§ 2453. A writ of error was amended in the supreme court by filling a blank left for the return day, where it was regularly tested and the time of filing in both courts appeared by indorsements. Mossman v. Higginson, 4 Dal., 13.

§ 2454. Matters of form. In case of any irregularity in a mere matter of form, it seems that the appellate court may order an amendment while the cause is before it, or it may disregard the error and render judgment as if it did not exist. Smith v. Jackson, 1 Paine, 489. § 2455. Writ of error.- The power of the circuit court to amend a writ of error returnable to it, is vested in the circuit court as fully as it is in the supreme court, and the express provision of the statutes is that the supreme court may allow an amendment of a writ of error when there is a mistake in the title to the writ, or where the seal is wanting, or when the writ is returnable on a day other than the day of the commencement of the term next ensuing; and the true construction of the provision upon the subject vests the same power in the circuit and district courts in all cases where the process is returnable in those respective courts. So where the writ of error was returnable to the circuit court on the first Monday in December, instead of the first day of November, as it should have been, it was held that the action of the circuit court in allowing an amendment to show the proper day was proper. Semmes v. United States, 1 Otto, 24.

§ 2456. Where a writ of error is addressed "to the judges of the circuit court, holden in and for the district aforesaid," no district being named, it may be amended, if there is sufficient in the record to amend by. Course v. Stead,* 4 Dal., 22. § 2457. A writ of error tested Stead,* 4 Dal., 22.

in vacation after the last term is amendable. Course v.

§ 2458. Want of jurisdiction.— Where the circuit court had no jurisdiction of an appeal, the defect cannot be cured by an amendment in the supreme court by consent of parties. Montgomery v. Anderson, 21 How., 388. See the case, §§ 325-327.

$2459. Mandate.- Where the six per cent. interest allowed by rule of court was not included in the judgment of a former term, the court deemed the omission a mere clerical error, and permitted the mandate to be amended. Bank of Kentucky v. Wistar,* 3 Pet., 431.

§ 2460. Parties.- Where an appeal is taken in the name of a firm instead of in the names of the individual partners, and the names of the individuals composing the firm appear from the appeal bond, the appeal may be amended under R. S., 1005, and will not be dismissed. Moore v. Simonds, 10 Otto, 146. See §§ 2431, 2432.

§ 2461. Where a writ of error misdescribes the parties, making it appear that the plaintiff in error is the defendant in error, it is fatally defective, and cannot be amended. Hodge v. Williams, 22 How., 87. See the case, § 2437.

§ 2462. In entering verdict.-An error in entering a verdict in the court below, which was amendable there, will be considered by the supreme court as amended instead of sending the case back for a new trial. Shaw v. Railroad Company, 11 Otto, 566.

2463. As to amount recovered.-On a writ of error from the circuit to the supreme court, where it is apparent from the record that there is an error in the amount recovered, which could not be remedied by an amendment of the pleadings, the supreme court will remand the case and order a new trial, if the excess is not remitted from the judgment. Mills v. Scott, 9 Otto, 29.

§ 2464. In admiralty.- In cases of appeals from the district court to the circuit court in admiralty proceedings, the appellate court should be very cautious in permitting amendments, and especially when the matter on which such amendments rest is not new or newly discovered, but was perfectly well known at the time of the hearing in the district court. Coffin v. Jenkins, 3 Story, 120.

§ 2465. Averments of citizenship. The circuit court, sitting as an appellate court, cannot allow an amendment to supply the omission to allege that the defendant was a citizen of a different state from the plaintiff, or so amend the record as to show that the amount in controversy is sufficient to give jurisdiction. Nor can the district court, after the case has been sent to the circuit court on a writ of error, allow such amendments, and send them up and have them made a part of the record. Smith v. Jackson, 1 Paine, 491. See § 2433.

§ 2466. The supreme court has power to amend the record sent to it from the lower court for review, and may allow an amendment to the record to show citizenship sufficient to give the federal courts jurisdiction, especially if by consent of the parties. Though the court has power to order amendments, it seems it will not exercise it unless by consent of the parties, but will remand the case to the court below with instructions to allow the proper amendment. Kennedy v. Georgia State Bank, 8 How., 610.

§ 2467. Where the judgment of the circuit court is reversed because the allegation of citizenship is wanting, the direction of the supreme court will be to allow the amendment of the pleadings, so that it may appear. Such an amendment is not the commencement of a

new suit asserting a new cause of action; it would simply show that the court had jurisdiction from the beginning. Robertson v. Cease, 7 Otto, 650.

§ 2468. Pleadings.— The circuit court, in an admiralty case brought to it by appeal from the district court, may allow the insertion of new allegations in the pleadings by way of amendment. The Edward, 1 Wheat., 264. See § 2435.

§ 2469. After a writ of error to the circuit court has been returned, the declaration will not be amended when it is defective in substance. Marsteller v. McClean, 2 Cr. C. C., 8.

§ 2470. The circuit court, on appeal from the district court in an admiralty proceeding, has power to suffer amendments to be made to the pleadings so as to let in new evidence, or present new grounds for defense. But this power ought always to be exercised with caution and for the purposes of justice, and to bring the merits of the controversy fairly before the court. So an amendment which would only defeat the existing suit, and drive the libelant into another forum to recover a demand admitted to be due and of which the justice is not disputed, will be refused. Reppert v. Robinson, Taney, 498.

§ 2471. On appeal from a decree of the district court dismissing a libel for the foreclosure of a mortgage on a vessel, the libel cannot be amended in the circuit court so as to change the character of the proceedings to a possessory action to recover possession of the vessel. To allow such an amendment would be, in effect, for the circuit court to assume original instead of appellate cognizance of the subject matter of the litigation. The John Jay, 3 Blatch., 68. See, also, §§ 1274, 1355.

2. Rehearing.

SUMMARY - Rule as to allowance of rehearing, § 2472.

§ 2472. No reargument will be heard in any case after judgment is entered unless some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion, and desires a further argument on the subject; and it is not material that the judgment was by a divided court. The motion must be filed during the term. Brown v. Aspden, §§ 2473-2475; Brooks v. Railroad Co., § 2476. See § 2663.

STATEMENT OF FACTS.- A motion has been made for a rehearing in this case, and we have been referred to the practice of the English chancery court in support of the application. The argument presupposes that this court, in cases in equity, has adopted the rules and practice of the English chancery. But this is a mistake. The English chancery is a court of original jurisdiction, and this court is sitting as an appellate tribunal. It would be impossible, from the nature and office of the two tribunals, to adopt the same rules of practice in both. Nothing could show this more strongly than the present application. By the established rules of chancery practice, a rehearing, in the sense in which ́that term is used in proceedings in equity, cannot be allowed after the decree is enrolled. If the party desires it, it must be applied for before the enrollment. But no appeal will lie to the proper appellate tribunal until after it is enrolled, either actually or by construction of law. And consequently, the time for a rehearing must have gone by before an appeal could be taken. In the house of lords, in England, to which the appeal lies from the court of chancery, a rehearing is altogether unknown. A reargument, indeed, may be ordered, if the house desires it, for its own satisfaction. But the chancery rules in relation to rehearings, in the technical sense of the word, are altogether inapplicable to the proceedings on the appeal.

$2473. Reargument never allowed unless some member of the court who concurred doubts the correctness of his opinion, and desires a further argument. (a) Undoubtedly this court may and would call for a reargument where doubts are entertained which it is supposed may be removed by further discussion at the bar. And this may be done after judgment is entered, provided the order for reargument is entered at the same term. But the rule of the court is this, that no reargument will be heard in any case after judgment is entered, unless some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion and desires a further argument on the subject. And when that happens, the court will, of its own accord, apprise the counsel of its wishes, and designate the points on which it desires to hear them. There is certainly nothing in the history of the English court of chancery to induce this court to adopt rules in relation to rearguments, analogous to the chancery practice upon applications for a rehearing. According to the general practice of that court, one rehearing, where the application has been sanctioned by the signature of two counsel, is a matter of course. And this facility in obtaining one rehearing has naturally led to others, and in cases of interest or difficulty, two, or even three, rehearings have sometimes been allowed, under the special leave of the court, before the decree was enrolled, and, consequently, before it could be removed to the house of lords. The natural result of this practice is to produce some degree of carelessness in the first argument, and hesitation and indecision in the court. But the great evil is in the enormous expenses occasioned by these repeated hearings, and the delays which it produces in the decision, which often prove ruinous to both parties before the final decree is pronounced. Nor is the mischief confined to the particular suit in which such proceedings and delays are permitted to take place. A multitude of others are always behind it, waiting anxiously to be heard. And the result of the practice of which we are speaking has been such that, although the court has always been filled by men of the highest order, distinguished for their learning and industry, yet the expenses and delays of the court have become a by-word and reproach to the administration of justice, and parliament has at length been compelled to interpose. And if this court should adopt a practice analogous to that of the English chancery, we should soon find ourselves in the same predicament; and we should be hearing over again at a second term almost all the cases which we had heard and adjudged at a former one, and upon which our own opinions would have been definitively made up upon the first argument. We deem it safer to adhere to the rule we have heretofore acted on. And no reargument will be granted in any case unless a member of the court who concurred in the judgment desires it; and when that is the case, it will be ordered without waiting for the application of counsel.

(a) The above ruling is followed in United States v. Knight,* 1 Black, 488; Public Schools v. Walker,* 9 Wall., 603. Where the court does not on its own motion order a reargument, it will be proper for counsel to submit without argument a brief written or printed petition or suggestion of the point or points thought important. If upon such petition or suggestion any judge who concurred in the decision thinks proper to move for a rehearing, the motion will be considered. If not so moved the rehearing will be denied as of course. Public Schools v. Walker, supra. It is a well settled rule of the court, to which it has steadily adhered, that no rehearing is granted unless some member of the court who concurred in the judgment expresses a desire for it, and not then unless the proposition receives the support of a majority of the court. For this reason, and for the better reason that the pressure of business in the court does not permit it, no reply to the petition is allowed from the other side or given by the court. Where a reargument is urged on the ground that the case was heard upon an incomplete record, the court will consider the matter; but if it appears that the matters omitted did not affect the merits of the case, a rehearing will be refused. Ambler v. Whipple,* 23 Wall., 278.

8 2474. That the decree is affirmed by a divided court is not a sufficient reason for a reargument.

It is true that the decree of affirmance in this court in the case before us was upon an equal division of the members composing the court at the time of the argument, eight being present. But the case was fully heard, more than a week being occupied in the arguments of counsel. And when, upon conference and a full interchange of opinion, it was found that the court was divided, the case was held over until the present term in order that each member of the body might have an ample opportunity of investigating the subject for himself. This has been done. And when the court reassembled it was found that the opinion of each member of the tribunal was unchanged, and the decree was therefore affirmed by a divided court. Further arguments would be mere waste of time when opinions have been formed after so much argument and such deliberate examination. Nor is the circumstance that a decree is affirmed. by a divided court any reason for ordering a reargument before a full bench in any case. In a body as numerous as this, it must often happen, from various causes, that the bench is not full. And experience has shown that it has rarely happened that every judge has been present every day throughout any one entire term. The case before us is certainly an important one in its principles, and in the amount in dispute. But there are many cases on the docket at every term of the court much more important in both respects. And if it is to be understood that cases of this description are not to be finally decided without the concurrence of a majority of the whole bench, it would be a useless consumption of time to hear them in the absence of any one judge, because it would be uncertain whether a judgment could follow after the argument. And it is easy to foresee the inconvenience, delay and expenses to which a practice of that kind would subject the parties, and the uncertainty and confusion it would produce (to the great injury of other suitors) in the order of business as it stands on the docket of the court.

§ 2475. As to decrees and judgments.

Neither is there any difference between a decree in chancery and a judgment at law, as to its affirmance on a division of the court. In both cases the motion is to reverse; and if that fails, the judgment or decree necessarily stands, and must therefore be affirmed. And in most of the cases affirmed in this manner, a majority, in fact, of the judges, who act judicially upon the case, concur in the judgment. For the circuit court is composed of two members, and if both are on the bench, they must concur in the judgment or decree; otherwise it could not be passed, and the point would be certified by a divided court.

In every view of the subject, we see no sufficient ground for ordering a reargument, and the application is therefore refused.

BROOKS v. RAILROAD COMPANY.

(12 Otto, 107, 108. 1880.)

APPEAL from U. S. Circuit Court, District of Iowa.

STATEMENT OF FACTS.- This was a motion for a rehearing, filed at the next succeeding term after the judgment was rendered.

§ 2476. A motion for a rehearing cannot be filed except at the term in which the judgment was rendered. (a):

Opinion by WAITE, C. J.

A petition for rehearing after judgment, under the rule promulgated in Public Schools v. Walker, 9 Wall., 603, cannot be filed except at the term in which the judgment was rendered. In Hudson & Smith v. Guestier, 7 Cranch, 1, a motion was made at the February term, 1812, for a rehearing in a case decided two years before; but the court said "the case could not be reheard after the term in which it was decided." At the end of the term the parties are discharged from further attendance on all causes decided, and we have no power to bring them back. After that we can do no more than correct any clerical errors that may be found in the record of what we have done.

In Brown v. Aspden, 14 How., 25, where the practice in respect to orders for rearguments was first formally announced, the rule in this particular was not extended, for Mr. Chief Justice Taney was careful to say that the order for reargument might be made after judgment, provided it was entered at the same term; and the same limitation is maintained in United States v. Knight's Administrator, 1 Black, 488. Down to that time such an order could be made only on the application of some member of the court who concurred in the judgment, and this continued until Public Schools v. Walker, supra, when leave was given counsel to submit a petition to the same effect. In all other respects the rule is now substantially the same as it was before this relaxation. Motion denied.

§ 2477. In general.- Where the supreme court reverses a decree of the circuit court, and remands the case with directions to proceed, a petition for a rehearing on any of the matters decided by the supreme court will be denied. Story v. Livingston, 13 Pet., 367.

$2478. The supreme court cannot at a subsequent term revise its judgment. Such judgment is conclusive on the parties; and it seems that a rehearing is never granted where a final decree is entered and the mandate sent down, unless the application is made at the same term, except in case of fraud. Noonan v. Bradley, 12 Wall., 129.

§ 2479. The supreme court will not grant a rehearing after a mandate has been issued to the court below; and upon a subsequent appeal in the same suit, only matters arising on the execution of the mandate. Ex parte Sibbald, 12 Pet., 492.

§ 2480. A motion made in the territorial supreme court to vacate a former decision will not be granted if it is founded upon some question which was raised or could have been raised upou the argument in the first instance. Bonnifield v. Price,* 1 Wyom. Ty., 245.

3. Dismissing Appeals and Writs of Error.

SUMMARY- Under Rule 43, what certificate must show, § 2481.— Motion to reinstate, §§ 2482, 2492, 2493.- Without certificate, § 2483.- Certificate must name the parties, § 2484.— Motion made after docketing, § 2485.- Where plaintiff dockets in time, § 2486.- Motion before return term, § 2487.- Motion not accompanied by copy of brief, § 2488.— Not joining all the defendants, § 2489.— Delay in giving fee bond, § 2190.- Want of jurisdiction, § 2491.

2481. To docket and dismiss under Rule 43, the certificate must show that the decree was rendered thirty days before the term of the supreme court. It is not sufficient to state the term of the district court at which the decree was rendered, without stating the day. Rhodes v. Steamship Galveston, § 2494.

§ 2482. A judgment of dismissal under Rule 43 is a judgment nisi, and may be set aside at any time during the term; the motion to reinstate addresses itself to the sound discretion

(a) A case will not be reheard after the term in which it was decided. Hudson v. Guestier,* 7 Cr., 1. So the petition was refused where it was filed at a subsequent term, and after the case had been remitted to the court below, though counsel was prevented from attending by sickness. (Browder v. McArthur, 7 Wheat., 58, and Washington Bridge Co. v. Stewart, 3 How., 413, cited.) Peck v. Sanderson,* 18 How., 42.