of the government while they remained unsettled. The statement was accepted as sufficient because the rule had but recently gone into force, but it was decided that thereafter motions to advance upon the ground stated must state the facts in such manner that the court may judge whether the government will be embarrassed in the administration of its affairs by delay. United States v. Norton,* 1 Otto, 558.

§ 2583. A motion to advance, under the act of June 30, 1870, must be made by a state, or by a party claiming under the laws of a state. It cannot be made by the defendant in a criminal cause brought up from a state court. Ward v. Maryland,* 12 Wall., 163.

§ 2584. A motion to advance a criminal case under Rule 30 is addressed to the discretion of the court, and will be denied where the defenant is not in jail. Ibid.

SUMMARY

6. Miscellaneous Matters of Practice.

Enforcing return to writ of error, § 2585, 2586.- Transmission of original papers, § 2587.-— Motion to print papers overruled, §§ 2588, 2589.— Power over judgments after close of term, § 2590.— Where a special mandate is not obeyed, § 2591.- Discontinuance of writ of error, § 2592.- Withdrawal of stipulations, § 2593.— Remittitur, § 2594.

§ 2585. The supreme court will compel the clerk of a state court to make return to a writ of error, though the state court has ordered him to make no return. United States v. Booth, §§ 2595, 2596.

82586. The refusal of the clerk cannot defeat the appellate power of the supreme court; but before taking any further proceedings in the matter the court will lay a rule on the clerk to show cause, etc. Ibid.

$2587. The power of the courts below, and of the supreme court, over the transmission of original papers on appeal, is, and should be, confined to such as require actual inspection as originals, in order to give them their full effect in the determination of the suit. Craig v. Smith, 2597-2599. See § 2610.

§ 2588. Where the clerk, in making up the transcript, omitted the affidavits filed with a bill of review and sent up the originals, held, that the affidavits were not a part of the transcript, and a motion to have them printed was overruled. Ibid.

§ 2589. Statutes and rules as to what should be contained in the record, and of the original papers to be transmitted. Ibid.

§ 2590. A court cannot reverse or annul its own final decrees or judgments, for errors of fact or law, after the term in which they were rendered, except for clerical mistakes, or to reinstate a cause dismissed by mistake. Sibbald v. United States, §§ 2600, 2601. See § 2639. § 2591. If a special mandate is not obeyed or executed, a new mandate may be issued at a subsequent term; in such case the power to issue writs necessary to the exercise of the jurisdiction of the court arises, and a mandamus, or other appropriate writ, will go. Ibid.

§ 2592. Leave to withdraw or discontinue a writ of error is not granted of course; if the plaintiff finds it expedient to discontinue, he must first obtain leave of court, and the discontinuance is usually granted on the application, unless some special reason be shown by the defendant for retaining the case with a view to a determination on the merits. United States v. The Minnesota and Northwestern R. Co., § 2602. See § 2642.

§ 2593. Stipulations between counsel relative to the course of proceeding in a cause pending in the supreme court cannot be withdrawn by one party without the consent of the other, except by leave of the court upon cause shown. Commissioners v. Clark, § 2603. See § 2616. 2594. Where judgment has been entered for too large a sum, a remittitur may be entered in the supreme court, and the judgment will then be affirmed, without costs in error. of Kentucky v. Ashley, § 2604.

[NOTES. See §§ 2605-2692.]

Bank

UNITED STATES v. BOOTH.

(18 Howard, 476-479. 1855.)

ERROR to the Supreme Court of Wisconsin.

Opinion by TANEY, C. J.

STATEMENT OF FACTS.- The court proceed to dispose of the motion made by the attorney-general to docket the case of The United States v. Booth, to stand for argument in this court at the next term. In support of this motion he has

produced a copy of the record of the proceedings in the supreme court of Wisconsin in the above mentioned case, certified by the clerk under the seal of the court, by which it appears that Booth was indicted in the district court of the United States for the district of Wisconsin, for aiding a fugitive slave to escape from the custody of the marshal-the marshal having the said slave at that time legally in his custody; and that upon that indictment the said Booth was tried and found guilty, and sentenced by the court to be imprisoned for one month, and to pay a fine of $1,000. That while he was thus imprisoned he obtained a writ of habeas corpus from the state court; and, upon a hearing in the supreme court of the state, was discharged from imprisonment by that court, upon the ground that the imprisonment under the sentence of the district court of the United States was illegal. It further appears that a writ of error afterwards issued from this court, at the instance of the attorney-general in behalf of the United States, returnable to the present term, and directed to the judges of the supreme court of the state of Wisconsin, in order to bring the said proceedings and judgment here for revision, according to the provisions of the twenty-fifth section of the act of congress of 1789, ch. 20. But no return has been made to the writ; and it appears by the affidavit of the district attorney, filed with the motion, that the writ of error was duly served on the clerk of the supreme court of the state, and that he was informed by the said clerk that the court had directed him to make no return to the writ of error. Upon this state of facts the attorney-general has made the motion above mentioned.

$2595. The supreme court will enforce a return to a writ of error issued to a

state court.

The writ of error, without doubt, was rightfully issued from this court to cairy into execution the appellate powers confided to it by the constitution and laws of the United States; and it was the duty of the clerk to obey it, and to send a transcript of the record and proceedings therein mentioned, together with the writ of error, to this court at the present term. And certainly the order of no other tribunal will justify an officer in disobeying the process of this court lawfully issued. The refusal of the clerk, however, cannot prevent the exercise of the appellate powers of this court, and the court will take such order in the case as will enable it to fulfil the duties imposed upon it.

§ 2596. clerk required to make return, or show cause.

But in a matter of so much gravity and importance, we deem it proper, before any other proceeding is had, to lay a rule upon the clerk to make the return required by the writ of error, on or before the first day of the next term of this court; or to show cause, if any he hath, to excuse or justify his neglect or refusal to obey the writ. The motion to docket the case is, therefore, continued over to the next term, and the court will make the following order:

It having been suggested and shown to this court, by the attorney-general of the United States, that the writ of error heretofore allowed and awarded by the chief justice of the supreme court of the United States, and which issued out of this court pursuant to the several acts of congress in such case made and provided, directed to the supreme court of the state of Wisconsin, requiring the record and proceedings of the said supreme court of the state of Wisconsin in the matter of Sherman M. Booth, for a writ of habeas corpus and to be discharged from imprisonment, to be sent to this court, has not been returned pursuant to the exigency of the said writ:

It is thereupon ordered that the clerk of said supreme court of the state of

Wisconsin do make due return of said writ of error, pursuant to the mandate therein contained, and according to the laws of the United States in that behalf, on or before the first day of the term of this court next to be holden at the city of Washington, on the first Monday of December, in the year of our Lord 1856, or then and there show cause why such return has not been made in conformity to law. And it is further ordered that a copy of this rule be served on the said clerk on or before the 1st day of August next.

CRAIG v. SMITH.

(10 Otto, 226–234. 1879.)

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

Opinion by WAITE, C. J.

STATEMENT OF FACTS.- Samuel F. Craig, the appellant, on the 2d of February, 1872, filed in the circuit court a bill in equity against Jacob Smith and George D. Hale, to enjoin them from using an improved well-tube, for which he claimed to have letters-patent from the United States bearing date June 11, 1867. They answered, attacking the validity of the letters-patent: 1, because the patented invention had been described in a certain printed publication publicly circulated and distributed prior to his supposed invention; 2, because it had been anticipated by certain other persons whose names and places of residence were given; and 3, because it had been in public use more than two years before the date of the alleged letters-patent. A replication to this answer was filed, and proofs were taken. The cause was heard June 5, 1873, and a decree entered sustaining the letters-patent, awarding an injunction, and ordering a reference to a master to take an account of profits. The master made his report December 12, 1873, and on the same day leave to file a petition for rehearing within forty days was granted the defendants. This petition was filed January 21, 1874, and set forth that since the hearing the defendants had discovered evidence of new and substantive facts which they had not been able to discover before, and which they were advised and believed were material and pertinent to the issues. This new matter was: 1, letters-patent issued by the United States to Charles Batcheller, of Keene, New Hampshire, as early as December 12, 1865, for an invention alleged to be substantially like that of Craig; and, 2, an extensive prior knowledge and use during the years 1865 and 1866, in various places throughout the United States, of well-tubes in all material respects like that in dispute. The names and places of residence of twenty-five persons who had this prior knowledge of the thing patented, and who knew of its prior use, were given, and in addition affidavits of each one of these persons, showing what they knew and had seen, were attached to the petition as exhibits.

The petition further stated that the defendants were general hardware dealers at Topeka, Kansas, and in the course of their business sold the well-tubes claimed to be an infringement of Craig's letters-patent; that when the suit was commenced they employed counsel, naming him, to conduct their defense; that, as they believed, he used due diligence in procuring evidence, but that notwithstanding his and their efforts they never really obtained any available clue to the facts until after the former hearing; that the patent to Batcheller was not found until September, 1873, and it was after that date when they actually ascertained that they could prove by the persons named the facts set out in the affidavits made exhibits; "that since the commencement of the suit, through

all such likely sources as they could discover or were informed of, the said defendants have made persistent inquiry and search after the facts material and pertinent to the issues in said cause, but owing to the often uncertain character of their information, the scattered situation of the sources of information, and, withal, the delay and obstacles, not easily surmounted, which were necessarily attendant upon such inquiry and search, they wholly failed to discover any of the evidence herewith exhibited until long after the submission, hearing and decree in said cause as aforesaid." Attached to the petition as an exhibit was an affidavit of the counsel showing his diligence in the premises. The petition was sworn to by one of the defendants.

On the 24th of January, 1874, a supplemental petition was filed, setting forth a considerable number of rejected applications for letters-patent for improvements in well-tubes, which, it was claimed, described the complainant's patented invention. All the several applications were attached to the supplemental petition as exhibits. On the 13th of February, 1874, Craig asked and obtained leave until April 1st for the filing of counter-affidavits, and the defendants were allowed until May 1st for such further steps on their part as they should be advised were necessary. To the petition and supplement Craig, on the 27th of April, filed his answer, insisting that the newly discovered matter was wholly inadmissible, in fact and in law, for the purpose of obtaining a rehearing, because it had all existed before the former hearing, and no sufficient reason was shown for the omission to procure it, and because it was cumulative only. He then denied that the patent to Batcheller anticipated his invention, and denied that the several persons named ever saw in use well-tubes like his before his letters-patent were granted. He then took up the several affidavits filed with the petition as exhibits, and gave his reasons in each case why they did not sustain the claims of the defendants. In addition to this, he produced a large number of counter-affidavits, which he attached and made exhibits to his answer,

On the 9th of June, the defendants filed a replication to the answer of Craig, and on the same day the following order was entered on the journal of the court: "This cause coming to be further heard on a petition of the defendants for a rehearing, and it appearing that the decree had been enrolled before the said petition for a rehearing was filed in this court, it is ordered by the court, the parties consenting, that the petition for rehearing stand as and for a bill of review, and that the answer to said petition stand as an answer to said bill of review, and that the replication stand as a replication to the said answer. It is further ordered by the court, upon the consent of the parties hereto, that the affidavits taken by the parties and filed herein stand and be treated as depositions, and as such be read on the hearing. And the said cause being submitted by the parties to the court on the original bill, answer and replication, and the bill of review, answer and replication thereto, and the proofs, exhibits and drawings exhibited from the patent office, and models filed in the case, as well those used on the original bill, answer and replication as those taken and filed with the bill of review, answer and reply, was taken under advisement." At the next term, the bill of review was sustained, the original decree reversed, and the bill of the complainant dismissed with costs. At the same term an appeal by Craig from this decree was allowed, and the following order made: "And it is ordered by the court that the clerk of this court transmit to the supreme court of the United States the original exhibits, patent certificates, schedules, drawings and models on file, along with and as part of the record and tran

script in this cause," In making up the transcript of the record, the clerk below omitted all the affidavits filed with the bill of review and answer thereto, and sent up the originals. In printing the record for the use of the court, those affidavits were omitted, and, the court declining to allow them to be used at the hearing on that account, the appellant moved that they be printed, and the hearing suspended until that could be done.

$2597. Statutes and rules as to what shall be contained in the record.

It is necessary to determine at the outset whether the affidavits which were attached as exhibits to the bill of review and the answer thereto, and brought. here as original papers and not copied into the transcript, will be considered as part of the proofs in the case. In the act of 1803 (2 Stat., 244), which first authorized appeals to this court in "cases of equity, of admiralty and maritime jurisdiction, and of prize or no prize," it was provided "that, upon such appeal, a transcript of the libel, bill, answer, depositions, and all other proceedings of what kind soever in the cause, shall be transmitted to the said supreme court; and that no new evidence shall be received in the said court, on the hearing of such appeal, except in admiralty and prize causes." Under this statute it was held, in the case of The Elsineur, 1 Wheat., 439, that, where an inspection of original documents was material to the decision of a prize cause, this court would order the original paper to be sent up from the court below. This decision was made in 1816, and the next year the following rule was promulgated (2 Wheat., vii): "Whenever it shall be necessary or proper, in the opinion of the presiding judge in any circuit court, or district court exercising circuit court jurisdiction, that original papers of any kind should be inspected in the supreme court on appeal, such presiding judge may make such rule or order for the safe-keeping, transporting and return of such original papers as to him may seem proper, and this court will receive and consider such original papers in connection with the transcript of the proceedings." This rule, with some slight modifications, not at all important to the present inquiry, is still in force as par. 4, rule S. In 1823, the following rule was adopted (8 Wheat., vi.): "No cause will hereafter be heard until a complete record shall be filed, containing in itself, without references aliunde, all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in this court." This rule is still in force as par. 3, rule 8. The statute law regulating this subject remained unchanged until 1864, when the "act to regulate prize proceedings and the distribution of prize-money, and for other purposes " (13 Stats., 306), was passed. Section 13 of that act provided for appeals in prize causes direct from the district courts, and for the transfer, on proper application, of causes then pending in the circuit courts to the supreme court. Then followed this language:

"All appeals to the supreme court from the circuit court, in prize causes, now remaining therein, shall be claimed and allowed in the same manner as in cases of appeal from the district court to the supreme court. In any case of appeal or transfer the court below, or the appellate court, may order any original document or other evidence to be sent up, in addition to the copy of the record or in lieu of a copy of a part thereof."

From this it is clear to our minds that it was the intention of congress to confine its legislation on this subject to prize causes, leaving the rules of court alone in force as to other cases; but in the revision of this statute this special provision of the act of 1864 was reproduced in section 698, which is as follows: "Upon the appeal of any cause in equity, or of admiralty and maritime juris