On September 4, 1916, counsel for the applicant asked a reopening of the case. With this application to reopen were presented several affidavits, including one by Chung Leong, wherein he stated substantially that at his examination before the inspector certain mistakes. through misunderstanding had been made by him. He set forth the particular parts which he desired to set straight in his testimony. The commissioner at San Francisco granted application to reopen the case, but wrote that the reopening would be "for the introducing of a supplementary report by the examining inspector as to the demeanor of the witnesses, and for a statement as to whether or not said witnesses had been previously discredited before this office. In so doing, such supplementary report, together with the affidavits which accompanied your letter first above mentioned will be considered by this office, and a new decision rendered." The inspector made a supplementary report, stating that none of the witnesses had been discredited by the immigration office to his knowledge; that the demeanor of the applicant was good, as she answered all questions without hesitation; and that the demeanor of the alleged husband was not as good. The inspector added, "The applicant has to my mind every appearance of respectability." No new oral hearing was had, but the commissioner stated that, "after full hearing and careful consideration of all the evidence submitted and adduced," the existence of the relationship claimed by Mah Shee to Chung Leong was not established to his satisfaction, and the application was denied. Notice of appeal was given September 15, 1916, and copy of the testimony was furnished counsel for Mah Shee. Counsel in communication to the commissioner at San Francisco requested opportunity to read the report of the law officer which had been made the basis of the first excluding decision. This request, however, was denied on September 19th. On September 20th counsel for the applicant acknowledged the receipt of the letter of the commissioner at San Francisco denying their application to have the review of the law section opened to their inspection, and wrote: "We now request an interview with this applicant with her husband as a basis for the introduction of further evidence in support of her appeal.” On September 25th the acting commissioner answered this letter in this way: You are advised that the request contained therein that you as counsel and the applicant's alleged husband be permitted to interview the applicant as a basis for the introduction of further evidence in support of her appeal must be denied as there is no authority in either the law or regulations for such a procedure." Two days afterwards counsel for Mah Shee again wrote to the commissioner asking permission for Chung Leong, as husband of Mah Shee, to see, talk to, and confer with and comfort his wife who had been held "incommunicado" and away from her husband since her arrival. On September 27th, this request was denied on the ground that the case was still pending before the department. In time appeal to the Secretary of Labor was perfected. Counsel appearing in Washington were notified that the case was "ready for inspection" and briefs could be filed. Counsel filed brief and made oral argument, but the appellant was ordered deported. Chung Leong, as husband, on his own behalf and on behalf of Mah Shee, alleged to be his wife, applied for writ of habeas corpus, and the immigration record of Mah Shee was filed with the District Court upon the hearing of the demurrer. The District Court sustained the demurrer and this appeal issued. Mah Shee, through her counsel, urges these points: First, that the evidence presented was so conclusive in its character that it was an abuse of discretion to refuse to be guided by it; second, that the hearing was not fair, in that the right of counsel was so curtailed as to negative its value to the alien, and thus she was deprived of the right to submit evidence and properly to defend herself. [1, 2] We find it unnecessary to quote the testimony taken. But the point that the evidence was of such a conclusive character that the District Court abused its discretion in refusing to grant the writ is answered by the fact that there were serious discrepancies between the testimony given by Chung Leong, December 9, 1914, when he applied for a native's return certificate, and that given by him in the present matter. For example, prior to his departure for China on December 9, 1914, he said that he married in 1894, and that his wife was then living in China; but a day afterwards, in a letter filed with the immigration officers, and which he asked to have made a part of his case, he said that she had died in November or December, 1913, and upon this hearing he said that she had died in "7th month of CR 2," or December, 1913. There were other inconsistencies, but those mentioned are sufficient to refute the contention that the evidence to support the application of Mah Shee was of such indisputable character that but one fair conclusion could be gathered from it. In weighing the evidence the immigration officer may well have believed that a man who made such radically different statements concerning his wife was not credible in his statement that he had married the woman he says he married in Hong Kong. The fact that the inspector who heard the testimony believed that the man was married to Mah Shee is worthy of every consideration. But the right of the commissioner and Secretary to decide an appeal on its merits is not to be questioned. Tang Tun v. Edsell, 223 U. S. 673, 32 Sup. Ct. 359, 56 L. Ed. 606. [3] Nor can we hold that, because applicant was kept apart from Chung Leong and was not allowed to communicate with him, the proceeding was manifestly unfair. The sole question to be decided was whether there existed the relationship of husband and wife, and we think that until the administrative authorities could finally answer that question there was no injustice in denying communication between those directly involved in order to prevent opportunities for preparation of harmonizing statements. [4] But the more important point is: Was the applicant deprived of the right to submit evidence and to defend herself? Rule 5 of the Rules of the Department of Labor, Bureau of Immigration, governing the admission of Chinese, after providing that notice shall be given to a Chinese applicant, adjudged to be inadmissible, of his right to appeal, reads as follows: "(b) Applicant's counsel shall be permitted, after notice of appeal has been duly filed, to examine the record upon which the excluding decision is based, and may be loaned a copy of the transcript of testimony contained therein. If there is a consular officer of China at the port where examination is held, he also shall be notified in writing that the said Chinese applicant has been refused a landing, and shall be permitted to examine the record. The word 'record' as used in this paragraph shall not be construed to include memoranda of comment or letters of transmittal unless they contain evidence additional to that in the record proper. "(c) The notice of appeal shall act as a stay upon the disposal of the applicant until a final decision is rendered by the Secretary of Labor; and, within ten days after the excluding decision is rendered, unless further delay is required to investigate and report upon new evidence, the complete record of the case, together with such briefs, affidavits and statements as are to be considered in connection therewith, shall be forwarded to the Secretary of Labor by the officer in charge at the port of arrival, accompanied by his views thereon in writing. If, on appeal, evidence in addition to that brought out at the hearing is submitted, it shall be made the subject of prompt investigation by the officer in charge and be accompanied by his report." Section (c) of this rule contemplates the possibility of the submission of evidence in addition to that which has been brought out at the hearing. The procedure would seem to be this: After the notice of appeal has been filed in behalf of the applicant, then counsel for the applicant must be permitted to inspect the record as defined, and to read the testimony which has been taken. If new evidence has been discovered favorable to the applicant, or if evidence in addition to that which has been brought out at the hearing is in her possession, or in the possession of her counsel, she may present or submit the same for consideration to the Secretary of Labor. Now, it being her right to submit such additional or further evidence, the applicant is in no position to avail herself of its benefit, unless she can communicate with her counsel, who have read the testimony contained in the record of exclusion, to the end that by affidavit or supplementary statement she may set forth the new or additional evidence upon which she may rely. To hold that a Chinese woman should herself make the showing would be absurd, and, moreover, every rule of fair procedure would indicate that the presentation of such new evidence to be considered on appeal, may be by the applicant's counsel. We therefore think that, when counsel for Mah Shee requested an interview with the applicant as a basis for the introduction of further evidence in support of her appeal, they but asked for an opportunity whereby she might be able to avail herself of a right recognized by the regulations as belonging to her, and that denial of the request so made deprived her of a fair, though summary, hearing according to the law and the regulations of the department. We will add that, if the refusal of the immigration officers had been limited only to that part of the request which contemplated the presence of Chung Leong at the interview asked for, we do not see that injustice would have been done. The order of the District Court is set aside, and the cause is remanded, with directions to overrule the demurrer. WILLIAMSON v. ELECTRIC SERVICE SUPPLIES CO. No. 2235. APPEAL AND ERROR 239, 719(10)—RESERVATION OF GROUNDS OF REVIEWASSIGNMENTS OF ERROR. The Circuit Court of Appeals will not consider a question as to the costs which may be charged by the clerk of the District Court for certifying a record on appeal, where no costs were taxed in the District Court, there was no request to tax them, and no motion or decision is disclosed, and there is no assignment of error raising the question, which is presented only by an informal oral complaint at the bar. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2979. 2982, 3490.] Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Suit in equity by James E. Williamson against the Electric Service Supplies Company. From a decree (236 Fed. 353) dismissing the bill, plaintiff appeals. Affirmed. J. F. Shrader, of Philadelphia, Pa. (John H. Roney, of Pittsburgh, Pa., of counsel), for appellant. Charles N. Butler, of Philadelphia, Pa., for appellee. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges. PER CURIAM. We adopt as the opinion of this court what Judge Thompson has so well said in dismissing the bill. 236 Fed. 353. The appellant seeks to raise a separate question to this effect: What costs may be charged by the clerk of a District Court for certifying a record on appeal that has been printed, not by himself, but by the appellant? On this subject a difference of opinion exists between the Eastern and the Western districts. In the Eastern district, 15 cents per folio is regarded as proper (Sarfert Co. v. Chipman [D. C.] 205 Fed. 937); while in the Western district a total charge of 50 cents only is allowed, as will appear by the unreported opinion (quoted in the margin)1 delivered in January, 1915. 1 Solomon v. American, etc., Ins. Ass'n, No. 433, November Term, 1911. "Thomson, District Judge. From the judgment entered on the verdict against the defendant in the above-entitled case, the defendant appealed to the Circuit Court of Appeals. The company then presented its petition to this court, setting forth that the clerk of the United States District Court for this district had presented to petitioner a bill for services in connection with the record on the appeal amounting to $86.90. The petitioner averred that there is no provision in the law authorizing the charges in said bill and praying the court's ruling thereon. Respondent answered that each of the charges in said bill was properly made under section 828 of the Revised Statutes of the United States (U. S. Comp. St. 1916, § 1383); that the first charge of $86.40 was the clerk's services for examining, comparing, and certifying 576 pages of the printed record in said case, on the removal thereof to the Circuit Court of Appeals; that the second charge of 30 cents was for services in certifying to the said 576 pages as being a true and correct copy of said record, pursuant Uniformity of practice on this subject is no doubt to be desired, but for the present we do not see our way to assist in reaching this result. On the record now before us the question has nowhere been raised, either in the District Court or here. Indeed, there is not a word in to paragraph 8 of section 828 of the Revised Statutes; and that the third item of 20 cents was for attaching the seal of the court to the record. "Prior to the passage of the act of Congress of February 13, 1911 (36 Stat. 901, c. 47 [Comp. St. 1916, §§ 1656, 1657]), the charges to which the clerk of a Circuit or District Court was entitled was a matter upon which the courts differed. That portion of section 828 of the Revised Statutes, relating to the fees in question, is as follows: 'For entering any return, rule, order, continuance, judgment, decree, or recognizance, or drawing any bond, or making any record, certificate, return, or report, for each folio, fifteen cents.' 'For a copy of any entry or record, or of any paper on file, for each folio, ten cents.' 'For affixing the seal of the court to any instrument, when required, twenty cents.' In Cavender v. Cavender (C. C.) 10 Fed. 828, the judge held that the transcript of the record on appeal, or writ of error, was only a copy, and that the clerk was only entitled to receive 10 cents a folio. In McIlwaine v. Ellington, (C. C.) 99 Fed. 133 it was held that the copy of the record of the trial court to be used in the Circuit Court of Appeals is a record for which the clerk is entitled to receive 15 cents a folio. In Mohrstadt v. Mutual Life Ins. Co. (C. C.) 145 Fed. 751, it was held that the making of the transcript was a ‘return' within the meaning of the statutes; while Judge Archbald, in Hoysradt v. Del., L. & W. R. R. Co. (C. C.) 182 Fed. 880, held the making and certifying of the transcript required was making a record within the meaning of the statute, entitling the clerk to 15 cents a folio. "The question to be determined here is as to the effect of the act of Congress of February 13, 1911, assuming that under the former act the clerk was entitled to 10 or 15 cents per folio for making and certifying a transcript of a record on appeal. Bearing strongly on this question is the case of Rainey v. Grace & Co., 231 U. S. 703, 34 Sup. Ct. 242, 58 L. Ed. 445, which was decided on January 5, 1914. The court was there called upon to determine what fees the clerk of the Circuit Court of Appeals was entitled to on an appeal from the District Court since the passage of the act of 1911. In construing that act the court considered the prior statutes on the subject. On February 19, 1897, Congress passed an act (Act Feb. 19, 1897, c. 263, 29 Stat. 536 [Comp. St. 1916, § 1376]) amending the Circuit Court of Appeals Act of March 3, 1891 (26 Stat. 826, c. 517, § 2), in substance, that the costs and fees in the Circuit Court of Appeals should be fixed by that court in a table of fees, provided that the costs and fees so fixed shall not, with respect to any item, exceed the costs and fees now charged in the Supreme Court; that the table of fees so fixed by the several Circuit Courts of Appeals should be transmitted to the Chief Justice of the United States, and that the Supreme Court should revise the same, making the same so far as possible uniform throughout the United States; and that such revised table of fees shall thereupon be in force in each circuit. On February 28, 1898, the Supreme Court by order (169 U. S. 740) fixed a table of fees and costs in the Circuit Courts of Appeals, one paragraph thereof providing as follows: Preparing the record for the printer, indexing the same, supervising the printing and distributing the copies, for each printed page of the record and index, $0.25.' "The court states that before the passage of the act of 1911 the clerk of the District Court or Circuit Court charged for a transcript of the record in preparing the case for review in the Circuit Court of Appeals, which was generally written or typewritten, the fee for such service being fixed by section 828 of the Revised Statutes, and that the printing was done under the supervision of the clerk of the Circuit Court of Appeals, after the allowance of the appeal or writ of error; that the act of 1911, entitled 'An act to diminish the expense of proceedings on appeal, or writ of error, or certiorari,' had for its main purpose the reduction of the expense of records upon which cases may be taken to, and considered by, the Circuit Court of Appeals and the Supreme Court; that this was to be accomplished by dispensing with a written or type |