In itations which it puts upon the right of removal." Such construction, I venture to observe, would be wholly defeated, if the obiter suggestion in Simonson v. Jordon were accepted as the correct interpretation of the statute. The cases of McKeen v. Ives, 35 Fed. Rep. 801, and Lockhart v. Railroad Co., 38 Fed Rep. 274, are not in point. These cases arose in Indiana and Tennessee, respectively, where the time for pleading is regulated by rule of court. In each case it was held that the petition was filed within the time for pleading allowed by the rule of court. Wedekind v. Southern Pac. Co., 36 Fed. Rep. 279, the cause was properly remanded, the petition being filed after expiration of the time for answering. Judge SABIN holds to the necessity of a strict compliance with the statute, which he says "was intended to compel parties to decide in limine in what court they wish the trial of the case to be had, and to make them abide by such decision." Any inference sought to be drawn. from certain expressions in the opinion that the time for removal might be enlarged by extension of the time for answering is nullified by the decision in Delbanco v. Singletary, ante, 177, in which Judge SABIN explicitly holds that the time cannot be enlarged by order or stipulation of any kind. In Kaitel v. Wylie, 38 Fed. Rep. 865, the cause was remanded. The petition was held too late, although filed before answer was due to an amended declaration. Judge BLODGETT expressly declares the statute to be imperative that the application for removal must be made when the plea is due, and that it comes too late when made after the time to plead designated by law or by rule of court. The cases of Dizon v. Telegraph Co., 38 Fed. Rep. 377, and Austin v. Gagan, 39 Fed. Rep. 626,-decisions by Judge SAWYER,-fully sustain the conclusion which I have reached upon the proper construction of the statute, and, as I think, demonstrate its correctness. The motion is overruled. KIMBERLY v. ARMS et ux. (Circuit Court, N. D. Ohio, E. D. November 22, 1889.) 1. EQUITY-BILL OF REVIEW-PENDING APPEAL TO SUPREME COURT. The circuit court cannot entertain a bill of review to vacate a decree, from which the petitioners have prayed, and been allowed, an appeal to the supreme court, though they aver that they do not intend to perfect their appeal in the supreme court. 2. SAME-DECREE ENTERED IN PURSUANCE OF MANDATE. Where the circuit court has, under and in pursuance of a mandate from the supreme court, entered a decree, it cannot entertain a bill to review such decree, either for errors of law apparent or for newly-discovered evidence, without leave first had from the supreme court. 3. SAME ERRONEOUS CONCLUSIONS FROM EVIDENCE. A bill of review cannot be entertained to correct supposed erroneous deductions or conclusions from the evidence. 4. SAME-FAILURE TO AVER PERFORMANCE. The proposed bill must aver performance of, or inability to perform, the decree sought to be reviewed. 5. SAME-FRAUD AND PERJURY. A bill of review sought on the ground of fraud and perjury will not be entertained, where it appears that the alleged fraudulently procured and perjured evidence was not controlling in the determination of the case on its merits. 8. SAME ALLEGATIONS OF DEFENSE ON MERITS. In order to obtain relief on the ground of fraud, it must be averred and shown that there was a valid defense on the merits. 7. SAME-LEAVE OF COURT. Though a bill of review on the ground of fraud in obtaining the decree may be filed without leave of the court granting the decree, where that ground of relief is united in the same bill with others, which require such previous leave, the bill cannot be separated and leave granted as to part and refused as to the others. In Equity. On application for leave to file a bill of review. Stevenson Burke, for Arms and wife. JACKSON, J. Under and in pursuance of a mandate of the supreme court of the United States, a final decree in favor of complainant, Kimberly, was entered in this cause in May, 1889. The defendants Arms and wife now make application to this court for leave to file a bill of review, for the purpose of vacating and setting aside that decree. The grounds chiefly relied on for annulling said decree, as set forth in the bill of review sought to be filed, are alleged errors of law apparent on the face of the record, newly-discovered evidence, and fraud on the part of Kimberly in procuring said decree. It appears from the record in the case and the proposed bill of review, which is presented with the application for leave to file, that in 1878 complainant, Kimberly, and defendant Charles D. Arms entered into partnership for the purchase of mining interests and properties,-Arms being the active partner in making the purchases and conducting the business of the firm; that in 1879, while said partnership was still in existence, Arms, in connection with one Fairbanks, purchased an interest in the Grand Central mine, in Arizona, In 1880 the partnership of Kimberly & Arms terminated, and thereafter a controversy arose between them as to the interest acquired by Arms in said Grand Central mining property. Kimberly claimed that this acquisition, to the extent of Arms' interest therein, was partnership property, in which he was entitled to share. This claim was denied by Arms, who insisted that it was purchased on his private account. Thereupon Kimberly, in September, 1881, filed his bill in this court, charging and alleging that Arms' interest in said Grand Central mine was partnership property; that Arms had agreed with him in advance to make the purchase on joint account, and, after it was acquired, had repeated that he had made it as agreed. Kimberly sought to have his interest declared, and for an account of profits. Arms answered the bill, denying the alleged agreement to purchase said interest on joint account, and insisting that it was well understood and agreed between himself and Kimberly that said purchase was made solely on account of himself and said Fairbanks. As a corroboration of his statement of the transaction, and as a further answer to the relief sought by Kimberly, Armis set up the defense that in March, 1880, there was a settlement of all partnership matters between himself and Kimberly; that in that settle ment it was understood and agreed that he was to, and that he did, reserve to himself, as his absolute property, said interest in the Grand Central mine, etc. Such were the main issues made by the pleadings. After much testimony was taken on both sides, the parties, by consent, had the case referred to Hon. R. A. Harrison, as special master, to hear the evidence, and decide all the issues between them, with directions to make his report to the court in the premises, stating therein separately his findings of law and fact. In April, 1885, the special master made his report to this court, finding generally all the issues of fact and conclusions of law in favor of said Kimberly. To this report the defendants filed various exceptions. Said report and exceptions came on for hearing before Circuit Justice MATTHEWS, who sustained said exceptions, set aside the master's report, and dismissed the bill. From this decree, Kimberly appealed to the supreme court of the United States. The cause was heard on appeal in that court, and on March 5, 1889, a decision was rendered, reversing the decree below and remanding the cause to this court, with directions to confirm the report of the special master, and to take further proceedings not inconsistent with the opinion of the supreme court. See Kimberly v. Arms, 129 U. S. 512-530, 9 Sup. Ct. Rep. 355. In conformity with, and under the directions of, said mandate of the supreme court, this court, in May, 1889, confirmed said report of the special master, and entered a final decree in Kimberly's favor, in accordance with its findings of fact and conclusions of law. The bill of review, which defendants now apply for leave to file, seeks to open, vacate, and set aside that decree. But before making said application the defendants, during the term of court at which said decree was rendered, prayed an appeal to the supreme court, which was allowed upon their giving bond, with sureties, to be approved by the court. Such appeal-bond was duly executed and approved, and said appeal, so far as this court is concerned, was thereby perfected before defendants presented this application for leave to file a bill of review. It is, however, stated in the bill of review which defendants ask leave of this court to file that it is not the purpose of defendants, as at present advised, to perfect their said appeal by filing the record and docketing this cause in the supreme court, as required by the rules of practice of that court. This averment does not, of course, amount to an abandonment of said appeal, nor to a definite purpose or intention to do so, but leaves the question of its further prosecution to the option of appellants. No new proceedings having been had in this court between the mandate of the supreme court and the decree based thereon, said appeal by defendants was no doubt improvidently taken and allowed. Still, it has the effect of transferring the cause, and the decree sought to be reviewed, into the supreme court, where it will remain until heard an disposed of on the merits, or dismissed, under the provisions of the ninth rule of said court, for appellants' failure to file the record and docket the case. The authorities settle that an appeal, in cases thus situated, will not be entertained by the supreme court. Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736; Hinckley v. Mor ton, Id. 764. With said appeal pending in the supreme court, whether there rightfully or improvidently, this court clearly has no authority or jurisdiction to entertain a bill of review to impeach said decree, over which it has, for the present, at least, [no jurisdiction.] A party cannot concurrently pursue the two remedies of appeal and bill of review for error apparent on the record, as the latter is only a substitute for, or in the nature of, a writ of error or appeal. It is accordingly settled (Ensminger v. Powers, 108 U. S. 302, 303, 2 Sup. Ct. Rep. 643) that while an appeal is pending in the supreme court, although there is no supersedeas, the circuit court has no jurisdiction to vacate the decree in pursuance of the prayer of the bill of review, because such relief is beyond its control. The appeal of Arms and wife having taken this cause, and the decree complained of, beyond the control of this court, thus depriving it of all authority, pending said appeal, to grant the relief sought by the proposed bill of review, leave to file the same cannot, for that reason, be properly granted. But, aside from this difficulty in the way of granting defendants leave to file a bill of review, there are other objections, of a still more serious character, to the allowance of their application by this court. The decree of May, 1889, which the proposed bill of review seeks to impeach, is the decree, not of this court, but of the supreme court; and the only power which this court can rightfully exercise over the same is to carry it into execution. Thus, in Stewart v. Salamon, 97 U. S. 361, it is said that "an appeal will not be entertained by this court from a decree entered in the circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree; and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and, if it conforms to the mandate, dismiss the case, with costs. If it does not, the case will be remanded, with appropriate directions, for the correction of the error." So, in Humphrey v. Baker, 103 U. S. 737, it is said: "The decree we directed is the final decree in the original suit, and the court below had nothing to do but to carry it into execution, under the rule established in Stewart v. Salamon." Even the objection of a want of jurisdiction on the part of this court cannot be entertained in respect to a cause remanded to it by the supreme court for further proceedings. This was so ruled at an early day in Skillern's Ex'rs v. May's Ec'rs, 6 Cranch. 267, where, after a case was remanded by the supreme court, with directions for further proceedings therein, it appeared that the cause was not one coming within the jurisdiction of the court. It was held, nevertheless, that the circuit court was bound to carry the mandate into execution. So, in Ex parte Story, 12 Pet. 339, the action of the court below in refusing to allow the defendant to file a supplemental plea and answer setting up new matter was sustained because the case was before it upon a mandate from the supreme court, and the court below was bound to execute the mandate. To the same effect is the case of Ex parte Sibbald, Id. 488, where it was held that "the inferior court is bound by the decree, [of the supreme court,] as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution, or give any other or further relief." In Ex parte Railroad Co., 1 Wall. 69, the court below, after entering judgment according to the mandate of the supreme court, granted a motion for a new trial upon affidavits of new and material facts; but the supreme court issued a mandamus commanding the lower court to vacate and set aside the order awarding said new trial, on the ground that the authority of the court extended only to the execution of the mandate. In that case it was said by the supreme court: "When this court, under. the twenty-fourth section of the judiciary act, reverses a judgment of a case stated, and brought here on error, remanding the case, with a mandate to the court below to enter judgment for the defendant, the court below has no authority but to execute the mandate, and it is final in that court. Hence such court cannot, after entering a judgment, hear affidavits or testimony and grant a rule for a new trial; and if it does grant such rule a mandamus will issue from this court, ordering it to vacate the rule." By reference to this case, it will be seen that it was originally tried upon an agreed statement of facts, resulting in a judgment for the plaintiff. The defendants sued out a writ of error to the supreme court, which reversed the judgment of the court below, and remanded the case, with a mandate to the lower court to enter judgment for the defendants. The court below entered judgment for the defendant. Thereafter the plaintiff filed affidavits showing new facts, and moved the court for a new trial, which was granted. But the supreme court issued its mandamus to said court, commanding it to vacate the order granting such new trial. If the judgment in question had been in any sense the judgment of the lower court, its authority to award a new trial upon newly-discovered and material facts could not have been questioned. But, as the judgment entered in pursuance of the mandate was that of the supreme court, the district court was without authority to vacate or set it aside for any error in law or new matter of facts. The principle announced in the foregoing authorities is essential to the close and proper subordination of inferior to superior courts, to the orderly administration of justice, and to the prevention of interminable litigation. In harmony with this rule laid down in the above decisions, it is settled that the granting of leave to file a bill of review for error of law apparent, or for newly-discovered evidence, rests in the sound discretion of the court. It may be refused although the facts, if admitted, would change the decree, where the court, considering all the circumstances, may deem it unadvisable. Story, Eq. Pl. § 417, and cases cited. As bills of review for error apparent and for new matter can only be filed by leave of the court, such leave must properly be applied for and procured from the court whose decree is complained of. In the present case the mandate of the supreme court not only directed an absolute and final decree in Kimberly's favor, but, under the authorities, made that decree the judgment or decree of the supreme court. This court has no authority |