evidence, unless 29 objection was taken thereto in the court below and entered of record; 30 but the same shall otherwise be deemed to have been admitted by consent.

13. SUPERSEDEAS AND COST BONDS.31

1. Supersedeas bonds in the Circuit and 32 District Courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal; but, in all suits where the property in controversy necessarily follows the suit, as in real actions and replevin, and in suits on mortgages, or where the property is in the custody of the marshal under admiralty process, or where the proceeds thereof, or a bond for the value thereof, is in the custody of the court, indemnity

29 In the Sixth Circuit, the words "the record shows that" are inserted after the word "unless." (202 Fed. viii.)

30 In the Sixth Circuit, the words "brought to the attention of the trial judge on the submission of the cause" are inserted in place of the words "entered of record." (202 Fed. viii.)

31 In the Sixth Circuit, this rule is divided into two rules, namely, Rules 13 and 14, which are as follows: "13. Allowance of writ of error or appeal— 1. An appeal from or writ of error to a District Court in the cases provided for in Sections 128, 129 and 130 of the Judicial Code approved March 3, 1911, may be allowed in term time or in vacation by the Circuit Justice, wherever acting, or by any Circuit Judge acting within the circuit, or by any District Judge acting within the district where the case was heard and authorized to hold court in that district; and the proper security may be taken and the citation be signed by him and he may also grant a supersedeas and stay of execution or of proceedings pending such writ of error or appeal." (202 Fed. viii.) "14. Supersedeas and cost bonds-1. Upon the allowance of any appeal to, or writ of error from, this court (except when allowed to a party proceeding in forma pauperis, or in other case where, by statute, no bond is required), the court or judge allowing shall take and approve a bond with good and sufficient security that the appellant shall prosecute his writ or appeal to effect, and answer all costs if he fail to make his plea good. 2. If the appeal or writ of error is to operate as a supersedeas, the court or judge shall, in the allowance, order that it have such effect upon the filing of the required bond, and in such case, the bond shall be conditioned to answer all damages and costs. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal: but in all suits where the property in controversy necessarily follows the suit, as in real actions and replevin, and in suits,on mortgages, or where the property is in the custody of the marshal under admiralty process, or "where the proceeds thereof, or a bond for the value thereof, are in the custody of the court. indemnity will be required only in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit and just damages for delay, and costs and interest on the appeal." (202 Fed. viii, ix.)

32 In the Second Circuit this is Rule 12, and the words "circuit and" are omitted in subdivision 1. In the Third, Fourth and Ninth Circuits the words "Circuit and" are omitted in subdivisions 1 and 2.

B

in all such cases will be required only in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit and just damages for delay, and costs and interest on the appeal.

2. On all appeals from any interlocutory order or decree granting or continuing an injunction in a Circuit or District Court, the appellant shall, at the time of the allowance of said appeal, file with the clerk of such Circuit or District Court a bond to the opposite party, in such sum as such court shall direct, to answer all costs if he shall fail to castain his appeal.33

14. WRITS OF ERROR, APPEALS, RETURN, AND RECORD.34

1. The clerk of the court to which any writ of error may be directed 35

33 In the First Circuit the second subdivision of this rule reads as follows: "On an appeal from an interlocutory order or decree, the appellant shall, at the time of the allowance thereof, file a bond to the adverse party in such sum as the judge who allowed the appeal shall direct, to answer all costs if he shall fail to sustain his appeal." In the Second Circuit par. 2 reads: "Bonds for costs shall be in the sum of $250 unless otherwise ordered by the judge approving the same." In the Fourth Circuit, subdivision 2 reads as follows: "2. On all appeals under Section 129 of the Judicial Code, the appellant shall at the time of the allowance of said appeal, if required by the judge of the court below, file with the clerk of such court a bond to the opposite party in such sum as such judge shall direct, for all costs and damages, or simply for all costs, as the said judge shall determine, if he shall fail to sustain his appeal." (233 Fed.) In the Seventh Circuit, clause 2 reads as follows: "2. On appeal from any interlocutory order of decree granting or continuing an injunction in a Circuit or District Court, the appellants shall at the time of an allowance of said appeal file with the clerk of such Circuit or District Court a bond to the opposite party in such sum as such court shall direct, to answer all costs if he shall fail to sustain his appeal." (Supplement to Dewhurst's Annotated Rules of Practice in United States Courts.) In the Eighth Circuit this subdivision reads as follows: "On all appeals from any interlocutory order or decree of a District Court, or a judge thereof, granting, continuing, refusing, dissolving or refusing to dissolve an injunction or appointing a receiver, the appellant shall, at the time of the allowance of said appeal, file with the clerk of such District Court a bond to the opposite party in such sum as such court shall direct, to answer all costs if he shall fail to sustain his appeal. ('The Judicial Code,' section 128, Act of March 3, 1911.)” (188 Fed. x.)

34 In the First Circuit the following additions were made to this rule: First. To the sixth paragraph of Rule 14 is added: "The testimony in such a record shall embrace the viva voce proof in the District Court, if the same, or the substance thereof, has been reduced to writing with the approval of its judge. The reasonable cost of so reducing the same to writing may be taxed as a part of the costs of the record, except so far as allowed as costs in the District Court." Second. New paragraphs are added to Rule 14 as follows: "7. Further proof in instance causes in admiralty shall include only that which could not with diligence have been had at the trial below, or which was there rejected, or was omitted through misapprehension, provided the evidence be accompanied with a certificate of counsel showing reasonable excuse for the

35 In the Second Circuit this is Rule 13, and the words "shall on demand of any party and payment of the clerk's fees" are here inserted. In the Third Circuit, after the word "directed," the following words are inserted: "Upon being paid or tendered his fees therefor."

shall make a return of the same by transmitting a true copy of the record,

misapprehension. Except by order of the court first obtained, merely cumulative proofs shall not be so taken; but for this purpose the evidence of witnesses who had different duties, interests, or opportunities of observation, will not ordinarily be held cumulative in cases of collision or other maritime tort. 8. Such further proof may be taken after the appeal is allowed, in the manner provided by law for depositions de bene esse, or by an examiner appointed by any circuit or district judge, or selected by the parties, or upon interrogatories and commissions as provided in Rule 13 of the Circuit Courts of this circuit, mutatis mutandis. It must be taken and filed forthwith after it is obtainable, but it cannot, except by order of the court, be taken or filed within thirty days before any session at which the cause may be heard, nor thereafterwards until the cause has been postponed to the next term or session. 9. Objections to further proof shall be filed with the magistrate and returned with the evidence. Within seven days after the evidence is taken, the party so objecting may file in print a motion to suppress the same, with a copy of the objections and a brief. The other party may within seven days thereafter file in print a counter-statement and brief. The objections and counter-statement, so far as they contain matters of fact dehors the record, shall be verified by affidavit. The court will consider the objections in advance of the trial, or in connection therewith, as it may in each case determine, and without oral argument, and will order suppressed evidence not rightfully taken. The party taking the evidence so suppressed shall pay the costs arising therefrom, including the printing thereof. 10. Nothing herein shall exclude applications for leave to take further proof, or objections thereto, in advance of the taking thereof, or objections touching the formalities of taking it; but the latter must be brought to the attention of the court forthwith after the evidence is filed." (150 Fed. xi.) "The time for the return of citations in cases from Porto Rico shall be two calendar months." In the Second Circuit strike out the words "Circuit and" and "Circuit or" wherever they occur in this rule. In the Third Circuit subdivision 1 is as follows: "1. Any appeal to this court, or writ of error from this court, allowable by law, may be allowed in term time or vacation, by the circuit justice, or by any of the circuit judges within this circuit, or by any district judge within the district where the case to be reviewed was heard or tried, who may also take the proper security, sign the citation, and, if he deem it proper so to do, grant a supersedeas and stay of execution or of proceedings pending such writ of error or appeal. Whenever an appeal or a writ of error to this court shall be allowed by a district judge, or shall be issued by the clerk of a District Court, the clerk of the District Court shall give immediate notice thereof to the clerk of this court." Subdivisions 1, 2, 3, 4 and 5 of the general rule become subdivisions 2, 3, 4, 5, 6, and 7 is as follows: 7. The records in cases of admiralty and maritime jurisdiction shall be made up in the same manner, as nearly as practicable, as are the records in equity cases." the Fourth Circuit, Rule 14 is as follows: "1. The clerk of the court to which any writ of error may be directed shall (except as otherwise provided by Rule 23) make return of the same, by certifying under his hand and the seal of said court, in accordance with the act of Congress of February 13, 1911 (36 Stat. at Large, 901), and transmitting to the clerk of this court one of the printed transcripts of the record provided for by said act. In all cases of appeal and also in all cases of petition for revision in bankruptcy said clerk shall likewise certify, seal and transmit a copy of the printed transcript of the record to the clerk of this court. 2. In every printed transcript of the record the order of the parts thereof shall substantially follow the order in which the same were filed, entered or made, and shall contain a copy of such opinion or opinions of the trial judge as may have been filed. It shall be suitably indexed, and where any deposition or report of evidence requires more than one printed page the name of the deponent or witness shall be printed at the top of each page. And the foregoing shall,

In

bill of exceptions, assignment of errors, and all proceedings in the case, under his hand and the seal of the court.36

so far as may be applicable, apply to the printed addenda to records hereinafter provided for. 3. Except in cases where counsel shall agree by written and signed stipulation,-which shall be a part of the record,1-as to what portions of the record and proofs of the case in the court below, shall be printed in the transcript of the record for use in this court, the trial judge shall have the power, upon application after reasonable notice to the opposing party or his counsel, to determine what shall be included in such transcript, and his determination shall be signed by him, and made part of the record; he shall include in such signed paper, such portions of the record and of the proofs as he may deem material for the proper disposition of the questions to be decided by this court, as also such parts as are specially required by these rules. But if any party desires printed any document or part of the record or proofs directed by the trial judge to be omitted, such party may print the same under separate cover and cause it to be certified and transmitted to this court as an addendum to the record. Such printing and certification shall be primarily at the cost of the party who requires it. The cover sheet of such addendum shall contain the title of the cause and shall plainly show that it is an addendum to the transcript and shall show at whose instance it was printed. 4. Whenever it shall be necessary or proper, in the opinion of this court or of the court below, that original papers of any kind should be inspected here, this court or the court below may make such rule or order for the safe-keeping, transporting and return of such original papers as to it may seem proper. 5. All appeals, writs of error, and citations must be made returnable not exceeding forty days from the day of signing the citation, whether the return day fall in vacation or in term time, and be served before the return day. 6. The transcript of the record in cases of admiralty and maritime jurisdiction shall include the matters which, by admiralty Rule 52 of the Supreme Court, are required to be included therein. 7. No transcript of the record and proofs shall (unless it be specifically otherwise ordered by the trial judge) contain a copy of the petition for writ of error or petition for appeal, the order granting writ of error or appeal, the writ of error, the appeal bond, the citation, the return of service or waiver of service of citation. In lieu thereof the originals of said documents shall be certified to this court within forty days of the date of the citation (to be returned to the court below with the mandate of this court, except the citation and writ of error), and in said transcript there shall be inserted a memorandum stating the date of the petition for writ of error or for appeal, the date of the order granting writ of error or allowing appeal, the date of the writ of error and date when copy thereof or copy of order allowing appeal is lodged in the office of the clerk of the court below for adverse parties, the date, penalty, the names of the obligors, the condition (whether for payment of costs and damages or for costs alone) of the appeal bond, the date of the citation, and the date of the service thereof or of the waiver of service thereof. No general replication in equity shall be copied into the transcription of the record, but in lieu thereof there shall be inserted a memorandum showing the date of filing of such replication and by whom filed. When a case has by writ of error or appeal been brought to this court the second time there shall only be copied in the record the proceedings subsequent to the former writ of error or appeal. It shall be the

36 In the Seventh Circuit: "1. The clerk of the court to which any writ of error may be directed, shall make a return of the same by transmitting a true copy of the record, bill of exceptions, assignment of errors, and all proceedings in the case necessary to the hearing in this court, under his hand and the seal of the court. The clerk may require of the appellant or plaintiff in error a written precipe stating in detail what the transcript shall contain, and when a precipe is filed shall insert a copy thereof in the transcript." In the Ninth Circuit, after the word "record," is added: "opinion or opinions of the court."

2. In all cases brought to this court by writ of error or appeal 37 to review any judgment or decree, the clerk of the court by which such judgment or

duty of the trial judge in determining what shall constitute said transcript of the record, to direct the omission of all matter which in his judgment is unnecessary to the presentation of the issues to be passed upon by this court and especially to prevent unnecessary duplications in such transcript. And the clerk below shall not certify any transcript of the record and proofs unless it contains either the stipulation of counsel or the determination of the trial judge mentioned in section 3 of this rule. 8. Whenever the printed transcript of the record or any addendum thereto as certised by the clerk of the court below shall contain any corrections or insertions, it shall be the duty of the party filing the printed transcript or addendum in this court to correct all the copies of the same so as to correspond with the certified transcript or addendum." (233 Fed.) In the Sixth Circuit, this rule is numbered 15 and reads as follows: "15. Records and returns on writs of error and appeals-1. All appeals, writs of error and citations must be made returnable not exceeding thirty days from the day of allowing the appeal in open court or signing the citation, whether the return fall in vacation or in term time, and must be served before the return day. 2. The clerk of the District Court shall make return to any writ of error to, or appeal from, that court, by transmitting, certified under his hand and the seal of the court, a transcript of the record in the District Court, prepared as directed by other provisions of this rule. He shall make such return on or before the return day, unless the time therefor be extended as otherwise provided in these rules. 3. In all appeals, not in admiralty (and save in cases under general equity Rule 77), the transcript— the contents of which are to be determined pursuant to clauses (a) and (c) of general equity Rule 75-shall always include: (1) the statement of evidence; (2) the clerk's certificate showing what portions are included by request of each party; (3) any opinion or memorandum filed by the judge pertaining to the matter involved in the appeal; (4) the pleadings affecting the decree or order appealed from, and such order or decree; (5) all proceedings relating to the appeal and the security given thereon, together with a copy of the citation, if one there was, and the evidence of service; (6) in cases removed from the state court, the full transcript on removal; and (7) in bankruptcy, shall also contain the petition for adjudication and the order thereon. It snall omit: (1) all formal proceedings to bring into court parties who afterwards appear generally, unless such proceedings are involved in the desired review; and (2) all motions or petitions filed and all affidavits in connection therewith, and all orders made and proceedings had thereon, unless such matters are involved in the desired review. It shall carry, at the beginning of each paper, the name thereof, and the date when it was filed, omitung the title of the court and the cause and all formal endorsements. Orders and decrees shall carry a short, descriptive title with the date and entry and the name of the judge, but without other caption. Exhibits or documents shall not be duplicated, but a cross reference shall be made. 4. Upon writ of error from this court, the contents of the transcript shall be determined and the transcript made up in the same manner provided by clauses (a) and (c) of general equity Rule 75 and clause 3 of this rule, both applied as near as may be to an action at law. Such transcript shall contain also a copy of the bill of exceptions, the assignments of error and the writ of error. 5. The original citation with proof of service and the original writ of error shall be filed with the clerk of the court below and be by him transmitted with the transcript to the clerk of this court. 6. Whenever it shall be necessary or proper, in the opinion of the district judge, that original papers or exhibits of any kind shall be inspected in this court upon review, he may make such rule or order as to him may seem proper for the safe-keeping, transporting and return of

37 In the Second Circuit the words "or petition to revise" are here inserted.