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the entire appellate jurisdiction from the Circuit and District Courts of the United States was distributed according to the scheme of that act between the Supreme Court and the Circuit Court of Appeals by designating the class of cases of which each of these courts were to have final jurisdiction. Ib. 681.

NOTE. But see United States v. Dalcour, 203 U. S. 408, 51 L. ed. 248, Oct. Term, 1906, in which the court announced that appeals might still be taken to the Supreme Court direct from the District Court in a certain other class of cases; holding the words in sec. 6 of the act, “unless otherwise provided by law," applied to previous legislation, and not as it had theretofore held to contemporaneous and subsequent enactments.

Held, that sec. 631, Rev. Stats. (U. S. Comp. Stats. 1901, p. 518), was not repealed by the Act of Mar. 3, 1891, and that the Circuit Court of Appeals has jurisdiction of causes in admiralty where the matter in dispute is less than the sum of fifty dollars ($50.00). No. American Trade & Trans. Co. v. Smith, 93 Fed. R. 7-9, 35 C. C. A. 183.

Where a libel is ordered to stand dismissed if not amended within ten days, the prosecution of an appeal within that time is an election to waive the rights to amend, and the decree of dismissal takes place immediately. The Three Friends, 166 U. S. 1-49, 41 L. ed. 897.

An admiralty case may be reviewed by certiorari from the Supreme Court to the Circuit Court of Appeals, as well as by a direct appeal from the District or Circuit Courts, in the cases where such appeal is allowed directly. Ib.

The writ of certiorari to review causes pending in the Circuit Court of Appeals before final action by that court will only be issued under extraordinary circumstances. Ib. 49.

Upon a writ of certiorari from the Supreme Court to the Circuit Court of Appeals, the entire case is open for examination where the judgment of the trial court has been reversed, the case remanded for assessment of damages, and after assessment and decree a second appeal to the Court of Appeals upon the question of damages. Panama Railroad v. Napier Shipping Co., 166 U. S. 280–284, 41 L. ed. 1004.

The decree of the District Court dismissing a libel upon motion of the claimant because no evidence had been submitted is not a final decree from which an appeal will lie. The Delaware, 33 Fed. R. 589.

In such case the remedy of the party, if he fails to procure the order of dismissal to be set aside and the cause to be reinstated, is to bring a fresh suit; the decree of dismissal is not conclusive between the parties. The Merchant, 4 Blatchf. 105; Fed. Cases, 9,436.

A decree establishing a maritime lien and awarding libellants a definite sum and directing that the vessel be sold and the proceeds paid into the registry of the court, is a final decree, upon which an appeal may be had. The fact that the proceeds are directed to abide the further order of the court, does not affect the finality of the decree. The Eugene, 87 Fed. R. 1001–1002, 37 C. C. A. 345.

Where no time is fixed by the general rule or special order of the trial court, within which the bond may be given, the appellant has thirty days under Rule 45 from the rendition of the decree to perfect his appeal. The Canary, No. 2, 22 Fed. R. 536.

Where an appeal has been taken by petition and citation and respondent has been served with notice and has appeared, the appeal has a standing irrespective of the bond, and where such respondent has participated in taking evidence in the appellate court, the appeal will not be dismissed because no bond or an irregular bond has been given. The Natchez, 27 Fed. R. 309-310.

Whether the Circuit Court had power to allow an amendment in an appeal process when the statement of the title of the action and parties thereto was defective, considered doubtful but not decided. Ib. 310.

Upon a judgment against a defendant and sureties, the defendant alone sued out a writ of error without joining the sureties and the appellate court dismissed the writ for the nonjoinder, Held, that the judgment of dismissal could be rescinded and the writ amended by inserting the names of all the judgment defendants. Coasting Co. v. Tolson, 136 U. S. 572-578, 34 L. ed. 539.

On the authority of the above case, Held, that the Court of Appeals upon proper petition filed in time should allow the sureties on a bond given for the release of a vessel to be made parties appellant. The City of Naples, 69 Fed. R. 794-795, 16 C. C. A. 421.

The time prescribed for appeals in Rule 45 is altered by the time given in sec. 11 of the Act of Mar. 3, 1891, authorizing appeals to be taken within six months. Ib. 795.

Sureties on a stipulation entered into under sec. 941, Rev. Stats. (U. S. Comp. Stats. 1901, p. 692), and Rule 11 are not parties to the suit in the sense that requires them to be joined in an appeal by the claimants whose sureties they are, unless upon the record it appears that some question arises touching the obligation of the sureties, or involving the terms of the stipulation bond; if any such question has been made, the sureties will have a right to be heard and take an appeal on any decree affecting their liability, otherwise they are not proper parties. The New York, 104 Fed. R. 561-563, 44 C. C. A. 38.

A decree entered in the District Court in pursuance of the mandate

from the Supreme Court may be reviewed on appeal to the Circuit Court of Appeals as to any matters not considered by the Supreme Court and left open by its mandate. Ib. 566.

Under sec. 11 of the Act of Mar. 3, 1891, the time allowed for appeals from the Circuit Court to the Court of Appeals is six months. Ib. 565. The appellate jurisdiction of the Circuit Court was abolished by sec. 4 of the Act of 1891. Ib. 565.

Upon a decree in favor of several libellants by name for various sums and an appeal bond in favor of one, Held, the appeal was so defective that it gave no jurisdiction, and the court was without power to allow an amendment. The City of Lincoln, 19 Fed. R. 460–461.

Upon appeal by the libellant, Held, that the appeal opened the whole case, and that the party could not claim the benefit of the decree below, and, standing secure on that, try his fortune in the appellate court. The Cassius, 41 Fed. R. 367–368.

Where there has been a joint judgment against two defendants and one of the defendants fails to join in the appeal and is not served with summons and notice of severance, the appellate court cannot consider the appeal; and the defendant not appealing, cannot after the expiration of the time allowed for an appeal appear in the appellate court, waive the service of citation and make himself a party and thus perfect the appeal. Consumers' Cotton Oil Co. v. Nichol, 120 Fed. R. 818-819, 57 C. C. A. 321.

Unless all persons who appear to have an interest in the decree are made parties to the appeal or given notice to appear and join in the appeal or otherwise defend their interest, the appeal must be dismissed. Grand Island, etc., Co. v. Sweeney, 95 Fed. R. 396–398, 39 C. C. A. 127.

If the decree be joint in form but separable in fact, or law, the mere form will not make it such a joint decree as to require all those nominally joined in the decree to unite in appellate proceedings. Hanrick v. Patrick, 119 U. S. 156-163, 30 L. ed. 396.

The decree will not be dismissed where the transcript is not properly made up and certified because of a general confusion in the minds of all parties and the appellant is not solely to blame. The Ethel, 31 Fed. R. 576.

The Courts of Appeals of the First, Second, and Ninth Circuits have expressed the opinion that the Act of Feb. 16, 1875, does not apply to admiralty cases appealed from the District Court to the Court of Appeals. The Philadelphian, 60 Fed. R. 423; The Avilla, 48 Fed. R. 684; The State of California, 49 Fed. R. 172, 1 C. C. A. 224.

The question is undetermined in the Eighth Circuit. Pioneer Fuel Co. v. McBride, 84 Fed. R. 495-497, 28 C. C. A. 466.

In respect to admiralty cases the Court of Appeals stands in the relation of the Supreme Court to the Circuit Courts, and a cause brought from either the Circuit or District Courts comes into such court for review rather than for trial. Ib. 497.

The Act of Feb. 16, 1875, relieving the Supreme Court from deciding questions of fact in admiralty causes does not apply to the Circuit Court of Appeals. The Coquitlam, 77 Fed. R. 744-748, 23 C. C. A. 438.

The appellate court will not reverse a conclusion reached by the District Court on a controverted question of fact where the evidence is contradictory, unless it clearly appears to be contrary to the preponderance of evidence, and this notwithstanding the witness may not have testified in the presence of the court. Ib. 748.

In the Seventh Circuit it is held upon a review of the cases that the Act of Feb. 16, 1875, c. 77, 18 Stat. 315 (U. S. Comp. Stats. 1901, p. 525) which provided that Circuit Courts in admiralty causes might empanel a jury whose verdict, unless set aside, should on review by the Supreme Court be conclusive, on the issues of fact submitted, has no application to appeals in admiralty from the District Courts to the Circuit Court of Appeals. The Nyack, 118 C. C. A. 67-73.

Questions of fact and law involved in an admiralty appeal come to the Circuit Court of Appeals substantially as they do to the district judge. He may order a jury trial when either party so requests. Whether the verdict is binding or advisory only not decided.

The Circuit Court of Appeals may review the whole case as if it were originally brought there, except that as a general rule it will not reverse where the evidence is conflicting. Ib.

RULE XLVI

In all cases not provided for by the foregoing rules, the District and Circuit Courts are to regu

late the practice of the said courts re

Courts to regulate further practice.

spectively, in such manner as they shall deem most expedient for the due administration of justice in suits in admiralty.

Decisions

Statutes of limitation as such are not enforced in courts of admiralty, but such courts usually proceed in analogy to the statutes unless there is something exceptional in the case. The Southwark, 128 Fed. R. 149150.

A court of admiralty will not follow the ruling of the Court of Appeals of New York that a foreign corporation cannot plead the State statute of limitations, when it appears the corporation has been continuously subject to the service of process within the State. Davis v. Smokeless Fuel Co., 196 Fed. R. 753, 116 C. C. A. 384.

While admiralty courts are not bound by the conformity act, sec. 721, Rev. Stats., (U. S. Comp. Stat. 1901, p. 581), yet they will follow a State statute of limitations by analogy in determining whether a claim is stale. Ib.

Counsel fees may be allowed to be taxed in a case where a fund is in court to be distributed, under the doctrine of Trustees v. Greenough, 105 U. S. 535. Where many libels have been filed by several different proctors the various claims should be consolidated, and one docket fee to each proctor is not an unreasonable allowance. The GordonCampbell, 131 Fed. R. 963-967.

Where a court of admiralty has distribution of a fund arising from the sale of a vessel and the maritime liens have been paid, the holder of a mortgage recorded under secs. 4192 and 4193, Rev. Stats., (U. S. Comp. Stats. 1901, p. 2837), will be allowed to prove his claim and share in the fund according to the priority. Ib. 965.

While interest is allowed as a matter of right on claims arising out of contract, the allowance of interest in the way of damages in cases of collision and other cases of pure damage, as well as the allowance of costs, is in the discretion of the court. Bethell v. Miller & Rittenhouse Co., 135 Fed. R. 445.

The power to require additional security where that previously given has become insufficient or worthless as also that of abating an exorbitant security, is one of the incidental powers of the court in regulating its practice and proceedings. The City of Hartford, 11 Fed. R. 89-90.

Proceedings required to obtain leave to maintain a suit in forma pauperis must conform to the provisions of the Act of July 20, 1892 (27 Stat. L. 252), although the rules of the court make different provision. Donovan v. Salem & P. Nav. Co., 134 Fed. R. 316–317.

Where a proceeding in rem is instituted against a vessel and the vessel arrested and released upon the usual bond and surety, and after testimony taken the claimants objected to the jurisdiction of the court appearing on the face of the libel, it being apparent that no judgment in personam could be allowed in the cause, the subject-matter of the action being within the jurisdiction of admiralty, Held, that the libel could be amended to set out a cause of action in personam against the owner under the general power possessed by courts of admiralty, unless there

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