the court of customs appeals of its mandate upon decision, in any case in which there is drawn in question the construction of the Constitution of the United States, or any part thereof, or any treaty made pursuant thereto, or in any other case when the Attorney General of the United States shall, before the decision of the court of customs appeals is rendered, file with the court a certificate to the effect that the case is of such 302 The Judicial Code importance as to render expedient its re"^iew by the supreme court, to require, by certiorari or otherwise, 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: And provided further, That this Act shall not apply to any case involv- ing only the construction of section one, or any portion thereof, of an Act entitled "An Act to provide revenue, equalize duties, and encourage the industries of the United States, and for other purposes," approved August 5, 1909, nor to any case involving the construction of section two of an Act entitled "An Act to promote recip- rocal trade relations with the Dominion of Canada, and for other purposes," approved July 26, 1911. Act of Aug. 22, 1914 (38 Stat. L. 703, Supp. (1916) Fed. St. Ann. 132). § 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 jurisdiction to hear and deter- mine all customs cases which have heretofore been certi- fied to said court from the United States circuit courts of appeals on applications for writs of certiorari or other- wise, nor to review by writ of certiorari any customs case heretofore decided or now pending and hereafter decided by any circuit court of appeals, provided application for said writ be made within six months after August 5, 1909 : Provided further, That all customs cases decided by a The Court of Customs Appeals 303 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 there- tofore submitted for decision in said courts and remain- ing undecided may be reviewed on appeal at the instance 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 order, judgment, or decrees sought to be reviewed. § 197. Immediately upon the organization of the court of customs appeals, all cases 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 herewith : Provided, That where orders for the taking of further testimony before a referee have been made in any of such cases, the taking of such testi- mony shall be completed before such certification. § 198. If the importer, owner, consignee, or agent of any imported merchandise, or the collector or secretary of the treasury, shall be dissatisfied with the decision of the board of general appraisers as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, or with any other appealable decision of said board, they, or either of them, may, within sixty days next after the entry of such decree or judgment, and not afterwards, apply to the court of customs appeals for a review of the questions of law and fact involved in such decision: Provided, That in Alaska and in the insular and other outside possessions of the United States ninety days shall be allowed for making such application to the 304 The Judicial Code court of customs appeals. Such application shall be made by filing in the office of the clerk of said court a concise statement of errors of law and fact complained of; and a copy of such statement shall be served on the 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 decision of said court of customs appeals shall be final, and such cause shall be remanded to said board of general appraisers for further proceedings to be taken in pursuance of such determina- tion. § 199. Immediately upon receipt of any record trans- mitted 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 cal- endar need not be called during the months of July and August of any year. CHAPTER IX* THE COMMEECE COURT § 200. Commerce Court created — Judges of, appointment and designation — Expense allowance to judges. § 201. Additional circuit judges — Appointment 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 elsewhere. § 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 Commission to be against United States — Restraining orders, when granted with- out notice. § 209. Jurisdiction of the court, how invoked — Practice and procedure. § 210. Final judgments and decrees reviewable in Supreme Court. § 211. Suits to be against United States — When United States may inter- vene. § 212. Attorney General to control all cases — Interstate Commerce Com- mission may appear as of right — Parties interested may inter- vene, etc. § 213. Complainants may appear and be made parties to case. § 214. Pending cases to be transferred to Commerce Court — Exception — Status of transferred cases. § 200. There shall be a court of the United States, to be known as the commerce court, which shall be a court of record, and shall have a seal of such form and style as the court may prescribe. The said court shall be com- posed 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 addi- *This chapter is obsolete, the Commerce Court having been abolished by Act of Oct. 22, 1913 (38 Stat. L. 219, Supp. (1914) Fed. St. Ann. 230). 305 Long— 20 306 , The Judicial' Code tipnal 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 desig- nation was made. After the year nineteen hundred and fourteen no circuit judge shall be redesignated to serve in the commerce court until the expiration of at least one year after the expiration of the period of his last previous designation. The judge first designated for the five-year period shall be the presiding judge of said court, and thereafter the judge senior in designation 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 quorum, and at least a majority of the court shall concur in all decisions. Each of the judges during the period of his service in the commerce court shall, on account of the regular ses- sions 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 hun- dred dollars per annum. The Commerce Court was created by the Aet of June 18, 1910, c. 309, 36 Stat. L. 539. § 201. The five additional circuit judges authorized by the Act to create a commerce court, and for other pur- poses, approved June eighteenth, nineteen hundred and ten, shall hold office during good behavior, and from time to time shall be designated and assigned by the chief jus- tice of the United States for service in the district court of any district, or the circuit court of appeals for any The Commbbce Court 307 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. § 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 thou- sand dollars per annum ; the salary of the marshal three thousand dollars per annum; the salary of the deputy clerk two thousand five hundred dollars per annum ; and the salary of the deputy marshal two thousand five hun- dred 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 accounted for and paid into the treasury of the United States. § 203. The commerce court shall always be open for the transaction of business. Its regular sessions shall be held in the city of Washington, in the District of Colum- bia; but the powers of the court or of any judge thereof, or of the clerk, marshal, deputy clerk, or deputy marshal, 308 The Judiciax, Code may be exercised anywhere in the United States; and for expedition of the work of the court and the avoidance of undue expense or inconvenience to suitors the court shall hold sessions in different parts of the United States as may be found desirable. The actual and necessary expenses of the judges, clerk, marshal, deputy clerk, and deputy marshal of the court incurred for travel and attendance elsewhere than in the city of Washington shall be paid upon the written and itemized certificate of such judge, clerk, marshal, deputy clerk, or deputy mar- shal, by the marshal of the court, and shall be allowed to him in the settlement of his accounts with the United States. § 204. The United States marshals of the several dis- tricts 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 attor- ney general, may then lease from time to time other necessarv rooms for the court. § 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 case of illness or other disability of any judge assigned to the commerce court the chief justice of the United States may assign any other circuit judge of the United States to act in his place, and may terminate such assignment when the exigency therefor shall cease ; and any circuit judge so assigned to act in place of such The Commerce Couet 309 judge shall, during Ms assignment, exercise all the powers and perform all the functions of such judge. § 206. In all cases within its jurisdiction the commerce court, and each of the judges assigned thereto, shall, respectively, have and may exercise any and all of the powers of a district court of the United States and of the judges of said court, respectively, so far as the same may be appropriate to the effective exercise of the juris- diction hereby conferred. The commerce court may issue all writs and process appropriate to the full exer- cise 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 deputy marshal of said court and also the United States marshals and deputy marshals in the several districts of the United States shall have like powers and be under like duties to act for and in behalf of said court as pertain to United States marshals and deputy marshals generally when acting under like conditions concerning suits or matters in the district courts of the United States. § 207. The commerce court shall have the jurisdiction possessed by circuit courts of the United States and the judges thereof immediately prior to June eighteenth, nineteen hundred and ten, over all cases of the following kinds : First. All cases for the enforcement, otherwise than by adjudication and collection of a forfeiture or penalty or by infliction of criminal punishment, of any order of the Interstate Commerce Commission other than for the payment of money. Second. Cases brought to enjoin, set aside, annul, or 310 The Judicial Code 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 for- eign nations and among the states," approved February nineteenth, nineteen hundred and three, are authorized to be maintained in a circuit court of the United States. Fourth. All such mandamus proceedings as under the provisions of section twenty or section twenty-three of the Act entitled "An Act to regulate 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 commerce court. The jurisdiction of the commerce court over cases of the foregoing classes shall be exclusive ; but this chapter shall not affect the jurisdiction possessed by any circuit or district court of the United States over cases or pro- ceedings of a kind not within the above-enumerated classes. § 208. Suits to enjoin, set aside, annul, or suspend any order of the Interstate Commerce Commission shall be brought in the commerce court against the United States. The pendency of such suit shall not of itself stay or suspend the operation of the order of the Interstate Commerce Commission; but the commerce court, in its discretion, may restrain or suspend, in whole or in part, the operation of the commission's order pending the final hearing and determination of the suit. No order or injunction so restraining or suspending an order of the Interstate Commerce Commission shall be made by the commerce court otherwise than upon notice and after hearing, except that in cases where irreparable damage The Commbbce Court 311 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 general, allow a temporary stay or suspen- sion 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 temporary stay or suspension in whole or in part until its decision upon the application. § 209. The jurisdiction of the commerce court shall be invoked by filing in the office of the clerk of the court a written petition setting forth briefly and succinctly the facts constituting the petitioner's cause of action, and specifying the relief sought. A copy of such petition shall be forthwith served by the marshal or a deputy marshal of the commerce court or by the proper United States marshal or deputy marshal upon every defendant therein named, and when the United States is a party defendant, the service shall be made by filing a copy of said petition in the office of the secretary of the Inter- state Commerce Commission and in the department of justice. Within thirty days after the petition is served, unless that time is extended by order of the court or a judge thereof, an answer to the petition shall be filed in the clerk's office, and a copy thereof mailed to the peti- tioner's attorney, which answer shall briefly and cate- gorically respond to the allegations of petition. No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting 312 The Judicial Code forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed. In case no answer shall be filed as provided herein the petitioner may apply to the court on notice for such relief as may be proper upon the facts alleged in the petition. The court may, by rule, prescribe the method of taking evidence in eases pending in said court; and may prescribe that the evidence be taken before a single judge of the court, with power to rule upon the admission of evidence. Except as may be otherwise provided in this chapter, or by rule of the court, the practice and procedure in the commerce court shall con- form as nearly as may be to that in like cases in a district court of the United States. § 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 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 com- merce court may direct the original record to be trans- mitted on appeal instead of a transcript thereof. 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 judgment or decree of the commerce court appealed from, unless the supreme court or a justice thereof shall so direct; and appellant shall give bond in such form and of such amount as the supreme court, or the justice of that court allowing the stay, may require. An appeal may also be taken to the supreme court of the United States from an interlocu- tory order or decree of the commerce court granting or continuing an injunction restraining the enforcement of The Commeece Coubt 313 an order of the Interstate Commerce Commission, pro- vided 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. § 211. All cases and proceedings in the commerce court which but for this chapter would be brought by or against the Interstate Commerce Commission, shall be brought by or against the United States, and the United States may intervene in any case or proceeding in the commerce court whenever, though it has not been made a party, public interests are involved. § 212. The attorney general shall have charge and con- trol of the interests of the Government in all cases and proceedings in the commerce court, and in the supreme court of the United States upon appeal from the com- merce 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 neces- sary to assist in the discharge of any of the duties incum- bent upon him and his subordinate attorneys; and the attorney general shall stipulate with such special attor- neys and counsel the amount of their compensation, which shall not be in excess of the sums appropriated therefor by Congress for such purposes, and sjiall have supervision of their action: Provided, That the Inter- state 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 counsel, in any suit wherein is involved the validity of such order or requirement or any 314 The Judicial Code part thereof, and the interest of such party j and the court wherein is pending such suit may make all such rules and orders as to such appearances and representa- tions, the number of counsel, and all matters of procedure, and otherwise, as to subserve the ends of justice and speed the determination of such suits : Provided further, That communities, associations, corporations, firms, and individuals who are interested in the controversy or ques- tion before the Interstate Commerce Commission, or in any suit which 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 Commerce Commission, may intervene in said suit or proceedings at any' time after the institution thereof; and the attorney general shall not dispose of or discontinue said suit or proceeding over the objection of such party or intervenor aforesaid, but said intervenor or intervenors may prosecute, defend, or continue said suit or proceeding unaffected by the action or non-action of the attorney general therein. § 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 repre- sented before the courts by counsel, under such regula- tions as are now permitted in similar circumstances under the rules and practice of equity courts of the United States. § 214. yntil the opening of the commerce court, all cases and proceedings of which from that time the com- merce 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 com- merce court, appeal may be taken from such final judg- The Commerce Couet 315 ment or decree in like' manner and with, like effect as is now provided by law. Any such case or proceeding within the jurisdiction of the commerce court which may have been begun in any other court as hereby allowed, before the said date, shall be forthwith transferred to the commerce court, if it has not yet proceeded to final 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 judg- ment or decree and further proceeding thereafter, and appeal may be taken direct to the supreme court; and if remanded, such cause may be sent back to the court from which the appeal was taken or to the commerce court for further proceeding as the supreme court shall direct. All previous proceedings in such transferred case shall stand and operate notwithstanding the transfer, subject to the same control over them by the commerce court and to the same right of subsequent action in the case or proceeding as if the transferred case or proceed- ing had been originally begun in the commerce court. The clerk of the court from which any case or proceeding 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 or proceeding and a certified transcript of all record entries in the case or proceeding up to the time of transfer. CHAPTER X THE SUPREME COUET § 215. Number of justices. § 216. Precedents [Precedence] of the associate justices. § 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 appeals. § 223. Tables of fees. § 224. Marshal of the Supreme Court. § 225. Buties of the reporter. § 226. Reporter 's salary and allowances. § 227. Distribution of reports and digests. § 228. Additional reports and digests — Limitation upon cost — Estimates to be submitted to Congress annually. § 229. Distribution of Pederal Reporter, etc., and Digests. § 230. Terms. § 231. Adjournment for want of a quorum. § 232. Certain orders made by less than quorum. § 233. Original disposition [Exclusive jurisdiction]. § 234. Writs of prohibition and mandamus. § 235. Issues of fact. § 236. Appellate jurisdiction. § 237. Writs of error from judgments and decrees of State courts. § 238. Appeals and writs of error from United States district courts. § 239. Circuit court of appeals may certify questions to Supreme Court for instructions. § 240. Certiorari to circuit court of appeals. § 241. Appeals and writs of error in other cases. \ § 242. Appeals from Court of Claims. § 243. Time and manner of appeals from the Court of Claims. § 244. Writs of error and appeals from Supreme Court of and United States district court for Porto Rico. § 245. Writs of error and appeals from the Supreme Courts of Arizona and New Mexico. § 246. Writs of error and appeals from the Supreme Court of Hawaii. § 247. Appeals and writs of error from the district court for Alaska direct to Supreme Court in certain cases. 316 The Supeeme Coubt 317 § 248. Appeals and writs of error from the Supreme Court of the Philippine Islands. § 249. Appeals and writs of error when a Territory becomes a State. § 250. Appeals and writs of error from the Court of Appeals of the District of Columbia. § 251. Certiorari to Court of Appeals, District of Columbia. § 252. Appellate jurisdiction under the bankruptcy act. § 253. Precedence of writs of error to State courts. § 254. Cost of printing records. § 255. Women may be admitted to practice. § 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. E. S. § 673, 4 Fed. St. Ann. 434. § 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. E. S. § 674, 4 Fed. St. Ann. 434. § 217. In case of a vacancy in the office of chief justice, or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another chief justice is appointed and duly qualified. This provision shall apply to every associate justice who succeeds to the office of chief justice. E. S. § 675, 4 Fed. St. Ann. 435. § 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. See E. 8. § 676, 4 Fed. St. Ann. 435. 318 The Judicial Code § 219. The supreme court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions. B. S. § 677, 4 Fed. St. Ann. 73. § 220, The clerk of the supreme court shall, before he enters upon the execution of his office, give bond, with sufficient sureties, to be approved by the court, to the United States, in the sum of not less than five thousand and not more than twenty thousand dollars, to be 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 aijy court. The original bonds shall be filed in the Department of Justice. See Act of Feb. 22, 1875, c. 95, § 3, 18 Stat. L. 333, 4 Fed. St. Ann. 83. § 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 misfeas- ances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such defaults or misfeasances committed after his The Supreme Coukt 319 death as the clerk would be entitled to if the same had occurred in his lifetime. E. S. § 678, 4 Fed. St. Ann. 73. § 222. The records and proceedings of the court of appeals, appointed previous to the adoption of the pres- ent 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 pro- ceedings of the supreme court ; and such copies shall have like faith and credit with all other proceedings of said court. E. S. § 679, 4 Fed. St. Ann. 435. § 223. The supreme court is authorized and empowered to prepare the tables of fees to be charged by the clerk thereof. See Act of March 3, 1883, c. 143, § 9, 22 Stat. L. 631, 4 Fed. St. Ann. 13a § 224. The marshal is entitled to receive a salary at the rate of four thousand five hundred dollars a year. He shall attend the court at its sessions; shall serve and execute all process and orders issuing from it, or made by the chief justice or an associate justice in pursuance of law; and shall take charge of all property of the United States used by the court or its members. With the approval of the chief justice he may appoint assistants and messengers to attend the court, with the compensa- tion allowed to officers of the House of Eepresentatives of similar grade. See E. S. § 680, 4 Fed. St. Ann. 159. § 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 320 The Judiciai, Code 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 R. S. § 681, 6 Fed. St. Ann. 767. § 226. The reporter shall be entitled to receive from the Treasury an annual salary of four thousand five hun- dred dollars when his report of said decisions constitutes one volume, and an additional sum of one thousand two hundred dollars when, by direction of the court, he causes to be printed and published in any year a second volume ; and said reporter shall be annually entitled to clerk hire in the sum of one thousand two hundred dollars, and to 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 volume, 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 compensation, respectively, shall be paid only when he causes such decisions to be printed, pub- lished, and delivered within the time and in the manner prescribed by law, and upon the condition that the vol- umes of said reports shall be sold by him to the public for a price not exceeding one dollar and seventy-five cents a volume. See E. S. § 682; Aet of Aug. 5, 1882, c. 389, § 1, 22 Stat. L. 254, 6 Fed. St. Ann. 768. § 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 com- merce court, the judges of the court of customs appeals, the judges of the circuit courts of appeals, the judges of The Supreme Court 321 the district courts, the judges of the court of claims, the judges of the court of appeals and of the Supreme Court of the District of Columbia, the judges of the several ter- ritorial 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 gen- eral, the attorney general, the secretary of Agriculture, the secretary of Commerce and Labor, the solicitor gen- eral, the assistant to the attorney general, each assist- ant attorney general, each United States district attor- ney, each assistant secretary of each executive depart- ment, the assistant postmasters general, the secretary of the Senate for the use of the Senate, the clerk of the House of Representatives for the use of the House of Representatives, the governors of the territories, the solicitor for the Department of State, the treasurer of the United States, the solicitor of the Treasury, the reg- ister of the Treasury, the comptroller of the Treasury, the comptroller of the Currency, the commissioner 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 affairs, the commissioner of pensions, the commissioner of the General Land Office, the commissioner of Patents, the commissioner of Education, the commissioner of Labor, the commissioner of Navigation, the commissioner of Corporations, the commissioner general of Immigration, the chief of the Bureau of Manufactures, the director of the Greological Survey, the director of the Census, the forester, Department of Agriculture, the purchasing agent, Postoffice Department, the Interstate Commerce Commission, the clerk of the Supreme Court of the United States, the marshal of the Supreme Court of the United States, the attorney for the District of Columbia, the Naval Academy at Annapolis, the Military Academy; Long — ^21 322 The Judicial, Code at West Point, and tlie heads of such other executive offices as may be provided by law, of equal grade with any of said offices, each one copy; to the Law Library of the Supreme Court, twenty-five copies; to the Law Library of the Department of the Interior, two copies; to the Law Library of the Department of Justice, two copies ; to the secretary of the Senate for the use of the committees of the Senate, twenty-five copies ; to the clerk of the House of Eepresentatives for the use of the com- mittees 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 jus- tices 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 distribution of reports and digests under this section shall be made to any place where the court is held in a building not owned by the United States, unless there be at such place a United States officer to whose respon- sible custody they can be committed. The clerks of said courts (except the supreme court) shall in all cases keep said reports and digest for the use of the courts and of the officers thereof. Such reports and digest shall remain The Supreme Couet 323 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. See E. S. § 683, 6 Fed. St. Aim. 768; Act of Feb. 12, 1889, e. 135, §§ 1, 2, 25 Stat. L. 661, 6 Fed. St. Ann. 769; Act of July 1, 1902, c. 1355, 32 Stat. L. 630, 6 Fed. St. Ann. 770. § 228. The publishers of the decisions of the supreme court shall deliver to the attorney general, in addition to the three hundred copies delivered by the reporter, such number of copies of each report heretofore published, as the attorney general may require, for which he shall pay not more than two dollars per volume, and such num- ber 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. § 229. The attorney general is authorized to procure complete sets of the Federal Eeporter or, in his discre- tion, other publication containing the decisions of the circuit courts of appeals, circuit courts, and district courts, and digests thereof, and also future volumes of the same as issued, and distribute a copy of each such report and digest to each place where a circuit court of appeals, or a district court, is now or may here- after regularly be held, and to the Supreme Court of the United States, the court of claims, the court of cus- toms appeals, the commerce court, the court of appeals and the Supreme Court of the District of Columbia, the attorney general, the solicitor general, the solicitor of the Treasury, the assistant attorney general for the Department of the Interior, the commissioner of Pat- ents, and the Interstate Commerce Commission; and to 324 TSE Judicial Code 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 sec- tion shall be and remain the property of the United States and, before distribution, shall be plainly marked on their covers with the words "The Property of the United States," and shall be transmitted by the officers receiving them to their successors in office. Not to exceed two dol- lars per volume shall be paid for the back and current volumes of the Federal Reporter or other publication purchased under the provisions of this section, and not to exceed five dollars per volume for the digest, the said money to be disbursed under the direction of the attor- ney 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. § 230. The supreme court shall hold at the seat of gov- ernment, one term annually, commencing on the first The Supreme Coukt 325 Monday in October, and such adjourned or special terms as it may find necessary for the dispatch of business. See E. S. § 684, 4 Fed. St. Ann. 692, as amended by Act of Sept. 6, 1916, substituting tlie first for the second Monday. § 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 until after said appointed time, unless there be sooner a quorum. If a quorum does not attend within said twenty days, the business of the court shall be continued over till the next appointed session; and if, during a term, after a quorum has assembled, less than that number attend on any day, the justices attend- ing may adjourn the court from day to day until there is a quorum, or may adjourn without day. E. S. § 685, 4 Fed. St. Ann. 693. § 232. The justices attending at any term, when less than a quorum is present, may, within the twenty days mentioned in the preceding section, make all necessary orders touching any suit, proceeding, or process, depend- ing in or returned to the court, preparatory to the hear- ing, trial, or decision thereof. E. S. § 686, 4 Fed. St. Ann. 693. § 233. The supreme court shall have exclusive jurisdic- tion 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 exclu- sive, 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 exclusive, jurisdic- tion, of all suits brought by ambassadors, or other public ministers, or iii which a consul or vice consul is a party. E. S. § 687, 4 Fed. St. Ann. 436. 326 The Judicial Code § 234. The supreme court shall have power to issue writs of prohibition to the district courts, when proceed- ing as courts of admiralty and maritime jurisdiction ; and writs of mandamus, in eases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding oflBce 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. E. S. § 688, 4 Fed. St. Ann. 439. § 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. R. S. § 689, 4 Ped. St. Ann. 443. § 236. The supreme court shall have appellate juris- diction in the cases hereinafter specially provided for. E. S. § 690, 4 Fed. St. Ann. 443. By Act of Sept. 6, 1916, e. 448, § 6, no review by the Supreme Court is allowed unless applied for within three months after entry of the judgment or decree complained of, 39 Stat. L. — . § 237. A final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity ; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or author- ity 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 reexamined and reversed or affirmed in the The Supreme Couht 327 supreme court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The supreme court may reverse, modify, or affirm the judgment or decree of such state court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ. Amendment of 1904. 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 ease as if it had been carried by appeal or writ of error to the supreme court, although the decision in such case may have been in favor of the validity of the treaty or statute or author- ity exercised under the United States or may have been against the validity of the state statute or authority claimed to be repugnant to the Constitution, treaties, or laws of the United States, or in favor of the title, right, privilege, or immunity claimed under the Constitution, treaty, statute, commission, or authority of the United States. E. S. § 709, 4 Fed. St. Ann. 467. Act of Dec. 23, 1914 (38 Stat. L. 790, Supp. (1916) Fed. St. Ann. 135). For text of the act of Sept. 6, 1916, see the Text, ante, § 71. § 238. Appeals and writs of error may be taken from the district courts, including the United States District Court for Hawaii and the United States District Court for Porto Eico, direct to the supreme court in the follow- ing cases: In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the supreme court from the court below for decision; from the final sentences and decrees in prize causes; in any case that involves the construction or application of the Constitution of the United States ; in any case in which the constitutionality 328 The Judicial Code of any law of the United States, or the validity or con- struction of any treaty made under its authority is drawn in question ; and in any case in which the constitution or law of a state is claimed to be in contravention of the Constitution of the United States. Act of Jan. 28, 1915 (38 Stat. L. 804, Supp. (1916) Fed St. Ann. 136). See Act of Mareli 3, 1891, c. 517, § 5, 26 Stat. L. 827, 4 Fed. St. Ann. 398. § 239. In any case within its appellate jurisdiction, as defined in section one hundred and twenty-eight, the cir- cuit 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 in- struction of that court for its proper decision ; and there- upon 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 man- ner as if it had been brought there for review by writ of error or appeal. This section is based upon a portion of § 6 of the Act of 1891 establish- ing the Circuit Courts of Appeals, 26 Stat. L. 828, 4 Fed. St. Ann. 409. § 240. In any case, civil or criminal, in which the judg- ment 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 other- wise, upon the petition of any party thereto, any such case to be certified to the supreme court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the supreme court. Based upon a portion of § 6 of the Act of 1891, 26 Stat. L. 828, 4 Fed. St. Ann. 409. § 241. In any case in which the judgment or decree of the circuit court of appeals is not made final by the provi- The Supeemb Court 329 sions of this title, there shall be of right an appeal or writ of error to the Supreme Court of the United States where the matter in controversy shall exceed one thousand dol- lars, besides costs. Based upon a portion of § 6 of the Act of 1891, 26 Stat. L. 828, 4 Fed. St Ann. 409. § 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 be- half 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 judg- ment of said court as provided in section one hundred and seventy-two. See E. S. § 707, 4 Fed. St. Ann. 467. § 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. E. S. § 708, 4 Fed. St. Ann. 467. § 244. Writs of error and appeals from the final judg- ments and decrees of the supreme court of, and th^ United States District Court for, Porto Eico, 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 330 The Judicial Code 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. See Act of April 12, 1900, e. 191, § 35, 31 Stat. L. 84, 5 Ted. St. Ann. 773. Eepealed by Act of Jan. 28, 1915 (38 Stat. L. 804, Supp. (1916) Fed. St. Ann. 137). § 245. Writs of error and appeals from the final judg- ments and decrees of the supreme courts of the terri- tories 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 copy- right, or in which is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States, without regard to the sum. or value of the matter in dispute ; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other com- petent witnesses, exceeds the sum or value of five thou- sand dollars. See E. S. § 1909, 7 Fed. St. Ann. 231. § 246. Writs of error and appeals from the final judg- ments and decrees of the Supreme Court of the territory of Hawaii and of the Supreme Court of Porto Eico 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 in all other cases, civil or criminal, in the Supreme Court of the territory of Hawaii or the Supreme Court of Porto Eico, it shall be competent for the Supreme Court of the United States to require by certi- The Supbbme Coubt 331 orari, upon the petition of any party thereto, that the ease be certified to it, after final judgment or decree, for review and determination, with the same power and authority as if taken to that court by appeal or writ of error ; but certiorari shall not be allowed in any such case unless the petition therefor is presented to the Supreme Court of the United States within six months from the date of such judgment or decree. Writs of error and appeals from the final judgments and decrees of the Supreme Courts of the territory of Hawaii and of Porto Rico, wherein the amount involved, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the value of $5,000, may be taken and prosecuted in the circuit courts of appeals. See Act of March 3, 1905, c. 1465, §3, 33 Stat. L. 1035, 10 Fed. St. Ann. 92. Act of Jan. 28, 1915 (38 Stat. L. 804, Supp. (1916) Fed. St. Ann. 136). § 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 divi- sion 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 constitu- tion 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. See Alaska Code of Civil Procedure, §504, 31 Stat. L. 414, 1 Fed. St. Ann. 147. 332 The Judicial Code § 248. The Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter determined thereby, in which the Constitution, or any statute, treaty, title, right, or privilege of the United States is involved, -or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other com- petent witnesses, is involved or brought in question ; and such final judgments or decrees may and can be reviewed, revised, 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 regu- lations, and by the same procedure, as far as applicable, as the final judgments and decrees of the district courts of the United States. See Act of July 1, 1902, c. 1369, § 10, 32 Stat. L. 695, 5 Fed. St. Ann. 722. But see Act of Aug. 29, 1916, c. 416, § 27, and Act of Sept. 6, 1916, c. 448, § 5, 39 Stat. L. — . § 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. E. S. § 703, 4 Fed. St. Ann. 461. § 250. Any final judgment or decree of the Court of Appeals of the District of Columbia may be reexamined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in the following cases : The Supeeme Couet 333 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 applica- tion of the Constitution 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 Con- stitution of the United States. Fifth. In cases in which the validity of any authority exercised under the United States, or the existence or scope of any power or duty of an officer of the United States is drawn in question. Sixth. In cases in which the construction of any law of the United States is drawn in question by the de- fendant. Except as provided in the next succeeding section, the judgments and decrees of sa,id court of appeals shall be final in all cases arising under the patent laws, the copy- right laws, the revenue laws, the criminal laws, and in admiralty cases; and, except as provided in the next succeeding section, the judgments and decrees of said court of appeals shall be final in all cases not reviewable as hereinbefore provided. Writs of error and appeals shall be taken within the same time, in the same manner, and under the sarne regu- lations as writs of error and appeals are taken from the circuit courts of appeals to the Supreme Court of the United States. For former acts, see Act of March 3, 1885, c. 355, 23 Stat. L. 443, 4 Fed. St. Ann. 463; Act of Feb. 9, 1893, c. 74, 27 Stat. L. 436, 4 Fed. St. Ann. 466. 334 The Judicial Code § 251. In any case in which the judgment or decree of said court of appeals is made final by the section last preceding, it shall be competent for the Supreme Court of the United States to require, by certiorari or otherwise, any such case to be certified to it for its review and determination, with the same power and authority in the case as if it had been carried by writ of error or appeal to said supreme court. It shall also be competent for said court of appeals, in any case in which its judgment or decree is made final under the section last preceding, at any time to certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for their proper decision; and thereupon the supreme court may either give its instruction on the questions and proposi- tions 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 contro- versy in the same manner as if it had been brought there for review by writ of error or appeal. See Act of March 3, 1897, c. 390, 29 Stat. L. 692, 4 Fed. St. Ann. 466. § 252. The Supreme Court of the United States is here- by invested with appellate jurisdiction of controversies arising in bankruptcy proceedings, from the courts of bankruptcy, from which it has appellate jurisdiction in other cases; and shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the 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 such time as may be prescribed by said supreme court, in the following cases and no other : The Supreme Couet 335 First. Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a state to the Supreme Court of the United States; or Second. Where some justice of the supreme court shall certify that in his opinion the determination of the question involved in the allowance or rejection of such claim is essential to a uniform construction of the laws relating to bankruptcy throughout the United States. Controversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof, and may issue writs of certiorari pursuant to the provisions of the United States laws now in force or such as may be hereafter enacted. See Act of July 1, 1898, c. 541, § 24, 30 Stat. L. 553, 1 Fed. St. Ann. 593. See also Act of January 28, 1915, c. 22 (38 Stat. L. 804). § 253. Cases on writ of error to revise the judgment of a state court in any criminal case shall have precedence on the docket of the supreme court, of all cases to which the Government of the United States is not a party, excepting only such cases as the court, in its discretion, may decide to be of public importance. E. S. § 710, 4 Fed. St. Ann. 490. § 254. There shall be taxed against the losing party in each and every cause pending in the supreme court the cost of printing the record in such case, except when the judgment is against the United States. This section is a portion of the same original statute as section 176, ante. § 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 Distript of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person 336 The Judiciaij Code of good moral character, shall, on motion, and the produc- tion of such record, be admitted to practice before the Supreme Court of the United States. Act of Feb. 15, 1879, c. 81, 20 Stat. L. 292, 1 Fed. St. Ann. 518. CHAPTER XI PEOVISIONS COMMON TO MOEE THAN ONE COURT. § 256. Cases in which jurisdiction of United States courts shall be exclusive of States courts. i 257. Oath of United States judges. § 258. Judges prohibited from practicing law. §259. Traveling expenses, etc., of circuit justices and circuit and district judges. i 260. Salary of judges after resignation. § 261. Writs of ne exeat. § 262. Power to issue writs. § 263. Temporary restraining orders. § 264. Injunctions — In what cases judge may grant. § 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. S 269. New trials. § 270. Power to hold to security for the peace and good behavior. § 271. Power to enforce awards of foreign consuls, etc., in certain cases. S 272. Parties may manage their causes personally or by counsel. § 273. Certain officers forbidden to act as attorneys. § 274. Penalty for violating preceding section. § 274a. Amendment of suit brought on wrong side of court. § 274b. Equitable defenses interposed in actions at law. § 274c. Amendment where diverse citizenship is defectively alleged. § 256. The jurisdiction vested in tlie courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several states : First. Gf all crimes and offenses cognizable under the authority of the United States. Second. Of all suits for penalties and forfeitures in- curred under the laws of the United States. Third, Of all civil causes of admiralty and maritime 337 Long— 22 338 The Judicial Code 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 condemna- tion 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 ambas- sadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice-consuls. See E. S. § 711, 4 Fed. St. Ann. 493. § 257. The justices of the supreme court, the circuit judges, and the district judges, hereafter appointed, shall take the following oath before they proceed to perform the duties of their respective offices : "I, , do solemnly swear (or affirm) that I will administer jus- tice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and im- partially discharge and perform all the duties incumbent upon me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States: So help me God." E. S. § 712, 4 Fed. St. Ann. 497. § 258. It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of the law. Any person Peovisions Common to Mobb than One Court 339 offending against the prohibition of this section shall be deemed guilty of a high misdemeanor. B. S. § 713, 4 Fed. St. Ann. 497. § 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 ex- penses of travel, and his reasonable expenses (not to exceed ten dollars per day) actually incurred for main- tenance, consequent upon his attending court or transact- ing other official business in pursuance of law at any place other than his official place of residence, said expenses to be paid by the marshal of the district in which such court is held or official business transacted, upon the written certificate of the justice or judge. The official place of residence of each justice and of each circuit judge while assigned to the commerce court shall be at "Washington ; and the official place of residence of each circuit and district judge, and of each judge of the district courts of the United States in Alaska, Hawaii, and Porto Eico, shall be at that, place nearest his actual residence at which either a circuit court of appeals or a district court is regularly held. Every such judge shall, upon his ap» pointment, 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. § 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 com- missions 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. See E. S. § 714, 4 Fed. St. Ann. 498. 340 The Judicial Code § 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 satis- factory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States. E. S. § 717, 5 Fed. St. Ann. 353. § 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 pro- vided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. See R. S. § 716, 4 Ted. St. Ann. 498. § 263. Whenever notice is given of a motion for an in- junction 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. See B. S. § 718, 4 Fed. St. Ann. 506. This section was repealed by Act of Oct. 15, 1914, See. 17 (38 Stat. L. 737, Supp. (1916) Fed. St. Ann. 279). § 264. Writs of injunction may be granted by any jus- tice of the supreme court in cases where they might be granted by the supreme court; and by any judge of a district court in cases where they might be granted by such court. But no justice of the supreme court shall hear or allow any application for an injunction or re- straining order in any cause pending in the circuit to Pkovisions Common to Mobe than One Coukt 341 "which, he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may- stipulate in writing, except when it can not he heard by the district judge of the district. In case of the absence from the district of the district judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction or restraining order in any case pending in the district court, where the same might be granted by the district judge. See B. S. § 719, 4 Fed. St. Ann. 508. § 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. E. S. § 720, 4 Fed. St. Ann. 509. § 266. No interlocutory injunction suspending or re- straining the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such state, shall be issued or granted by any justice of the supreme court, or by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be pre- sented 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 342 The Judicial Code 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 defendants in the suit : Provided, That if of opinion that irreparable loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the supreme court, or any circuit or district judge, may grant such temporary restraining order at any time be- fore such hearing and determination of the application for an interlocutory injunction, but such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an interlocutory in- junction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earli- est practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case. It is further provided that if before the final hearing of such applica- tion a suit shall have been brought in a court of the state having jurisdiction thereof under the laws of such state, to enforce such statute or order, accompanied by a stay in such state court of proceedings under such statute or order pending the determination of such suit by such state court, all proceedings in any court of the United States to restrain the execution of such statute or order shall be stayed pending the final determination of such suit in the courts of the state. Such stay may be vacated PEdYisioNS Common to Moke than One Cotjet 343 upon proof made after hearing, and notice of ten days served upon the attorney general of the state, that the suit in the state court is not being prosecuted with dili- gence and good faith. As amended by Act of March 4, 1913, c. 160 (37 Stat. L. 1013, Supp. (1914) Fed. St. Ann. 226). § 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. E. S. § 723, 4 Fed. St. Ann. 530. § 268. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority : Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts. E. S. § 725, 4 Fed. St. Ann. 534. § 269. All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. E. S. § 726, 4 Fed. St. Ann. 549. § 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 magis- trates 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 344 The Judicial Code 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. See R. S. § 727, 1 Fed. St. Ann. 519. § 271. The district courts and the United States com- missioners shall have power to carry into effect, accord- ing to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or com- mercial agent of any foreign nation, made or rendered by virtue of authority conferred on him as such consul, vice consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the 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 lawfully imprison any person arrested under the authority of the United States, until such award, arbitration, or decree is complied with, or the parties are otherwise discharged therefrom, by the consent in writing of such consul, vice consul, or commer- cial 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 government, or by its consul, vice consul, or commercial agent requiring such iUiprison- ment. The marshals of the United States shall serve all such process, and do all other acts necessary and proper Peovisions Common to Mobb than One Coukt 345 to carry into effect the premises, under the authority of the said courts and commissioners. Sea R. 8. § 728, 4 Fed. St. Ann. 551. § 272. In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein. R. S. § 747, 4 Fed. St. Ann. 556. § 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. See R. S. § 748, 4 Fed. St. Ann. 153. § 274. Whoever shall violate the provisions of the pre- ceding section shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice and be heard in his defense ; and in the case of a marshal or deputy marshal so acting, he shall be recommended by the court for dismissal from office. R. S. § 749, 4 Fed. St. Ann. 153. § 274a. That in case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side 346 The Judicial Code of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken be- fore such amendment, if preserved, shall stand as testi- mony in the cause with like effect as if the pleadings had been originally in the amended form. Sections 274a, 274b, and 274e were added by Act of March 3, 1915 (38 Stat. L. 956, Supp. (1916) Ted. St. Ann. 137-138). § 274b. That in actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of [or?] seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirma- tive relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or de- cree entered ia such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require. § 274c. That where, in any suit brought in or removed from any state court to any district [court?] of the United States, the jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought or removed, though defectively alleged, either party may amend at any stage of the proceedings and in the appellate court upon such terms as the court may impose, so as to show on the record such diverse citizenship and jurisdiction, and thereupon such suit shall be proceeded with the same as though the diverse citizen- ship had been fully and correctly pleaded at the inception of the suit, or, if it be a removal case, in the petition for removal. CHAPTER XII JURIES § 275. Qualifications and exemptions of jurors. § 276. Jurors, how drawn. § 277. Jurors, how to be apportioned in the district. § 278. Eace or color not to exclude. I 279. Venire, how issued and served. § 280. Talesmen for petit juries. § 281. Special juries. § 282. Number of grand jurors. § 283. Foreman of grand juay. § 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. § 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 con- tained, 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. See E. S. § 800, 4 Fed. St. Ann. 737. § 276. All such jurors, grand and petit, including those summoned during the session of the court, shall be pub- licly drawn from a box containing, at the time of each drawing, the names of not less than three hundred per- sons, possessing the qualifications prescribed in the sec- tion 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 347 348 The Judicial Code in commission in districts having more than one judge, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations until the whole number required shall be placed therein. See Act of June 30, 1879, c. 52, § 2, 21 Stat. L. 43, 4 Fed. St. Ann. 749. § 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. E. S. § 802, 4 Fed. St. Ann. 741. § 278. No citizen possessing all other qualifications which are or may be prescribed by law shall be disquali- fied for service as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude. See Act of March 1, 1875, c. 114, § 4, 18 Stat. L. 336, 4 Fed. St. Ann. 740; Act of June 30, 1879, c. 52, § 2, 21 Stat. L. 43, 4 Fed. St. Ann. 749. § 279. Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or, in case the marshal or his deputy is not an indifferent 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 Juries 349 juror at a time and place designated therein, which copy shall be registered and deposited in the postoffice ad- dressed to such person at his usual postoffice address. And the receipt of the person so addressed for such registered copy shall be regarded as personal service of such writ upon such person, and no mileage shall be allowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settlement of his accounts. See E. S. § 803, 4 Fed. St. Ann. 742. § 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 by-standers sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section. E. S. § 804, 4 Fed. St. Ann. 742. § 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. See E. S. § 805, 4 Fed. St. Ann. 743. § 282. Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the by-standers, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to com- 350 The Judicial Code plete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. See E. 8. § 808, 4 Fed. St. Ann. 743. § 283. From the persons summoned and accepted as grand jurors, the court shall appoint the foreman, who shall have power to administer oaths and affirmations to witnesses appearing before the grand jury. E. S. § 809, 4 Fed. St. Ann. 744. § 284. No grand jury shall be summoned to attend any district court unless the judge thereof, in his own discre- tion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor. If the United States attorney for any district which has a city or borough containing at least three hundred thou- sand 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 nothing herein shall operate to extend beyond the time permitted by law the imprison- ment before indictment found of a person accused of a crime or offense, or the time during which a person so accused may be held under recognizance before indict- ment found. See R. S. § 810, 4 Fed. St. Ann. 744. § 285. The district courts, the district courts of the ter- ritories, and the Supreme Court of the District of Colum- bia may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary. See R. S. § 811, 4 Fed. St, Ann. 744. Juries 351 _ § 286. No person shall serve as a petit juror in any district court more than one term in a year; and it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned and at- tended said court as a juror at any term of said court held within one year prior to the time of such challenge. See R. S. § 812, 4 Fed. St. Ann. 744. § 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 challenges ; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges, and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. See E. S. § 813, 4 Fed. St. Ann. 745. § 288. In any prosecution for bigany, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman — First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable either by sections one or three of an Act entitled "An Act to amend section fifty-three hun- dred and fifty-two of the Eevised Statutes of the United States, in reference to bigamy and for other purposes," approved March twenty-second, eighteen hundred and eighty-two, or by section fifty-three hundred and fifty- two of the Eevised Statutes of the United States, or the 352 The Judicial Code 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 legis- lative 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 offered as a juror or tales- man, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge ; and other evidence may be intro- duced bearing upon the question raised by such challenge ; and this question shall be tried by the court. But as to the first ground of challenge before men- tioned, 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 him- self ; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense above named; but if he declines to answer on any ground, he shall be rejected as incompetent. See Act of March 22, 1882, § 5, 22 Stat. L. 31, 1 Ted. St. Ann. 706. CHAPTER XIII GENEEAL PEOVISIONS § 289. Circuit courts abolished — Records 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. Eeferences to laws revised in this act deemed to refer to sections of act. § 293. Sections 1 to 5, Revised Statutes, to govern construction of this act. § 294. Laws revised in this act to be construed as continuations of existing laws. § 295. Inference of legislative construction not to be drawn hj reason of arrangement of sections. § 296. Act may be designated as ' ' The Judicial Code. ' ' § 289. Tlie circuit courts of the United States, upon the taking effect of this Act, shall he, and hereby are, abol- ished; 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 con- nected with said circuit courts ; 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 a part of the official records of said district courts, and copies thereof, when certified under the hand and seal of the clerk of the dis- trict court, shall be received as evidence equally with the originals thereof; and the clerks of the several district 353 Long— 23 354 The Judicial Code 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. § 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 pro- ceeded with and disposed of in the district courts in the same manner and with the same effect as if originally begun therein, the record thereof being entered in the records of the circuit courts so transferred as above provided. § 291. "Wherever, in any law not embraced within this Act, any reference is made to, or any power or duty is conferred or imposed upon, the circuit courts, such refer- ence 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. § 292. Wherever, in any law not contained within this Act, a reference is made to any law revised or embraced herein, such reference, upon the taking effect hereof, shall be construed to refer to the section of this Act into which has been carried or revised the provision of law to which reference is so made. § 293. The provisions of sections one to five, both inclu- sive, of the Revised Statutes, shall apply to and govern the construction of the provisions of this Act. The words "this title," wherever they occur herein, shall be con- strued to mean this Act. § 294. The provisions of this Act, so far as they are substantially the same as existing statutes, shall be General, Provisions 355 construed as continuations thereof, and not as new enact- ments, 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. § 295. The arrangement and classification of the sev- eral 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 presumption of a legislative construction is to be drawn by reason of the chapter under which any particular section is placed. § 296. This Act may be designated and cited as "The Judicial Code." CHAPTER XIV EEPEALING PROVISIONS § 297. Sections, acts, and parts of acts repealed. § ?98. Eepeal not to affect tenure of office, or salary, or compensation of incumbents, etc. § 299. Accrued rights, etc., not affected. § 300. Offenses committed, and penalties, forfeitures, and liabilities in- curred, how to be prosecuted and enforced. § 301. Date this act shall be effective. § 297. The following sections of the Revised Statutes and Acts and parts of Acts are hereby repealed : Sections five hundred and thirty to five hundred and sixty, both inclusive ; sections five hundred and sixty-two to five hundred and sixty-four, both inclusive; sections five hundred and sixty-seven to six hundred and twenty- seven, both inclusive; sections six hundred and twenty- nine to six hundred and forty-seven, both inclusive; sections six hundred and fifty to six 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 sixteen to seven hundred and twenty, both inclusive; section seven hundred and twenty-three; sections seven hundred and twenty-five to seven hundred and forty-nine, both inclusive; sections eight hundred to eight hundred and twenty-two, both inclusive ; sections ten hundred and forty-nine to ten hundred and eighty-eight, both inclu- sive ; sections ten hundred and ninety-one to ten hundred and ninety-three, both inclusive, of the Revised Statutes. "An Act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from state courts, and for other purposes," approved March third, eighteen hundred and seventy-five. 356 Eepealing Pbovisions 357 Section five of an Act entitled "An Act to amend sec- tion fifty-three hundred and fifty-two of the Eevised Statutes of the United States, in reference to bigamy, and for other purposes, ' ' approved March twenty-second, eighteen hundred and eighty-two ; but sections six, seven and eight of said Act, and sections one, two and twenty- six of an Act entitled "An Act to amend an Act entitled 'An Act to amend section fifty- three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes,' approved March twenty-second, eighteen hundred and eighty-two," ap- proved March third, eighteen hundred and eighty-seven, are hereby continued in force. "An Act to afford assistance and relief to Congress and the 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 of Columbia and the supreme courts of the several territories," approved March third, eighteen hun- dred 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 ap- proved March third, eighteen hundred and eighty- seven, entitled 'An Act to amend sections one, two, three and ten of an Act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from state courts, and for other pur- poses,' approved March third, eighteen hundred and seventy-five, ' ' approved August thirteenth, eighteen hun- dred and eighty-eight. "An Act to withdraw from the supreme court jurisdic- tion of criminal cases not capital and confer the same on 358 The Judicial Code the circuit courts of appeals," approved January twen- tieth, 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 pur- poses,' approved March third, eighteen hundred and ninety-one, and the several Acts amendatory thereto," approved April fourteenth, nineteen hundred and six. All Acts and parts of Acts authorizing the appointment of United States circuit or district judges, or creating or changing judicial circuits, or judicial districts or divisions thereof, or fixing or changing the times or places of hold- ing court therein, enacted prior to February first, nine- teen hundred and eleven. Sections one, two, three, four, five, the first paragraph of section six, and section seventeen of an Act entitled "An Act to create a commerce court, and to amend an Act entitled 'An Act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, as heretofore amended, and for other purposes," approved June eighteenth, nineteen hundred and ten. Also all other Acts and parts of Acts, in so far as they are embraced within and superseded by this Act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this Act had not been passed. I 298. The repeal of existing laws providing for the appointment of judges and other officers mentioned in this Act, or affecting the organization of the courts, shall not be construed to affect the tenure of office of the in- Repealing Provisions 359 cumbents (except the office be abolished), but they shall continue to hold their respective offices during the terms for which appointed, unless removed as provided by law ; nor (except the office be abolished) shall such repeal affect the salary or fees or compensation of any officer or person holding office or position by virtue of any law. § 299. The repeal of existing laws, or the amendments thereof, embraced in this Act, shall' not affect any act done, or any right accruing or accrued, or any suit or proceeding, including those pending on writ of error, appeal, certificate, or writ of certiorari, in any appellate court referred to or included within, the provisions of this Act, pending at the time of the taking effect of this Act, but all such suits and proceedings, and suits and 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 amend- ments had not been made. § 300. All offenses committed, and all penalties, for- feitures or liabilities incurred prior to the taking effect hereof, under any law embraced in, amended, or repealed by this Act, may be prosecuted and punished, or sued for and recovered, in the district courts, in the same manner and with the same effect as if this Act had not been passed. § 301. This Act shall take effect and be in force on and after January first, nineteen hundred and twelve. Approved March 3, 1911. EULES OF PEACTICE FOE THE COTJETS OF EQUITY OF THE UNITED STATES Promulgated by the SxjPKEMB Court of the. United States November 4, 1912 Rule 1. District court always open for certain pur- poses — Orders at chambers. The district courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all inter- locutory motions, orders, rules and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the .^ clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules and other proceed- ings, whenever the same are not grantable of course, according to the rules and practice of the court. Rule 2. Clerk's oflSce always open, except, etc. The clerk's office shall be open during business hours on all days, except Sundays and legal holidays, and the clerk shall be in attendance for the purpose of receiving and disposing of all motions, rules, orders and other pro- ceedings which are grantable of course. Rule 3. Books kept by clerk and entries therein. The clerk shall keep a book known as "Equity Docket," in which he shall enter each suit, with a file number corre- 360 Equity Exiles 361 spending to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all appearances shall be noted briefly and chronologically in this book on the folio assigned to the suit and shall be marked with its file number. The clerk shall also keep a book entitled ' ' Order Book, ' ' in which shall be entered at length, in the order of their making, all orders made or passed by him as of course and also all orders made or passed by the judge in chambers. He shall also keep an "Equity Journal," in which shall be entered all orders, decrees and proceedings of the court in equity causes in term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court. Rule 4. Notice of orders. Neither the noting of an order in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solicitors; and when an order is made without prior . notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the Equity Docket, which shall be taken as sufficient proof of due notice of the order. Rule 5. Motions grantable of course by clerk. All motions and applications in the clerk's office for the issuing of mesne process or final process to enforce and execute decrees; for taking bills fro confesso; and for other proceedings in the clerk's office which do not require any allowance or order of the court or of a judge, shall be deemed motions and applications grantable of course by the clerk ; but the same may be suspended, or 362 Fedeeal Jurisdiction and Pbocbduke altered, or rescinded by the judge upon special cause shown. Rule 6. Motion day. Each district court shall estab- lish regular times and places, not less than once each month, when motions requiring notice and hearing may be made and disposed of ; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings and proceedings for the advancement, conduct and hearing of causes. If the public interest permits, the senior circuit judge of the circuit may dispense with the motion day during not to exceed two months in the year in any district. Rule 7. Process, mesne and final. The process of sub- poena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defend- ant to appear and answer the bill ; and, unless otherwise provided in these rules or specially ordered by the court, a writ of attachment and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. Rule 8. Enforcement of final decrees. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the district court in suits at common law in actions of assumpsit. If the decree be for the 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 Equity Rules 363 notice; and upon affidavit of the plaintiff, filed in tlie clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. If a mandatory order, injunction or decree for the specific performance of any act or contract be not complied with, the court or a judge, besides, or instead of, proceedings against the dis- obedient party for a contempt- or by sequestration, may by order direct that the act required to be done be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the disobedient party, and the act, when so done, shall have like effect as if done by him. Rule 9. Writ of assistance. When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. Rule 10. Decree for deficiency in forefclosures, etc. In suits for the foreclosure of mortgages, or the enforce- ment of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in rule 8 when the decree is solely for the payment of money. 364 Federal Jxjbisdiction and Pbocedueb Rule 11. Process in behalf of aud against persons not parties. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party. Rule 12. Issue of. subpoena — Time for answer. When- ever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon, as of course, upon the appli- cation of the plaintiff, which shall contain the names of the parties and be returnable into the clerk's oflSce twenty days from the issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defend- ant is required to file his answer or other defense in the clerk 's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint subpoena against all the defendants. Rule 13. Majoner of serving subpoena. The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family. Rule 14. Alias subpoena. Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to other subpoenas against such defendant. Equity Eulbs 365 Rule 15. Process, by whom aerved. The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof. Rule 16. Defendant to answer — Default — Decree pro confesso. It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by rule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte. Rule 17. Decree pro confesso to be followed by final decree — Setting aside default. When the bill is taken pro confesso the court may proceed to a final decree at any time after the expiration of thirty days after the entry of the order pro confesso, and such decree 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. No such motion shall be granted, unless upon the payment of the costs of the plaintiff up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant sjtall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. Rule 18. Pleadings — Technical forms abrogated. Un- less otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished. 366 Federal Jueisdiction and Pbocedtjee Rule 19. Amendments generally. The court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceeding, must disre- gard any error or defect in the proceeding 'which does not affect the substantial rights of the parties. Rule 20. Further sLlid particular statement in pleading may be required. A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. Rule 21. Scandal and impertinence. The right to ex- cept to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, imper- tinent or scandalous matter stricken out, upon such terms as the court shall think fit. Rule 22. Action at law erroneously begun as suit in equity — Transfer. If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential. Rule 23. Matters ordinarily determinable at law, when arising in suit in equity to be disposed of therein. If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court. Equity Rules 367 Rule 24. Signature of counsel. Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be consid- ered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instruc- tions laid before him regarding the case there is good ground for the same; that no scandalous matter is inserted in the pleading ; and that it is not interposed for delay. Rule 25. Bill of complaint — Contents. Hereafter it shall be sufficient that a bill in equity shall contain, in addition to the usual caption : First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. Second, a short and plain statement of the grounds upon which the court's jurisdiction depends. Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence. Fourth, if there are persons other than those named as defendants who appear to be proper parties, the bill should state why they are not made parties — as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction. Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alternative forms. If special relief pend- ing the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked. Rule 26. Joinder of causes of action. The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But 368 Fedebal, Jurisdiction and Peocbdtjeb when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to pro- mote the convenient administration of justice. If it appear that any such cause of action cannot be con- veniently disposed of together, the court may order separate trials. Rule 27. Stockholder's bill. 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 shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action, or the reasons for not making such effort. Rule 28. Amendment of biU as of course. The plain- tiff may, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plain- tiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge. After pleading filed by any defendant, plaintiff may amend only by consent of the defendant or leave of the court or judge. Equity Rules 369 Rule 29. Defenses — How presented. Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer ; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered. Rule 30. Answer — Contents — Counterclaim. The de- fendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any gen- eral denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed con- fessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of con- sistency, as the defendant deems essential to his defense. Long — 24 370 Fedebal Jtjeisdiction and Pkoceduee The answer must state in short and simple form any counter-claim arising out of the transaction which is the subject matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims. Rule 31. Reply — ^When required — When cause at issue. Unless the answer assert a set-off or counter- claim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plain- tiff. If the answer include a set-off or counter-claim the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. If the counter-claim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counter- claim may be entered as in default of an answer to the bill. Rule 32. Answer to amended bill. In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supple- mental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default, the like proceedings may be had as in case of an omission to put in an answer. Equity Rules 371 Rule 33. Testing sufficiency of defense. Exceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative defense, set-off or counter- claim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter. Rule 34. Supplemental pleading. Upon application of either party the court or judge may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the com- mencement of the suit determining the matters in contro- versy or a part thereof. Rule 35. Bills of revivor and supplemental bills — Form. It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. Rule 36. Officers before whom pleadings verified. Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United States, or of any state or territory, or of the District of Columbia, or any clerk of any court of the United States, or of any territory, or of the District of Columbia, or any notary public. Rule 37. Parties generally — Intervention. Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in 372 Federal Jurisdiction and Pbocbduee whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the stibject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Per- sons having a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant. Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding. Rule 38, Representatives of class. When the ques- tion is one of common or general interest to many persons constituting a class so numerous as to make it imprac- ticable to bring them all before the court, one or more may sue or defend for the whole. Rule 39. Absence of persons who would be proper parties. In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in its discre- tion, 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. Rule 40. Nominal parties. "Where no account, pay- ment, conveyance, or other direct relief is sought against Equity Eules 373 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 to do so by the prayer ; but he may appear and answer at his option ; and if he does not appear and answer he shall be bound by all the 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. Rule 41. Suit to execute trusts of will — Heir as party. In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party; but the plain- tiff shall be at liberty to make the heir at law a party where he desires to have the will established against him. Rule 42. Joint and several demands. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. Rule 43. Defect of parties — Resisting objection. Where the defendant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument as a motion upon that objec- tion only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, not- withstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall be allowed, be entitled as of course to an order to amend his bill by adding parties ; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require. 374 Fedebal Jurisdiction and Peocedube Rule 44. Defect of parties — Tardy objection. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties. Rule 45. Death of party — Revivor. In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be revived by the substitu- tion of the proper parties. If the successors or repre- sentatives of the deceased party fail to make such application within a reasonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion may make the necessary orders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be necessary. Rule 46. Trial — Testimony usually taken in open court — Rulings on objections to evidence. In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissibility of all evidence offered as in actions at law. When evi- dence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the charac- ter of the evidence, the form in which it was offered, the objection made, the ruling, and the exception. If the appellate court shall be of opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require. Equity Eules 375 Rule 47. Depositions — To be taken in exceptional in- stances. The court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general rule, to he shown by affidavit, may permit the deposition of named wit- nesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. All depositions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue ; those of the defendant within thirty days from the expiration of the time for the filing of plaintiff's depositions ; and rebutting depositions by either party within twenty days after the time for taking original depositions expires. Rule 48. Testimony of expert witnesses in patent and trade-mark cases. In a case involving the validity or scope of a patent or trade-mark, the district court may, upon petition, order that the testimony in chief of expert witnesses, whose testimony is directed to matters of opinion, be set forth in affidavits and filed as follows: Those of the plaintiff within forty days after the cause is at issue; those of the defendant within twenty days after plaintiff's time has expired ; and rebutting affidavits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party desire the production of any affiant for cross-examination, the court or judge shall, on motion, direct that said cross- examination and any re-examination take place before the court upon the trial, and unless the affiant is produced and submits to cross-examination in compliance with such direction, his affidavit shall not be used as evidence in the cause. 376 Federal, Jueisdiction and Peocedubb Rule 49. Evidence taken before examiners, etc. All evidence offered before an examiner or like officer, together with any objections, shall be saved and returned into the court. Depositions, whether upon oral examina- tion before an examiner or like officer or otherwise, shall be taken upon questions and answers reduced to writing, or in the form of narrative, and the witness shall be subject to cross and re-examination. Rule 50. Stenographer — Appointment — Fees. When deemed necessary by the court or officer taking testimony, a stenographer may be appointed who shall take down testimony in shorthand and, if required, transcribe the same. His fee shall be fixed by the court and taxed ulti- mately as costs. The expense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or ordering the transcript. Rule 51. Evidence taken before examiners, etc. Ob- jections to the evidence, before an examiner or like officer, shall be in short form, stating the grounds of objection relied upon, but no transcript filed by such officer shall include argument or debate. The testimony of each wit- ness, after being reduced to writing, ■ shall be read over to or by him, and shall be signed by him in the presence of the officer; provided, that if the witness shall refuse to sign his deposition so taken, the officer shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. Objection to any ques- tion or questions shall be noted by the officer upon the deposition, but he shall not have power to decide on the competency or materiality or relevancy of the questions. The court shall have power, and it shall be its duty, to deal with the costs of incompetent and immaterial or irrelevant depositions, or parts of them, as may be just. Rule 52. Attendance of witnesses before commis- sioner, master or examiner. "Witnesses who live within Equity Rules 377 the district, and whose testimony may be taken out of court by these rules, may be summoned to appear before a commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place spec- ified, who shall be allowed for attendance the same com- pensation as for attendance in court ; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in, the court. In case of refusal of witnesses to attend or be sworn or to answer any question put by the commissioner, master, or examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Rule 53. Notice of taking testimony before examiner, etc. Notice shall be given by the respective counsel or parties to the opposite counsel or parties of the time and place of examination before an examiner or like officer for such reasonable time as the court or officer may fix by order in each case. Rule 54. Deposition under Rev. Stat. §§ 863, 865, 866, 867 — Cross-examination. After a cause is at issue, dep- ositions may be taken as provided by sections 863, 865, 866 and 867, Eevised Statutes. But if in any case no notice has been given the opposite party of the time and place of taking the depositions, he shall, upon application 378 Fedebal Jueisdiction and Peoceduee and notice, be entitled to have tlie witness examined orally before the court, or to a cross-examination before an examiner or like officer, or a new deposition taken with notice, as the court or judge under all the circumstances shall order. Rule 55. Deposition deemed published when filed. Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be' deemed published, unless otherwise ordered by the court. Rule 56. On expiration of time for depositions, case goes on trial (Hilendar. After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar. Thereafter no further testimony by deposition shall be taken except for some strong reason shown by affidavit. In every such application the reason why the testimony of the witness cannot be had orally on the trial, and why his deposition has not been before taken, shall be set forth, together with the testimony which it is expected the witness will give. Rule 57. Continuances. After a cause shall be placed on the trial calendar it may be passed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued beyond the term save in exceptional cases by order of the court upon good cause shown by affidavit and upon such terms as the court shall in its discretion impose. Continuances beyond the term by consent of the parties shall be allowed on condi- tion only that a stipulation be signed by counsel for all the parties and that all costs incurred theretofore be paid. Thereupon an order shall be entered dropping the case from the trial calendar, subject to reinstatement within one year upon application to the court by either party, in which event it shall be heard at the earliest convenient Equity Etjlbs 379 day. If not so reinstated within the year, the suit shall be dismissed without prejudice to a new one. Rule 58. Discovery— Interrogatories — Inspection and production of documents — Admission of execution or genuineness. The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the support or defense of the cause, with a note at the foot thereof stat- ing which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private cor- poration, any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accordingly for the examination of such officer as may appear to be proper upon such inter- rogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party and shall be sent by the clerk to the respective solicitors of record, or to the last known address of the opposite party if there be no record solicitor. Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time be enlarged by the court or judge. Each interrogatory shall be answered separately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of inter- rogatories, objections to them, or any of them, may be 380 Federal Jurisdiction and Procedure presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required. The court or judge, upon motion and reasonable notice, may make all such orders' as may be appropriate to enforce answers to interrogatories or to effect the inspec- tion or production of documents in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. By a demand served ten days before the trial, either party may call on the other to admit in writing the execu- tion or genuineness of any document, letter or other writing, saving all just exceptions ; and if such admission be not made within five days after such service, the costs of proving the document, letter or writing shall be paid by the party refusing or neglecting to make such admis- sion, unless at the trial the court shall find that the refusal or neglect was reasonable. Rule 59, Reference to master — Exceptional, not usual. Save in matters of account, a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it. When such a reference is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be presented to the master for a hearing within twenty days succeeding the time when the reference was made, unless a longer time be specially granted by the court or judge ; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause Equity Eules 381 proceedings to be had before the master, at the costs of the party procuring the reference. Rule 60. Proceedings before master. Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the same 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 refer- ence, 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 proceed- ings and to make his report, and to certify to the court or judge the reason for any delay. Rule 61. Master's report — Documents identified but not set forth. In the reports made by the master to the court, no part of any state of facts, account, charge, affidavit, deposition, examination, or answer brought in or used before him shall be stated or recited. But such state of facts, account, charge, affidavit, deposition, exam- ination, or answer shall be identified, and referred to, so as to inform the court what state of facts, account, charge, affidavit, deposition, examination, or answer were so brought in or used. Rule 62. Powers of master. The master shall regu- late all the proceedings in every hearing before him, upon every reference ; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference j and also to require 382 Fedbeal Jxjeisdiction and Pbocedxjeb the production of all books, papers, writings, vouchers, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, or by deposition, according to the acts of Congress, or otherwise, as here provided; 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. Rule 63. Form of accounts before master. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, as the master shall direct. Rule 64. Former deposition, etc., may be used before 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. Rule 65. Claimants before master examinable by him. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary. Equity Rules 383 Rule 66. Return of master's report — Exceptions — Hearing. The master, as soon as his report is ready, shall return the same into the clerk's office' and the day of the return shall be entered by the clerk in the Equity Docket. The parties shall have twenty days from the time of the filing of the report to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court, if then in session, or, if not, at the next sitting held thereafter, by adjournment or otherwise. Rule 67. Costs on exceptions to master's report. 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 over- ruled, pay five dollars costs to the other party, and for every exception allowed shall be entitled to the same costs. Rule 68. Appointment and compensation of masters. The district courts may appoint standing masters in chancery in their respective districts (a majority of all the judges thereof concurring in the appointment), and they may also appoint a master pro hac vice in any par- ticular case. The compensation to be allowed to every master shall be fixed by the district court, in its discre- tion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation ; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. 384 Fedebal Jubisdiction and Pboceduee Rule 69. Petition for 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 circuit court of appeals or the supreme court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. Rule 70. Suits by 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 of suing for themselves. All infants and other persons so inca- pable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court or judge may direct for the protection of infants and other persons. Rule 71. Form of decree. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin, in substance, as follows: "This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz:" (Here insert the decree or order.) Rule 72. Correction of clerical mistakes in orders and decrees. Clerical mistakes in decrees or decretal orders, Equity Rules 385 or errors arising from any accidental slip or omission, may, at any time before the close of the term at which final decree is rendered, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a hearing. Rule 73. Preliminary injunctions and temporary re- straining orders. No preliminary injunction shall be granted without notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that immediate and irreparable loss or damage will result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contingency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for hearing the party who obtained the temporary restraining order shall proceed with his appli- cation for a preliminary injunction, and if he does not • do so the court shall dissolve his temporary restraining order. Upon two days ' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restrain- ing order shall be forthwith filed in the clerk's office. Rule 74. Injunction pending appeal. When an ap- peal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or a judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order Long — 25 386 Fedeeal Jtjeisdiction and Peocedueb suspending, modifying or restoring the injunction dur- ing 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. Rule 75. Record on appeal — Reduction and prepara- tion. In case of appeal : (a) It shall be the duty of the appellant or his solicitor to file with the clerk of the court from which the appeal is prosecuted, together with proof or acknowledgment of service of a copy on the appellee or his solicitor, a praecipe which shall indicate the portions of the record to be incorporated into the transcript on such appeal. Should the appellee or his solicitor desire additional por- tions of the record incorporated into the transcript, he shall file with the clerk of the court his praecipe also within ten days thereafter, unless the time shall be enlarged by the court or a judge thereof, indicating such additional portions of the record desired by him. ( b ) The evidence to be included in the record shall not be set forth in full, but shall be stated in simple and con- densed form, all parts not essential to the decision of the questions presented by the appeal being omitted and the testimony of witnesses being stated only in narrative form, save that if either party desires it, and the court or judge so directs, any part of the testimony shall be repro- duced in the exact words of the witness. The duty of ,so condensing and stating the evidence shall rest primarily on the appellant, who shall prepare his statement thereof and lodge the same in the clerk's office for the examina- tion of the other parties at or before the time of filing his praecipe under paragraph a of this rule. He shall also notify the other parties or their solicitors of such lodg- ment and shall name a time and place when he will ask the court or judge to approve the statement, the time so named to be at least ten days after such notice. At the expiration of the time named or such further time as the Equity Eules 387 court or judge may allow, the statement, together with any objections made or amendments proposed by any party, shall be presented to the court or the judge, and if the statement be true, complete and properly prepared, it shall be approved by the court or judge, and if it be not true, complete or properly prepared, it shall be made so under the direction of the court or judge and shall then be approved. When approved, it shall be filed in the clerk's office and become a part of the record for the purpose of the appeal. (c) If any difference arise between the parties concern- ing directions as to the general contents of the record to be prepared on the appeal, such difference shall be sub- mitted to the court or judge in conformity with the provi- sions of paragraph b of this rule and shall be covered by the directions which the court or judge may give on the . subject. Rule 76. Record on appeal — Reduction and prepara- tion — Coats — Correction of omissions. In preparing the transcript on an appeal, especial care shall be taken to avoid the inclusion of more than one copy of the same paper and to exclude the formal and immaterial parts of all exhibits, documents and other papers included therein ; and for any infraction of this or any kindred rule the appellate court may withhold or impose costs as the cir- cumstances of the case and the discouragement of like infractions in the future may require. Costs for such an infraction may be imposed upon offending solicitors as well as parties. If, in the transcript, anything material to either party be omitted by accident or error, the appellate court, on a proper suggestion or its own motion, may direct that the omission be corrected by a supplemental transcript. Rule 77. Record on appeal^Agreed statement. When the questions presented by an appeal can be determined 388 Fedeeal Jurisdiction and Peooeduee by the appellate court without an examination of all the pleadings and evidence, the parties, with the approval of the district court or the judge thereof, may prepare and sign a statement of the case showing how the ques- tions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a deci- sion of such questions by the appellate court. Such statement, when filed in the office of the clerk of the district court, shall be treated as superseding, for the purpose of the appeal, all parts of the record other than the decree from which the appeal is taken, and, together with such decree, shall be copied and certified to the appellate court as the record on appeal. Rule 78. Affirmation in lieu of oath. Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. Rule 79. Additional rules by district court. With the concurrence of a majority of the circuit judges for the circuit, the district courts may make any other and further rules and regulations for the practice, proceed- ings and process, mesne and final, in their respective districts, not inconsistent with the rules hereby pre- scribed, and from time to time alter and amend the same. Rule 80. Computation of time — Sundays and holi- days. When the time prescribed by these rules for doing any act expires on a Sunday or legal holiday, such time shall extend to and include the next succeeding day that is' not a Sunday or legal holiday. Rule 81. These rules effective February 1, 1913— Old rules abrogated. These rules shall be in force on and Equity Exiles 389 after February 1, 1913, and shall govern all proceedings in cases then pending or thereafter brought, save that where in any then pending cause an order has been made or act done which cannot be changed without doing sub- stantial injustice, the court may give effect to such order or act to the extent necessary to avoid any such injustice. All rules theretofore prescribed by the supreme court, regulating the practice in suits of equity, shall be abro- gated when these rules take effect. TABLE OF CASES [eepekences ase to pages] Adair v. United States, 208 U. S. 161: 32. Aetna Life Ins. Co. v. Moore, 231 U. S. 543 : 15. American Construction Co. v. Jack- sonville, etc., E. Co., 148 U. S. 372: 91, 96. American Ins. Co. v. Canter, 1 Pet. 511: 37, 111. Ames V. Kansas, 111 U. S. 449 : 84. Anderson v. Watt, 138 U. S. 694: 52. Baldwin v. Franks, 120 U. S. 678: 32. Bait. & Ohio R. Co. v. Baugh, 149 U. S. 149: 15. Bank of the United States v. De- veaux, 5 Cranch 61: 49, 51, 83. Bankers Trust Co. v. Texas, etc., E. Co., 241 U. S. 295: 51-52. Barney v. Baltimore City, 6 Wall. 280: 145. Barney v. Latham, 103 U. 8. 205: 124. Barrow Steam8hip Co. v. Kane, 170 U. S. 100: 46, 50. Baylis v. Travellers' Ins. Co., 113 U. S. 316: 133. Beal V. SomervUle, 50 Fed. 652: 67. Bennett v. Butter worth, 11 How. 669: 4. Bergman v. Ely, 66 Fed. 40: 61. Biddle v. United States, 156 U. S. 759: 113. 391 Blake v. McClung, 172 U. S. 239: 48. Blake v. McKim, 103 U. S. 336: 123. Blythe v. Hinckley, 173 U. S. 501: 58. Bonner v. Gorman, 213 U. S. 86: 106. Boyce v. Grundy, 3 Pet. 210: 18. Boyd V. United States, 116 U. S. 616: 32. Boyle V. Zacharie, 6 Pet. 658: 20. Erine v. Insurance Co., 96 U. S. 627 : 19. Bucher v. Cheshire E. Co., 125 U. S. 555: 6, 13, 61, 62. Burgess v. Seligmau, 107 U. S. 20: 46, 63. Butts V. Merchants, etc., Transporta- tion Co., 230 U. S. 126: 32. Buzard v. Houston, 119 U. S. 347: 18. C Cable V. United States Ins. Co., 191 U. 8. 288: 126. California v. Southern Pacific Co., 157 U. S. 229: 83, 84, 86. Callan v. Wilson, 127 U. 8. 540 : 32. Carpenter v. Providence Washington Insurance Co., 16 Pet. 495: 13, 15. Central E. of New Jersey v. New Jersey West Line E. Co., 32 N. J. Eq. 67: 61. Chesapeake, etc., E. Co. v. McCabe, 213 U. 8. 207: 130, 131. Chisholm v. Georgia, 2 Dall. 419: 45, 89. City of Chicago v. Bobbins, 2 Black. 418: 15. 392 Table op Cases [references are to pages] City of Detroit v. Osborne, 135 TJ. S. 492: 62. Civil Eights Cases, 109 U. S. 3: 32. Clafln V. Houseman, 93 TJ. S. 130: 56, 58. Cochran v. Montgomery County, 199 U. S. 260: 118, 121, 124. Cohens v. Virginia, 6 Wheat. 264: 2, 3, 35, 84, 98. Collector v. Day, 11 Wall. 113: 32. Colson V. Lewis, 2 Wheat. 377: 52. Colton V. Hawaii, 211 U. S. 162: 97. Commercial & Bailroad Bank v. Slocomb, 14 Pet. 60: 49. Com. V. Phila., etc.. Coal, etc., Co., 145 Pa. St. 283: 98. Connell v. Smiley, 156 U. S. 335: 124. Continental Nat. Bank v. Buford, 191 U. S. 119: 52. Counselman v. Hitchcock, 142 tJ. S. 547: 32. Cowles V. Mercer County, 7 Wall. 118: 48. Decatur v. Paulding, 14 Pet. 497: 24. De Vaughn v. Hutchinson, 165 TJ. S. 566: 64. Donald v. Philadelphia, etc., B. Co., 241 TJ. S. 329: 126. Dower v. Richards, 151 TJ. 8. 658: 103. Doyle V. Continental Ins. Co., 94 TJ. S. 535: 125. Dred Scott v. Sanf ord, 19 How. 393 : 32, 47. E East Central Eureka Min. Co. v. Central Eureka Min. Co., 204 TJ. S. 266: 64. EUis V. Davis, 109 TJ. S. 485: 18. Embry v. Palmer, 107 TJ. S. 3: 109. Employers Liability Cases, 207 TJ. S. 463 : 32, 33. Ex parte BoUman, 4 Cranch 75: 86. Ex parte Boyer, 109 U. S. 629: 38. Ex parte Easton, 95 TJ. S. 68 : 42. Ex parte Garland, 4 Wall. 33 : 31, 32. Ex parte Harding, 219 TJ. S. 365: 130. Ex parte Hung Hang, 103 TJ. S. 552 r 86. Ex parte MeCardle, 6 Wall. 318, 7 Wall. 506: 92. Ex parte Milligan, 4 Wall. 2 : 116. Ex parte Eoe, 234 TJ. S. 70: 130. Ex parte Virginia, 100 Va. 339 : 86. Ex parte Wisner, 203 TJ. S. 449: 121. P Fairbanks v. United States, 181 TJ. 8. 283: 32. Fairfax's Devisee v. Hunter, 7 Cranch 603: 98. Fenn v. Holme, 21 How. 481: 4. Fish V. Henarie, 32 Fed. 423 : 2. Florida v. Anderson, 91 TJ. S. 667: 84. Florida v. Georgia, 17 How. 478: 86. Fontain v. Ilavenel, 17 How. 369: 18. Forepaugh v. Delaware, etc., E. Co., 128 Pk. St. 228: 13, 17. Forsyth v. Hammond, 166 TJ. S. 506: 95. Foxeroft v. Mallett, 4 How. 353 : 64. Frank v. Magnum, 237 TJ. 8. 309: 105. G Garzot v. Eubin, 209 TJ. S. 283 : 97. Gassies v. Ballon, 6 Pet. 761 : 47. Gelpke v. City of Dubuque, 1 Wall. 175: 65. Gold Washing, etc., Co. v. Keyes, 96 U. S. 199: 35. Golden v. Prince, 3 Wash. 313: 62. Table of Cases 393 [references Gordon v. United States, 2 Wall. 561, 117 TJ. S. 697 : 31, 83, 85. Great Southern Hotel Co. v. Jones, 193 U. S. 532: 63. Green v. Neal, 6 Pet. 291 : 60, 62, 66. Green v. Wilhite, 14 Idaho 238 : 59. Greer v. Mathieson AlkaU Works, 190 U. S. 428: 123. Guffey V. Smith, 237 U. S. 101: 20. Hanrick v. Hanrick, 153 U. S. 192: 124. Hans V. Loiiisiana, 134 U. S. 1: 45, 46. Harkrader v. Wadley, 172 U. S. 148: 67. Harrison v. St. Louis, etc., B. Co., 232 U. S. 318: 126. Hayburn's Case, 2 Dall. 409: 23. Hepburn v. Griswold, 8 Wall. 603: 31, 32. Hemdon v. Chicago, etc., E. Co., 218 U. S. 135: 126. Hodges V. United States, 203 U. S. 1: 32. HoUingsworth v. Virginia, 3 Dall. 378: 45. Home Ins. Co. v. Morse, 20 Wall. 445: 126. Hooe V. Jameson, 166 U. S. 395 : 47, 48. Hough V. EaUway Co., 100 U. S. 213: 15. Hunter v. Fairfax's Devisee, 1 Munf. (Va.) 218, 4 Munf. (Va.) 1: 98. Hylton V. United States, 3 Dall. 171: 3L I In re Baiz, 135 U. 8. 403: 36, 83. In re Barry, 136 U. S. 597 : 55. In re Garnett, 141 U. S. 1 : 37, 39. In re Greene, 52 Ted. 104: 21. In re HefE, 197 U. S. 488 : 32. ARE TO pages] In re Ingalls, 139 U. S. 548: 105. In re Paeifio E. Commission, 32 Fed. 241: 2. In re Pennsylvania Co., 137 U. S. 451: 124. In re Sanborn, 148 U. S. 222 : 83. In re Vallandingham, 1 Wall. 243: 116. In re Vidal, 179 U. S. 126: 116. Indianapolis, etc., E. Co. v. Hoist, 93 U. S. 291: 133. Interstate Commerce Com. v. Brim- son, 154 U. S. 447 : 2. Interstate Commerce Commission v. Goodrich Transit Co., 224 U. 8. 194: 114-115. Iowa Central E. Co. v. Bacon, 236 U. S. 305: 130. Irvine v. Marshall, 20 How. 558: 4. Ives v. South Buflfalo E. Co., 201 N. Y. 271 : 100. James v. Bowman, 190 U. S. 127: 32. Jensen v. Southern Pacific E. Co., 215 N. Y. 514: 100. Johnson v. Eisk, 137 U. S. 300: 106. Jones V. Meeham, 175 U. S. 1: 32. Julian V. Central Trust Co., 193 U. S. 93: 63, 67. Justices V. Murray, 9 Wall. 274: 31. K Kansas v. Colorado, 206 U. S. 46: 9, 44, 88. Kansas v. United States, 204 U. S. 331: 43. Kansas City Southern E. Co. v. United States, 231 U. S. 423: 115. KeUer v. United States, 213 U. 8. 138: 32. Kendall v. Stockton & Stokes, 12 Pet. 527: 24. Kentucky v. Dennison, 24 How. 66: 86. 394 Table op Cases [repebences are to pages] Kilbum V. Thompson, 103 U. S. 168: 32. Kirby v. Lake Shore, etc., Eailroad, 120 U. S. 130: 19. Knapp, Stout & Co. v. MeCafErey, 177 U. S. 638: 40. Kuhn V. Fairmont Coal Co., 215 U. S. 349: 64. La Alva Silver Mining Co. v. United States, 175 U. S. 423: 2. Lake Shore, etc., E. Co. v. Prentice, 147 U. S. 101: 16. Lane v. Vick, 3 How. 464 : 64. Leathe v. Thomas, 207 U. S. 93 : 106. Legal Tender Cases, 12 Wall. 457: 32. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 : 63. Liverpool, etc.. Steam Co. v. Phoenix Insurance Co., 129 TJ. S. 327: 16. Louisiana v. McAdoo, 234 U. S. 627 : 24, 43. Louisiana v. Mississippi, 202 U. S. 1: 44. Louisiana v. Texas, 176 U. S. 1 : 44. Louisville, etc., E. Co. v. Finn, 235 U. S. 601: 36. Louisville, etc., E. Co. v. Letson, 2 How. 497: 50. Louisville, etc. E. Co. v. Motley, 211 U. S. 149: 35. Luke V. Lyde, 2 Burr 882: 12. Luther v. Borden, 7 How. 1: 24, M McAllister v. United States, 141 U. S. 170: 111. Mackay v. Uinta Development Co., 229 U. S. 173: 128. Macon Grocery Co. v. Atlantic Coast Line E. Co., 215 U. S. 501 : 35. Madisonville Traction Company v. St. Bernard Mining Co., 196 U. S. 239: 127. Marbury v. Madison, 1 Cranch 137: 24, 31, 83, 84. Martin v. Bait. & 0. E. Co., 151 U. S. 673: 61. Martin v. Hunter, 1 Wheat. 304, 330: 55, 98. Mason v. Ship Blaireau, 2 Cranch 240: 53. Matter of Dunn, 212 U. S. 374: 36, 51, 121. Mechanics', etc.. Bank v. Union Bank, 22 Wall. 276: 116. Meriwether v. Barrett, 102 U. S. 472: 89. Mexican Nat. E. Co. v. Davidson, 157 U. S. 201: 121. Minnesota v. Hitchcock, 185 U. S. 373: 43. Minnesota v. Northern Securities Co., 194 U. S. 48: 48. Mississippi, State of, v. Johnson, 4 Wall. 475: 24. Mississippi Mills v. Cohn, 150 U. S. 202: 19. Missouri v. Illinois, 200 U. S. 496: 44, 88. Missouri Pac. E. Co. v. Fitzgerald, 160 U. S. 556: 130. Missouri, etc., E. Co. v. Harris, 234 U. S. 412: 102. Mbnongahela Navigation Co. v. United States, 148 U. S. 312: 32. Montalet t. Murray, 4 Cranch 46 : 53. Moore-Mansfield Construction Co. v. Electrical Installation Co., 234 U. S. 619 : 65. Morris v. Gihner, 129 U. S. 315 : 52. MuUer v. Dows, 94 U. S. 444: 50, 51. Murdock v. City of Memphis, 20 WaU. 590: 100, 103. Muskrat v. United States, 219 U. S. 390 : 23, 24, 32, 83. Myrick v. Michigan Cent. E. Co., 107 U. S. 102: 16. Table of Cases 395 [references are to pages] N Nashua, etc., E. Corp. v. Boston, etc., E. Corp., 136 U. S. 356: 51. Neeley v. Henkel, 180 U. S. 109 : 24. Neves v. Scott, 13 How. 268 : 19. New Hampshire v. Louisiana, 108 U. S. 76: 44. New Orleans v. Winter, 1 Wheat. 91: 48. New York Guaranty Co. v. Memphis Water Co., 107 U. S. 205: 18. Nichols V. Eaton, 91 U. S. 716: 19. North Carolina v. Tennessee, 231 U. S. 1, 240 U. S. 652: 87. Northern Securities Co. v. United States, 193 U. S. 197: 94. Nudd V. Burrows, 91 U. S. 426: 133. O Gates V. National Bank, 100 U. S. 239: 15. Ohio Tax Cases, 232 U. S. 576: 36. Ohio & Mississippi E. Co. v. Wheeler, 1 Black. 286: 51. Oregon v. Hitchcock, 202 U. S. 60: 43. Osborn v. Bank of the United States, 9 Wheat. 738 : 2, 35, 36, 51. Owings V. Hull, 9 Pet. 607 : 61. Pacific Eailroad Eemoval Cases, 115 U. S. 1: 36, 51. Pacific States Telephone, etc., Co. v. Oregon, 223 U. 8. 118: 24. Pana v. Bowler, 107 U. S. 529 : 16. Paul V. Virginia, 8 Wall. 168: 48. Payne v. Hook, 7 Wall. 425: 18. Pembina Mining Co. v. Pennsylvania, 125 U. S. 181: 48. Pennsylvania v. Quicksilver Co., 10 Wall. 553: 46, 83, 84. Pennsylvania Company v. Bender, 148 U. S. 255: 127. Pennsylvania E. Co. v. Hughes, 191 • U. S. 477: 13. Paper v. Pordyce, 119 U. S. 469 : 47. Peyroux v. Howard, 7 Pet. 324: 37. Plaquemes Tropical Fruit Co. v. Henderson, 170 U. S. 511 : 56. Pollock V. Farmers' Loan & Trust Co., 157 U. S. 429, 158 U. S. 601 : 32, 33. Powers V. Chesapeake E. Co. 169 U. S. 92: 130, 13L Presidio County v. Noel- Young Bond Co., 212 U. S. 58 : 15, 16. Price V. Illinois, 238 U. S. 446: 63. Proctor & Gamble Co. v. United States, 188 Fed. 221, 225 U. S. 282: 109. E Eailroad Co. v. Koontz, 104 U. S. 5 : 131. Eailroad Company v. Lockwood, 17 WaU. 357 : 14, 16. Eailroad Company v. National Bank, 102 U. 8. 14: 15. Eailway Co. v. Whitton, 13 Wall. 270: 51, 55. Eassmussen v. United States, 197 U. S. 516: 32. Eeichart v. Felps, 6 Wall. 160 : 31. Eemoval Cases, 100 U. S. 457: 127. Ehode Island v. Massachusetts, 12 Pet. 657: 87. Eobb v. Connolly, 111 U. S. 624: 56. Eobinson v. Campbell, 3 Wheat. 212 : 18. Eose V. Himely, 4 Cranch 241 : 22. Eussell V. Southard, 12 How. 139: 19. S St. Joseph, etc., E. Co. v. Steele, 167 U. S. 659 : 51. 396 Table of Cases [KErERENCES ARE TO PAGES] Santiago v. Nogneras, 214 V. S. 260 : 116. Second Employers Liability Cases, 223 U. S. 1: 33. Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246: 126. Sewing Machine Companies, Cases of, 18 Wall. 553: 47. Shaw V. Quincy Mining Co., 145 TJ. S. 444: 48. Sheffield Furnace Co. v. Witherow, 149 U. S. 574: 19. Shelton v. Piatt, 139 U. S. 591 : 156. Shelton v. Tiffin, 6 How. 163 : 47. Shields v. Barrow, 17 How. 130: 145. Shoshone Mining Co. v. Eutter, 177 U. S. 505: 35,56. Simms v. Simms, 175 U. S. 162: 97. Smith V. Adams, 130 V. S. 167: 2. Smith V. Alabama, 124 XI. S. 465: 6. Smith V. American Nat. Bank, 89 Fed. 832: 4, 55. Smith V. Stevens, 10 Wall. 371 : 32. Snyder v. Marks, 109 TJ. S. 189 : 156. South Carolina v. United States, 199 TJ. S. 437: 43. South Dakota v. North Carolina, 192 U. S. 286: 44, 89. Stanley v. Sehwalby, 162 U. S. 255: 43. State of Georgia v. Brailsford, 2 DaU. 402 : 82. State of Georgia v. Stanton, 6 Wall. 50: 24. State of Louisiana v. McAdoo, 234 U. S. 627: 24, 43. State of Mississippi v. Johnson, 4 Wall. 475: 24. Stearns v. Wood, 236 U. S. 75 : 24. Stevenson v. Fair, 195 TJ. S. 165: 52. Stoiie V. South Carolina, 117 TJ. 8. 430: 48, 130. Strawbridge v. Curtiss, 3 Cranch 267: 47. Supervisors v. Schenck, 8 Wall. 772: 16. Swift V. Tyson, 16 Pet. 1: 10, 13, 15, 61. Taylor v. Beckham, 178 TJ. S. 548: 24. Tennessee v. Davis, 100 TJ. S. 257: 2, 35. Texas v. White, 7 Wall. 700: 45. The Alicia, 7 Wall. 571: 31. The Belfast, 7 Wall. 624: 38. The Conqueror, 166 V. S. 110: 96. The Daniel BaD, 10 WaU. 557: 37. The Glide, 167 U. S. 606: 40. The Grapeshot, 4 Wall. 129: 116. The Hamilton, 207 U. S. 398: 40. The J. E. Rumbell, 148 U. S. 8: 40. The Lottawanna, 21 Wall. 558: 39, 41. The Mereide, 9 Cranch 388: 22. The Montello, 11 Wall. 411: 38. The Moses Taylor, 4 Wall. 411 ; 56. The Paquette Habana, 175 TJ. S. 677: 22. The Peterhoff, 5 Wall. 28: 22. The Prize Cases, 2 Black. 635: 22. The Propeller Genesee Chief v. Fitzhugh, 12 How. 443: 37, 38, 39. The Robert W. Parsons, 191 TJ. S. 1: 37, 38. The Springbok, 5 Wall. 1 : 22. The Steamboat Orleans v. Phoebus, 11 Pet. 175: 37. The Thomas Jefferson, 10 Wheat. 428: 37. Toeg V. SufFert, 167 Fed. 125: 113. Town of Paulet v. Clark, 9 Cranch 292: 52. Trade Mark Cases, 100 TJ. S. 82: 31-32. Twitchell v. Com., 7 WaU. 321: 103, 105. Table of Cases 397 [BEFEBENOES ABE TO PAGES] U United States v. Beese, 92 U. S. 214: 31. Union Nat. Bank v. Bank of Kan- United States v. Eeid, 12 How. 361 : sas City, 136 U. S. 223 : 62-63. 134. United States v. CooUdge, 1 Wheat. United States v. Severino, 125 Fed. *15: 21. 953: 59. United States v. Coombs, 12 Pet. United States v. Texas, 143 U. S. 72:37. 621:43. United States v. Dewitt, 6 WaU. 41: United States v. Turner, 11 How. 31. 663: 61. United States v. Eaton, 144 U. S. United States v. Wilson, 118 U. S. 86: 19. United States v. Yale Todd, 13 How. 52n: 23. 677: 21 United States v. Evans, 213 U. S. 297: 24. United States v. Fereira, 13 How. 40: 23. United States v. Pox, 95 U. S. 670: 31. United States v. Hamburg- American Co., 239 U. S. 466: 24. United States v. Harris, 106 U. S. 629: 32. United States v. Howland, 4 Wheat. 108: 18, 20. United States v. Hudson, 7 Craneh 32: 21. United States v. Hvoslef, 237 U. S. 1: 32. United States v. Jones, 119 U. S. 477* 31 . ' „' , T^ ■ ,„ -rrr « Washington v. Oregon, 211 U. S, United States v. Klein, 13 WaU. -,gr,.~.. Virginia v. Eives, 100 U. S. 313: 54, 86, 97. Virginia v. West Virginia, 11 Wall. 39: 44. Virginia v. West Virginia, 206 U. S. 290, 234 Va. 117, 238 U. S. 202, 241 U. S. 531: 44, 86, 90, 91. W Warner v. New Orleans, 167 U. S. 467: 95. 322: 31. United States v. Lee, 106 U. S, 196: 42. United States v. Michigan, 190 U. S, 379: 88, 89. United States v. North Carolina, Wehrman v. Conklin, 155 U. S. 314: 127: 44. Waterman v. Canal-Louisiana Bank, 215 U. S. 33: 146. Watson V. Tarpley, 18 How. 517: 15. 136 U. S. 211 : 88, 89. ■^^• United States v. Ortega, 11 Wheat, ^ells Fargo & Co. v. Ford, 238 U. S. 467: 36,83. ^^^'- '^^'^• United States v. Palmer, 3 Wheat. West v. Barnes, 2 Dall. 401: 82. 610: 21. Western Union Telegraph Co. v. United States v. Peters, 5 Craneh Call, 181 U. S. 92: 8. 115 . gg. Wheaton v. Peters, 8 Pet. 591 : 6. United States v. Eailroad Co., 17 Whelan v. New York, etc., E. Co., WaU. 322: 32, 35 Fed. 849: 124. 398 Table of Cases [EErERENCES ARE TO PAGES] Whitcomb v. White, 214 U. S. 15: 113. Williams v. Bankhead, 19 Wall. 563 : 145-146. Williams v. Bruffy, 102 V. S. 248: 98. Wilson V. Oswego Township, 151 U. S. 56: 47. Wisconsin v. Pelican Ins. Co., 127 V. S. 265: 84. Wong Wing v. United States, 163 U. S. 228: 32. Wood Mowing, etc., Co. v. Skinner, 139 U. S. 293 : 105. i Worcester v. Georgia, 6 Pet. 515: 88. Worrell's Case, 2 Ball. 384: 21. Tates V. Milwaukee, 10 Wall. 497: 14. INDEX [eefeeences are to pages] ADMIRALTY AND MARITIME SUITS, federal jurisdiction of, 36-42, 56, 75. procedure in, 135, 136. ALASKA, court for, 111. ALIENS, suits between, jurisdiction of, 53. controversies with citizens, jurisdiction of, 53. AMBASSADORS, ETC., cases affecting, 36. AMOUNT IN CONTROVERSY, as affecting jurisdiction, 55, 75. as affecting right of removal, 125. APPELLATE JURISDICTION, see District Courts, Circuit Courts of Appeals, Supreme Court. BANKRUPTCY SUITS, jurisdiction of, 57, 75, 79, 96. procedure in, 136. CASE, defined, 2. involving federal question, 35, 36. affecting ambassadors, etc., 36. of admiralty or maritime jurisdiction, 36. CERTIFICATE, from Circuit Courts of Appeals to Supreme Court, 93, 95. CERTIORARI, from Supreme Court to Circuit Court of Appeals, 93, 95. from Supreme Court to state courts, 100, 103, CHINA, United States court for, 112, 113. 399 400 Index [BEF£EENCES ABE TO PAGES] CIRCUIT COURTS, as formerly eidsting, 73. abolished by Judicial Code, 74. CIRCUIT COURTS OP APPEALS, establishment, 76. organization and terms, 77. appeals from, 80. jurisdiction, in general, 77, 78. final jurisdiction, 79. review of decisions of by the Supreme Court, 80, 94-96. CIRCUIT JUDGE, 71. CIRCUIT JUSTICE, 73. , CIRCUITS, judicial, 69, 70. CITIZENSHIP, meaning of, as affecting jurisdiction, 47, 48. diverse, 46, 47. effect of change of, 52. COMMERCE COURT, 108, 109. COMMERCIAL LAW, GENERAL, 9-15. COMMON LAW, federal, 6-17. CONCURRENT JURISDICTION, of state and federal courts, 57-66. CONSTITUTIONALITY OF STATUTES, power of courts to determine, 25-31. extent to which power has been exercised, 31-33, CONSULAR COURTS, 112. CONTROVERSY, defined, 2. to which United States is a party, 42, 43. between two or more states, 44. between a state and citizens of another state, 45. between a state and its own citizens, 76. between citizens of different states, 46, 47. involving conflicting land grants, 52. between a state, etc., and a foreign state, etc., 52, 53. Index 401 [references are to faqes] COPYRIGHTS, jurisdiction of suits affecting, 57, 75. CORPORATIONS, citizenship of, 48-52. COURT OF CLAIMS, 107. COURT OF CUSTOMS APPEALS, 108. COURT OF PATENT APPEALS (PROPOSED), 72. COURT OF PRIVATE LAND CLAIMS, 112. COURTS, comity between state and federal, 66, 67. comity between federal inter se, 67, 68. see Federal Courts; Military Courts; State Courts; Territorial Courts. CRIMINAL JURISDICTION, of federal courts, 20, 21. procedure, 133-135. DEPARTMENT OF JUSTICE, organization of, 113, 114. DISTRICT COURT, organization and terms, 74. jurisdiction, 74, 75. appeals from, 76. removal of cause to, 116-119. DISTRICT OF COLUMBIA, citizens of not citizens of state, 48. courts of, 109, 110. DISTRICT JUDGE, 71. DISTRICTS, judicial, 69. DIVERSE CITIZENSHIP, as ground of jurisdiction, 46, 47. as ground of removal, 122. EQUITY, jurisdiction of federal courts, 17-20. EQUITY PROCEDURE, federal equity procedure, in general, 137-139. general cause of a suit in equity, 139. 402 Index [eeperences are to pages] EQUITY PROCEDURE— Continued the pleadings, in general, 139-141. the bill, 141-142. parties, 143-148. process, 149, 150. defenses, in general, 150, 151. the answer, 151, 152. plaintiff's course after answer, 152, 153. trial, coincidence, 153-155. depositions, 154, 155. placing case on trial calendar, 155. continuances, 153, 156. injunctions, 156. the decree, 156, 157. decree pro confesso, 157, 158. enforcement of decree, 158, 159. EQUITY RULES, adoption of, 138. test of, appendix, 360-389. rules quoted in text: rule 7 149. rule 8 158. rule 10 157. rule 11 150. rule 12 149. rule 13 149. rule 14 150. rule 15, 150. rule 17 157. rule 18 140. rule 19 140. rule 20 141. rule 21 140. rule 24 140. rule 25 142. ' rule 26 142. rule 28 143. rule 29 150, 158 rule 30 151. rule 31 153. rule 32 152. rule 33 153. rule 34 141. rule 35 141. rule 37 146. Index 403 [EEPERENOES ABE TO PAGES] EQUITY RULES— Continued rules quoted in text — continued rule 38, 146. rule 39, 146. rule 40, 147. rule 41, 147. rule 42, 147. rule 43, 148. rule 44, 148. rule 45, 148. rule 46, 154. rule 47, 154. rule 56, 155. rule 57, 155. rule 70, 147. rule 71, 157. rule 78, 140. EXCLUSIVE JURISDICTION, of admiralty causes, 40. of federal courts, 55-57. original, of Supreme Court, 86. FEDERAL COMMON LAW, in general, 6-17. classification of, 16. FEDERAL COURTS, constitutional provision for, 69. enumeration of, 72. administration of state law by, 59-61. comity between and state courts, 66, 67. comity inter se, 67, 68. FEDERAL JUDGES, 70, 71. FEDERAL JURISDICTION, analysis of, 2, 3, 4. at law, 5-16. in equity, 17-20. criminal, 20, 21. international law, 21, 22. particular instances of, 34, 35. incidental, 36. legislation afEeeting, 54, 55. exclusive, 55-57. concurrent with states, 57-61. 404 Index [KErEEENCES ABE TO PAGES] FEDERAL QUESTION, cases involving, 35, 36. as ground of removal, 122. TEDEEAL REPORTS, supreme court, 160, 161. inferior courts, 161-165. FEDERAL STATUTES, compilations of, 165, 166. GENERAL LAND OFFICE, 114. HAWAII, court for. 111. INTERNATIONAL LAW, federal jurisdiction of, 21, 22. INTERSTATE COMMERCE COMMISSION, 114. JUDGES, federal, 70, 71. JUDICIAL CIRCUITS, 69, 70. JUDICIAL CODE, adoption of, 55. text of, appendix, 169-359. JUDICIAL DISTRICTS, 69. JUDICIAL POWER, extent of federal, 34. definition and nature of, 23, 24. Federal, how vested, 69. JURT TRIAL, right of, 133, 134, 135. LAW AND EQUITY, distinction preserved, 4. MILITARY COURTS, 115, 116. PATENTS, jurisdiction of suits affecting, 57, 75. Index 405 [EEPEEENCES ABE TO PAOES] PHILIPPINE ISLANDS, courts of, 111. POETO EICO, court for, 111. PEEJTJDICE AND LOCAL INFLUENCE, removal of cause for, 124, 128. PEOCEDUBB, in general, 132. at law, 132, 133. criminal, 133-135. in admiralty, 135, 136. in bankruptcy, 136. by writ of error from Supreme Court to state courts, 105, 106. in removal of cause, 126-131. in equity, 137-159. EEMOVAL OF CAUSE, from one federal court to another, 117. from state to federal court, 117-131. EEPOETS, of Supreme Court, 160, 161. of inferior courts, 161-165. SEPARABLE CONTEOVEESY, removal of, 123. STATE, not a citizen, 48. suits by and against, 43, 44, 45, 52, 53, 82, 83. enforcement of judgments against, 87-91. STATE COUETS, decisions of, as precedents in federal courts, 61-67. removal of cause from, 117-131. writ of error, etc., to, from Supreme Court, 97-106, injunction to stay proceedings in, 66. administration of federal law by, 57-59. STATE LAW, administration of by federal courts, 59-61. STATUTES, EEDEEAL, compilations of, 165, 166. 406 Index [EEFEBENCES ABE TO PAGES] SUPREME COURT, organization and terms, 81, 82. jurisdiction, in general, 82, 83. original jurisdiction, 83-86. appellate jurisdiction, in general, 91-93. appeals from District Courts, 93, 94. appeals from Circuit Courts of Appeals, 94-96. appeals from other courts, 96, 97. writ of error, etc., to state courts, 97-106. review by mandamus, habeas corpus, etc., 85, 86. reports of decisions of, 160, 161. TERRITORY, citizens of not citizens of state, 48. courts of, 110, 111. UNITED STATES, controversies to which United States is party, 42, 43. suits between United States and State, 43, 83. WAIVER, of jury trial, 132. of right to remove cause, 125, 126. WRIT OF ERROR, from Supreme Court to state courts, 97-106.