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cause the Supreme Court decided that on the record before it the value of the matter in dispute was less than the jurisdictional amount, a second writ of error on further proof of value is not a writ of right. After a decision upon an appeal or a writ of error, a second appeal or writ of error will lie to bring up proceedings subsequent to the mandate, and not settled by the terms of the mandate itself. After the final decree or judgment of the court below upon the mandate of an appellate court, the proceedings may be reviewed by appeal or writ of error in case it is claimed that the mandate has not been obeyed. When a mandate has been sent down upon a prior writ of error or appeal, no second appeal or writ of error can be sustained, until the court below has made its final judgment or decree in the case. A second appeal or writ of error will be dismissed if it appears that the decree below was entered in exact accordance with the mandate, and that no subsequent proceedings have been taken."

Edmondson v. Bloomshire, 7 Wall. 306; The Virginia v. West, 19 How. 182; The Palmyra, 12 Wheat. 1.

2 Red River Cattle Co. v. Needham, 47 Fed. R. 358. A decision of the Supreme Court upon a certificate of division of opinion, under the former practice, did not preclude a subsequent writ of error to the final judgment below. Ogle v. Lee, 2 Cranch, 33. Hinckley v. Morton, 103 U. S. 764; Mackall v. Richards, 112 U. S. 369.

Perkins v. Fourniquet, 14 How. 328; Martin v. Hunter, 1 Wheat. 304: Roberts v. Cooper, 20 How. 467; Cook v. Burnley, 11 Wall. 659; Tyler v. Magwire, 17 Wall. 253.

ory v. Pike (C. C. A.), 77 Fed. R. 241. Even when the mandate was from the Circuit Court of Appeals and the case is one in which an appeal lies from the decision of that court to the Supreme Court. Merrill v. National Bank (C. C. A.), 78 Fed. R. 208; s. C., 173 U. S. 131. A Circuit Court of Appeals cannot ordinarily review the proceedings of a Circuit Court in obedience to the mandate of the Supreme Court. Texas & Pac. Ry. Co. v. Anderson, 149 U. S. 237. A recall of the mandate sent by the Circuit Court of Appeals to the Circuit Court is not required as a prerequisite condition or in aid of an

U. S. v. Fossatt, 21 How. 445; U. S. appeal to the Supreme Court in a v. Fremont, 18 How. 30.

Mackall v. Richards, 116 U. S. 45; Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736. See Walden v. Bodley's Heirs, 9 How. 34, 48; U. S. v. N. Y. Indians, 173 U. S. 464; Tyler v. Last Chance Mine (C. C. A.), 97 Fed. R. 394; In re Pike (C. C. A.), 76 Fed. R. 400; Greg

case where the decision of the Circuit Court of Appeals is not final; since the transcript of the record remains in the Circuit Court of Appeals. Ritter v. Mutual L. I. Co. (C. C. A.), 72 Fed. R. 567. Cf. Merrill v. Nat. Bank of Jacksonville, 173 U. S. 131; s. c. as Merrill v. First Nat. Bank (C. C. A.), 75 Fed. R. 148.

Upon a second writ of error or appeal, when the facts are unchanged, the law of the case first declared remains the law." Upon a second writ of error or appeal, subsequent to a mandate, no inquiry into the merits of the original judgment or decree, nor into any question before the appellate court on the first writ of error or appeal, can be considered. Upon a second appeal in a prize cause, no interest can be decreed which was not claimed upon the original hearing or upon the original appeal. Where the mandate of the appellate court on the original appeal was that the damages be divided, and the respondent then claimed no damages, he cannot make such claim for the first time in the appellate court on a second appeal."

A motion to extend the time for returning an appeal previously granted, and an order granting such motion, cannot be considered as a second appeal." After a dismissal of one appeal no second appeal can be docketed until after an allowance thereof. Proceedings by representatives of a deceased appellant to become parties to the appeal do not constitute a new appeal. A second writ of error taken after the death of the original plaintiff in error is void; the action must first be revived in the court below, and the writ of error must then issue in the name of the representative of the original plaintiff in error.14

7 Johnston v. Jones, 1 Black, 209; Mathews v. Columbia Nat. Bank (C. C. A.), 100 Fed. R. 393; Thatcher v. Gottlieb (C. C. A.), 51 Fed. R. 373; Florida Cent. & P. R. Co. v. Cutting (C. C. A.), 68 Fed. R. 586; Oregon R. R. & Nav. Co. v. Balfour (C. C. A.), 90 Fed. R. 295; Patton v. Texas & P. Ry. Co. (C. C. A.), 95 Fed. R. 244. This is not true of all the dicta in the opinion. Barney v. Winona & St. P. R. Co., 117 U. S. 228; The E. A. Packer (C. C. A.), 58 Fed. R. 251. Nor is the decision conclusive upon points which might have been but were not then raised. Balch v. Haas (C. C. A.), 73 Fed. R. 974; Ex parte Union Steamboat Co., 178 U. S. 317.

8 Cook v. Burnley, 11 Wall. 659; The Santa Maria, 10 Wheat. 431;

Washington Br. Co. v. Stewart, 3 How. 413; Sizer v. Many, 16 How. 98; Roberts v. Cooper, 20 How. 467; Tyler v. Magwire, 17 Wall. 253; Supervisors v. Kennicott, 94 U. S. 498; The Lady Pike, 96 U. S. 461; Ames V. Quimby, 106 U. S. 342; Clark v. Keith, id. 464; U. S. v. The Nuestra Señora De Regla, 108 U. S. 92; Chaffin v. Taylor, 116 U. S. 567.

9 Thompson v. Maxwell L. G. & Ry.
Co., 168 U. S. 451; Ala. G. S. R. Co. v.
Carroll (C. C. A.), 84 Fed. R. 772; The
Santa Maria, 10 Wheat. 431.

10 The Sapphire, 18 Wall. 51.
11 U. S. v. Curry, 6 How. 106.
12 Rogers v. Law, 21 How. 526.
13 Edmonson v. Bloomshire, 7 Wall

306.

14 McClane v. Boon, 6 Wall, 244.

The appellate court may award a supersedeas on a second writ of error; 15 but not in a case where a prior writ of error has been dismissed, unless it appears that the first writ of error was accompanied by a supersedeas duly obtained in the court below, and perhaps not unless it appears that the dismissal of the first writ was not due to the neglect or fault of the plaintiff in error.16

15 Hardeman v. Anderson, 4 How. 640.

16 Hogan v. Ross, 11 How. 294; Hardeman v. Anderson, 4 How. 640.

APPENDIX.

I.

FORMS.

The following forms have been selected and copied almost verbatim from precedents which have been actually used in the courts. The author has inserted them by the advice of the publisher and other friends, in the hope that they may be of some use to the profession; but he disclaims all responsibility for their correctness.

FORM I.-BILL IN EQUITY IN PATENT CASE.

Circuit Court of the United States, Southern District of New York.

THE WEBSTER LOOM COMPANY

against

ELIAS S. HIGGINS, HENRY M. BвOOKS, and EUGENE

HIGGINS, doing business under the name and

style of ELIAS S. HIGGINS & Co.

In Equity.

To the Honorable the Judges of the Circuit Court of the United States in and for the Southern District of New York:

The Webster Loom Company, a corporation organized under and pursuant to the laws of the State of New York, and having its principal place of business in the City of New York in said State, brings this its bill of complaint against Elias S. Higgins, Henry M. Brooks, and Eugene Higgins, all of the City, County, and State of New York, and citizens of said State, and doing business under the name and style of Elias S. Higgins & Company.

And, thereupon, your orator complains and says that heretofore and before the 27th day of August, 1872, one William Webster, then of Morrisania, in the State of New York, was the original and first inventor of a certain new and useful improvement in looms for weaving pile fabrics not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application for a patent therefor.

And your orator further shows unto your Honors that the said William Webster, so being the inventor of said improvement, made application to the Commissioner of Patents, in accordance with the then existing laws of the United States, and complied in all respects with the conditions and requirements of said laws.

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