Syllabus.

If Hiram Cable is not to be concluded by anything done in his absence, he ought not to be allowed to force himself into the suit at this late day. No sale made under a decree to which he is not actually or constructively a party can cut off his rights. If he can be bound by a decree in his absence, it is because he has been all the time represented in the suit by Philander Cable, under whom he claims, and as an intervenor he can do nothing that might not have been done for him by his representative without his intervention. He took his place by intervention in the suit subject to all the disabilities that rested at the time on the party in whose stead he is to act. If his application to have his rights in respect to the improvements he has put on the property settled in this suit can be entertained at all, it will be only as an incident to the original controversy, and whatever would bar a removal of suit before he intervened will bar him afterwards, even though by his intervention he may have raised a separate controversy.

This disposes of the case, for, as has already been seen, the right to remove this suit was barred long before Hiram Cable intervened. Without, therefore, determining whether Hiram Cable can claim the benefit of his improvements, notwithstanding the pendency of the suit, or whether, if his petition had been filed in time, he would have been entitled to a removal of the suit on the showing made,

We affirm the order remanding the cause.

TUPPER & Another v. WISE.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.

Submitted January 28th, 1884.-Decided February 4th, 1884.

Jurisdiction.

Distinct judgments in favor of or against distinct parties, though in the sam record, cannot be joined to give this court jurisdiction.

Motion to dismiss, with which is united a motion to affirm.

Opinion of the Court.

Mr. Henry Beard and Mr. Charles H. Armes for the motion.

No brief filed contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This was a suit brought by Wise, the defendant in er or, against the plaintiffs in error and others to recover the possession of sec. 21, T. 3 N., R. 8 E., Mount Diablo base and meridian, containing 640 acres of land. Tupper answered, denying that he was in possession of any part of the section except the N. E. , and to that he set up a pre-emption claim and settlement. Lenfesty made the same answer and claim as to the S. E. †. There was no joint ownership or joint possession. Each defendant claimed a separate and distinct interest in a separate and distinct part of the land. The jury found that the "defendants were each severally in the wrongful possession of the lands respectively described in their several answers and no others, and that the value of the rents and profits of the lands so held and possessed by defendant Tupper is $100, of the land so held and possessed by defendant Lenfesty $100, and that the value of each one of said tracts of 160 acres is $3,000, and of the two of them $6,000." Judgment was thereupon rendered against Tupper for the possession of his tract and $100 damages, and against Lenfesty in the same way. Tupper and Lenfesty then sued out this writ of error, which Wise moves to dismiss, because the claims of the several plaintiffs in error are separate and distinct, and the value of the matter in dispute with either of them does not exceed $5,000.

This motion is granted. The rule is well settled that distinct judgments in favor of or against distinct parties, though in the same record, cannot be joined to give this court jurisdiction. The whole subject was fully considered at the last term in Ex parte Baltimore & Ohio Railroad Company, 106 U. S. 5; Farmers' Loan & Trust Company v. Waterman, id. 265; Adams v. Crittenden, id. 576; Schwed v. Smith, id. 188. The stipulation as to the value of the property which is found in the record cannot alter the case, for it states that the aggregate value of

Opinion of the Court.

the two quarter sections exceeds $5,100, and the verdict fixes the value of each quarter at $3,000.

Dismissed.

Lynch & Another v. Bailey & Another. This, like the case of Tupper v. Wise, just decided, was a suit to recover the possession of a whole section of land. Each of the plaintiffs in error was in possession of a separate quarter-section under a pre-emption claim. Their defences were separate and distinct, and the recovery against each was for the land that he separately claimed and occupied. The value of the recovery from either of the defendants does not exceed five thousand dollars, though the aggregate against all is more.

The motion to dismiss is granted for the reasons stated in the other case.

THE STATE, RUCKMAN Prosecutor, v. DEMAREST,

Collector.

IN ERROR TO THE COURT OF ERRORS AND APPEALS OF NEW JERSEY.

Submitted January 10th, 1884.-Decided February 4th, 1884.

Error-Practice.

Grigsby v. Purcell, 99 U. S. 505, followed; holding that if the transcript is not filed and the cause docketed during the term to which it is made returnable, or some sufficient excuse given for the delay, the writ of error or appeal becomes inoperative, and the cause may be dismissed by the court of its own motion or on motion of the defendant in error or the appellee.

Motion by a defendant in error to docket and dismiss a case. Mr. Peter W. Stagg for the mover.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This is a motion by Cornelius N. Durie, the successor in office of Demarest, the defendant in error, to docket and dismiss a case. From the motion papers it appears that Demarest, as collector of the township, recovered a judgment against the State, Ruckman prosecutor, in the Court of Errors and Appeals

Syllabus.

of New Jersey, on the 11th of July, 1866, and that Ruckman sued out a writ of error from this court, gave bond and had citation signed, but never docketed the case here. Ruckman died on the 5th of November, 1882, and Demarest in the summer of 1883.

Upon these facts it is clear that the writ of error had become inoperative for want of prosecution long before it abated by the death of the parties. Grigsby v. Purcell, 99 U. S. 505, and cases there cited. The exact date when the writ was sued out is not stated, but if it had been delayed until five years after the judgment, there was no time within ten years before the death of Ruckman that he would have been allowed to docket the case in this court, since that could only be done during the term to which the writ was returnable. It seems to us proper, therefore, to declare the suit abated by the death of the parties, and leave the representatives of those in interest to proceed accordingly. An order to that effect may be entered.

BEAN & Another v. PATTERSON & Another.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.

Submitted January 28th, 1884.-Decided February 4th, 1884.
Fees-Practice.

When a party has printed the transcript of the record at his own expense, the case may be docketed without security for the fee allowed the clerk by Rule 24, § 7: but the printed copies cannot be delivered to the justice or the parties for use on final hearing or on any motion in the progress of the cause unless the fee is paid when demanded by the clerk in time to enable him to make his examinations and perform his other duties in connection with the copies.

Motion for leave to docket an appeal, without security for payment of fees for printing.

Mr. James S. Botsford for the motion.

No counsel opposing.

VOL. CX-26

Opinion of the Court.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. In this case the appellants have delivered to the clerk the requisite number of copies of the record in print, and they ask to docket the cause without securing the payment of the fee chargeable under the present rules in connection with the printing.

The act of March 3, 1883, c. 143, 22 Stat. 631, making appropriations for sundry civil expenses of the government for the fiscal year ending June 30th, 1884, made an entire change in the emoluments of the clerk of this court. Before that act the clerk collected the fees of his office, paid the expenses, and kept what remained as his own compensation. He was not accountable to the government or to any one else for the income. The act of 1883 established a maximum for his annual compensation, and required him to pay into the Treasury all the fees and emoluments of the office over his salary, necessary clerk hire, and incidental expenses.

The same act made it the duty of the court to prepare a table of fees to be charged by the clerk. This was done, and among the rest is the following:

"For preparing the record or a transcript thereof for the printer, indexing the same, supervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, fifteen cents per folio." Rule 24, sec. 7.

The clerk is responsible to the court for the correctness and proper indexing of the printed copies of the record, for their presentation to the justices in the form and of the size prescribed by the rules, and for their delivery when required to the parties entitled thereto. As he must now account to the Treasury for the fees and emoluments of his office, he may demand payment in advance. Steever v. Rickman, 109 U. S. 74. If the printing is actually done under his supervision he may require the payment of the fee chargeable under the rule before the printing is done. If the parties themselves furnish the printed copies, the fee must be paid, if demanded, in time to enable him to make the necessary examinations and be ready to deliver the copies to the parties or their counsel and to the