the inferior court, as the justice of the case may require.2 Neither the Supreme Court nor, it seems, a Circuit Court of Appeals has power to issue execution in a cause brought up from a District Court, but must send a special mandate to the inferior court to award execution thereupon. Whenever on appeal or writ of error, or otherwise, a case coming from a Circuit Court of Appeals is reviewed and determined in the Supreme Court, the cause must be remanded to the proper District Court for further proceedings in pursuance of such determination. Whenever on appeal or writ of error, or otherwise, a case coming from a District Court 5 or other court 6 is reviewed and determined in a Circuit Court of Appeals, in a case in which the decision of the Circuit Court of Appeals is final, the cause must be remanded to such lower court for further proceedings to be taken in pursuance of such decisions. The same rules apply to the review by the Supreme Court of the final judgments and decrees of the Court of Appeals of the District of Columbia," of the District Court of the District of Alaska, of the United States District Courts of Porto Rico and Hawaii. No judge before whom a cause or question has been 2 U. S. R. S., § 701; 26 St. at L. 829, §§ 10, 11. 3 U. S. R. S., § 701; 26 St. at L. 829, §§ 10, 11. 4 26 St. at L. 829, § 10. 5 26 St. at L. 829, § 10. See Harper v. Victor, C. C. A., 212 Fed. 903. 6 This rule applies to the review by the Circuit Court of Appeals for the First Circuit of the final judg ments and decrees of the United States District Court, and of the Supreme Court of Porto Rico, to the review by the Circuit Court of Appeals for the Fifth Circuit of the final judgments and decrees of the District Court of the Canal Zone, 37 St. at L. 565, § 9, Comp. St., § 10045, to the review by the Circuit Court of Appeals for the Ninth Circuit of the final judgments and decrees of the district court for the district of Alaska, Jud. Code, §§ 134, 247, 249; and of the Supreme Court and United States District Court of Hawaii and of the United States Court for China. Jud. Code, §§ 131, 246, as amended by act of Jan'y 28, 1915, ch. 22, § 2, 38 St. at L. 804, Comp. St., § 1126a. The Circuit Court of Appeals cannot direct the Supreme Court of Hawaii to correct a judgment of reversal by the latter court so as to render such judgment final in form and appealable. Rumsey v. N. Y. Life Ins. Co., C. C. A., 267 Fed. 554. 7 Jud. Code, §§ 249, 250, 36 St. at L. 1087. 8 Ibid., §§ 247, 249, 134. tried or heard in a District Court can sit on the trial or hearing of such cause or question in the Circuit Court of Appeals.10 The court of review will not consider exceptions taken by a party who has not sued out a writ of error or taken an appeal.11 A court of review cannot consider, by agreement of the parties questions not in the case; although a stipulation is made that other suits or proceedings, which have not been brought up on appeal, be consolidated with that appeal, when they were not consolidated in the court of first instance.12 But by stipulation the consideration may be limited to a single question,13 provided that the jurisdiction appears in the record.14 It has been said to be the duty of an intermediate appellate court, when reversing a judgment, to pass on all the errors that have been assigned, provided, at least, that they are not constitutional questions, in order to avoid duplicate appeals.1 15 Where the appellate court is equally divided, the judgment or decree of the court below is affirmed upon the point as to which there is a division, 16 and usually without any opinion.17 In such a case the appellate court cannot change the decree of the court below in any respect; nor exercise any discretionary power to allow interest on the affirmance; 18 and the decision is not to be considered as settling any principle.19 10 Ibid., § 120, re-enacting § 3 of the Evarts Act, 28 St. at L. 666. See Rexford v. Brunswick-BalkeCollender Co., 228 U. S. 339, 57 L. ed. -. 11 U. S. v. Black feather, 155 U. S. 180, 39 L. ed. 114; Guarantee Co. v. Phoenix Ins. Co., C. C. A., 124 Fed. 170; Cooper v. Jewett, C. C. A., 233 Fed. 618; Thacher v. Transit Const. Co., C. C. A., 234 Fed. 640; Lasswell Land & Lumber Co. v. Lee Wilson & Co., C. C. A., 236 Fed. 322; Henna v. Sauri & Subira, C. C. A., 237 Fed. 145; Rogers v. Marion County Lumber Corporation, C. C. A., 251 Fed. 876; Santa Marina Co. v. Canadian Bank of Commerce, C. C. A., 254 Fed. 391. 12 Headrick v. Larson, C. C. A., 152 Fed. 170. 13 Lydiard-Peterson Co. v. Woodman, C. C. A., 205 Fed. 900. 14 See infra, § 711g. 15 William W. Bierce, Limited v. Waterhouse, 219 U. S. 320, 55 L. ed. 237. 16 The Antelope, 10 Wheat. 66, 6 L. ed. 268; Washington Bridge Co. v. Stewart, 3 How. 413, 11 L. ed. 658; Holmes v. Jennison, 14 Pet. 540, 10 L. ed. 579. But see Carmichael v. Eberle, 177 U. S. 63, 44 L. ed. 672; supra, § 709. 17 Benton v. Woolsey, 12 Pet. 27, 9 L. ed. 987; Hertz v. Woodman, 218 U. S. 205, 54 L. ed. 1001. 18 Hemmenway v. Fisher, 20 How. 255, 15 L. ed. 709. 19 Etting v. Bank of U. S., 11 Wheat. 59, 6 L. ed. 419; Hanifen v. Armitage, 117 Fed. 845; Westhus Where the record does not show the jurisdiction, the court of review should reverse the judgment of its own motion.20 In such a case it will usually direct the entry of a judgment or decree of dismissal,21 or in a case originally brought in a State court will direct a remand, even if it has been stipulated that the case shall abide the decision of another appeal.22 § 711a. Final determination of the controversy. In general, the appellate court, when reversing a judgment at common law, will order a new trial, and when reversing a decree in equity v. Union Tr. Co. of St. Louis, C. C. A., 168 Fed. 617. A decision of an inferior court does not bind a court of appellate jurisdiction. U. S. v. Stone & Downer Co., C. C. A., 175 Fed. 33, 35. Unless the court of review affirms a judgment "on the opinion below," there is no presumption that it approved of the reasoning of such court, although it affirmed its judgment. Victor Talking Mach. Co. v. Hoschke, C. C. A., 188 Fed. 326. 20 Grace v. Am. Cent. Ins. Co., 109 U. S. 278, 27 L. ed. 932, infra, § 711g. 21 Bingham v. Cabbot, 3 Dall. 19, 1 L. ed. 491; Grace v. Am. Cent. Ins. Co., 109 U. S. 278, 27 L. ed. 724; Bors v. Preston, 111 U. S. 252, 28 L. ed. 419. City of New York v. Consolidated Gas Co., 253 U. S. 219. But where the objection was first taken upon the writ of error, and it appeared, although not by direct averment, that there was a diversity of citizenship between the parties, the case was remanded for appropriate action by the trial court with permission to grant leave to amend. Hunt v. Howes, C. C. A., 74 Fed. 657. Cf. Everhart v. Huntsville College, 120 U. S. 223, 30 L. ed. 623; supra, § 556. As to costs see § 412, supra. 22 Ryder v. Holt, 128 U. S. 525, 32 L. ed. 529. § 711a. 1 Hudson v. Guestier, 6 Cranch. 281; Exchange Nat. Bank v. Third Nat. Bank, 112 U. S. 276, 28 L. ed. 722; Little Miami & C. & X. R. Co. v. U. S., 108 U. S. 277, 27 L. ed. 724; Farmer v. Atlantic Coast Line R. Co., 205 Fed. 319; Murphy v. Milford, A. & W. St. Ry. Co., C. C. A., 210 Fed. 135; Union Pac. R. Co. v. U. S., C. C. A., 219 Fed. 427; Sucesores De L. Villamil & Co., S. En. C. v. Merced Co., 11239 Fed. 86; Sucrerie Central Coloso De Porto Rico v. Fajardo, C. C. A., 248 Fed. 432; United States v. Fernandez, C. C. A., 254 Fed. 302; Lehigh Valley R. Co. v. Normile, C. C. A., 254 Fed. 680. Cf. Slocum v. N. Y. Life Ins. Co., 228 U. S. 364, decided by a majority of the Supreme Court with a strong dissenting opinion by Hughes, J., a case which has been severely criticised. See The Green Bag for March, 1914, the New York Law Journal for March and April, 1914. For a defense of this case see the Illinois Law Review, VIII, 287, 381, 465. Where the essential and ultimate facts have not been found below, South Chicago Elevator Co. v. United Grain Co., C. C. A., 165 Fed. 132; Chicago, R. I. & P. Ry. Co. v. Barrett, C. C. A., 190 Fed. or admiralty, will direct the entry of a decree below finally disposing of the matters in litigation. But a decree in equity may be affirmed in part and reversed in part, an accounting, or other further proceedings may be ordered when necessary.5 118; and there is not sufficient in the record to justify a final disposition of the case, Exchange Mut. Life Ins. Co. v. Warsaw-Wilkinson Co., C. C. A., 185 Fed. 487; the Circuit Court of Appeals will direct a new trial. This was done where a case had been heard upon the pleadings and it appeared to the court of review that justice could be better done by consideration of the evidence of the facts which they alleged. Pfeil v. Jamison, C. C. A., 245 Fed. 119. Where the court below, in its charge to the jury, proceeded on an erroneous construction of a statute, upon which the action was based, the court of review did not undertake to determine the case on the evidence in the record, but directed a new trial. Union Castle Mail S. S. Co. v. Thomson, C. C. A., 190 Fed. 536. See Hawkins v. Dannenberg Co., C. C. A., 253 Fed. 529. Where a judgment in favor of, National Surety Co. v. U. S., C. C. A., 228 Fed. 577; or against, Chiarello Bros. Co. v. Pedersen, C. C. A., 242 Fed. 482, several parties is in its nature several it may be treated as containing separate judgments some of which may be affirmed and a new trial of the issues in the others directed. For a modification in favor of an alien enemy see Birge-Forbes Co. v. Heye, C. C. A., 248 Fed. 636. For a refusal to set aside a stipulation of a dismissal and to render judgment against the parties dismissed, see Griggs v. Nadeau, C. C. A., 221 Fed. 381. In a criminal 2 Wickliffe v. Owings, 17 How. 47; Penhallow v. Doane, 3 Dallas, 54, 1 L. ed. 507; Blease v. Garlington, 92 U. S. 1, 23 L. ed. 521; Denver v. Denver Union Water Co., 246 U. S. 178; Philippine Sugar &c. Co. v. Philippine Islands, 247 U. S. 385; Harrison v. Clarke, 182 Fed. 765, 767; United States v. Illinois Surety Co., C. C. A., 226 Fed. 653; Alwood v. Lewis, C. C. A., 254 Fed. 810. 3 Elizabeth v. Am. N. P. Co., 131 U. S. cxlviii, 24 L. ed. 1059; Kneeland v. American L. & Tr. Co., 136 U. S. 89, 34 L. ed. 379, s. c., 138 U. S. 509, 511, 34 L. ed. 1052, 1053. 4 Chouteau v. Barlow, 110 U. S. 238, 28 L. ed. 132; Tatum Bros. Real Estate & Investment Co. v. Shenk, C. C. A., 221 Fed. 182. 5 Where a decree in equity is reversed for the refusal of the court below to permit leave to file an amended bill or other bill not original, a new hearing upon the new bill and the subsequent proceedings thereupon will be ordered below. Riddle v. Whitehall, 135 U. S. 621, 640, 34 L. ed. 282, 289; Ballard v. Searls, 130 U. S. 50, 32 L. ed. 846. The appellate court may also in such a case affirm in part the decree below, but send a mandate directing And where a suit in equity or admiralty 6 is decided upon an erroneous theory, and all the evidence does not appear to have been taken, the decree may be reversed, even upon the court's own motion, with direction for a rehearing below and leave to amend or serve new pleadings, and to offer additional evidence. When questions of local law or others upon which the evidence is conflicting have not been passed upon by the court below the Supreme Court has also directed a rehearing there. This is usually done, in proceedings both at law 10 and in equity,11 when the case has been erroneously dismissed below for want of jurisdiction. A new hearing will not be ordered where evidence was erroneously admitted on a hearing in equity, or on a trial the inferior court to reopen its decree and allow further proceedings. Watts v. Waddle, 6 Pet. 389, 8 L. ed. 437. 6 Clinchfield Fuel Co. v. Henderson Iron Works Co., C. C. A., 254 Fed. 411. 7 N. Y. Central R. R. Co. v. Beaham, 242 U. S. 148; Lane v. Pueblo of Santa Rosa, 249 U. S. 110; Kirkpatrick v. McBride, C. C. A., 203 Fed. 449. In an extraordinary case leave to amend the pleading may be given by the appellate court. Jones v. Meehan, 175 U. S. 1, 44 L. ed. 49; Wiggins Ferry Co. v. Ohio & M. Ry. Co., 142 U. S. 396, 35 L. ed. 1055; Crocket v. Lee, 7 Wheat. 522, 5 L. ed. 513; Watts v. Waddle, 6 Pct. 389, 8 L. ed. 437. This will rarely be done when the amendment would require new evidence. Am. Bell Tel. Co. v. U. S., C. C. A., 68 Fed. 542. Analogous relief may also be granted to a defendant appellant in a proper case. Crockett v. Lee, 7 Wheat. 522, 5 L. ed. 513. 8 Estho v. Lear, 7 Peters, 130, 8 L. ed. 632; Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018; Peoria Gas & El. Co. v. Pe oria, 200 U. S. 48, 50 L. ed. 365; Westinghouse El. & Mfg. Co. v. Wagner El. & Mfg. Co., 225 U. S. 604, 56 L. ed. 1222; Barber v. Coit, C. C. A., 118 Fed. 272; Standard Computing Scale Co. v. Computing Scale Co., C. C. A., 145 Fed. 627; Massachusetts Bonding & Ins. Co. v. Chouteau Tr. Co., C. C. A., 264 Fed. 793. 9 Wilson Cypress Co. v. Del Pozo, 236 U. S. 635; Marconi Wireless Co. v. Simon, 246 U. S. 46. See Estho v. Lear, 7 Peters, 130, 8 L. ed. 632; U. S. v. Galbraith, 22 Howard, 89, 96, 16 L. ed. 321, 323; Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018; U. S. v. Rio Grande Dam & Irrig. Co., 184 U. S. 416, 46 L. ed. 619. In an extraordinary case the Supreme Court reversed a decree without passing on the merits, with instructions to refer the case to a master to find upon a certain question. Chicago, M. & St. P. Ry. Co. v. Tompkins, 176 U. S. 167, 44 L. ed. 417. 10 Lamar v. U. S., 241 U. S. 103. 11 Fifth Third Nat. Bank v. Johnson, 219 Fed. 89. |