That the papers filed show no allowance of an appeal. 3. That the papers do not show any citation to, or any service of citation upon the appellee.

The papers filed consist of a mass of separate loose papers, no one of which is certified to be either a copy or the original of any document on file in the Court below. Some would

seem to be original documents, but they bear no marks or endorsements showing that they were ever filed in the Consular Court; others may be copies, but they are not certified to be copies of any part of the papers, records, or proceedings of the Consular Court. The papers, so far as authentication is concerned, might just as well have been brought here and filed by any resident of Japan without ever having been in any Court whatever. There is a personal letter, separate from the other papers, from the Consul addressed to the Judge of this Court, stating that he has transmitted a matter of appeal to this Court. It would, certainly, be very unsafe, even if there was no statute upon the subject, for the Court to assume jurisdiction and act upon such papers, or such a record. But the statute prescribes what the record transmitted shall be; and that is "a transcript of the libel, bill, answer, depositions and all other proceedings in the case."

This transcript should be a copy in chronological order of all the proceedings in the case from the beginning to the end, as a single document, and this should be certified at the end. as being a full, true and correct copy of the pleadings, depositions and all other proceedings in the case; and that the same constitute the transcript on appeal to the Circuit Court; and it should be authenticated by the official signature and seal of the Consul. The papers used in the Court below should remain there as parts of the record of that Court. The record should, also, show an allowance of the appeal; and where the appeal is not taken in open court, at the time of the rendition of the judgment or decree, and before adjournment of the court, the record should' show a citation to the appellee, and due service thereof to appear in this Court. See Steamer Spark vs. Lee Cho Chum, I Sawyer's Reports, 713

In that case, upon this point it said: "It is objected that the record shows no order allowing the appeal, and no citation to the appellees. The section cited, it will be seen, provides that appeals shall be subject to the rules, regulations and restrictions prescribed in law for writs of error from District Courts of the United States.'

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upon a

"The twenty-second section of the judiciary act of 1789, provides, that final decrees and judgments of the District Courts in civil actions, may be re-examined, and reversed or affirmed in a Circuit Court writ of error, whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, assignment of errors and prayer for reversal, with a citation to the adverse party, signed by the Judge of such District Court, or a Justice of the Supreme Court, the adverse party having at least twenty days' notice.' (1 U. S. Stat. at L., 84.) The same section has a similar provision for writs of error from the Supreme to the Circuit Court to review the judgments and decrees of the latter. And the twenty-fifth section has provisions in similar language for reviewing the decisions of the highest State Courts in certain cases by the Supreme Court of the United States. The construction of these latter provisions, and consequently the construction of the similar provisions relative to writs of error from the Circuit to the District Courts has been settled by the Supreme Court of the United States. Thus in the very late case of Gleason vs. Florida (9 Wal. 783), the Supreme Court say: 'But on looking into the record, we find no allowance of the writ. And this has been repeatedly held to be essential to the exercise by this Court of reviewing jurisdiction over final judgments or decrees by the Courts of the States.' So, in Hartford Fire Insurance Co. vs. Van Duzer, the writ was dismissed because no allowance of the writ appeared in the record, the Chief Justice delivering the opinion of the Court, 'that such allowance was indispensible to the jurisdiction of the Court in error to review the judgment of the highest Court of the State.' (9 Wall, 784.) So, an appeal from the Supreme Court of the District of Columbia was

dismissed by the Supreme Court of the United States, because there was no evidence in the record of any a allowance of appeal, and without an allowance this Court cannot acquire jurisdiction.' (Pierce vs. Cox, 9 Wall, 787; see, also, Edmonson vs. Bloomshire, 7 Wall, 312. This settles the construction of the Act of Congress relating to writs of error, and appeals from the United States District Courts, and as the same rules and regulations are made applicable to appeals from the Consular Courts of China and Japan, it settles the point in this case. The record shows no allowance of an appeal, and no citation, the latter being necessary, also, if the order allowing an appeal is not made in open Court. This is implied, at least, from the case of Pierce vs. Cox (supra), if a citation is not waived by appearance of the appellee. And it is expressly required by the proviseons of the statute quoted.

"It is claimed, also, that this appeal, if taken at all, must have been taken out of Court, as the petition for an appeal bears date several days after the date of the judgment ; and it is claimed that there are no terms in the Consular Court, under the statute, and that as soon as judgment is entered, and the Court for that occasion has adjourned, it is no longer an open Court with reference to that case, and all subsequent allowances of appeals, must, necessarily be made out of Court, with respect to that case. Numerous authorities are cited to the point, but it is unnecessary now to determine it, upon the view taken, upon other objections. It will be the safer practice to issue and serve a citation."

I regret the necessity of dismissing the appeal in a case brought so far, but there is no record here upon which the Court can take jurisdiction.

Appeal dismissed with costs.

United States Supreme Court.

[October Term, 1877.]

LITTLE YORK GOLD WASHING AND WATER CO., (Limited), et al., Plaintiff's in Error,

VS.

JAMES H. KEYES.

In error to the Circuit Court of the United States for the District of California.

REMOVAL OF CAUSES.--CONSTRUCTION OF THE ACT OF MARCH 3d, 1875.-Before a Circuit Court can be required to retain a cause under the jurisdiction conferred by the Act of 1875, for the removal of causes from State Courts it must in some form appear upon the record by a statement of facts in legal and logical form such as is required in good pleadings that the suit is one which really and substantially involves a dispute or controversy as to a right which depends upon the construction or effect of the Constitution or some law or treaty of the United States The record in this case is insufficient.

Mr. Chief Justice WAITE delivered the opinion of the Court.

This was a suit in the nature of a bill in equity, commenced July 29, 1876, in a state court of California, by Keyes, the defendant in error, and the owner of certain agricultural lands situated on Bear river, against the plaintiffs in error, who were engaged in hydraulic mining upon the highlands adjacent to that river and its tributaries, to restrain them from depositing the tailings and debris from their several mines in the channel of the river. The defendants demurred to the complaint, and, before the term at which the cause could be first tried, filed their.petition, accompanied by the necessary bond, for the removal of the suit to the Circuit Court of the United States for the District of California, under the provisions of the act of March 3, 1875-(18 Stat. 470.) The material parts of the petition, which was otherwise in due form, are as follows:

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"Your petitioners further represent that they are gold-bearing placer mines situated in the counties of Placer and Nevada, in said State of California, which they claim under the laws of the United States, and engaged in working the same by what is known as the hydraulic process of mining; that said hydraulic process necessarily requires the employment of large heads or streams of water, used through pipes or hose, under heavy pressure, for the purpose of loosening or washing the gold-bearing earth and gravel contained in said mining claims, into large flumes, where the gold is separated from the earth by the action of the water, and is retained. That the gold in said claim are distributed in very fine particles throughout the entire gravel deposit, and cannot be obtained in any other manner, nor can said mining claims of your petitioners be worked in any other manner save by said hydraulic process ; that in working said mines your petitioners necessarily deposit in the channels of Bear river and its tributaries large quantities of tailings from said mines; that the said Bear river and its tributaries are the natural and only outlets for said hydraulic gold mines, and your petitioners claim the right to work, use, and operate said mines, and in so doing to use the channels of Bear river and its tributaries as a place of deposit for their said tailings, under the provisions of the act of Congres of the United States, entitled 'An act granting the right of way to ditch and canal owners over public lands, and for other purposes,' passed July 26th,, 1866, and the act amendatory thereof, passed July 9th, 1870, and the 'Act to promote the development of the mining resources of the United States passed May 10th, 1872, and other laws of the United States

"That said action arises under, and that its determination will necessarily involve and require the construction of the laws of the United States above mentioned, as well as the preemption laws of the United States. That the mines of your petitioners are of great value, to wit, of an aggregate value of not less than ten millions of dollars; and that if your petitioners are prevented from using said channels of Bear river and its tributaries as outlets for their said tailings and water, their said mines will be thereby rendered wholly valueless."