[I. APPEALS TO CIRCUIT COURT OF APPEALS.]

An Act To amend the seventh section of the Act entitled "An Act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March third, eighteen hundred and ninety-one, and the several Acts amendatory thereto.

[Act of April 14, 1906, ch. 1627, 34 Stat. L. 116.]

[Appeal in equity to circuit courts of appeal appeals allowed in all interlocutory orders-stay of proceedings, etc. additional bond.] That the seventh section of the Act of Congress entitled "An Act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March third, eighteen hundred and ninety-one, as amended by Act approved June sixth, nineteen hundred, be, and it is hereby, amended to read as follows:

"SEC. 7. That where, upon a hearing in equity in a district or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed by an interlocutory order or decree, in any cause an appeal may be taken from such interlocutory order or decree granting or continuing such injunction, or appointing such receiver, to the circuit court of appeals: Provided, That the appeal must be taken within thirty days from entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or by the appellate court, or a judge thereof, during the pendency of such appeal: Provided further, That the court below may, in its discretion, require as a condition of the appeal an additional bond." [34 Stat. L. 116.]

Section 7 of the Circuit Court of Appeals Act, above amended, is given in 4 Fed. Stat. Annot. 422.

Root v.

Nature and purpose of Act. "This section, in the interest of a more liberal right of appeal, is a distinct departure from the policy of appeals under the older chancery rules; but it is intended to be safeguarded against abuse by the provisions looking to promptitude of action a provision that is intended to be strictly enforced." Mills, (C. C. A.) 168 Fed. 688, 689. Effect upon previous practice. By this Act appellate jurisdiction is given to the Circuit Court of Appeals from an interlocutory order or decree granting or continuing an injunction or appointing a receiver "in any cause," whereas heretofore the law permitted such an appeal only in "a cause in which an appeal from a final decree may be taken under the provisions of said Act to the Circuit Court of Appeals." The present enactment enlarges the right of appeal from such interlocutory orders and extends it to " any cause," causes in which the jurisdiction of the court is the sole question involved, as well as other causes. Grainger v. Douglas Park Jockey Club, 148 Fed. 513, 78 C. C. A. 199, 8 Ann. Cas. 997; Northern Pac. R. Co. v. Pacific Coast Lumber Manufacturers Assoc., (C. C. A.) 165 Fed. 1, 4.

Orders embraced. Only appeals from interlocutory orders or decrees granting or continuing an injunction or appointing a receiver are provided for; the Act does not provide for an appeal from an interlocutory order or de

cree refusing an injunction. Southern R. Co. v. Carolina Coal, etc., Co., (1907) 151 Fed. 477.

When, upon a hearing in equity in the Circuit Court, in a suit the parties to which include all the parties to an action at law pending in that court, an interlocutory order is granted "staying" further proceedings in the law action, on the theory that the two cases embrace a controversy which should be litigated to a final and complete determination in the suit in equity, to the exclusion of any proceedings at law, the order, although not using the technical words "restrain and enjoin," and not in terms directed against the plaintiffs in the action at law, is in purpose and effect an order granting an injunction, within the meaning of the seventh section of the Act creating the Circuit Court of Appeals (Act March 3, 1891, ch. 517, 26 Stat. L. 828, 4 Fed. Stat. Annot. 422), as amended by this Act, and an appeal from such order lies to that court. Griesa v. Mutual L. Ins. Co., (C. C. A.) 165 Fed. 48.

The "hearing in equity," referred to in this section, is the hearing of the motion, the introduction of evidence thereon by affidavit or otherwise, the argument of counsel, and the order of the chancellor. Nothing short of this constitutes such a hearing, and nothing beyond was contemplated by this section. Root v. Mills, (C. C. A.) 168 Fed. 688.

Where, in response to an order to show cause why an injunction should not issue, the defendants present admissible opposing affidavits and letters, but the court refuses to

read or hear them, and orders an injunction until the further order of the court, there is a hearing in equity, it has been held, within the meaning of the Act, and the order is appealable. Shubert v. Woodward, (C. C. A.) 167 Fed. 47. And it has been held that a hearing in equity" such as this statute contemplates is shown where the injunction order recites as follows: That the cause came on to be heard, pursuant to rule to show cause; that the complainants appeared by their counsel; that the defendants appeared by counsel to move for the dismissal of the bill on the

ground that they were corporations foreign to the state, and were entitled to be sued only in the Circuit Court of the United States for the district of which they were respectively inhabitants, and that they also appeared specially to file pleas to the same effect; and further that the court heard arguments upon the complainant's application for an injunction, and arguments of the counsel for the defendants as amici curiæ. Northern Pac. R. Co. v. Pacific Coast Lumber Manufacturers Assoc., (C. C. A.) 165 Fed. 1, 5.

[II. WRITS OF ERROR IN CRIMINAL CASES.]

An Act Providing for writs of error in certain instances in criminal cases.

[Act of March 2, 1907, ch. 2564, 34 Stat. L. 1246.]

[Writs of error in criminal cases allowed United States to Supreme Court.] That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy. The writ of error in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted and shall have precedence over all other cases. Pending the prose cution and determination of the writ of error in the foregoing instances, the defendant shall be admitted to bail on his own recognizance: Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant. [34 Stat. L. 1246.]

Validity. This Act is directed to judgments rendered before the moment of jeopardy is reached, and therefore is not repugnant to the Fifth Amendment of the United States Constitution. Taylor v. U. S., (1907) 207 U. S. 120.

This Act is not unconstitutional on the ground that it authorizes the United States in the cases specified to bring the case directly from the District or Circuit Court to the Supreme Court, but does not allow the accused to bring to the Supreme Court where a demurrer to the indictment or some count thereof is overruled. The accused has his remedy by review of the final judgment where a demurrer is erroneously overruled. The object of the Act was to prevent unnecessary delay in the administration of the criminal law, and to provide a method by which the courts of original jurisdiction may be instructed as to the validity and meaning of the particular criminal statute sought to be enforced. Such

a provision is within the legitimate discretion of Congress to prescribe. U. S. v. Bitty, (1908) 208 U. S. 393, reversing on other grounds (1907) 155 Fed. 938.

The word "construction" in the above section is employed in its common signification, and includes both construction and interpretation, although there may be an abstract difference in meaning between those terms. U. S. v. Keitel, (1908) 211 U. S. 370, followed in U. S. v. Biggs, (1908) 211 U. S. 507.

Construction of indictment.-This Act does not give authority to revise the action of the court below as to the mere construction of an indictment, and in the exercise of the power to review under the Act the Supreme Court must accept the construction of the indictment made by the lower court and test in that aspect the lower court's construction of the statute on which the indictment was founded, Whether an exception to this rule

[III. APPEAL IN HABEAS CORPUS PROCEEDINGS.]

An Act Restricting in certain cases the right of appeal to the Supreme Court in habeas corpus proceedings.

[Act of March 10, 1908, ch. 76, 35 Stat. L. 40.]

[Habeas corpus appeals from state courts to Supreme Court restricted.] That from a final decision by a court of the United States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued out of a State court no appeal to the Supreme Court shall be allowed unless the United States court by which the final decision was rendered or a justice. of the Supreme Court shall be of opinion that there exists probable cause for an appeal, in which event, on allowing the same, the said court or justice shall certify that there is probable cause for such allowance. [35 Stat. L. 40.]

[IV. DISABLED JUDGES.]

An Act To amend section five hundred and ninety-one of the Revised Statutes of the United States relative to the assignment of district judges to perform the duties of a disabled judge.

[Act of March 4, 1907, ch. 2940, 34 Stat. L. 1417.]

[Designation from another circuit permitted for disabled district judge.] That whenever in the case contemplated and provided for in section five hundred and ninety-one of the Revised Statutes it shall be certified by the circuit judge, or in his absence, by the circuit justice of the circuit in which the district lies, that for any sufficient reason it is impracticable to designate and appoint a

judge of another district within the circuit to perform the duties of such dis abled judge, the chief justice may, if in his judgment the public interests so require, designate and appoint the judge of any other district in another circuit to hold said courts and to discharge all the judicial duties of the judge so disabled, during such disability. [34 Stat. L. 1417.]

For R. S. sec. 591, above referred to, see 4 Fed. Stat. Annot. 675.

[V. RETIRED PAY OF JUDGES.]

An Act To amend section seven hundred and fourteen of the Revised Statutes of the United States, relating to the resignation of judges of the courts of the United States.

[Act of Feb. 15, 1909, ch. 127, 35 Stat. L. 619.]

[United States judges retired - pay.] That section seven hundred and fourteen of the Revised Statutes of the United States be, and the same is hereby, amended to read as follows:

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Sec. 714. When any judge of any court of the United States appointed to hold his office during good behavior resigns his office, after having held a commission or commissions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the salary which is payable at the time of his retirement for the office that he held at a time ten years before his resignation." [35 Stat. L. 619.]

R. S. sec. 714, hereby amended, is set forth in 4 Fed. Stat. Annot. 498.

[VI. UNITED STATES COURT FOR CHINA.]

An Act Creating a United States court for China and prescribing the jurisdiction thereof.

[Act of June 30, 1906, ch. 3934, 34 Stat. L. 814.]

[SEC. 1.] [China - United States court established in sessions-seal issue of process.] That a court is hereby established, to be called the United States court for China, which shall have exclusive jurisdiction in all cases and judicial proceedings whereof jurisdiction may now be exercised by United States consuls and ministers by law and by virtue of treaties between the United States and China, except in so far as the said jurisdiction is qualified by section two of this Act. The said court shall hold sessions at Shanghai, China, and shall also hold sessions at the cities of Canton, Tientsin, and Hankau at stated periods, the dates of such sessions at each city to be announced in such manner as the court shall direct, and a session of the court shall be held in each of these cities at least once annually. It shall be within the power of the judge, upon due notice to the parties in litigation, to open and hold court for the hearing of a special cause at any place permitted by the treaties, and where there is a United States consulate, when, in his judgment, it shall be required by the convenience of witnesses, or by some public interest. The place of sitting of the court shall be in the United States consulate at each of the cities, respectively. That the seal of the said United States court for China shall be the arms of the United

States, engraved on a circular piece of steel of the size of a half dollar, with these words on the margin, "The Seal of the United States Court for China." The seal of said court shall be provided at the expense of the United States. All writs and processes issuing from the said court, and all transcripts, records, copies, jurats, acknowledgments, and other papers requiring certification or to be under seal, may be authenticated by said seal, and shall be signed by the clerk of said court. All processes issued from the said court shall bear test from the day of such issue. [34 Stat. L. 814.]

Purpose of Act. The object of the treaty of the United States with China, and the intention of Congress in creating the United States Court for China, in so far as that court is given criminal jurisdiction, was to throw around American citizens residing or sojourning in China, and there charged with crime, the beneficent principles of the laws of the United States relating to the trial of persons charged with crime the rules of evidence, the presumption of innocence, the degree of

proof necessary to convict, the right of the accused to be confronted with witnesses against him, exemption from being compelled to criminate himself, etc. But, while securing them these privileges, the statute at the same time made them subject to punishment for acts made criminal by any law of the United States, or for acts recognized as crimes under the common law. Biddle v. U. S., 156 Fed. 761.

SEC. 2. [Jurisdiction of consuls in minor cases continued — arrests, etc. — appeals - Korean cases settlement of estates — inventory — schedule of debts-payment of claims, etc.—reports special bond.] The consuls of the United States in the cities of China to which they are respectively accredited shall have the same jurisdiction as they now possess in civil cases where the sum or value of the property involved in the controversy does not exceed five hundred dollars United States money and in criminal cases where the punishment for the offense charged can not exceed by law one hundred dollars fine or sixty days' imprisonment, or both, and shall have power to arrest, examine, and discharge accused persons or commit them to the said court. From all final judgments of the consular court either party shall have the right of appeal to the United States court for China: Provided, also, That appeal may be taken to the United States court for China from any final judgment of the consular courts of the United States in Korea so long as the rights of extraterritoriality shall obtain in favor of the United States. The said United States court for China shall have and exercise supervisory control over the discharge by consuls and vice-consuls of the duties prescribed by the laws of the United States relating to the estates of decedents in China. Within sixty days after the death in China of any citizen of the United States, or any citizen of any territory belonging to the United States, the consul or vice-consul whose duty it becomes to take possession of the effects of such deceased person under the laws of the United States shall file with the clerk of said court a sworn inventory of such effects, and shall as additional effects come from time to time into his possession immediately file a supplemental inventory or inventories of the same. He shall also file with the clerk of said court within said sixty days a schedule under oath of the debts of said decedent, so far as known, and a schedule or statement of all additional debts thereafter discovered. Such consul or vice-consul shall pay no claims against the estate without the written approval of the judge of said court, nor shall he make sale of any of the assets of said estate without first reporting the same to said judge and obtaining a written approval of said sale, and he shall likewise within ten days after any such sale report the fact of such sale to said court, and the amount derived therefrom. The said judge shall have power to require at any time reports from consuls or vice-consuls in respect of all their acts and doings relating to the estate of any such deceased person.