summons and severance in a writ of error) to be issued in the court below, to become parties to the appeal, then the other parties will be at liberty to prosecute the appeal for themselves and upon their own account, and the appeal as to the others may be pronounced deserted, and the decree of the court below as to them be proceeded in and executed.' But if the decree is several, the parties may have their several appeals, and proceed alone. The same rules, in fact, are applicable as in writs of error.3

§ 411. In case, however, of a joint decree against several parties, although all of them may have appealed, it is not necessary that all should sign the appeal bond. It is sufficient if the bond is approved by the court below, as satisfactory and complete security, by whomsoever it may be executed."

§ 412. The want of a proper service of the citation may be shown in the Supreme Court, after judgment has been rendered upon an appeal and a mandate to the circuit court has been issued. If it appears that the appeal was irregularly before the Supreme Court, its decree will be reversed and the mandate revoked."

§ 413. The record brought up by the appeal, whether in equity or admiralty, must contain "a transcript of the libel, bill, answer, depositions, and all other proceedings of what kind soever in the cause;" and if parol testimony was heard in the court below, such testimony must be reduced to writing,

'Todd v. Daniel, 16 Peters, 521.

2 Owings v. Kincannon, 7 Peters, 399.

3 Ibid. Coxe and Dick v. The United States, 6 Peters, 172..

4 Brockett v. Brockett, 2 Howard, 238. An objection to the appeal bond, if well founded, ought to be taken by way of preliminary motion to dismiss the appeal for irregularity. Mandeville v. Riggs, 2 Peters, 482. 5 Ex parte Crenshaw, 15 Peters, 119.

Act March 3, 1803, § 2.

and appear in the record. A statement of facts is not sufficient.2

§ 414. An appeal brings up all the matters which were decided in the circuit court to the prejudice of the appellant, including a prior decree of that court from which an

1 Coun v. Penn, 5 Wheaton, 424. In this case, Mr. Ch. Justice Marshall, delivering the judgment of the court, said: "Without going into the merits of the case, the counsel for the plaintiffs contend that the decree ought to be reversed, because it appears to have been pronounced in part on parol testimony, which has not been introduced into the record, and because the decree was made when the parties interested were not all before the court.

"The laws of the United States have always proceeded on the supposition, that in revising decrees in Chancery, the facts, as well as the law, should be laid before this court. The Judiciary Act, which directs that the mode of proof shall be by oral testimony, and that witnesses shall be examined in open court, also directs that a statement of facts shall be placed on the record. The Act of 1802 leaves it to the discretion of the courts in those states where testimony in Chancery is taken by depositions, to order, on the request of either party, the testimony of the witnesses to be taken by depositions.

"The Act of 1803 repeals those parts of the Judiciary Act which authorize a writ of error, and a statement of facts in Chancery cases; allows an appeal from the decrees of a circuit court sitting in Chancery ; and directs that a copy of the bill, answer, depositions, and all other proceedings, of what kind soever, in the cause, shall be transmitted to this court, and that no new evidence shall be heard.

"Previous to this Act, the facts were brought before this court by the statement of the judge. The depositions are substituted for that statement; and it would seem, since this court must judge of the fact, as well as the law, that all the testimony which was before the circuit court ought to be laid before this court. Yet the section which directs that witnesses shall be examined in open court, is not, in terms, repealed.

"The court has felt considerable doubts on this subject, but thinks it the safe course to require that all the testimony on which the judge founds his opinion, should, in cases within the jurisdiction of this court, appear in the record. The parties may certainly waive testimony by consent, but if this consent does not appear, it cannot be presumed; and where it is shown on the record that witnesses were examined in open court, this court cannot say how much the opinion of the circuit court was influenced, and ought to have been influenced, by their testimony." 2 The Mayor, &c., of New Orleans v. The United States, 5 Peters, 448.

appeal was taken, but which appeal was dismissed under the rules of the Supreme Court.1

§ 415. An equity suit, where an appeal has been taken from the circuit court to the Supreme Court, but not prosecuted, will be dismissed upon producing a certificate from the court below, that the appeal has been taken and not prosecuted.2

§ 416. An objection to the competency of a witness, on the ground of interest, cannot be taken in the Supreme Court on a hearing on the appeal, where the witness had been admitted without objection in the district and circuit court.3

§ 417. Where the record from the court below contained the whole proceedings in the case, and exhibited all the matters either party required for a final disposition of the case, and the counsel for both the appellant and the appellees were willing to submit, upon argument, the whole case to the final decision of the court, but it appeared that the Circuit Court of Ohio had not decided any question but that which had been raised upon the jurisdiction of the court; the counsel were directed by the Supreme Court to argue the point of jurisdiction only."

§ 418. Where an appeal has been dismissed, the appellant having omitted to file a transcript of the record within the time required by the rule of court, an official certificate of the dismissal of the appeal may not be given by the clerk during the term. The appellant may file the transcript with the clerk during the term, and move to have the appeal reinstated. To allow such certificate would be to prejudge such a motion."

'Buckingham v. M'Lean, 13 Howard, 150.

2 Randolph v. Barbour, 6 Wheaton, 128; 5 Cond. Rep. 33.

3 The Palmyra, 12 Wheaton, 1; 6 Cond. Rep. 397.

4 M'Donald v. Smalley et al., 1 Peters, 621.

5 Bank of the United States et al. v. Swan, 3 Peters, 68.

§ 419. An appeal was taken at the December Term, 1832, of the Circuit Court for the District of Columbia, to the January Term, 1833, of the Supreme Court; but the appeal was not entered to that term, but was entered at January Term, 1834. The case being called for argument, the defendant asked for a continuance, which was granted.'

§ 420. The death of the appellee having been suggested, and the counsel for the executor of the appellee having offered to enter his appearance for the executor, the court sustained a motion to dismiss the cause, as no person appeared to prosecute the suit.2

§ 421. A defendant in appeal, using the copy of the record received from the circuit court, lodged by the appellant, cannot have the appeal docketed and dismissed, under the thirtieth rule of the court, on the ground that the appellant has failed to comply with the thirty-seventh rule, which requires a bond to be given to the clerk of the Supreme Court, before the case is docketed. He must, to sustain a motion to dismiss the cause, produce the certificate of the circuit court, stating the cause, and certifying that such an appeal has been duly sued out and allowed.3

§ 422. To permit, upon appeal to the Supreme Court from proceedings on its mandate, a suggestion of want of jurisdiction in the Supreme Court upon the first appeal, as a sufficient cause for re-examining the judgment there given, would certainly be a novelty in a court of equity. The Supreme Court has no power to review its decisions, either in a case at law, or in equity.*

Brown v. Swann, 8 Peters, 435.

2 Hooke et al. v. Linton, 10 Peters, 107.

3 West v. Brashier, 12 Peters, 101.

4 Washington Bridge Company v. Stewart, 3 Howard, 424.

CHAPTER VIII.

PRACTICE OF THE SUPREME COURT IN CASES CERTIFIED ON DIVISION OF OPINION.

§ 423. WHERE a case is certified to the Supreme Court, upon a division of opinion of the judges below, and the points reserved upon which they were divided are too imperfectly stated to enable the Supreme Court to pronounce any opinion upon them, the Supreme Court will neither award a venire facias de novo, nor certify any opinion to the court below upon the points reserved, but will merely certify that they are too imperfectly stated.'

§ 424. Where the point on which the judges of the circuit court divided in opinion was not certified, but the point of difference was to be ascertained from the whole record, the court refused to take jurisdiction of the case.2

§ 425. After a case had been, at the request of the plaintiff, certified from the Circuit Court of Maine, on a division of opinion between the judges of the court, the plaintiff filed in the circuit court a notice that he had discontinued the cause, and gave the defendant notice that, at the ensuing term of the Supreme Court, the cause would be then discontinued. On motion of the plaintiff, the court allowed the discontinuance.3

1 Perkins v. Hart, 11 Wheaton, 237; 6 Cond. Rep. 287.

2 D'Wolf v. Usher, 3 Peters, 269.

3 Veazie v. Wadleigh, 11 Peters, 55.