S. Fidelity & Guaranty Co. v. Sandoval, 223 U. S. 227, 56 L. ed. Where appellant became insolvent pending the appeal, but no levy upon its property had been made under the judgment appealed from, and it did not appear that it could not have paid the judgment out of its current receipts, the claim of the surety company to a preference over those secured by a mortgage was denied. Gay v. Hudson River El. Power Co., 182 Fed. 904; Love v. North American Co., C. C. A., 229 Fed. 103; Towle v. Great Shoshone & Twin Falls Water Power Co., 232 Fed. 733; supra, § 305.

42 Persons v. Wirgman, 140 Fed. 207.

43 McRae v. David, C. C. A., 184 Fed. 989.

§ 704. 1 U. S. R. S., § 997; Wilson v. Daniel, 3 Dall. 401, 1 L. ed. 655; S. C. Rule 35. By Rule 6 of the Rules of the Court of Customs Appeals, upon the filing of an application for review, "a mandate shall issue to said Board of General Appraisers directing said board to transmit to said court the records and evidence taken by them, together with a certified statement of the facts involved in the case and the decision thereon, together with all samples and exhibits used

before them." The transmission of an original document, instead of a copy thereof, does not affect the validity of a writ of error or appeal. Jewett v. U. S., C. C. A., 100 Fed. 832. The copy of the record is sufficiently authenticated if there is attached thereto signed by the clerk or his deputy, and under the seal of the court a certificate stating that the writing attached is a true transcript of the record. Garneau v. Dozier, 100 U. S. 7, 25 L. ed. 536; Missouri, K. & T. Ry. Co. v. Dinsmore, 108 U. S. 30, 27 L. ed. 640; S. C. Rule 8; C. C. A. Rule 14. It has been held that a certificate that the "foregoing is a true, full and complete record in the above entitled cause' "' is sufficient, Pennsylvania Co. v. Jacksonville, T. & K. W. Ry. Co., C. C. A., 55 Fed. 131; but not a certificate that the papers contained in the transcript are correct copies without a statement that the transcript is complete, Meyer v. Mansur & T. I. Co., C. C. A., 85 Fed. 874; but see Burnham v. No. Chicago St. R. Co., C. C. A., 87 Fed. 168. Nor a certificate to the correctness of the copies of the pleadings which is silent as to the copies of the orders and decrees. Ruby v. Atkinson, C. C. A., 93 Fed. 577. When

the transcript is not a full and complete transcript of all the proceedings, the clerk should make some appropriate mention of the fact in his certificate, stating the reasons for the omissions and that the transcript as prepared is a full and complete transcript of such proceedings in the case as it purports to contain. Farmers' Loan & Trust Co. v. Eaton, C. C. A., 114 Fed. 14, 18. See infra, note 5. Where the transcript stated: that, on a certain date, the court rendered a judgment, therein copied; the writ of error and the petition therefor referred to the rendition of judg ment; and the clerk certified that the transcript was a full, true and correct copy of the records and proceedings, as the same remained of record on file in his office; it was held that the transcript showed that the judgment was entered of record. Mackey v. Fox, C. C. A., 121 Fed. 487. When the transcript is sent to the Circuit Court of Appeals, a statement in the certificate that it is made for the Supreme Court is immaterial. McClellan v. Pyeatt, C. C. A., 49 Fed. 259.

The seal and signature are both requisite. S. C. Rule 8; C. C. A. Rule 14. Leave has been given to

withdraw the record and file the same nunc pro tunc with the clerk's signature added thereto, when the seal was affixed to the record and a motion to dismiss for the want of the clerk's signature was made after the time to appeal had expired. Idaho & Oregon L. Imp. Co. v. Bradbury, 132 U. S. 509, 513, 33 L. ed. 433, 436. Cf. Burnham v. No. Chicago St. Ry. Co., C. C. A., 87 Fed. 168. Where the seal and signature were both wanting, the court dismissed the writ of error, but allowed the plaintiff in error to withdraw the record and sue out a new writ, since his time had not expired. Blitz v. Brown, 7 Wall. 693.

2 Mussina v. Cavazos, 6 Wall. 355, 359, 18 L. ed. 810; Wood v. Lide, 4 Cranch, 180, 2 L. ed. 588; Pickett v. Legerwood, 7 Pet. 144, 8 L. ed. 638.

3 Mussina v. Cavazos, 6 Wall. 355, 18 L. ed. 810.

4 See supra, § 699.

5 S. C. Rule 8; C. C. A. Rule 14; Redfield v. Parks, 130 U. S. 623, 32 L. ed. 1053. See Hoe v. Kahler, 27 Fed. 145. In a criminal case, the transcript should contain all recognizances, processes and proceedings in the case. U. S. R. S.,

Sec. 1037; Jewett v. U. S., C. C. A., 100 Fed. 832. Any oral concessions made in the court below should be set forth in the certificate of the trial judge. Re L. W. Day & Co., C. C. A., 175 Fed. 1022. But it has been held that this is not conclusive; Guerini Stone Co. v. Carlin Constr. Co., 248 U. S. 341; Re Veler, C. C. A., 249 Fed. 633. The original pleadings which have been amended need not be included in the transcript when the amended pleadings are included. Union Pacific Ry. Co. v. U. S., 116 U. S. 402, 29 L. ed. 677. On a second appeal from the Court of Claims, findings of fact on the first hearing in a decision reversed upon the former appeal need not be included in the transcript. Union Pac. Ry. Co. v. U. S., 116 U. S. 402, 29 L. ed. 677. See supra, § 686; infra, § 706. The transcript need not contain the names of the jurors. Owens v. Hanney, 9 Cranch, 180, 3 L. ed. 697. It should not contain affidavits on a motion for a continuance. Campbell v. Rankin, 99 U. S. 261, 25 L. ed. 435. Nor, it has been said, the papers upon a motion to permit a party to introduce further evidence after his time had expired, which was denied, since this was considered to be discretionary and not reviewable. Baglin v. Cusenier Co., 156 Fed. 1019. Nor affidavits considered upon a motion for a new trial. Evans v. Stettnisch, 149 U. S. 605, 37 L. ed. 866. Nor any affidavits not admitted in evidence on a trial or hearing. Baltimore & P. R. Co. v. Sixth Presbyterian Church, 91 U. S. 127, 23 L. ed. 260; England v. Gebhardt, 112 U. S. 502, 28 L. ed. 811; Craig v. Smith, 100 U. S. 226, 25 L. ed.

577; Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105; Travelers' Protective Ass'n v. Gilbert, C. C. A., 101 Fed. 46. Affidavits can only be considered upon a writ of error when they are included in the bill of exceptions. Evans v. Stettnisch, 149 U. S. 605, 37 L. ed. 866; Stewart v. Wyoming C. R. Co., 128 U. S. 383, 390, 32 L. ed. 439, 442. Motions based upon matters beyond the record should not ordinarily be included unless recited with the evidence or affidavits pro and con in the bill of exceptions. Eldorado Coal & Mining Co. v. Mariotti, C. C. A., 215 Fed. 51; Griggs v. Nadeau, C. C. A., 250 Fed. 781; Panama R. R. Co. v. Curran, C. C. A., 256 Fed. 768; supra, § 479. Nor any letters or other papers not contained or referred to in the bill of exceptions or incorporated in a pleading. San Pedro & Canon A. A. Co. v. U. S., 146 U. S. 120, 36 L. ed. 912; Whitten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406; Travelers' Protective Ass'n v. Gilbert, C. C. A., 101 Fed. 46. All such papers will be disregarded by the court of review. Ibid.; Suydam v. Williamson, 20 How. 427, 15 L. ed. 978; Duncan v. Atchison, T. & S. F. R. Co., C. C. A., 72 Fed. 808. See Dalton v. Hazelet, C. C. A., 182 Fed. 561. Where there is an assignment of error that the court never acquired jurisdiction over the appellant's person, the transcript must show either that the objection was raised below and overruled or that he did not voluntarily appear. Taylor v. Easton, C. C. A., 180 Fed. 363. It has been held: that where leave to file a pleading has been refused or documentary evidence excluded, such papers

A copy of the annexed to and

should not be included in the transcript; but that the court below may order the clerk to certify these with the transcript. Southern B'g & L. Ass'n v. Carey, 117 Fed. 325, 326. Upon an appeal from an order refusing leave to file a petition or other paper, a copy of the rejected paper should be included in the transcript, although not filed. Southern B'g & Loan Ass'n v. Carey, 117 Fed. 325. The fact that a paper is on the files of the clerk's office with other papers in a case does not make it part of the record, if it is neither a pleading nor a process, nor made a part of the record by the action of the court. England v. Gebhardt, 112 U. S. 502, 28 L. ed. 811. The transcript filed by complainant must contain the proceedings upon a cross-bill which has been dismissed when the complainant to the cross-bill has appealed, even though the complainant has not named him as appellee. Gregory v. Pike, 64 Fed. 415. Where there has been a previous appeal, matters which preceded the mandate thereupon and which do not tend to explain it should ordinarily be omitted. Nashua & L. R. Corp. v. Boston & L. R. Corp., C. C. A., 61 Fed. 237. Proceedings upon an application for a rehearing which tend to explain the original decree may be included. Hoe v. Kahler, 27 Fed. 145. Where several distinct proceedings are pending about the same matter below, nothing should be included in the record which does not have some relation to that in which was en

tered the order from which the appeal is taken. Burnham v. NorthChicago Ry. Co., C. C. A., 87 Fed. 168. But see Fitzgerald v. Evans, C. C. A., 49 Fed. 426. It is proper to omit parts of depositions which neither party offered in evidence. Blanks v. Klein, C. C. A., 49 Fed. 1. Where parts of the record are omitted the transcript should indicate the fact and the nature of the omission. Nashua & L. R. Corp. v. Boston & L. R. Corp., C. C. A., 61 Fed. 237. Where part of the records of the court below had been destroyed by fire without the fault of either party, the Circuit Court of Appeals heard an appeal on a transcript of what remained. Cutting v. Tavares, O. & A. R. Co., 61 Fed. 150. It has been said: that it is the duty of the plaintiff to furnish the court with all the exhibits, which are contained in the bill of exceptions, unless his opponent stipulates waiving the production of the same; and that his failure in this respect is a sufficient cause for censure; but, unless these are necessary for the decision of the questions of law involved, such a failure is not a ground for dismissing the writ of error. Dalton v. Moore, C. C. A., 141 Fed. 311, 314. In two or more circuits the rules regulate what the transcript shall contain, e. g., Ft. Worth, Cf. 223 Fed. XXIV. See Appendix V., infra.

6 Williams Bros. v. Savage, C. C. A., 120 Fed. 497; Re Friedman, C. C. A., 161 Fed. 260.

7S. C. Rule 8; C. C. A. Rule 14. The statement of facts in the opin