motion for further proof in the appellate court, some excuse satisfactory to the court should be shown for the failure to offer the proof in the court below. Where the evidence as it stood was not in the opinion of the court susceptible of any satisfactory explanation by the party desiring an order for further proof, the order was refused."

Where the court looked into the further proof offered, and on comparing it with the evidence already in the case was of the opinion that it would be totally incompetent to make out a title in the party, his application for further proof was rejected. The suppression of papers, where it appears to have been intentional and fraudulent and attended with other suspicious circumstances, is good cause for refusing further proof; but where the suppression appears to be owing to accident or mistake, and no other suspicious circumstances appear in the case, other proof may be allowed. The claimant forfeits all right to offer further proof by a guilty concealment of the same in his first affidavit and claim." Further proof will usually be ordered by the Supreme Court in a prize cause, where the national character and proprietary interest of goods recaptured do not distinctly appear.10 Affidavits to be used as further proof in a prize cause are usually taken by commission." On further proof the affidavit of the claimant is indispensably necessary.12 Where affidavits were presented to show that the testimony of witnesses on which the decree was rendered was obtained by a corrupt agreement to pay them money, of which the appellant had no knowledge at the time of the trial, a commission was ordered to take the testimony of those witnesses." Where an order for further proof is made, and the party disobeys the injunctions or neglects to comply with them, a court of prize will usually consider such neglect as contumacy, which leads to presumptions fatal to his claims.14

5 The Mabey, 10 Wall. 419; The Beeche Dene (C. C. A.), 55 Fed. R. 526; Red River Line v. Cheatham, 60 Fed. R. 517; In re Hawkins, 147 U. S. 486; supra, § 430.

"The Hazard v. Campbell, 9 Cranch, 205.

7 The Euphrates, 8 Cranch, 385.
8 The St. Lawrence, 8 Cranch, 434;

The Fortuna, 2 Wheat. 161; The Fortuna, 3 Wheat. 236.

9 The Gray Jacket, 5 Wall. 342. 10 The Adeline, 9 Cranch, 244; The Atalanta, 3 Wheat. 409.

11 The London Packet, 2 Wheat. 371. 12 The Venus, 5 Wheat. 127. 13 The Western Metropolis, 12 Wall 389.

14 The La Nereyda, 8 Wheat. 108.

Further proof cannot be admitted until the cause is heard, but where upon the opening it appears to be a case for further proof, further proof may be admitted immediately, unless it appears that the other party should be allowed to produce further proof also.15 In a prize cause the captors are competent witnesses upon an order for further proof, where the benefit of it extended to both parties.16 A second order for further proof may be made when the further proof furnished in obedience to the first order is not satisfactory."

§ 517. Decisions on writs of error and appeals.— On proceedings upon a writ of error to a State Court the Supreme Court may reverse, modify, or affirm the judgment or decree below; and has discretionary power to award execution, or remand the case to the court to which the writ of error issued.1 The Supreme Court may affirm, modify or reverse any judgment, decree or order of a Circuit Court or District Court, lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may require. Neither the Supreme Court nor, it seems, a Circuit Court of Appeals has power to issue execution in a cause brought up from a Circuit or District Court, but must send a special mandate to the inferior court to award execution thereupon. Whenever on appeal or writ of error, or otherwise, a case coming directly from a District Court or Circuit Court is reviewed or determined in the Supreme Court, the cause must be remanded to the proper District or Circuit Court, for further proceedings to be taken in pursuance of such determination. Whenever on appeal or writ of error, or otherwise, a case coming from a Circuit Court of Appeals is reviewed and determined in the Supreme Court, the cause must be remanded to the proper District or Circuit Court for further proceedings in pursuance of such determination. Whenever on appeal or writ of error, or otherwise, a case coming from a District or Circuit Court is reviewed and determined in a Cir

3

15 The Venus, 1 Wheat. 112.

16 The Anne, 3 Wheat. 435.

17 The Frances, 8 Cranch, 348.

§ 517. U. S. R. S., § 709.

2 U. S. R. S., § 701; 26 St. at L. 829, S$ 10, 11.

3 U. S. R. S., § 701; 26 St. at L. 829, S$ 10, 11.

426 St. at L. 829, § 10.

5 26 St. at L. 829, § 10.

cuit Court of Appeals, in a case in which the decision of the Circuit Court of Appeals is final, the cause must be remanded to such District or Circuit Court for further proceedings to be taken in pursuance of such decision. The same rules apply to the review by the Supreme Court of the final judgments and decrees of the Supreme Court of the District of Columbia, the Court of Claims, and the Court of Private Land Claims; and to the review by the Supreme Court and the Circuit Courts of Appeals of the final judgments and decrees of the Supreme Courts of the Territories, and of the United States court in the Indian Territory."

Where the appellate court is equally divided, the judgment or decree of the court below is affirmed upon the point as to which there is a division. In such a case the appellate court cannot change the decree of the court below in any respect; nor exercise any discretionary power to allow interest on the affirmance. In case of a division, the appellate court will usually hand down no opinion; 10 and the decision is not to be considered as settling any principle."

In general, the appellate court, when reversing a judgment at common law, will order a new trial," and when reversing a decree in equity or admiralty, will direct the entry of a decree below, finally disposing of the matters in litigation. A new hearing will not be ordered where evidence was erroneously admitted on a hearing in equity, or on a trial before a judge without a jury; but the appellate court will render such judgment in the case as may be proper. Where a judgment or decree is reversed for want of jurisdiction, the appellate court

626 St. at L. 829, § 10.

14

Nat. Bank, 112 U. S. 276; Little

7 U. S. R. S., § 705; 26 St. at L. 829, Miami & C. & X. R. Co. v. U. S., 108 830. §§ 11, 13, 15. U. S. 277.

13 Blease v. Garlington, 92 U. S. 1; Penhallow v. Doane, 3 Dallas, 54; Wickliffe v. Owings, 17 How. 47. In an extraordinary case the Supreme Court reversed a decree without passing on the merits, with instructions to refer the case to a master to find upon a certain question. Chicago, M. & St. P. Ry. Co. v. Tompkins, 176 U. S. 167.

14 Field v. U. S., 9 Pet. 182; U. S. v. King, 7 How. 833, 854.

15

will usually direct the entry of a judgment or decree of dismissal, or in a case originally brought in a State court will direct a remand, even if it has been stipulated that the case shall abide the decision of another case.16 Where all the facts have been determined by a special verdict, a case stated, or findings below, and the judgment is reversed because the judgment was not in conformity with them, the appellate court may direct final judgment to be entered in favor of the plaintiff in error without a new trial." Or it may remit the case to the court below for an assessment of damages. 18 An appellate court cannot modify a judgment upon a verdict by reducing the amount of damages, and directing the entry of a judgment in favor of the defendant in error for the reduced amount of damages; 19 but where interest was erroneously allowed," or erroneously computed," the usual practice is not to reverse absolutely, but to direct that the judgment be reversed unless the defendant in error files in the court below a remittitur of the excessive interest and produces a certified copy of the same to the court below at the same term." The Supreme Court of a Territory may enter an order directing that a judgment be reversed and a new trial had, unless the defendant in error stipulates to remit a specified portion of the damages, and that if he does so remit the judgment be affirmed.23 If the pleadings

15 Bingham v. Cabbot, 3 Dall. 19; Grace v. Am. Cent. Ins. Co., 109 U. S. 278; Börs v. Preston, 111 U. S. 252. But where the objection was first taken upon the writ of error, and it appeared,although not by direct averment, that there was a diversity of citizenship between the parties, the case was remanded for appropriate action by the trial court with per mission to grant leave to amend. Hunt v. Howes (C. C. A.), 74 Fed. R. 657. Cf. Everhart v. Huntsville College, 120 U. S. 223.

16 Ryder v. Holt, 128 U. S. 525.

A.), 56 Fed. R. 76. But see St. Louis v. W. U. Tel. Co., 148 U. S. 92; Miller v. Houston City St. R. Co. (C. C. A.), 55 Fed. R. 366; Mundy v. Stevens (C. C. A.), 61 Fed. R. 77, 86.

18 Fisher v. Newark City Ice Co. (C. C. A.), 62 Fed. R. 569.

19 Kennon v. Gilmer, 131 U. S. 22. 20 Washington & Georgetown R. Co. v. Harmon, 147 U. S. 571, 590.

21 Gulf, C. & S. F. Ry. Co. v. Johnson (C. C. A.), 54 Fed. R. 474, 481.

22 Washington & G. R. Co. v. Harmon, 147 U. S. 571, 590; Gulf, C. & S. F. Ry. Co. v. Johnson (C. C. A.), 54 Fed. R. 474; Hansen v. Boyd, 161 U. S. 397, 411; Koenigsberger v. R. S Ins. Co., 158 U. S. 41, 53.

17 National Bank v. Insurance Co., 95 U. S. 673, 679; Allen v. St. Louis Bank, 120 U. S. 20; Cleveland R. M. Co. v. Rhodes, 121 U. S. 255; Fort 23 Hopkins v. Orr, 124 U. S. 510; Scott v. Hickman, 112 U. S. 150; Arkansas Val. L. & C. Co. v. Mann, Graham v. Bayne, 18 How. 60. Cf. 130 U. S. 69. Walker v. Windsor Nat. Bank (C. C.

and the verdict clearly afford the means of distinguishing the invalid part of the plaintiff's claim from the rest, the Supreme Court or the Circuit Court of Appeals may do the same; but otherwise it seems that neither of these courts can reverse a judgment at common law upon a verdict because of excessive damages, or because against the weight of evidence."

25

A decree in equity may be affirmed in part and reversed in part. Where a decree in equity is reversed for the refusal of the court below to permit leave to file an amended bill or other bill not original, a new hearing upon the new bill and the subsequent proceedings thereupon will be ordered below.28 Where a decree has been rendered below against the plaintiff, and the appellate court is of the opinion that the facts show that he has an equitable title to some relief, although not to any relief upon the case made by the bill, the decree may be reversed, with a direction that the court below allow the plaintiff to amend, and that such other proceedings be had as may be consonant with justice.29 Analogous relief may also be granted to a defendant appellant in a proper case. The appellate court may also in such a case affirm in part the decree below, but send a mandate directing the inferior court to reopen its decree and allow further proceedings." Where a decree is reversed for a denial to a party of an accounting, an accounting will be ordered below. A new hearing below will not be ordered for the improper exclusion of evidence in a case in equity.33

24 Bank of Kentucky v. Ashley, 2 Pet. 327. But see Wilson v. Everett, 139 U. S. 616.

25 Wilson v. Everett, 139 U. S. 616; Wabash R. Co. v. McDaniels, 107 U. S. 454; No. Pac. R. Co. v. Charles (C. C. A.), 51 Fed. R. 562, 580; Morning Journal Ass'n v. Rutherford (C. C. A.), 51 Fed. R. 513, 516; Hogg v. Emerson, 11 How. 587. But see Bank of Kentucky v. Ashley, 2 Pet. 327.

26 Wilson v. Everett, 139 U. S. 616; N. Y., L. E. & W. R. Co. v. Winter's Adm'r, 143 U. S. 60, 75.

27 Elizabeth v. Am. N. P. Co., 131 U. S. cxlviii; Kneeland v. American L & Tr. Co., 136 U. S. 89; s. c., 138 U. S. 509, 511.

30

28 Riddle v. Whitehill, 135 U. S. 621, 640; Ballard v. Searls, 130 U. S. 50. In an extraordinary case leave to amend the pleading may be given by the appellate court. Jones v. Meehan, 175 U. S. 1.

29 Wiggins Ferry Co. v. Ohio & M. Ry. Co., 142 U. S. 396; Crocket v. Lee, 7 Wheat. 522; Watts v. Waddle, 6 Pet. 389. This will rarely be done when the amendment would require new evidence. Am. Bell Tel. Co. v. U. S. (C. C. A.), 68 Fed. R. 542.

30 Crocket v. Lee, 7 Wheat. 522.
31 Watts v. Waddle, 6 Pet. 389.
32 Chouteau v. Barlow, 110 U. S. 238.
33 Blease v. Garlington, 92 U. S. 1.