peal, the mandate should include a direction to the court below to compel restitution. This is so, even when the reversal is because of want of jurisdiction of the court below.15 Restitution may be enforced by contempt proceedings.16 Where a third person has received funds or property of which restitution is ordered, he may be obliged to return the same, provided he is within the territorial jurisdiction of the court, and no equities on his part would make restitution improper." It has been held that restitution by the United States cannot be compelled.19 Where, pending an appeal, costs awarded in the decree were paid by consent, it was held that their repayment would not be directed upon a reversal.19 Where the person who is ordered to make restitution has paid duties or other charges thereon, he may be allowed the amount so paid.20 Upon the filing of the mandate in the court below, that court acquires jurisdiction of the case.21 The inferior court is bound terson v. Payne, 154 U. S. 534. A less sum than ten per cent. may also be awarded for damages on an appeal. West Wisconsin R. Co. v. Foley, 94 U. S. 100. The power of the Supreme Court to award the damages for delay is not confined to money judgments. In one case five hundred dollars damages were awarded for delay on an appeal from a decree for specific performance. Gibbs v. Diekma, 131 U. S. clxxxvi. 14 The Rachel v. U. S., 6 Cranch, 329; Bank of U. S. v. Bank of Washington, 6 Pet. 8; Morris's Cotton, 8 Wall. 507; Ex parte Morris, 9 Wall. 605. No extra damages can be awarded when an appeal or writ of error is dismissed for want of jurisdiction. Gregory Consol. Min. Co. v. Starr, 141 U. S. 222, 227. 20 Ex parte Morris, 9 Wall. 605. See The Schooner Rachel v. U. S., 6 Cranch, 329. 21 It has been held that on an appeal from a decision denying a writ of habeas corpus, the State court is at liberty to act as soon as the judgment of the appellate court has been entered, and need not wait until the mandate has been sent down. "Where in such a case as this, the State court proceeds after final judgment, as here on the appeal of the person imprisoned or held in custody, but before our mandate goes down to the Circuit Court, it does so at the risk that its orders may be controlled and, if need be, annulled, if this court, during the term, should suspend or set aside its own judgment. While it is not difficult to perceive that serious complications may some 15 Northwestern Fuel Co. v. Brock, times arise where the State court 139 U. S. 216. 16 Ex parte Morris, 9 Wall. 605. 17 Ibid. 18 The Santa Maria, 10 Wheat. 431. 19 Groves v. Sentell, 66 Fed. R. 179. See Miller v. Clark, 52 Fed. R. 900; Lanıb v. Ewing, 54 Fed. R. 269; Robinson v. A. & G. M. Co., 67 Fed. R. 189. acts with undue haste, and proceeds before the mandate of this court is issued and without any special application being made therefor, we do not feel at liberty to declare its action, taken after and in conformity with the final judgment here, to be void, simply because it was taken 22 by a decree of the appellate court, and must carry it into execution according to the mandate. It has been said that when a mandate affirms the judgment or decree of the court below, that court can only record the order of the appellate court, and proceed with the execution of its own decree as affirmed.23 After the whole case has been decided in the Supreme Court and remanded for final judgment, the State court has no power to dismiss a suit in equity on the ground that the plaintiff has a remedy at law.24 It is too late to question the jurisdiction of the Circuit Court after the cause has been sent back by a mandate.25 before the mandate was sent down." Harlan, J., In re Jugiro, 140 U. S. 291, 296. It has been held at circuit that the statute of limitations against the right of a purchaser of personal property to sue for a breach of warranty of title begins to run from the time his title is declared invalid by a decision of the court of last resort, not from the time when the mandate of such court is filed below. Nickles v. U. S., 42 Fed. R. 757. 22 Sibbald v. U. S., 12 Pet. 488. See also Campbell v. James, 31 Fed. R. 525. It cannot modify it in accordance with subsequent decisions of the Supreme Court which are inconsistent with the mandate in the case. Gaines v. Caldwell, 148 U. S. 228. 23 Durant v. Essex County, 101 U. S. 555. Where the judgment was affirmed "as in the declaration claimed," and the declaration claimed more than the judgment, it was held to be simply an affirmance. Balt. & P. R. Co. v. Mackay, 157 U. S. 72. As to the form of a mandate upon the affirmance of an order or decree granting an injunction, see Goshen Sweeper Co. v. Bissell C. S. Co. (C. C. A.), 72 Fed. R. 67; Hadden v. Dooley (C. C. A.), 74 Fed. R. 429. Where the Su preme Court had affirmed a title to land in Florida according to a particular survey, it was held that the court below had no power to open the case for the purpose of adopting another survey. Chaires v. U. S., 3 How. 611. After a general decree, in the Supreme Court, of restitution in a prize case, the captors or purchasers under them cannot set up in the court below new claims for equitable deductions, meliorations, or charges, even if such claims would have been allowed had they been asserted before the original decree. The Santa Maria, 10 Wheat. 431. Where a decree after an accounting was "reversed, and the case remanded with instructions to strike out allowances for rental" before a certain date, and to allow subsequent rentals, it was held that this in effect affirmed so much of the decree as allowed these subsequent rents; that the Circuit Court had no power to reopen the inquiry into the accounts; and that interest on the rents as allowed was properly awarded by the Circuit Court in its decree on the mandate. Kneeland v. Am. Loan & Tr. Co., 136 U. S. 89, 103; s. c., 138 U. S. 509. See Latta v. Granger, 167 U. S. 81; Ex parte Washington & G. R. Co., 140 U. S. 91; Gaines v. Caldwell, 148 U. S. 228; Groff v. Boesch, 50 Fed. R. 660. 24 Tyler v. Magwire, 17 Wall. 255. 25 Skillern v. May, 6 Cranch, 267; Whyte v. Gibbes, 20 How. 541; Billings v. Aspen M. & S. Co., 53 Fed. After a decree on appeal, leave to file a supplemental bill, setting up new defenses growing out of matters occurring after the mandate was sent down, should ordinarily be denied. But where a decree is reversed with directions that further R. 561. Where the judgment below has been reversed, and the mandate directs that judgment be entered for the defendant below, the court below has no power to grant a new trial, Ex parte Dubuque & Pac. R. Co., 1 Wall. 69; except in ejectment, when a State statute allows a second trial as a matter of right, irrespective of error. Smale v. Mitchell, 143 U. S. 99, 109. The court below has no power, after a case in equity has been decided by the appellate court and remanded with directions for execution, to permit the defendant to file a supplemental answer to show the death of a party, and the abatement of the suit before the ap peal, and the lack of a necessary party. Ex parte Story, 12 Pet. 339. In a case where the Supreme Court of the United States had reversed a judgment of the highest court of a State and directed that court to conform its judgment to the opinion of the Supreme Court, but the fact on which the judgment was reversed did not appear on the record from the lower State court from which the case was brought to the highest State court, and the latter court in consequence claimed it had no jurisdiction to reverse the judgment of the lower court, but instead dismissed its own writ of error to the lower court; the Supreme Court of the United States affirmed the latter judgment. Davis v. Packard, 8 Pet. 312. Where a case has been remanded to an inferior court for further proceedings, such inferior court may allow additional pleas, or permit amendments to be made to the pleas already filed, even after the appellate court has decided such pleas were bad upon demurrer. Marine Ins. Co. v. Hodgson, 6 Cranch, 206. Where a judgment in favor of defendant on a demurrer has been reversed, the court below may enter judgment overruling the demurrer. and allow the defendant to answer. U. S. v. Boyd, 15 Pet. 187. Where a decree is reversed for insufficient allegations of citizenship in the pleadings, the Circuit Court may allow them to be corrected by amendment. Everhart v. Huntsville College, 120 U. S. 223. Where the Supreme Court, in dismissing an appeal, determined the value of the matter in dispute, the Circuit Court held that that was conclusive as to its jurisdiction, and upon a bill of review dismissed the bill. Miller v. Clarke (C. C. A.), 52 Fed. R. 900. It is no error, on the execution of the mandate of the inferior court, to permit a third person to become a party and set up rights not embraced in the former decree, when all parties consent thereto. Hawkins v. Blake, 108 U. S. 422. See Balt. Bldg. & L. Ass'n v. Alderson (C. C. A.), 99 Fed. R. 489. 26 Mackall v. Richards, 116 U. S. 45. But after the mandate, a bill to enjoin the enforcement of the judg ment may be sustained. Brown v. Walker, 84 Fed. R. 532. It seems that the affirmance of an interlocutory order or decree for an injunction does not deprive the court below of the power to suspend the injunction temporarily. Edison El. L. Co. v. U.S. El. L. Co., 59 Fed. R. 501; s. c. (C. C. A.), 52 Fed. R. 300. Where a party to the appeal desires to file a bill of review after an affirmance, it is the safer practice to have included in proceedings be had, not inconsistent with the opinion of the appellate court, the court of first instance has plenary authority to allow amendments and further proof, except in so far as the opinion or mandate specifically forbids." The mandate must be interpreted according to its subject-matter, and the decree of the court below as well as that of the appellate court may be taken into consideration in the interpretation thereof.28 Where the inferior court of the United States refuses to obey the mandate of the Supreme Court or the Circuit Court of Appeals, the appellate court may compel a compliance by a mandamus or other appropriate writ; 29 or by a mandate on a the mandate a direction that the appellate court reserves to such party liberty to file in the Circuit Court an application for leave to file a bill of ⚫ review and to proceed thereon, and on such bill of review in the Circuit Court as the Circuit Court may determine. Watson v. Stevens (C. C. A.), 53 Fed. R. 31; Smith v. Weeks, (C. C. A.), 53 Fed. R. 758; supra, S$ 354, 356. 27 Hawkins v. Cleveland, C., C. & St. L. Ry. Co. (C. C. A.), 99 Fed. R. 322; C. & A. Potts & Co. v. Creager, 71 Fed. R. 574; Edwards v. Bates County, 79 Fed. R. 56. Cf. No. Pac. R. Co. v. Walker, 148 U. S. 391. 28 Mitchel v. U. S., 15 Pet. 52; Story v. Livingston, 13 Pet. 359; Mackall v. Richards, 116 U. S. 45. Where the Supreme Court had reversed a decree of the Circuit Court upon the ground that there was no equitable jurisdiction, a decree dismissing the bill absolutely was reversed upon a second appeal, with directions to enter a decree dismissing the bill without prejudice. Rogers v. Durant, 106 U. S. 644. It was held at circuit that where the mandate directed the dismissal of the bill, the Circuit Court had power to enter a decree dismissing an amended bill, Campbell v. James, 31 Fed. R. 525; that where the mandate directed the reversal of a judgment with costs in the Su preme Court to the plaintiff in error, the defendant below, and that judgment be entered for the defendant in error, the plaintiff below, for a less sum than that allowed him by the former judgment, the Circuit Court might also allow the plaintiff below the costs of the case in the Circuit Court, Bartels v. Redfield, 47 Fed. R. 708; that where an appeal had been dismissed, and the mandate directed the Circuit Court below to take such proceedings as might be according to right and justice, the said appeal notwithstanding, the Circuit Court might proceed as if no appeal had been taken, and the time for an appeal specified in the decree had expired, The Sydney, 47 Fed. R. 260; and that if there was any error in a decree of a Circuit Court dismissing a bill on mandate from the Supreme Court, it could only be corrected at the term of its entry, or by proceedings for review under the rules or on appeal, not by motion at a subsequent term, Campbell v. James, 31 Fed. R. 525. 29 Sibbald v. U. S., 12 Pet. 488; Gaines v. Rugg. 148 U. S. 228; City Bank of Fort Worth v. Hunter, 152 U. S. 512; supra, § 363; No. Al. Dev. Co. v. Orman (C. C. A.), 71 Fed. R.. 764. 192. But see In re Humes, 149 U. S. second appeal or writ of error.30 Where a State court refuses to obey the mandate of the Supreme Court of the United States, the Supreme Court has power to award execution in the case.31 The practice is, when a State court refuses to obey the mandate of the Supreme Court of the United States, to sue out a second writ of error.32 Upon such second writ of error, when the cause has been remanded after final judgment, nothing is brought up for review except the proceedings of the State court subsequent to the mandate. In the Supreme Court "mandates shall issue, as of course, after the expiration of thirty days from the day the judgment or decree is entered, unless the time is enlarged by order of the court, or of a justice thereof when the court is not in session, but during the term." 34 33 § 519. Second writ of error or appeal.-A second appeal or writ of error may be taken when the first appeal or writ of error has been dismissed for a defect in form or failure to perfect the same, and the original time to appeal or bring error has not expired. When a writ of error has been dismissed, be 30 Rogers v. Durant, 106 U. S. 644; Nashua & L. Corp. v. Boston & L. R. Corp., 51 Fed. R. 929, 931. This is the more usual remedy, infra, § 519. 31 U. S. R. S., § 709. 32 Martin v. Hunter, 1 Wheat. 304; Roberts v. Cooper, 20 How. 467; Tyler v. Magwire, 17 Wall. 253. 33 Sizer v. Many, 16 How. 98; Corning v. Troy I. & N. Factory, 15 How. 451, 466; Himely v. Rose, 5 Cranch, 513; Martin v. Hunter, 1 Wheat. 304, 355; Roberts v. Cooper, 20 How. 467; Tyler v. Magwire, 17 Wall. 253, 284. In one case, upon such a second writ to a State court, the Supreme Court entered a final decree, and issued a writ of possession to carry the same into effect. Tyler v. Magwire, 17 Wall. 253, 292. The Supreme Court in another case, without a second writ of error, recalled its mandate, entered judgment, and awarded execution. Williams v. Bruffy, 102 U. S. 248. The Supreme Court de nied a motion that it should take action to cause the judgment of a State court to be reversed in accordance with a mandate of the Supreme Court previously issued, directing such reversal, where the petition alleged that the petitioner had placed the mandate in the hands of the presiding justice of the highest court of the State, and prayed that such proceedings might be taken as would cause the judgment of the inferior State court to be reversed, and that the highest court of the State had taken no action in the matter, and the judgment of the inferior court remained in full force and unreversed, but there were no other allegations showing that the petitioner had ever applied to the highest court of a State to carry the mandate of the Supreme Court into effect. In re Royall, 125 U. S. 696. 34 S. C. Rule 39. § 519. 1 Yeaton v. Lenox, 8 Pet. 123; |