decree for libelant which does not order payment of the money to him is not final. (Montgomery v. Anderson, 21 How. 386.)

Amount in controversy.-If libelant does not claim more than fifty dollars, he cannot appeal from the decree of dismissal. (Agnew v. Dorman, Taney, 386.) Section six hundred and thirty-three, relating to writs of error to the district court, applies only to the few common-law actions justiceable in the district courts (United States v. Wonson, 1 Gall. 5; United States v. Fifteen Hogsheads, 5 Blatchf. 106; Jacob v. United States, 1 Brock. 520); but all cases in admiralty involving over fifty dollars are reviewable under section six hundred and thirty-one. It must exceed fifty dollars exclusive of costs. (The Seneca, Gilp. 34: The Roarer, 1 Blatchf. 1.) If the claim with interest amounts to more than fifty dollars, appeal lies. (Godfrey v. Gilmar in, 2 Blatchf. 340.) If libelant admits the demand to be less, while the claim in the libel is more than the amount limited, he will be subjected to the costs. (McGinnis v. Carlton, 1 Abb. Adm. 570. And see Greigg v. Reade, Crabbe, 64; Sterling v. Titus, 1 Sum. 147; Jenks v. Lewis, 3 Mason, 503.) If the owner appears and defends a libel in rem for wages, he may appeal from a decree for more than fifty dollars, though the proceeds of the vessel are less than that sum. (The Enterprise, 2 Curt. 317.) If a tender was conditioned on discontinuan e, defendant may appeal from a decree for the sum tendered, (The A. H. Quimby, 7 Week. N. Cas. 509.)

Who may appeal.-A party who contests the damages before a commissioner after judgment may appeal. (Farrell v. Campbell, 7 Blatchf. 158.) In cases of tort one of the several defendants may appeal from a joint decree where they have not a joint interest.) (Thomas v. Lane, 2 Sum. 1.) The appeal must be joint when the interest is joint, and several when the interests are several." (Thomas v. Lane, 2 Sum. 1.)

Application for and allowance of appeal.-It is usually applied for in open court (The Enterprise, 3 Wall. Jr. 53), and viva voce (Folger v. Shaw, 2 Wood. & M. 531.) If there is no rule of court as to the time of taking it, appeal can only be taken in open court immediately after decree, and before adjournment for the term (Norton v. Rich, 3 Mason, 443); and if not taken before final adjournment, the right will be deemed waived (The New England, 3 Sum. 495); but until formal decree is entered the party is not bound to enter appeal. (The New England, 3 Sum. 495.) If the district court unlawfully refuses to allow an appeal, the circuit court will allow it to be entered. (The Enterprise, 2 Curt. 317.) In case of surprise or misapprehension, the court will interfere on motion and proofs, and enlarge the time to perfect the appeal. (Gaines v. Travis, 1 Abb. Adm. 422.)

Time of appeal.-Appeal must be taken to the next term of the circuit court after rendition of the decree. (U. S. v. Hogsheads, 1 Curt. 276; The Hollen, 1 Mason, 431; Gloucester Co. v. Younger, 2 Curt, 322; The Oriental, 9 Chic. L. N. 321; The Glamorgan, 2 Curt. 236; U. S. v. Specie, 1 Woods, 14.) Within the statutory limits, district courts may fix the time for taking an appeal. (The Enterprise, 3 Wall, Jr. 58) It is not incumbent on the party obtaining the decree to warn the opposite party when the period of delay will expire. (Gaines v. Travis, I Abb. Adm. 422.) An appeal taken from a mere order of affirmance and before final decree is premature. (Harris v. Wheeler, 8 Blatchf. 81.)

When takes effect.-If an appeal was prayed for and allowed, and a bond filed, it is sufficient (The Rio Grande, 23 Wall. 458); and it takes effect by relation back as if entered in open court when sentence was pronounced. (The New England, 3 Sum. 495.) They must be taken to the next term of the circuit court after rendition of the decree. (The Glamorgan, 2 Curt. 236; Gloucester Ins. Co. v. Younger, 2 Curt. 22; The Hollen, 1 Mason, 431; The Oriental, 9 Chic. L. N. 321.)

ect of taking appeal.-An appeal in admiralty has the effect ersede and vacate the decree, and a new trial ensues. (he Lucille, 11. 73.) When taken, the res is transmitted to the circuit court (The 1s, 1 Gall. 503; U. S. v. Towns, 7 Ben. 444), and the bond follows the (The Wanata, 95 U. S. 600.) If taken before the surrender of the by the marshal and a bond is filed in time, jurisdiction attaches, gh the vessel is not in possession of the court. (The Rio Grande, II. 458; 1 Woods, 279.) If the vessel is released on a stipulation, the ation goes with the case and a decree may be entered against the ators. (The Wanata, 95 U. S. 600; The Lady Pike, 96 U. S. 461; er v. Woodhull, 7 Ben. 313; McLellan v. U S., 1 Gall. 227; Nelson v. Peters C. C. 235.) Where the appeal is regular, the funds belonging › case are transferred with the papers (The Lotta wanna, 20 Wall. he Seneca, Gilp. 34; Hayford v. Griffiths. 3 Blatchf. 34; see The tor, 6 Wheat. 194); and after the appeal the district court has no to discharge persons in whose custody the funds may be. (The tor, 6 Wheat. 194; Penhallow v. Doane, 3 Dall. 54; Hayford v. Grif3 Blatchf. 34; The Seneca, Gilp. 34; The Grotius, 1 Gall. 503.)

rties, rights of-A party who did not appeal from the decree t question its correctness. (The Alonzo, 2 Cliff. 548; Allen v. Hitch, . 147; The Boston, 1 Sum. 328.) If an abandonment is accepted after 1 taken, the insurer may appear as dominis litis. (The Montice.lo llison, 17 How. 152; The Ann C. Pratt, 1 Curt. 340.) If the parties ecome stipulators in the district court become insolvent, claimants e required to file a new stipulation. (The Union, 4 Blatchf. 90; The 13 Blatchf. 255.) The stipulation cannot be put aside and a new tion be substituted in its place (The North Carolina, 15 Peters, 40); the circuit court enters judgment against the stipulators without ing the res an action cannot be maintained against the owners. (U. Ames, 92 U. S. 35 )

view on appeal.-Where the decree on exceptions to commis 's report is against respondent, but the libel is dismissed on other ds, and no cross-appeal, the exceptions cannot be examined. (The us, 2 Paine, 564.) The proceedings of the commissioner in rejecting owing items cannot be reviewed unless exceptions are filed and on in the lower court. (Farrell v. Campbe 1, 7 Blatch. 158; The burg, 7 Blatchf. 216; Harris v. Wheeler, 8 Blatchf 1.) Where no tion to the admission of evidence is taken in the district court, the ion cannot be considered. (The Vicksburg, 7 Blatchf. 216; The Uncle 1 McAll. 77.) So objection that repairs were made at the home port ot be taken for the first time on appeal, nor can the discretion of the in imposing terms on the allowance of amendments be reviewed Cadmus, 2 Paine; 564); but the objection that there was no seizure to filing the libel may be taken for the first time in the circuit court. Fideliter, 1 Sawy. 153.)

actice.-The circuit court does not possess original jurisdiction in alty, nor can it acquire jurisdiction by a stipulation filed in the on appeal. (Georgia v. Madrazo, 1 Peters, 123.) So where an appeal en from a final decree, the circuit court cannot permit parties to d the transcript by agreement that there was a final decree (Morv. Lindsay, 19 How. 199); but if parties for a long time treat an apas valid, one of them alone cannot have it dismissed. (The Native, 14 hf. 34.) The suit cannot be discontinued without the consent of relent or leave of court. (Folger v. Shaw, 2 Wood & M. 531,) The circourt may allow a supplementary answer and defense (The Boston, n. 328), but not where the only effect would be to drive the libelant other forum. (Reppert v. Robinson, Taney, 429; see Coffin v. Jenkins, ry, 108.)

Continuance.-A party not guilty of laches may get a continuance for the purpose of producing further proof (Rose v. Himely, Bee, 313), but not where the witness fails to attend upon summons, except under special circumstances (Taylor v. Harwood, Taney, 4371; and he cannot obtain a continuance where he has neglected to file the transcript until too late. (The Illinois, 6 McLean, 413; The Marengo, 6 McLean, 499.) If there is an omission to prove a fact, final decision may be postponed to produce the evidence thereof. (An Open Boat, 5 Mason, 232,)

Amendment, allowance of-The cause in the circuit court on appeal is heard de novo (Yeaton v. United States, 5 Cranch, 281; The Morning Star, 14 Fed. Rep. 866); and in fit cases amendments may be allowed as to the allegations and proofs. (Rose v. Himely, Bee, 313; The North Carolina, 15 Peters 40; The Edward, 1 Wheat. 261; The Marianna Flora, 11 Wheat. 1; Cushman v. Ryan, 1 Story, 91; The Boston, 1 Sum. 328; The Sarah Ann, 2 Sum. 200; Thomas v. Lane, 2 Sum. 1.) So if parties are improperly joined, amendment may be allowed striking out their names (Taylor v. Harwood, Taney, 437); but the power ought to be exercised with caution, and for purposes of justice. (Reppert v. Robinson, Taney, 492.) So it will not allow an amendment which introduces a different subject of litigation (The North Carolina, 15 Peters, 40; The John Jay, 3 Blatchf. 67); ner which will assert the amount in controversy. (Agnew v. Dorman, Taney, 386.)

Evidence on appeal.-New testimony may be taken in the circuit court on an appeal (Carrigan v. Pitman, 1 Wall. Jr. 307), and former restrictions are overlooked or abandoned (Cushman v. Ryan, 1 Story, 91; The Boston, 1 Sum. 328); but where judgment by default had been entered in the district court, the merits are concluded. (Farrell v. Campbell, 7 Blatchf. 158.) So if the parties have bound themselves by an agreement, they may be precluded from objecting to a finding of fact (Gloucester Ins. Co. v. Younger, 2 Curt. 323); and if new evidence offered might have been introduced i the court below, its value will be materially diminished. (The Brig Busy, 2 Curt. 586; Cushman v. Ryan, 1 Story, 91; Taylor v. Harwood, Taney, 437.) On reversing a decree upon further proof, the court may allow both parties to take further testimony on the merits in a suit in personam for a collision. (Remington v. Navigation Co., 6 Blatchf. 153.) The burden of proof is on appellant to show mistake or error of law. (Baker v. Smith, 1 Holmes, 83; Cushman v. Ryan, 1 Story, 91; Pigs of Copper, 1 Story, 314.) The evidence taken in the district court must be in writing, and form part of the proceedings (Folger v. Shaw, 2 Wood. & M. 5.); and if a note is surrendered in the district court, the record must show who produced it, and for what purpose. (Reppert v. Robinson, Taney, 492.) Evidence taken in the circuit court should be reduced to writing. (The Boston, 1 Sum. 328.) Admissions and declarations of parties are admissible in evidence on the hearing of the cause. (The Markee, 3 Fed. Rep. 45; affirmed 14 Fed. Rep. 112.)

Abandonment of appeal-If appellant fails to prosecute his appeal to the next term of the circuit court, he will be deemed to have deserted it (The Betsey, 1 Gall. 416; U. S. v. Haynes, 2 McLean, 155), and the cause may be remitted to the district court. (The Betsey, 1 Gall. 416.) If nothing else is shown as to the merits but the judgment, the court will affirm the judgment (Folger v. Shaw, 2 Wood & M. 531); and the appellee must apply for relief to the circuit court, and not to the district court. (The Josephine, 1 Abb. Adm. 481.)

Dismissal.-The circuit court may dismiss the libels if the appeal is from a decree in appellant's favor. (Four Hundred and Thirty-eight Bales, 1 Woods, 75.)

Affirmance on appeal.-If the court cannot determine on which side the evidence preponderates, it will atlir.n the decree of the district

court (The Sampson, 4 Blatchf. 28; The Florida, 4 Blatchf. 280; The Sunswi k, 5 Blatchr. 280; The Heroine, 6 Blatchf. 188; Davidson v. Sealskins, 2 Paine, 324); and where no question of law is involved in the decree of the court below, the decree will not be disturbed unless it is clearly contrary to the evidence (The Gratton, 1 Blatchf, 173; Baker v. Smi h, 1 Holmes, 85; The Potomac, 18 How. Pr. 185); nor will it ordinarily interfere with the amount of damages decreed (The Narragansett, 1 Blatchf. 211; The Yankee v. Gallagher, 1 McAll. 467; The Uncle Sam, 1 McAll. 505; Cushman v. Ryan, 1 Story, 91: Taylor v. Harwood, Taney, 437), or the amount of compensation in salvage cases, unless there is a clear departure from the principles governing such cases (The Anna, 10 Blatchf. 456; Rowe v. The Brig, 1 Mason, 372; Pigs of Copper, 1 Story, 314; The Boston, 1 Sum, 328); but where it appears that manifest injustice has been done, it is the duty of the court to interfere. (The Yankee v. Gallagher, 1 McAll 467.) If the decree of the district court is affirmed, the proper form is for damages with interest (Deems v. Albany Canal Line, 14 Blatchf. 474), and interest for delay on the costs (The Wanata, 95 U. S. 600). unless the stipulators make no defense, and are not guilty of default or contumacy. (The Wanata, 95 U. S. 600.) If one of the stipulators has since died, decree may be entered against the other. (The James A. Wright, 10 Blatchf. 160; The C. Ackerman, 14 Blatchf. 360.) The circuit court should not affirm a part and then dismiss the appeal. (The Lottawanna, 20 Wall. 201), and the formal decree of dismissal is submitted to the court on written draft, subject to amendment on suggestion of parties. (The New England, 3 Sum. 495.) An order merely affirming the decree is not a final decree. (The Lucille, 19 Wall. 73; Harris v. Wheeler 8 Blatchf. 81).

Reversal. If that which is appealed from is reversed, that which is not reversed becomes part of the decree. (The Roarer, 1 Blatchf. 1.) Where the district court dismisses a bill of review for want of jurisdiction, the circuit court may reverse the decree. (The New England, 3 Sum. 195.) The circuit court cannot remand the case for the district court to carry its lecisions into execution. (The Collector, 6 Wheat. 194; Montgomery v. Anderson, 21 How. 386.) The circuit court cannot decree increased damages vithout first reversing the decree of the district court. (Stratton v. Jarvis, Peters, 4; The Alonzo, 2 Cliff. 548; Airey v. Merrill, 2 Curt. 8; The Peytona, 2 Curt. 21; Allen v. Hitch, 2 Curt. 147.)

Costs-Effect of Reversal.-If the decree is reversed for want of urisdiction, libelants may be decreed to pay the costs (Tome v. Lumber, 'aney, 533); but not if costs were awarded against him in the district ourt (The McDonald, 4 Blatchf. 477): and if the appeal is dismissed for ant of jurisdiction, no costs will be awarded (Agnew v. Dorm in, Taney, 36); and where the decree is reformed, costs to either party may be enied. (The Underwriter, 4 Blatchf. 94; Bernard v. Hudson, 3 Sum. 405.) o in salvage cases the court may allow costs in its discretion. (The oston, 1 Sum. 328.) If the decree is not varied, appellee is entitled to sts. (Citizens Bk. v. Steamboat Co. 2 Story, 16; The Henry Ewbanks, 1 um. 400; The Connestoga, 2 Wall. Jr. 116). Where the decree is reversed, opellant is entitled to costs (The Connestoga, 2 Wall Jr. 116); but if reversed 1 production of new proofs, with no reason assigned for their non-producon in the court below, costs will not be allowed (Reed v. Hussey, Blatchf. H. 525; Macomber v. Thompson, 1 Sum. 384; Carrigan v. Pittman, 1 Wall. .307); and counsel fees cannot be included as a part of the costs. (The onnestoga, 2 Wall. Jr. 116.) If a claimant succeeds in establishing his im, he is entitled to costs. (The Emily B. Souder, 15 Blatchf. 185.) hen the appeal is from the whole decree the circuit court may review the cision as to costs. (The A. H. Quimby, 7 Week. N. Cas. 509.)

Rehearing.-Application for rehearing will be denied if made after pse of the term. (Petty v. Merrill, 12 Blatchf. 11.)

§ 189.

§ 198.

Number of justices.-The Supreme Court of the United States shall consist of a chief justice of the United States and eight associatə justices, any six of whom shall constitute a quorum. (Rev. Stats. sec. 673.)

§ 190. Precedence of the associate justices.—The associate justices shall have precedence according to the dates of their commissions, or, when the commissions of two or more of them bear the same date, according to their ages. (Rev. Stats. sec. 674.)

$191. Vacancy in the office of chief justice. In case of a vacancy in the office of the chief justice, or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another chief justice is appointed and duly qualified. This pro