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Rule 22. — Order of Argument.

The plaintiff or appellant in this court shall be entitled to open and conclude the case. But when there are cross-appeals they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argument.

Rule 23. — Interest.

1. In cases where a writ of error is prosecuted to this court, and the judgment of the inferior court is affirmed, the interest shall be calculated and levied from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest in the courts of the state where such judgment is rendered.

2. In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of ten per cent, in addition to interest, shall be awarded upon the amount of the judgment.

3. The same rule shall be applied to decrees for the payment of money in cases of chancery, unless otherwise ordered by this court.

RULE 23. INTEREST. — DECISIONS 1-29.

1. (Feb., 1797.) The interest to the present day must run upon the debt only, and not on the damages. Jennings v. Brig Perseverance, 3 Dall. 338.

2. (Feb., 1797.) Interest is to be calculated to the present time upon the aggregate sum of principal and interest in the judgment below, but no further. We cannot extend the calculation to June term next, when the mandate will operate in the Circuit Court, as the party has a right to pay the money immediately. Brown v. Van Braam, 3 Dall. 356.

1 Interest not allowed in admiralty, unless specially directed by the court. – (20 How. 255.)

3. (Dec., 1852.) The sixty-second rule of this court (13 How.) is as follows: “In cases where a writ of error is prosecuted to the Supreme Court, and the judgment of the inferior court is affirmed, the interest shall be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest in the courts of the state where such judgment is rendered. The same rule shall be applied to decrees for the payment of money in cases in chancery, unless otherwise ordered by this court. This rule to take effect on the first day of December term, 1852.” Perkins v. Fourniquet, 14 How. 328.

4. Before this rule, interest was to be calculated at six per cent from the date of the judgment in the Circuit Court to the day of affirmance here; and the confirmation of the report of the clerk, in the case of Mitchell v. Harmony (13 How. 149) was under the rules then existing. 16.

5. So, also, where a case from Mississippi was affirmed at December term, 1851, the mandate from this court should have been construed to allow interest at six per cent from the date of the decree in the court below to the date of the affirmance in this court. Therefore it was erroneous to allow six per cent until paid, or to allow the current rate of interest in Mississippi, in addition to the six per cent allowed by this court. 16.

6. The several rules upon this subject examined and explained. 16.

7. (Dec., 1854.) Interest, not being specially claimed, cannot be computed, for it is considered as a part of the damages, being merged in that claim, and is not estimated as a distinct item. Olney v. Steamship Falcon, 17 How. 19.

8. (Dec., 1857.) Where a judgment of the Circuit Court sitting in admiralty was affirmed here, by a divided court, interest was not to be calculated upon the judgment. Hemmenway v. Fisher, 20 How. 255.

9. The eighteenth rule 1 of this court never applied to cases in admiralty which are brought up by appeal; and the rule itself is repealed by the sixty-second rule. Ib.

10. (Oct., 1879.) Where, in a suit alleging the infringement of the complainant's letters-patent, and praying an account of profits, a decree, passed in his favor for a certain sum, was on appeal affirmed here, with “interest until paid, at the same rate per annum that similar decrees bear in the courts of the state," and that rate on money decrees is six per cent, Held, that the decree so affirmed bears interest at that rate. Railroad Co. v. Turrill, 11 Otto, 836.

DELAY - DAMAGES.

11. (Aug., 1796.) Where a judgment or decree is affirmed on a writ of error, there can be no allowance of damages, but for the delay. Cotton v. Wallace, 3 Dall. 304.

12. (Feb., 1797.) Du Ponceau prayed an increase of damages for the delay occasioned by bringing this writ of error, contending that, under the twenty-third section of the judicial act, damages for delay were peremptorily prescribed, and that the discretion of the court only went to the award of single or double costs. BY THE COURT: The decree must be affirmed without an increase of damages. Jennings v. Brig Perseverance, 3 Dall. 337, 338.

13. (Jan., 1838.) The Court refused to allow ten per centum per annum, interest, as damages for suing out the writ of error, in this case, on the amount of the judgment in the Circuit Court, under the seventeenth rule of the court. The case was not considered as one where the writ of error was sued out merely for delay. M'Niel v. Holbrook, 12 Pet. 84.

14. (Dec., 1851.) Where the only exceptions taken in the

1 (See rules, ed. of 1852. Rule 18 allowed six per cent interest. Rule 62 allowed interest at the same rate that similar judgments bear in the courts of the states where such judgments are rendered.)

court below were to the refusals of the court to continue the case to the next term; and it appears that the continuance asked for below, and the suing out the writ of error, were only for the purpose of delaying the payment of a just debt, and no counsel appeared in this court on that side, the seventeenth rule will be applied, and the judgment of the court below be affirmed, with ten per cent damages. Barrow v. Hill, 13 How. 54.

15. (Dec., 1839.) Where no question was raised, upon the trial of the case in the court below, for the consideration of this court, nor did the plaintiff in error, by counsel or otherwise, make one here, the judgment will be affirmed, with costs, and interest at the rate of ten per cent per annum. Kilbourne v. State Savings Institution, 22 How. 503.

16. (Dec., 1859.) Where parties were sued on a promissory note executed by them, did not pretend to have any defence, entered a false plea, which was overruled on demurrer, refused to plead in bar, and had judgment entered against them, for want of a plea, this court will affirm the judgment, with ten per cent damages. Sutton v. Bancroft, 23 How. 320.

17. (Dec., 1859.) Where a case is brought up to this court, and the writ of error appears to have been sued out for delay, the judgment will be affirmed, with costs, and ten per cent damages. Jenkins v. Banning, 23 How. 455.

18. (Dec., 1865.) The court reproves counsel who take appeals without any expectation of reversal; and declares that if it had power to impose a penalty in such cases, as it has when writs of error are sued out for delay merely, it would impose it. The Douro, 3 Wall. 564.

19. (Dec., 1867.) A judgment affirmed under Rule 23 of the court, with ten per cent damages, it appearing, from the character of the pleadings, that the writ of error must have been taken only for delay. Prentice v. Pickersgill, 6 Wall. 511.

20. (Dec., 1869.) A writ of error which, if sued out after

certain decisions announced, might be regarded as sued out merely for delay, and be followed by an affirmance of the judgment below, with damages at the rate of ten per cent per annum on the amount of the judgment, as provided for by the twenty-third rule of court, will not be so regarded, nor the suing out of it so punished, in a case where the principle which it sought to establish had not been adjudged by this court and the judgment announced, but as yet was seriously controverted. McKee v. Rains, 10 Wall. 22.

21. (Dec., 1870.) Judgment affirmed with ten per cent damages, where a party brought a writ of error here, denying such points as those above stated. [See the previous notes in the syllabus.] Campbell v. Wilcox, 10 Wall. 421.

22. (Dec., 1870.) Judgment affirmed under Rule 23, with ten per cent damages in addition to interest; the court believing that the writ of error had been brought for delay. Insurance Co. v. Huchbergers, 12 Wall. 164.

23. (Dec., 1870.) A judgment affirmed, with ten per cent damages, in addition to interest, under the twenty-third rule of court. Hennessy v. Sheldon, 12 Wall. 440.

24. (Dec., 1872.) Judgment affirmed, with ten per cent damages, in a case brought here in disregard of the law as already settled by precedents of the court. Pennywit v. Eaton, 15 Wall. 382.

25. (Oct., 1873.) A party alleging that the stamp on a deed was too small (he being, by the law of the State where the deed was made, obliged to put on the stamps), who brought such a question here, delaying the judgment below for two years and a half, punished under the twenty-third rule, by a judgment of ten per cent damages, in addition to interest and costs. Hall v. Jordan, 19 Wall. 271.

26. (Oct., 1875.) The court will not hesitate to exercise its power to adjudge damages, where it finds that its jurisdiction has been invoked merely to gain time. Amory y. Amory, 1 Otto, 356.

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