Petitioners ask a writ of mandamus to compel respondent to settle a bill of exceptions in the ease of United States of America v. Hursh et al. An order to show cause was issued, and respondent appeared in oppoai *904 tion to the petition. It appears that petitioners Hursh and others were convicted of a conspiracy to defraud by use of the mails. Thereafter, within due time, petitioners presented a document of 5,000 legal size pages which they styled “Bill of Exceptions.” It was in fact a transcript of the testimony with some slight omissions, and was in no sense a bill of exceptions. Hard & Rand, Inc., et al. v. Biston Coffee Co. (C. C. A.) 41 F.(2d) 625 ; Hood v. United States (C. C. A.) 43 F.(2d) 353 ; Zurich General Accident & Liability Ins. Co., Ltd., v. Mid-Continent) Petroleum Corp. (C. C. A.) 43 F.(2d) 355 . The trial judge informed counsel when the matter came on for hearing that the document proposed would not be settled by him as a bill of exceptions, for the reason it did not conform to the rules of the court or the law with reference to bills of exceptions, particularly in that it did not reduce the testimony to narrative form. The trial court, however, gave the petitioners an opportunity to file a new or amended proposed bill of exceptions, and extended the time within which this could be done to and including the 25th day of January, 1932. Petitioners, thus admonished, presented within the time limited a new, or amended, proposed “Bill of exceptions” containing some 3,000 pages. The trial judge refused to settle this proposed bill on the ground that to do so would violate the rules of this court and of the Supreme Court, and filed a memorandum opinion stating the facts and the law as he understood them. An examination of the proposed bill, as amended, substantiates the facts as set forth in the memorandum opinion, and the trial judge was clearly correct in his view of the law. This opinion is as follows:

“Killits, Judge:

“The Court finds itself unable to accept the revision of a proffered Bill of Exceptions in this case, filed only for the Court’s consideration, January 25, last. This document of 3,073 pages, in our judgment, does not, by a very large measure, meet the requirements for condensation which are carried in Rule 8 of the Supreme Court, a rule clearly governing the trial court. We feel that to certify it as a Bill of Exceptions would plainly violate the mandate of that rule definitely expressed in the first paragraph thereof. By the Court’s grace Appellants have now had seven months — June 23, 1931 to January 25, 1932. — in which to perform the duty upon them enjoined by the rule in question, — more than ample time to satisfactorily accomplish it. Inasmuch as the proposed Revised Bill, under our order on January 9, was to be first subjected to our scrutiny to determine whether it complied with the rule which we found, January 9, upon the motion of the District Attorney, was not the 'ease with the first draft upon TYhich appellants had spent over six months, we do not feel justified in thrusting it upon the attention of counsel for appellee to perform the duty which was to be accomplished by appellants.

“The Law Governing the Trial Court.

“A brief résumé of the law is given because we are impressed with the feeling that a primary and inescapable responsibility rests upon this court to see that there is a substantial compliance by appellants with Rule 8 of the Supreme Court (28 USCA § 354), which is identical with Rule 10 of the Circuit Court of Appeals save that the former opens with this paragraph:

“ ‘The Judges of the District Courts in ' allowing Bills of Exception shall give effect to the following rules.’ Rule 8 of the Supreme Court, as well as Equity Rules (28 USCA § 723), was promulgated under the Act of Feb. 13, 1911 ( 36 Stat. 901 [28 USCA §§ 865> 866]) which applies ‘to every kind of action or suit, where review is sought in a Circuit Court of Appeals. Barber Asphalt Co. v. Standard Co., 275 U. S. 381 , 48 S. Ct. 183 , 72 L. Ed. 318 . There is no essential distinction as to effect, between Equity and Law Rules regarding Bills of Exception, the latter carrying the same provisions expressed in a more general way. See Caldwell v. U. S. (C. C. A.) 36 F.(2d) 738, 742 , certiorari denied 281 U. S. 725 , 50 S. Ct. 239 , 240, 74 L. Ed. 1143 .

“The Supreme Court and several if not all of the Circuit Courts of Appeal are becoming increasingly impatient with trial court neglect to require compliance with the letter and spirit of the rule, Patterson v. Mobile Gas. Co., 271 U. S. 131, 132 , 46 S. Ct. 445 , 70 L. Ed. 870 . This decision cited with approval Newton v. Consolidated Gas Co., 258 U. S. 165, 174 , 42 S. Ct. 264 , 66 L. Ed. 538 , wherein it was said:

Upon the argument the petitioners contended that the proposed amended or new bill of exceptions was in conformity with our rule 10, and that it could not be substantially reduced in volume without violating the requirement that, where the appellant attacks the sufficiency of the evidence to sustain the verdict, the bill must contain all of the evidence, citing Krauss Bros. Lumber Co. v. Mellon, 276 U. S. 386 , 48 S. Ct. 358, 360 , 72 L. Ed. 620 . However, the Supreme Court in that ease stated that this requirement did not conflict with the rule requiring condensation of the evidence and the statement of the same in narrative form. The court said: “By this it is not meant that the evidence shall be set forth at length in the words of the witnesses, and of the writings and documents admitted, but only that the purport and substance of all of it be included. In setting it forth, regard should be had to the requirements of paragraph 2 of Buie 4 [now rule 8] of the Buies prescribed by this court. 222 U. S. Appendix, p. 8. Lincoln v. Clafiin, 7 Wall. 132, 136 , 19 L. Ed. 106 ; Zeller’s Lessee v. Eckert, 4 How. 289, 297, 298 , 11 L. Ed. 979 .”

At the hearing petitioners expressed a willingness to conform to the views of this court in amending their proposed bill of exceptions, and apparently sought an expression of our opinion with reference to the requirement that the proposed bill of exceptions must contain all the evidence in the event that the appellant seeks a reversal on the ground that the evidence is insufficient to sustain the verdict. However, that matter has been so thoroughly settled, indeed, it is so fully explained by the very ease which petitioners rely upon as requiring so large a transcript, that petitioners must stand or fall on the record as they have made it.

Counsel for petitioners admitted’at the hearing of this matter that the evidence in the record is amply sufficient to sustain the verdict as to appellant Hursh and some other petitioners and to establish a conspiracy, and that therefore there can be no review of the evidence upon the assignment of error with reference to the failure of the court to instruct the jury to acquit as to several petitioners. He thus concedes that there is no excuse for an elaborate statement of the evidence with regard to the question of conspiracy, but he does claim on the hearing that other petitioners who are appellants are entitled to rely upon the insufficiency of the evidence to connect them with the conspiracy. It seems clear that, where appellants rely upon the insufficiency of the evidence to connect them with the admitted conspiracy, all of the evidence purporting to connect them with the conspiracy could be submitted in condensed form, and that very briefly. The attorney for the petitioners calls *910 attention to the fact as he claims that in other similar cases in which he has appeared in this court hills of exceptions of great length, prepared by him substantially as this one was prepared, have been reviewed by this court without protest, and for that reason he invokes the decision of the Supreme Court in Barber Asphalt Paving Co. v. Standard Asphalt & Rubber Co., 275 U. S. 372 , 48 S. Ct. 183 , 72 L. Ed. 318 , reversing a decision of the Circuit Court of Appeals of the Seventh Circuit, wherein that court had affirmed the decree of the lower court and refused to consider a bill of exceptions duly settled and allowed, on the ground that, notwithstanding the allowance and certification thereof as such, it was not in fact a bill of exceptions and could not be considered as such. The Supreme Court held that, inasmuch as the Circuit Court of Appeals had not previously taken that attitude, they should not without warning have affirmed the decree because of the transgression, and that, upon proper terms, it should have remitted the transcript to the District Court to the end that a further opportunity might be had to comply with the rules. The situation here is quite different. The trial judge, instead of ignoring the duty placed upon him to insist upon a condensation of the evidence in narrative form in the bill of exceptions, has insisted that the parties comply with the rules, has given them ample opportunity to do so, and has refused to settle the bill only upon their refusal to comply with the rules of the court and the order's of the trial judge in relation thereto. Counsel has sgen fit to stand upon his view of the law and ignore the correct ruling of the trial judge, and is now in no position to contend that further opportunity should be given him to do that which he has knowingly failed and refused to do, namely, to submit bill of exceptions prepared in conformity with the rules of this court.

Petition dismissed.