to those subjects only and do not keep in effect the other provisions of the Norris-LaGuardia Act and the other enumerated acts in regard to the substantive rights of the party and final permanent injunction in labor cases. To one who is familiar with the method adopted throughout these rules of citing the statute by chapter and paragraph and then inserting a short phrase to indicate the general character of the statute, it is readily apparent that these words are merely descriptive and are not words of limitation. This interpretation is further fortified by the evident care manifested in the rule to retain without change all the provisions of the Federal statutes in regard to this important subject.

Rule 66 deals with receivers and provides that the practice in the administration of estates by receivers and other similar officers shall be in accordance with the practice heretofore followed in the courts of the United States or as provided in rules promulgated by the district courts. The importance of this provision is that it gives the district courts express power to dispose of receivership cases according to rules which the district courts may promulgate. I hardly need to call your attention to the many complaints that have been made as to the congestion of the courts, the interference with the disposition of the regufar calendar and other serious evils which the conduct of receivership cases have evoked. Under this rule, it is put up to the district courts to clean house in this respect.

Rule 67 deals with deposit in court. It preserves the statutes which regulate such deposits and it harmonizes the methods that have been heretofore followed in the practice in equity and at law, which were quite different. It is new in that it especially allows money or tangible things to be deposited in court pending the disposition of the case. It is thus ancillary to the provisions of the next rule.

Rule 68 refers to offer of judgment. This rule is new in the Federal practice. It provides that if suit is brought against one who has a defense against a part only of the claim, he can come into court and offer judgment for that part of the claim or for that part of the relief prayed, to which he admits the defendant is entitled. Then you go to trial on the balance of the claim, and if more money is recovered judgment for the larger amount is rendered. If judgment for only what has been offered is rendered, then the costs from the time of the offer go against the other party. That is the practice in some jurisdictions, but it has never been put into practice in the Federal courts. Rule 69 deals with execution. It follows the present practice and preserves existing statutes. It also allows the deposition rules (rules) 26-33) to be used in proceedings supplementary to execution. Subdivision (b) deals with a special situation arising where a judgment has been entered against the collector or other officer of the revenue under section 989 of the Revised Statutes (U. S. C., title 28, sec. 842), or against an officer of Congress in another kind of action mentioned in another act specified in the rule and provides that when the court has given the certificate of probable cause provided in those statutes, execution shall not issue against the officer or his property, but the final judgment shall be satisfied as provided in those statutes. Rule 70 deals with judgment for specific acts and vesting title. This is in every essential respect in accordance with the present equity rules. It goes beyond those rules, however, by adopting the practice now authorized by many State statutes providing for the vesting of title by decree without formal conveyance.

Rule 71 deals with processes in behalf of and against persons not parties. It is taken from Federal equity rule 11, but the language has been clarified.

Rules 72 to 76, inclusive, deal with appeals.

Rule 72 deals with the direct appeal from a district court to the Supreme Court. This rule simply preserves the present practice. Rule 73 deals with appeals to a circuit court of appeals. The procedure is simplified by substituting a notice of appeal for the petition, citation, and order allowing the appeal and providing a simple method of service. This is the method of appeal used in many States. Subdivision (c) deals with the appeal bond and subdivision (d) with the supersedeas bond. Subdivision (e) deals with the failure to file or the insufficiency of a bond. Subdivision (f) is new and is a composite of the best provisions of the State law. Instead of requiring a special suit to be brought against the surety on an appeal bond, it provides for a judgment against the surety upon motion and due notice, thus obviating the expense of a new suit and the delay incident thereto.

(NOTE. For the convenience of the committee there is inserted in the record at this point certain self-explanatory correspondence, and a memorandum from Major Tolman, with regard to rule 73.) ADVISORY COMMITTEE ON RULES FOR CIVIL PROCEDURE,

OFFICE OF THE SECRETARY,

SUPREME COURT OF THE UNITED STATES BUILDING,
Washington, D. C., March 17, 1938.

Hon. HATTON W. SUMNERS,

Chairman, House Judiciary Committee,

House of Representatives, Washington, D. C.

DEAR JUDGE SUMNERS: Your letter, enclosing a letter to you from the Honorable John M. Robsion and one to Mr. Robsion from Judge Cleon R. Calvert, of Pineville, Ky., has been received.

You ask for my comments. Accordingly I enclose a memorandum on the subject.

I return you herewith the letters of Judge Calvert and of Mr. Robsion.

Very sincerely,

EDGAR B. TOLMAN

HOUSE OF REPRESENTATIVES,
Washington, D. C., March 10, 1938.

Hon. HATTON W. SUMNERS,

Chairman, Judiciary Committee, House of Representatives.

MY DEAR JUDGE SUMNERS: I enclose to you letter from Judge Cleon K. Calvert, an attorney at Pineville, Ky. He has for many years had a very extensive and lucrative practice in the Federal courts. He is perhaps the most capable Federal court lawyer in my section of the State.

I know that you will give these suggestions your careful consideration.
With very great respect, I remain,

Sincerely yours,

J. M. ROBSION.

PINEVILLE, KY., March 8, 1938.

Hon. J. M. ROBSION,

House of Representatives, Washington, D. C.

DEAR SIR: I have received from and thank you for a copy of the Rules of Civil Procedure for the District Court of the United States. I am heartily in favor of these rules, but one of them needs amending and another needs clarifying. I think subsection (b) of rule 73 could be improved if it were provided that the notice of appeal should be required to specify the errors to be relief on, and then again I think that it should either be made plain that a citation is or is not required in appeals under that section. It would seem that the notice of appeal would take the place of the citation, but somewhere in the course of the appeal,

the time when and the place where appellee is required to appear ought to be made clear. This ought to appear in the notice.

Very truly yours,

MEMORANDUM RE RULE 73

CLEON K. CALVERT.
MARCH 17, 1938.

Judge Calvert raises two points in regard to rule 73 of the Rules of Civil Procedure. That rule relates to appeals from a district court to a circuit court of appeals.

I. Judge Calvert states that he believes that rule 73 (b) would be improved if it provided that the notice of appeal must specify the errors to be relied on.

This question was thoroughly discussed by the advisory committee and was a subject of keen interest on the part of the bar when the rules were being drafted. In the first draft published by the advisory committee in May 1936, there was a provision such as Judge Calvert suggests. The advisory committee received a great many objections to the provision, particularly from States where appeal in the State courts by simple notice of appeal has been substituted for the more elaborate procedure of appeal by petition, citation, etc., which now obtains in the Federal courts. Many lawyers felt that the assignment of error served no useful purpose in the simpler procedure. Since the rules adopt the method of appealˇby`simple notice of appeal and do not require petition, allowance, and citation, it was appropriate that they should adhere rather closely in detail to corresponding provisions in States where appeal by notice is the practice.

After canvassing this question, the advisory committee concluded that there might be perhaps two useful purposes of the assignment of error

(1) It advises the appellee and the clerk in advance of the preparation of the record of the points that will be raised on the appeal, and is, therefore, of assistance to the clerk and the parties in preparing the record.

(2) It advises the appellees of the points which the appellant intends to raise in the appellate court, and thus facilitates the preparation of briefs and oral argument.

The disadvantages of the method are

(1) That it is a pitfall which may prevent the consideration of a meritorious appeal simply because a proper assignment of error was not made; and

(2) The requirement often results in a verbose, repetitious, and long-winded list of alleged errors, many of which the appellant has not the slightest intention of pressing in the appellate court but which he has inserted either in an effort to protect himself against all possible contingencies or in an attempt to confuse his adversary.

The advisory committee felt that the advantages should be retained, but that the evils of the practice should be prevented. It, therefore, eliminated its suggested requirement of the May 1936 draft that assignments of error accompany the notice of appeal. At the same time, the committee revised its rule in regard to the record on appeal to a circuit court of appeals (rule 75) so that as adopted by the Court it preserves the first advantage of the assignments of error-that they enable the appellee to designate what portion of the transcript and proceedings he desires in the record on appeal. Subdivision (d) of rule 75 covers this. It provides—

'Statement of points.—If the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his designation a concise statement of the points on which he intends to rely on the appeal."

As to the second advantage of assignments of error-that they serve to advise appellee of the points appellant intends to raise on appeal in advance of argument in the appellate court, it is expected that the rules of the circuit courts will require, as many of them now do, that appellant's brief must list the points which he intends to argue on the appeal, and that those rules will also require appellant's brief to be served a sufficient number of days in advance of argument to enable the appellee to answer in his brief and oral argument the questions which will be presented in the appellate court. Of course, the rules of civil procedure, adopted by the Supreme Court, do not deal with the subject of appellate court briefs in any respect, and this matter must be regulated by the rules of those courts.

II. Judge Calvert raises as a second point the question of whether a citation is or is not required under rule 73. He points out that the notice of appeal seems

to be designed as a substitute for the citation, but he believes that somewhere in the course of the appeal the time when and the place where the appellee is required to appear ought to be made clear, and he suggests that this ought to be a part of the notice.

As I have indicated above, this rule does not require either a petition or a citation on appeal. All that is necessary to take an appeal is that a notice of appeal be filed with the clerk of the district court. There is no mention of a "citation" in the rule, and in the advisory committee's notes it is plainly stated that_rule 73 (a) "supplants the petition for appeal, the order allowing an appeal, and the citation on appeal." Subdivision (b) of rule 73 requires the clerk of the district court to mail copies of the notice to all the parties to the judgment other than those taking the appeal. Since the notice must name the court to which the appeal is taken, I think Judge Calvert's point that the appellee should be notified that an appeal has been taken and to what court is adequately covered. Furthermore, rule 5 (a) specifically provides that the appellant must serve upon the appellee a copy of his designation of record on appeal which, under rule 75 (a) must be filed in the appellate court "promptly" after the appeal is taken. Rule 73 (g) states the time limitations within which the record must be docketed in the circuit court of appeals. Usually this will be 40 days after the filing of the notice of appeal and, since no appellee need appear in the appellate court before the record is docketed there, it seems that rule 73 (g) affords the appellee the necessary information from which he may compute the time of his first required appearance and that a statement of the exact time in the notice would be unnecessary and possibly misleading because the exact period may differ in different cases. I am confident that, under the practice or rules of the circuit courts after this rule takes effect, there will be adequate provisions for notification to the appellee of the various stages of the case in that court. See, for example, rule 9 of the rules of the Circuit Court of Appeals for the Sixth Circuit requiring service on all adverse parties of all papers filed in the circuit court at or before the time they are filed.

In conclusion, both of Judge Calvert's points are certainly important and were carefully considered by the advisory committee. I am sure that the rules in their present form will operate satisfactorily in both respects.

EDGAR B. TOLMAN.

STATEMENT OF EDGAR B. TOLMAN-Continued

Rule 74 permits parties jointly or severally interested in a judgment to appeal either jointly or severally. It abolishes the old technical procedure of summons and severance, which has been a trap of Federal procedure into which many have fallen.

Rule 75 deals with the record on appeals to the circuit court of appeals. The union of procedure in actions at law and cases in equity and the necessity of one procedure for both requires the harmonizing of provisions in regard to the method of appeal which heretofore were quite different. This rule eliminates the old bill of exceptions in cases at law and the requirement for a narrative form in cases in equity. It permits the appellant to designate portions of the verbatim transcript which he wishes to have included in the record and it permits the appellee to designate additional portions if he feels them to be necessary. However, it permits the appellant, if he wishes, to prepare a narrative form of testimony and to submit it to the appellee and if the appellee is not satisfied with it he may call for specified portions of the verbatim transcript instead. However, if he does so, he must run the risk of paying costs if the court finds that his refusal to agree to the narrative form was unreasonable. The rule also does away with requirements for assignments of error but it preserves the advantages of that technique in that it requires a "concise statement of points" on which the appellant intends to rely on the appeal, unless the entire proceedings below are to be sent up. This is necessary in order that both sides may know what portions of the proceedings must be designated for the record. There are

provisions also in regard to the record where more than one appeal is taken from the same judgment.

Subdivision (1) relates to printing the record and gives the appellate court power to decide what part of the record shall be printed and the manner and supervision thereof. Thus, it makes it possible for the circuit courts to secure economy and simplicity in proceedings through the substitution of the typewritten for the printed record if they are willing to hear cases in this way.

Chapter X embraces rules 77 to 79, inclusive, and deals with the duties of the clerks of the district courts and the routine business of that office and of the court. Rule 79 is concerned with the books to be kept by the clerk and the entries to be made therein. These rules do not justify an extended explanation.

Rule 80, providing for stenographers and stenographic notes, has been sufficiently discussed by a gentleman of that profession. I agree with what he said as to his preference for rule 80 over the provisions in H. R. 8892, unless the Congress is willing to appropriate money for regularly employed stenographers in all district courts.

Rule 81 is entitled "Applicability in General." The rules are intended to apply to all civil actions, but there are some special proceedings for which a special procedure has already been prescribed by Congress and to which they do not apply. For example, they do not apply to proceedings in bankruptcy, or in copyright cases, except as they may be made to apply hereafter by order of the court. They do not apply to probate, adoption, or lunacy proceedings in the District of Columbia, but the appeals in those cases are governed by these rules. They apply to appeals with regard to admission to citizenship, habeas corpus, quo warranto, and forfeiture of property for violation of a statute of the United States, but they do not apply to certain proceedings for arbitration, except in a limited degree; or to proceedings to review orders of the Secretary of Commerce prescribed by the Act of June 25, 1934, or to proceedings to enforce orders of the National Labor Relations Board, or to proceedings for the deportation of Chinese, or to certain other proceedings except to a limited extent. The writs of scire facias and mandamus are abolished, but the relief heretofore available by mandamus and scire facias may be obtained by appropriate motion or action without calling them by their Latin names.

The rules apply to removed actions and repleading after removal is not necessary unless the court so orders.

Rule 82 provides that jurisdiction and venue are unaffected. The rules do not enlarge or limit jurisdiction or venue.

Rule 83 provides that each district court may make its own rules for the conduct of its own business not inconsistent with those promulgated by the Supreme Court, and when the district court comes to a question of procedure not covered by these rules nor by any procedural statute which these rules preserve, the district court may make its own rules with regard to it. I consider that provision worthy of brief comment. One of the most important characteristics of procedure rules is elasticity. They should lay down only the essential things and leave as much as possible to the common sense of the judge and the lawyers.

Rule 84 refers to the forms of pleadings contained in the appendix. These forms are illustrative only. Any one who thinks he can improve