Where the law governing the case is the common law, the decisions of the highest State courts do not control, except in a class of cases where by repeated decisions a rule of property as to land titles peculiar to a State have been established. Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 987.

Under the Act of Mar. 3, 1891, establishing the Circuit Court of Appeals, cases in which the jurisdiction of the District or Circuit Courts were in issue could be brought to the Supreme Court only after final judgment. McLish v. Roff, 141 U. S. 661, 35 L. ed. 893; Railway Co. v. Roberts, 141 U. S. 690, 35 L. ed. 905.

Certiorari will not be granted to review an order of the Circuit (District) Court which is reviewable by appeal. The Supreme Court is authorized by sec. 716, Rev. Stats., U. S. Comp. Stats. 1901, p. 580, to issue the writ in all proper cases. The rule is that as between private persons the writ of certiorari to bring up a decree or order for review on special cause shown, will be granted or denied in the sound discretion of the court; it will be refused when there is a plain and adequate remedy by appeal or otherwise. In re Tampa Suburban R. R. Co., 168 U. S. 583588, 42 L. ed. 590, Oct. T., 1897.

Held, certiorari to the Circuit Court of Appeals to review a judgment or decree of that court, made final by way of exclusion of any review by writ of error or appeal by sec. 6 of the Act of Mar. 3, 1891 (26 Stat. L. 826), might be issued by the Supreme Court in any case whether its advice is requested or not, but will be issued only where questions of gravity and importance are involved, or in the interest of uniformity of decision. Lau Ow Bew v. United States, 144 U. S. 47-58, 36 L. ed. 344, Oct. T., 1891.

Held, The writ of certiorari might be issued to the Circuit Court of Appeals under the Act of Mar. 3, 1891, pending action by that court, although this is a power not ordinarily to be exercised. United States v. The Three Friends, 166 U. S. 1-49, 41 L. ed. 913, Oct. T., 1896.

The Supreme Court may issue the writ of certiorari to review the action of the Circuit Court of Appeals denying an original application for mandamus to compel the judge of a district court to proceed in an action before it. Held, such writ might issue in exercise of the power conferred by sec. 716, Rev. Stats. (sec. 262, Judicial Code, U. S. Comp. Stats. 1901, p. 580). McClellan v. Carland, 217 U. S. 268–279, 54 L. ed. 766.

NOTE. See sec. 234, Judicial Code.

Certiorari under sec. 240, Judicial Code, may not issue except where the decree or judgment of the Circuit Court of Appeals is final. Ib., p.

Where there is no amount in controversy there can be no appeal to the Supreme Court from the Circuit Court of Appeals. Ib. 279.

The power of the Supreme Court to require a case to be certified to it by the Circuit Court of Appeals under the Act of 1891 (sec. 240, Judicial Code) is not affected by the condition of the case as it exists in the Court of Appeals. It extends to every case pending in the Circuit Court of Appeals and may be exercised before or after any decision by that court, provided the case is one in which the determination of the Circuit Court of Appeals would be final. Forsyth v. Hammond, 166 U.S. 506-514, 41 L. ed. 1098.

NOTE.-By sec. 240, Judicial Code, the writ is issued only on petition of a party to the cause.

The Supreme Court had jurisdiction by sec. 14 of the Judiciary Act of 1789, sec. 716, Rev. Stats., U. S. Comp. Stats. 1901, p. 580, to issue the writ of certiorari to review judgments in contempt proceedings in the Circuit Courts, they not being reviewable on appeal or writ of error. Ex parte Chetwood, 165 U. S. 443-462, 41 L. ed. 788, Oct. T., 1896. Although prior to the Act of Mar. 3, 1891, the writ of certiorari had seldom been issued by the Supreme Court except as auxiliary process, it will be allowed whenever it is required to correct excess of jurisdiction and in furtherance of justice, under authority conferred by sec. 14 of the Judiciary Act (sec. 716, Rev. Stats., U. S. Comp. Stats. 1901, p. 580). Ib.

THE PRESENT RULES

OF THE

SUPREME COURT OF THE UNITED STATES

RULE I-Clerk

1. The clerk of this court shall reside and keep the office at the seat of the National Government, Clerk's office; clerk not to and he shall not practice, either as attor

practice.

ney or counsellor, in this court, or in any other court, while he shall continue to be clerk of this court.

2. The clerk shall not permit any original record or paper to be taken from the court room, or from the office, without an order from the court, except as provided by Rule 10.

Promulgated December 22, 1911. 222 U. S.

Decisions

The occasion for the amendment made in the second clause of the rule stated in an announcement made Nov. 13, 1882. Matter of amendments to Rules 1 and 10, 108 U. S. 1–4, 27 L. ed. 629, Oct. T., 1882.

Where the judge has power to appoint a clerk pro tempore, such appointee is clerk de facto, and his acts will be valid so far as regards a third party, though there is irregularity in the appointment. Cocke v. Halsey, 16 Pet. 71-87, 10 L. ed. 896, Jan. T., 1842.

Where the law gives the court the power of appointing its own clerk, there being no provision of law for his removal, the office is to be held at the will and discretion of the court, and the mere appointment of a successor is per se a removal of a prior incumbent. Ex parte Hennen, 13 Pet. 230-261, 10 L. ed. 154, Jan. T., 1839.

RULE II-Attorneys and Counsellors

1. It shall be requisite to the admission of attorneys or

counsellors to practice in this court, that they shall have Qualifications of attor- been such for three years past in the highest courts of the States to which they respectively belong, and that their private and professional characters shall appear to be fair.

neys.

2. They shall respectively take and subscribe the following oath or affirmation, viz:

I,

Oath of attorneys.

-, do solemnly swear (or affirm) that I will demean myself, as an attorney and counsellor of this court, uprightly, and according to law; and that I will support the Constitution of the United States.

Clause 1 adopted Feb. 5, 1790, 2 Dallas, 399; published as general Rule 2 in 1 Cranch, xvi; 1 Wheat. xiii; 1 Pet. vi; 1 How. xxiii; 21 How. v, and 108 U. S. 573.

Clause 2 adopted Feb. 5, 1790, as general Rule 4, 2 Dallas, 399; published 1 Cranch, xvi; 1 Wheat. xiii; 1 Pet. vi; 1 How. xxiii; 21 How. v; amended Mar. 10, 1865, to conform to the Act of Congress of Jan. 24, 1865 (13 Stat. L. 424), 2 Wall. vii. Amendment annulled December Term, 1866, 4 Wall. vii. See Ex parte Garland, 4 Wall. 333, 18 L. ed. 370; republished 108 U. S. 573.

The provisions contained in original Rule 3, that counsellors should not practice as attorneys, nor attorneys as counsellors, was omitted in the general revision of the rules at the December Term, 1858.

Promulgated Dec. 22, 1911. 222 U. S.

Decisions

Where an attorney is otherwise qualified under the rules the fact that he has been stricken from the rolls of another court for contempt will not be cause for the Supreme Court to refuse his admission as counsellor of that court. Ex parte Tillinghast, 4 Pet. 108-110, 4 L. ed. 799, Jan. T., 1830.

Attorneys and counsellors are officers of the court, admitted upon evidence of their possessing sufficient learning and fair private character.

In the Supreme Court the fact of the admission of such officers to the highest courts of the States to which they belong for three years preceding their application, is regarded as sufficient evidence of their requisite legal learning, and the statement of counsel moving their admission, sufficient evidence that their private and professional character is fair. Ex parte Garland, 4 Wall. 333-378, 18 L. ed. 370, Dec. T., 1866.

From the entry of the order for admission attorneys are responsible to the court for professional misconduct, and can only be deprived of their office for misconduct, declared by the judgment of the court after opportunity to be heard.

This admission or exclusion is the exercise of judicial power. Ib.