government. But in this case, under special circumstances, such hearing was allowed. The Gray Jacket, 5 Wall., 371.

§ 2634. Service of citation on the attorney of record is good notwithstanding an affidavit by him that he was not then the attorney - that his fee had been paid and he had been discharged. No attorney or solicitor can withdraw his name, after he has once entered it on the record, without leave of the court; and while his name continues there, the adverse party has a right to treat him as the authorized solicitor, and the service of notice upon him is as valid as if served on the party himself. United States v. Curry,* 6 How., 106.

§ 2635. No attorney or solicitor can withdraw his name, after he has once entered it on the record, without leave of court. Ibid.

§ 2636. Submission. It appeared that the decision of the questions involved in a case submitted and in another pending would dispose of a large number of others pending in the lower court; that when the suits were begun below all the defendants united in the employment of counsel, and contributed to a common fund for the payment of expenses; that since the two cases had been docketed in the supreme court the parties to the one submitted had come to an amicable understanding in respect to the subject matter of their particular litigation, through new counsel employed in behalf of defendants in error, and without the concurrence of those interested in the other case and the suits still pending below. Held, that a submission would not be accepted against the wishes of those collaterally interested, and the submission was set aside and the cause restored to its place on the docket. Smelting Co. v. Kemp, 13 Otto, 666.

§ 2637. Where a case is submitted under Rule 20, and the provision of that rule, that "when a statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length," is disregarded, the submission will be set aside, and the cause restored to its place on the docket. School District v. Ins. Co.,* 11 Otto, 472.

§ 2638. Permission to withdraw demurrer. In case a judgment is affirmed on writ of error the supreme court will not amend its judgment so as to instruct the court below to permit the plaintiff in error to withdraw his demurrer, though it seems that it would have done so had the judgment been reversed. United States v. Tingey, 5 Pet., 131.

§ 2639. Power over judgments. It seems that the final decree of a court passes beyond its control at the expiration of the term in which it is rendered, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct it; and if errors exist, they can only be corrected by a writ of error coram vobis, in cases where allowable, or by such proceedings by writ of error or appeal as may be allowed in a court which, by law, can review its decisions. Bronson v. Schulten, 14 Otto, 415. See § 2590.

§ 2640. Upon an appeal to the supreme court in an equity proceeding it should render such a decree as the circuit court should have rendered, and errors in the allowance of interest should be corrected, if enough appears in the record to correct by. Penhallow v. Doane, 3 Dal., 107.

§ 2641. The supreme court has no power over its judgments after the term has passed, and the cause has been dismissed or otherwise finally disposed of. Jackson v. Ashton, 10 Pet., 480. See the case, § 2440.

§ 2642. Discontinuance.- Plaintiff in error will not be allowed to discontinue his case except for sufficient reason assigned or by consent of the adverse party. McGuire v. The Commonwealth,* 3 Wall., 382. See § 2592.

§ 2643. Entering proper judgment. After the circuit court obtained full jurisdiction of confiscation proceedings on a writ of error to the district court it had full power "to pass such decree as should have been passed" by the subordinate court, and had full power to confirm a marshal's sale made under an order of the court below, which it upheld as valid. Semmes v. United States, 1 Otto, 26.

$ 2644. Call of plaintiff.— On motion for leave to withdraw the appearance of all the counsel, and to have the plaintiff called under the sixteenth rule, the court said: “ It is usual in this court to grant leave to withdraw an appearance whenever asked, saving, however, all the rights of the adverse party. That leave will, therefore, be granted in this case. We cannot, however, require the calling of the plaintiff with a view to the dismissal of the writ of error. After the withdrawal of the appearance in the case before us it will be the right of the defendant in error, under the sixteenth rule, to have the plaintiff called and the suit dismissed, or to open the record and pray an affirmance." McGuire v. The Commonwealth,* 3 Wall., 382.

§ 2645. Amending mandate.— A petition was filed asking for the alteration of a mandate of a former term so that the petitioner could take the amount of land to which he was adjudged entitled out of any ungranted land, etc. Held, that the court had no power to grant the relief prayed. Sibbald v. United States,* 2 How., 455.

§ 2646. Appearance of attorney-general. The practice has uniformly been for the clerk to enter, at the first term to which any writ of error or appeal is returnable, the appearance of the attorney-general in every case to which the United States are a party, by entering his name on the docket; such entry will be conclusive on the attorney-general if he lets it pass for a term without moving to strike it out. Farrar v. United States,* 3 Pet., 459.

§ 2647. Receiver.- The court refused to appoint a receiver in this case, without undertaking to decide whether it would in any case exercise the power. Pacific Railroad v. Ketchum,* 5 Otto, 1.

§ 2648. Fictitious suits.- Where the same party acquires and controls the adverse interests in the case, the suit has become fictitious, and the supreme court will not decide it. Wood-paper Co. v. Heft,* 8 Wall., 333; Cleveland v. Chamberlain,* 1 Black, 419. So, also, where it appears that there is no real dispute between the plaintiff and defendant, but that they have instituted the procedings merely to obtain the opinion of the court, which would be adverse to the interests of third parties. Lord v. Veazie, 8 How., 254.

§ 2649. Assigning time for argument. A motion to assign a time for argument of a case which has been placed at the foot of the docket will be overruled, when the case is not entitled to priority, and the granting of the motion would work injustice to other parties and inconvenience to the public. Barry v. Mercein,* 4 How., 574.

§ 2650. State practice. The supreme court of the United States, in the case of a writ of error to the circuit court of Louisiana, is not bound as to its appellate procedure by the rules regulating the appellate procedure of the supreme court of Louisiana. Parks v. Turner, 12 How., 43.

§ 2651. Repleader.- On a writ of error from the circuit to the district court in a proceeding in rem to enforce a forfeiture, if the verdict has been on an immaterial issue, the court of error cannot grant a repleader, but the pleadings will be examined and judgment rendered against the one committing the first fault, if sufficient matter remains on which to found a judgment. United States v. Burnham, 1 Mason, 65.

§ 2652. Cases heard together.- Where there are two cases pending in the supreme court which involve the same questions, they will be heard together; and if one is not ready for hearing, the other will be continued so that they can be argued at the same time. United States v. Booth, 18 How., 479. See § 2573.

§ 2653. New trial.- The circuit court on writ of error to a district court, may, on reversal of the judgment, issue a venire facias de novo for a retrial at its own bar when the justice of the case seems to require it. United States v. Sawyer, 1 Gall., 99.

§ 2654. Where a final judgment was rendered in the supreme court of the District of Columbia, and an appeal was taken to the general term, it was held that a new trial could not be granted under the rules of the court on a case stated filed at a subsequent term. Coughlin v. District of Columbia.* 16 Otto, 7.

§ 2655. Filing transcript.— It seems that the plaintiff in error will not be required, upon motion of the defendant in error, to file a transcript of the record. Boyd v. Scott, 11 How., 292.

§ 2656. Appearance. The rule requiring an appearance to be entered, in case of a writ of error, on or before the second day of the term next succeeding that at which a case was docketed, applies only to regular terms. Larman v. Tisdale, 11 How., 586.

§ 2657. Trial by jury.— An appeal in a common law suit from the district court removes errors of law only for the consideration of the circuit court, and the parties are not entitled to a retrial of the facts by a jury; in this matter the court is not governed by state statutes. United States v. Wonson, 1 Gall., 5. See the case, §§ 105-108.

§ 2658. Depositions.-The supreme court refused to issue a commission to take depositions. in a foreign country until the commissioners were named. Vanstophorst v. Maryland,* 2. Dal., 401.

§ 2659. Parties. It appearing to the supreme court that certain persons not parties to the suit are interested in the subject matter, and were not joined in the court below because not applying in time, the court on revising the decree ordered that the case be opened, and intimated that such parties ought to be let in. Harrison v. Nixon, 9 Pet., 505.

§ 2660. Certificates of clerk.- Certificates and statements of the clerk, outside of the record, are not admissible to show that a case was not regularly removed to the supreme court; the supreme court look to the record, and if that is defective, it ought to be corrected on certiorari. Hudgins v. Kemp,* 18 How., 530.

§ 2661. Defect in appeal.- Where there is a substantial defect in an appeal or writ of error, the objection may be taken at any time before judgment. Wilson v. Life and Fire Ins. Co.,* 12 Pet., 140.

§ 2662. Writ without a seal.- The writ of error must be returned with the transcript to the supreme court, and where two terms intervened before the writ was sent up, and then a paper purporting to be a writ of error was sent up, but without a seal, the case was dismissed. Overton v. Cheek,* 22 How., 46. See § 1.

§ 2663. Rehearing. On appeal from the circuit court in an equity case, the supreme court cannot, upon motion, set aside the decree of the court below and grant a rehearing. It can only affirm, reverse or modify the decree appealed from, and that upon the hearing of the cause. It seems also that in such a case the supreme court cannot receive new evidence. Roemer v. Simon, 1 Otto, 150.

§ 2664. Return of writ to lower court. It seems that where the circuit court in an equity case have transmitted the cause to the supreme court on appeal, they may request a return thereof, and the supreme court will, under suitable restrictions, in a proper case, return the record as requested. Roemer v. Simon, 1 Otto, 150.

§ 2665. Patent case, third parties interested.— The supreme court, in a patent case, refused to vacate its judgment on motion of third parties interested in the patent, on the ground that the appellant and appellee had colluded to obtain the decree, because the weight of evidence was against the collusion. But as the appellee's case was defectively presented, the court ordered that the interests of third parties in the patent should not be concluded by the decree, but that they might have a hearing at any time when a proper case should be presented. Cochrane v. Deener, 5 Otto, 355.

§ 2666. Papers sent to judges.— A pamphlet having been sent to the judges of the supreme court touching the question in controversy, the chief justice announced that it was not the practice of the court to receive or examine such papers unless presented in court and shown to the opposite counsel. Mitchell v. United States, 8 Pet., 307.

§ 2667. Case held under advisement.- The supreme court being unable, from lack of sufficient information, to pass upon the validity of certain Spanish titles clained in the territory of Louisiana, held the cases under advisement. In the treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property; but owing to a want of information as to the laws of the former government under which titles were held, it was deemed not advisable to attempt at once to decide the rights of the parties. Soulard v. United States,* 4 Pet., 511. § 2668. Repeal of law.— A writ of error does not vacate the judgment below; and if, pending a writ of error, the statute authorizing the action is repealed, the supreme court will affirm the judgment; it cannot send the case back with instructions to enter a non-suit. Railway Co. v. Twombly,* 10 Otto, 78.

§ 2669. Bankruptcy of appellant.— Where a party is discharged in bankruptcy pending a suit against him, his assignee in bankruptcy is the proper party to prosecute a writ of error; but if the party himself has sued out the writ, his assignee may be substituted. (Herndon v. Howard, 9 Wall., 664, cited.) Knox v. Exchange Bank,* 12 Wall., 379.

§ 2670. Where the appellant becomes a bankrupt after taking the appeal, his assignee may be substituted as appellant. Herndon v. Howard,* 9 Wall., 664.

§ 2671. Power to issue writs.- Where a case is in the supreme court by appeal the court may issue any writ which may be necessary to render its appellate jurisdiction effectual. (Judiciary Act, § 14.) Ex parte The Milwaukee R. Co., 5 Wall., 188. See the case, §§ 1533-34. § 2672. Division of opinion.-In case of a writ of error from the supreme court to the circuit court, where the record shows what purports to be a disagreement between the judges in the circuit court, which is certified to in due form, if the amount is below that necessary to give jurisdiction to the supreme court, and the supreme court can see from an inspection of the record that there was in fact no disagreement between the judges, the writ must be dismissed. Railroad Company v. White, 11 Otto, 98.

2673. Death of a party-Case held under advisement.- Where a case brought to the supreme court is held under advisement, and in the meantime one of the parties dies, judgment will be entered nunc pro tunc as of the first day of the term. Clay v. Smith, 3 Pet., 412.

§ 2674. Cross-appeal. The complainant in a creditor's bill alleged that executions were issued against the judgment debtors and returned unsatisfied, but failed to make proof of that fact. A decree being rendered against the complainants, they appealed. Held, that the appellees, not having taking a cross-appeal, could not object to the reversal of the decree on account of the failure of the complainants to prove the issue and return of the executions; and the supreme court, in reversing the decree, ordered that the defendants have liberty in the court below to compel the complainants to supply the missing proof. Chittenden v. Brewster, 1 Wall., 195.

§ 2675. Minors protected.— Where, on an appeal to the supreme court from the decree of a court of equity, it appears that a father has not fairly represented the interests of his minor

children in the court below, the supreme court, though they have not appealed, will protect their interests. Caldwell v. Taggart, 2 Pet., 200.

§ 2676. Special allocatur.- In a case of a writ of error from the supreme court to the circuit court of the District of Columbia, it was found on opening the record that the amount in controversy was too small to authorize a writ of error, unless by special allocatur from such circuit court to the supreme court. As the amount was sufficient to justify such allocatur, and it was stated that the question was one of great public importance, and that other cases depended on its decision, a special allocatur was allowed nunc pro tunc. United States v. Ringgold, 8 Pet., 153.

§ 2677. Appeal from part of decree.— From a decree in favor of libelants in a salvage case, one of the respondents appealed. The appeal was dismissed as to certain of the libelants, on the ground that the amounts severally awarded to them were not sufficient to sustain the appeal. The cause was then heard on the merits, and the decree of the district court was reversed and the libel dismissed as to the remaining appellees, but no provision was made in the decree as to that part of the decree not appealed from; and a motion was made to correct the decree by inserting a provision affirming the part not appealed from. On this motion the court rendered the following opinion:

I think the decree is correct as it stands. Only one of the respondents below appealed. The appeal was dismissed, as respected a portion of the libelants, on the ground that the sums awarded to them severally were not of sufficient amount to sustain an appeal. The issue, therefore, in this court was confined to the appellant and the remaining appellees, and the decree on the appeal was between these parties, and these alone. It could extend to no others, for, in judgment of law, they were the only parties on the record in the appeal suit, and the decree entered had relation to them exclusively. The whole decree in the court below is brought up on the appeal. In its nature it is not severalie. A part of the suit cannot be in one court and a part in another at the same time. And as this court has no power to remit its proceedings to the court below, it must execute the decree here. But, although the whole of the decree of the district court is brought here, only part of it is appealed from. The part not appealed from remains here, in full force, to be executed on the final termination of the cause. There is, therefore, no difficulty in executing the decree as modified by the decision of this court on the appeal. What is not reversed is still in force, and becomes part of the decree in this court, and is to be executed as such. Motion denied. The Roarer, 1 Blatch., 1.

§ 2678. Assignment of errors - The practice of the supreme court does not require a technical assignment of errors. Upon a writ of error the whole record is open for inspection, and if any error be found in it the judgment is reversed. (Per CURTIS, J.) Scott v. Sandford, 19 How., 566.

§ 2679. The supreme court will affirm a judgment where no proper assignment of errors is made, and no errors appear upon the record which the court ought to notice without an assignment. Treat v. Johnson, 20 Wall., 652.

§ 2680. The practice of filing very numerous assignments of error in the supreme court is a perversion of the rule, and only those errors relied upon should be stated. Where a large number of such assignments are filed, the supreme court will consider only the points material to the judgment. Phillips, etc., Construction Co. v. Seymour, 1 Otto, 648.

§ 2681. Though the assignment of errors is defective under the rules of the supreme court, in not being specific and definite, yet where the exceptions have been reduced to a summary statement, the material questions will be considered. Turnbull v. Payson, 5 Otto, 420.

§ 2682. A failure to annex to or return with a writ of error an assignment of errors, as required by section 997 of the Revised Statutes, is no ground for dismissal for want of jurisdiction. If an assignment is filed in accordance with the requirements of par. 4, rule 21, it will ordinarily be enough. School District v. Hall,* 16 Otto, 428.

§ 2683. It seems that nothing can be assigned for error which contradicts the record. Field v. Gibbs, Pet. C. C., 157.

§ 2684. When the brief of the counsel for the plaintiff in error does not assign the errors relied on separately and specifically in conformity to the rules of the supreme court, such assignments of error will be treated as if not made at all. This rule is made necessary by the pressure of business, and will be insisted upon. Deitsch v. Wiggins, 15 Wall., 646.

§ 2685. On a writ of error to the circuit court the supreme court affirmed the judgment for the failure of the plaintiff in error to file an assignment of errors and a brief, as required by the rules of the supreme court. Ryan v. Koch, 17 Wall., 19.

§ 2656. An assignment of error which simply avers that the court below erred in giving the instructions which were given to the jury on its own motion instead of giving those requested, but does not specify in what the error consisted, nor in what part of the charge it was to be found, is an insufficient assignment of errors under the rules of the supreme court. Lucas v. Brooks, 18 Wall., 456.

§ 2687. A motion for the continuance of a cause addresses itself to the sound judicial discretion of the court, and its decision, for or against the motion, cannot be assigned as error. Barrow v. Hill,* 13 How., 54.

§ 2688. Interest.— On appeal to the supreme court in admiralty cases the allowance of interest is a matter requiring a special order of the court, and when the decree of the circuit court is affirmed upon equal division of the judges of the supreme court no interest should be allowed. It seems that judgments in cases in law and in equity bear interest at the rate allowed in the respective states independent of any order of the supreme court. The Ship Independence, 20 How., 258.

§ 2689. Under the rules of the supreme court the proper measure of damages on a writ of error is interest at the rate of six per cent. per annum on the amount of the judgment from the date of its entry in the court below. Mitchell v. Harmony, 13 How., 148.

§ 2690. On affirmance on error of the decree of the circuit court, interest is to be calculated on the aggregate of principal and interest in the judgment below up to the time of affirmance and no further, although the mandate of the supreme court cannot operate in the lower court for some months, for the defeated party has a right to pay the sum immediately. Brown v. Van Braam, 3 Dal., 356.

§ 2691. Opinions.- Where the question involved is wholly one of the weight of evidence, the court will not reproduce in its opinion the facts on which its judgment is founded Harrell v. Beall,* 17 Wall., 590.

§ 2692. The question in this case being one of fact, the court affirms the decree without writing an opinion at length. Mann v. Rock Island Bank,* 11 Wall., 650; Tyler v. Campbell,* 16 Otto, 322.

7. Continuance.

§ 2693. In general.— Where a case is appealed within less than twenty days before the term, the appellee has a right to notice it for hearing on the first day of court, or to continue it, as he may prefer. It will not be continued on motion of the appellant. Backus v. Schooner Marengo,* 6 McL., 499; Nall v. The Steamer Illinois,* 6 McL., 413.

$2694. An appeal from the superior court of middle Florida was taken in a proceeding to obtain confirmation of a land title. After argument it was moved to postpone the final disposition of the case a term, in the hope that further admissible evidence might be discovered, but the court, being of the opinion that there was no likelihood that the evidence would change the attitude of the case, refused the continuance. Mitchell v. United States, 9 Pet., 723.

§ 2695. The death of counsel so recently before the beginning of the term that the party has not time to employ other counsel, and have the case prepared for hearing, is a ground for a continuance. Hunter v. Fairfax,* 3 Dal., 305.

$2696. Case continued on the application of the attorney-general of Rhode Island, on the ground of sickness of his associate counsel, and want of time to employ and instruct other counsel. Rhode Island v. Massachusetts,* 11 Pet., 226.

$2697. Where an appeal was not entered in court until the second term after it was taken, a continuance was granted on motion of the appellee. Brown v. Swann,* 8 Pet., 435.

2698. A real action will not abate by the death of a party pending a writ of error. Green v. Watkins, § 2699. 2700.

[NOTES.-See §§ 2701-2703.]

GREEN v. WATKINS.

(6 Wheaton, 260-264. 1821.)

Opinion by MR. JUSTICE STORY.

STATEMENT OF FACTS.- The preliminary question which has been argued at the bar is whether the writ of error in this case, which is a writ of right, has abated by the death of the demandant, who is the plaintiff in error, pending the proceedings in this court.