
    KERRCH et al. v. UNITED STATES.
    (Circuit Court of Appeals, First Circuit.
    January 26, 1909.)
    No. 772.
    Appeal and Eebob (§ 659) — Record—Amendment.
    A plaintiff in error is not entitled to a writ of certiorari with reference to perfecting a bill of exceptions which occurred through his own fault or neglect, where application for the writ was not made until the trial court had lost jurisdiction to amend the bill under rule 17 of the Circuit Court. N. Y. & N. E. R. R. Co. v. Hyde, 56 Fed. 188, 5 C. C. A. 461, applied.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2834; Dec. Dig. § 659.*]
    In Error to the Circuit Court of the United States for the District of Massachusetts.
    On suggestion of diminution of the record and writ of certiorari.
    See, also, 171 Fed. 366.
    Harvey H. Pratt (James E. Cotter, Charles E. Smith, and John J. Coady, on the brief), for plaintiffs in error.
    Guy A. Flam, Sp. Asst. U. S. Atty., and Asa P. French, U. S. Atty.
    Before COLT and PUTNAM. Circuit Judges, and ALDRICH, District Judge.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

This comes up on a return to a writ of certiorari to the Circuit Court, based on a suggestion of diminution of the record made by the plaintiffs in error, but in substance amounting to an application for the amendment of the bill of exceptions. The return shows that a tentative bill of exceptions was filed in the Circuit Court, which contained the exception to the admission of evidence to which the present proceeding relates. Subsequently a new draft was prepared and filed, from which the matter to which this application relates was omitted. Later, at a term to which the bill of exceptions had been adjourned, in accordance with rule 17 of the Circuit Court, it was allowed. This was at the October term, 1907. In October, 1908, after the expiration of the October term, 1907, of the Circuit Court, and after the expiration of its February term, 1908, application for a writ of certiorari was made in this court, and allowed, withouFany question involved being prejudiced by the allowance so far as we are concerned. On the filing of the return by the Circuit Judge to a writ of certiorari, it appeared that the omission complained of came through the plaintiffs in error, and was in no part through any laches or fault of the Circuit Court, or of any judge thereof. It also appeared that the application to this court for the writ of certiorari was not within any period of time to which an extension had been granted, either expressly or impliedly, in accordance with rule 17 of the Circuit Court.

Under the circumstances, the question is settled against the plaintiffs in error by rule 17 of the Circuit Court and by the decision of this court in New York & New England Railroad Company v. Hyde, 56 Fed. 188, 5 C. C. A. 461, decided June 14, 1893, and by Hume v. Bowie, 148 U. S. 245, 253, 13 Sup. Ct. 582, 37 L. Ed. 438.

The suggestion of diminution of the record, made by the plaintiffs-in error, filed October 22, 1908, is dismissed as of no effect.  