§ 712. Mandate. The judgment of the appellate court is embodied in a mandate which is sent down to the court whose proceedings have been reviewed by writ of error or appeal.1 It is customary to issue but a single mandate. When the judgment of a Circuit Court of Appeals is reviewed, the mandate should be addressed to the court of first instance; 8 unless some action by the Circuit Court of Appeals, such as the consideration of an appeal of which it had decided that it had no jurisdiction, or the dismissal of an appeal, is directed, when the mandate is usually directed to that court alone. Upon the issue of the mandate, the court of review loses jurisdiction until the mandate is recalled. A mandate may be recalled from the inferior 2 Ex parte First National Bank, 207 U. S. 61, 64, 66, 52 L. ed. 103, 105, 106. 3 26 St. at L. 827, § 10; Louisville & Nashville R. R. Co. v. Behlmer, 169 U. S. 644, 648, 42 L. ed. 889, 890. Where, pending an appeal, a new district was created, to which the case would ordinarily belong; the Supreme Court remanded the case to the other district, because there were special circumstances, which made it proper that the facts should be investigated by the judge, before whom the first hearing was held. Hatfield v. King, 186 U. S. 178, 46 L. ed. 1112. 4 Lutcher & Moore Lumber Co. v. Knight, 217 U. S. 257, 54 L. ed. 757. Where the directions as to further proceedings of the court of first instance are in a mandate addressed to the Circuit Courts of Appeals, they are not an order to issue an order to the District Court, but instructions are directions which the Circuit Court of Appeals should simply communicate to the court of first instance and which the latter should follow on the authority of the Supreme Court, not upon the authority of the Circuit Court of Appeals. Ex parte First Nat. Bank, 207 U. S. 61, 64, 66, 52 L. ed. 103, 105, 106. 5 Am. Sugar Co. v. New Orleans, 181 U. S. 277, 283, 45 L. ed. 859, 862; Whitney v. Dick, 202 U. S. 132, 141, 50 L. ed. 963, 966; Ex parte First National Bank of Chicago, 207 U. S. 61, 64, 66, 52 L. ed. 103, 105, 106. 6 Patents Selling & Exporting Co. v. Dunn, C. C. A., 213 Fed. 40. In a case in which the appellate court had no jurisdiction, it may of its own motion modify the judgment, recall a mandate of affirmance, pending the term at which it was issued, and dismiss the writ of error. U. S. v. Gomez, 23 How. 326, 16 L. ed. 552; Cannon v. U. S., 118 3905 court, and corrected or set aside, at the term at which it is issued. An application to recall and correct a mandate cannot. be made after the close of the term.8 Where there is no rule upon the subject a mandate does not issue without an order from the court of review which is usually granted only on consent or upon notice. 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." 10 Where a party has died after argument,11 or where an appeal or writ of error has been argued in ignorance of his death,12 or in a case where it is U. S. 355, 30 L. ed. 220; Ex parte Crenshaw, 15 Pet. 119, 10 L. ed. 682. By an order staying its mandate empending an appeal to the Supreme Court, a Circuit Court of Appeals retains its jurisdiction, so that a dismissal of such appeal leaves the cause still pending in the latter court which may revise of change its judgment at a term subsequent to the entry thereof. Omaha Electric Light & Power Co. v. City of Omaha, C. C. A., 216 Fed. 848. 7 Killian v. Ebbinghaus, 111 U. S. 798, 28 L. ed. 593; Ex parte Crenshaw, 15 Pet. 119, 10 L. ed. 682; U. S. v. Gomez, 23 How. 326, 16 L. ed. 552; Waskey v. Hammer, C. C. A., 179 Fed. 273; Miocene Ditch Co. v. Campion Mining & Trading Co., C. C. A., 197 Fed. 497. 8 Schell v. Dodge, 107 U. S. 629, 27 L. ed. 601; Killian v. Ebbinghaus, 111 U. S. 798, 28 L. ed. 593; Minn. Tribune Co. v. Associated Press, C. C. A., 84 Fed. 921; Hawkins v. Cleveland, C. C. & St. L. Ry. Co., C. C. A., 99 Fed. 322; s. c., C. C. A., 89 Fed. 266. In the Second Circuit it has been held: that at a term subsequent to the is sue of a mandate upon an appeal from an interlocutory decree, the Circuit Court of Appeals may, upon the request of the District Court, before final decree, permit the latter court to open the interlocutory decree and take further testimony. Sundh Electric Co. v. Cutler-Hammer Mfg. Co., C. C. A., 244 Fed. 163. If there is any error in a decree of a District Court dismissing a bill on mandate from the Supreme Court, it can only be corrected at the term of its entry, or by proceedings for review under the rule, or on appeal; not by motion at a subsequent term, Campbell v. James, 31 Fed. 525. 9 A. D. Howe Mach. Co. v. Dayton, C. C. A., 210 Fed. 801. 10 S. C. Rule 39. So in the Court of Customs Appeals, C. C. Court, App. Rule 12. In the Circuit Court of Appeals for the Second Circuit fifteen days Rule 29 as amended December, 1921. For the rules in the other circuits, see infra, Appendix V. 11 Clay v. Smith, 3 Pet. 411, 7 L. ed. 723. 12 Bank of U. S. v. Weisiger, 2 Pet. 481, 7 L. ed. 492. necessary to prevent an abatement which would cause injustice; 13 the judgment of the appellate court may be entered nunc pro tunc as of a date prior to his death. Where a judgment for the payment of money is affirmed upon a writ of error, interest is awarded to the defendant in error from the day of the judgment until its payment, at the same rate that similar judgments bear interest in the courts of the State where such judgment is rendered.14 The same rule applies to decrees for the payment of money in cases in equity, unless otherwise ordered by the appellate court.15 "In cases in admiralty, damages and interest may be allowed if specially directed by the court." 16 In case interest is improperly allowed 13 Coughlin v. District of Columbia, 106 U. S. 7, 27 L. ed. 74. 14 S. C. Rule 23; C. C. A. Rule 30; U. S. R. S., § 1010; Perkins v. Fourniquet, 14 How. 328, 14 L. ed. 441; McNeil v. Holbrook, 12 Pet. 84, 9 L. ed. 1009. As to the power of the court of Appeals of the District of Columbia, see Washington & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571, 589, 37 L. ed. 284, 291. In a suit upon an indemnity policy no recovery was allowed for interest accruing pending an appeal from the judgment against which indemnity was given, so far as this exceeded the face of the policy. Bowron v. Georgia Casualty Co., 223 Fed. 673. 15 S. C. Rule 23; C. C. A. Rule 30; U. S. R. S., § 1010. Since the adoption of the rule just cited, it has been held that interest at the legal rate, in the State where the judgment was entered, should be allowed upon such affirmance in cases at common law and in equity, although not specified in the mandate. Ex parte The Republic of Colombia, 195 U. S. 604, 49 L. ed. 338; United Shoe Mach. Co. V. Dancel, C. C. A., Second Circuit 1906 (in which the author was counsel). Contra, Green v. Chicago, S. & C. R. Co., C. C. A., 6th Ct., 49 Fed. 907; Hagerman v. Moran, C. C. A., 9th Ct., 75 Fed. 97; Colsol. Rubber Tire Co., v. Diamond Rubber Co., D. C. S. D. N. Y., 232 Fed. 508, per Learned Hand, J., citing Re Washington & Georgetown R. R. Co., 140 U. S. 91, 11 Sup. Ct. 673, 35 L. ed. 339. The rule does not apply when the decree affirmed is substantially modified. Dresser v. Bates, C. C. A., 250 Fed. 525. In the absence of a rule of court upon the subject, it was held that, unless interest was included in the mandate, it could not be awarded, after the affirmance. Boyce v. Gundy, 9 Peters, 276, 9 L. ed. 127; U. S. v. So. Pac. R. Co., 56 Fed. 865. See Ingersoll v. Coram, 174 Fed. 662. A direction in the mandate, that appellants pay "the expenses of the trustee, his fee, and costs,' authorizes the allowance of a reasonable counsel fee to his attorney. Page v. Rogers, C. C. A., 149 Fed. 194. This practice still prevails in admiralty. The Glenochil, 128 Fed. 963. 16 S. C. Rule 23; C. C. A. Rule by the court below, and the amount of the interest is insufficient to warrant a writ of error, the court of review may compel the court below by a mandamus to vacate so much of the judgment as awards interest.17 Where proceedings under the judgment or decree below have been stayed, and the court of review considers that the writ of error or appeal was taken merely for delay, damages at the rate of ten per cent. in addition to the interest may be awarded.18 Where the mandate affirms a decree 30; U. S. R. S., § 1010. The District Court has discretion in the allowance of interest after the reversal of a decree in favor of one vessel when the mandate directs it "to proceed on the theory that both vessels were in fault." The Gladiator, 223 Fed. 381. 17 In re Washington & G. R. Co., 140 U. S. 91, 35 L. ed. 339. 18 S. C. Rule 23; C. C. A. Rule 30; U. S. R. S., § 1010; Barrow v. Hill, 13 How. 54, 14 L. ed. 48; Sutton v. Bancroft, 23 How. 320, 16 L. ed. 454; Kilbourne v. State Sav. Inst., 22 How. 503, 16 L. ed. 370; Sire v. Ellithorpe A. Br. Co., 137 U. S. 579, 34 L. ed. 801; Whitney v. Cook, 131 U. S. excvii, and 26 L. ed. 560; Insurance Co. v. Huchbergers, 12 Wall. 164, 20 L. ed. 364; Hennessy v. Sheldon, 12 Wall. 440, 20 L. ed. 446; Hall v. Jordan, 19 Wall. 271, 22 L. ed. 47; Peyton v. Heinekin, 131 U. S. ei, and 20 L. ed. 679; Jenkins v. Banning, 23 How. 455, 16 L. ed. 580; Prentice v. Pickersgill, 6 Wall. 511; Campbell v. Wilcox, 10 Wall. 421, 19 L. ed. 973; Amory v. Amory, 91 U. S. 356, 23 L. ed. 436; Texas & P. Ry. Co. v. Volk, 151 U. S. 73, 38 L. ed. 78; Watterson v. Payne, 154 U. S. 534, and 15 L. ed. 899; Wabash R. R. Co. v. Mathew, 199 U.. S. 605, 50 L. ed. 329; Mutual Reserve L. Ins. Co. v. Birch, 200 U. S. 612, 50 L. ed. 620; Missouri Pac. Ry. Co. v. Larabee Flour Mills Co., 241 U. S. 649 (these three last cases arose upon writs of error to State Courts). A less sum than ten per cent may also be awarded for damages upon a writ of error or appeal. Wisconsin R. Co. v. Foley, 94 U. S. 100, 24 L. ed. 71. ($500 damages in addition to costs and interest upon a judgment for $26,333.) Southern Railway Co. V. Gadd, 233 U. S. 572 (five per cent); Southern Ry Co. v. Cooper, C. C. A., 245 Fed. 857 (five per cent). 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, and 26 L. ed. 177. Where a supersedeas has been obtained this penalty may be imposed upon the dismissal of a writ of error or appeal for want of jurisdiction. Mo. Pac. Ry. Co. v. Larabee Flour Mills Co., 241 U. S. 649. Contra, Gregory Consol. Min. Co. v. Starr, 141 U. S. 222, 227, 35 L. ed. 715, 717; where no supersedeas had been obtained. It has been said that the penalty will not be imposed, where the question presented in equity 19 or admiralty 20 with costs and gives no special direction upon this subject to the court below, the court of original jurisdiction has power to decide whether the costs therein should be awarded.21 Where a judgment or decree which is reversed has been executed pending the writ of error or appeal, the mandate should include a direction to the court below to compel restitution.22 19 Romeike v. Romeike, C. C. A., 251 Fed. 273, 275. The costs of the Circuit Court of Appeals are collected by the District Court, Corn Products R. Co. v. Chicago Real Estate L. & T. Co., C. C. A., 185 Fed. 63. 20 The Cuba, C. C. A., 255 Fed. 50. 21 But see Am. Tr. & Sav. Bank v. Zeigler Coal Co., 165 Fed. 512; Ingersoll v. Coram, 174 Fed. 662; Morris v. U. S., C. C. A., 185 Fed. 73, a criminal case. As to costs upon writs of error, see supra, § 412. Where the mandate directed the reversal of a judgment at common law with costs in the Supreme 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, it was held that the court of first instance might also allow the plaintiff below the costs of the case therein. Bartels v. Redfield, 47 Fed. 708. 22 The Rachel v. U. S., 6 Cranch, 329, 3 L. ed. 239; Bank of U. S. v. Bank of Washington, 6 Pet. 8, 8 L. ed. 299; Morris's Cotton, 8 Wall. 507, 19 L. ed. 481; Ex parte Morris, 9 Wall. 605, 19 L. ed. 799. This is so, even when the reversal is because of want of jurisdiction of the court below. Northwestern Fuel Co. v. Brock, 139 U. S. 216, 35 L. ed. 151. Instead of physical restitution, a party who has received property delivered in obedience to an order which has been reversed may be required to pay its value. St. Louis South Western Ry. Co. v. Consol. Fuel Co., C. C. A., 260 Fed. 638. Restitution may be enforced by contempt proceedings. Ex parte Morris, 9 Wall. 605, 19 L. ed. 799. 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. Ibid. Restitution by the United States cannot be compelled. The Santa Maria, 10 Wheat. 431, 6 L. ed. 359. 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 re |