8. (Dec., 1856.) Where there appears to be an omission in the record of an important paper, which may be necessary for a correct decision of the case of the defendant in error, who has no counsel in court, the court will, of its own motion, order the case to be continued, and a certiorari to be issued to bring up the missing paper. Morgan v. Curtenius, 19 How. 8.

9. (Dec., 1861.) This court will award a certiorari when diminution of the record is suggested, even at the third term, if the delay be accounted for; but the hearing of the cause will not be postponed on that account. Clark v. Hackett, 1

Black, 77.

10. (Dec., 1863.) The Supreme Court of the United States has no power to review by certiorari the proceedings of a military commission ordered by a general officer of the United States army, commanding a military department. Ex parte Vallandigham, 1 Wall. 243.

11. (Dec., 1863.) A certificate that a transcript of a record was a "full, true, and correct copy of all the proceedings, entries, and files in the District Court for the Southern District of California, except the transcript sent up from the Board of Land Commissioners in the case," was so far good that the party alleging it to be bad was referred, if dissatisfied with the transcript, to his remedy of a suggestion of diminution, and motion for certiorari. United States v. Gomez, 1 Wall. 690.

12. (Dec., 1864.) On a mere petition for a certiorari, the court, according to its better and more regular practice, will decline to hear the case on its merits, even though the counsel for the petitioner produce a copy of the record admitted on the other side to be a true one. It will wait for a return, in form, from the court below. Ex parte Dugan, 2 Wall. 134.

13. (Dec., 1866.) A certiorari for diminution of the record allowed under special circumstances, and where the cause had been continued till the next term, although the motion

for it was made after more than one term had passed since the entry of the case, and contrary to a rule of the court. Stearns v. United States, 4 Wall. 1.

14. (Oct., 1873.) When the only defect in a transcript sent to this court is that the clerk has not appended to it his certificate that it contains the full record (there being no allegation of contumacy), a certiorari is not the proper remedy for relief to the plaintiff in error. He should ask leave to withdraw the transcript, to enable him to apply to the clerk of the court below to append thereto the necessary certificate. Hodges v. Vaughan, 19 Wall. 12.

15. (Oct., 1873.) On an allegation of deficiency in the record, the deficiency, if any, may be supplied by certiorari. A motion to dismiss the appeal, upon such allegation, denied. The Rio Grande, 19 Wall. 178.

16. (Oct., 1874.) When it appears, for the first time, in the argument of a cause, that the existence of the judgment. appealed from is not stated in the record, the court, of its own motion, may allow the plaintiff in error a certiorari, and time to produce a certified copy of it. Sweeney v. Lomme, 22 Wall. 208.

Rule 15.- Death of a Party.

1. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that, unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff

1 Fourteenth rule.

in error, he shall be entitled to open the record, and on hearing have the same reversed, if it be erroneous; provided, however, that a copy of every such order shall be printed in some newspaper at the seat of government, of general circulation, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing.

2. When the death of a party is suggested, and the representatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate.

3. When either party to a suit in the Circuit Courts of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States, from any final judgment or decree rendered in said Circuit Courts, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead, and have no proper representative within the jurisdiction of the court which rendered such final judgment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some state or territory of the United States, the party desiring such writ of error or appeal may procure the same, and may supersede or stay proceedings on such judgment or decree in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the commencement of the court to which such writ of error or appeal is returnable, the plaintiff in error, or appellant, shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some state or territory of the United States, and stating therein the name and character of such representative, and the state or territory in which such representative resides; and, upon such suggestion, he may, on motion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error, or appellant, shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if the same be erroneous ; provided, however, that a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing; and provided, also, that in every such case, if the representative of the deceased party does

not appear by the tenth day of the term next succeeding said suggestion, and the measures above provided to compel the appearance of such representative have not been taken within the time as above required, by the opposite party, the case shall abate; and provided, also, that the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the cause shall proceed, and be heard and determined as in other cases.

RULE 15. DEATH OF A PARTY. - DECISIONS 1-18.

1. (Feb., 1821.) In real or personal actions, at common law, the death of parties, before judgment, abates the suit, and it requires the aid of some statutory provision, like that of the thirty-first section of the Judiciary Act of 1789, ch. 20, to enable the suit to be prosecuted by or against the personal representative or heir of the deceased, where the cause of action survives. Green v. Watkins, 6 Wheat. 260.

2. In writs of error upon judgments already rendered, in personal actions, if the plaintiff in error dies before assignment of errors, the writ abates at common law; but if after assignment of errors, the defendant may join in error, and proceed to get the judgment affirmed, if not erroneous, and may then revive it against the representatives of the plaintiff. 1b.

3. But a writ of error, in personal actions, does not abate by the death of the defendant in error, whether it happen before or after errors assigned; and the personal representatives may not only be admitted voluntarily to become parties, but a scire facias may issue to compel them. Ib.

4. By the rules of this court, if either party, in real or personal actions, die, pending the writ of error, his representatives in the personalty or realty may voluntarily become parties, or may be compelled to become parties in the manner prescribed by the rule. Ib.

5. (Jan., 1829.) Where the appellee had died after the commencement of the term, and the court, not knowing his

decease, had decided upon the case, after argument, the court ordered the decree to be entered as of the first day of the term. Bank of U. S. v. Weisiger, 2 Pet. 481.

6. (Jan., 1830.) The plaintiff in error having died while the cause was held under advisement, the judgment was entered nunc pro tunc, as on the first day of this term. Clay v. Smith, 3 Pet. 411.

7. (Jan., 1836.) The death of the appellee having been suggested, and the counsel for his executor offering to enter his appearance for the executor, the court sustained a motion to dismiss the cause, as no person appeared to prosecute the suit for the appellants. Hook v. Linton, 10 Pet. 107.

8. (Jan., 1838.) Where one of three parties, plaintiffs in a writ of error, dies, after the writ of error is issued, it is not necessary to make the heirs and representatives of the deceased parties to the writ of error, as the cause of action survives to the two other plaintiffs in error. McKinney v. Carroll, 12 Pet. 66.

9. (Jan., 1843.) The administrator cannot obtain redress by application to this court, but must first be made a party in the court below. This may be done at the instance of either side. Taylor v. Savage, 1 How. 282.

10. (Jan., 1844.) Where there are two defendants, and one of them dies after the commencement of the term of the Supreme Court, judgment may be entered against both, as of a day prior to the death, nunc pro tunc. If the death shall have occurred before the commencement of the term, and the cause of action survives, judgment will be entered against the survivor, upon a suggestion on the record of the death. McNutt v. Bland, 2 How. 28, 780.

11. (Dec., 1850.) A writ of error abated, where the death of the plaintiff in error was suggested, and leave granted to make proper parties at December term, 1846, representatives not yet having been made. Phillips v. Preston, 11 How. 294.

12. (Dec., 1854.) Where the death of a party complain