I mi (5ornf U ICam ^i\\xxxs\ Hihrarg KF 9056.42° T884""'"''">' ""'''v * L ^ ^^^'^ 020 1 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020126201 GENERAL RULES 0» THB SUPREME COUET OF THE UNITED STATES REVISED, COEEECTED AND ADOPTED jAirrrAET 7th, 1884; ANNOTATED AKD WITH A HISTORY OF EACH RULE FROM THE ORGANIZATION OF THE COURT. ALSO tHE ETTLES OF PHACTICB ADOPTED BY THB SUPREME COURT FOB THE CIKCIIIT AND DISTRICT COURTS OF THE UNITED STATES IN EQUITY AND ADMIRALTY CASES, ORDERS OF THE SUPREME COURT IN REFERENCE TO APPEALS FROM THE COURT OF CLAIMS, THB RULES OF THB COURT OF CLAIMS, THB RULES OF THB SUPREME COURT OF THE DISTRICT OF COLUMBIA, THB RULES OF PRACTICE IN AT.T, THE CIRCUIT AND DISTRICT COURTS IN THB SECOND CIR- CUIT, AND TABLES OF STATISTICS RBSPECTINO THE JUDQES, CLERKS, TERRITORIAL JURIS- DICTION, TERMS OP COURT, ETC., OP ALL THE FEDERAL COURTS IN THE UNITED STATES. EDITED BY SAMUEL A. BLATOHPOED or THB NSW YOBS BAB NEW YORK AND ALBANY BANKS & BEOTHEES, LAW PUBLISHEES 1884 eiuyi Entered accordiag to Act of Congress, in tlie year 1884, by BANKS & BROTHEBS, In the Office of the Librarian of Congress, at Wasliington. Press of J. J. Little & Co., Nos. lo to 20 Aster Place, New York. PREFACE, It was my expectation when, at the request of Messrs. Banks & Brothers, I undertook to edit this volume, that my labors would be confined to the task of annotating and prepar- ing for publication the General Rules of the Supreme Court of the "United States, and that in this task I would be assisted by Me. Gheeaedi Davis, of the New York Bar. To Me. Davis I am indebted for much valuable aid in the preparation for the annotations, but, to my extreme regret, his engagements were such that he was compelled to relinquish, early in the work, his share of the task, and the completion of the work has, therefore, fallen upon me alone. For this reason the publication of this volume has been con- siderably delayed, and also because it was deemed well to in- clude herein, without annotation, the Rules, other than the General Rules of the Supreme Court of the United States, which now appear herein, as likely to be useful to the profes- sion, when collected together in one volume. It has also been deemed useful to add Tables of Statistics, respecting the Judges, the Clerks, the Territorial Jurisdiction of the Courts, and the Terms of Courts, etc., of the various Courts whose Rules are included in this volume, and of aU the Circuit, District, and Territorial Courts of the United States. I have endeavored to be as accurate as possible in these Statis- tics, but as changes are frequently made in the Judges, Clerks, and Terms of Courts, some errors may have crept in. I can only ask the kind indulgence of the legal profession for such errors as may be discovered, and wiU deem it a kindness if the errors are pointed out to me. In annotating the General Rules of the Supreme Court of the United States, I have endeavored to cite all the leading authorities of that Court relating thereto, from the time of the iv PREFACE. adoption of the first four Original General Eules, given in 2 Dallas, 399, at February Term, 1790, when the Court first met at New York, the then seat of the Federal Government, to the present time. I have deemed it best to cite such cases only as appear in the recognized ofiScial Eeports, viz. : in Dallas, Cranch, Wheaton, Peters, Howard, Black, "Wallace, and the United States Eeports. I have included all- the cases relating to the General Eules, which appeared in the pamphlet num- bers of 111 U. S. Eeports, but those cases which were in Part 5 of that volume appeared too late for insertion under the Eules, and are, therefore, merely referred to, and their proper places pointed out, in the Memobandtjm of Additions and Cob- EECTioNs inserted in the front of the volume. Under the History of each Clause of every Eule, the Orig- inal General Eules are referred to by the paging in the original editions of the various volumes of Eeports in which they occur. This paging coincides with the paging in Banks & Brothers' reprint of those Eeports, except in reference to the paging in 1 Howard. In Banks & Brothers' reprint of that volume, the General Eules of the Supreme Court of the United States which were printed in the edition published at Philadelphia, by T. & J. "W. Johnson, in 1843, were not reprinted, and the references made in this volume to Eules in 1 Howard, are to the edition of 1843 above referred to. In regard to the General Eules of the Supreme Court of the United States, it may be of interest to state, that before any revision of those Eules was made by that Court, the Eules as adopted from time to time were published in the various official Eeports from 1 Dallas to 20 Howard inclusive. In 1 Cranch and 1 Peters the loose individual Original General Eules, as adopted from time to time, up to the time of the pub- lication of each volume of those Eeports, were collected by theEeporterand printed. So, too, in 1 Howard the loose indi- vidual Original General Eules, 49 in all, as adopted at different times from 1790 to 1843, are collected by the Eeporter in a body and printed. No revision of the General Eules was ever made by the Supreme Court till December Term, 1858, when all the Eules were revised in a body forming 29 Eules, and, as revised, are printed in 21 Howard. After this revision the va- PREFACE. V rious volumes of the Keports contain new General Kules, adopted from time to time, and amendments to the General Eules as last revised, but no further revision of the General Eules was made by the Supreme Court until May 1st, 1881, when the General Rules were again revised, and a new body of Eules, 29 in number, was adopted. These Eules are in the minutes of the Court, but are not printed in fuU, as a body, in any volume of the Eeports. I have been enabled, through the kindness of Me. James H. McKenney, Clerk of the Supreme Court, to make use of a printed copy of the General Eules of this Eevision, which was in use by him as Clerk, in prepar- ing references to this Eevision under the History of each Clause of the General Eules. Since this Eevision of May 1st, 1881, various new Eules and amendments have been promul- gated, and wiU be found in the various volumes of Eeports prior to 108 U. S., but there has been no other Eevision until the present one of January 7th, 1884, when a new body of General Eules, 33 in number, was adopted, which are printed in 108 U.S. If this volume, in its contents and arrangement, shall be deemed in any degree useful by the legal profession, I shall feel that my time and labor have not been bestowed in vain. SAMUEL A. BLATCHFOED. New York, July, 1884. GENERAL TABLE OF CONTENTS. Page Special Table of Contents of the General Eules of the Su- preme Court of the United States . . . xiii Table of Indexes ..... xxv Table of Oases, comprising the authorities collected under the General Eules of the Supreme Court of the United States ...... xxvii Memorandum of Additions and Corrections . . Ixv General Eules of the Supreme Court of the United States, adopted January Yth, 1884, annotated . . 1 Appendix ...... 241 I. Federal Statutes relating to Appeals from the Court of Claims .... 244 Eegulations of the Supreme Court relating to Ap- peals from the Court of Claims . . 245 II. Table of Judges and Officers, etc., of the Court of Claims ...... 248 Federal Statutes relating to the Court of Claims 249 Eules of the Court of Claims . . . 277 III. Federal Statutes especially relating to the power of the Supreme Court to regulate the Prac- tice to be used in suits in Equity, by the Cir- cuit and District Courts of the United States 296 Eules of Practice adopted by the Supreme Court of the United States for the Courts of Equity of the United States .... 297 viLi GENERAL TABLE OF CONTENTS. Pagb rV. Federal Statutes especially relating to the power of the Supreme Court to regulate the Practice to be used in Admiralty and Maritime Cases, by the Circuit and District Courts of the United States ..... 330 Kules of Practice adopted by the Supreme Court of the United States, in Admiralty and Mari- time Jurisdiction, on the Instance side of the Court . . . . . .331 V. Federal Statutes relating generally to the Prac- tice in the Circuit and District Courts, and their power to make Rules . . . 353 Federal Statutes relating generally to the Fees of Attorneys, Solicitors, Proctors, etc., etc., in the Courts of the United States . . 357 General statutory provisions relating to the Sec- ond Judicial Circuit .... 373 Jurisdiction of the Circuit and District Courts of the United States embraced within the Second Judicial Circuit .... 375 Federal Statutes relating generally to the ses- sions of the Circuit and District Courts of the United States and apphcable to the Second Judicial Circuit .... 377 VI. Table of Judges and OflBcers, etc., of the Circuit Court of the United States for the Southern District of New York . . . 392 Rules of the Circuit Court of the United States for the Southern District of New York — Common Law Rules ..... 395 Rules of the Circuit Court of the United States for the Southern District of New York — Equity Rules ..... 417 Rules of the Circuit Court of the United States for the Southern District of New York — ^Rules on Appeals • • . . . 419 Rules of the Circuit Court of the United States for the Southern District of New York — Miscel- laneous Rules ..... 423 GENERAL TABLE OF CONTENTS. ix Faqx YII. Table of Judge and Officers, etc., of the District Court of the United States for the Southern District of New York . . . .450 Kules of the District Court of the United States for the Southern District of New York, other than in Prize Cases .... 451 Eules of the District Court of the United States for the Southern District of New York, in Prize Cases ..... 515 VIII. Table of the Judges and Officers, etc., of the Circuit Court of the United States for the Eastern District of New York . . . .540 Eules of the Circuit Court of the United States for the Eastern District of New York, in Cases at Law ...... 541 Eules of the Circuit Court of the United States for the Eastern District of New York, on Appeals 563 Eules of the Circuit Court of the United States for the Eastern District of New York, in Equity- Cases ...... 572 IX. Table of the Judge and Officers, etc., of the District Court of the United States for theEastem/" District of New York . . . .678 Eules qf the District Court of the United States for the Eastern District of New York, in Cases at Law ..... 579 Eules of the District Court of the United States for the Eastern District of New York, in Ad- miralty Causes .... 599 X. Table of the Judges and Officers, etc., of the Cir- cuit Court of the United States for the North- em District of New York . . . 622 Eules of the Circuit Court of the United States for the Northern District of New York . 625 XI. Table of the Judge and Officers, etc., of the Dis- trict Court of the United States for the ' Northern District of New York . . 640 GENERAL TABLE OF CONTENTS. Page Eules of the District Court of the United States for the Northern District of 'New York— Gen- eral Eules . . . • • 641 Eules of the District Court of the United States for the ISTorthem District of New York— Ad- miralty Eules . . . • • 672 XII. Table of the Judges and Officers, etc., of the Cir- cuit Court of the United States for the Dis- trict of Connecticut .... 688 Eules of the Circuit Court of the United States for the District of Connecticut . . 689 XIII. Table of the Judge and Officers of the District Court of the United States for the District of Connecticut ..... 696 Eules of the District Court of the United States for the District of Connecticut . . 697 XIY. Table of the Judges and Officers, etc., of the Cir- cuit Court of the United States for the Dis- trict of Yermont .... 710 Eules of the Circuit Court of the United States for the District of Yermont . . . 711 XY. Table of the Judge and Officers, etc., of the Dis- trict Court of the United States for the Dis- trict of Yermont ..... 726 Eules of the District Court of the United States for the District of Yermont . . .727 XYI. Table of the Judges and Officers, etc., of the Su- preme Court of the District of Columbia . 738 Eules of the Supreme Court of the District of Col- umbia — General Eules of Practice . . 741 Eules of the Supreme Court of the District of Col- umbia — In Appeals from the Decisions of the Commissioner of Patents . . . 813 Eules of the Supreme Court of the District of Col- mnbia — In Equity Practice . . . 817 Eules of the Supreme Court of the District of Col- umbia — Orphans' Court Eules . . 854 GENERAL TABLE OP CONTENTS. xi Page Eules of the Supreme Court of the District of Columbia — In Admiralty (other than Prize), in addition to those prescribed by the Supreme Court of the United States . . . 856 Tables of Statistics relating as foUows, viz. : To XVII. The Supreme Court of the United States . . 862 The Court of Claims .... 865 The Supreme Court of the District of Columbia . 866 XYIII. The Circuit Courts of the United States, contain- ing the names, residences; etc., of the Judges of said Courts and the Districts em- braced within each Circuit . . . 868 The District Courts of the United States em- braced within the various Circuits, contain- ing the names, residences, etc., of the Judges of said Courts, and the territorial jurisdiction of each District, etc., as fol- lows, viz. : In the First Judicial Circuit Second Judicial Circuit Third Judicial Circuit Fourth Judicial Circuit Fifth Judicial Circuit Sixth Judicial Circuit Seventh Judicial Circuit . Eighth Judicial Circuit Ninth Judicial Circuit XIX. The Clerks, and Terms of Court, of the Circuit and District Courts of the United States, giving the Names of the Clerks of the Cir- cuit and District Courts in each District, the places where the Clerk's Offices are situ- ated, and the tirnes and places of holding aU the Circuit and District Courts of the United States as follows, viz. : In the First Judicial Circuit ... 892 Second Judicial Circuit .... 893 . 870 871 . 873 874 . 876 881 . 885 886 . 890 xii GENERAL TABLE OF CONTENTS. Page Third Judicial Circuit .... 895 Fourth Judicial Circuit . . . 896 Fifth Judicial Circuit . . . .898 Sixth Judicial Circuit . . . 901 Seventh Judicial Circuit .... 904 Eighth Judicial Circuit ... 906 Ninth Judicial Circuit .... 909 XX. The Courts, Clerks, and Terms of Court, in the Territories, as follows, viz. : I^ames and residence, etc., of the Judges, and territorial jurisdiction of each District . 912 Names and residences, etc., of the Clerks, and location of the Clerk's offices, and the times and places of holding Court, in each District 915 Table of Indexes ..... 921 Indexes ..... 923 SPECIAL TABLE OF CONTENTS 07 THE Q-EIsTBRiLL RULES OF THE SUPREME COURT OF THE UNITED STATES. Fase EULE 1.— Cleek ,1 CLAUSE 1 .... . 1 HiSTOET OF . . . , ,1 Federal Statutes uitdee . . 2 CLAUSE 2 . . . o 4 HiSTOET OF ... , 4 Fedeeal Statutes undee . . .5 EULE 2. — Attoenets and Coun-selloes . . 6 CLAUSE 1 . . . . . ,6 HiSTOET OF ... . 6 Federal Statutes undee . . .6 Authorities undee ... 7 CLAUSE 2 . . .9 HiSTOEY OF ... . 9 Authorities under . . . .10 EULE 3.— Practice .... 10 History of . . . . .10 The Constitution, Article of, applica- ble TO . . . . ■ . 10 Federal Statutes undee . . .11 Authorities under . . . 11 xiv SPECIAL TABLE OP CONTENTS. Fase RULE 3. — Peactice — {Continued). ArxHOEiTiES IN Cases of Oeiginal Jueisdic- TION, WHERE THE StfPEEME CoUET EITHBE exeecised it, oe held that it coitld be exeecisbd . . . . 12, 55 Cases wheeb Oeiginal Jueisdiction was Ebfused .... 13 KULE 4. — Bill oe Exceptions . . . .14 HiSTOET OF .... 14 Fedeeal Statutes undbe . . .14 Authoeities undee : (1) More especially appUcdble to this Bide . . . .18 (2) delating to Bills of Meceptions generally, where the Trial is by Jury ... 22 (3) Relatvng to the Marwher of Review where the Trial is hy the Cowrt without a Ju/ry . . .36 EULE 5. — Peocess CLAUSE 1 . HiSTOEY of The Constitution, Aetiole of, applioa BLB to . Federal Statutes under Authoeities undee CLAUSE 2 . HiSTOET OF Authoeities undee CLAUSE 3 . . . HiSTOEY OF . Authoeities under Authoeities in Cases of Oeiginal Jueisdio- TioN, where the Supebme Couet eithee EXEEOISED it, OE HELD THAT IT COULD BB ExEEoisED (See, also, Eule 3, p. 12) . 55 47 47 47 47 47 50 52 52 52 53 53 54 tii'KViAL TABLK OF UOJSI TENTS. XV EULE 6.— Motions . Pase 56 CLAUSE 1 . History of • • • • ■ 56 56 CLAUSE 2 . HiSTOEY OF . 56 56 CLAUSE 3 . HiSTOEY OF AuthoeitieS UNDEE .... 56 56 5Y CLAUSE 4 HiSTOEY OF Authorities UNDEE 57 57 57 CLAUSE 5 . HiSTOEY OF AuTHOEITIES UNDEE .... 68 58 58 CLAUSE 6 HiSTOEY OF AuTHOEITIBS UNDEE 61 61 61 EULE 7. — Law Libeaey .... 62 CLAUSE 1 .... . HiSTOEY OF . Fedeeal Statutes undee. 62 62 .62 CLAUSE 2 . HiSTOEY OF V • • • 63 63 CLAUSE 3 . HiSTOEY OF .... Fedeeal Statutes undee, eelating to the Marshal of the Supebme Couet . 64 64 64 EUT,E 8. — Weit of Eeeoe, Eetuen and Ebcoed . 65 CLAUSE 1 . HiSTOEY OF .... Fedeeal Statutes undee 65 66 G6 Authoeities UNDEE 71 CLAUSE 2 . HiSTOEY OF Authorities UNDEE .... 73 73 74 CLAUSE 3 HiSTOEY OF . 74 74 XVI SPECIAL TABLE OF CONTENTS. RULE 8. — Weit of Eeeoe, etc. — {Contimted). Federal Statutes undee . authoeities under .... CLAUSE 4 .... . HiSTOEY OF . Federal Statutes uitoee auth deities undee .... CLAUSE 5 .... . HiSTOEY OP . Fedeeal Statutes under Authorities under ; (fl) Prior to the Adoption of General Rule 33 in 1867 (5) Subsequent to the Adoption of Oen- eral Rule 33 in 186Y CLAUSE 6 . HiSTOEY OF .... Fedeeal Statutes under Authorities under EXILE 9. — Docketing Cases CLAUSE 1 . . . History of Federal Statutes under Authorities under CLAUSE 2 . . . History of Federal Statutes under Authorities under CLAUSE 3 . . . History of Authorities under CLAUSE 4 . HiSTOEY OF . Authorities under RULE 10. — Printing Records CLAUSE 1 . HiSTOEY OF Authorities under Page 74 74 76 76 76 77 77 77 77 78 82 84 84 84 85 87 87 87 89 90 97 97 97 97 98 98 99 100 100 100 101 101 101 103 SPECIAL TABLE OP CONTENTS. EULE 10. — Pbinting Eecoeds — (Oonimued). CLAUSE 2 . History of Atjthoeitibs undee CLAUSE 3 HlSTOET OF CLAUSE 4 HiSTOEY OF CLAUSE 5 HiSTOEY OF Atithoeities UNDEK CLAUSE 6 . HiSTOEY OF CLAUSE 7 . HiSTOEY OF Federal Statutes tindee CLAUSE 8 HiSTOEY OF AtTTHOEITIES UNDEE XVU Page 104 104 105 105 105 106 106 106 106 107 108 108 108 108 109 110 110 110 EULE 11. -Translations HiSTOEY OF 110 111 EULE 12.— FuETHEE Peoof . . . .111 CLAUSE 1 .... . Ill HiSTOEY OF . . . . . Ill Federal Statutes under . . Ill AUTHOEITIES UNDEE . . . .112 CLAUSE 2 .... . 113 HiSTOEY OF . . . . . 113 Federal Statutes under . . 113 authoeities undee ! a. Inprise cases only . . . 114 5. In cases of Ad/mvralty amd Ma/ri- tvme JurisdicUon other tkcm prize. 118 EULE 13. — Objections to Evidence in the Eecoed . 120 HiSTOEY OF ... . 120 AuTHOEITIES UNDEE .... 121 XVIU SPECIAL TABLE OF CONTENTS. Page RULE 14. — Ceetioeaei . . . • 122 HiSTOEY OF . . 123 Federal Statutes undek 123 Authorities undbe . 123 EULE 15. — Death of a Paety 128 CLAUSE 1 . . 128 HiSTOEY OF .... 128 Fedeeal Statutes undee . 129 Authorities undee 130 CLAUSE 2 . . 131 HiSTOEY OF .... 131 Fedeeal Statutes under . 132 Authorities undee 132 CLAUSE 3 . . 132 HiSTOEY OF .... 134 Fedeeal Statutes under . 134 EULE 16. — No Appearance of Plaintiff . 134 History of . . 134 Authorities under 135 EULE 17. — No Appearance of Defendant . 137 History of ... . 137 Authorities under . . 137 EULE 18. — No Appearance of Eithee Party 138 Histoey of . . 138 Authoeities undee 138 EULE 19. — Neithee Paety Eeady at Second Terw . 139 History of ... . 139 EUT-E 20. — Printed Arguments . 139 CLAUSE 1 .... . 139 History of . . 139 Authorities undee 140 SPECIAL TABLE OE (JOJNTEJNTS. XIX Pasb RULE 20. — Peinted Aegtjments — {Continued). CLAUSE 2 . . 142 History of ... 142 CLAUSE 3 . . 142 History of ... 143 CLAUSE 4 . . 143 History of . . . . 143 EXILE 21.— Briefs .... . 143 CLAUSE 1 .... . 143 History of . . 143 Authorities under 145 CLAUSE 2 . . 146 History of . . . . 14Y Authorities under . 148 CLAUSE 3 .... . 150 History of . . 150 Authorities under 152 CLAUSE 4 . . 153 History of . . . 154 Federal Statutes under . 154 Authorities under 155 CLAUSE 5 . . 157 History of . . . 157 CLAUSE 6 . . 157 History of ... 157 • RULE 22. — Oral Arguments . 158 CLAUSE 1 . . . . 158 History of . . 158 CLAUSE 2 . . . . 158 History of . . 158 Authorities under 158 CLAUSE 3 . . 159 History of . . . 159 Authorities under . 160 XX SPECIAL TABLE OF CONTENTS. EXILE 23.— Interest . CLAUSE 1 . HisTOEY or Federal Statutes undee Atjthoeities undee CLAUSE 2 . HiSTOET OF Federal Statutes undee Authoeities under. CLAUSE 3 . HlSTOEY OF Fedeeal Statutes undee Authoeities undee CLAUSE 4 . History of Authorities under : Prim' to the Adoption of this Clause Faob 160 160 160 161 161 163 163 164 164 167 167 168 168 170 170 170 EULE 24.— Costs 172 CLAUSE 1 . . . . .172 History of . . . . . 172 Federal Statutes under (Eelating to the Amount of Fees oe Costs of Attoeneys AND the Manner of their Taxation) . 172 Authorities under : a. Previous to the Adoption of Orig- vnal General Rule 45 in 1838 . 173 h. Subsequent to the Adoption of Orig- • inal General Pule 45 m 1838 . 174 CLAUSE 2 . . . . .176 HiSTOEY OF . . . . .176 Fedeeal Statutes undee . . 176 Authoeities under : Prior to the Adoption of Original General Pule 46 in 1838 . . 176 CLAUSE 3 .... . 177 HiSTOEY OF . . . . .177 Fedeeal Statutes undee . . . 173 SPECIAL TABLE OF CONTENTS. xxi Faqe EXILE 24r. — Costs — Clause 3 — {Continued). AUTHOEITIES UNDEE : a. Prior to Adoption of Original Oen&ral Rule 22 in 1810 . 178 h. After the Adoption of Original Gen- eral Eule 22 in 1810 . . 179 CLAUSE 4 . . . . _ . 179 HlSTOEY OF . . . . . 179 Eedeeal Statutes undee . . . 180 AUTHOEITIES undee : a. Prior to the Adoption of Original General Pule 4:8 in 1S38 . . 180 b. Subsequent to the Adoption of Orig- inal General Pule 48 in 1838 . 181 CLAUSE 5 ..... 181 HlSTOET OF . . . . . 181 Fedeeal Statutes undee . . . 181 authoeities undee : a. More Especiall/y Pelating to the Pule . . . . .183 b. Pelatmg to Mandates Generally, and to Proceedings thereunder and there- after . . . . .183 CLAUSE 6 .... . 191 HlSTOEY OF . . . . . 191 CLAUSE 7 .... . 192 HlSTOEY OF . . . . . 192 Federal Statutes undee . . . 192 AuTHOEITIES UNDEE : a. Prior to the Act of Ma/rch Zd, 1883. 195 b. Subsequent to tJie Act of Ma/rch Zd, 1883 196 EULE 25. — Opinions op the Couet . . . 196 CLAUSE 1 . . . 196 HlSTOEY OF .... 196 Fedeeal Statutes undee (Eelating to Ee- POETEE OF SUPEEME CoUEt) . . 197 xxa SPECIAL TABLE OF CONTENTS. RULE 25. — Opinions of the Court — {Continued^. CLAUSE 2 . HiSTOEY OF . . . CLAUSE 3 . HiSTOEY OF . . . RULE 26. — Call and Oedee of the Docket CLAUSE 1 HiSTOEY OF AUTHOEITIES TJNDEE CLAUSE 2 . HiSTOEY OF CLAUSE 3 . HiSTOEY OF Fedeeal Statutes undee Authoeities undee CLAUSE 4 . HiSTOEY OF Authoeities undee CLAUSE 5 HiSTOEY OF Authoeities undee CLAUSE 6 . HiSTOEY OP CLAUSE 7 . HiSTOEY OP Fedeeal Statutes undee Authoeities undee : Especially applicable to this Clause Under Section 949 of the Revised Statutes of the United States . a. I. CLAUSE 8 HiSTOEY OP Authoeities undee CLAUSE 9 . . HiSTOEY OF Authoeities undee : Before the Amendtnent of 1875 CLAUSE 10 . HiSTOEY OF Page 200 200 200 201 201 201 201 202 203 203 203 203 203 204 205 203 205 205 205 205 206 206 206 2or 207 208 209 211 211 211 212 212 212 214 214 SPECIAL TABLE OF CONTENTS. xxm Page RULE 27. — ^Adjournment .... 214 History of ... . 214 Federal Statutes under (Relating to the Sessions of the Supreme Court) . 214 RULE 28. — Dismissing Cases in Vacation . . "215 History OF ..... 215. Authorities under . . . 216 RULE 29.— Supersedeas . . . .216 History of . . . . 217 Federal Statutes under . . .217 Authorities under : a. Prior to the Adoption of General Rule 32 m 1867 . . 218 i. Sxibsequent to the Adoption of General Rule 32 in 1867 . 222 I^ULE 30.— Rehearing .... 229 History of . . . . . 229 Authorities under : Prior to the Promulgation of tJie Rule .... 230 RULE 31. — Form of Printed Records and Briefs . 235 History of . . . . 235 Authorities under . . . .235 RULE 32. — "Writs of Error and Appeals under Sec- tion 5 OF the Act of March 3d, 1875 235 CLAUSE 1 . . . • ■ . 235 History op .... 235 Federal Statutes under . . . 236 Authorities under . . . 236 CLAUSE 2 . . • . - .236 History of . . ' . . 236 Federal Statutes under . . . 237 Authorities under . . . 237 CLAUSE 3 . . • • . .237 History of .... 237 Federal Statutes under . . .237 Authorities under . . . 237 xxiv SPECIAL TABLE OP CONTENTS. Page RULE 32. — "Weits of Eeeoe, etc — {Oontmued). CLAUSE 4 . . . . . . 238 HiSTOEY OF .... 238 Fedeeal Statutes ttndee . . .238 authoeities undee . . . 238 CLAUSE 6 . . . . . .239 HiSTOET OF .... 239 Fedeeal Statutes undee . . . 239 authoeities undee . . . 239 RULE 33. — Models, Diageams, and Exhibits of Ma- teeial ..... 239 Histoey of ... . 239 TABLE OF INDEXES. Page Index No 1. — For the General Rules of the Supreme Court of the United States ... ... 935 Index No. 2. — ^For the Regulations of the Supreme Court relating to Appeals from the Court of Claims, and for the Rules of the Court of Claims. ...... 959 Index No. 3. — For the Rules of Practice in Equity, adopted by the Supreme Court of the United States .... 969 Index No. 4. — For the Rules of Practice in Admiralty, adopted by the Supreme Court of the United States . . . 983 Index No. 5. — For the Rules of the Circuit Court of the United States for the Southern District of New York . . 999 Index No. 6. — For the Rules of the District Court of the United States for the Southern District of New York, other than in Prize Cases ....... 1039 Index No. 7. — For the Rules in Prize Cases, of the District Court of the United States for the Southern District of New York. 1047 Index No. 8. — For the Rules of the Circuit Court of the United States for the Eastern District of New York, in Cases at Law ........ 1053 Index No. 9. — For the Rules of the Circuit Court of the United States for the Eastern District of New York, on Appeals . 1067 Index No. 10. — For the Equity Rules of the Circuit Court of the United States for the Eastern District of New York . 1073 Index No. 11.— For the Rules of the District Court of the United States for the Eastern District of New York, in Cases at Law ........ 1079 Index No. 13.— For the Admiralty Rules of the District Court of the United States for the Eastern District of New York . 1089 Index No. 13.— For the Rules of the Circuit Court of the United States for the Northern District of New York. . . 1099 Index No. 14. — ^For the General Rules of the District Court of the United States for the Northern District of New York . 1109 xxvi TABLE OF INDEXES. Page Index No. 15. — For the Admiralty Rules of the District Court of the United States for the Northern District of New York . 1131 Index No. 16. — For the Rules of the Circuit Court of the United States for the District of Connecticut . . . II45 Index No. 17. — For the Rules of the District Court of the United States for the District of Connecticut . . . II53 Index No. 18.— For the Rules of the Circuit Court of the United States for the District of Vermont .... 1161 Index No. 19.— For the Rules of the District Court of the United States for the District of Vermont .... 1171 Index No. 20.— For the General Rules of Practice of the Supreme Court of the District of Columbia .... II77 Index No. 31.— For the Rules of the Supreme Court of the District of Columbia, in Appeals from the Decisions of the Commissioner of Patents ....... 1189 Index No. 33.— For the Rules of the Supreme Court of the District of Columbia, in Equity Cases .... 1195 Index No. 23. — For the Orphans' Court Rules of the Supreme Court of the District of Columbia ..... 1305 Index No. 34.— For the Rules of the Supreme Court of the District of Columbia, in Admiralty, in addition to those prescribed by the Supreme Court of the United States , . . 1211 TABLE OF CASES COMPRISING THE AUTHORITIES COLLECTED UNDER THE GENERAL RULES OF THE SUPREME COURT OF THE UKITBD STATES. TABLE OF CASES. " Abbotsford," The, 98 U. S. 440 , Ablemanv. Booth, 18 How. 479 . . . Adams v. Law, 16 How. 144 .... Adams, United States v., 9 "Wall. 661 . . " Adeline," The Schooner, 9 Cranch, 244 "Adriatic," The, 103 U. S. 730 . . . . "Adriatic," The, 107 U.S. 512 . . . Agricultural Co. v. Pierce Co., 6 Wall. 246 Alexander, Lloyd v., 1 Cranch, 356 . . " Alicia," The, 7 Wall. 571 Alviso V. United States, 5 Wall. 824 . Alviso V. United States, 6 Wall. 457 . . Alvord V. United States, 99 U. S. 593 . Ambler v. Whipple, 23 Wall. 278 . Ames V. Quimby, 106 U. S. 342 . " Amiable Isabella," The, 6 Wheat. 1 12 2 29 14 12 8 12 4 12 9 16 26 26 30 24 12 44 86 120 212 220 126 115 86 120 40 120 81 78 95 81 81 100 136 202 213 234 190 117 XXVIU GENERAL RULES OP THE TABLE OP CASES. Amis V. Pearle, 15 Pet. 211 . Amoiy V. Amory, 91 U. S. 356 Anderson, State of Florida v., 91 TJ. S. 667 "Anne," Tiie, 3 Wheat. 435 " Annie Lindsley," The, 104 U. S. 185. . . Anonymous, 7 Oranch, 1 , Anson v. Blue Eidge E. E. Co. 23 How. 1 " Antelope," The, 12 Wheat. 546 ... , " Argo," The, 2 Wheat. 287 Armstead, Macomb -y., 10 Pet. 407 . . . . Arthurs v. Hart, 17 How. 6 Ashton, Jackson v., 10 Pet. 480 . . . . , Aspden, Brown v., 14 How. 25 " Atalanta," The, 3 Wheat. 409 . . Aurrecoechea v. Bangs, 110 U. S. 217 Avendano v. Gay, 8 Wall. 376 .. . Bacon v. Hart, 1 Black, 38 Bailiff V. Tipping, 2 Cranch, 406 Baker, Huniphrey v., 103 U. S. 736 Baldwin v. Elj^, 9 How. 580 Bangs, Aurrecoechea v., 110 U. S. 217 .... Bank of Commerce, National Bank'y., 99 U. S. 608 Bank, Eldred v., 17 Wall. 545 Bank of Indiana, Pomeroy's Lessee t)., 1 Wall. 592 Banli, James v., 7 Wall. 692 Bank v. Kennedy, 17 Wall. 19 Bank of Metropolis, Moore -y. 13 Pet. 302 . . Bank of the United States v. Swan, 3 Pet. 68 Banning, Jenkins v., 23 How. 455 Barbour, Eandolph v., 6 Wheat. 128 Barker, The United States v., 2 Wheat. 395 . Barney v. Cox, 107 U. S. 629 Barney v. Friedman, 107 U. S. 629. P3 9 23 26 3 12 12 22 29 24 12 9 4 24 30 3 30 12 20 4 24 24 20 8 24 4 4 4 9 23 9 24 23 23 24 23 23 24 1 1 7 2 2 2 4 2 1 5 5 5 8 1 5 3 4 1 2 5 1 2 5 UNITED STATES SUPREME COURT. XXIX TABLE OF CASES. Barney v. Isler, 107 U. S. 629 Earribeau v. Brant, 17 How. 43 Earrow v. Hill, 13 How. 54 . , Barry v. Mercein, 4 How. 574 . Bartemeyer v. Iowa, 14 Wall. 26 Barton v. Petit, 7 Cranch, 288 . Batson, Holiday v., 4 How. 645 Bayne, Graham v., 18 How. 60 . Bean v. Patterson, 110 U. S. 401 Beaver v. Taylor, 93 U. S. 46 " Benefactor,'^ The, 102 U. S. 214 BetheU v. Mathews, 13 "WaU. 1 . . Bigler v. Waller, 12 "Wall. 142 . . Bingham v. Cabbot, 3 Dallas, 19 . . Bingham v. Morris, 7 Cranch, 97 BirSi, Greenleaf s Lessee v., 5 Pet. 132 Bishop, Stockton v., 2 How. 74 . . BlackweU v. Patten, 7 Cranch, 277 Blair v. Miller, 4 Dallas, 21 . . . Blair, Eailroad Co. v., 100 U. S. 661 Blair, Tilden v., 21 Wall. 241 .. . Blake, Hawkins v., 108 U. S. 422 . Blanc's Executors, Cousin v., 19 How. Bland, McNutt v., 2 How. 1 . . . Blease v. Garlington, 92 U. S. 1 . . Blitz V. Brown, 7 Wall. 693 .. . 202 Bloomshire, Edmonson v., 7 WaU. 306 Blue Eidge E. E. Co., Anson v., 23 How. 1 Board of Commissioners v. Gorman, 19 Wall. 661 Boisdore's Heirs, United States v., 7 How. 658 . Bondurant, Tutrix, v. Watson, 103 U. S. 278 § 23 24 15 23 26 26 8 14 9 4 10 10 10 24 31 4 4 12 4 29 4 4 29 21 24 8 15 12 8 9 29 29 29 9 5 1 2 5 2 2 1 7 1 1 2 5 5 5 4 5 2 1 1 1 1 5 1 XXX GENERAL RULES OF THE TABLE OF CASES. Bonclurant, Tutrix, v. Watson, 103 U. S. 278 Bonnemer, Generes v., 7 Wall. 564 .... Boogher v. Insurance Co., 103 "U. S. 90 . . Boone v. Chiles, 10 Pet. 177 Boon, Insurance Co. v., 95 U. S. 117 . . . , Boon, McClane -y., 6 Wall. 244 Booth, Ableman v., IS How. 479 Booth, United States w., 18 How. 476 . . . . Bour, Chicago City Eailway Co. v., 6 Wall. 513, Boyce v. Grundy, 6 Pet. 777 Boyce's Executors v. Grundy, 9 Pet. 275 .. . Boyd V. Scott, 11 How. 292 Boyd, United States v., 5 How. 29 Bradley v. Fisher, 13 Wall. 335 Bradley, IS'oonan v., 9 Wall. 394 Bradley, ISToonan v., 12 Wall. 121 Bradstreet v. Potter, 16 Pet. 317 Brailsford, State of Georgia v., 2 Dallas, 402 Brandies v. Cochrane, 105 U. S. 262 . . Brant, Barribeau v., 17 How. 43 ... . Brashear, West v., 12 Pet. 101 Brashear, West v., 14 Pet. 51 Breedlove, Gwin v., 15 Pet. 284 Breitling, United States v., 20 How. 252 Brewer, Crews «., 19 WaU. 70 . Brig " James WeUs " v. The United 'states, 7 Cranch, 22 Brig "Perseverance," The, Jennings «"., 3 Dallas, 336 Brig " Union," The, The United States v.. Cranch, 215 Brobst V. Brobst, 2 Wall. 96 ".'.'. ' Brockett v. Brockett, 2 How. 238 .".".' Brockett v. Brockett, 3 How. 691 Brodie, Catlett v., 9 Wheat. 553 Brooke, Peyton v., 3 Cranch, 92 . Brooks, Lucas>v., 18 Wall. 436 .. . 4 4 12 4 15 26 8 26 23 29 23 9 24 2 15 24 30 24 3 3 29 15 2 9 1 10 1 24 6 9 1 4 4 12 2 23 4 24 7 12 2 29 29 13 29 21 1 21 3 21 2 21 3 UNITED STATES SUPREME COURT. XXXI TABLE OP CASES. (0 « 21 3 4 i Brooks, Lucas v., 3 Cranch, 92 156 Brooks V. Eailroad Company, 102 U. S. 107 . Browder v. M' Arthur, 1 Wheat. 58 30 234 24 5 184 30 231 Brown v. Aspden, 14 How. 25 3 11 30 232 Brown, Bhtz v., T Wall. 693 8 1 72 9 1 96 Brown v. Clarke, 4 How. 4 4 24 BroAvn, Evans v., 109 U. S. 180 6 5 60 Brown v. Spofford, 95 U. S. 474 Brown v. Union Bank of Florida, 4 How. 465 . 4 34 24 1 174 Brown v. Yon Braam, 3 Dallas, 344 .... 23 1 161 Buchtel, Lumber Company v., 101 U. S. 633 . . Buckell, Jones v., 104 U. S. 554 13 122 4 35 Burkham, "Wiggins v., 10 Wall. 129 . . ' . . 4 31 Burr V. Des Moines Co., 1 Wall. 99 .... 4 39 Burton v. Driggs, 20 Wall. 125 4 32 Butler, Herbert v., 97 U. S. 319 4 34 Byrne, Innerarity v., 5 How. 295 8 3 75 Cabbot, Bingham v., 3 Dallas, 19 4 22 8 3 75 CaldweU v. Jackson, 7 Cranch, 277 10 8 110 24 7 196 CaU V. Palmer, 106 U. S. 39 32 3 238 Camden v. Doremus, 3 How. 515 4 34 Cameron v. M'Eoberts, 3 Wheat. 591 .... 30 231 Campbell, Cargo of Ship " Hazard " v., 9 Cranch, 205 12. 4 2 115 Campbell, Generes v., 11 Wall. 193 .... 41 Campbell v. Gordon, 6 Cranch, 176 . . . . . 24 2 176 Campbell, Vance v., 1 Black, 427 4 28 CampbeU v. Wilcox, 10 Wall. 421 Canal Company v. Gordon, 6 Wall. 561 . . . 23 2 165 13 122 Carey, United States v., 110 U. S. 51 . . . . 4 36 Cargo of Ship " Hazard " v. Campbell, 9 Cranch, 205 12 8 q 2 5 1 115 Carroll v. Dorsey, 20 How. 204 79 Carroll, M'Kinney -y., 12 Pet. 66 15 J. 1 131 Carter, Greenhow v., 109 U. S. 63 26 7 209, 211 XXXll GENERAL RULES OF THE TABLE OP CASES. Carter, Greenhow v., 109 U. S. 63 Carver v. Jackson, 4 Pet. 1 Case, Kearney v., 12 "Wall. 276 Cass Co., Garrison v., 5 "Wall. 828 .... Castro V. United States, 3 "Wall. 46 . . . . Catlett V. Brodie, 9 "Wheat. 553 Cavazos, Mussina v., 6 "Wall. 355 . . : . . Central Eailroad Co., Sage v., 93 U. S. 412 . Chambers County v. Clews, 21 Wall. 317 . . Cheek, Overton v., 22 How. 46 Cherokee Nation v. State of Georgia, 5 Pet. 1 . Chicago City Eailway Co. v. Bour, 6 "Wall. 513 Chiles, Boone v., 10 Pet. 177 Chisholm -y. Georgia, 2 Dallas, 419 . . . . City of "Washington v. Dennison, 6 "Wall. 495 . Claflin, Lincoln v., 7 "Wall. 132 Claflin, "WUliams v., 103 U. S. 753 Clampitti, Kerr v., 95 U. S. 188 Clark V. Haokett, 1 Black, 77 Clark V. Hancock, 94 U. S. 493 Clark V. Keith, 106 U. S. 464 Clark, Smith v., 12 How. 21 Clarke, Brown v., 4 How.. 4 Clarke v. Eussell, 3 Dallas, 415 . . Clay y. Smith, 3 Pet. 411 ' . Claypool, Haussknecht v., 1 Black, 431 . . . Gierke v. Harwood, 3 Dallas, 342 Clews, Chambers Co. v., 21 "Wall. 317 . Clough, Packet Co. v., 20 "Wall. 628 ... . Cochran v. Schell, 107 U. S. 625 Cochran, Schell v., 107 U. S. 626 Cochrane, Brandies v., 106 U. S. 262 Cochrane v. Deener, 95 U. S. 355 . 1 03 s 32' 3 4 4 8 5 9 1 8 5 9 4 29 4 8 1 26 7 4 8 6 3 23 2 12 1 3 5 3 17 8 5 4 29 4 14 6 5 24 5 9 1 4 4 15 1 4 24 2 24 5 4 4 21 2 21 3 23 1 23 2 23 1 23 2 29 24 5 UNITED STATES SUPREME COURT. XXXUl TABLE OF CASES. Oockerell, Lessor of Fisher v., 5 Pet. 248 . . Coddington v. Eichardson, 10 Wall. 516 . . , Collector, The, Hornthall v., 9 Wall. 560 . . Commonwealth of Kentucky v. Dennison, 24 How. 66 Commonwealth, The, M'Guire v., 3 Wall. 382 Conard v. Pacific Ins. Co., 6 Pet. 262 .. . Cook, Whitney w., 99 U. S. 607 Coolidge, Inglee v., 2 Wheat. 363 Cooper, Laber v., 7 Wall. 565 Cooper V. Omohundro-, 19 Wall. 65 .... Corneau, Seward v., 102 U. S. 161 .... Cotton V. Wallace, 3 Dallas, 302 County of Alexander v. Kimball, 106 U. S. 623 County of Madison v. Warren, 106 U. S. 622 . Cousin V. Blanc's Executor, 19 How. 202 . . Cox, Barney v., 107 U. S. 629 Cox, Pierce «., 9 Wall. 786 Coxe, Wylie v., 14 How. 1 Craig, Eodford v., 5 Cranch, 289 Craig V. Smith, 100 U. S. 226 Craig's Administrator, M'Knight v., 6 Cranch, 183 Crane, JEx parte, 5 Pet. 190 Crane Iron Co. v. Hoagland, 108 U. S. 5 . . Gvensh.a.w,^x parte, 15 Pet. 119 ..... Crews V. Brewer, 19 Wall. 70 Cunningham v. Macon & Brunswick Eailroad Company, 109 U. S. 446 Curry, United States v., 6 How. 106 . . . Curtenius, Morgan v., 19 How. 8 . . . . Curtis V. Petitpain, 18 How. 109 Dall, Simpson & Co. v., 3 Wall. 460 .. . Dashiel, United States v., 3 Wall. 688 . . . Davenport City v. Dows, 15 Wall. 390 .. , Davidson v. Lanier, 4 Wall. 447 Davis, Draper v., 102 U. S. 370 I 4 24 3 14 16 4 6 23 24 4^ 4 29 23 4 4 8 23 23 24 8 24 18 24 4 6 24 4 9 14 4 29 26 29 29 XXXIT GENERAL RULES OF TPIE TABLE OF CASES. Davis, Garland v., 4 How. 131 Davis V. Packard, 7 Pet. 276 . Davis V. Packard, 8 Pet. 312 . . Davis, Peuffh v., 110 U. S. 227 . Dayton v. Lash, 94 U. S. 112 . . Day, Hartshorn v., 18 How. 28 . Deener, Cochrane v., 95 U. S. 355 Deitsch v. Wiggins, 15 Wall. 539 De la Lanza, Doswell v., 20 How. 29 ... Demarest, Collector, The State, Euckman, Pros- ecutor, v., 110 U. S. 400 . . . ... . 99 Deming's Appeal, 10 Wall. 251 Denn, Kearney v., 15 Wall. 51 . ' . . . . Dennison, City of Washington v., 6 Wall. 495 Dennison, Commonwealth of Kentucky v., 24 How. 66 Des Moines Co., Burr v., 1 Wall, Dialogue, Pennock v., 2 Pet. 1 Dickinson v. The Planters' Bank, 16 Wall. 250 Dinsmore, Presdt., Missouri, K. & T. K. E. Co v., 108 U. S. 30 Dirst V. Morris, 14 Wall. 484 Doane's Administrators, PenhaUow v., 3 Dallas 54 ' Dodge, Schell v., 107 U. S. 629 Doe V. Grymes, 1 Pet. 469 . . Doremus, Camden v., 3 How. 515 Dorsey, CarroU v., 20 How. 204 " Dos Hermanos," The, 2 Wheat. 76 . " Dos Hermanos," The, 10 Wheat. 306 Doswell V. De la Lanza, 20 How. 29 " Douro," The, 3 Wall. 564 . . Dows, Davenport City v., 15 Wall. 390 Dows, MuUer v., 94 U. S. 277 Dozier, Gameau v., 100 U. S. 7 Draper v. Davis, 102 U. S. 370 . Dredge v. Forsyth, 2 Black, 563 . . 21 3 24 29 8 9 24 21 21 21 4 15 26 4 3 4 4 4 14 4 24 23 23 24 14 4 8 9 12 29 4 23 26 20 8 29 4 5 2 5 2 3 4 3 1 2 5 5 1 2 4 7 UNITED STATES SUPREME COURT. XXXV TABLE OF CASES. Driggs, Burton v., 20 Wall. 125 Dubuque and Pacific Eailroad, Ms parte, 1 Wall, 69 Dugan, Exjpwrte, 2 Wall. 134 Duluth, Wisconsin -y., 96 U. S. 3Y9 Dunlop v. Monroe, 7 Cranch, 242 Durant, Washington Co. i)., T Wall. 694 .. , Easton, Hodges v., 106 U. S. 408 . . . . . Eaton, Evans v., 7 Wheat. 356 Eaton, Pennywit v., 15 Wall. 382 Eckert, Zeller's Lessee -y., 4 How. 289 . . . Edmonson v. Bloomshire, 7 WaU. 306 ... Edrington, O'Eeilly v., 96 U. S. 724 . . Edwards, French v., 13 Wall. 506 .. . Edwards v. United States, 102 U. S. 575 Ehlers, Miiller v., 91 U. S. 249 . . . . Eldred v. Bank, 17 WaU. 545 ... . Eliason, The United States v., 16 Pet. 291 Elliott '0. Peirsol, 1 Pet. 328 " Elsineur," The, 1 Wheat. 439 . . . . Ely, iBaldwin v., 9 How. 580 .... Ely, Eussell v., 2 Black, 575 Embrey, Stanton v., 93 U. S. 548 .. . Estho V. Lear, 7 Pet. 130 "Euphrates," The, 8 Cranch, 385 .. . " Eutaw," The, 12 WaU 136 Evans v. Brown, 109 U. S. 180 Evans v. Eaton, 7 Wheat. 356 Evans v. Patterson, 4 Wall. 224 Ex parte Crane, 5 Pet. 190 Ex parte Crenshaw, 15 Pet. 119 Ex parte Dubuque and Pacific Eailroad, 1 WaU, 69 & parte Dugan, 2 WaU. 134 Ex parte French, 91 U. S. 423 Ex parte Garland, 4 WaU. 333 Expa/rte Hallo well, 3 DaUas, 410 .... Ex parte Juan Madrazzo, 7 Pet. 627 .... 5 4 24 5 14 3 4 8 5 4 4 23 2 4 8 5 9 1 29 29 4 10 1 4 24 1 4 4 8 4 24 3 4 4 8 3 12 2 6 6 23 4 26 7 6 6 4 4 4 24 5 24 5 14 24 5 2 2 2 1 3 XXXVl GENERAL RULES OF THE TABLE OF CASES. Ex parte Martha Bradstreet, 4 Pet. 102 . . , Ex pa/rte The Milwaukee Eailroad Co., 5 Wall. 188 Ex pa/rte Sibbald v. The United States, 12 Pet, 488 Ex parte Morris and Johnson, 9 Wall. 605 ^^a?'foEussell, 13 WaU. 664 . . . . Ex parte Story, 12 Pet. 339 Ex parte Tillinghast, 4 Pet. 108 Ex parte Yallandigham, 1 "Wall. 243 . . . Ex parte Wall, 107 U. S. 265 "Experiment," The, 4 Wheat. 84 .... Eyser, Telegraph Co. -y., 19 Wall. 419 .. . Farmers' Bank of Alexander, The, Yeitoh v., 6 Pet. Y77 Parr, Keyser «., 105 U. S. 266 Parrar v. United States, 3 Pet. 459 .... Paw V. Marsteller, 2 Cranch, 10 Penemore v. The United States, 3 Dallas, 357 Perry Co. The, St. Louis v., 11 Wall. 423 . . Pield v. Milton, 3 Cranch, 514 Pield V. United States, 9 Pet. 182 ... Fisher, Bradley ■;;., 13 Wall. 335 .... Fisher, Hemmenway '«., 20 How. 255 . . Flanders v. Tweed, 9 Wall. 425 .... Flanders v. Tweed, 15 Wall. 451 Foley, Porter v., 21 How. 393 . . . . Foley, West Wisconsin Eailroad Co. «., 100 94 U. S, Folsom, Insurance Co. «., 18 Wall. Forsyth, Dredge «., 2 Black, 563 Forsyth, Kellogg v., 2 Black, 571 Forsyth, Kelsey -y., 21 How. 85 "Fortuna," The, 2 Wheat. 161 " Fortuna," The, 3 Wheat. 237 237 Fossatt, United States «., 21 How. 445 4 29 24 5 30 24 5 6 5 9 2 4 24 5 2 1 14 2 1 12 2 29 9 1 29 16 21 1 21 3 14 4 14 4 2 1 2 4 4 4 8 5 23 2 23 3 4 4 4 4 12 2 12 2 24 5 26 5 UNITED STATES SUPREME COURT. xxxviL TABLE OF CASES. Fourniquet, Perkins v., 14 How. 328 . . . Fowler, Hecker v., 1 Black, 95 .... Fowler v. Lindsey, 3 Dallas, 411 .... " Frances," The (Durham & Kandolph's Claim), 8 Cranch, 354 " Frances," The (Graham's Claim), 8 Cranch, 348 " Frances," The, (Thompson et al, Claimants) 8 Cranch, 335 " Francis Wright," The, 105 U. S. 381 . . Freer, Seymour v., 5 Wall. 822 Fremont, United States v., 18 How. 30 . . Frencli v. Edwards, 13 Wall. 506 .... French, Hx parte, 91 U. S. 423 French v. Shoemaker, 12 Wall. 86 ... . Friedman, Barney v., 107 U. S. 629 . ... " Friendschaft," The, 3 Wheat. 14 ... . Fritton, Mays v., 20 Wall. 414 Frontin, Guild v., 18 How. 135 Gardner, Eeed v., 17 WaU. 409 Garland v. Davis, 4 How. 131 Garland, ^ic-^fjaT-fe, 4 Wall. 333 Garlington, Blease v., 92 U. S. 1 Garneau v. Dozier, 100 U. S. 7 .... Garrison v. Cass Co., 5 Wall. 828 Gay, Avendano v., 8 -Wall. 376 .... Gay V. Parpart, 101 U. S. 391 Gayler v. Wilder, 10 How. 509 Gaylords v. Kelshaw, 1 Wall. 81 Geekie v. Kirby Carpenter Co., 106 U. S. 379 Generes v. Bonnemer, 7 Wall. 564 .... Generes v. Campbell, 11 Wall. 193 ... " George," The, 1 Wheat. 408 George, Weems v., 13 How. 190 .... s, i i 5 23 1 23 3 21 4 3 14 12 2 12 2 12 2 4 12 2 29 9 1 24 5 24 5 4 24 5 29 23 1 23 2 12 2 4 4 4 21 4 2 2 12 1 8 1 8 5 9 1 4 6 5 29 14 24 1 4 4 4 12 2 4 XXXTIU GEl^ERAL EULES OF THE TABLE OF CASES. ." Georgia," The, 7 Wail. 32 . . Georgia, Cliisliolin v., 2 Dallas, 419 German v. United States, 5 Wall. 825 . Glenny v. Langdon, 94 U. S. 604 . . Golding, Eeilly v., 10 Wall. 56 . . . Gomez, United States v., 23 How. 826 Gomez, United States v., 1 Wall. 690 . Gomez, United States v., 3 Wall. 752 Goodyear, Eubber Co. v., Gordon, Campbell v., 6 Cranch, 176 . Gordon, Canal Company «., 6 Wall. 561 Gorman, Board of Commissioners v., 19 Wall. 661 Guestier, Hudson v., 7 Cranch, 1 Guild -y.'Frontin, 18 How. 135 ... Graham v. Bayne, 18 How. 60 . . . Graham, Strader v., 18 How.' 602 . . ^ Grant, State of Georgia v., 6 Wall. 241 " Gray Jacket," The, 5 Wall. 342 . . " Gray Jacket," The, 5 WaU. 370 . . Grayson v. Virginia, 3 Dallas, 320 Green v. Watkins, 6 Wheat. 260 , Greenhow, Carter v., 109 U. S. 63 Greenhow, Poindexter v., 109 U. S. 63 Greenhow, White v., 109 U. S. 63 . Greenleafs Lessee v. Birth, 5 Pet. 122 Gregg V. Moss, 14 Wall. 564 . . . . " . ' Gregg V. Lessee of Sayre & Wife, 8 Pet. 244 Grigsby v. Purcell, 99 U. S. 505 . . Grinnell, Tyng v., 92 U. S. 467 . 12 3 5 17 9 6 4 24 14 9 29 24 13 29 30 4 4 24 12 22 22 3 5 15 26 32 26 32 26 32 4 4 21 21 21 4 9 4 4 3 2 2 3 2 1 7 3 7 3 7 3 2 3 4 UNITED STATES SUPREME COURT. XXXIX TABLE OF CASES. " Grotius," The, 8 Cranch, 456 .... Grundy, Boyce .v., 6 Pet. Y77 Grymes, Doe v., 1 Pet. 469 Gwin V. Breedlove, 15 Pet. 284 Hackett, Clark v., 1 Black, T7 Hall, School District of Ackley v., 106 U. S. 428 Hall V. Jordan, 19 Wall. 271 Hallowell, ^x parte, 3 Dallas, 410 Hamilton, United States v., 3 Dallas, 17 . . Hancock, Clark v., 94 U. S. 493 Hanney, Owens v., 9 Cranch, 180 Hardenberg v. Texas, 10 Wall. 68 Harmon, Johnson v., 94 U. S. 371 Harmony, Mitchell v., 13 How. 115 .... Harrison v. 'Nixon, 9 Pet. 483 Harrold, Sturgess v., 18 How. 40 Hart, Arthurs v., 17 How. 6 Hart, Bacon v., 1 Black, 38 Hartshorn v. Day, 18 How. 28 Harvey v. Tyler, 2 Wall. 328 , Harwood, Gierke v., 3 Dallas, 342 Haskins v. St. Louis & S. E. P. E. Co. 109 U. S 106 , Haussknecht v. Claypool, 1 Black, 431 . . . Hawkins v. Blake, 108 U. S. 422 Hawthorne, Claimant of Brig " Clarissa Clai- borne," V. United States, 7 Cranch, 107 . Hazard Powder Co., Martin v., 93 U. S. 302 Hecker v. Fowler, 1 Black. 95 Hemmenway v. Fisher, 20 How. 256 . . . , Hennessy v. Sheldon, 12 Wall. 440 .... Herbert v. Butler, 97 U. S. 319 Hill, Barrow v. 13 How. 54 Himely v. Eose, 5 Cranch, 313 , Hinckley v. Morton, 103 U. S. 764 .... Higginson, Mossman v., 4 Dallas, 12 ... , ■3 12 § 3 2 29 23 3 14 9 1 14 6 5 21 4 23 2 2 1 12 1 6 5 8 1 3 3 4 23 1 13 9 1 4 8 5 9 2 4 24 2 24 5 8 6 29 4 24 5 12 2 29 21 4 23 4 23 2 4 23 2 23 4 24 5 6 5 8 1 8 5 xl GEISTERAL RULES OF THE TABLE OP CASES. Hinde's Lessee v. Longworth, 11 Wheat. 199 Hoagland, Crane Iron Co. v., 108 TJ. S. 5 Hodge, United States v., 6 How. 279 . . Hodges V. Easton, 106 U. S. 408 Hodges V. Vaughan, 19 "Wall. 12 ... . Hogan V. Ross, 9 How. 602 Hoge V. Richmond, etc., R. R. Co. 93 U. S. 1 Holbrook, M'Nea v., 12 Pet. 84 . . . Holliday v. Batson, 4 How. 645 . . . HoUingsworth v. Virginia, 3 Dallas, 378 Holmes v. Trout, 7 Pet. 171 HornthaU v. The Collector, 9 Wall. 560 Hooe, United States v., 3 Cranch, 73 . . Hook v'. Linton, 10 Pet. 107 ... . Hopkins v. Lee, 6 Wheat. 109 .... Hough, United States v., 103 U. S. 71 . Howard, In the Matters of, 9 Wall. 175 Huchbergers, Insurance Co. v., 12 WaU. 164 Hudgins v. Kemp, 18 How. 530 . . . Hudson V. Guestier, 7 Cranch, 1 . . . Huger V. South Carolina, 3 Dallas, 339 . Hughes, Orchard v., 1 Wall. 73 . . . Humphrey v. Baker, 103 U. S. 736 . . Hunnicutt v. Peyton, 102 U. S. 333 Hunter's Lessee, Martin v., 1 Wheat. 304 Hurley v. Jones, 97 U. S. 318 . . . . Ihmsen, Martin v., 21 How. 394 . . Ingle, Stewart v., 9 Wheat. 526 .. . Inglee v. Coolidge, 2 Wheat. 363 . . Innerarity v. Byrne, 5 How. 295 . . . In re Paschal, 10 Wall. 483 ... . Insurance Co., Boogher v., 103 U. S. 90 1 6 =3 a 5 4 13 6 5 4 4 14 8 5 26 5 26 7 23 2 9 1 3 12 1 14 24 1 24 4 15 2 30 4 24 5 23 2 29 30 3 5 2 5 3 29 24 5 4 29 30 9 3 16 26 9 4 8 1 14 1 24 1 8 • 3 2 4 1 UNITED STATES SUPREME COURT. xli TABLE OF CASES. Insurance Co. v. Boon, 95 U. S. 117 .... Insurance Co. v. Folsom, 18 Wall. 23Y . . . Insurance Co. v. Huchbergers, 12 Wall. 164 . Insurance Co. v. Lanier, 95 U. S. 171 . . . Insurance Co., National Bank v., 100 U. S. 43 , Insurance Co., School District v., 101 U. S. 472 Insurance Co. v. Sea, 21 Wall. 158 Insurance Co. v. Tweed, 7 Wall. 44 ... . Ins. Co., Yalley of Virginia v. Mordecai, 21 How 195 In the Matter of Amendments to Rules 1 and 10, 108' U.S.I In the Matters of Howard, 9 Wall. 175 . . Isler, Barney v., 107 U. S. 629 Iowa, Bartemeyer v., 14 Wall. 26 ... . Jackson v. Ashton, 10 Pet. 480 Jackson, Caldwell v., 7 Cranch, 277 .... Jackson, Carver v., 4 Pet. 1 Jackson, JSTorris v., 9 Wall. 125 Jackson, Winchester v., 3 Cranch, 515 . . . . James v. McCormack, 105 U. S. 265 . . . . James v. Bank, 7 WaU. 692 Jemison, Treat v., 20 Wall. 652 ' Jenkins v. Banning, 23 How. 455 . . . . , Jennings v. " The Brig Perseverance," 3 Dallas, 336 Jerome v. McCarter, 21 Wall. 17 . . . . , Johnson v. Harmon, 94 U. S. 371 Johnson, Nations v., 24 How. 195 . . . . , Johnson, State of Mississippi v., 4 WaU. 475 . Johnson v. Waters, 108 IT. S. 4 Johnston v. Jones, 1 Black, 209 4 4 23 4 6 20 21 21 4 4 24 24 23 23 24 24 30 10 24 4 4 24 16 4 21 21 21 23 23 24 29 4 4 3 29 2 3 4 2 4 7 xlii GENERAL RULES OF THE TABLE OF CASES. Jones V. BuckeU, 104 U. S. 554 Jones, Hurley v., Q1 U. S. 318 , Jones, Johnston v., 1 Black, 209 . . " JonquiUe," The, 6 Wheat. 452 . Jordan, HaU v., 19 "Wall. 271 . . . Juan Madrazzo, Ex parte, 7 Pet. 627 Judson, Lathrop -y., 19 How. 66 . . Kail V. Wetmore, 6 Wall. 451 Kansas Pacific Kailway Co., Kiver Bridge Co. v., 92 U. S. 315 : . . \ Kearney v. Case, 12 Wall. 275 Kearney v. Denn, 15 Wall. 51 Keene v. Whittaker, 13 Pet. 459 Keith, Clark v., 106 U. S. 464 Kellogg V. Forsyth, 2 Black, 571 Kelsey v. Forsyth, 21 How. 85 Kelshaw, Gaylords -u., 1 Wall. 81 . . . . ' . ' Kemp, Hudgins v., 18 How. 580 Kemp, Smelting Co. v., 103 U. S. 666 ... Kennedy, Bank v., 19 Wall. 19 Kennicott, Supervisors v., 94 TJ. S. 498 Kennicott, Supervisors v., 103 U. S 554 Kerr v. Clampitt, 95 U. S. 188 . Keyser v. Farr, 105 XJ. S. 265 . . Kilbourne v. State Savings Institution of St' Louis, 22 How. 503 Kimball, County of Alexander v., 106 U. s' 623 Kirby Carpenter Co., Geekie -y., 106 U. S. 379 Kirk, The Texas Pacific Eailway Co. v.. Ill U S. 486 ... . Kitchen v. Eandolph, 93 U. S. 86 Knapp V. Eailroad Co., 20 Wall. 117 . Knight's Administrator, United States Black, 488 Koch, Eyan v., 17 Wall. 19 .'.'.'. ' ■u., 4 9 16 26 26 23 3 4 4 4 4 24 4 4 24 29 20 4 24 4 4 29 23 4 4 29 4 30 21 1 72 233 146 UNITED STATES SUPREME COURT. xliii TABLE OF CASES. Koch, Kyan v., IT Wail. 19 Kountze v. Omaha Hotel Co., 107 U. S. 3T8 . , Laber v. Cooper, 7 "Wall. 565 Ladd, Silver v., 6 "Wall. 440 , Lamar, Eeily v., 2 Cranoh, 344 Lambert, Kich v., 12 How. 347 " La Nereyda," 8 "Wheat. 108 Langdon, Glenny v., 94 U. S. 604 Lanier, Davidson v., 4 "Wall. 447 Lanier, Insurance Co. v., 95 U. S. 171 .... Larman v. Tisdale's Heirs, 11 How. 586 . . . Lash, Dayton v., 94 U. S. 112 Lathrop v. Judson, 19 How. 66 " La "Vengeance," The United States v., 3 Dallas, 297 Law, Adams v., 16 How. 144 Law, Rogers v., 21 How. 526 Lawson, Thomas v., 21 How. 331 .... Lear, Estho v., 7 Pet. 130 Lecanu, Leftwitch v., 4 "Wall. 187 .... Lee, Hopkins v., 6 Wheat. 109 .... LeffingweU, Swope v., 105 U. S. 3 . . . . Leftwitch v. Lecanu, 4 "Wall. 187 . . . Legerwood, Pickett's Heirs v., 7 Pet. 144 . Lessee of Charles C. Scott v. Thomas Eeid, Jr., 13 Pet. X Lessee of Eeed v. Marsh, 13 Pet. 153 . . . Lessee of Sayre & "Wife, Gregg v., 8 Pet. 244 Lessee of Tieman, Owings v., 10 Pet. 24 . . Lessor of Fisher v. Cockerell, 5 Pet. 248 Lide, "Wood v., 4 Cranch, 180 Life Ins. Co., Miller v., 12 WaU. 285 . . . Lincoln w. Claflin, 7 "Wall. -132 Lindsay, Railroad Co. v., 4 "Wall. 650 . . Lindsey, Fowler v., 3 Dallas, 411 .... Linton, Hook v., 10 Pet. 107 3 21 4 29 4 29 21 1 21 2 21 3 12 2 12 2 6 3 29 4 18 8 5 4 24 4 29 9 1 13 8 3 4 30 6 5 4 8 5 9 1 21 2 8 3 4 9 1 10 1 8 3 8 5 4 4 13 3 14 15 2 xliv GENEEAL KULES OF THE TABLE OP CASES. Livingston, Story v., 13 Pet. 359 .... Lloyd v. Alexander, 1 Cranch, 365 Lloyd, Scott v., 9 Pet. 418 Lomme, Sweeney v., 22 Wall. 208 " London Packet," The, 2 Wheat. 371 ... , Longworth, Hinde's Lessee v., 11 Wheat. 199 . Louisiana v. E"ew Orleans, 103 U. S. 521 . . , Louisiana National Bank, Selma, &c., P. E. Co -y., 94 U. S. 253 Lucas V. Brooks, 18 Wall. 436 " Lucy," The, 8 Wall. 307 Lumber Company v. Buchtel, 101 IJ. S. 633 . . " Mabey," The, 10 Wall. 419 " Mabey," The, 13 Wall. 738 Macker's Heirs v. Thomas, 7 Wheat. 530 . . Macomb v. Armstead, 10 Pet. 407 Macon & Brunswick Eailroad Co., Cunningham -y., 109 U. S. 446 . Madison, Marbury v., 1 Cranch, 137 Magniac v. Thompson, 7 Pet. 348 Magwire, Tyler v., 17 Wall. 253 Mandeville V. Eiggs, 2 Pet. 482 Mandeville, Welsh v., 5 Cranch, 321 . . Mansfield, Coldwater & L. M. E. E. Co. v Swan 111 U. S. 379 Marbury v. Madison, 1 Cranch, 137 .... Marcey, Town of Ohio v., 18 Wall. 552 . . Marsh, Lessee of Eeed v., 13 Pet. 153 ... , Marsteller, Faw-v,, 2 Cranch, 10 Martha Bradstreet, Ex parte, 4 Pet. 102 Martin v. Hazard Powder Co. 93 IJ. S. 302 Martin v. Hunter's Lessee, 1 Wheat. 304 Martin v. Ihmsen, 21 How. 394 . Martin, Young v., 8 Wall. 354 " Mary," The, 8 Cranch, 388 " ' ' Mason, Worthington v., 103 IJ. S. 149 .".'.' , 24 8 4 14 12 4 13 26 26 10 21 21 21 9 13 12 12 15 9 3 3 4 24 29 8 24 3 4 8 21 21 4 29 29 30 4 4 12 4 2 2 1 1 UNITED STATES SUPREME COURT. xlv TABLE OP CASES. o 1 Mathews, Bethell v., 13 Wall. 1 4 41 Matter of Amenrlments to Eules 1 and 10, 108 U. S. 1 . , 24 24 7 5 195 Matters of Howard, In the, 9 Wall. 175 .. . 188 Maxwell v. Newbold, 18 How. 611 .... 4 20 Maxwell v. Stewart, 21 Wall. 71 21 4 156 Mayer, Phelps ■y., 15 How. 160 4 20 Mayer v. Walsh, 108 U. S. 17 6 5 60 May's Executors, Skillern's Executors v., 6 Cranch, 267 . . 24 30 5 184 230 Mays V. Fritton, 20 Wall. 414 4 32 M' Arthur, Browder v., 7 Wheat. 58 ... . 24 5 184 30 231 McOarter, Jerome v., 21 Wall. 17 29 225 McClane v. Boon, 6 Wall. 244 15 1 131 McCormack, James v., 105 U. S. 265 . . . . 16 136 M'Culloch V. State of Maryland, 4 Wheat. 316 . 22 2 159 McGulre v. The Commonwealth, 3 Wall. 382 . 14 126 16 136 M'lver V. Wattles, 9 Wheat. 650 24 1 174 McKee v. Eains, 10 Wall. 22 23 2 165 M'Kinney v. Carroll, 12 Pet. 66 15 1 131 M'Knight v. Craig's Administrator, 6 Cranch, 183 24 3 179 McLemore, United States v., 4 How. 286 . . . 24 4 181 M'Niel V. Holbrook, 12 Pet. 84 23 2 164 McN"utt V. Bland, 2 How. 1 15 1 131 M'Eoberts, Cameron v., 3 Wheat. 591 ... 30 231 McVeigh v. United States, 8 Wall. 640 ... 8 5 82 Mechanics' Bank of Alexa.ndria'U. Seton,lPet. 299 13 121 Mercein, Barry v., 4 How. 574 26 1 202 26 7 208 Mesa V. United States, 2 Black, 721 9 1 94 Micas V. Williams, 104 U. S. 556 6 5 59 Miller, Blair v., 4 Dallas, 21 8 5 78 MiUer v. Life Ins. Co., 12 Wall. 285 ... . 4 41 MiUer v. The Ship " Eesolution," 2 Dallas, 19 . 30 230 MiUer v. The State, 12 Wall. 159 26 7 210 Milton, Field v., 3 Cranch, 514 14 124 Milwaukee Eailroad Co., The, Ms ^arte, 5 Wall. 188 29 222 Missouri K. & T. E. E. Co. v. Dinsmore, Prest. 108 U. S. 30 14 127 xlvi GENERAL RULES OF THE TABLE OF CASES. Mitchel V. United States, 9 Pet. 711 . . Mitchel V. The United States, 15 Pet. 52 Mitchell V. Harmony, 13 How. 115 . . Mitchell V. United States, 8 Pet. 307 . Montalet v. Murray, 3 Cranch, 249 . . Montalet v. Murray, 4 Cranch, 47 . . Moore v. Bank of Metropolis, 13 Pet. 302 . Mordecai, Ins. Co. Valley of Virginia v., 21 How. 195 Morgan v. Curtenius, 19 How. 8 . . . . Morgan, United States v., 11 How. 154 . . Morris, Bingham v., 7 Cranch, 97 .... . Morris, Dirst v., 14 "Wall. 484 Morris and Johnson, Ex parte Morton, Hinckley v., 103 U. S. 764 . . . . Moss, Gregg v., 14 Wall. 564 Mossman v. Higginson, 4 Dallas, 12 . MuUer v. Dows, 94 U. S. 277 ... Miiller v. Ehlers, 91 U. S. 249 Munroe, Dunlop v., 7 Cranch, 242 Murphy, Texas & Pacific Eailway Co. v.. Ill U S. 488 Murray, Montalet v., 3 Cranch, 249 Murray, Montalet v., 4 Cranch, 47 .... Mussina v., Cavazos, 6 Wall. 355 ... . Mutual Life Ins. Co. v. Snyder, 93 U. S. 393 Mj^ers, York Eailroad Co. v., 18 How. 246 12 13 4 9 4 24 6 4 21 21 21 20 4 4 29 16 24 24 24 24 4 8 4 4 24 5 24 5 23 1 20 1 16 24 1 24 1 24 2 24 3 4 8 14 5 UNITED STATES SUPREME COURT. xlvii TABLE OF CASES. National Bank v. Bank of Commerce, 99 U. S. 608 National Bank v. Omaha, 96 U. S. 737 .. . National Bank v. Insurance Co., 100 U. S. 43 Nations v. Johnson, 2i How. 195 New Orleans, Louisiana v., 103 U. S. 521 . . "New Orleans," The, 106 U. S. 13 .... Newbold, Maxweil v., 18 How. 511 ... . Nixon, Harrison v., 9 Pet. 483 " Nonesuch," The, 9 Wall. 504 Noonan v. Bradley, 9 "Wall. 394 Noonan v. Bradley, 12 Wall. 121 . . . . , Norris v. Jackson, 9 Wall. 125 Norton, United States v., 91 U. S. 558 . . . , O'Dowd V. EusseU, 14 Wall. 402 Ocean, Ins. Co., Sun Mut. Ins. Co. v., 107 U. S 485 Omaha'Hotel Co., Kountze v., 107 U. S. 378 . Omaha, National Bank v.,'96 U. S. 737 . . Omohundro, Cooper v., 19 Wall. 65 ... . Orchard v. Hughes, 1 Wall. 73 O'Reilly v. Edrington, 96 U. S. 724 ... . Osborn v. United States Bank, 9 Wheat. 738 Oswald, Administrator, v. State of New York, 2 Dallas, 401, 402, 415. ...... Overton v. Cheek, 22 How. 46 Owens V. Hanney, 9 Cranch, 180 .... Owings V. Lessee of Tiernan, 10 Pet. 24 . . Pacheco, United States v., 20 How. 261 . Pacific Ins. Co., Conard v., 6 Pet. 262 . . Packet Co. v. Clough, 20 Wall. 528 . . . Packard, Davis v., 7 Pet. 276 Packard, Davis v., 8 Pet. 312 0) 1 3 8 5 29 6 4 4 26 7 26 8 12 2 4 13 9 1 15 1 24 5 30 4 26 3 26 5 29 12 2 29 29 4 29 29 9 3 3 5 3 17 8 5 8 1 9 1 10 1 9 1 9 4 4 4 21 2 21 3 3 24 5 xlviii GENERAL EULES OF THE TABLE OF CASES. Packet Co. v. Sickles, 19 Wall. 611 .. . Palmer, Call v., 106 U. S. 39 Parpart, Gay v., 101 TJ. S. 391 .... Paschal, In re, 10 Wall. 483 Patten, Blackwell «., 7 Cranch, 277 . . . , Patterson, Bean v., 110 U. S. 401 . . . . I Patterson, Evans v., 4 Wall. 224 Pearle, Amis v., 15 Pet. 211 Peck V. Sanderson, 18 Hov^^ 42 Peirsol, Elliott v., 1 Pet. 328 Penhallow-y. Doane's Administrators, 3 Dallas, 54 Pennock v. Dialogue, 2 Pet. 1 Pennsylvania v. Quicksilver Co. 10 Wall. 553 Peimywit v. Eaton, 15 Wall. 382 Perkins v. Fourniquet, 14 How. 328 .... Petit, Barton v., 7 Cranch, 288 . Petitpain, Curtis v., 18 How. 109 Peugh V. Davis, 110 TJ. S. 227 . Peyton v. Brooke, 3 Cranch, 92 Peyton, Hunnicutt v., 102 U. S. 333 . . Phelps V. Mayer, 15 How. 160 Phillips, &c., Construction Co. v. Seymour, 91 TJ S. 646 Phillips V. Preston, 11 How. 294 . Pickersgill, Prentice v., 6 Wall. 511 . ' , Pickett's Heirs v. Legerwood, 7 Pet. 144 Pierce Co., Agricultural Co. v., 6 Wall. 246 Pierce v. Cox, 9 Wall. 786 . " Pizarro," The, 2 Wheat, 227 . Planters' Bank, Dickinson v., 16 Wall. 250 Poindexter v. Greenhow, 109 TJ. S. 63. 4 32 6 29 2 8 10 10 10 24 31 4 9 30 4 24 4 3 23 23 23 14 8 29 21 21 4 4 21 21 21 15 23 12 13 4 26 3 5 1 5 1 2 5 7 2 1 '3 2 3 4 2 2 5 1 5 5 2 UNITED STATES SUPREME COURT. xlix TABLE OF CASES. Poindexter v. Greenhow, 109 U. S. 63 . . Pomeroy's Lessee v. Bank of Indiana, 1 WaU. 592 Porter, Bradstreet v., 16 Pet. SlY .... Porter v. Foley, 21 How. 393 Portland Company v. United States, 15 Wall. 1 Poydras de la Lande v. Treasurer of 'Louisiana, 17 How. 1 Prentice v. Pickersgill, 6 WaU. 511 . . . President, &o., Bank of the United States Weisiger, 2 Pet. 481 Preston, Phillips v., 11 How. 294 ... . « Protector," The, 11 WaU. 82 Public Schools v. WaUcer, 9 WaU. 603 . . Purcell, Grigsby v., 99 U. S. 505 Quicksilver Co., Pennsylvania -u., 10 WaU. 553 Quimby, Ames v., 106 U. S. 842 EaUroad Co. v. Blair, 100 U. S. 661 . . Eaiboad Co., Brooks v., 102 U. S. lOY . Eailroad Co., Knapp v., 20 WaU. IIY . Eailroad Co. v. Lindsay, 4 Wall. 650 . Eailroad Co. v. Eeeves, 10 WaU.' 176 . . Eailroad Co., Sage v., 96 U. S. 712 . . EaUroad Co. v. Schutte, 100 U. S. 644 . EaUroad Co. v. Smith, 21 WaU. 255 . EaUroad Co. v. Soutter, 2 WaU. 510 . . Eailroad Co. v. TurriU, 101 U. S. 836 . EaUroad Co. v. YarneU, 98 U. S. 479 . Eains, McKee v. 10 WaU. 22 ... . Eandolph v. Barbour, 6 Wheat. 128 . . Eandolph, Kitchen v., 93 U. S. 86 . . Eeed v. Gardner, 17 WaU. 409 ... . Eeeves, Eailroad Co. v., 10 WaU. 176 . EeUly V. Golding 10 WaU. 56 ... . EeUy V. Laniar, 2 Cranoh, 344 . . . d 1 <1> 1 o 3 32 4 24 3 8 5 21 1 21 3 21 4 5 2 23 2 15 1 15 2 8 1 9 1 30 9 1 3 24 5 8 5 30 4 13 4 29 8 1 29 4 24 5 23 3 4 23 2 9 1 29 4 4 4 21 1 21 2 21 3 GENERAL RULES OF. THE TABLE OF CASES. Eew, Scholey v., 23 "WaU. 331 Rhodes v. The Steamship " Galveston," 10 How. 144 Rich V. Lambert, 12 How. 347 Richardson, Coddington v., 10 "Wall. 516 . . . Richmond, &c., R. R. Co., Hoge v., 93 IJ. S. 1 . Rickman, Steever v., 109 U. jS. 74 . . . Riggs, Mandeville v., 2 Pet. 482 . . . Riggs, Thompson v., 5 Wall. 633 . . . - . Rindskopf, United States v., 105 U. S. 418 Ringgold, United States v., 8 Pet. 150 . . " Rio Grande," The, 19 WaH. 178 . . . River Bridge Co. v. Kansas Pacific Railway Co, 92 U. S. 315 . Rodford v. Craig, 5 Cranch, 289 Roemer v. Simon, 91 U. S. 149 Rogers v. Law, 21 How. 526 Rogers v. The Marshal, 1 WaU. 644 . . . , Rose, Himely v., 5 Cranch, 313 Ross, Hogan v., 9 How. 602 . . . Rubber Co. v. Goodyear, 6 Wall. 153 RusseU, Clarke v., 3 Dallas, 415 . . Russell V. Ely, 2 Black 575 ... . RusseU, ^»^arfe, 13 Wall. 664 . . RusseU, O'Dowd v. , 14 WaU. 402 Ryan v. Koch, 17 WaU. 19 . . Sage V. Central R. R. Co., 93 U. S. Sage V. Railroad Co., 96 U. S. 712 Salamon, Stewart v., 97 U. S. 361 " Sally Magee," The, 3 WaU. 451 " Samuel," The, 1 Wheat. 9 . . " Samuel," The, 3 Wheat. 77 . 412 21 21 21 9 12 4 26 26 26 10 26 29 4 4 24 8 14 4 18 12 9 4 23 24 8 29 4 4 6 9 29 21 21 26 29 24 24 12 12 12 2 3 4 1 2 5 7 9 2 9 4 1 1 1 4 5 5 5 2 1 4 UNITED STATES SUPREME COURT. TABLE OF CASES, Sanderson, Peck v., 18 Hoat. 42 " San Pedro," The, 3 "Wheat. Y8 . " Santa Maria," The, 10 Wheat. 431 Schell V. Cochran, 107 U. S. 625 . Schell, Cochran v., 107 U. S. 625 . ScheU V. Dodge, 107 U. S. 629 . Scholey v. Eew, 23 WaU. 331 School District of Ackley v. HaU, 106 U. S. 428 School District v. Ins. Co. 101 U. S. 472 . . Schooner " Adehne," The, 9 Cranch, 244 . . Schooner " Catherine," v. The' United States, 7 Cranch, 97 Schutte,-Eailroad Co. v. 100 U. S. 644 . . . Scott, Boyd v., 11 How. 292 , Scott V. Lloyd, 9 Pet. 418 " S. C. Tryon," The,. 105 U.^. 267 Sea, Insurance Co., v. 21 Wall. 158 .... Selma, &c., E. E. Co. v. La. ISTat. Bank, 94 U. S, 253 , Seton, Mechanics' Bank of Alexandria v., 1 Pet, 299 Seward v. Corneau, 102 U. S. 161 . . . . , Seymour v. Freer, 5 Wall. 822 Seymour, Phillips, &c.. Construction Co. v., 91 U, S. 646 Sheldon, Hennessy v., 12 Wall. 440 .... Sheppard v. Wilson, 6 How. 260 Ship " Eesolution," Miller v., 2 Dallas, 19 . . Shoemaker, French v. 12 WaU. 86 Shutte V. Thompson, 15 Wall. 151 30 12 2 23 4 23 1 23 2 23 1 23 2 23 1 23 2 24 5 21 2 21 3 21 4 6 5 21 4 20 1 21 2 21 3 12 2 21 1 8 1 29 9 1 4 4 10 13 29 29 21 21 21 23 4 30 29 4 lii GENERAL RULES OF THE TABLE OP CASES. Sibbald, Expa/rte, v. The United States, 12 Pet, 488 Sickles, Packet Co. «., 19 Wall. 611 ... . Silver v. Ladd, 6 Wall. MO Simon, Eoemer -y., 91 U. S. 149 Simpson & Co. v. Dall, 3 Wall. 460 SkUIern's Executors v. May's Executors, 6 Cranch. 267 ' Slaughter House Cases, 10 Wall. 273 . . Smelting Company -y. Kemp, 103 U. S. 666 Smith V. Clark, 12 How. 21 Smith, Clay «., 3 Pet. 411 Smith, Craig «., 100 U. S. 226 Smith, Kailroad Co. v., 21 Wall. 255 .. . Smith, Yasse v., 6 Cranch, 226 .... Snyder, Mutual Life Ins. Co. v., 93 U. S. 393 Soulard v. The United States, 10 Pet. 100 South Carohna, Huger v., 3 Dallas, 339 . . Soutter, Eailroad Co. v., 2 Wall. 510 ... . Sparrow v. Strong, 3 Wall. 97 Spoiford, Brown -y., 95 U. S. 474 " S. S. Osborne," The, 104 U. S. 183 . . . . Stafford v. The Union Bank of Lou^iana, 16 How. 135 Stafford v. Union Bank of Louisiana, 17 How. 276 Stanton v. Embrey, 93 U. S. 548 Stanton, State of Georgia ■«., 6 Wall. 50 Starke, Watt v., 101 UT S. 247 " State of Connecticut, State of 'E^yr York v., 4 Dallas 1, 3 and 6 ' . State of Florida v. Anderson, 91 U. S. 667 . State of Florida v. State of Georgia, 11 How. 292 State of Florida 'o. State of Georgia, 17 How. 478 State of Georgia v. Brailsford, 2 Dallas, 402 . State of Georgia, Cherokee Nation «., 5 Pet. 1 24 4 29 12 4 24 30 29 20 9 15 8 4 4 4 24 3 5 5 24 9 4 29 9 4 3 4 3 5 3 3 5 12 3 3 1 1 1 4 2 3 5 1 UNITED STATES SUPREME COURT. liii TABLE OF CASES. State of Georgia v. Grant, 6 "Wall. 241 .. . State of Georgia v. Stanton, 6 "WaU. 50 . . , State of Georgia, State of Florida v., 11 How 292 State of Georgia, State of Florida v., 17 How. 478 State of Georgia, Worcester v., 6 Pet. 615 . . State of Iowa, State of Missouri v., 1 How. 666 State of Louisiana, State of New Hampshire v., 108 U. S. 76 State of Louisiana, State of New York v., 108 U S. 76 State of Maryland, McCuUoch v., 4 Wheat. 316 State of Maryland, Yanstophorst v., 2 Dallas, 401 State of Maryland, Ward v., 12 Wall. 163 . State of Massachusetts, State of Ehode Island v., 7 Pet. 651 State of Massachusetts, State of Ehode Island v., 11 Pet. 226 State of Massachusetts, State of Khode Island v. 12 Pet. 657, 755 State of Massachusetts v. State of Ehode Island 12 Pet. 755 State of Massachusetts, State of Ehode Island v., 13 Pet. 23 State of Massachusetts, State of Ehode Island v., 14 Pet. 210 , State of Massachusetts, State of Ehode Island v., 15 Pet. 233 State, The, Miller v., 12 WaU. 159 ... State of Mississippi v. Johnson, 4 WaU. 475 State of Missouri v. State of Iowa, 7 How. State of New Hampshire v. State of Louisiana, 108 U. S. 76 3 3 3 5 3 12 8 3 3 3 22 3 26 3 5 3 3 5 3 26 3 3 Hv GENERAL RULES OF THE TABLE OF CASES. State of New Jersey v. State of New York, 3 Pet. 461 State of New Jersey v. State of New York, 5 Pet. 284 State of New Jersey v. State of New York, 6 Pet. 323 State of New York, Oswald, Administrator v., 2 Dallas, 401, 402, 415 State of New York v. State of Coim.ecticut, 4 Dallas, 1, 3 and 6 State of New York v. State of Louisiana, 108 U S. T6 . State of New York, State of New Jersey v., 3 Pet. 461 State of New York, State of New Jersey v., 6 Pet. 284 State of New York, State of New Jersey v . 6 Pet. 323 . State of Pennsylvania v. The Wheeling & ' Bel- mont Bridge Co., 9 How. 647 .... State of Pennsylvania v. The "Wheeling & Bel- mont Bridge Co., 11 How. 528 State of Pennsylvania v. The Wheeling & Bel- mont Bridge Co. 13 How. 518 State of Pennsylvania ■;;. The Wheehng &' Bel- mont Bridge Co., 18 How. 421 . . State of Rhode Island v. State of Massachusetts! 7 Pet. 651 ... 3 5 5 3 5 5 5 3 5 n 3 5 3 5 5 3 5 5 5 3 12 3 3 3 3 5 1 2 3 UNITED STATES SUPREME COURT. Iv TABLE OF CASES. State of Rhode Island v. State of Massachusetts, 11 Pet. 226 State of Ehode Island v. State of Massachusetts, 12 Pet. 657, 755 State of Ehode Island, State of Massachusetts v., 12 Pet. 755 State of Ehode Island, State of Massachusetts v., 13 Pet. 23 State of Ehode Island v. State of Massachusetts, 14 Pet. 210 State of Ehode Island v. State of Massachusetts, 15 Pet. 233 State, The, Euckman, Prosecutor v. Demarest, Collector, 110 U. S. 400 State Savmgs Institution of St. Louis, Kilbourne v., 22 How. 603 Steamer " Yirmnia " v. "West, 19 How. 182 . . Steamship " Galveston," The, Ehodes v., 10 How. 144 Stearns v. The United States, 4 "Wall. 1 . . . Steever v. Eickman, 109 U. S, 74 Stewart v. Ingle, 9 "Wheat. 526 Stewart, Maxwell v., 21 Wall. 71 Stewart v. Salamon, 97 U. S. 361 Stewart, Washington Bridge Co. v., 3 How. 413 Stimpson v. West Chester E. E. Co., 3 How. 553 Stimpson v. West Chester E. E. Co. 4 How. 380 " St. Lawrence," The, 8 Cranch, 434 ... . St. Louis V. The Ferry Co., 11 Wall. 423 .. . St. Louis & S. E. E. E. Co., Haskins v., 109 U. S. 106 Stockton V. Bishop, 2 How. 74 Storm V. United States, 94 U. S. 76 . . . . i 3 3 3 5 3 3 3 3 9 1 15 2 23 2 9 1 9 1 14 10 2 26 9 8 1 14 21 4 24 1 24 5 24 5 4 14 4 12 2 4 8 5 29 29 4 Ivi GENEEAL RULES OF THE TABLE OF CASES. Story, Expa/rU, 12 Pet. 339 Story V. Livingston, 13 Pet. 359 Strader v. Graham, 18 How. 602 Strong, Sparrow v., 3 "Wall. 97 Sturgess v. Harrold, 18 How. 40 Sun Mut. Ins. Co. v. Ocean Ins. Co. 107 U. S. 485 Supervisors v. Kennicott, 94 TJ. S. 498 . . . Supervisors v. Kennicott, 103 U. S. 554 . . Sutton V. Bancroft, 23 How. 320 Suydam v. "WiUiamson, .20 How. 427 . . . Swan, Bank of the United States v., 3 Pet. 68 Swan, Mansfield, Coldwater & L. M. K Co. Ill U. S. 379 Sweeney v. Lomme, 22 Wall. 208 .... Swope V. Lefflngwell, 105 U. S. 3 .... Taylor, Beaver v., 93 U. S. 46 Telegraph Co. v. Eyser, 19 Wall. 419 . . . Texas -y. Hardenberg, 10 Wall. 68 . . . Texas v. White, 7 WaU. 700 Texas & Pacific Railway Co. v. Kirk, 111 U. S. 486 Texas & Pacific Eailway Co. v. Murphy, 111 U. The "Abbotsford,'" 98 U. S. 440 .'.'.'.'.' . The " Adriatic," 103 U. S. 730 . . The " Adriatic," 107 U. S. 612 . . The " AUcia," 7 Wall. 571 .. . The "Amiable Isabella," 6 Wheat. 1 The "Anne," 3 Wheat. 435 . . . The " Annie Lindsley," 104 U. S. 185 The "Antelope," 12 Wheat. 546 . The "Argo," 2 Wheat. 287 . . The " Atalanta," 3 Wheat. 409 . The " Benefactor," 102 U. S. 214 4 24 24 24 12 24 4 23 4 9 24 14 6 4 29 3 3 5 29 4 8 12 8 12 4 12 9 12 12 12 24 12 12 4 12 5 6 1 1 1 2 5 2 6 ■2 2 1 2 2 2 4 2 2 2 36 185 185 174 94 93 120 189 45 165 27 91 175 126 60 41 224 55 55 51 61 84 229 44 86 120 86 120 46 120 95 117 117 120 181 118 117 44 120 UNITED STATES SUPREME COURT. Ivii / TABLE OF CASES. 6 ■3 i 3 p< "The Brig Perseverance," Jennings v., 3 Dallas, 336 23 24 4 7 170 195 The Brig "Union," The United States v., 4 Cranoh. 215 19, 9, 118 The Cherokee ISfation v. State of Georgia, 5 Pet. 1 . 3 24 1 13 The Collector, Hornthall v., 9 Wall. 560 .. . 174 The Comnaonwealth, McGuire v., 3 Wall. 382 . 14 16 12 126 1 Q« The " Dos Hermanos," 2 Wheat. 76 .... 2 116 The " Dos Hermanos," 10 Wheat. 306 .. . 29 119 The"Douro,"3WaU. 564 23 4 171 The " Elsineur," 1 Wheat. 439 8 4 77 The " Euphrates," 8 Cranch, 385 12 2 115 The " Eutaw," 12 Wall. 136 6 6 61 23 4 171 26 7 209 The "Experiment," 4 Wheat. 84 12 2 117 The Farmers' Bank of Alexandria, Veitch v., 6 Pet. TYT 9 4 1 91 The Ferry Co., St. Louis v., 11 WaU. 423 . . . 41 The"Fortuna,"2Wheat. 161 12 2 116 The " Fortuna," 3 Wheat. 237 12 2 117 The "Frances" (Durham & Eandolph's Claim), 8 Cranch, 354 12 2 115 The " Frances" (Graham's Claim), 8 Cranch, 348 12 2 115 The " Frances " (Thompson et al. Claimants), 8 Cranch, 335 12 4 2 114 The " Francis Wright," 105 U. S. 381 .. . 46 12 2 120 The"Friendschaft,"3Wheat. 14 12 2 116 The " George," 1 Wheat. 408 12 2 115 The " Georgia," 7 WaU. 32 12 2 118 The " Gray Jacket," 5 Wall. 342 12 2 117 The " Gray Jacket," 5 WaU. 370 22 2. 159 The " Grotius," 8 Cranch, 456 12 2 115 The " JonquiUe," 6 Wheat. 452 9 1 91 The Lessor of Fisher v. CockereU, 5 Pet. 248 . 8 3 75 The " London Packet," 2 Wheat. 371 ... . 12 2 116 The"Lucy,"8 Wall. 307 9 1 96 The " Mabey," 10 WaU. 419 12 2 119 The"Mabey,"13 Wall. 738 12 2 119 Iviii GENERAL RULES OF THE TABLE OP CASES. The Marshal, Eogers v., 1 Wall. 644 . The " Mary," 8 Cranch, 388 ... . The Milwaukee Kailroad Co., Me parte, The " JSTew Orleans," 106 U. S. 13 . The " Nonesuch," 9 WaU. 504 ... The " Pizarro," 2 Wheat. 227 .. . The Planters' Bank, Dickinson v., 16 Wall. 250 The President, etc.. Bank of the United States v. Weisiger, 2 Pet. 481 The " Protector," 11 Wall. 82 The "Eio Grande," 19 Wall. 178 ...'.. The " SaUy Magee," 3 WaU. 451 . The " Samuel," 1 Wheat. 9 . . The " Samuel," 3 Wheat. 77 . . . The " San Pedro," 3 Wheat. 78 . The " Santa Maria," 10 Wheat 431 The Schooner "Adeline," 9 Cranch, 244 . . The " S. C. Tryon," 105 U. S. 267 .... The Ship " Resolution," Miller v., 2 Dallas, 19 The " S. S. Osborne," 104 U. S. 183 . . . . The State, MiUer v., 12 WaU. 159 The State, Euckman, Prosecutor, v. Demarest, Collector, 110 U. S. 400 " . The Steamship " Galveston," Ehodes v., 10 How 144 The " St. Lawrence," 8 Cranch, 434 . The Texas & Pacific Eail way Co. v. TCirk 111 TJ S.486 The Union Banlc of Louisiana, Stafford v., 16 How. 135 ' The United States v. Barker, 2 Wheat. 395 . The United States v. Booth, 18 How. 476 ■3 s W d 4 12 2 29 12 2 9 1 12 2 13 4 15 1 8 1 9 1 8 1 14 12 2 12 2 12 2 12 2 23 4 24 5 12 2 4 6 5 30 8 6 14 26 7 9 1 15 2 9 1 12 2 5 1 6 5 8 5 9 1 29 24 4 26 8 UNITED STATES SUPKEME COURT. lix TABLE OF CASES. The United States, Brig " James Wells," v. T Cranch, 22 The United States v. Eliason, 16 Pet. 291 . . . The United States, Ex ;parU Sibbald v., 12 Pet. 488 The United States, Fenemore ■;;., 3 Dallas, 357 The United States v. " La Yengeance," 3 Dallas, 297 The United States, Mitchel v., 9 Pet. 711 . The United States, Mitchel v., 15 Pet. 52 . The United States, Schooner " Catherine " v., 7 Cranch, 97 The Umted States, Soulard v., 10 Pet. 100 . . The United States, Stearns v., 4 "WaU. 1 . . . The United States v. The Brig " Union," 4 Cranch, 215 The United States ^.Wilkinson,' 12 How. 246 .' , The " Venus," 1 Wheat. 112 The "Venus," 5 Wheat. 127 , The " Western Metropohs," 12 Wall. 389 . . The Wheehng & Belmont Bridge Co., State of Pennsylvania v., 9 How. 647 . . . The Wheeling & Belmont Bridge Co., State of Pennsylvania v., 11 How. 528 . . . The Wheehng & Behnont Bridge Co., State of Pennsylvania v., 13 How. 518 .... The Wheeling & Belmont Bridge Co., State of Pennsylvania v., 18 How. 421 . . . Thomas & Co. v. Wooldridge, 23 WaU. 283 . Thomas v. Lawsbn, 21 How. 331 .... Thomas, Macker's Heirs v., 7 Wheat. 530 . . Thomas Eeid, Jr., Lessee of Charles C. Scott v., Pet. X Thompson, Magniac v., 7 Pet. 348 . . . Thompson v. Eiggs, 5 Wall. 633 ... . Thompson, Shutte v., 15 WaU. 151 .. . Tilden v. Blair, 21 WaU. 241 TiUinghast, Mc parte, 4 Pet. 108 - . . . Tippmg, Bailiff v., 2 Cranch, 406 ... . 1 6 i 5 12 2 4 24 5 30 14 24 4 12 1 13 24 5 24 5 21 1 24 5 14 12 2 4 12 2 24 3 12 2 3 12 1 3 3 3 6 4 13 15 1 21 2 4 4 4 21 4 2 1 8 5 Ix GENERAL RULES OF THE TABLE OP CASES. Tisdale's Heirs, Larman v., 11 How. 586 . . Town of Ohio v. Marcy, 18 WaU. 552 .. . Treasurer of Louisiana, Poydras de la Lande v. lY How. 1 Treat v. Jemison, 20 Wall. 652 Trout, Holmes v., Y Pet. lYl Turner v. Yates, 16 How. 14 . . . Turrm, Eailroad Co., v., 101 U. S. 836 Tweed, Flanders v., 9 Wall. 425 . . Tweed, Flanders v., 15 Wall. 451 . Tweed, Insurance Co. v., T Wall. 44. . Tyler, Harvey v., 2 Wall. 328 . . . Tyler v. Magwire, 17 Wall. 253 . . . Tyng V. GrinheU, 92 U. S. 467 . . Union Bank of Louisiana, Stafford v., 16 How. 135 Union Bank of Louisiana, Stafford v., 17 How. 275 . . . United States v. Adams, 9 Wall. 661 ... United States, Alviso v., 5 Wail. 824 . . . . United States, Alviso v., 6 WaU. 457 . . . . ' United States, Alvord v., 99 U. S. 593 . . United States Bank, Osborn v., 9 Wheat. 738 . United States, v. Barker, 2 Wheat. 395 . . . United States v. Breitling, 20 How. 252 . United States, Brig " James WeUs " v., 7 Cranch 22 . . ' United States v. Brig " Union " 4 Cranch, 215 United States v. Boisdore's Heirs, 7 How. 658 United States v. Booth, 18 How. 476 United States v. Boyd, 5 How. 29 United States v. Carey, 110 U. S. 5l" .'.".'. ' 1 3 1 18 138 4 42 5 2 53 21 2 149 21 3 153 21 4 156 12 1 112 14 125 4 25 23 3 170 4 40 4 31 4 39 4 20 24 5 189 4 44 29 29 14 16 26 26 9 24 4 12 12 9 8 26 24 4 UNITED STATES SUPREME COURT. Ixi TABLE OF CASES. United States, Castro v., 3 "Wall. 46 United States v. Curry, 6 How. 106 United States v. Dashiel, 3 Wall. 688 . . . . United States, Edwards v., 102 U. S. 575 . . . United States -y. Eliason, 16 Pet. 291 . . . . United States v. Estudillo, 1 Wall. YIO. . . , United States, The, Mc pa/rte Sibbald v., 12 Pet. 488 United States, Farrar v., 3 Pet. 459 .... United States, The, Fenemore v., 3 Dallas, 357 . United States, Field v., 9 Pet. 182 United States v. Fossatt, 21 How. 445 United States v. Fremont, 18 How. 30 United States, German v., 5 Wall. 825 .... United States v. Gomez, 23 How. 326 ... United States v. Gomez, 1 Wall. 690 ... . United States v. Gomez, 3 Wall. 752 . . . . United States v. Hamilton, 3 Dallas, 17 . . . United States, Hawthorne, Claimant of Brig " Clarissa Claiborne," v., 7 Cranch, 107. . United States v. Hodge, 6 How. 279 ... . United States v. Hooe, 3 Cranch, 73 ... . United States v. Hough, 103 U. S. 71 . . . . United States v. Knight's Administrator, 1 Black, 488 United States, The, v. " La Yengeance," 3 Dallas, 297 United States v. McLemore, 4 How. 286 . . . United States, McYeigh, v., 8 Wall. 640 . . . United States, Mesa v., 2 Black 721 United States, Mitchel v., 9 Pet. 711 ... . United States, Mitchel v., 15 Pet. 52 United States, Mitchell v., 8 Pet. 307 . United States v. Morgan, 11 How. 154 « 1 i B 5 8 9 4 8 5 9 3 29 10 1 4 28 24 5 30 16 14 4 24 5 26 5 9 1 24 5 9 4 9 1 24 5 14 9 1 12 1 12 2 4 24 4 4 30 24 4 24 4 8 5 9 1 12 1 13 24 5 24 5 20 1 4 Ixii GENERAL ETJLES OP THE TABLE OP CASES. United States v. Norton, 91 U. S. 558 . . United States v. Pacheco, 20 How. 261 . . United States, Portland Co., v., 16 "Wall. 1 . United States v. Kindskopf, 105 U. S. 418 . United States v. Einggold, 8 Pet. 150 ... United States, The, Schooner " Catherine " v., T Cranch, 97 United States, The, Soulard v., 10 Pet. 100 . United States, The, Stearns v., 4 Wall. 1 . United States, Storm v., 94 U. S. 76 . . . . United States v. Vigil, 10 Wall. 423 .. . United States, Villabolos v., 6 How. 81 . . United States, Walton v., 9 Wheat. 651 . . United States v. Wilkinson, 12 How 246 . . United States v. Yates, 6 How. 605 .. . United States v. Young, 94 U. S. 258 .. . Vallandigham, Expa/rte, 1 Wall. 243 . . . Vance u Campbell, 1 Black, 427 . ... Van Eensselaer v. Watt's Executors, 7 How. 784 Vanstophorst v. State of Maryland,,^ Dallas, 401 Varnell, Eailroad Co. v., 98 U. S. 479 Vasse «. Smith, 6 Cranch, 226 Vaughan, Hodges v., 19 Wall. 12 . ..." Veitch v. The Farmers' Bank of Alexandria Pet. 777 .... "Venus,"The,l Wheat. 112 .'.' " Venus," The, 5 Wheat. 127 . . Villabolos -y. United States, 6 How. 81 . " ' Virgil, United States v., 10 Wall. 423 . Virginia, Grayson •y., 3 Dallas, 320 ..." Virginia, Hollingsworth w., 3 Dallas, 378 Virgmia v. West Virginia, 11 Wall. 39 Von Braam, Brown w., 3 Dallas, 344 Walker, PubUc Schools v., 9 Wall. 603 ., , I 26 26 9 9 21 21 21 4 24 21 24 14 4 9 8 4 24 4 8 17 14 14 4 10 3 4 4 14 12 24 3 5 3 3 23 30 3 5 1 4 1 3 4 4 5 1 2 3 5 4 UNITED STATES SUPREME COURT. Ixiii TABLE OP CASES. WaU, Ex parte, 107 U. S. 265 "Wallace, Cotton v., 3 Dallas, 302 ... . Waller, Bigler v., 12 Wall. 142 Walsh., Mayer v., 108 U. S. 17 Walton V. United States, 9 Wheat. 651 . . Ward V. State of Maryland, 12 Wall. 163 . Warren, County of Madison v., 106 U. S. 622 Washington Bridge Co. v. Stewart, 3 How. 413 Washington Co. v. Durant, 7 Wall. 694 . . Waters, Johnson v., 108 U. S. 4 Watkins, Green v., 6 Wheat. 260 ... . Watson, Bondurant, Tutrix v., 103 U. S. 278 . Watt V. Starke, 101 U. S. 247 Wattles, M'lver v., 9 Wheat 650 Watt's Executors, Van Rensselaer v., 7 How. 784 Weems v. George, 13 How. 190 Weisiger, The President, etc.. Bank of United States v., 2 Pet. 481 ' Welsh V. MandeviUe, 6 Cranch, 321 .. . West V. Brashear, 12 Pet. 101 West V. Brashear, 14 Pet. 51 West, Steamer " Yirginia," v., 19 How. 182 . Westchester E. E. Co., Stimpson v., 3 How. 553 Westchester E. R. Co., Stimpson v., 4 How. 380 " Western Metropolis," The, 12 Wall. 389 . West Virginia, Virginia v., 11 Wall. 39 . . . West Wisconsin Eailway Co. v. Foley, 94 U. S 100 Wetmore, Kail v., 6 Wall. 451 Wheeling & Belmont Bridge Co., The, State of Pennsylvania v., 9 How. 647 .... Wheeling & Belmont Bridge Co., The, State of Pennsj'^lvania v., 11 How. 528 Wheeling & Belmont Bridge Co., The, State of Pennsylvania v., 13 How. 518 WheeUng & Belmont Bridge Co., The, State of Pennsylvania v., 18 How. 421 2 1 23 2 29 6 5 4 24 2 26 3 4 24 5 8 -5 29 15 1 5 1 8 5 4 24 1 10 1 4 15 1 8 5 9 1 10 1 24 5 9 1 4 14 4 12 2 3 23 2 23 3 8 1 3 12 1 3 3 3 Ixiv SUPREME COUET RULES. TABLE OF CASES. "Whipple, Ambler v., 23 Wall. 278 White V. Greenhow, 109 U. S. 63 . White, Texas v., 1 WaU. 68 . . Whitney v. Cook, 99 U. S. 60Y . . Whittaker, Keene v., 13 Pet. 459 Wiggins V. Burkham, 10 WaU. 129 Wiggins, Deitsch v., 15 WaU. 539 Wilcox, CampbeU v., 10 WaU. 421 ... WUder, Gayler v., 10 How. 509 Wilkinson, The United States v., 12 How. 246 WiUiams v. Claflin, 103 U. S. T53 . . . . Williams, Micas v., 104 U. S. 556 .... WUKamson, Suydam v., 20 How. 427 . . WUson, Sheppard v., 6 How. 260 .... Winchester v. Jackson, 3 Cranch, 515 . . Wisconsin v. Duluth, 96 U. S. 379 ... . Wood V. Lide, 4 Cranch, 180 Wooldridge, Thomas & Co. v., 23 WaU. 283 . Worcester v. State of Georgia, 6 Pet. 515 . Worthington v. Mason, 101 U. S. 149 .. . Wylie V. Coxe, 14 How. 1 Yates, Turner v., 16 How. 14 Yates, United States v., 6 How. 605 . . York Eaih-oad Co. v. Myers, 18 How. 246 Young V. Martin, 8 WaU. 354 ... . Young, United States v., 94 U. S. 258 . . Zeller's Lessee v. Eokert, 4 How. 289 30 26 3 •6 23 8 8 4 21 21 21 23 14 4 29 6 4 4 24 3 4 24 17 4 4 14 5 2 1 3 2 3 4 2, 5 4 1 MEMORAISTDUM OF ADDITIONS AND CORRECTIONS. Additions to the General Rules of the Supreme Court OF the United States. The following authorities in Part 5 of 111 U. S. Reports appeared too late for Insertion at length under the appropriate Clauses of the Rules to which they refer, and are, therefore, here cited by title merely, under the Rule and Clause to which each properly refers. Rule 9, Clause 1. — At end of authorities on page 96, see, also, KilHan, administrator, v. Clark, 111 U. S. 784 (May 5, 1884). Rule 24, Clause 5. — At end of authorities on page 191, see, also, Killian v. Ebbinghaus, 111 U. S. 798 (May 5, 1884). Changes in the Judges of the District and Territorial Courts since the Tables of Statistics beginning at Page 861 WERE prepared, and which cannot be Cor- rected Therein. DiSTBiCT OF Rhode Island. District Court. — The Honorable Le Baron B. Colt, District Judge (see page 870), has been appointed Judge of the Circuit Court of the United States for the First Judicial Circuit. He has not as yet resigned as District Judge, and his successor as District Judge has not yet been appointed. His name is, therefore, still retained as District Judge. Alaska.— By Act of Congress of May 17, 1884, ch. 36, entitled " An Act to provide a civil government for Alaska," the Territory of Alaska was organized as constituting a Civil and Judicial District, and a District Court was estab- lished for said District, and provision was made for the appointment of a Dis- trict Judge for said District, and that at least two terms of the Court shall be held in the District in each year, one at Sitka, beginning on the first Monday in May, and the other at Wrangel, beginning on the first Monday in Novem- ber, and such special sessions as may be necessary for the despatch of busi- ness. Provision was made for the appointment of a Clerk, District Attorney, Marshal, etc. , with offices of the Clerk at Sitka and Wrangel, and of the Marshal at Sitka, Wrangel, Oonalashka and Juneau City. Ixvi MEMORAISTDUM. Under this Act the follo\t^ing appointments have been made: Ward McAllister, Jr., of California, to be United States Judge for the District of Alaska. E W. Haskell, to be United States Attorney for the District of Alaska. Andrew T. Lewis, of Illinois, to be Clerk of the United States Court for the District of Alaska. M. C. HiLLYER, of California, to be Marshal of the United States Court for the District of Alaska. i Dakota. — The following appointments of additional Associate Justices of the Supreme Court of the Territory of Dakota have been made, under the Act of Congress of July 4, 1884, ch. 86 : "William H. Francis, of New Jersey. Sbwakd Smith, of Iowa. For the other Associate Justices of Dakota, see p. 912. Washington. — George Turner, of Alabama, has been appointed an addi- tional Associate Justice of the Supreme Court of the Territory of Washington, under the Act of Congress of July 4, 1884, ch. 86. For the other Associate Justices of Washington, see p. 914. GENERAL RULES OF THE SUPREME COURT OF THE UNITED STATES, ADOPTED JANUARY 1th; 1884. ANNOTATED, AND WITH A HISTORY OF EACH RULE. Mule 1. CLEEK. 1. The clerk of this court shall reside and keep the office at the seat of the National Government, and he shall not practise, either as at- torney or counsellor, in this court, or in any other court, while he shall continue to be clerk of this court. HISTORY. This Clause is, with some alterations, Original General Rule 1, adopted February 3d, 1790, 1 Cranch, xvi., and 1 How. xxiii. This Original General Rule, after appointing a clerk by name, was in these words, viz. : "That he reside and keep his office at the seat of the national gov- ernment, and that he do not practise, either as an attorney or a counsellor, in this court, while he shall continue to be clerk of the same." Original General Rule 1 will be found in 1 Wheat, xiii. and 1 Pet. v., in the same words as last above quoted, except that the words "the clerk of this court do " are substituted for the word ' ' he " in the first line thereof. 1 2 GENERAL RULES OF THE [Rule 1. In the Revisions of December Term, 1858, 21 How. v., and of May 1st, 1871, this Clause appears as the first Clause of General Rule 1, which is in the same language as is used in Clause 1 of the present General Rule 1, with the exception of some slight verbal alterations, and differs sub- stantially from Original General Rule 1, only by the incorporationi of the words "or any other court " after the words "in this court." For this Clause in the Revision of 1884, see 108 U. S. 573. FEDERAI. STATUTES. "Sec. 677. The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions." Revised Statutes (Second Edition), § 677, p. 135 ; Act of Congress of 34th September, 1789, ch. 30, sec. 7, 1 Stat, at Large, 76. "Sec. 678. One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and may be removed at the pleasure of the court. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in ofHce and perform the duties of the clerk iu liis name until a clerk is appointed and qualified ; and for the defaults or misfeasances in office of any sucli deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and tlie sureties in his official bond shall be liable ; and his executor or administrator shall have such remedy for any such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had oc- curred in his lifetime." Revised Statutes (Second Edition), § 678, p. 125 ; Act of Congress of 8th June, 1872, ch. 336, 17 Stat, at Large, 830. " Sec. 748. No clerk, assistant or deputy clerk, of any Territorial, Dis- trict, or Circuit Court, or of the Court of Claims, or the Supreme Coui-t of the United States, or marshal or deputy marshal of the United States within the district for which he is appointed, shall act as a solicitor, proctor, attorney, or counsel in any cause depend- ing in either of said courts, or in any district for which he is acting as such oflScer." Revised Statutes (Second Edition), § 748, p. 141 ; Act of Congress of 16th January, 1873, ch. 36, sec. 1, 17 Stat, at Large, 411. " Sec. 749. "Whosoever violates the preceding section shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice, and be heard in his defence; and in the case of a marshal or deputy marshal so acting, he shall be recommended by the court for dismissal from office " Revised Statutes (Second Edition), § 749, p. 141 ; Act of Congress of 16th January, 1873, ch. 36, sec. 2, 17 Stat, at Large, 411. RuLB l.J UNITED STATES SUPREME COURT. 3 " Sec. 794. The clerk of the Supreme Court, and every clerk and deputy clerk of a Circuit or District court, shall, before he enters upon the execution of his office, take an oath or afflrmation in the following form: 'I, A. B., being appointed a clerk of , do sol- emnly swear (or affirm) that I will truly and faithfully enter and record all the orders, decrees, judgments, and proceedings of the said court, and that I will faithfully and impartially discharge and perform all the duties of my said office, according to the best of my abilities and understanding. So help me God.' The words ' so help me God ' shall be omitted in all cases where an affirmation is admitted instead of an oath." Eevised Statutes (Second Edition), § 794, p. 149 ; Act of Congxess of a4th September, 1789, ch. 30, sec. 7, 1 Stat, at Large, 76. See also sections 1756 and 1757, Revised Statutes (Second Edition), pp. 313 and 313, for the forms of oath to be taken by every person elected or appointed to any office of honor or profit, either in the civil, military or naval service, excepting the President, and for the modified form of such oath to be taken by persons who cannot take the full form of oath on account of tljeir participation in the late rebellion, and the Act of Congress of 3d July, 1863, ch. 138, 13 Stat, at Large, 503; Act of Congress of 11th July, 1868, ch. 139, 15 Stat, at Large, 85; Act of Congress of 15tli Febru- ary, 1871, ch. 53, 16 Stat, at Large, 413. "Sec. 795. The clerk of every court shall give bond, in a sum to be fixed and with sureties to be approved by the court which appoints him, faithfully to discharge the duties of his office; and seasonably to record the decrees, judgments, and determinations of the court of which he is dark ; and a new bond may be required whenever the court deems it proper that such bond should be given. A copy of every bond given by a clerk shall be entered on the journal of the court for which he is appointed, and the bond shall be deposited for safe keeping as the court may direct. A certified copy of such entry shall he prima facie proof of the execution of such bond and of the contents thereof." Revised Statutes (Second Edition), § 795, p. 149; Act of Congress of 34th September, 1789, ch. 30, sec. 7, 1 Stat, at Large, 76; Act of Congress of 3d March, 1863, ch. 93, sec. 3, 13 Stat, at Large, 768. "Sec. 3. That the clerks of the Supreme Court and the Circuit and District Courts, respectively, shall e.ach, before he enters upon the execution of his office, give bond, with sufficient sureties, to be ap- proved by the court for which he is appointed, to the United States, in the sum of not less than five, and not more than twenty thousand dollars, to be determined and regulated by the Attorney- General of the United States, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments, and deter- minations of the court of which he is clerk; 4 GENERAL RULES OF THE [Rule 1. "And it shall be the duty of the District Attorneys of the United States, upon i-equirement by the Attorney-General, to give thirty days notice of motion in their several courts that nevir bonds, in ac- cordance with the terms of this Act, are required to be executed; and upon failure of any clerk to execute such new bonds, his office shall be deemed vacant. " The Attorney-General may at any time, upon like notice through the District Attorney, require a bond of increased amoant, in his dis- cretion, from any of said clerks within the limit of the amount above specified ; and the failure of the clerk to execute the same shall in like manner vacate his office. All bonds given by the clerk, shall, after approval, be recorded in their respective offices, and copies thereof from the records, certified by the clerks respectively, under seal of court, shall be competent evidence in any court. The original bonds shall be filed in the Department of Justice." Act of Congress of 33d February, 1875, ch. 95, sec. 3, 18 Stat, at Large, 333. For Statutes respecting the fees of the Clerk, see Clause 7, Rule 24. For other provisions relating to Clerks generally, the supervision and presentation of their accounts, their failure to deposit moneys received, their embezzlement, &c., of moneys, records, vouchers, &o., and the pun- ishment therefor of Clerks, &c., and which provisions of law are not espe- cially applicable to this Rule, see Revised Statutes (Second Edition), §§ 368, 798, 5504 and 5505, pp. 63, 149, 1066 and 1067 respectively, and Act of Congress of 33d February, 1875, ch. 95, 18 Stat, at Large, 333 ; Act of Congress of 3d March, 1875, ch. 144, 18 Stat, at Large, 479. 2. The clerk shall not permit any original record or paper to be taken from the court room, or from the office, without an order from the court, except as provided by Rule 10. HISTORY. This Clause is, with some alterations, the successor of Original General Rule 12, adopted August 7th, 1797, which will be found in 3 Dallas, 377 ; 1 Cranch, xviii. ; 1 Wheat, xv. ; 1 Pet. vii., and 1 How. xxv., in these words, viz.: "It is ordered by the court, that no record of the court be suffered by the clerk to be taken out of his office, but by the consent of the court; otherwise, ["he is"— these words in 3 Dallas, 377], "to be responsible for it.'' On February 19th, 1835, Original General Rule 13 appears to have been modified by the adoption of an Original General Rule numbered 34, as Rule 1.] UNITED STATES SUPREME COURT. 5 given in 1 Pet. xi., and numbered 35, as given iu 1 How. xxxii., which was in tliese words : " Ordered, That after the present term, no original record shall be taken from the Supreme Court Room, or from the office of the clerk of this court." In the General Rules, as revised and corrected at the December Term, 1858, 31 How. v., and in the Revision of May 1st, 1871, Original General Rule 12, as modified by Original General Rule 35 of February 19th, 1825, appears as the second sub-division of General Rule 1, in the following words, viz. : "The clerk shall not permit any original record or paper to betaken from the Supreme Court Room, or from the office, without an order from the court." On November 13th, 1882, this Clause was amended, 106 U. S. vii., by omitting the word " Supreme " and by adding at the end thereof the words "but records on appeals and writs of error, exclusive of original papers sent up therewith, may be taken to a printer to be printed, under the requirements of Rule 10." [For the opinion of the Supreme Court showing the circumstances which occasioned this amendment, see Clause 7 of Rule 24 ; also 108 U. S. 1.] This Clause in the Revision of January 7th, 1884, differs from the same Clause in General Rule 1 of the Revision of May 1st, 1871, as amended November 13th. 1882, by omitting the words "but records on appeals and writs of error, exclusive of original papers sent up therewith, may be taken to a printer to be printed, under the requirements of " and by sub- stituting in place thereof the words " except as provided by." For this Clause in the Revision of 1884, see 108 U. S. 573. FEDERAI, STATUTES. "Sec. 679. The records and proceedings of the Court of Appeals, appointed previous to the adoption of the present Constitution, shall be kept in the office of the clerk of the Supreme Court, who shall give copies thereof to any person requiring and paying for them in the manner provided by law for giving copies of the records and proceedings of the Supreme Court; and such copies shall have like faith and credit with all other proceedings of said court." Revised Statutes (Second Edition), § 679, p. 125 ; Act of Congress of 8th May 1793, ch. 36, sec. 12, 1 Stat, at Large, 379. GENERAL RULES OF THE [Rule 2. Jtule 2. ATTOENETS AND COUNSELLOES. 1. It shall be requisite to the admission of attorneys or counsellors to practise in this court, that they shall have been such for three years past in the Supreme Courts of the States to which they respectively belong, and that their private and professional character shall appear to be fair. HISTORY. This Clause is the same as the first paragraph of Original General Rule 2, adopted February 5th, 1790, 2 Dall. 399; and as Original General Rule 2, 1 Cranch, xvi. ; 1 Wheat, xiii. ; 1 Pet. vi., and 1 How. xxiii., with the exception of some immaterial verbal alterations. Original General Rule 3, adopted February 5th, 1790; 1 Cranch, xvi.; 1 Wheat, xiii. ; 1 Pet. vi., and 1 How. xxiii., provided that counsellors should not practise as attorneys, nor attorneys as counsellors in the Supreme Court; and in 2 Dallas, 399, this provision is contained in the second paragraph of Original General Rule 2. Original General Rule 14, adopted August 12th, 1801 ; 1 Cranch, xviii., 1 Wheat, xv;.; 1 Pet. vii., and 1 How. xxv., provided that counsellors might be admitted as attorneys on taking the usual oath. In the General Rules, as revised and corrected at December Term, 1858, 21 How. v., this Clause appears totidem verbis as the first Clause of General Rule 2, except that the word "and" was used between "attorneys " and " counsellors " instead of the word " or," as in the pres- ent revision, and is precisely the same as the first Clause of General Rule 2 of tlie Revision of May 1st, 1871. For this Clause in the Revision of 1884, see 108 U. S. 573. FEDERAL STATUTES. "Sec. 747. In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein." Revised Statutes (Second Edition), § 747, p. 141 ; Act of Congress of 24th September, 1789, ch. 20, sec. 85, 1 Stat, at Large, 92. " Sec. 823. The following and no other compensation shall'be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the Circuit and Dis- Rule 2.] UNITED STATES SUPREME COURT. 7 trict Courts, marshals, commissioners, witnesses, jurors, and print- ers in the several States and Territories, except in cases otherwise expressly provided by law. But nothing herein shall be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than the government, such reasonable compensation for their services, in addition to the tax- able costs, as may be in accordance with general usage in their re- spective States, or may be agreed upon between the parties." Revised Statutes (Second Edition), § 823, p. 154 ; Act of Congress of 36th February, 1853, ch. 80, sec. 1, 10 Stat, at Large, 161 ; Act of Congress of 23d June, 1874, ch. 469, sec. 7, 18 Stat, at Large, 256; Act of Congress of 26th June, 1876, ch. 147, sec. 4, 19 Stat, at Large, 63. For amount of taxable fees of attorneys, solicitors and proctors and manner of taxing same, see §§ 834, 988, Revised Statutes (Second Edition), 154, 184. " Be it enacted, etc., That any woman who shall have been a member of the bar of the highest court of any State or Territory, or of the Supreme Court of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record, be admitted to practise before the Supreme Court of the United States." Act of Congress of 15th February, 1879, ch. 81, 30 Stat, at Large, 292. For other statutory provisions relating to attorneys, solicitors and coun- sellors generally and not cited in full, see Revised Statutes (Second Edition), §§ 189, 983, 3478, 3479, 4063, 4064, 4745, 4768, 4769, 4786, 4996, 5078, 5095, 5485, 5498; also. Act of Congress of 23d June, 1874, ch. 390, sec. 18, 18 Stat, at Large, 184; Act of Congress of 23d June, 1874, ch. 469, sec. 3 and 7, 18 Stat, at Large, 258; Act of Congress of 20th June, 1878, ch. 367, 20 Stat, at Large, 243. AUTHORITIES. 1. A gentleman who had been admitted originally as an attorney of the Supreme Court was, on motion, transferred from the roll of attorneys and placed on the list of counsellors, and was qualified de novo as counsellor. Ex parte Halhwell, 3 Dall. 410. (February Term, 1799.) 2. When an attorney's name has been stricken from the roll of counsellors of the District Court of a district, by order of the court, for contempt, the Supreme Court will not refuse his admission to practise before it, if he otherwise comes within the rule. Exparie TiUinghast, 4 Pet. 108. (January Term, 1830.) 8. In this case two applications were made by the State of Texas to the 8 GENERAL RULES OF THE [Rule 2. Supreme Court, one to compel one George W. Paschal, an attorney and counsellor of the Supreme Court, to pay to the clerk of the court, for the benefit of the State of Texas, a certain sum of money, alleged to have been received by him under a decree in a case on the original docket of the Supreme Court. This application was denied, the Supreme Court holding that an attorney or solicitor has a lien for moneys collected for his fees and disbursements in a cause, and in any suit or proceeding brought to recover other moneys covered by the same retainer. The parties were accordingly left to their action. The second application was that the name of said Paschal be stricken from the docked as counsel for the complainant, and that he be forbidden to interfere with the case. This application was granted, the Supreme Court holding that it could not hesitate in permitting the State to appear and conduct its causes by such counsel as it should choose to represent it, leaving the respondent to such remedies, for the redress of any injury he might sustain, as might be within his power. In re Paschal, 10 Wall. 483. (December Term, 1870.) 4. A case of interest to the profession, wiiich, while it did not relate to an attorney or counsellor of the Supreme Court as such, lays down princi- ples applicable to them. The power of removal of an attorney from the bar is possessed by all courts which have authority to admit attorneys to practise. It is a power which should only be exercised for the most weighty reasons, such as would render the continuance of the attorney in practise incompatible with a proper respect of the court for itself, or a proper regard for the integrity of the profession. And, except where matters occurring in open court, in presence of the judges, constitute the grounds of its action, the power of the court should never be exercised without notice to the offending party of the grounds of complaint a'gainst him, and affording him ample opportunity of explanation and defence. And even where the matters constituting the grounds of complaint have occurred in open court, under the personal observation of the judges, the attorney should ordinarily be heard before the order of renioval is made, for those matters may not be inconsistent with the absence of im- proper motives on his part, or may be susceptible of such explanation as would mitigate their offensive character, or he may be ready to make all proper reparation and apology. A removal from the bar should never be decreed where any punishment less severe — such as reprimand, tempo- rary suspension, or fine — would accomplish the end desired. Bradley v. Fisher, 13 "Wall. 335, (354). (December Term, 1871.) 5. A case of interest to the profession, which, while not directly ap- plicable to the Rule, as it does not relate to an attorney or counsellor of the Supreme Court as such, discusses at length the rights and privileges of attorneys in the Federal courts and the powers of the courts to strike their names from the roll. Bx parte Wall, 107 U. S. 365. (October Term, 1882.) Rule 2.J UNITED STATES SUPREME COURT. 9 2. They shall respectively take and subscribe the following oath or affirmation, viz. : I, , do solemnly swear [or affirm] that I will demean myself, as an attorney and counsellor of this court, uprightly, and according to law ; and that I will support the Constitution of the United States. HISTORY. Original General Rule 3, adopted February 5th, 1790, 1 Cranch, xvi. ; 1 Wheat, xiii. ; 1 Pet. vi., and 1 How. xxiii., provided that counsellors should not practise as attorneys nor attorneys as counsellors in the Supreme Court, and in 2 Dall. 399, this provision is contained in Original General Eule 2. Original General Rule 4, adopted on the same day (given as Original General Rule 3, 2 Dall. 399), 1 Cranch, xvi. ; 1 Wheat, xiii. ; 1 Pet. vi., and 1 How. xxiii., was in substantially the same language as this Clause, except that it did not contain the words "and subscribe," the words "[or affirm]," and used the word "or" instead of "and" between the words " attorney " and "counsellor." Original Generp,l Rule 6, adopted February 7th, 1791, 2 Dall. 400; 1 Cranch, xvii. ; 1 Wheat, xiv; 1 Pet. vi., and 1 How. xxiv., provided for an affirmation in proper cases, in place of an oath. Original General Rule 14, adopted August 12th, 1801, 1 Cranch, xviii. ; 1 Wheat, xvi. ; 1 Pet. vii., and 1 How. xxv., provided that counsellors might be admitted as attorneys, on taking the usual oath. The second subdivision of General Rule 2 of the General Rules, as revised and corrected at December Term, 1858, 21 How. v., and which entire General Rule 2 was a substitute for Original General Rules 2, 3, 4, 6 and 14, was, with an immaterial verbal change, and with the exception of the words " and subscribe," totidem -oerhis the same as this Clause. On March 10th, 1865, the second clause of General Rule 3 was amended, 2 Wall. vii. , by changing the form of the oath in accordance with the provisions of the Act of Congress of January 24th, 1865 (13 Stat, at Large, 424), and all persons who had theretofore been admitted as attorneys and counsellors of the Supreme Court were required to take the new oath or affirmation before the clerk of the Supreme Court, or of any Circuit or District Court of the United States, but this amendment was rescinded and annulled at the December Tei-m, 1866, 4 Wall, vii., after the decision of the Court in Ex parte Garland, 4 Wall. 333, which declared the amendment of March 10th, 1865, to have been unadvisedly adopted, leaving the Clause as it existed after the Revision of December Term, 1858. This Clause is the same as the second Clause of General Rule 3 of the Revision of May 1st, 1871. For this Clause in the Revision of 1884, see 108 U. S. 573. 10 GENERAL RULES OF THE [Rule 3. » AUTHORITIES. 1. A case where the Supreme Court declared the amendment of March 10th, 1865, to the second Clause of the then General Rule 3 to have been unadvisedly adopted, and discussed at length the rights of an attorney and counsellor acquired by his admission to appear for suitors, and to argue cases, as not being a mere indulgence, revocable at the pleasure of the Court or at the command of the legislature, but as a right of which he could only be deprived by the judgment of the Court for moral or pro- fessional delinquency. Attorneys and counsellors are not officers of the United States, but officers of the Court ; and the Act of Congress of Janu- ary 34th, 1865, J3 Stat, at Large, 434, providing that after its date, no person should be admitted as an attorney and counsellor to the bar of the Supreme Court unless he should have first taken and subscribed the oath prescribed by the Act of Congress of July 3d, 1863, 13 Stat, at Large, 503, was declared unconstitutional. Ex parte Garland, 4 Wall. 333. (December Term, 1866.) [See this case referred to in the History of this Clause.] Rule 3. PEACTICE. This court considers the former practice of the courts of king's bench and of chancery, in England, as afifording outlines for the practice of this court ; and will, from time to time, make such alterations therein as circumstances may render necessary. HISTORY. This Rule is, with the exception of some immaterial verbal alterations, and with the addition of the word " former " before the word " practice " in the first line, the same as Original General Rule 7, adopted August 8th, 1791 (3 Dallas, 411, where the rule is said to have been announced in 1793); 1 Cranch, xvii. ; 1 Wheat, xiv.; 1 Pet. vi., and 1 How. xxiv., and is precisely the same as General Rule 3 of the General Rules, as re- vised and corrected at December Term, 1858, 31 How. v., and of the Re- vision of May 1st, 1871, with the addition of the said word " former," as indicated. For this Rule in the Revision of 1884, see 108 U. S. 574. THE CONSTITUTION. "In all cases affecting Ambassadors, other public Ministers and Con- suls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before men- Rule 3.] UNITED STATES SIIPREME COURT. 11 tioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions and under such Regula- tions as the Congress shall make." Article 3, section 2. FEDERAL STATUTES. "Sec. 687. The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have consistently with the law of nations; and original, but not exclusive, jurisdiction of all suits brought by am- bassadors, or other public ministers, or in which a consul or vice- consul is a party." Revised Statutes (Second Edition), § 687, p. 137 ; Act of Congress of 24th September, 1789, ch. 30, sec. 13, 1 Stat, at Large, 80. "Sec. 689. The trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury." Revised Statutes (Second Edition), § 689, p. 138 ; Act of Congress of 34th September, 1789, ch. 20, sec. 13, 1 Stat, at Large, 80. AUTHORITIES. 1. In a case of original jurisdiction the Supreme Court determined to frame their proceedings according to those which had been adopted in the English Courts in analogous cases, and decided that the rules and practice of tlie Court of Chancery should govern in conducting the suit to a final issue. State of Rhode Island v. State of Massachusetts, 13 Pet. 657, 755. (Janu- ary Term, 1838.) Same v. Same, 13 Pet. 33. (January Term, 1839.) Same v. Same, 14 Pet. 310 (256). (January Term, 1840.) Sam£ V. Sam^, 15 Pet. 333. (January Term, 1841.) 3. In an application for a rehearing, the Supreme Court held that when sitting as an appellate tribunal it has not adopted the rules and practice of the English Court of Chancery in cases of equity, as the English Chan- cery is a court of original jurisdiction, while the Supreme Court sits as an appellate tribunal in certain cases; it would be impossible from the nature and office of the two tribunals, to adopt the same rules of practice in both. Brown v. Aspdea, 14 How. 25. (December Term, 1853.) [See same case under Rule 30.] 3. In cases in which the Supreme Court has original jurisdiction, the 12 GENERAL RULES OF THE [Rule 3. form of proceeding is not regulated by Act of Congress, but by the rules and orders of the court, which are framed in analogy to the practice of the English Court of Chancery, but the Supreme Court does not follow this practice, when it would embarrass the case by unnecessary technicality or defeat the purposes of justice. Stateof Florida Y. State of Georgia, 17 How. 478. (December Term, 1854.) 4. The Supreme Court has adopted no rules governing suits in cases of original jurisdiction, but states, that in cases of equity where the court has original jurisdiction, it has been the usual practice to hear a motion for leave to file the bill, and, leave having been given, subsequent pro- ceedings have been regulated by orders made from time to time as occa- sion required ; that the motion for leave is usually heard ex parte on the usual motion day, on part of the complainant only, except in an extraordinary case, such as where a State asks leave to file a bill against the President of the United States {State of Mississippi v. Johnson, 4 Wall. 475), when it was thought proper that argument should be heard against the motion for leave. Ten printed copies of the bill are required to be filed with the clerk before hearing. This practice to be regarded as that which will be adopted in all cases of original equity jurisdiction. State of Georgia v. Gi-ant, 6 Wall. 241. (December Term, 1867.) ORIGINAL JURISDICTION. CASES IN THE SUPREME COURT WHERE THE COURT EITHER EXERCISED, OR HELD THAT IT COULD EXERCISE, OR REFUSED TO EXERCISE, ORIGINAL JURISDICTION. a. Where original jurisdiction was exercised, or where it was held that it could be exercised. VanstoplwTstY. State of Maryland, 2 Dallas, 401. (August Term, 1791.) Oswald, Administrator v. State of Nem York, 2 Dallas, 401, 402, 415. (February and August Terms, 1792 and February Term, 1793.) State of Georgia v. Braihford, 3 Dallas, 403. (August Term, 1793.) Ghisholm v. Georgia, 2 Dallas, 419. (February Term, 1793.) Grayson v. Virginia, 3 Dallas, 320. (August Term, 1796.) BiK/erY. South Carolina, 3 Dallas, 339. (February Term, 1797.) State of New York v. State of Connecticut, 4 Dallas, 1, 3 and 6. (August Term, 1799.) State of New Jersey y. State of New YorTc, 8 Pet. 461. (January Term, 1830.) State of New Jersey v. State of New Yorh, 5 Pet. 384. (January Term, 1831.) Stateof New Jersey Y. State of New Yorh, 6 Pet. 823. (January Term, 1832.) Dams Y. Packard, 7 Pet. 376. (January Tei-m, 1838.) Rule 3.J UNITED STATES SUPREME COURT. 13 State of Rhode Island v. State of Massachusetts, 7 Pet. 651. (January Term, 1833.) State of Rhode Island y., State of Maaaachusetts, 11 Pet. 326. (January Term, 1837.) Same v. Same, 12 Pet. 657, 755. (Jauuary Terra, 1838.) Same v. Same, 13 Pet. 28. (January Term, 1839.) Samev. Same, 14 Pet. 210. (January Term, 1840.) Same v. Same, 15 Pet. 233. (January Term, 1841.) State of Pennsylvania v. The Wheeling Behnont Bridge Company, 9 How. 647. (January Term, 1850.) State of Florida v. State of Georgia, 11 How. 292. (December Term, 1850.) State of Pennsylvania v. The Wheeling <6 Belmont Bridge Company, 11 How. 528. (December Term, 1850.) State of Pemnaylvania Y. The Wheeling and Belmont Bridge Company, 13 How. 518. (December Term, 1851.) State of Florida v. State of Georgia, 17 How. 478. (December Term, 1854.) Commx)nwealth of Kentucky v. Dennison, Governor, 24 How. 66. (Decem- ber Term, 1860.) State of Georgia v. Grant, 6 Wall. 241. (December Term, 1867.) Virginia v. West Virginia, 11 Wall. 39. (December Term, 1870.) 6. Where original jurisdiction was refused. Hollingaworth v. Virginia, 3 Dallas, 378. (February Term, 1799.) Fowler y. Lindsey, 3 Dallas, 411. (February Term, 1799.) Marhury v. Madison, 1 Cranch, 137. (February Term, 1803.) The Cherolcee Nation v. The State of Georgia, 5 Pet. 1. (January Term, 1831.) Fx parte Juan Madraszo, 7 Pet. 627. (January Term, 1833.) State of Misaiaaippi v. Johnaon, President, 4 Wall. 475. (December Term, 1866.) State of Georgia v. Stanton, 6 Wall. 50. (December Term, 1867.) Pennsylvania v. QuicJcsilver Company, 10 Wall. 553. (December Term, 1870.) State of New Hampshire v. State of Louisiana and State of New Torh v. State of Zouiaiana, 108 U. S. 76. (March 5th, 1883.) See Cunningham v. Macon & Brunawich Rail/road Company, 109 U. S. 446. (December 3d, 1883.) 14 GENERAL RULES OF THE [Rule 4. Hule 4. BILL OF EXCEPTIONS. The judges of the Circuit and District Courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts ; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. HISTORY. With the exception of some immaterial verbal alterations this Rule does not differ from Original General Rule 38, adopted at January Term, 1833, 6 Pet. iv., and 1 How. xxxiv., nor from General Rule 4 of the Revisions of December Terra, 1858, 31 How. vi., and of May 1st, 1871. For Rule 4 of the Revision of 1884, see 108 U. S. 574. FEDERAI. STATUTES. " Sec. 648. The trial of issues of fact in the Circuit Courts shall be by jury, except in cases of equity and of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, and by the next section." Revised Statutes (Second Edition), § 648, p. 118; Act of Congress of 34th September, 1789, ch. 30, sec. 12, 1 Stat, at Large, 79. "Sec. 649. Issues of fact in civil cases in any Circuit Court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving it jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury." Revised Statutes (Second Edition), § 649, p. 118 ; Act of Congress of 3d March, 1865, ch. 86, sec. 4, 13 Stat, at Large, 501. "And the trial of issues of fact in the Circuit Courts shall, in all suits except'those of equity and of admiralty and maritime jurisdiction, be by jury." Act of Congress of 3d March, 1875 (Removal Act), ch. 137, sec. 3, last paragraph, 18 Stat, at Large, 471; Act of Congress of 3d March, 1803, ch. 40, sec. 3, 3 Stat, at Large, 244; Act of Congress of 30th June, 1864, ch. 174, sec. 13, 13 Stat, at Large, 310 ; Act of Congress of 1st June, 1873, ch. 255, sec. 3, 17 Stat, at Large, 196. Rule 4.] UNITED STATES SUPREME COURT. 15 " Sec. 700. "When an issue of fact in any civil cause in a Circuit Court is tried and determined by the court without tlie intervention of a jury, according to section six hundred and forty-nine, the rulings of tlie court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be re- viewed by the Supreme Court upon a writ of error or upon appeal ; and when the finding is special the review may extend to the deter- mination of .the sufficiency of the facts found to support the judg- ment.'' Eevised Statutes (Second Edition), § 700, p. 131; Act of Congress of 34th September, 1789, ch. 20, sec. 32, 1 Stat, at Large, 84 ; Act of Con- gress of 3d March, 1803, ch. 40, sec. 2, 2 Stat, at Large, 244 ; Act of Con- gress of 3d March, 1865, ch. 86, sec. 4, 13 Stat, at Large, 501. "Sec. 701. The Supreme Court may affirm, modify, or reverse any judgment, decree, or order of a Circuit Court, or District Court act- ing as a Circuit Court, or of a District Court in prize causes, lawfully brought before it for review, or may direct such j udgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may require." Eevised Statutes (Second Edition), § 701, all except last sentence, p. 131 ; Act of Congress of 24th September, 1789, ch. 20, sec. 23, 1 Stat, at Large, 83. "Sec. 709. A final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity ; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of tlieir being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their valid- ity ; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the de- cision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of such State court, and may, at their discretion, award execution, or remand the same to the court from which it was re- moved by the writ." Eevised Statutes (Second Edition), § 709, p. 133, as amended by Act of Congress of 18th February, 1875, ch. 80, 18 Stat, at Large, 318. See also 16 GENERAL RULES OF THE [Rule 4. Act of Congress of 34th September, 1789, ch. 30, sec. 25, 1 Stat, at Large, 85 ; Act of Congress of 5th February, 1867, ch. 28, sec. 2, 14 Stat, at Large, 386. "Sec. 953. A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge being annexed thereto." Revised Statutes (Second Edition), § 953, p. 180; Act of Congress of 1st June, 1872, ch. 255, sec. 4, 17 Stat, at Large, 197. " Sec. 1011. There shall be no reversal in the Supreme Court or in a Circuit Court upon a writ of eiTor, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact." Revised Statutes (Second Edition), § 1011, p. 189, as amended by Act of Congress of February 18th, 1875, ch. 80, 18 Stat, at Large, 318. See also Act of Congress of 24th September, 1789, ch. 30, sec. 33, 1 Stat, at Large, 84 ; Act of Congress of 2d March, 1803, ch. 40, sec. 2, 2 Stat, at Large, 244. "Sec. 1018. Where appeal is duly taken by both parties from the judgment or decree of a Circuit or District Court to the Supreme Court, a transcript of the record filed in the Supreme Court by either appellant may be used on both appeals, and both shall be heard thereon in the same manner as if records had been filed by the appellants in both cases." Revised Statutes (Second Edition), § 1013, p. 189; Act of Congress of 6th August, 1861, ch. 61, sec. 1, 12 Stat, at Large, 319. An Act Concbkning the Practice in Tebeitorial Cotjets, and Appeals thbkepbom. ****** " Sec. 3. That the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of said Territorial courts in cases of trial by jury shall be exercised by writ of error, and in all other cases by appeal according to such rules and regu- lations as to form and modes of proceeding as the said Supreme Court have prescribed or may hereafter prescribe : " Provided, That on appeal, instead of the evidence at large, a state- ment of the facts of the case in the nature of a special verdict, and also the rulings of the court on the admission or- rejection of evi- dence when excepted to, shall be made and certified by the court below, and transmitted to the Supreme Court together with the transcript of the proceedings and judgment or decree ; but no ap- pellate proceedings in said Supreme Court, heretofore taken upon Rule 4.J UNITED STATES SUPREME COURT. 17 any such judgment or decree, shall be invalidated by reason of being instituted by writ of error or by appeal : " And provided further^ That the appellate court may make any order in any case heretofore appealed, which may be necessary to save the rights of the parties ; and that this act sha,ll not apply to cases now pending in the Supreme Court of the United States where the record has already been filed." Act of Congress of 7th April, 1874, ch. 80, sec. 2, 18 Stat, at Large, 37. See also Revised Statutes (Second Edition), § 698, p. 130; §§ 703, 703, pp. 131, 133; §§ 1866-1868, p. 330; §§ 1907, 1908, 1909, 1911, pp. 336, 337. See also Act of Congress of 33d June, 1874, ch. 469, 18 Stat, at Large, 353, respecting Utah Territory. " Sec. 1. That the Circuit Courts of the United States, in deciding causes of admiralty and maritime jurisdiction on the instance-side of the court, shall find the facts and tlie conclusions of law upon which it renders its judgments or decrees, and shall state the facts and conclusions of law separately. " And in. finding the facts, as before provided, said court may, upon the consent of the parties who shall have appeared and put any matter of fact in issue, and subject to such general rules in the premises as shall be made and provided from time to time, impanel a jury of not less than five and not more than twelve persons, to whom shall be submitted the issues of fact in such cause, under the •direction of the court, as in cases at common law. " And the finding of such jury, unless set aside for lawful cause, shall be entered of record, and stand as the finding of the court, upon which judgment shall be entered according to law. " The review of the judgments and decrees entered upon such- find- ings by the Supreme Court, upon appeal, shall be limited to a de- termination of the questions of law arising upon the record, and to such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of exceptions, prepared as in actions at law. " Sec. 3. That said courts, when sitting in equity for the trial of patent causes, may impanel a jury of not less than five and not more than twelve persons, subject to such general rules in the premises as may, from time to time, be made by the Supreme Court, and sub- mit to them such questions of fact arising in such cause as such Circuit Court shall deem expedient ; " And the verdict of such jury shall be treated and proceeded upon in the same manner and with the same effect as in the case of issues sent from alancery to a court of law and returned with such findings." Act of Congress of 16th February, 1875, ch. 77, sec. 1 and 3, 18 Stat, at Large, 315. See also Revised Statutes (Second Edition), §§ 629, par. 9, 631, 693, pp. Ill, 113 and 139. 18 GENERAL RULES OF THE [Rule 4. " Sec. 5. That all cases arising under the provisions of this act in the courts of the United States shall be reviewable by the Supreme Court of the United States, without regard to the sum in contro- versy, under the same provisions and regulations as are now pro- vided by law for the review of other causes in said court." Act of Congress of 1st March, 1875 (Civil Rights Act), ch. 114, sec. 5, 18 Stat, at Large, 335. See also Revised Statutes (Second Edition), §§ 691, 699, par. 4, pp. 128, 131 ; and Act of Congress of 16th February, 1875, ch. 77, 18 Stat, at Large, 315. " Sec. 4. The final judgment or decree of the Supreme Court of the District of Columbia in any case vrhere the matter in dispute, ex- clusive of costs, exceeds the value of twenty-five hundred dollars, may be re-examined and reversed or afiirmed in the Supreme Court of the United States, upon writ of eiTor or appeal in the same man- ner and under the same regulations as are provided in cases of writs of error on judgments or appeals from decrees rendered in a Circuit Court." Act of Congress of 25th February, 1879, ch. 99, sec. 4, 20 Stat, at Large, 320. See also Revised Statutes (Second Edition), §§ 691-701, pp. 138-131. AUTHORITIES MOEB ESPECIALLY APPLICABLE TO THIS RULE. 1. The Supreme Court refers to the inconvenient and unnecessary practice of spreading the judge's charge in extenso upon the record. Mvans v. Baton, 7 "Wheaton, 356 (426). (February Term, 1822.) 2. The charge of the court below must not be brought at length before the Supreme Court for revipw. It is an unauthorized practice and ex- tremely inconvenient both to the inferior and to the appellate court. Carver v. Jackson, 4 Pet. 1 (80). (January Term, 1830.) 3. Exceptions taken on the trial of a case before a jury for the purpose of submitting to the revision of the Supreme Court questions of law de- cided by the Circuit Court during the trial, cannot be taken in such a form as to bring the whole charge of the judge before the Supreme Court; a charge in which he not only states the results of the law from the facts, but sums up all the evidence. The case of Carver v. Jackson, 4 Pet. 80 (Authority No. 2 under this Rule), cited and approved of. The Supreme Court states in its opinion that "the difficulty, then, which appeared to the counsel to be insurmountable, must be overcome by this court. We must perform the impracticable task of separating th# remarks on the law from those on the facts of the case, and thus draw the whole matter into ex- amination again. The inconvenience of this practice has been seriously felt and has been seriously disapproved. We think it irregular and improper." Ex parte Crane, 5 Pet. 190 (200). (January Term, 1831.) Rule 4.] UNITED STATES SUPREME COURT. 19 4. The bringing up, with the record of the proceedings in the Circuit Court, the charge of tlie court at large, is a practice which the Supreme Court has often disapproved, and deems incorrect. Oonard v. The Pacific Insurance Company, 6 Pet. 363. (January Term, 1833.) 5. Tlie Supreme Court discountenances the practice of spreading tlie whole charge 6f the court below on the record, and refers to the Bule adopted at the last term to suppress the practice. (See Original General Rule 88, 6 Pet. iv.) Magniac v. Thompson, 1 Pet. 348 (390). (January Term, 1833.) 6. The Supreme Court state that they have frequently remonstrated against the practice of spreading the charge of the judge at length upon the record, instead of the points excepted to, as productive of no good, but much inconvenience. Oreggv. Lessee of Bayre & Wife, 8 Pet. 244. (January Term, 1834.) 7. The Supreme Court reiterates the rule which forbids the insertion of the whole of the charge of the court below to the jury in a general bill of exceptions, but requires that the part excepted to shall be specifically set out. Stimpson v. West Chester Railroad Company, 3 How. 553. (January Term, 1845.) [See same case under Rule 14 on another point.] 8. When the whole charge of the judge to the jury is incorporated into the record, the Supreme Court declares that this mode of making up the error books is exceedingly inconvenient and embarrassing to the Court, and is a departure from familiar and established practice ; that so far as error is founded upon the bill of exceptions incorporated into the record, it lies only to exceptions taken at the trial to the ruling of the law by the judge, and to the admission or rejection of evidence; that only so much of the evidence given on the trial as may be necessary to present the legal questions thus raised and noted should be carried into the bill of excep- tions ; and that all beyond serves only to encumber and confuse the record, and to perplex and embarrass both Court and counsel. The earlier forms under the statute are models which it would be wise to consult and adhere to. ZdUr's Lessee v. Eekert, 4 How. 289 (297). (January Term, 1846.) 9. The practice of excepting generally to a charge of the Court to the jury, without setting out specifically the points excepted to, censured. Stimpson v. West Chester Railroad Company, 4 How. 380 (401). (January Term, 1846.) 10. It must appear by the transcript, not only that instructions were given and refused at the trial, but also that the party who complained of them 20 GENERAL RULES OF THE [Rule 4. excepted while the jury were at bar; and if it is not done, the charge of the court, or its refusal to charge as requested form no part of the record, and cannot be carried before the appellate court by writ of error. The exception need not be drawn out in form and signed before the jury re- tire, but it must be taken in open court, and must appear by the certificate of the judge, who authenticates it, to have been so taken. Phelps V. Mayer, 15 How. 160. (December Term, 1853.) 11. An allegation in a bill of exceptions that " the charge of the court, the verdict of the jury, and the judgment below are eaoli against, and in conflict with, the Constitution and laws of the United States, and therefore erroneous," is too general and indefinite to come within the provisions of the act of Congress, or the decisions of the Supreme Court. Maxwell v. Newbold, 18 How. 511. (December Term, 1855.) 12. If a series of propositions be embodied in instructions, and the instruc- tions are excepted to in a mass, if any one of the propositions be correct, the exception must be overruled. Attention called to the violation of Original General Rule 38 of January Term, 1832. 6 Pet. iv. Johnston V. Jones, 1 Black, 209 (220). (December Term, 1861.) 13. When an objection is to the ruling of the court, it is indispensable that the ruling should be stated, and that it should also be alleged that the party then and there excepted. Pomeroy's Lessee v. Bank of Indiana, 1 "Wall. 592 (602). (December Term, 1863.) 14. A plaintiff in error cannot avail himself of an exception to proposi- tions submitted to a jury by the court below which was general and not specific. Johnston v. Jones, 1 Black, 220 (Authority Ko. 12 under this Rule), cited and approved. Bogers v. TTie Marshal, 1 Wall. 644 (654). (December Tei-m, 1868.) 15. The practice of counsel in excepting to instructions as a whole, in- stead of excepting, as they ought, to each instraction specifically, severely commented on, and attention called to the fact that the penalty for such neglect is that the exception to the whole series of propositions may be overruled, no matter how wrong some may be, if any one of them all be correct, and when, if counsel had excepted specifically, a different result might have followed. Haney v. Tyler, 2 Wall. 328 (339). (December Term, 1864.) 16. Where the plaintiff requested the court below to charge several propositions, which the court declined to charge as requested, but charged in its own language and fully upon the case as presented by the evidence, and the plaintiff excepted to the refusal of the court, and excepted also "to so much of the charge of the court as given, as was in conflict with and variant from the several propositions," the Supreme Court held that the charge below was confessedly sound in most of its points, and that if the Rule 4.] UNITED STATES SUPREME COURT. 21 entire charge of the court is excepted to, or a series of propositions con- tained in it is excepted to in gross, and any portion thus excepted to is sound, the exception cannot be sustained. One object of an exception is to call the attention of the circuit judge to the precise point as to which it is supposed that he has erred, that he may then consider it and give new and difEerent instructions to the jury, if in his judgment it will be proper to do so. Beaver v. Taylm-, 93 U. S. 46 (54). (October Term, 1876.) 17. The omission of the court below to instruct the jury on a particular aspect of the case, however n\aterial, cannot be assigned for error, unless the attention of the court was called to it, with the request to instruct upon it. It is not proper for the Supreme Court to intimate an opinion upon a question not presented by the record. Mutuud Life Insurance Company y. Snyder, 93 U. S. 393. (October Term, 1876.) 18. Where the charge of the judge to the jury is of a character to mislead the jury, the error is one of law, and may be corrected in an appellate court; but in every such case the part of the charge to which the excep- tion is addressed ought to be distinctly pointed out. Unless that be done, the exception cannot be sustained as a ground for reversing the judgment, as that can only be done for error of law. Bailroad Company v. Vamell, 98 U. S. 479 (485). (October Term, 1878.) 19. Where the bill of exceptions showed a paper signed by the defend- ant's counsel, in which the court was asked to affirm a series ' ' of proposi- tions of law as governing the case," seven in number, which were presented as a whole, refused as a whole, and excepted to in the same manner, the Supreme Court held that if any one of them were rightfully rejected, no error was committed, because it was not the duty of the court below to do anything more than to pass upon the prayer as an entirety. None of the evidence given or ofiered on the trial was set out in the bill of exceptions, and the Supreme Court states that probably no bill of ex- ceptions was ever certified to an appellate court before, which contained nothing but the charge and the objections made to it. Worthington v. Mason, 101 U. S. 149. (October Term, 1879.) 20. According to a well settled rule of the Supreme Court, if either one of any propositions which the court is requested to charge be erroneous, or, in other words, if all the charge asked for is not sound law, the court below did right in refusing the prayer which presented the propositions as a whole. United States v. HougTi, 108 U. S. 71, (72). (October Term, 1880.) 21. Tlie Supreme Court repeats of the pi-actice of setting forth the charge of the court below in full, what it condemned in Lincoln v. 22 GENERAL RULES OF THE [Rule 4. Glajiin, 7 Wall. 133, (137) (Authority No. 56 under this Rule), viz. : the practice of inserting the entire evidence in the record. United StaUs v. Rindikojjf, 105 IT. S. 418. (October Term, 1881.) AUTHORITIES KELATINQ- TO BILLS OF BXCEPTIONS GBNEBALLT WHEKB THE TRIAL IS BY JURY. 22. A case wherein the Supreme Court stated as follows, viz. : " It is exceedingly clear, that the bill of exceptions is conclusive upon this court. We cannot presume, or suspect, that any material part of the evidence is omitted. On this objection, therefore, nothing now need be added." Bingham v. Cabbot, 3 Dall. 19 (38). (February Term, 1795.) 23. A bill of exceptions is part of the record and comes up with it. For that reason the acknowledgment of the judge's seal is unnecessary ; but if the bill of exceptions had not been tacked to the record, such an acknowl- edgment might have been proper. The Supreme Court states, that the whole of the record is exhibited in a loose and imperfect state, but that the Court ought not to travel out of the bill of exceptions to find matter to support it. aiarle v. Rumll, 3 Dall. 415 (419, 433), notes. (February Term, 1798.) 24. A bill of exceptions ought to state that evidence was offered of the facts upon which the opinion of the court was prayed. Vasse V. Bmiih, 6 Crauch, 236. (February Term, 1810.) 25. The Supreme Court stated that one of the exceptions taken in the case, afforded the court an opportunity to remark how much more con- ducive to the purposes of justice it would be to substitute special verdicts, and demurrers to evidence, for the tedious and embarrassing practice of the court (Circuit Court for the District of Columbia) from which this case came up. And the Court also stated that it was a fact that the bill of exceptions claimed a right of recovery, without stating any loss or dam- age whatever; that each bill of exceptions must be considered as present- ing a distinct, substantive case; that it was on the evidence stated in itself alone that the Court was to decide; that they could not go beyond this and collect other facts which must have been in the mind of the party, and the insertion of which in the bill of exceptions could alone have sanc- tioned the opinion as prayed for. The opinion prayed for was that if the jury believed the various facts therein detailed, it was incumbent on the defendant to make out a just, reasonable, and sufficient excuse for omit- ting to forward the letter described. "But," says the Supreme Court, "unless an individual has sustained some loss or damage by an omission of that kind, why should the postmaster be held to make out a defence." Dunlop V. Munroe, 7 Cranch, 242, (270). (February Term, 1813.) 26. It is not necessary that a bill of exceptions should be formally drawn Rule 4.] UNITED STATES SUPREME COURT. 23 and signed before the trial is at an end. The exception may be taken at the trial, and noted by the court, and may, afterwards, during the term be reduced to form, and signed by the judge. But in such cases it is signed nunc pro tune, and purports, on its face, to be the same as if actually reduced to form, aud signed during the trial. It would be a fatal error if it were to appear otherwise. Walton V. United States, 9 Wheat. 651. (February Term, 1824.) 27. In considering the admissibility of testimony in the Court above, the party excepting is to be confined to the specific objection taken at tlie trial. Einde's Lessee v. Longworth, 11 Wheaton, 199. (February Term, 1826.) 28. Held in effect that there was no error in tlie decision of the Circuit Court overruling the motion of the defendants' counsel to exclude the plaintiff's evidence, because it does not appear from the bill of excep- tions that he designated any particular piece or part of the evidence as objectionable, and moved the court to exclude it. ElliottY. Peirsol, 1 Pet. 338 (338). (January Term, 1838.) 29. Where the record contains, embodied in the bill of exceptions, the ■whole of the testimony and evidence offered at the trial, by each party, in support of the issue, it being very voluminous, and no exception being taken to its competency or sufficiency, either generally, or for any particular purpose, held that the testimony was improperly before the court for consideration, aud formed an expensive and unnecessary burden upon the record. Pennoclcv. Dialogue, 2 Fet. 1 (15). (January Term, 1839.) 30. The practice respecting the signing of a bill of exceptions stated to be that the law requires that a bill of exceptions should be tendered at the trial, but that the usual practice is to request the judge to note down in writing the exceptions, and afterwards, during the session of the court, to hand him the bill of exceptions, and submit it to his correction from his notes ; that it would be dangerous to allow a bill of exceptions, of matters dependent on memory, at a distant period, when the judge may not ac- curately recollect them ; that if a party intends to take a bill of exceptions, he should give notice to the judge at the trial, and if he does not file it at the trial, he should move the judge to assign a reasonable time within which he may file it, and that a practice to sign it after the term must be understood to be a matter of consent between the parties, unless the judge has made an express order in the term, allowing such a period to prepare it. Ex parte Martha Bradstreet, 4 Pet. 102. (January Term, 1830.) . 81. In a case, where, at the trial, several exceptions were taken by the plaintiff to the opinions expressed or refused by the court, the Supreme Court passed over a number of the exceptions, stating that they wished it to be understood, as a general rule, that where there were various bills of exceptions filed, according to the local practice, if, in the progress of the 24 GENERAL RULES OF THE [Rule 4. cause, the matters of any of those exceptions become wholly immaterial to the merits, as they are finally made out at the trial, they are no longer assignable as error, however they may have been ruled in the court below; and that there must be some injury to the party, to make the matter gen- erally assignable as error. Greenleaf'g Lessee v. BiHh, 5 Pet. 132 (135). (January Term, 1831.) 32. Although the plaintiff's counsel objected to a question as leading, and said that he excepted to the opinion of the court, yet as no exception was actually prayed by the party or signed by the judge, the Supreme Court held that they could not consider the exception as actually taken, and must suppose it was abandoned. Scott V. Lloyd, 9 Pet. 418 (442). (January Term, 1835.) 33. It is the duty of a party taking exception to the admissibility of evi- dence to point out the part excepted to, when the evidence consists of a number of particulars, so that the attention of the court may be drawn to the particular objection. Mom-e V. Bank of Metropolis, 13 Pet. 302 (310). (January Term, 1839.) 34. "Where a general objection is made in the court below to the reception of testimony, without stating the grounds of the objection, the Supreme Court considers it as vague and nugatory ; nor ought it to be tolerated in the court below. Camden v. Doremus, 3 How. 515 (53^. (January Term, 1845.) 35. Thepractice respectingabill of exceptions aslaid downin Waltonx. United States, 9 Wheat. 651 (Authority No. 26 under this Rule), and Ex parte Martha Bradstreet, 4 Pet. 102 (Authority No. 30 under this Rule), approved and will be strictly adhered to by the Supreme Court. Brown v. Glarhe, 4 How. 4 (15). (January Term, 1846.) 36. Where the Statutes of Iowa provided a mode for taking bills of ex- ceptions, by directing that they should be tendered to the judge for his signature during the progress of the trial, although the judges may, and often do, sign bills of exceptions nvne pro tunc, after the trial, the Supreme Court held that such was the English practice under the Statute of West- minster 2, and such was the practice recognized by the Supreme Court; and that, therefore, when a bill of exceptions was signed two years after the trial, the Supreme Court of Iowa were right in striking it out of the record. Sheppard\. Wilson, 6 How. 260. (January Term, 1848.) 37. Where upon its face a bill of exceptions appears to have been regularly signed, the Supreme Court cannot presume against the record. United States v. Hodge, 6 How. 379 (282). (January Term, 1848.) 38. Although the mode of drawing up a bill of exceptions is defective, because the material facts or proofs on which the instructions rest are not Rule 4.] UNITED STATES SUPREME COURT. 25 inserted before the instructions, yet if the object and character of the ex- ceptions are intelligible, by means of what is stated by the judge in con- nection with them, the Supreme Court will proceed to decide the case. United States v. Morgan, 11 How. 154 (159). (December Term, 1850.) 39. A case where the bill of exceptions stated that it was taken on the 8th day of April, 1848, while the record showed that the suit was not in- stituted until July 11th, 1848, and that the trial took place on the 7th and 8th of May, 1849. The Supreme Court held that, although the exception was very loosely framed, the date of April 8th, 1848, was evidently a cleri- cal mistake ; and that as the bill of exceptions was regularly certified by tlie Circuit Court as a part of the proceedings in the case, and as taken at the trial, the certificate of the Circuit Court was conclusive upon the Supreme Court, and the exception must be regarded as duly taken and regularly brought up by the writ of error. The United States v. Wilkinson, 12 How. 246 (252). (December Terra, 1851.) 40. The record must show that the exception was taken at that stage of the trial when its cause arose. The time and manner of placing the evidence of the exception formally on the record are mattere belonging to the practice of the court in which the trial was held. The convenient dis- patch of business, in most cases, does not allow the preparation and signa- ture of bills of exceptions during the progress of a trial. Their requisite certainty and accuracy can hardly be secured, if any considerable delay afterwards be permitted ; and it is for each court in which cases are tried to secure, by its rules, that prompt attention to the gubject necessary for the preservation of the actual occurrences on which the validity of the exception depends ; and so to administer those rules that no artificial or imperfect case shall be presented to the Supreme Court for adjudication. Turner v. Tales, 16 How. 14 (29). (December Term, 1853.) 41. The equity of the Statute of "Westminster 2, allowing bills of ex- ceptions, embraces all such judgments or opinions of the court which arise in the course of a cause, as are the subjects of revision by an appellate court, and do not otherwise appear on the record. But to present a question to the Supreme Court, the subordinate tribunal must as- certain the facts upon which the judgment or opinion excepted to, is founded; therefore, where there was a reference in the Circuit Court, and the bill of exceptions set out the objections to the award, together with the testimony of the arbitrator who was examined in open court, and that testimony showed the facts upon which the objections were founded, it was a sufficient exception. Torh Bailroad Gtmpany v. Myers, 18 How. 246. (December Term, 1855.) 42. A case wherein the Supreme Court stated that the decision of the 26 GENERAL RULES OF THE [Rule 4. court below on a motion for a new trial, wliich was excepted to, affords uo ground for a writ of error, and stated that it is desirable that points of exceptions and instructions asked from the court to the jury should be as few and as concisely expressed as may be consistent with the interests of the respective parties. Domell V. De. La Lanza, 30 How. 39 (33, 34). (December Term, 1857.) 43. In a case which was brought up by a writ of error to the Circuit Court of the United States for the Southern District of Alabama, it appeared that the Circuit Court, by a general rule, adopted the practice of the State courts, which was regulated by a statute providing that do bill of excep- tions could be signed after the adjournment of the court, unless by the consent of counsel. The Supreme Court h^ld that the statute of Alabama, and the regulation it prescribed to the courts of the State, could have no influence on the practice of a court of the United States, unless adopted by a rule of the court ; and that it was always in the power of the court to suspend its own rules, or to except a particular case from its operation, whenever the purpose of justice required it; that the attention of the Supreme Court has, upon several occasions, been called to this subject, and that the rule established by its decisions will be found to be this : The exception must show tliat it was taken and reserved by the party at the trial, but it may be drawn out in form and sealed by the judge afterwards; and the time within which it may be drawn out and presented to the court, must depend on its rules and practice, and on its own judicial dis- cretion; that in this case the judge who tried the case below deemed it his duty to seal and certify the exception to the Supreme Court, and under the circumstanpes stated in the exception and note thereto, and the Supreme Court thought he was right in doing so ; and that the exception was legally before the Supreme Court as a part of the record of the pro- ceedings of the court below. It appeared from the bill of exceptions that the plaintiffs counsel ob- jected to certain evidence at the trial, and explanations attached to the bill of exceptions showed that during the term of the court the attorney for the United States presented a bill of exceptions on Saturday before the court adjourned, which was on Wednesday. That on Monday morn- ing the bill was handed to the United States Attorney, with the request that he submit it to the opposing counsel, and that on the third day after this the minutes were signed and the court adjourned, and the judge duly certified that he heard nothing further from the bill until the 9th or 10th of May, when it was presented by the plaintiff's attorney again, with the written objections of tlie attorneys of the defendant, tliat it should be signed after the adjournment ; and that the clerk was requested to sub- join the explanation to the bill of exceptions, and did so. TTnited States v. Breitling, 30 How. 353. (December Term, 1857.) 44. In a case where the record did not contain either a bill of exceptions, a special verdict, or an agreed statement of facts, the Supreme Court dis- Rule 4.] UNITED STATES SUPREME COURT. 27 cussed at length the province and effect of a bill of exceptions, special ver- dict, and agreed statement of facts, and the proper practice in relation thereto, and refused to so far depart from the settled practice and regular course of proceeding as to give an efEect to a paper which neither its con- tents nor its terms would warrant, and declined to attempt to do for the plaintiff in error what it was his duty to have done at the trial, and before the writ of error was sued out, viz. : the Supreme Court declined to con- sider a paper in the form of a report of the judge who presided at the trial, and which was signed by him and sealed, and which concluded with giving liberty to either party to turn the case into a special verdict or bill of ex- ceptions, which as matter of fact was not done, as either a special verdict or a bill of exceptions, holding that " where a case shall be made with leave to turn the saiiie into a special verdict or bill of exceptions, the party shall not be at liberty to do either, at his election, but the court may, if they think proper, prescribe the one which he shall adopt" (Conk. Trea., 3d ed., p. 444), and also holding that nothing less than the presence and assent of the court can give any legal validity to a special verdict, and that in respect to a bill of exceptions, it must always be signed and sealed by the judge, or else it will be a nullity. Smjdam v. Witliamsm, 20 How. 437 (438). (December Term, 1857.) 45. In a case brought up on a writ of error to the District Court of the United States for the "Western Disti'ict of Texas, while the case was pend- ing on the chancery side of the court, on motion of the plaintiffs, the court below struck out the answer of the defendants, and it was insisted in the Supreme Court that the action of the court below in that behalf was eiToneous. The Supreme Court stated that all they thought necessary to say, in reply to that objection, was to remark that the cause was subse- quently transferred to the law docket without objection, and that a bill of exceptions did not bring into the Supreme Court any of the prior pro- ceedings for revision, and that whatever might be the practice in the State courts, counsel must bear in mind that there is a broad distinction between a suit at law and a suit in equity, and must understand that the Supreme Court cannot and will not overlook that distinction. Nations v. Johnson, 24 How. 195 (206.) (December Term, 1860.) 46. Only so much of the evidence given on the trial as may be necessary to present the legal questions raised and noted, should be carried into the bill of exceptions. All beyond serves only to encumber and confuse tlie record and to perplex and embarrass both court and counsel. Citing with approval Zeller's Lessee v. Eekert, 4 How. 297 (Authority No. 8 under this Rule). Johnston v. Jones, 1 Black, 309 (230). (December Term, 1861.) 47. The plaintiff in the course of the trial was offered as a witness, and was objected to by the defendants, as incompetent, and his testimony was excluded. It was admitted that the testimony of the parties to the suit was competent, according to the rules of evidence in the State courts of 28 GENERAL RULES OF THE [Rule 4. Ohio. The facts which the witness offered to prove were not stated in the bill of exceptions. The Supreme Court stated that they could not, there- fore, disregard the exception upon the idea that the testimony could not have been material, or could not have changed the result of the verdict. Judgment was reversed. Vance v. Campbell, 1 Black, 427 (430). (December Term, 1861.) 48. A case similar to Vance v. Campbell, 1 Black, 427 (430) (Authority No. 47 under this Rule), and where the only question presented by the bill of exceptions was whether or not the plaintiff was a competent wit- ness to give testimony in his own behalf. It was objected that the bill of exceptions did not state that the witness was material, and that hence there could be no error in his exclusion. The Supreme Court stated that though it would have been more in conformity with the usual prac- tice to have stated that the witness was material to sustain the issue, they thought that enough was stated to imply the materiality, and that this objection could not be maintained. The Supreme Court stated further that the bill of exceptions was brief, presenting only this single exception, and stating no more of the case than was necessary, which practice the Court commended. Haussknecht v. Glaypool, 1 Black, 431 (435). (December Term, 1861.) 49. Undoubtedly the rule is that the record must show that the excep- tion relied on was taken and reserved by the party aJ the trial ; but it is a mistake to suppose that it has ever been held by the Supreme Court that it must be drawn out and sealed by the judge before the jury retire from the bar of the court. Great inconvenience would result from such a re- quirement, and in point of fact there is no such rule. On the contrary, it is always allowable, if the exception be seasonably taken and reserved, that it may be drawn out in form and sealed by the judge afterwards; and the time within which it may be so drawn out and presented to the court must depend on the rules and practice of the court and the judicial dis- cretion of the presiding judge. Dredge v. Forsyth, 2 Black, 563. (December Term, 1862.) Kellogg v. Forsyth, 2 Black, 571. (December Term, 1862.) 50. Wlien the objection is, that the instructions of the court laid too great stress upon the testimony of a particular witness, the bill of excep- tions should embody the testimony, or so refer to it as to make it part of the record, else the Supreme Court is bound to assume that there was that in the testimony which justified the instruction. Sussell V. My, 3 Black, 575. (December Term, 1862.) 51. It is well settled that bills of exceptions are restricted to matters which occur during the progress of the trial ; but it is not necessary, neither is it the practice, to reduce to form every exception as it is taken, and before the trial is at an end. It will do for the judge to note them as they occur, and after the trial is over, if it is desirable to preserve them, Rule 4.] UNITED STATES SUPREME COURT. 29 they can be properly embodied in a bill of exceptions. In this case the bill of exceptions was unskilfully drawn, but the Supreme Court held that it clearly enough appeared that the rulings were excepted to in proper time, and when the cause was on trial and not afterwards ; and that there- fore the Supreme Court would not allow a valuable right to be defeated because the judge carelessly used a word in the present tense, when the true expression of his meaning required the use of a word in the past tense. The bill of exceptions was held to be valid. Simpson & Co. v. Doll, 3 "Wall. 460 (473). (December Term, 1865.) 53. Where a bill of exceptions stated that "plaintiff offered in evidence an instrument in writing on the back of the protest, purporting to be a certificate of the notary, that he had notified the indorsee of the note, vihich is Tiereunto annexed for reference as a part of this bill, to which certifi- cate counsel for defendant objected," &c., and where no such paper was found annexed to the bill of exceptions, nor in any maimer referred to, or marked, or identified as being a part of the bill of exceptions, or as the paper which was offered in evidence, the Supreme Court held that if a paper which is to constitute a part of a bill of exceptions is not incorpo- rated into the body of the bill, it must be annexed to it, or so mai-ked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt that it is, when found in the record, the one referred to in the bill of exceptions; and that where there is merely a copy attached to, and a part of, the pleading, it may or may not be a perfect copy of the paper which was offered in evidence ; but that whether it be so or not, it is certain that it does not become a part of the bill of exceptions by being attached to the pleading. Leftwiteh v. Leeanu, 4 Wall. 187. (December Term, 1866.) 53. The Supreme Court protests against attempts at mystifying the merits of a case by a record called a bill of exceptions, which is a sort of abstract or index to the history of another case. Evans t. Patterson, 4 Wall. 324. (December Term, 1866.) 54. Held, That the 8th Section of the Act of Congress of March 3d, 1863, ch. 91, 13 Stat, at Large, 764, providing among other things "That if, upon the trial of a cause, an exception be taken, . . . the bill of excep- tions need not be sealed or signed," has reference only to carrying such rulings from the Special to General Term of the Supreme Court of the District of Columbia, and does not apply to cases brought from the Supreme Court of the District of Columbia to the Supreme Court of the United States for revision. The Supreme Court states that the settled practice in that Court is tliat neither the ruliijgs of the court below in admitting or rejecting evidence, or in giving or refusing instructions, can be brought there for revision in any other mode than by a regular bill of exceptions ; that final judgment in a Circuit Court may be re-examined in the Supreme Court and reversed 30 GENERAL RULES OF THE [Rule 4. or affirmed upon a writ of error, founded upon an agreed statement of tacts, a special verdict, a demurrer to a material pleading, or a demurrer to evidence, as well as by a bill of exceptions ; but that none of the other inodes will enable the appellate court to revise the rulings of the couH below in refusing to instruct the jury as requested, or the instructions as given, or the rulings of the court in admitting or rejecting evidence; that such rulings rest in parol and can only be incorporated into the record by a bill of exceptions, and of course cannot be re-examined in any other way. The ruling in Pomeroy''s Lessee v. Bank of Iivliana, 1 Wall. 593 (602) (Authority No. 13 under this Rule), approved and re- affirmed. Thom2JSonv. Riggs, 5 "Wall. 633 (675). (December Term, 1866.) 55. Judgment affirmed where the bill of exceptions is neither signed nor sealed by the judge below. Mussina v. Cavazos, 6 Wall. 355 (363). (December Term, 1867.) 56. A bill of exceptions should only present the rulings of the court upon some matter of law, as upon the admission or exclusion of evidence, and should contain only so much of the testimony, or such a statement of the proofs made or offered, as may be necessary to explain the meaning of the rulings upon the issues involved. The practice of sending up to the Supreme Court bills filled with superfluous and irrelevant matter is condemned. Lincoln v. Glaflin, 7 Wall. 133 (137). (December Term, 1868.) 57. To same effect as and referring specifically to Lincoln v. Glaflin (Authority No. 56 under this Rule), and to Rule 4. Laier v. Cooper, 7 Wall. 565. (December Term, 1868.) 58. To be of any avail exceptions must not only be drawn up so as to present distinctly the ruling of the court upon the points raised, but they must be signed and sealed by the presiding judge. Unless so signed and sealed they do not constitute any part of the record which can be con- sidered by an appellate court. Young v. Martin, 8 Wall. 354. (December Term, 1869.) 59. A statement of fact made and filed by a judge several days after the issue and service of a writ of error is a nullity, Geneves v. Bonnemer, 7 Wall. 564 (Authority No. 103 under this Rule), affirmed. Avendam v. Oay, 8 Wall. 376. (December Term, 1869.) 60. When a bill of exceptions did not purport to set out all the evi- dence, and it did not appear what other evidence, if any, was given in the Court below, the Supreme Court stated that they would not take ju- dicial notice of facts which do not appear in evidence, however well satisfied they might be on the subject. Such facts should be proved by proper testimony; but error was not to be presumed. It must be affirma- tively shown. The reason of the refusal by the court to instruct as asked Rule 4.] UNITED STATES SUPREME COURT. 31 by the defendants might have been that certain facts might have been proved, but the propriety of the refusal depended upon the state of the evidence ; and if these facts were not in proof, the bill of exceptions, under the circumstances, should have so stated; It did not appear from anything in the record tliat the court erred in refusing to give the instruc- tion, and the presumption was the other way. The Supreme Court there- fore refused to reverse. Wiggins v. Burkhnm, 10 Wall. 139 (132). (December Term, 1869.) 61. A case where a preliminary point was raised that the exception was not taken at the trial, but was taken afterwards on the overruling of a motion for a new trial. Held, That it seemed probable that the formal bill of exceptions was not signed or settled until after the motion was overruled, but that it was a common practice, convenient in dispatch of business, to permit the party to claim and note an exception when occa- sion arises, but defer reducing it to a formal instrument until the trial is over; and tliat from the language used at the beginning and end of the bill, the Supreme Court are of the opinion that the objections were made during the trial as the rulings excepted to were made. Bailroad Co. v. Hemes, 10 Wall. 176 (188). (December Term, 1869.) 63. Where a bill of exceptions dated during the term, and in fact filed before the judgment on the verdict was entered, shows that the exceptions were taken at the trial, that is sufficient, although it does not purport to have been tendered and signed during the trial. French v. Edwards, 13 Wall. 506 (516). (December Term, 1871.) 63. The Supreme Court again objects to the practice of bringing before them a bill of exceptions which embodies all the evidence offered and where the arguments address themselves to the entire merits on this evidence, aud where counsel argue the whole case as if the verdict concluded nothing. Gregg v. Moss, 14 Wall. 564 (568). (December Term, 1871.) 64. Where there are no requests for specific instructions, it is abun- dantly settled that error cannot be assigned for failure to give instruc- tions that were not asked. The portion of the charge excepted to may not have covered the whole case. It probably did not. But so far as given it contained no erroneous directions. Shutte V. Thompson, 15 Wall. 151 (164). (December Tei-m, 1873.) 65. Cases where record was imperfect as to evidence or exceptions. Kearney v. Denn, 15 Wall. 51. (December Term, 1872). ilanders v. Tweed, 15 Wall. 451. (December Term, 1873.) 66. Evidence or statements of fact not contained in the bill of exceptions, nor made a part thereof, though appended thereto^ will not be regarded by the Supreme Court. £anh v. Kennedy, 17 Wall. 19. (December Term, 1872.) 32 GENERAL RULES OF THE [Rule 4, 67. The Supreme Court in passing upon questions presented by the bill of exceptions will not look beyond the bill itself. The pleadings and the statements of the bill, the verdict and the judgment, are the only matters that are properly before it. Depositions, exhibits or certificates not con- tained in the bill, cannot be considered by the Supreme Court. The Su- preme Court declares its intention to adhere to what is above presented as its practice ; and declares that the case of Flanders v. Tweed, 9 Wall. 425 (Authority No. 105 under this Rule), was exceptional. Reed v. Gardner, 17 Wall. 409. (October Term, 1873.) 68. When in a bill of exceptions the court below placed its action on its own rules (in this instance the pleas of the statute of limitations were not filed in time, according to the rules of the court below), with the construc- tion of which, and the course of practice under them, it must be familiar, it would seem that the party assigning error should be bound to exhibit in his bill of exceptions so much of the i-ule or rules as affects the ques- tion. Packet Go. v. 8iekle», 19 Wall. 611 (616). (October Term, 1873.) 69. If either party in an action at law is desirous of preserving the evidence, either at the tj'ial, or on a preliminary motion, in order to raise a question of law upon it, he must ask to have it incorporated in a bill of exceptions, which is the only way in which it can be done, unless the parties choose to make an agreed statement of facts. If neither mode be adopted, the Supreme Court is without means of knowing what evidence was introduced on either side. Kna'pp V. Railroad Co., 20 Wall. 117 (121). (October Term, 1878.) 70. If a party assign no ground of exception to the admission of testi- mony the mere objection cannot avail him. Burton v. Driggs, 20 Wall. 125 (133). (October Term, 1873.) 71. To be available in the Supreme Court an objection must have been taken in the court below. Unless so taken it will not be heard in the Supreme Court. Mays V. Fritton, 20 Wall. 414 (418). (October Term, 1874.) 72. A party who complains of the rejection of evidence must show that he is injured by the rejection. His bill of exceptions must make it appear that if it had been admitted it might have led the jury to a different ver- dict. This must be understood as the practice of the Supreme Court, and such is the requirement of the twenty-first Rule. Pachet Co. v. hlorigTi, 20 Wall. 528 (542). (October Term, 1874.) [See same case under Subdivision 2, Clause 2, Rule 21.1 73. Whatever may be the rule elsewhere, to render an exception avail- able in the Supreme Court it must affirmatively appear that the raling ex- Rule 4.] UNITED STATES SUPREME COURT. 33 cepted to affected or might have affected the decision of the case.. If the exception is to the refusal of an interrogatory, not objectionable in form, the record must show that the answer related to a material matter in- volved ; or if no answer was given, the record must show the offer of the party to prove by tiie witness particular facts, to which the interrogatory related, and that such facts were material, affirming Packet Co. v. Clough, 20 Wall. 528 (Authority No. 72 under this Rule). Bailroad Co. v. Smith, 31 Wall. 255 (361). (October Term, 1874.) 74. The bill of exceptions was silent upon the question whether there were any stamps of any kind or to what amount upon certain bonds. The Supreme Court refused to consider the point, stating that the fact must appear by the record as an existing fact in the case, and that if the ob- jector wished the point to be passed upon by the appellate court, he must take care that the fact should sufficiently appear in the record. Chambers County v. Clews, 21 Wall. 317 (334). (October Term, 1874.) 75. The established rule declared to be that the exception must show that it was taken and reserved by the party at the trial, but a bill of ex- ceptions may be drawn out in form and signed or sealed by the judge at a later period. Citing United States v. BreitUng, 20 How. 254 (Authority No. 43 under this Rule). Stanton v. EmJbrey, Administrator, 93 U. S. 548 (555). (October Term, 1876.) 76. Errors apparent in the record, though not presented by a bill of ex- ceptions, may be re-examined by a writ of error in an appellate tribunal ; but alleged errors, not presented by a bill of exceptions, nor apparent on the face of the record, are not the proper subject of re-examination by a writ of error in the Supreme Court. The parties dissatisfied with a rul- ing must take care to raise the questions to be re-examined, and must see that the questions are made to appear in the record; for nothing is error in law, except what is apparent on the face of the record by bill of ex- ceptions, or an agreed statement of facts, or in some one of the methods known to the practice of courts of error for the accomplishment of that object. Storm V. United States, 94 U. S. 76 (81). (October Term, 1876.) 77. A bill of exceptions cannot be taken on a trial of a feigned issue directed by a court of equity, or if taken can only be used on a motion for a new trial. Johnson v. Harmon, 94 U. S. 371. (October Term, 1876.) 78. There is but one mode of bringing up on the record and making a part of it the rulings of a judge during the progress of a trial, or his charge to the jury, and that is by a bill of exceptions allowed and sealed or signed by the judge. It is true that in the hurry of the trial, the bill is 3 34 GENERAL RULES OF THE [Rule 4. not often reduced to form and sealed or signed. Generally an exception is only noted by the judge at the time claimed, and it is subsequently drawn up ; but it is not a bill of exceptions until it has been sealed, or, as is now sufficient, signed. The sealing or signature of the judge is essential for its authentication; and it has been ruled that the judge's notes do not constitute a bill of exceptions. They are but memoranda from which a formal bill may afterwards be drawn up and sealed. Citing Pomtroyh Lessee v. Bank of Indiana, 1 Wall. 593 (Authority No. 13 under this Rule.) Insurance Co. v. Lanier, 95 U. S. 171. (October Tenu, 1877.) 79. The Supreme Court must have before it a bill of exceptions, or what is equivalent to such bill, or it cannot examine into any alleged errors, except such as are otherwise apparent on the face of the record. Kerr v. Clampitt, 95 U. S. 188. (October Term, 1877.) 80. In a case where there were two suits between the same parties, the Supreme Court adverted to certain irregularities which appeared in the proceedings, saying: " Judgment was rendered in the first suit before the parties went to trial in the second, and yet the defendants were allowed to file eight bills of exceptions, which purport to be applicable to each of the two cases ; and the judgment in each case is removed here by one writ of error, though the transcript does not show that the two cases were ever consolidated. Such proceedings are palpably irregular ; but inasmuch as they are not the subject of objection by either party, the court has de- cided to exercise jurisdiction and dispose of the controversy. Separate judgments having been entered in the court of original jurisdiction, the judgment rendered here must be separately applied in the court below." Brown v. Spofford, 95 U. S. 474 (484). (October Term, 1877.) 81. A paper entitled "case and exceptions," and which contained all the requisites of a bill of exceptions, except the name, was incoi'porated in the record, and had the sanction and signature of the judge; Held, To be a suificient bill of exceptions. Herlert v. Butler, 97 U. S. 319. (October Term, 1877.) 83. A bill of exceptions cannot be taken on the trial of a feigned issue directed by a court of equity, or if taken, can only be used on the motion for a new trial. Afiirming Johnson v. Harmon, 94 U. S. 371 (Authority No. 77 under this Rule). Watt V. Starlce, 101 U. S. 347 (250). (October Term, 1879.) 83. Exceptions need only be noted at the time they are made, and may be reduced to form at a reasonable time after the trial is over, which time is in the discretion of the judge, and a defendant does not waive them by suing out a writ of error before the judge's signature is obtained. If signed during the term bills of exceptions need not be antedated, nor filed nvM pro tunc. Hunnicutt v. Peyton, 103 U.S. 383 (354.) (October Term, 1880.) Rule 4.J UNITED STATES SUPREME COURT. 35 84. A case wherein the Supreme Court approves of Dunlop v. Munroe, 7 Cranch, 242 (270) (Authority No. 25 under this Eule). The bill of ex- ceptions did not contain any of the evidence on the trial, but related to the charge ; and the only questions arising on the bill of exceptions were those presented to the charge of the court to the jury. The Supreme Court said that, of course, evidence might be included in a bill of excep- tions by appropriate reference to other parts of the record, and if that had been done in this case it miglit have been enough ; but that, with no issue made directly by the pleadings, and no evidence set forth or referred to in the bill of exceptions showing the materiality of the charge complained of, the case presented to the Supreme Court only an abstract proposition of law which might or might not have been stated by the court below in a way to have been injurious to the plaintiflEs in error, and that such a proposition they were not required to consider. Citing Beed v. Gardnei\ 17 Wall. 409 (Authority No. 67 under this Rule). Jones V. Buchell, 104 U. S. 554 (556). (October Term, 1881.) 85. A case where the Supreme Court reviewed a case on a writ of error, and stated that to obviate any objection that it could not review the judg- ment in the case because there was no general verdict of the jury, and no special verdict in any form known to the common law, and no waiver in writing of a jury trial, and no such finding by the court below upon the facts as was provided for by sec. 649 of the Revised Statutes, the parties had filed in the Supreme Court a written stipulation agreeing "that the facts appearing from the special verdict and stated by the bill of excep- tions to have been proved, shall be taken and considered as the facts in this case for all purposes, and as fully as if they had been specifically found by the Circuit Court;'' and "that the Circuit Court submitted certain questions to the jury by agreement of the parties, and that the other facts were to be found and stated as shown by the bill of excep- tions, and that upon the whole case as tlius shown, judgment was to be pronounced by the court below, as they should determine the law." Geekk v. Kirby Carpenter Co., 106 U. S. 379 (383). (October Term, 1882.) 86. A case which was tried by a jui-y, and where there was no written waiver of a jury, and where certain questions were propounded to the jury, who returned them with the answers thereto, as a special verdict, and where the judgment stated that it was rendered "upon the special verdict of the jury, and facts conceded or not disputed upon the trial." There was no general verdict and the evidence did not appear in the record. The Supreme Court, therefore, reversed the judgment, as it was not sus- tained by the special verdict. Hodges v. Easton, 106 TJ. S. 408. (October Term, 1882.) 87. A case wherein the Supreme Court stated that the rule is well estab- lished and of long standing, that an exception, to be of any avail, must 36. GENERAL RULES OF THE [Rule 4. be taken at the trial ; that it may be reduced to form and signed after- wards, but the fact that it was seasonably taken must appear affirm- atively in the record by a bill of exceptions duly allowed, or otherwise. The cases of Phelps v. Mayer, 15 How. 160 (Authority No. 10 under this Rule); United StaUs v. Breitling, 20 How. 353 (Authority No. 43 under this Rule), and others, cited. In this case the language implied an excep- tion only at the time of tendering the bill of exceptions to be signed, which was not only long after the trial, but at a subsequent term of the court ; and the Supreme Court stated that even the liberal extension of the rule granted in Simpson v. Doll, 3 "Wall. 460 (Authority No. 51 under this Rule), is not enough to reach this defect. United States r. Carey, 110 U. S. 51. (January 7th, 1884.) AUTHORTTIBS RELATING TO THE MAUNEE OP REVIEW WHEKE THE TftlAL IS BY THE COURT WITHOUT A JURY. 88. Where a cause is by consent not tried by a jury, the exception to the admission of evidence is not properly the subject of a bill of exceptions ; but if the evidence was improperly admitted, the only effect would be, that the Supreme Court would reject that evidence, and proceed to decide the cause as if it were not in the record. The eiTor would not, however, con- stitute of itself, any ground for the reversal of the judgment. MeU V. United States, 9 Pet. 183 (203). (January Term, 1835.) 89. A bill of exceptions is altogether unknown in chancery practice. Me parte Story, 13 Pet. 839 (343). (January Term, 1838.) 90. A case where counsel for the defendant in error insisted that the Supreme Court could not take cognizance of the cause for the reason that, it having been tried upon an agreed case, a writ of error could not lie to a decision thereof. The Supreme Court, however, after fully discussing the question rnised, declared that they had no hesitancy in declaring that the point of practice raised by the defendants' counsel presented no ob- jection to the regularity of the mode of bringing tlie case before them. The United States v. Eliason, 16 Pet. 291 (301). (January Term, 1842.) 91. A bill of exceptions need not be taken when the court below decides both law and fact. The case then becomes like one of common law where a special verdict is found, or a case stated ; in neither of which is there any necessity for a bill of exceptions. United States v. King, 7 How. 838. (January Term, 1849.) 92. Although there is no distinction between suits at law and equity in the courts of Louisiana, yet the distinction must be observed in the courts of the United States. When a case is submitted to a judge to find the facts without a jury, he acts as referee, by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony, nor to his Rule 4.J UNITED STATES SUPREME COURT. 3T judgment on the law. If a party feels aggrieved, a case should be made up, stating the facts as found by the court, in the nature of a special verdict, and the judgment of the court thereon. If testimony has been received after objection, or overruled, as incompetent or irrelevant, it should be stated, so that the Supreme Court may judge whether it was competent, relevant, or material, in a just decision of the case. An exception to the admission of evidence is not properly the subject of a bill of exceptions. If improperly admitted, the Supreme Court would reject the evidence and proceed to decide the case as if it were not in the record. Wernis V. Oeorge, 13 How. 190 (197). (December Term, 1851.) 93. The State practice of Louisiana in appeals does not apply to writs of error from the Supreme Court to the Circuit Courts; hence there is no ob- jection to the re-examination of the point of law presented in the bill of exceptions because other evidence had been given and was before the court, than what appeared in the bill of exceptions. If other evidence was deemed material it should have been brought into the record by the de- fendant in error. It must be assumed that the bill of exceptions contained all the testimony deemed material to raise the point of law involved. Where a trial by jury has been waived, the objection to the admission of improper evidence is not properly the subject of a bill of exceptions, but the contrary is the case where proper evidence is excluded. Arthurs v. Hart, 17 How. 6 (15). (December Term, 1854). 94. Where a case was tried in the Circuit Court of the United States in whicli both parties agreed that matters of law and fact should be sub- mitted to the court, and it was brought to the Supreme Court upon a bill of exceptions which contained all the evidence, the Supreme Court held that they would remand the case to the Circuit Court with directions to award a venire de nmo ; that a bill of exceptions must present questions of law ; that where there was no dispute upon the facts, counsel might agree on a case stated in the nature of a special verdict ; but that to send all the evidence up was not the same thing as agreeing upon the facts. Graham v. Bayne, 18 How. 60. (December Term, 1855.) 95. Where a trial by jury is waived in the court below, and there is no special verdict or agreed statement of facts, and no bill of exceptions upon a point,of law, the Supreme Court cannot review the judgment of the court below. Guild Y. Frontin, 18 How. 135. (December Term, 1855.) 96. Where exceptions are not taken in the progress of the trial in the Circuit Court and do not appear on the record, there is no ground for the action of the Supreme Court. Lathrop v. Judson, 19 How. 66, (December Term, 1856.) 97. The agreement of parties cannot authorize the Supreme Court to revise a judgment of an inferior court in any other mode of proceeding 38 GENERAL RULES OF THE [Rule 4. than that which the law prescribes, nor can the laws of a State, regu- lating the proceedings of its own courts, authorize a District or Circuit Court sitting in the State to depart from the modes of proceeding and the rules prescribed by the acts of Congress ; therefore, where the parties to an ejectment suit agreed to waive a trial by jury, and that both matters of law and of fact should be submitted to the decision of the court, and then a bill of exceptions was brought up to the Supreme Court to all the rulings and decisions of the court below, the Supreme Court held that it could not look into errors of fact, or errors of law, alleged to have been committed in such an irregular proceeding, and therefore aflBrmed the judgment of the court below. Eelsey v. Forsyth, 21 How. 85. (December Term, 1858.) 98. A case was tried below at the April Term, 1856, by consent of parties, without the intervention of a jury. The presiding judge reported his findings of fact and his judgment thereon. Some six months after- wards, the defendants below made up a statement of facts (to which the plaintiff refused his assent), and presented it to the District Judge and demanded that he should seal a bill of exceptions. This the judge properly refused to do, but signed a bill of exceptions taken to his decision refusing to sign one. The Supreme Court stated that this novelty in practice requii-ed no further notice. Martin v. Ihmsen, 31 How. 394 (396). (December Term, 1858.) 99. In this case the Supreme Court stated that it was very clear that a paper not signed by counsel, nor entered on the record of the court, nor made part of the record of the case by bill of exceptions, or in any other manner, cannot be considered by the Supreme Court as the foundation on which it is to affirm or reverse the case ; that it was probable, from the language of the closing paragraph, that the parties considered it as an agreed statement of facts, on which the court below might decide the law, and on which the Supreme Court would review that decision, and stated that it was quite true that they had decided in the case of the United States T. EUason, 16 Pet. 391 (Authority No. 90 under this Rule), and in several cases since, that tliis might be done ; but that in order to bring such a case properly before the Supreme Court two things were essential which were wanting in this case, viz. : 1. The agreed statement of facts must, in some manner in the court below, be made a part of the record of the case ; 3. The statement must be qufflcient in itself, without inferences, or comparisons, or balancing of testimony, or weighing evidence, to jus- tify the application of the legal principles which must determine the case. It must leave none of the functions of a jury to be discharged by the Supreme Court, but must have all the sufficiency, fulness, and perspicuity of a special verdict. If it requires of the court to weigh confficting testimony, or to balance admitted facts, and deduce from these the propositions of fact on which alone a legal conclusion can rest, then it is not such a statement as the Supreme Court can act upon. The RuLB 4.] UNITED STATES SUPREME COURT. 39 paper was rejected by the Supreme Court as it " is evidence of facts, and not the facts themselves as agreed or found," and the Supreme Court stated that it was obvious that if the whole of the paper were presented by a jury as a special verdict, it would be objectionable, as presenting the evidence of facts, and not the facts themselves, which must determine the issue. Burr V. Des Moines Co., 1 "Wall. 99 (101). (December Term, 1863.) 100. — 1. TJuless an exception is reduced to writing and sealed by the judge, it is not a bill of exceptions within the meaning of the statute authorizing it, and it does not become part of the record, but the seal as required is to the bill of exceptions, and not to each particular exception, and it is sufficient if the bill of exceptions is sealed at the close. 2. The distinction between agreed statements of facts and special verdicts pointed out. 3. When the paper in the transcript is not a good bill of exceptions, agreed statement of facts, or a special verdict, the result is that it is not a part of the record, and, under the circumstances of the case, it must be wholly disregarded by the court in determining whether the judgment of the court below ought to be reversed or affirmed, and the general rule is that the judgment will be affirmed. Citing Suydam v. Williamson, 30 How. 441 (Authority No. 44 under this Rule); Kelsey v. FrucUon Co. v. Seymour, 91 U. S. 646 (648). (October Term, 1875.) [See same case under Clauses 3 and 4, Rule 31.] UNDER SUBDIVISION (3). SECOND SENTENCE — EESPBCTINa THE ADMISSION OB REJECTION OF EVIDENCE. 8. When the error assigned is to the admission or rejection of evidence the specification must quote the full substance of the evidence offered, or a copy of the offer as stated in the bill of exceptions, so as to en- able the Supreme Court to see whether the evidence offered was material. In this case one of the assignments of error was the rejection of a depo- 150 GENERAL RULES OF THE [Rule 21. sition -which was not before the Supreme Court, nor any statement of what it tended to prove. Packet Company y. Olough, 30 Wall. 528 (543). (October Term, 1874.) [See same case under Rule 4 and Clause 3, Eule 31.] UNDKK SUBDIVISION (3). THIRD SENTENCE — RESPECTING THE CHARGE OP THE COURT. 9. An assignment alleging error in the charge of the court below, which avers simply that that court erred in giving the instructions which were given to the jury, on its own motion, (that is, in the general cliarge,) in lieu of the instructions aslted for by the parties, is made in disregard of this Rule, because it does not specify in what the error consists, or in what part of the charge it is contained. iMcas V. Broois, 18 Wall. 436 (456). (October Term, 1873.) [See same case under Clauses 3 and 4, Rule 31.] SUBDIVISION (3). SECOND SENTENCE — STATUTE OF A STATE. 10. Where a cause was submitted under the 20th Rule on printed briefs, and both parties entirely disregarded the provision that "when the statute of a State is cited, so much thereof as may be deemed neces- sary to the decision of the case shall be printed at length," the submis- sion was set aside and the case restored to its place on the docket. School Dist. v. Insurance Go., 101 U. S. 473. (October Term, 1879.) [See same case under Clause 1, Rule 20, and Clause 3, Rule 21.] 3. The counsel for a defendant in error or an appellee shall file with the clerk twenty-five printed copies of his argument, at least three days before the case is called for hearing. His brief shall be of a like character with that required of the plaintiff in error or appel- lant, except that no specification of errors shall be required, and no statement of the case, unless that presented by the plaintiff in error or appellant is controverted. HISTORY. This Clause appears to have had its origin in part in Original General Rule 8, adopted February 4th, 1795, 3 Dallas, 120 ; 1 Cranch, xvii. ; 1 Wheat, xiv. ; 1 Pet. vi., which, as given in 1 Cranch, xvii., was in these words, viz.: "The court gave notice to the gentlemen of the bar, that hereafter Rule 21.] UNITED STATES SUPREME COURT. 151 they will expect to be furniahed with a statement of the material points of the case, from the counsel on each side of the cause." This Clause also appears to have had its origin in part in Original General Eule 30, promulgated at Februai-y Term, 1831, 6 Wheat, v. This Original General Rule is given as Rule 37, in 1 Peters ix., and as Eule 39, in 1 How. XXX. It was in these words : "After the present term no cause standing for argument will be heard by the Court until the parties shall have furnished the Court with a printed brief or abstract of the cause, containing the sub- stance of all the material pleadings, facts, and documents on which the parties rely, and the points of law and fact intended to be pre- sented at the argument." At the January Term, 1849, Original General Rule 53 was promulgated, 7 How. v., the second Clause of which was in these words : "Counsel will not be heard, unless a printed abstract of the case be first filed, together with the points intended to be made, and the authorities intended to be cited in support of them arranged under the respective points. And no other book or case can be referred to in the argument." This Original General Rule 58 is also printed in 8 How. v., with the statement that Mr. Justice Wayne dissented from the Rule, and that WooDBUKT, J., did not concur in the Rule. On April 34th, 1850, Original General Rule 58 was promulgated, 8 How. vi., providing that twelve printed copies of the abstract, points and authorities required by the 53d Original General Rule, be filed with the Clerk three days before the case is called for argument, nine of these copies for the Court, one for the Reporter, one for the opposing counsel, and the remaining one to be retained by the Clerk. The Clause of Original General Rule 53, above quoted, and the sub- stance of Original General Rule 58, above referred to, appeared in the Re- vision of December Term, 1858, 31 How. xii. and xiii., as Clauses 8 and 6 respectively, of General Rule 31, with some changes, mostly immaterial, the principal change being that fifteen printed copies of the brief were thereby required to be filed, instead of twelve as theretofore required. By an amendment promulgated February 9th, 1865, 3 Wall, viii., Clause 6 of said Revised General Rule 31 was amended so as to require twenty printed copies of the brief instead oi fifteen. In the Revision of May 1st, 1871, General Rule 31 was entirely re- modeled, and the portion of the Revision relating to General Rule 31 is contained in 11 Wall. ix. Clause 3 of General Rule 21 as so revised read as follows : "Counsel will not be heard unless a printed brief or abstract of the case be first filed, together with the points made, and the authori- ties cited in support of them, arranged under the respective points." And Clause 11 of General Rule 31 as so revised was as follows : 152 GENERAL RULES OF THE [Rulb 21. " TiDmty -prmteA. copies of the abstract, points, and authorities, re- quired by this rule shall be filed with the clerk, by the plaintiff in error or appellant six days, and by the defendant in error or appellee three days, before the case is called for argument. On November 16th, 1873, the 31st General Rule was further amended, 14 Wall, xi., and was again entirely remodeled, Clause 3 of the General Rule as it had theretofore existed and as above quoted, being omitted, and the General Rule as remodeled containing a Clause 7, which was, with the exception of some immaterial changes, and the use of the word "assignment " instead of " specification," and "twenty " for " twenty-fim" the same as the present Clause 3 of General Rule 31. For this Clause in the Revision of 1884, see 108 U. S. 585. Note. — The signature of a firm name to a brief in the Supreme Court never has been and is not now sufficient. The brief mu^t be signed by a member of the bar of the Supreme Court. See History under Clause 1, Rule 20. See also the Circular Letter of the Clerk of the Supreme Court, under Clause 1, Rule 10. AUTHORITIES. THAT BEIBF MUST BE FILBD. For the siibstance of the dedswrn not stated hereuTider in full, see same where indicated nnder the cases respectively. 1. Faw V. Marsteller, 3 Cranch, 10. (February Term, 1804.) See same case under Clause 1, Rule 21. 3. Seily v Lamar, 3 Cranch, 344 (350), note. (February Term, 1805.) [See same case undeit Clause 1, and under Subdivision 1, Clause 3, Rule 31. 8. On the Supreme Court calling for statements of the case agreeably to the Rule of the Court, counsel for the defendant in error said he had sup- posed the Rule to extend only to plaintiffs in error, but the Court said they expected them from both sides. No statements were prepared, and Mar- shall, Ch. J., said " We wish to give general notice to the gentlemen of the bar, that unless statements of the case are furnished according to the Rule, the causes must either be dismissed or continued." Peyton v. Broolce, 3'Cranch, 92. (February Term, 1805.) [See same case under Clause 1, Rule 31.] 4. Portland Company y. United States, 15 Wall. 1. (December Term, 1873.) [See same case under Clauses 1 and 4, Rule 31.] RBSPECTDra CONTENTS OF BRIEF OF DEPENDANT IN ERROR OR APPELLEE. For the substance of the authorities cited in full hereunder, see the same cases where indicated ielow respectively. Rule 21.] UNITED STATES SUPEEME COURT. 153 TJNDBR CLAUSE 2, STTBDrVISION (1), BULB 21. 5. Bdly V. Lamar, 2 Cranch, 344 (350), note. (February Term, 1805.) [See same case also under Clause 1, Rule 21.] UNDER CLAUSE 3, SUBDIVISION (2), BULE 21— FIRST SENTENCE — SPECIFI- CATIONS 6ENEBALLT. 6. Gregg v. Mose. 14 Wall. 564 (568). (December Term, 1871.) [See same case also under Clause 4, Rule 21.] 7. I>ktsch V. Wiggim, 15 Wall. 539. (December Term, 1872.) [See same case also under Clause 4, Rule 21.] 8. Treat v. Jemison, 20 Wall. 653. (October Term, 1874.) [See same case also under Clause 4, Rule 21.] 9. Scholey v. Bew, 38 Wall. 331 (345). (October Term, 1874.) [See same case also under Clause 4, Rule 31.] 10. Phillips, etc., Cmst/ruction Co. v. Seymour, 91 U. S. 646. (October Term, 1875.) [See same case also under Clause 4, Rule 21.] UNDER CLAUSE 2, SUBDIVISION (2), RULE 31 — SECOND SENTENCE — RESPECTING THE ADMISSION OR REJECTION OF EVIDENCE. 11. Packet Company v. Olmt^Ti, 30 Wall. 538. (October Term, 1874.) UNDER CLAUSE 2, SUBDIVISION (2), RULE 21 — THIRD SENTENCE — RESPECTING THE CHARGE OF THE COURT. 12. Lucas V. Broohs, 18 Wall. 436. (October Term, 1873.) [See same case also under Clause 4, Rule 21.] UNDER CLAUSE 2, SUBDIVISION (3), RULE 21 — SECOND SENTENCE — STATUTE OF A STATE. 13. School Hist. V. Insurance Co., 101 U. S. 472. (October Term, 1879.) [See same case also under Clause 1, Rule 20.] 4. When there is no assignment of errors, as required by section 997 of the Revised Statutes, counsel will not be heard, except at the request of the court ; and errors not specified according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified. 154 GENERAL RULES OF THE [Rule 21. HISTORY. It is worthy of note that Clause 4 of General Rule 31 refers especially to an assignment of errors as required by the foregoing Section 997 of the Revised Statutes. This is the first time that a Rule Of the Supreme Court has referred to an assignment of errors such as is required by the Revised Statutes. In the amendment to the 31st General Rule, promulgated No- vember 16th, 1873, 14 Wall, xii.. Section 8 was in these words : "Without such an assignment of errors, counsel will not be heard except at the request of the court, and errors not assigned ac- cording to this rule will be disregarded, though the court at its option, may notice a plain error not assigned." This Section 8 of the amended General Rule 31, of November 16th, 1872, taken in connection with Subdivision II. of Section 4 of said General Rule 31 as then amended, 14 Wall, xi., which required that the brief should contain ' ' an assignment of the errors relied upon, " etc. , had reference to assignments of errors contained in the brief, and did not refer specifically to assignments of errors annexed to and returned with the writ of error as provided by the Statute. This Section 8 of the amended General Rule 31 of November 16th, 1872, was the successor of the following provisions of General Rule No. 31, pro- mulgated May 1st, 1871 [Revision of May 1st, 1871], 11 Wall, ix., relat- ing to the contents of Briefs, viz: "5. Each error shall be separately alleged and particularly speci- fied ; otherwise it will be disregarded. u7_ * * * Any alleged error not in accordance with these rules will be disregarded. " 8. Counsel will be confined to a discussion of the errors stated, but the court may, at its discretion, notice any other errors appear- ing in the record." These provisions of General Rule 21 as revised and promulgated May 1st, 1871, were then new, but for prior Rules bearing upon the subject reference may be had to Original General Rule 8, adopted February 4th, 1795, 3 Dallas, 120, 1 Cranch, xvii., 1 Wheat, xiv., 1 Pet. vi., and Original General Rule 30, promulgated at February Term, 1821, 6 Wheat, v., and appearing as Rule 27 in 1 Pet. ix., and as Rule 29 in 1 How. xxx. See History under Clause 1, General Rule 31. For this Clause in the Revision of 1884 see 108 U. S. 585. TEDERAL STATUTES. Section 997 of the Revised Statutes of the United States (Second Edition), page 186, referred to in the text of this Clause, is in these words ; "There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned. Rule 21.J UNITED STATES SUPREME COURT. 155 an authenticated transcript of the record , an assignment of errors, and a prayer for reversal, with a citation to the adverse party.'" See aiso Act of Congress of 24th September, 1789, ch. 20, sec. 23, 1 Stat, at Large, 84. Act of Congress of 5th February, 1867, ch. 28, sec. 2, 14 Stat, at Large, 386. AUTHORITIES. 1. The Supreme Court will notice a material and incurable defect in the pleadings and verdict, as they are represented in the record to have ex- isted in the court below, although such defect is not noticed in the bill of exceptions nor suggested by counsel in argument in the Supreme Court Garland v. Davia, 4 How. 131. (January Term, 1846.) 3. Want of jurisdiction and irregularity of the writ are the only grounds for dismissal of a writ of error on motion. It is not necessary for a party to specify on the record the errors he complains of, and they are not even informally brought to the notice of the Supreme Court till the argument is heard. The Supreme Court will not dismiss on motion merely because no error appears on face of record. Heeker v. Fowler, 1 Black, 95. (December Term, 1861.) 3. Prior to the adoption of this Clause in its present form, in a case which was submitted on printed arguments on each side, with replies and counter- replies, none of which contained any regular assignment of errors, as required by the Rule, and where the record presented a bill of exceptions of thirty printed pages of testimony, which was certified to be all that was given on the trial, and the arguments addressed themselves to the entire merits on this evidence, the Supreme Court stated that they felt very much inclined to dismiss the writ of error or affirm the judgment without an attempt to look up the questions of law which might possibly be involved in the record, stating, further, that the number of cases com- ing to the Supreme Court in which the bill of exceptions embodied all the evidence offered, and counsel, tempted by this, argued before the Court the whole case as if the verdict concluded nothing, required a de- cisive remedy. The Court, however, did examine into the record in this case. Gregg v. Moss, 14 Wall. 564 (568). (December Term, 1871.) [See same case under Subdivision (2), Clause 3, and under Clause 3, Rule 31.] 4. Portland Co. v. United States, 15 Wall. 1. (December Term, 1872.) [For substance of this decision, see same case under Clause 1, Rule 31. See case cited also under Clause 3, Rule 21.] 5. The Supreme Court think it proper to consider some assignments of 156 GENERAL RULES OP THE [Rule 21. error though not made in full conformity with the Eule, and most of the errors assigned having been made in total disregard of the Rule ; but state that the Eule is necessary to the disposition of the business which presses upon them, and that it is their intention thereafter to enforce strict com- pliance with its demands; and that if errors are not assigned in the manner required, the assignment will be treated as if not made at all; and therefore the Supreme Court feel justified in passing without notice the greater number of those that were alleged to appear in the record. Deitsch V. Wiggins, 15 Wall. 539 (546). (December Term, 1872.) [See same case under Subdivision (3), Clause 3, and under Clause 3, Rule 21.] 6. Ryan v. Koch, 17 Wall. 19. (December Term, 1872.) [For substance of decision, see same case under Clause 1, Rule 21.] 7. Lucas V. Brooks, 18 Wall. 436. (October Term, 1873.) [For substance of decision, see same case under Subdivision (2), Clause 2, Rule 21 ; also under Clause 8, Rule 21.] 8. Judgment affirmed because there was no such assignment of errors in the case as was required by the Rule, and the Supreme Court did not see in the record any error that ought to be noticed without an assign- ment. Treat v. Jemison, '30 Wall. 652. (October Term, 1874.) [See same case under Subdivision (2), Clause 2, Rule 21 ; also under Clause 3, Rule 21.] 9. A case where there was no appearance in the Supreme Court by the plaintiffs in error, and no errors had been there assigned. The Court accordingly, on the case being called, were about to dismiss the writ, but, on application of the defendants in error, looked into the record, and, finding no errors, affirmed the judgment. Maxwell v. Stewart, 31 Wall. 71. October Term, 1874.) 10. In a case where the Supreme Court found that the plaintiffs in error had no cause of complaint, the Circuit Court having rendered a judgment against them, which was, if anything, too favorable, declared that as the present writ presented only assignments of error made by the defendants, and as they were unsustained, the Court could do no more than affirm the judgment; but that had the case been brought to the Supreme Court by the plaintiffs below, they would have directed a judgment for the pro- per amount due. Tildm V. Blair, 21 Wall. 341 (249). (October Term, 1874.) 11. Scholey v. Rew, 28 Wall. 381 (345). (October Term, 1874.) [For substance of decision, see same case under Subdivision (3), Clause 3, Rule 21 ; also under Clause 3, Rule 21.] RiTLE 21.] UNITED STATES SUPREME COURT, 157 12. Phillips &C. Construction Co. v. Beymour, 91 U. S. 646. (October Term, 1875.) [For substance of decision, see same case under Subdivision (2), Clause 3, Rule 31 ; also under Clause 3, Rule 31.] 13. A failure to annex to or return with a writ of error an assignment of errors as required by Sec. 997 of the Revised Statutes, is no ground for dismissal for want of jurisdiction. If an assignment is filed in accordance with the requirements of par. 4, Rule 31, it will ordinarily be enough. School District of Ackley v. Hall, 106 U. S. 438. (October Term, 1883.) [See same case under Clause 5, Rule 6.] 5. When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion ; and when a defend- ant in error or an appellee is in default, he will not be heard, except on consent of his adversary, and by request of the court. HISTORY. This Clause originated in a Clause of Original General Rule 58, pro- mulgated at December Term, 1849, 7 How. v., and 8 How. v., from which Rule Mk. Justice Wayne dissented, and in which 'WooDBtrBT, J., did not concur. The Clause which is applicable was In these words: If one of the parties omits to file such a statement" [i. e., a printed abstract of the case, points, and authorities], " he cannot be heard, and the case will be heard «a;^ari«, upou the argument of the party by whom the statement is filed." The Clause just quoted appeared totidem verbis as Clause 5 of General Rule 31 of the Revision o'f December Term, 1858, 31 How. xii., and as Clause 10 of General Rule 31 of the Revision of May 1st, 1871, 11 Wall. x. Section 9 of General Rule 21 as amended November 16th, 1873, 14 Wall. xii., was in precisely the same language as Clause 5 of the present General Rule 21. For this Clause in the Revision of 1884, see 108 U. S. 585 6. When no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel will be heard for the ad- verse party ; but if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel HISTORY. This Clause is totidem verUa Clause 7 of General Rule 21 of the Revision 158 GENERAL RULES OF THE [Rule 22. of December Term, 1858, 21 How. xiii., Clause 12 of General Rule 21 of the Revision of May 1st, 1871, 11 Wall, x., and Clause 10 of said General Rule as amended November 16tl), 1873, 14 "Wall. xii. For this Clause in the Revision of 1884, see 108 U.S. 585. Bute 22. OEAl AEGTJMENTS. 1. The plaintiff or appellant in this court shall be entitled to open and conclude the argument of the case. But when there are cross- appeab they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argu- ment HISTORY. The provisions of this Clause first appeared as General Rule 22 of the General Rules adopted at the Revision of December Term, 1858, 21 How. xiii. Such General Rule 22 was, with the exception of a slight im- material alteration, the same as Clause 1 of the present General Rule 22, and so also was General Rule 22 of the Revision of May 1st, 1871. For tliis Clause in the Revision of 1884, see 108 U. S. 586. 2. Only two counsel will be heard for each party on the argument of a case. HISTORY. The first Rule limiting the number of counsel for each party was adopted at February Term, 1812, Original General Rule 23, 1 Wheat., xviii., 1 Pet. ix., and 1 How. xxviii. It was in these words : " Ordered, that only two counsel be permitted to argue for each party, plaintiff and defendant in a cause." This Original General Rule appeared in substantially the same form as Clause 1 of General Rule 21 of the Revisions of December Term, 1858, 21 How. xii., and May 1st, 1871, 11 Wall, ix., and of the amend- ment to General Rule 21 promulgated November 16th, 1872, 14 Wall, xi. For this Clause in the Revision of 1884, see 108 U. S. 586. AUTHORITIES. 1. In answer to a question whether the General Rule which directed Rule 22.] UNITED STATES SUPREME COURT. 159 that only two counsellors should be heard, on each side of any cause in the Supreme Court, was intended to prevent the division of a cause-into dis- tinct points, and tUe hearing of two counsellors on each point, Washing- ton, Justice, informed the bar that the Court considered the Rule as in- flexible, whatever might be the number of points or parties in a cause. Anonymous, 1 Cranch, 1. (February Term, 1813.) 3. In a case involving a constitutional question of great public impor- tance, and the sovereign rights of the United States and the State of Maryland ; and the government of the United States having directed their Attorney-General to appear for the plaintifE in error, the Supreme Court dispensed with its General Rule permitting only two counsel to argue for each party. Jf' Gulloch V. State of Maryland, 4 Wheat. 316 (323), note. (February Term, 1819. 3. In cases where the United States is a party and is represented by the Attorney-General, or the Assistant Attorney-General, or special coun- sel employed by the Attorney-General, no counsel can be heard in opposi- tion on behalf of any other Department of the Government ; but under special circumstances as detailed in this case the Rule will be departed from. ^'■The Oray Jacket,'" 5 "Wa\\. 370. (December Term, 18G6.) 3. Two hours on each side will be allowed for the argument, and no more, without special leave of the court, granted before the argument begins. The time thus allowed may be apportioned be- tween the counsel on the same side, at their discretion : Provided, always, That a fair opening of the case shall be made by the party having the opening and closing arguments. HISTORY. No limitation as to time was imposed upon counsel by the Supreme Court, prior to the first day of December Term, 1849, when Original Gen- eral Rule 58 took effect, having been promulgated at January Term, 1849, 7 How. v., 8 How. V. Mm. Justice Wayne dissented from, and Wood- bury, J., did not concur in the Rule. The first clause of the Rule was in these words: " Ordered that no counsel will be permitted to speak, in the argu- ment of any case in this court, more than two hours, without the special leave of the court, granted before the argument begins." That Clause appeared without change as Clause 3 of General Rule 31, in the Revision of December Teim, 1858, 31 How. xii. In the Revision 160 GENERAL RULES OF THE [Rule 23. of May 1st, 1871, Clause 3 of General Eule 31, 11 Wall, ix., and Section 3 of the amendment of the 31st General Rule, promulgated November 16th, 1873, were, with a few immaterial alterations, the same as Clause 3 of the present General Rule 33. For this Rule in the Revision of 1884, see 108 U. S. 586. AUTHORITIES. 1. Two hours were allowed counsel on behalf of the Treasury Depart- ment for the argument, without prejudice to the time which remained to the counsel who opened the cause for reply to the Attorney-General and the counsel for the captors, as the circumstances of the case were peculiar. See the same case under Clause 3 of General Rule 33. " The Gray Jacket,'' 5 "WaU. 370. (December Term, 1866.) Rule 23. INTEEEST. 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. HISTORY. This Clause originated in Original General Rules 17 and 18, promulgated at February Term, 1803, 1 Cranch, xviii., 1 Wheat, xvi., 1 How. xxvi., which were in these words : "Eule 17. In all cases where a writ of error shall delay the proceed- ings on the judgment of the Circuit Court, and shall appear to have been sued out merely for delay, damages shall be awarded, at the rate of ten per centum per annum on the amount of the judgment." "Rule 18. In such cases, where there exists a real controversy, the damages shall be only at the rate of m; per centum per annum. In both cases, the interest is to be computed as part of the damages." At February Term, 1807, Original General Rule 30 was promulgated, 1 How. xxvii. It was as follows : "It is ordered, that where damages are given by the rule passed at February term, 1803, the said damages shall be calculated to the day of the affirmance of the judgment in this Court." Note. — Original General Rule 30, as given in 1 How. xxvii., differs from the Rule of the same number in 1 Wheat, and 1 Pet., which relates to other matters. Rule 23.] UNITED STATES SUPREME COURT. 161 t December Term, 1851, Original General Rule 62 was promulgated, to take effect on the 1st day of December term, 1853. 13 How. v. (See Mitchell V. Harmony, 13 How, 115. Authority No. 3 under this Clause), the first paragraph of which was substantially the same as Clause 1 of the present General Rule 23 ; and Clause 1 of the present General Rule 33 is also sub- stantially the same as Clause 1 of General Rule 23 of the Revisions of 1858, 21 How. xiii., and of May Ist, 1871. For this Clause in the Revision of 1884, see 108 U. S. 586. FEDERAL STATUTES. ' Sec. 966. Interest shall be allowed on all judgments in civil causes, recovered in a circuit or district court, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the law of the State in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such State ; and it shall be calculated from the date of the judgment, at such rate as is allowed by law on judg- ments recovered in the courts of such State." Revised Statutes (Second Edition), § 966, p. 182 ; Act of Congress of 23d August, 1842, ch. 118, sec. 8, 5 Stat, at Large, 518. AUTHORITIES. 1. In error to the Circuit Court for the District of Rhode Island, the Supreme Court having affirmed the judgment, stated with respect to the entry of affirmance that interest was to be calculated to the present time upon the aggregate sum of principal and interest in the judgment below, but no further; and also that they could not extend the calculation until the June Term, when the mandate would operate in the Circuit Court, as the party had a right to pay the money immediately. Brown v. Von Braam, 3 Dallas. 344 (356). (February Term, 1797.) 2. In a, case where the Supreme Court affirmed a judgment brought up by a writ of error from the Circuit Court of the United States for the South- ern District of New York, the Rule as to mode of calculating interest prior to the 1st day of the December Term, 1852, was stated to be at the rate of six per cent, per annum from the day when judgment was signed in the Circuit Court to the day of affirmance by the Supreme Court. This case, was decided under the 18th and 20th Original Rules referred to in the History of this Clause, which were still in force. As a result of this decision Original General Rule 63, 13 How v., referred to in the History of this Clause, was promulgated, in efEect amending the previous Original General Rule 20 so as to make it confoi-m to the Act of Congress of 23d August 1842, Ch. 118, Sec. 8, 5 Stat, at Large, 518, cited above, and to take effect on the 1st day of December Term, 1852. Mtehell v. Harmony, 13 How. 115 (149). (December Term, 1851.) 11 162 GENERAL RULES OF THE [Rule 23. 3. The substance of this case is more fully set forth as Authority No. 2, under Clause 3, Rule 33. The original decision of the Supreme Court in it awarding interest was made in the early part of the same term at which Mitcliell V. Harmony, 13 How. 115 (Authority No. 3, under this Clause of Eule 33), was decided, and before the decision in that case, and was con- sequently held to fall within the operation of the same Rules which gov- erned the decision in Mitchell v. Harmony, respecting the calculation of damages upon the affirmance of the decree. Perhins v. Foumiquet, 14 How. 338 (333). (December Term, 1853.) [See same case under Clause 3, Rule 33.] 4. Cases against a collector of customs, where judgments against the col- lector were affirmed by the Supreme Court on writs of error, and the judgment of the Supreme Court, as set forth in the mandate, directed that the judgments of the Circuit Court be affirmed "with interest nntil paid, at the same rate per annum that similar judgments bear in the Courts of the State of New York. " At a subsequent term of the Supreme Court, the United States moved, on behalf of the collector, to correct the judgment and mandate by striking out the directions as to interest, so that the original judgments of the Circuit Court of October 14, 1881, should not carry interest up to the time a new judgment was rendered by the court below on the mandate of the Supreme Court. The suits were brought to recover d amages for excessive fees exacted at the cus- tom-house on entries. The Supreme Court denied the application, stating that the interest allowed was allowed under Eule 38, and § 966 of the Revised Statutes, that such interest for the time the writ of error is pending is really damages for delay, that when the mandate of the Supreme Court goes to the court below, it is necessary that that court, with a view to execution, should enter a further judgment in accordance with the mandate, covering the direction of the Supreme Court as to in- terest and as to costs in the Supreme Court on the writ of error, and that the "final judgment" in the cases, there having been certificates of probable cause under section 989 of the Revised Statutes, are the judg- ments as they stand after their affirmance by the Supreme Court, and after the court below has rendered such judgment as the mandate of the Supreme Court requires. Therefore the interest allowed in these cases was held to be interest before final judgment, and to be of the same character as the interest allowed before judgment in a suit against a col- lector where there is no writ of error. 8eMl V. Codwan, Cochran v. Schell, 107 TJ. S. 635. (October Term, 1883.) [See same case under Clause 3, Rule 33.] 5. Where several cases were dismissed on application of the Government, and the judgments and mandates of the Supreme Court contained no direction as to interest on the judgments below, during the time the writs Rule 23.] UNITED STATES SUPREME COURT. 163 of error were pending, and the defendants in error subsequently applied to the Supreme Court to correct the judgments and mandates so as to award to them interest as such or as damages for delay, the Supreme Court denied the applications, stating that there was no doubt that if the defendants in error in the cases had in season asked for judgment of affirmance, their applications would have been allowed in accordance with the decision in Sehell v. Cochran, 107 U. S. 635 [Authority No. 4 under this Clause of Eule33], but tliat the application was made at a: subsequent term, and after the mandates had been sent down, and no especial right to vary the judgments or mandates having been reserved, the Supreme Court held that they had no power to grant the application. Sehell v. Dodge, Barney v. Ider, Ba/mey v. Oox, Barney v. Priedman, 107 U. S. 629. (October Term, 1883.) [See same case under Clause 3, Rule 33, and Clause 5, Rule 24.] 2. In all cases where a writ of error shall delay the proceedings on the judgment of the inferior conrt, and shall appear to have been sued out merely for delay, damages at a rate not exceeding ten per cent., in addition to interest, shall be awarded upon the amount of the judgment. HISTORY. At the February Term, 1803, Original General Rules 17 and 18 were adopted, 1 Cranch, xviii., 1 Wheat, xvi., 1 Pet. vii., and 1 How. xxvi. They were in these words : "Rule 17. In all cases where a writ of error shall delay the proceed- ings on the judgment of the Circuit Court, and shall appear to have been sued out merely for delay, damages shall be awarded, at the rate of temper centum per annum, on the amount of the judgment." "Rule 18. In such cases, where there exists a real controversy, the damages shall be only at the rate of six per centum per annum. In both cases the interest is to be computed as part of the damages." The foregoing Original General Rule 17 was incorporated in Clause 3 of General Rule 33 in the Revision of December Term, 1858, 21 How. xiii., which was in these words : "In all cases where a writ of error shall delay the proceedings on the judgment of the Circuit Court, and shall appear to have been sued out merely for delay, damages shall be awarded, at the rate of ten per centum per annum on the amount of the judgment; and the said damages shall be calculated from the date of the judgment in the court below until the money is paid." In the Revision of May 1st, 1871, Clause 3 of General Rule 23 was amended so as to read as follows, 11 Wall. x. : 164 GENERAL RULES OF THE ■ [Rule 23. "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 10 per cent. in addition to interest, shall be awarded upon the amount of the judgment." For this Clause in the Revision of 1884, see 108 TJ. S. 586. FEDERAL STATUTES. "Sec. 1010. Where, upon a writ of error, judgment is aflSrmed in the Supreme Court or a circuit court, the court shall adjudge to the respondent in error just damages for his delay, and single or double costs, at its discretion." Revised Statutes (Second Edition), § 1010, p. 189 ; Act of Congress of 34th September, 1789, ch. 30, sec. 33, 1 Stat, at Large, 85 ; Act of Con- gress of 3d March, 1803, ch. 40, sec. 3, 3 Stat, at Large, 344 ; Act of Con- gress of 5tb February, 1867, ch. 38, sec. 3, 14 Stat, at Large, 386. AUTHORITIES. 1. In this case, which came up on a writ of error to the Circuit Court for the District of Georgia, the Chief Jtisticb delivered the opinion of the . Supreme Court that where a judgment, or decree, was affirmed, on a writ of error, there could be no allowance of damages, but for the delay. Cotton V. Wallace, 3 Dall. 303 (304.) (August Term, 1796.) 3. A case where ten per cent, damages were refused, the Supreme Court not considering it a case of delay. M'Niel V. SoTbroolc, 13 Pet. 84 (90). (January Term, 1838.) 3. Judgment affirmed with ten per cent, interest as damages for delay, in a case where the only exceptions taken in the court below were to the refusals of the court to continue the case to the next term, and where the continuance below and the taking out of the writ of error were only for the purpose of delaying the payment of a just debt, and where no counsel appeared for the plaintiff in error. Bwrrow v. EiU, 13 How. 54. (December Term, 1851.) 4. Ten per cent, damages given, the writ of error being obviously sued out for delay, as no question was raised upon the trial of the cause in the court below, nor did the plaintiffs in error, by counsel or otherwise, make one in the Supreme Court. Mlboume v. State Savings Institution of St. Louis, 33 How. 503. (De- cember Term, 1859.) 5. "Where parties sued on a promissory note, having no defence, entered a false plea, which was overruled on demurrer, refused to plead in bar, Rule 23.] UNITED STATES SUPREME COURT. 165 and had judgment against them for want of a plea, ten per cent, damages were given on atfinnance. Sutton V. Bancroft, 33 How. 320. (December Term, 1859.) 6. On application of counsel for defendant in error, no counsel appear- ing for the plaintifis, the Supreme Court awarded ten per cent, damages for delay in a case where the plaintiflEs in error did not except to the ruling of the District Court, did not assign error in the Supreme Court, and where it was obvious from an inspection of the transcript that there was no error in the proceedings. Motions to amend mere formal defects in the pleadings are always addressed to the discretion of the court, and are usually granted as a matter of course, and their allowance is never the subject of error. No other questions could have arisen on the writ of error. Jenkim v. Banning, 33 How. 455. (December Term, 1859.) 7. Judgment affirmed with ten per cent, damages for delay. Prentice v. Pichersgill, 6 Wall. 511. (December Term, 1867.) 8. A case where, there having been no exception to the rulings or instruc- tions of the court, the Supreme Court observed that the case seemed to have been brought simply for delay, and the judgment was affirmed with ten per cent, damages. Chicago City Railway Co. v. Bour, 6 Wall. 513, note. (December Term, 1867.) 9. Ten per cent, damages refused on the ground that the Supreme Court could not say under the circumstances that the writ of error was not prosecuted in good faith, and in the expectation of obtaining a re- versal of the order, the Court saying that if, upon the application for re- moval of the cause from the State court the decisions of the Supreme Court recently made had been announced, there might be ground for argument that the writ of error was sued out merely for delay. But it must be re- membered that at the time of the suing out of the writ of error all of the decisions were seriously controverted. MeKee v. Bains, 10 Wall. 32 (36). (December Term, 1869.) 10. A case where the Supreme Court held the defence to be without merit, and gave ten per cent, damages for delay. Campbell v. Wilcox, 10 Wall. 421. (December Term, 1870.) 11. Judgment affirmed with ten per cent, damages for delay in addition to interest. Insurance Company v. Suchbergera, 13 Wall. 164. (December Term, 1870.) 13. As there was nothing in the record which tended to show error in the judgment, or to repel the conclusion that the writ was prosecuted for 166 GENERAL RULES OF THE [Rule 23. delay, and as there was no bill of exceptions, judgment was aflai'med with ten per cent, damages. Hmnessy v. Sheldon, 12 "Wall. 440. (December Term, 1870.) 13. Judgment affirmed with ten per cent, damages for delay, where the Supreme Court stated that there could have been no good ground for a writ of error under former adjudications of the Court, and that there was no attempt made to question the adjudications. Pmnywit v. Eaton, 15 Wall. 383 (884). (December Term, 1873.) 14. Judgment affirmed with costs, interest and ten per cent, damages for delay, in a case where the plaintifE in eiTor, who was required by the laws of the State where a certain deed was made to put on the revenue stamps, alleged that the revenue stamp affixed thereto was too small, thus delaying the judgment two years and a half. Hall v. Jordan, 19 Wall. 371. (October Term, 1873.) 15. The Supreme Court can adjudge damages under Section 1010 of the Rev. Stats., and Rule 33, in all cases where it appears that a writ of error has been sued out merely for delay. This gives the Court the only power they have to prevent frivolous appeals and writs of error, and they deem it not improper to say that this power will be exercised without hesi- tation where they find that their jurisdiction has been invoked merely to gain time. Amm-y v. Amm-y, 91 U. S. 356. (October Term, 1875.) 16. In a case where there was clearly no error in the record, where the answer did not state the facts sufficiently to constitute a defence to the action, where no counsel appeared to prosecute the suit, and no brief was filed and no errors assigned, the Supreme Court was satisfied that the case was brought for delay, and accordingly affirmed the judgment with costs, and five hundred dollars damages for the delay, in addition to interest at the rate allowed bylaw and the Rules of the Court, stating that while, with the Rule in force, they could not award for damages for de- lay, more than ten per cent, upon the amount of the judgment, they might, in the exercise of their judgment, give less. In this decision the Rules and Statutes referred to in the History of this Clause, and also the cases of Mitchell v. Harmony, 13 How. 115 (149), (Authority No. 8 under Clause 1, Rule 23), and Perkins v. Fourniquet, 14 How. 328 (Authority No. 3 under Clause 3 of Rule 23), were fully considered. The Supreme Court here found some circumstances in the defence mak- ing it proper to give less than ten per cent, damages in excess of interest as compensation for delay. West Wisconsin Railway Go. v. Foley, 94 U. 8. 100. (October Term, 1876.) 17. In a case where there was a motion to affirm only, and where it waa Rule 23.J UNITED STATES SUPREME COURT. 167 not pretended that there appeared on the record some color of right to a dismissal, the Supreme Court denied the motion to affirm, and stated that their experience taught them that the only way to discourage friv- olous appeals and writs of eiTor was by the use of their power to award damages, and that they tliought this a proper case in which to say that hereafter more attention would be given to that subject, and the Rule enforced both according to its letter and spiiit; that parties should not be subjected to the delay of proceedings for review in the Supreme Court without reasonable cause, and that their power to make compensation for the loss occasioned by an unwarranted delay ought not to be overlooked. Whitney v. Oooh, 99 U. S. 607. (October Term, 1878.) [See same case under Clause 5, Rule 8.] 18. ScMl V. Cochran, Cochran v. Schell, 107 U. S. 635. (October Term, 1882.) [For the substance of the decision in these cases, see the same cases under Clause 1, Rule 33.] 19. Where several cases were dismissed on application of the Govern- ment, and the judgments and mandates of the Supreme Court contained no direction as to interest on the judgments below during the time the writs of error were pending, and the defendants in error subsequently ap- plied to the Supreme Court to correct the judgments and mandates so as to award to them interest as such, or as damages for delay, the Supreme Court denied the applications, stating that there was no doubt that if the defendants in error in the cases had in season asked for judgments of affirmance, their applications would have been granted, and interest would have been allowed in accordance with the decision in Schell v. Cochran, 107 U. S. 635 [Authority No. 4 under Clause 1, Rule 33], but that as the application was made at a subsequent term, and after the mandates had been sent down, and no special right to vary the judgments or mandates having been reserved, the Court had no power to grant the application. Schell V. Dodge, Barney v. Isler, Barney v. Cox, Barney v. Friedman, 107 TJ. S. 639. (October Term, 1883.) [See same case under Clause 1, Rule 38, and Clause 5, Rule 24.] 3. The same rule shall be applied to decrees for the payment of money in cases in equity, unless otherwise ordered by this court. HISTORY. This Clause appears for the first time as the second Clause of Original General Rule 63, promulgated at December Term, 1851, 13 How. v. ; the only difference being that the word "chancery" was used in the second Clause of said Original General Rule 63, in place of the word 168 GENERAL RULES OF THE [Rule 23. " equity " used above. Prior to the adoption of said Original General Rule 63, the Rules relating to damages for delay and the rate of interest in case of a real controversy were found in Original General Rules 17 and 18, promulgated at February Term, 1803, 1 Cranch, xviii ; 1 Wheat, xvi ; 1 Pet. vii., and 1 How. xxvi., and in Original General Rule 20 adopted at February Term, 1807, as given in 1 How. xxvii. For the substance of these Rules, and for the particulars with reference thereto, and for Clause 1 of Original General Rule 63, see the Histoi-y of the two preceding Clauses of this Rule, especially Clause 1. The second Clause of Original General Rule 63 above cited, appears totidem verbis as Clause 3 of General Rule 33 of the Revision of December Term, 1858, 31 How. xiii., and as Clause 3 of General Rule 33 of the Re- vision of May 1st, 1871 . For this Clause in the Revision of 1884, see 108 U. S. 586. FEDERAL STATUTES, § 966 Revised Statutes (Second Edition), 183, quoted under Clause 1, Rule 33. § 1010 Revised Statutes (Second Edition), 189, quoted under Clause 3, Rule 33. AUTHORITIES. 1. In this case, which was an appeal from the Circuit Court for the district of West Tennessee, the Supreme Court states that by the judiciary Act of 1789, Chapter 30, Section 33, they are authorized in cases of affirm- ance of any judgment or decree, to award to the respondent just dam- ages for his delay, and that by the Rules of the Supreme Court, made in the February Term, 1803, and the February Term, 1807, in cases where the suit is for the mere delay, damages are to be awarded at the rate of ten per centum per annum, on the amount of the judgment, to the time of the affirmance thereof. And in cases where there is a real controversy, the damages are to be at the rate of six per cent, per annum only. And in both cases the interest is to be computed as part of the damages. It is, therefore, solely for the decision of the Supreme Court, whether any dam- ages, or interest (as a part thereof), are to be allowed or not in cases of affirmance. If upon the affirmance no allowance of interest or damages is made, it is equivalent to a denial of any interest or damages ; and the Circuit Court, in cai-rying into effect the decree of affirmance, cannot en- large the amount thereby decreed ; but is limited to the mere execution of the decree in the terms in which it is expressed. This appeal was from a decree rendered upon a mandate directing the court below to execute a former decree of the Supreme Court. The decree appealed from de- creed a sum equivalent to interest upon the original sum decreed in the Circuit Court from tlie time of the rendition of the judgment to the af- Rule 23.] UNITED STATES SUPREME COURT. 169 flrmance by the Supreme Court at the January Term, 1830. lu the de- cree of affirmance by the Supreme Court nothing was said as to any allowance for damages^ or interest. The decree of the Circuit Court, upon the mandate of the Supreme Court, was therefore reversed on the ground that interest or damages could not be given by the Circuit Court in the execution of the mandate, where the same had not been decre^ by the Supreme Court upon the original appeal. Boyce'a Uxecutors v. Qrundy, 9 Pet. 375 (289). (January Term, 1835.) 3. On appeal from the Circuit Court of the United States for the Southern District of Mississippi, it appeared that the Circuit Court passed the decree in favor of the appellees against the appellant, directing him to pay a certain sum within thirty days thereafter, with legal interest from the date of the decree ; that the Supreme Court affirmed this decree at a prior term, with costs and damages at the rate of six per cent, per annum, and a mandate was issued to the Circuit Court, reciting the judg- ment of the Supreme Court, and directing it to be carried into execution. After the mandate was filed, the appellees obtained an execution by wliich the marshal was commanded to levy the amount of the original judgment in the Circuit Court, with the Mississippi interest of eight per cent. and damages at the rate of six per cent, in addition, making together fdurteen per cent, from the date of the original judgment until paid. Held, that upon the affirmance of the original decree of the Circuit Court, the appellees were entitled to damages at the rate of six per cent., to be calculated from the date of the decree below to the date of the affirmance, and to no further interest or damages, and also held that under the 28d Section of the Judiciary Act of 1789, no dis- tinction is made between cases in equity and at law, and that in either of them the damages to be allowed, in addition to the amount found to be due by the judgment or decree of the court below, is confided to the judi- cial discretion of the Supreme Court, that the 17th, 18th and 20th Original General Rules were adopted in pursuance of this power, and that the Act of Congress of 33d August, 1843, ch. 187, sec. 8, 5 Stat, at Large 513 (518) (See Fbdebal Statutes under Clause 1, Rule 33), did not apply to judgments or decrees in the Supreme Court. The Statutes and Rules on this subject are fully discussed in this case. Perkins v. Foumiquet, 14 How. 338 (331 and 333). (December Term, 1853.) [See same case under Clause 1, Rule 33.] 3. West Wisconsin Railway Co. v. Foley, 94 U. S. 100. [For substance of this case, see same under Clause 3, Rule 33.] 4. Where upon an appeal from the Circuit Court of the United States for the Northern District of Illinois in a patent suit, the Supreme Court affirmed the decree "with costs and interest until paid, at the same rate per annum that similar decrees bear in the Courts of the State of Illinois,'' ITO GENERAL RULES OF THE [Rule 23. and where the Circuit Court, "when the mandate went down, ordered that the decree affirmed be executed by the collection of the money found to be due, and interest, which under the established rule in the State, was six per cent., the Supreme Court on a subsequent appeal TieU that the order of the Circuit Court was right, and that by the word " similar'' the Sup|»3me Court meant decrees for the payment of money, and not decrees in patent suits, as the State Courts had no jurisdiction thereof. Bailroad Co. v. TurriU, 101 U. S. 836. (October Term, 1879.) Note.— See Authorities under the other Clauses of Rule 23. 4. In cases in admiralty, interest shall not be allowed, unless specially directed by the court. HISTORY. This Clause is entirely new. 108 U. S. 586. AUTHORITIES. PRIOR TO THE ADOPTION OF THIS CLAUSE. 1. An admiralty case where damages for delay were asked for, but the Supreme Court refused them, stating that the decree must be affirmed without an increase of damages, and the interest to the present day must run on the debt only, and not on the damages. Jmmngs\. "The Brig Perseverance,''^ 3 Dallas, 336 (338). (February Term, 1797.) 2. An admiralty cause where the Supreme Court in reversing a former sentence of the Circuit Court decreed that the "Sarah" and her cargo ought to be restored to the original owners, subject to those charges of freight, insurance and other expenses which would have been incurred by the owners in bringing the cargo into the United States ; which equitable deductions the defendants were at liberty to show in the Circuit Court. The Supreme Court was of opinion, that the sentence of the Circuit Court of South Carolina ought to be reversed, and the cause was re- manded to that court in order that a final decree might be made therein conformably to their opinion. After a reference, auditors reported that the claimant was entitled to certain sums, which sums being de- ducted from the decree, the claimant must pay the appellant two years' interest on the residue, at the rate of seven per cent, per annum, and the Supreme Court having to determine whether its former decree had been executed according to its true intent and meaning, 7ield, as to the Rule 23.] UNITED STATES SUPREME COURT. 171 question of interest, that they were of opinion that the appellants ought not to be charged with interest, that on their former decree they did not award interest, nor would interest have been decreed in this case had the particular fact of the sale been brought before them. The allowance of interest was overruled. Himely v. Sose, 5 Cranch, 313. (February Term, 1809.) 3. Interest not decreed to captors in a prize case where the stipulation for the appraised value of the goods bore no reference to interest, the Su- preme Court also stating that it was true that interest might be decreed against Mr. Burke personally, not as the stipulator, but as the claimant in the cause ; but then it would be by way of damages for the detention or delay, that in this view it was a matter open for discussion upon the original appeal ; and no interest having been then asked for or granted, the claim is finally at rest. Interest allowed libellant at the rate of six per cent, per annum from the time of the allowance of the present appeal until the final execution of the decree. "■The Santa Maria,'' 10 "Wheat. 431. (February Term, 1835.) 4. The Supreme Court states that cases in admiralty are not embraced within the then 62d Rule, 13 How. v. (see History under Clause 1, Rule 23), and that it applied to cases of law and equity only. Therefore where a decree was afiirmed in the Supreme Court by an equal division of the Justices of the Court, and the decree of affirmance did not give interest on the amount decreed by the court below, and the appellee now moved the Supreme Court to amend the decree and mandate so as to give interest on the amount awarded by the Circuit Court, the motion was over- ruled. Hemmenway v. Fisher, 30 How. 255. (December Term, 1857.) 5. Penalties are imposed where writs of error are sued out merely for delay in cases of judgments at law for damages, and the Supreme Court declares that if the Rule were applicable to the case before it — a prize case — where the conduct of counsel in advising an appeal was disapproved — it would apply the Rule. " The Douro," 3 Wall. 564. (December Term, 1865.) 6. An admiralty case where the Supreme Court states that as appeals of the kind therein taken are usually taken for delay, it may become nec- essary to amend the Second Article of the 23d Rule so that ten per cent, damages shall be allowed in addition to the interest provided for in the first article of that Rule. " The JEutaw," 12 Wall. 136 (142). (December Term, 1870.) Note. — See the Authorities under the other Clauses of Rule 33. 172 GENERAL RULES OF THE [Rule 24. Rule 24:. COSTS. 1. In all cases where any suit shall be dismissed in this court, ex- cept where the dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties. HISTORY. With the exception of some immaterial verbal alterations, this Clause is the same as Original General Rule 45, promulgated at January Term, 1838, 13 Pet. vii., given also as the first Clause of an Original General Rule num- bered 45 in 1 How. xxxvi., and as Clause 1 of General Rule 24 in the Revision of December Term, 1858, 31 How. xiii., and of May Ist, 1871. For this Clause in the Revision of 1884, see 108 U. 8. 587. FEDERAL STATUTES. BELATING TO THE AMOUNT OF FEES OK COSTS OF ATTORNBTS AND THE MANNER OP THEIR TAXATION. "Sec. 823. The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several States and Territories, except in cases other- wise expressly provided by law. But nothing herein shall be con- strued to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than the Government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective States, or may be agreed upon between the parties." Revised Statutes (Second Edition), § 823, p. 154; Act of Congress of 26th February, 1853, ch. 80, sec. 1, 10 Stat, at Large, 161; Act of Con- gress of 3d March, 1855, ch. 155, sec. 13, 10 Stat, at Large, pp. 670, 671; Act of Congress of 22d February, 1875, ch. 95, 18 Stat, at Large, 333. Sec. 824. Revised Statutes (Second Edition), p. 154, relates to the amount of fees of attorneys, solicitors and proctors. "Sec. 983. Tlie bill of fees of the clerk, marshal and attorney, and the amount paid printers and witnesses, and lawful fees for exem- plifications and copies of papers necessarily obtained for use on trials in cases where bylaw costs are recoverable in favor of the pre- Rule 24.] UNITED STATES SUPEEME COURT. 173 vailing party, shall be taxed by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause." Eevised Statutes (Second Edition), § 983, p. 184; Act of Congress of 26th February, 1853, ch. 80, sec. 3, 10 Stat, at Large, 168. " Sec. 984. Before any bill of costs shall be taxed by any judge or other officer, or allowed by any officer of the Treasury, in favor of clerks, ■ marshals, commissioners, or district attorneys, the party claiming such bill shall prove by his own oath, or that of some other person having a knowledge of the facts, to be attached to such bill, and filed therewith, that the sei-vices charged therein have been actually and necessarily performed, as therein stated." Revised Statutes (Second Edition), § 984, p. 184; Act of Congress of 36th February, 1853, ch. 80, sec. 3, 10 Stat, at Large, 169; Act of Congress of 33d June, 1874, ch. 469, sec. 7, 18 Stat, at Large, 356. AUTHORITIES. PEEVIOUS TO THE ADOPTION OF ORIGINAL GBNBBAL RULE 45 IN 1838. 1. Mk. Chief Justice Marshall stated the practice of the Supreme Court to be that where there was no appearance for the plaintiff in error, the defendant might either have the plaintiff called, and dismiss the writ of error, or might open the record and pray for an affirmance, and the Chief Justice also stated, in answer to a question from the clerk, that in such cases costs go of course. Montalet v. Murray, 3 Cranch, 349. (February Term, 1806.) 3, A case where the writ of error having been dismissed by the Supreme Court for want of jurisdiction of the Circuit Court, counsel for the defend- ants in error prayed that the dismissal might be with costs, the original defendants being also defendants in error. The clerk stated that the prac- tice had theretofore been to dismiss without costs, when the dismission was for want of jurisdiction ; but the Supreme Court directed the writ of error to be dismissed witJi costs. Winchester v. Jackson, 8 Cranch, 515. (February Term, 1806.) 3. A case where judgment was reversed for want of jurisdiction of the Circuit Court and with costs under the authority of Winchester v. Jackson, 3 Cranch, 515 (Authority No. 3 under this Clause of Rule 34), but the Supreme Court subsequently gave this general direction, among others, to the clerk, viz. : that when a judgment is reversed, for want of jurisdic- tion (viz. : of the Circuit Court), it must be without costs. Montalet v. Murray, 4 Cranch, 47. (February Term, 1807.) [See same case under Clauses 2 and 3, Rule 34.] 174 GENERAL RULES OP THE [Rule 24. 4. A case in which Mr. Chief Justice Marshall stated that the Su- preme Court did not give costs where a cause was dismissed for want of jurisdiction; and accordingly the writ of error was dismissed without costs. In a note to this case, reference is made to Winchester v. Jackson, 3 Cranch, 515 (Authority No. 3 under this Clause of Kule 34), as holding that costs will be allowed upon a dismission of a writ of error, for want of jurisdiction, if the original defendant be also defendant in error. iTiglee Y..Odolidge, 3 Wheat. 363 (368). (February Term, 1817.) 5. A case wherein Mr. Chief Justice Marshall said that in all cases where the cause is dismissed for want of jurisdiction, no costs are allowed, and the motion for costs was denied. jriver V. Wattles, 9 Wheat. 650. (February Term, 1824.) SUBSEQUENT TO THE ADOPTION OF ORIGINAL GENERAL KULE 45 IN 1838. 6. A case where costs were allowed to the defendant in error, the cause being dismissed for want of service of a citation. Brown v. Union Banh of Florida, 4 How. 465. (January Term, 1846.) 7. The Supreme Court cannot give judgment for costs where the case is dismissed for want of jurisdiction. Strader v. Graham, 18 How. 602. (December Term, 1855.) 8. A case which was remanded to the court below with leave to plain- tiffs to amend their bill generally, and with directions that if they should fail to do this it should be dismissed without prejudice. One of the co- defendants was decreed costs in the Supreme Court. Gaylords v. Kelshaw, 1 Wall. 81 (83). (December Term, 1863.) 9. A case in which the Supreme Court said that costs were improperly allowed in the court below, as the case was dismissed for want of juris- diction on the face of the pleadings, and in such cases the general rule is that costs will not be allowed in the Supreme Court. Sometimes an ex- ception to that rule is admitted, as where the defendant in the court be- low is the defendant in the Supreme Court. The decree was reversed as the Circuit Court had no jurisdiction, and consequently the Supreme Court had none, and the cause was remanded with directions to dismiss the bill of complaint but without costs. Horntliall v. The Collector, 9 Wall. 560 (567). (December Term, 1869.) 10. In a case where an appeal was taken to the Supreme Court from a decree entered in the Circuit Court, in exact accordance with the man- date of the Supreme Court upon a previous appeal, the appeal was dis- missed with costs. Stewart Y. Salamon, 97 TJ. S. 361. (October Term, 1878.) [See same case under Clause 5, Rule 34.] Rule 24.] UNITED STATES SUPREME COURT. 1Y5 11. This was a case which was dismissed by the court below for want of jurisdiction. The Supreme Court reversed the judgment of the court below, and gave costs against the plaintiSs in eiTor, who had wrongfully caused the removal of the cause from the State Court. In the course of their opinion the Supreme Court discuss at length the question of costs and use the following language : " By sec. 5 of the act of March 3d, 1875, the Circuit Court is directed, in remanding a cause, to ' make such order as to costs as shall be just;' and the bond given by the removing party under sec. 3 is a bond to pay ' all costs that may be awarded by the said Circuit Court, if said court shall hold that such suit was wrongfully or improperly removed thereto.' These provisions were manifestly designed to avoid the application of the general rule, which, in cases where the suit failed for want of jurisdic- tion, denied the authority of the court to award judgment against the losing party, even for costs. As to costs in this Court, the question is not covered by any statutory provision, and must be settled on other grounds. Ordinarily, by the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs, the exception being that where there is no jurisdiction in the Court to determine the litigation, the cause must be dismissed for that reason, and, as the Court can render no judgment for or against either party, it cannot render a judgment even for costs. Nevertheless there is a judgment or final order in the cause dismissing it for want of jurisdiction. Accordingly, in WincTiester V. Jackson, 3 Cranch, 514 (Authority No. 2 under this Clause of Rule 24), costs were allowed where a writ of error was dismissed for want of juris- diction, the parties not appearing upon the record to be citizens of different States, the plaintiff in error being plaintifi below. But in ]-e- speot to that case, it is to be observed, that the want of jurisdiction dis- closed by the record was that of the Circuit Court, and that there was jurisdiction in this Court to consider and determine the question of the jurisdiction of the Circuit Court, and to reverse its judgment, had it been the other way, for want of jurisdiction. And the judgment for costs in that case is justified on that ground, and seems to have been rendered against the plaintiff in error, because he was the losing party in the sense of having ineffectually invoked the jurisdiction of the Circuit Court. And this is just what has taken place in the present suit. Here the plain- tiffs in error wrongfully removed the cause to the Circuit Court. They seek by a writ of error to this Court to reverse upon the merits the judg- ment rendered against them, and bring here the whole record. That dis- closes the want of jurisdiction in the Circuit Court to render any judg- ment, and this Court, in the exercise of its jurisdiction, reverses the jndgment for that reason alone, its jurisdiction extending no further. It could not dismiss the writ of error for want of jurisdiction in the Circuit Court, for that would be to give eSect to sucli want of jurisdic- tion; and this Court has jurisdiction of the writ of error to reverse the 176 GENERAL RULES OF THE [Rule 24. judgment on that ground." The case oi MontaletY. Murray, 4 Cranch, 46 (Authority No. 3 under this Clause of Rule 34), is also considered and discussed. Mansfield, Ooldwater & L. M. B. Co. v. Swan, 111 U. S. 379 (386), (April 21st, 1884). 2. In all cases of afarmance of any judgment or decree in this court, costs stall be allowed to the defendant in error or appellee, un- less otherwise ordered by the court. HISTORY. With the exception of some immaterial verbal alterations, this Clause is the same as Original General Rule 46, promulgated at January Term, 1838, 12 Pet. vii., given also as the second Clause of Original General Rule numbered 45, in IHow. xxxvi., and as Clause 3 of General Rule 34 in the Revisions of December Term, 1858, 31 How. xiv., and of May 1st, 1871. For this Clause in the Revision of 1884, see 108 U. S. -587. FEDERAL STATUTES. See the Federal Statutes quoted under Clause 1, Rule 24. AUTHORITIES. PKIOK TO THE ADOPTION OF ORIQINAL GENERAL KULB 46 IN 1838. 1. In a case where the Supreme Court in general terms reversed a judg- ment of the Higli Court of Appeals of Maryland, and affirmed the judg- ment of the General Court, the question arose what costs should be allowed, and the Supreme Court decided that the judgment of the Su- perior Court of Maryland being reversed, it became a mere nullity, and costs must follow the right as decided in the Supreme Court. It accord- ingly ordered the judgment of the General Court to be affirmed, and the costs in the Courts of Maryland and in the Supreme Court to be allowed to the plaintiff in error. Olerhe v. Hamood, 3 Dallas, 343. (February Term, 1797.) [See same case under Clause 5, Rule 34. 2. A case where the Supreme Court gave this general direction, among others, to the Clerk, viz. : that in all cases of affirmance costs go of course. Montalet v. Murray, 4 Cranch, 47. (February Term, 1807.) [See same case under Clauses 1 and 3, Rule 34.] 3. A case where a decree was affirmed with costs. Campbell v. Gordon, 6 Cranch, 176 (183). (February Term, 1810.) Rule 24.] UNITED STATES SUPREME COURT. 177 4. A case where judgment was affirmed with costa. Walton V. United States, 9 Wheat. 651 (658). (February Term, 1834.) 3. In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, unless otherwise ordered by the court. The cost of the transcript of the record from the court below shall be a part of such costs, and be tax- able in that court as costs in the case. HISTORY. The first sentence of this Clause has its origin in Original General Rule 23, promulgated at February Term, 1810, 1 Wheat, xviii., 1 Pet. viii. It was in these words: " Ordered, That upon the reversal of a judgment or decree of the cir- cuit court, the party in whose favour the reversal is, shall recover his costs in the circuit court." This Original General Rule 33 was subsequently embodied in Rule 47 promulgated at January Term, 1838, 13 Pet. vii., which Rule was in these ■words, viz.: " In all cases of reversals of any judgment or decree in this Court, except where the reversal shall be for want of jurisdiction, costs shall be allowed in this Court for the plaintifE in error, or ap- pellant, as the case may be, unless otherwise ordered by the Court." This Original General Rule 47 appeared totidem verrMs as the third clause of Original General Rule 45 in 1 How. xxxvii. In the Revision of December Term, 1858, 31 How. xiv., this Original General Rule 47 appeared as Clause 3 of General Rule 34, the only differ- ence between the two being that in the Revision the words, "except where the reversal shall be for want of jurisdiction," appearing in Original General Rule 47, were omitted. By an amendment promulgated April 18th, 1864, 1 Wall, v., the third clause of General Rule 34 of the Revision of December Term, 1858, was amended so that its first sentence read as the first sentence of Clause 3 of the present General Rule 34, except that the words "as the case may be " occurred after the word " appellant." The second sentence of Clause 8 of the present General Rule 34 first appeared in any form as the second sentence of the amendment to General Rule 34, promulgated April 18th, 1864, 1 Walh v., which was in these words: " The coats of the transcript of the record from the court below shall be a part of such costs." 13 178 GENERAL RULES OF THE [Rule 24. In the Revision of. May 1st, 1871, the second sentence of Clauses of General Rule 34 is precisely the same as the second sentence of Clause 3 of the present General Rule 34. For this Clause in the Revision of 1884 see 108 U. S. 587. FEDERAIi STATUTES. See the Federal Statutes quoted under Clause 1, Rule 34, and also the following : "There shall be taxed against the losing party in each and every cause pending in the Supreme Court of the United States or in the Court of Claims of the United States, the cost of printing the record in such case, vyhich shall be collected, except when the judg- ment is against the United States, by the clerks of said courts re- spectively, and paid into the Treasury of the United States ; but this shall only apply to records printed after the first of October next." Act of Congress of 3 March, 1877, ch. 105, sec. 1, 19 Stat, at Large, 344. AUTHORITIES. PEIOB TO THE ADOPTION OP ORIGINAL GENERAL RULE 22, IN 1810. 1. In an Admiralty case the Supreme Court on reversal directed that against the plaintiff in error the costs of the Circuit Court be recovered, one half against one plaintiff and the other half against the other plain- tiffs in error, but that in the Supreme Court the parties pay their own costs. Penhallow v. Boane^s Administrators, 3 Dallas, 54 (120). (February Term, 1795.) 3. A case where judgment was reversed for want of jurisdiction, and with costs, under authority of Winchester v. Jaehsmi, 3 Cranch, 515 (Authority No. 3 under Clause 1, Rule 34), but the Supreme Court sub- sequently gave this general direction, among others, to the Clerk, viz: "That in cases of reversal, costs do not go of course, but in all cases of affirmance they do." Montalet-^. Murray, 4 Cranch, 47. (February Terra, 1807.) [See same case under Clauses 1 and 3, Rule 24.] 3. A case where, on the judgment being reversed, theCuiEP Justice, in answer to a question by counsel, stated that if the plaintiff in error should obtain a judgment in the court below, it would, of course, be with costs; and that in all cases of reversal, if the Supreme Court direct the court be- low to enter judgment for the plaintiff in error, tlie court below will of course enter the judgment with the costs of that court. Note : The first Original General Rule 33 on this subject was promul- Rule 24.] UNITED STATES SUPREME COURT. 179 gated at February Term, 1810, 1 Wheat, xviii., see History supra, and the Rule appears to have been promulgated at about the time of this decision. M''Knight v. Oraig's Administrator, 6 Cranch, 183 (187). (February Term, 1810.) 4. A prize case where, although the decree was reversed, the Supreme Court states that it is one of those cases in which, by the course of ad- miralty, they will be obliged to throw the costs and expenses upon the claimant, although they decree restitution; and that it is the claimants' misfortune, not that of the captors, that an agent had furnished the vessel with defective documents which accompanied her. " The Venus," 5 Wheat. 127 (131). (February Term, 1820.) AUTHORITIBS AFTER THE ADOPTION Or ORIGINAL GENERAL RULE 22 IN 1810. 5. A case in which the Supreme Court say that in respect to costs, upon cases brought to the Supreme Court, the Rule is, as may be seen in the 47th Rule of the Court prefixed to 8 Peters' Reports (this is obviously an error, as the Rule is not prefixed to 8 Peters, but to 12th Peters xii.), that in all cases of reversals of any judgment or decree in the Supreme Court, except where the reversal shall be for want of jurisdiction, costs shall be allowed in the Supreme Court for the plaintiff in error or appel- lant, as the case may be, unless otherwise ordered by the Court, and that the question as to costs in the Circuit Court in this case was not before the Supreme Court. Judgment in the court below was reversed. BradstreetY. Potter, 16 Pet. 317 (818). (January Term, 1842.) 6. A case where the appellant was decreed costs in the Supreme Court by the established Rule and practice of the Court as against the appellee on a reversal. BaldwinY. Ely, 9 How. 580 (602). (January Term, 1850.) 7. A case where judgment was reversed, but without costs to either party in the Supreme Court, as the circumstances, as stated in the opinion at length, were special and particular. Eldred v. Bank, 17 Wall. 545. (October Term, 1878.) 4. Neither of the foregoing sections shall apply to oases where the United States are a party ; bnt in such cases no costs shall be allowed in this court for or against the United States. HISTORY. With the exception of the substitution of the word "sections" for "rules" this Clause is precisely the same as Original General Rule 48, promulgated at January Term, 1888, 12 Pet. vii., and given as the fourth Clause of Original General Rule 45, in 1 How. xxxvi., and as Clause 4 of 180 GENERAL EULES OF THE [Rule 24. General Eule 24 of the Revisions of December Term, 1858, 31 How. xiv., and of May 1st, 1871. The "rules " referred to in Original General Rule 48 are Original General Rules 45, 46 and 47, 13 Pet. vii. For this Clause in the Revision of 1884, see 108 U. S. 587. FEDERAL STATUTES. See the Federal Statutes quoted under Clause 1, Rule 34, and also the following sections of the Revised Statutes relating to costs against the United States, viz., §§ 969, 976 and 981, on pp. 183 and 184 of the Revised Statutes (Second Edition). AUTHORITIES. PRIOR TO THE ADOPTION OF ORIGINAL GENERAL RULE 48 IN 1838. 1. An admiralty case where the Supreme Court affirmed the judgment of the Circuit Court against the United States with costs, but on the open- ing of the Court the next day, the Chief Justice directed the words ' ' with costs " to be struck out of the entry, as there appeared to have been some cause for the prosecution. He observed, however, that in doing this, the Court did not mean to be understood, as, at all, deciding the question, whether, in any case, they could award costs against the United States; but left it entirely open for future discussion. The United States v.'' La Vengeance," 8 Dallas, 397 (301). (August Term, 1796.) 2. In a suit in equity brought by the United States, the court below dismissed the bill, as against certain defendants, with costs to them. The decree of the Circuit Court was affirmed. After the opinion was given it was stated that the court below had decreed the United States to pay costs, and it was suggested that that circumstance might have escaped the notice of the Supreme Court, in affirming the decree generally. The attorney for the United States contended tliat costs were only given by statute, that the United States are not bound by a statute unless they are expressly named in it, and that there are no means of compelling the United States to pay them. Chief Justice Marshall stated that that would make no difierence, because the Court were to presume the United States would pay the costs if bound by law to do so. Subsequently the Court directed the decree of the court below to be affirmed, except as to costs, and reversed so much of the decree as awarded the United States to pay costs, and directed that no costs be allowed to either party in the Supreme Court. United States v. Sooe, 8 Cranch, 73 (93). (February Term, 1805.) 3. A case where the defendant in error moved for costs where the writ of error'was dismissed. The writ was dismissed without costs, the Supreme Court stating that the United States never pay costs. TTie United States v. BarTcer, 3 Wheat. 395. (February Term, 1817.) Rule 24.J UNITED STATES SUPREME COURT. 181 4. It is a general rule tliat no court can make a direct judgment or decree against the United States, for costs and expenses, in a suit to which the United States is a party, either on behalf of any suitor, or any officer of the Government ; the law expressly provides a different mode. " The Antelope," 12 "Wheat. 546 (550). (January Term, 1827.) 5. It is undoubtedly a general rule, that no court can give a direct judgment against the United States for costs, in a suit to which they are a party, either on behalf of any suitor, or any officer of the Government; but it by no means follows, from this, that they are not liable for their own costs. No direct suit can be maintained against the United States. But when an action is brought by the United States to recover money in the hands of a party, who has a legal claim against them, it would be a very rigid principle, to deny him the right of setting up such claim in a court of justice, and turn him round to an application to Congress. United States v. BinggoU, 8 Pet. 150 (163). (January Term, 1834.) SUBSEQUENT TO THE ADOPTION OF ORIGINAL GENERAL RULE 48 IN 1838. 6. Cases wherein it is declared that in the court below the United States, being a party to an action, are not liable for costs. United States v. McLemore, 4 How. 286. (January Term, 1846.) United States v. Boyd, 5 How. 29. (January'Term, 1847.) 5. In all cases of the dismissal of any suit in tliis conrt, it shall be the duty of the clerk to issue a mandate, or other proper process, in the nature of a procedendo, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may ap' pertain. HISTORY. "With the exception of some immaterial verbal alterations this Clause is in the same language as Original General Rule 49, promulgated at Janu- ary Term, 1838, 12 Pet. vii., given also as the fifth Clause of Original General Rule 45 in 1 How. xxxvii., and as Clause 5 of General Rule 24 in the Revisions of December Term, 1858, 21 How. xiv., and of May 1st, 1871. For this Clause in the Revision of 1884, see 108 U. S. 587. FEDERAL STATUTES. "Sec. 701. The Supreme Court may affii-m, modify, or reverse any judgment, decree, or order of a circuit court, or district court act- ing as a circuit court, or of a district court in prize causes, lawfully brought before it for review, or may direct such judgment, decree. 182 GENERAL RULES OF THE [Rule 24. or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may require. The Supreme Court shall not issue execution in a cause removed before it from such courts, but shall send a special mandate to the inferior court to award execution thereupon." Eevised Statutes (Second Edition), § 701, p. 131 ; Act of Congress of 34th September, 1789, ch. 20, sec. 24, 1 Stat, at Large, 85 ;' Act of Congress of 3d March, 1803, ch. 40, sec. 2, 3 Stat, at Large, 344; Act of Congress of 30th June, 1864, ch. 174, sec. 13, 13 Stat, at Large, 310; Act of Con- gress of 1st June, 1873, ch. 355, sec. 3, 17 Stat, at Large, 196. " Sec. 703. In all cases when the judgment or decree of any court of a Territory might be reviewed by the Supreme Court on writ of error or appeal, such writ of error or appeal may be taken, within the time and in the manner provided by law, notwithstanding such Territory has, after such judgment or decree, been admitted as a State; and the Supreme Court shall direct the mandate to such court as the nature of the writ of error or appeal requires." Revised Statutes (Second Edition), § 703, p. 133; Act of Congress of 13th June, 1858, ch. 154, sec. 18, 11 Stat, at Large, 338; Act of Congress of 7th April, 1874, ch. 80, sec. 2, 18 Stat, at Large, 27. " Sec. 704. The judgments or decrees of any district court, incases transfeiTed to it from the superior court of any Territory, upon the admission of such Territory as a State, under sections five hundred and sixty-seven and five hundred and sixty-eight, may be reviewed and reversed or affirmed upon writs of error sued out of, or ap- peals taken to, the Supreme Court, in the same manner as if such judgments or decrees had been rendered in said superior court of such Territory. And the mandates and all writs necessary to the exercise of the appellate jurisdiction of the Supreme Court in such cases shall be directed to such district court, which shall cause the same to be duly executed and obeyed." Revised Statutes (Second Edition), § 704, p. 183; Act of Congress of 22d February, 1847, ch. 17, sec. 1, 9 Stat, at Large, 128; Act of Congress of 33d February, 1848, ch. 13, sec. 2, 9 Stat, at Large, 212. " Sec. 705. The final judgment or decree of the Supreme Court of the District of Columbia, in any case where the matter in dispute, exclusive of costs, exceeds the value of one thousand dollars, may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same man- ner and under the same regulations as are provided in cases of writs of error on judgments, or appeals from decrees rendered in a circuit court." Revised Statutes (Second Edition), § 705, p.' 133; Act of Congress of 27th February, 1801, ch. 15, sec. 8, 2 Stat, at Large, 106; Act of Congress of 3d March, 1863, ch. 91, sec. 11, 12 Stat, at Large, 764. Rule 24.] UNITED STATES SUPREME COURT. 183 "Sec. 1040. Whenever a judgment of death ia rendered in any court of the United States, and the case is carried to the Supreme Court in pursuance of law, tlie court rendering such judgment shall, by its order, postpone the execution thereof from time to time and from term to term, until the mandate of the Supreme Court in the case is received and entered upon the records of such lower court. In case of aiflrmance by the Supreme Court, the court rendering the original judgment shall appoint a day for the exe- cution thereof; and in case of reversal, such further proceedings shall be had in the lower court as the Supreme Court may direct." Revised Statutes (Second Edition), § 1040, p. 192; Act of Congress of 3d March, 1869, ch. 143, 15 Stat, at Large, 338. AUTHORITIES. MORE ESPECIALLY KBLATING TO THE RULE. 1. A case where an appeal being dismissed, the Clerk was directed to certify the decision to the District Court. The Supreme Court also lield that no appeal would lie from a decree of the court below, entered according to the mandate. United States v. Fremont, 18 How. 30. (December Term, 1855.) RELATING TO MANDATES GBNBRALLT, AND TO PROCEEDINGS THEREUNDER AND THEREAFTER. Note. — It is a matter of practice in the Supreme Court, though not the subject of any written Rule, that a mandate in any case is never sent to the Court below during the term at which the judgment of the Su- preme Court is rendered, unless on motion and a special order entered thereon. But it is usual for the Court, when it takes its February recess, to order mandates to be sent in all cases decided before January Ist pre- ceding, where counsel shall so request. When the Court adjourns at the end of the term, it orders mandates to be sent in all decided cases, where counsel shall so request. But a mandate is never sent where a petition for a rehearing has been filed, till it is disposed of. 3. A case where, the Supreme Court having, in general terms, reversed the judgment of the High Court of Appeals of Maryland, and affirmed the judgment of the General Court, the question arose, among others, to which of the State Courts the mandate should be sent. The mandate for execution was issued to the General Court. Glerhe v. Harwooii, 3 Dallas, 342. (February Term, 1797.) [See same case under Clause 3, Rule 34.] 3. A case where it was held that upon an appeal from a mandate, nothing is before the Supreme Court but the proceedings subsequent to the mandate. Hi-mOy v. Base, 5 Cranch, 313 (314, 316). (February Term, 1809.) 184 GENERAL RULES OF THE [Rule 21. 4. In a case where a final decree was pronounced in the court below, which was reversed by the Supreme Court, and a mandate issued by the Supreme Court to the court below, and where the court below, upon the mandate, certified these facts, and also that after the cause was sent back it was discovered to be a cause not within the jurisdiction of the court, but that a question arose whether it could now be dismissed for want of jurisdiction after the Supreme Court had acted thereon, the Supreme Court directedjhe following opinion to be certified by the court below, viz.: "It appearing that the merits of this cause had been finally de- cided in this Court, and that its mandate required only the execution of its decree, it is the opinion of this Court, that the Circuit Court is bound to carry that decree into execution, although the jurisdiction of that Court be not alleged in the pleadings." SJcillem's Mceoutors v. JKoy's Executors, 6 Cranch, 367. (February Term, 1810.) [See same case under Rule 30.] 5. A case where the Supreme Court denied a motion for a rehearing on the ground that it was too late to grant a rehearing in a case that had been remitted to the Court below to carry into efiect the decree of the Supreme Court according to its mandate, and held that a subsequent appeal from the Circuit Court for supposed error in carrying into effect such mandate, brought up only the proceedings subsequent to the man- date and did not authorize an inquiry into the merits of the original de- cree. Browder v. M^Arthzcr, 7 Wheat. 58. (February Term, 1832.) [See same case under Rule 30.] 6. Upon an appeal from a mandate to carry into effect the former de- cree of the Supreme Court, nothing is before the Court but the proceed- ings subsequent to the mandate (citing Simelp v. Sose, 5 Cranch, 313, Authority No. 3 under this Clause of Rule 34), but the original proceed- ings are always before the Court, so far as they are necessary to determine any new points, or rights in controversy between the parties which were not tenninatedby the original decree. The Court may, therefore, inspect the original proceedings to ascertain the merits or demerits of the parties, so far as they bear on the new claims, and must decide, upon the whole examination, what its duty requires. " The Santa Maria," 10 Wheat. 431 (443). (February Term, 1835.) 7. A peculiar case where the Supreme Court stated that it was difficult to perceive how, under the peculiar circumstances of the case, as stated at length in, the opinion, the court below (the Court for the correction of errors of the State of New York) could conform its judgment to that of the Supreme Court, otherwise than by quashing its writ of error to the Supreme Court of the State, which it did. Davis V. Packard, 8 Pet. 313 (334). (January Term, 1834.) Rule 24.] UNITED STATES SUPREME COURT. 185 8. Cases in which a special mandate was made out. Mltchel V. The United States, 9 Pet. 711 (761). (January Term, 1835.) Soulard v. The United States, 10 Pet. 100 (105). (January Term, 1836.) 9. A case whioli, when formerly before the Supreme Court [8 Pet. 148] was dismissed for want of jurisdiction of the Circuit Court by reason of the omission to allege that the parties were citizens of different States. A motion was subsequently made in the Supreme dourt for liberty to amend the record by stating the citizenship of the defendant, and to reinstate the cause on the docket. The Court denied the motion, stating that to permit the amendment would, in effect, be a reversal of the former decree of the Supreme Court, for that Court has no power over its decrees that are rendered after the term has passed, and the cause has been dismissed, or otherwise finally disposed of in the Supreme Court. The Supreme Court points out, however, that the Circuit Court might permit the amendment to be made, and then rehear the case, and that from a new decree a new appeal might be taken and the matter reheard. Jackson v. Ashton, 10 Pet. 480. (January Term, 1836.) [See same case under Rule 30.] 10. A case in which the Supreme Court, after referring to the decision in the case of SJdllern^s Executors v. May's Executors, 6 Cranch, 267 (Authority No. 4 under this Clause of Rule 24), stated that in the case then before the Court, the merits of the controversy had previously been finally decided by the Supreme Court, and that its mandate to the District Court required only the execution of its decree, and that the facts stated by the defendant could not in that stage of the proceedings form any defence against the execution of the mandate. Ex parte Story, 12 Pet. 339 (343). (January Term, 1838.) 11. On a motion to reform the mandate, the Supreme Court, after stating that when they have executed their power in a cause before them, and their final decree or judgment requires some further act to be done, they cannot issue an execution but will send a special mandate to the court below, Jield, however, that in this case the mandate which was issued by the Clerk, was no execution of their final decree, and as it remained un- executed, it was not too late to have a new mandate issued, and the Clerk was accordingly directed to issue a mandate according to the final decree theretofore rendered. Ex parte SiHbald v. The United States, 13 Pet. 488 (495). (January Term, 1838.) [See same case under Rule 30.] 12. The mandate issued by the Supreme Court, in a case decided by the Court, is to be interpreted according to the subject matter, and it is in no manner to cause injustice. Story V. Livingston, 13 Pet. 359. (January Term, 1839.) 186 GENERAL RULES OF THE [Rule 24. 13. The mandate from the Supreme Court must be the guide to the Circuit Court. It ia the judgment of the Supreme Court transmitted to the Circuit Court ; and where the direction contained in the mandate is pre- cise and unambiguous, it is the duty of the Circuit Court to carry it into execution, and not to look elsewhere for authority to change its meaning; but where, as in this case, the Circuit Court are referred to testimony to ascertain the amount to be decreed, and are authorized to take more evidence lOn the point, it ffltay sometimes happen that there may be some uncertainty and ■ ambiguity on the point, and in such a case the court below has unquestionably the right to resort to the opinion of the Supreme Court delivered at the time in order to assist them in expounding it. West V. Brashear, 14 Pet. 51. (January Term, 1840.) 14. The meaning of a mandate may be ascertained from the instrument itself; but tlie reasons which induced the Supreme Court to make it are to be found in the evidence contained in the original record. The Supreme Court says that it will do wliat it did in the case of Sibhald, 13 Pet. 493 (Authority No. 11 under this Clause of Rule 24) ; also citing " The Santa Maria,'" 10 Wheat. 431 (Authority No. 6 under this Clause of Rule 24.) MiUM V. The United States, 15 Pet. 53 (84). (January Term, 1841.) 15. A case where on appeal a decree of the Circuit Court was reversed under the belief that a citation had been regularly issued and served on the appellee, and it appeared subsequently ihat the appellee was not cited in the manner required by the Act of Congress. Upon tlie facts of the case the Supreme Court stated that it was very clear, that the case was not legally before them at the last term, and that the decree pronounced must be declared null and void, and the mandate issued to the Circuit Court revoked. Ex parte Crenshaw, 15 Pet. 119 (133). (January Term, 1841.) 16. When there is an appeal from a decree entered on a mandate from the Supreme Court, the Supreme Court can consider on a subsequent appeal nothing but the proceedings subsequent to the mandate. It is too late then to allege that the Court had not jurisdiction to try the first appeal. The Supreme Court has no power to review its own decisions. The cases of Himely v. Sase, 5 Cranch, 314, and SMlem's Exeetitors v. Mafs Executors, 6 Cranch, 367 (Authorities Nos. 8 and 4 under this Clause of Rule 34), discussed. Washington Bridge Go. v. Stewart, 3 How. 413 (434). (January Term, 1845.) 17. A case where the appellee moved the Supreme Court to dismiss the second appeal in the record from the order of the Circuit Court overrul- ing a motion to open the decree and grant a rehearing, and also to award a writ of procedendo commanding the Circuit Court to proceed and execute the first decree. The motion was denied, the Supreme Court stating that as it is now presented by the record, they see no ground for a mandate Rule 24.] UNITED STATES SUPREME COURT. 18Y to the Circuit Court; tliat no application has been made to them to carry the decree into execution, or to stay proceedings on it pending the appeal, and the Supreme Court are bound to presume that the court below will do whatever may be right in the premises, if the subject is properly brought before it, and they cannot, in advance, undertake to guide the judgment of the court below by a mandate. Wylie V. Ooxe, 14 How. 1. pecember Term, 1853.) 18. "Where the court below entered a decree according to the mandate of the Supreme Court, this furnished no ground for an appeal, and the case was dismissed upon that ground. United States v. Frermnt, 18 How. 30. (December Term, 1855.) 19. When a case is sent to the court below, by a mandate from the Su- preme Court, no appeal will lie from any order or decision of the court below until it has passed its final decree in the case; and if the court below does not proceed to execute the mandate or disobeys or mistakes its meaning, the party aggrieved may, by motion for a mandamus at any time, bring the errors or omissions of the inferior court before the Supreme Court for correction. United States v. Mssatt, 31 How. 445 (446). (December Term, 1858 [See same case under Clause 5, Rule 36.] 20. A case where the Supreme Court directed that the order for docket- ing and dismissing the case should be vacated, and the mandate which followed it should be recalled, as tlie Court was satisfied from the evi- dence before it that no appeal had been granted by the court below, and that tlie cause was not properly before it when the order was made at the instance of the appellee to docket and dismiss the case. United States v. OoTmz, 33 How. 326. (December Term, 1859.) 31. The 34th Section of the Judiciary Act of 1789 governs the practice in cases brought up and reviewed in the Supreme Court, which is bound to give such judgment as the court below ought to have given, and the law directs that a mandate shall be sent down to have the judgment entered as final in the lower courts, when it is for the defendant below, as iii the Supreme Court. The District Court has no power to set aside the judg- ment of the Supreme Court, its authority extending only to executing the mandate. A writ of mandamus was accordingly issued to the court below commanding it to vacate and er^se the order granting a new trial, and that a judgment be entered in conformity to the mandate of the Supreme Court. Ex parte Dubuque and Pacific Bailroad, 1 Wall. 69 (73). (December Term, 1863.) 33. A mandate must not be so closely followed by the court below as to work injustice. Bailroad Company v. Sautter, 3 Wall. 510. (December Term, 1864.) 188 GENERAL RULES OF THE [Rule 24. 23. The judgment of an inferior court when affirmed by the Supreme Court is only conclusiTe as between the parties upon the matters involved. Regarded simply as an adjudication between them it is not open to ques- tion. It must be followed and obeyed. The inferior court cannot re- open the case and allow new proceedings to be taken or further evidence to be given, or new defences to be offered, upon any ground what- ever. It must execute the judgment or decree, and only for that purpose has it any authority over it. Such judgment or decree, however,*ioes not conclude the rights of third parties not before the Supreme Court, or in any respect affect their rights. In the Matter of Howard, 9 Wall. 175 (183). (December Term, 1869.) 24. A mandate of the Supreme Court must be obeyed by the court below as far as practicable. In this case a writ of mandamus was sent to the District Court directing it to proceed to execute the mandate of the Supreme Court in conformity to the opinion. Ex parte Morris and Johnson, 9 Wall. 605. (December Term, 1869.) 35. Rehearings are never granted when a final decree has been entered and the mandate sent down, unless the application is made at the same term, except in cases of fraud. Citing Washington Bridge Go. v. Stewart, 3 How. 424; Ex parte Sibbald, 12 Pet. 462 (Authorities Nos. 16 and 11 respectively under this Clause of Rule 24). Monan V. Bradley, 12 Wall. 121 (139.) (December Term, 1870.) [See same case under Rule 30.] 26. A case which came to the Supreme Court a second time after its mandate had been once issued. Pursuant to the mandate of the Supreme Court, remanding the cause, the Supreme Court of the State reversed their former decree reversing the judgment and decree of the Court of Common Pleas and dismissing the petition ; but they did not proceed and dispose of the case in conformity to the opinion of the Supreme Court as directed in the mandate. The Supreme Court in its opinion states : ' ' By the directions of the mandate they were as much bound to proceed and dispose of the case in conformity to the opinion of this Court as to re- verse their former decree, but instead of that they entered a new decree dismissing the petition, which in effect evades the directions given by this Court, and practically reverses the judgment and decree which the mandate directed them to execute. Argument to show that a subordi- nate court is bound to proceed in such an event and dispose of the case as directed, and that they have no power either to evade or reverse the judgment of this Court, is unnecessary, as any other Rule would operate as a repeal of the Constitution and laws of Congress passed to carry the judicial power conferred by the Constitution into effect .... Repeated decisions of this Court have established the Rule that a final judgment or decree of this Court is conclusive upon the parties, and that It cannot be re-examined at a subsequent term, except in cases of fraud, Rule 24.] UNITED STATES SUPREME COURT. 189 as there is no Act of Congress which confers any such authority. Sec- ond appeals or writs of error are allowed, but the rule is universal that they bring up only the proceedings subsequent to the mandate, and do not authorize an inquiry into the merits of the original judgment or de- cree. Rehearings are never granted where a final decree has been en- tered and the mandate sent down, unless the application is made at the same term, except in cases of fraud. . . . On receipt of the mandate it is the duty of the subordinate court to carry it into execution even though the jurisdiction do not appear in the fadings Brought here as the cause is by a second writ of error, it is settled law in this Court that nothing is brought up for re-examination and revision except the proceedings of the subordinate court subsequent to the man- date. It has been settled, by the decisions of this Court, that after a case has been brought here and decided and a mandate issued to the court below, if a second writ of error is sued out it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the Court on the first writ of error can be reheard or examined upon the second, as it would lead to endless litiga- tion." Tyler v. Magwire, 17 Wall. 353 (382). (December Term, 1873.) 37. In a case which had once come before the Supreme Court when the mandate had been sent down, the Court denied the petition for a manda- mus, stating that their action only precluded the court below from ad- judging in favor of the defendants upon the special facts found and sent to the Supreme Court for their opinion; that in all other respects, the court below was at liberty to proceed in such manner as, according to its judgment, justice might require. Ex parte French, 91 U. S. 433 (436). (October Term, 1875.) 38. It is settled in the Supreme Court that whatever has been decided there upon one appeal, cannot be re-examined in a subsequent appeal in the same suit ; such subsequent appeal brings up for consideration only the proceedings of the Circuit Court after the mandate of the Supreme Court. Supervisors v. Kennicott, 94 U. S. 498. (October Term, 1876.) 39. "While the Supreme Court will not hesitate to set aside a decree col- lusively obtained, the proof ought to be very clear to induce it to do so at the instance of strangers to the suit, though incidentally aflected by the decision of the questions involved. Cochrane v. Deener, 95 U. S. 355. (October Term, 1877.) 30. Where an appeal was taken from a decree entered upon the man- date of the Supreme Court and no complaint was made as to its form, and it seemed to be in all respects according to the directions of the Supreme Court, the appeal will be dismissed, the Supi-eme Court holding that the 190 GENERAL RULES OF THE [Rule 24. rio'bts of the parties and the subject matter of the suit were finally deter- mined upon the former appeal, and that, while a party may, if he be aggrieved, appeal from the final decree entered in the court below, yet such appeal will bring up for re-examination only the proceedings sub- sequent to the mandate. Stewart v. Salamon, 97 \J. S. 361 (363). (October Term, 1878.) [See same case under Clause 1, Rule 34.] 81. An appeal dismiped under the Rule established in Stewart v. Sal- amon, 97 U. S. 381 (362) (Authority No. 30 tinder this Clause of Rule 24), as it was an appeal from a decree entered below in accordance with the prior mandate of the Supreme Court. Humphrey v. Saixr, 103 U. S. 736. (October Term, 1880.) 32. A case wherein the Supreme Court in delivering their opinion used this language : ' ' Although this Court reversed the first judgment, and remanded the cause for a new trial, and a new trial has been had, with a new judgment, the plaintiffs in error now urge, without having raised the point before, that this Court, instead of having awarded a new trial, should have rendered a judgment for the defendants below on the findings made by the Circuit Court at the first trial, and that it should now do so. The question is not open for this Court to review on this writ of error the judgment it rendered on the former writ of error. That judgment has been carried into effect, and the parties who procured it have enjoyed the benefit of it in the new trial they have had." Ame^ V. Quimby, 106 U. S. 343 (349). (October Term, 1882.) 33. It has long been settled that whatever has been decided in the Supreme Court on one writ of error cannot be re-examined on a subse- quent writ brought in the same suit. Citing Supervisors v. Kennicott, 94 U. S. 498, and Himely v. Rose, 5 Oranch, 813 (Authorities Nos. 28 and 3 respectively under this Clause of Rule 24). Glarh V. Keith, 106 U. S. 464. (October Term, 1882.) 34. Four cases which at October Term, 1881, were dismissed on ap- plication of the Government, by whose direction the cases were brought to the Supreme Court ; there was no afl[irmance of the judgments below, and the judgments and mandates of the Supreme Court contained no di- rection as to interest on the judgments below during the time the writs of error were pending. The judgments were rendered in 1878. In the Dodge case, the mandate was issued, but was never presented to the court below. In the other cases, the mandates were issued and presented to the court below, and orders for judgment were entered thereon. In the Dodge case, counsel for the defendants in error were present in the Supreme Court when the case was dismissed ; but in the other cases, no counsel for the defendants in error were present, and the mo- Rule 24.] UNITED STATES SUPREME COURT. 191 tions to dismiss were made witliout their knowledge, and the man- dates were not issued till after the close of the term. Application was made at the October Term of the Supreme Court by the defendants in error to correct the judgments and mandates in these cases so as to award to them interest as such or as damages for delay. The Court denied the application, stating that they had no power to vary the judgments or mandates after the close of the term, no especial right to do so in these cases having been reserved, and that it has always been Tidd in the Supreme Court that it has no power after the term has passed, and the case been dismissed or otherwise finally disposed of, to al- ter its judgment in such a particular as that now asked for, mz. : the change of a dismissal of a writ of error with its legal cousequences, to an af- firmance of the judgment below with its legal consequences, and not an error of mere form, or a clerical error, or a misprision of the clerk, or the like. Schell V. Dodge, Barmy v. Isler, Barney v. Cox, Barney v. Friedman, 107 U. S. 629. (October Term, 1883.) [See same case under Clauses 1 and 3, Rule 33.] 35. The final decree in the case of Blake v. SawMns, 98 U. S. 315, was reversed by the Supreme Court, and the cause was remanded with direc- tions to take further proceedings, and enter a decree in accordance with the opinion of tlie Supreme Court, as then declared. The subsequent proceedings and decree upon the mandate were thereafter brought before the Supreme Court for review, on the ground that they did not, in several particulars, conform to that mandate. The Supreme Court approved the decree of the Circuit Court, in effect holding that it was entered in accordance with the judgment of the Supreme Court, and a subsequent agreement of the parties to the suit. MawUns v. Blake, 108 U. S. 423. (May 7th, 1883.) [See also the authorities cited under Rule 30, where applicable.] 6. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. HISTORY. This Clause is in precisely the same language as Original General Rule 50 promulgated at January Term, 1838, 13 Pet. vii., and given as the sixth Clause of Original General Rule 45, in 1 How. xxxvi., and is also precisely the same as Clause 6 of General Rule 34 as contained in the Revisions of December Term, 1858, 31 How. xiv., and of May 1st, 1871. For this Clause in the Revision of 1884, see 108 U. S. 587. 192 GENEEAL RULES OF THE [Rule 21. 7. In pursuance of the Act of March 3, 1883, authorizing and em- powerii^ this court to prepare a table of fees to be charged by the clerk of this court, the following table is adopted : For docketing a case and filing and indorsing the transcript of the record, five dollars. For entering an appearance, twenty-five cents. For entering a continuance, twenty-five cents. For filing a motion, order, or other paper, twenty-five cents. For entering any rule, or for making or copying any record or other paper, twenty cents per folio of each one hundred words. For transferring each case to a subsequent docket and indexing the same, one dollar. For entering a judgment or decree, one dollar. For every search of the records of the court, one dollar. For a certificate and seal, two dollars. For receiving, keeping, and paying money in pursuance of any statute or order of court, two per cent, on the amount so received, kept, and paid. For an admission to the bar and certificate under seal, ten dollars. For preparing the record or a transcript thereof for the printer, in- dexing the same, surpervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, fifteen cents per folio. For making a manuscript copy of the record, when required under Rule 10, twenty cents per folio, but nothing in addition for supervis- ing the printing. For issuing a writ of error and accompanying papers, five dollars. For a mandate or other process, five dollars. For filing brie&, five dollars for each party appearing. For every copy of any opinion of the court or any justice thereof certified under seal, one dollar for every printed page, but not to ex- ceed five dollars in the whole for any copy. HISTORY and FEDERAIj STATUTES. This Clause is entirely new. 108 U. S. 587. Rule 24.] UNITED STATES SUPREME COURT. 193 NoTB.— For Circular Letter of Clerk of the Supreme Court so far as it relates to paragraph 13 of this Clause, see Clause 1, Eule 10. By Section 3 of an Act of Congress approved February 38th, 1799, 1 Stat, at Large, ch. 19, sec. 3, p. 635, it is provided as follows, viz. : " Sec. 3. AtiA be it further enacted, That the compensation to the clerk of the Supreme Court of the United States, shall be as follows, to wit: for his attendance in Court, ten dollars per day, and for his other services, double the fees of the Clerk of the supreme court of the state in which the Supreme Court of the United States shall be holden." Under this provision the fees of the Clerk of the Supreme Court of the United States were, prior to the Act of Congress of March 3d, 1883, re- ferred to more fully below, double the fees of the Clerk of the highest court in the State of Maryland. By an Act of Congress approved March 3d, 1883, entitled " An act making appropriations for sundry civil ex- penses of the Government for the fiscal year ending June thirtieth, eighteen hundred and eighty-four, and for other purposes " (33 Stat, at Large, chap. 143, pp. 603, 631), it is provided under the title "Judicial" as follows: " For fees of clerks, one hundred and sixty thousand dollars. . . . Provided, That the Clerk of the Supreme Court of the United States shall not thereafter retain of the fees and emoluments of his office for his personal compensation over and above his necessary clerk- hire and the incidental expenses of his office, certified to by the court, or by one of its justices appointed by it for that piirpose, and to be audited and allowed by the proper accounting officers of the Treasury, a sum exceeding six thousand dollars a year, or exceeding that rate for any time less than a year ; and the surplus of such fees and emoluments shall be paid into the Treasury as provided by law in cases of clerks of the circuit and dis- trict courts of the United States: and proiiided further. That so much of section three of the Act of February twenty-eighth, seven- teen hundred and ninety-nine, as relates to the compensation of said clerk for his attendance in court is hereby repealed: and provided further. That the Supreme Court is hereby authorized and em- powered to prepare the table of fees to be charged by the clerk thereof, and until the same is thus prepared the fees therein charged for recording or copying any paper or record shall not exceed four- teen cents per folio." The question of the fees of the Clerk was fully discussed by the Supreme Court at the October Term, 1883, prior to the present Revision, and an opinion was delivered by Mr. Chibp-Jdsticb "Waite with reference thereto, which, as it is of interest to the profession, is printed in extenso. As the opinion provides for amendments to General Rules 1 and 10, see also the History of thoje General Rules, and of each Clause thereof, in connection with this opinion. 13 194 GENERAL RULES OF TflE [Rule 24. Mr. Chief-Justice Waitb delivered the opinion of the Court: " Our attention has been called to the practice wliich prevails in the clerk's office of sending original records to the printer to be printed, and of taxing in the bills of costs a fee for one manuscript copy of the record, when no such copy is in fact made. " On investigation we find that the statute regulating the fees of the clerk was passed in 1799, and that under this statute a table of fees was prepared, many years ago, by or under the direction of the court, which has been followed by the clerk in the taxation of costs ever since. No provision was made, by rule or otherwise, for printing the records, until January term, 1831. Before that time the practice was, as we are informed, for the court to use the oi-iginal record, and the clerk made two manuscript copies for the use of the parties. For these copies he charged the parties according to the established table of fees. At January term, 1831, the Attorney-General, in behalf of the United States, applied to the court for leave to take the original records in certain cases from the clerk's office to be printed, at the same time remarking that he had been iufonned that in such cases it had been the habit of the clerk to charge half fees. Chief- Jdsticb Marshall, speaking for the court, stated ' that the clerk of this court had certain rights and fees of office, (of which a fee for a copy of the record was one,) which this court was not disposed to violate; and that the party could not withdraw the records without paying for the copies, but that any arrangement which the clerk saw proper to make would be satisfactory to the court.' The original records in these cases were after- wards taken to the printer and printed, and the clerk charged and was paid full fees for one manuscript copy. "At the same term the first rule for printing the records was adopted, which provided for the taxation of the fees for one manuscript copy of the record in the bill of costs. When this rule was promulgated the court consisted of Chief-Justice Marshall and Associate Justices John- son, SroRY, Thompson, McLean, and Baldwin. Mr. Justice Baldwin dissented on this provision of the rule, for the. reason, among others, that it allowed the clerk a fee for a copy whether one was made or not. " Under the rule thus adopted the printing of records began, and from the first the original records were sent to the printer, and a fee for one manuscript copy was charged in the costs, when in fact no copies were made. There is abundant evidence that at the outset this practice was directly or indirectly approved by the court. In 1839 the House of Rep- resentatives instmcted the Judiciary Committee to 'inquire what costs are charged against the United States for printed copies of records of suits pending in the Supreme Court which have been printed at the ex- pense of the United States, . . . and whether any legislation is neces- sary in relation to costs of suits in said court.' The committee re- ported, submitting a statement of the clerk on the subject, and was dis- charged. From this statement of the clerk, and from other evidence on file, we are satisfied the committee, or some of its members, visited the Rule 24.J UNITED STATES SUPREME COURT. 195 office during the progress of their enquiries, and possessed themselves fully of the mode of doing the business and of the compensation therefor. "In 1859 the rules were revised by Chief- Justice Taney under the di- rection of the court, and the provision for printing the records was put into the form in which it now appears in paragraphs 2, 3, 4 and 5 of Rule 10. We are advised that prior to the death of Chief Justice Taney no manuscript copies of the records were ever made, and that the fee for one copy was always charged in the costs. Since the death of Chibp- JusTiCB Taney copies have in some cases been made. The present clerk has followed the practice of his predecessors. " "We are entirely satisfied that the practice, as it now exists, is in all ma- terial respects what it has been for more than fifty years, and that at the beginning it received the approval of the court. No one now on the bench ever heard of any complaint, or of any application for a re-taxa- tion of costs, on account of what was done, until late in the last term, when a motion for re-taxation was made in the case of James v. Campbell. " There is an apparent conflict between the rules and the practice under them which ought not to exist. It is also evident that what was fifty years ago no more than a reasonable compensation for the important services of the clerk is now, under the operation of the rules as then construed and the practice then inaugurated, larger than it ought to be. To prevent misunderstandings in the future and to reduce the expenses of litigants without doing injustice to the clerk, it is ordered — ' ' I. That the second clause of Rule 1 be amended so that it will read as follows : "(See History of Clause 3, Rule 1, for the nature of the amendment.) ****** "11. That paragraphs 3, 4, 5, and 6 of Rule 10, be rescinded, and the following adopted in lieu thereof: "(See History of Clauses 4, 5 and 7 of Rule 10 for the nature of the amendments.)" ****** IntJie Matter of Amendments to Rules 1 and 10, 108 U. S. 1. (November 36th, 1882.) [See also 106 U. S. vii., where, however, these amendments are stated to have been promulgated November 13th, 1883.] AUTHORITIES. PKIOR TO THE ACT OP MAKCH 3d, 1883. 1. A case in which the Supreme Court observed, when application was made for an allowance of $13.50, the costs of the printed state of the case for the use of the judges, " that, however convenient it might be, there was no Rule authorizing the charge; and, therefore, it could not be allowed." Jennings v. T?ie Brig ^'Perseverance," 3 Dallas, 336 (338). (Februai-y Term, 1797.) 196 GENERAL RULES OF THE [Rttlb 25. 3. A copy of the record is not a part of the taxable costs of suit to be recovered by one party against the other ; but the party who requests the copy must pay the Clerk for it. Caldwell v. Jackson, 7 Cranch, 376. (February Tei-m, 1813.) SUBSBQUBNT TO THB ACT OF MABCH 3D, 1883. 3. A case wherein the Supreme Court said: " As this record has been printed the case may be docketed without security for this fee " [i.e. the fee under the 13th paragraph of Clause 7, Rule 34), "but the printed copies cannot be delivered to the justices or the parties for use on the final hear- ing or on any motion in the progress of the cause unless the fee is paid when demanded by the Clerk in time to enable him to make his examina- tions and perform his other duties in connection with the copies." Bean v. Pattersm, 110 U. S. 401. (February 34th, 1884.) [See this case under Clauses 1 and 3, Rule 10.] Mule 23. opnnoKs OF the cotjet. 1. All opinions delivered by the court shall, immediately upon the delivery thereof be handed to the clerk to be recorded. And it shall be the duty of the clerk to cause the same to be forthwith recorded, and to deliver a copy to the reporter as soon aa the same shall be recorded. HISTORY. This Clause had its origin in Original General Rule 43, which appears to have been promulgated at January Term, 1835. This Rule is not con- tained in 9 Pet., which contains opinions delivered at January Term, 1835, and where the Original General Rule should naturally appear, nor is it contained in any of Peters' Reports. It first appears in 1 How. xxxv., and its first two Clauses are in these words : " All the opiuions delivered by the Court since the commencement of the term shall be forthwith delivered over to the Clerk to be re- corded. " And all opinions hereafter delivered by the Court shall immediately, upon the delivery thereof, be in like manner delivered over to the Clerk to be recorded. And it shall be the duty of the Clerk to cause the same to be forthwith recorded, and to deliver the originals with a transcript of the judgment or decree of the Court thereon to the reporter, as soon as the same shall be recorded." In the Revision of December Term, 1858, 31 How. xiv., Clause 1 of General Rule 25 is the same as the second Clause of Original General Rule Rule 26.] UNITED STATES SUPREME COURT. 197 42, above quoted, with the exception of the omission in the Revision of the first word " and " and of the words "hereafter " and " in like manner " contained in the second Clause of Original General Rule 43. In the Revision of May 1st, 1871, Clause 1 of General Rule 35, was the same as Clause 1 of the present General Rule 35, except that the words " delivered over " took the place of the word "handed." For this Clause in the Revision of 1884, see 108 U. S. 588. FEDERAL STATUTES. RELATING TO EEPOBTEE OF SUPREME COtlRT. " Sec. 386. The Department of Justice shall be charged with the dis- tribution to the various judges and courts of the statutes, reports, and other judicial documents provided by law." Revised Statutes (Second Edition), § 386, p. 64 ; Act of Congress of 8d March, 1873, ch. 238, sec. 2, 17 Stat, at Large, 578. " Sec. 387. A register of the statutes of the United States and re- ports of the Supreme Court shall be kept, under the authority of the head of the Department of Justice, showing the quantity of each kind received by him from the Secretary of the Interior; and it shall be his duty to cause to be entered in such register, and at the proper time, when, where, and to whom the same, or any part of them, have been distributed and delivered, and to report the same to Congress in his annual report." Revised Statutes (Second Edition), § 387, p. 64 ; Act of Congress of 3d March, 1878, ch. 238, sec. 3, 17 Stat, at Large, 578. " Sec. 498. The Secretary of the Interior is required to furnish to the head of the Department of Justice, from time to time as they may be published, a sufficient number of the Statutes of the United States and the reports of the Supreme Court of the United States, to be by him distributed to such officers of the courts of the United States as are now or may hereafter be by law entitled to receive them." Revised Statutes (Second Edition), § 498, p. 83 ; Act of Congress of 3d March, 1873, ch. 338, sec. 3, 17 Stat, at Large, 578. "Sec. 677. The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions." Revised Statutes (Second Edition), § 677, p. 135 ; Act of Congress of 26th August, 1843, ch. 302, sec. 2, 5 Stat, at Large, 524; Act of Congress of 29th August, 1843, ch. 364, sec. 1, 5 Stat, at Large, 545. "Sec. 681. The reporter shall cause the decisions of the Supreme Court made during his office to be printed and published within eight months after they are made; and, within the same time, shall 198 GENERAL RULES OF THE [Rule 25, deliver three hundred copies of the volumes of said reports to the Secretary of the Interior. And he shall, in any year when he is so directed by the court, cause to be printed and published a second volume of said decisions, of which he shall deliver, in like manner and time, three hundred copies." Revised Statutes (Second Edition), § 681, p. 135; Act of Congress of 29th August, 1842, ch. 264, sec. 1, 5 Stat, at Large, 545 ; Act of Congress of 21st May, 1866, ch. 88, sec. 1, 14 Stat, at Large, 51 ; Act of Congress of 23d July, 1866, ch. 208, sec. 1, 14 Stat, at Large, 191 (205); Act of Congress of 3d March, 1867, ch. 168, sec. 10, 14 Stat, at Large, 471. "Sec. 683. The reporter shall be entitled to receive from the Treas- ury an annual salary of twenty-five hundred dollars, when his re- port of said decisions constitutes one volume, and an additional sum of fifteen hundred dollars when, by direction of the court, he causes to be printed and published, in any year, a second volume. But said salary and compensation, respectively, shall be paid only when he causes such decisions to be printed, published, and de- livered within the time and in the manner prescribed by law, and upon the condition that the volumes of said reports shall be sold by him to the public for a price not exceeding five dollars a volume." Revised Statutes (Second Edition), § 682, p. 126; Act of Congress of 39th August, 1842, ch. 264, sec. 1, 5 Stat, at Large, 545; Act of Congress of 21st May, 1866, ch. 88, sec. 1, 14 Stat, at Large, 51; Act of Congress of 23d July, 1866, ch. 308, sec. 1, 14 Stat, at Large, 191 (305); Act of Congress of 2d March, 1867, ch. 168, sec. 10, 14 Stat, at Large, 471 ; See, however. Act of Congress of 5th August, 1882, ch. 389, 22 Stat, at Large, 219 (254), quoted at length hereafter. "Sec. 683. The three hundred copies of said reports delivered to the Secretary of the Interior shall be distributed as follows: "To the President, the justices of the Supreme Court, the circuit judges, the judges of the district courts, the judges of the Court of Claims, the judges of the Supreme Court of the District of Columbia, the judges of the several territorial courts, the Secretaiy of State, the Secretary of the Treasury, the Secretary of War, the Secretary of the Navy, the Secretai^ of the Interior, the Postmaster- General, the Attorney-General, the Solicitor-General, the Secretary of the Senate, for the use of the Senate, the Clerk of the House of Representatives, for the use of the House of Representatives, the governors of the Territories, the Commissioner of Agriculture, the Commissioner of Internal Revenue, the Commissioner of Indian affairs, the Commissioner of Pensions, the Commissioner of the Gen- eral Land OfBce, the Commissioner of Patents, the Commissioner of Customs, the Commissioner of Education, the Paymaster-General, the First and Second Comptrollers of the Treasury, the First, Sec- Rule 25.] UNITED STATES SUPREME COURT. 199 ond, Third, Fourth, Fifth, and Sixth Auditors of the Treasury, the Solicitor of the Treasury, the Register of the Treasury, the Treasurer of the United States, and the heads of such other executive offices as may hereafter be provided by law, of equal grade with any of the said officers, each one copy ; to the Secretary of the Senate, for the use of the standing committees of the Senate, ten copies; and to the Clerk of the House of Representatives, for the use of the standing committees of the House, twelve copies; and the residue of said copies shall be deposited in the Library of Congress, to become a part of said Library. The copies received by any officer under this section shall, in case of his death, resignation, or dismissal from office, be delivered up to his successor in office." Revised Statutes (Second Edition), § 683, p. 136; Act of Congress of 29th August, 1843, ch. 364, sec. 1, 5 Stat, at Large, 545 ; Act of Congress of 3d March, 1861, ch. 87, sec. 6, 13 Stat, at Large, 345; Act of Congress of 23d July, 1866, ch. 208, sec. 1, 14 Stat, at Large, 191 (305) ; Act of Congress of 15th July, 1870, ch. 292, sec. 1, 16 Stat, at Large, 291 (307). FEBMANENT ANNUAL APPEOPEIATIONS. ♦ ******« " Sec. 3689. There are appropriated, out of any moneys in the Treas- ury not otherwise appropriated, for the purposes hereinafter speci- fied, such sums as may be necessary for the same respectively ; and such appropriations shall be deemed permanent annual appropria- tions. ******** JUDICIAL. SUPREME COUBT OF THE UNITED STATES. " Salaries justices, &c.. Supreme Court: To pay the reporter of the Supreme Court for three hundred_ copies of the second volume of the decisions of the court." Revised Statutes (Second Edition), § 3689, pp. 724 (739). Act of Congress of 3d Marcli, 1867, ch. 168, sec. 10, 14 Stat, at Large, 471. "The reporter of the decisions of the Supreme Court of the United States shall be entitled to receive from the Treasury an annual salary of four thousand five hundred dollars when his report of said decisions constitutes one volume and an additional sum of one thousand two hundred dollars when by direction of the court he causes to be printed and published in any year a second volume, and said reporter shall be annually entitled to clerk-hire in the sum of one thousand two hundred dollars, and to office rent, stationery, and contingent expenses in the sum of six hundred 200 GENERAL RULES OF THE [Rule 25. dollars, and an amount sufficient for the payment of said sums is hereby appropriated : Provided, That the above provision shall not apply to decisions of the court pronounced at the last term thereof, but that said decisions shall be printed and the volumes containing them delivered to the Secretary of the Interior as prescribed by existing laws ; and an amount sufficient to pay the salary and com- pensation of the reporter in connection therewith is hereby appro- priated: And provided further, That the volumes of the decisions which said court shall hereafter pronounce shall be furnished by the Reporter to the public at a sum not exceeding two dollars per volume, and the number of volumes now required to be delivered to the Secretary of the Interior shall be furnished by the reporter without any charge therefor." Act of Congress of 5th August, 1883, ch. 389, 32 Stat, at Large, 319 (354.) 2. The original opinions of the court shall be filed with the clerk of this court for preservation. HISTORY. This Clause originated in an Original General Rule, promulgated March 14th, 1834, and given without number in 8 Pet. vii., and as Rule 41 in 1 How. XXXV. It is in these words : "Ordered, That the original opinions of the Court delivered to the reporter, be filed in the office of the Clerk of the Court for preserva- tion as soon as the volume of Reports for the term, at which they are delivered, shall be published." This Original General Rule 41 appeared with a few immaterial verbal alterations as Clause 3 of General Rule 25 of the Revision of December Term, 1858, 31 How. xiv. Clause 3 of General Rule 25 of the Revision of May 1st, 1871, was in precisely the same language as Clause 3 of the present General Rule 35. For this Clause in the Revision of 1884, see 108 U. S. 588. 3. Opinions printed under the supervision of the justices delivering the same need not be copied by the clerk into a book of records ; but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. EuLE 26.] UNITED STATES SUPREME COURT. 201 HISTORY. The third and last Clause (For the first two clauses see History under Clause 1, Rule 25) of Original General Rule 43, which appears to have been promulgated at January Term, 1835, 1 How. xxxv., but is not con- tained in 9 Pet. which contains opinions delivered at January Term, 1835, and where the Rule should naturally appear, and is not contained in any of Peters' Reports, is in these words: "And all the opinions of the Court, [shall] as far as practicable, be recorded during the term, so that the publication of the reports may not be delayed thereby." With the exception of some immaterial verbal alterations this Clause of Original General Rule 42 appeared as Clause 2 of General Rule 25 of the Revisions of December Term, 1858, 21 How. xiv., and of May 1st, 1871. The present Clause 3 of General Rule 25 in its present form is new. For this Clause in the Revision of 1884, see 108 U. S. 588. Mule 26. CALL AITD OEDBE OF THE DOCKET. 1. The court, on the second day in each term, will commence call- ing the cases for argument in the order in which they stand on the docket, and proceed from day to day during the term in the same order; (except as hereinafter provided;) and if the parties, or either of them, shall be ready when the case is called, the same will be heard ; and if neither party shall be ready to proceed in the argu- ment, the case sl^all go down to the foot of the docket, unless some good and satisfactory reason to the contrary shall be shown to the court. HISTORY. This Clause is, with the exception of the words "(except as hereinafter provided ; ) " and with the exception of an immaterial verbal alteration, the same as the first sentence of an Original General Rule, promulgated in March, (January Term,) 1830, and given without number in 3 Pet. xvi., where the Rule with others is stated to have been omitted in 1 Wheat, and 1 Pet., because they were not regularly entered with the other Rules of the Court by the then Clerk of the Court at the time of their adoption. This Original General Rule is referred to as Rule 36 in an amendment thereto, (which, however, does not affect this Clause,) promulgated Febru- ary 5th, 1840, 14 Pet. xi., and appears as Rule 36 in 1 How. xxxiii. Subject to the same exceptions as above noted Clause 1 of the present 202 GENERAL RULES OF THE [Rule 26. General Rule 26 appears as the first sentence of General Rule 26 of the Revision of December Term, 1858, 21 How. xv. At December Term, 1866, 4 "Wall, vii., a General Rule was promulgated numbered 2, the first Clause of which was as follows : " That all cases on the calendar, except cases advanced as herein- after provided, shall be heard when reached in the regular call of the docket, and in the order in which they are entered." This General Rule contained three other Clauses, containing as their subject matter respectively, the subject matterof Clauses 3, 5 and 8 of the present General Rule 36. Clause 1 of General Rule 26 of the Revision of May 1st, 1871, is in substantially the same language as Clause 1 of the present General Rule 26. For this Clause in the Revision of 1884, see 108 U. S. 589. AUTHORiniiS. 1. A case which, in the regular order of business, was called, and, ac- cording to the Rules of the Supreme Court, placed at the foot of the calendar. Barry v. Mercein, 4 How. 574. (January Term, 1846.) [See same case under Clause 7, Rule 26.] 2. A motion to reinstate a cause dismissed under the 16th Rule denied. The appellant had been so unmindful of his interests, that he did not know the counsel, upon whom he relied for the presentation of his case, had died before the commencement of the then present Term, and had been unable to attend to business on account of impaired health for a long time before his death. On denying the motion, the Supreme Court stated that in the crowded state of their docket, filled with cases from all parts of the United States, it was their duty to take special caje that the neces- sary delays in disposing of their business were not added to by the neglect of counsel or parties ; and that for this reason. Rules requiring causes to be ready for hearing when reached are, and will continue to be rigidly en- forced. Surley v. Jones, 97 U. S. 318. (October Term, 1877.) [See same case under Clause 3, Rule 9, Rule 16, and Clause 9, Rule 26.] 3. A motion to reinstate a cause dismissed under Rule 16 denied. The Supreme Court stated that the application came directly within the Rule laid down in Hurley v. Jones, 97 U. S. 318 (Authority No. 2 under this Clause of Rule 36). The Supreme Court reiterated what they said in that case, namely: "that our Rules requiring causes to be ready for hearing when reached are, and will continue to be rigidly enforced." Ahord V. United States, 99 U. S. 593. (October Term, 1878.) [See same case under Rule 16 and Clause 9, Rule 26.] Rule 26.] UNITED STATES SUPREME COURT. 203 2. Ten cases only shall be cousidered as liable to be called on each day during the term, including the one under argument. HISTORY. This Clause originated with the second sentence of an Original General Rule given without number in 3 Pet. xvi., (where it is stated to have been omitted in 1 Wheat, and 1 Pet., which omission arose from the fact that it was not regularly entered with other Rules of Court, by the then Clerk of the Court at the time of their adoption,) and referred to as Rule 36 in an amendment thereto, which, however, does not affect this Clause, promulgated February 5th, 1840, 14 Pet. xi., and as Original General Rule 26 in 1 How. xxxiii., and promulgated March (January Term), 1830. The second sentence of said Original General Rule was as follows: " That ten causes only shall be considered as liable to be called on each day during the term, including the one under argument, if the same shall not be concluded on the preceding day." This sentence appears in precisely the same words as the second sentence of General Rule 26 of the Revision of December Term, 1858, 21 How. XV. With an immaterial verbal alteration Clause 2 of the present Gen- eral Rule 26 is the same as Clause 2 of General Rule 26 of the Revision of May 1st, 1871, the words "if the same shall not be concluded on the preceding day,'' previously appearing, being, however, omitted. For this Clause in the Revision of 1884 see 108 U. S. 589. 3. Criminal cases may be advanced by leave of the court on motion of either party. , HISTORY. This Clause first appeared in precisely the same language as the second Clause of a General Rule numbered 2, promulgated at December Term, 1866, 4 Wall. vii. It is also in precisely the same language as Clause 3 of General Rule 26 of the Revision of May 1st, 1871. For this Clause in the Revision of 1884, see 108 U. S. 589. FEDERAL STATUTES. " Sec. 709. A final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their 204 GENERAL RULES OF THE [Rule 26. validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or com- mission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitu- tion, treaty, statute, commission or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same eSect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of such State court, and may, at their discre- tion, award execution, or remand the same to the court from which it was removed by the writ." Revised Statutes (Second Edition), § 709, p. 133, as amended by Act of Congress of 18th February, 1875, ch. 80, 18 Stat, at Large, 818; See also Act of Congress of 34th September, 1789, ch. 20, sec. 25, 1 Stat, at Large, 85 ; Act of Congress of 5th February, 1867, ch. 28, sec. 2, 14 Stat, at Large, 386. " Sec. 710. Cases on writ of error, to revise the judgment of a State court in any criminal case, shall have precedence, on the docket of the Supreme Court, of all cases to which the Govern- ment of the United States is not a party, excepting only such cases as the court, in its discretion, may decide to be of public impor- tance.'' Revised Statutes (Second Edition), § 710, p. 134; Act of Congress of ■ 13th July, 1866, ch. 184, sec. 69, 14 Stat, at Large, 172. AUTHORITIES. 1. A motion to advance in criminal cases is discretionary, and was here refused as the defendant was not in jail. In this case, the Rule of Court under which the motion was made is referred to as Rule 30. This evi- dently refers to the second Clause of a General Rule numbered 2, promul- gated at December Term, 1866, 4 Wall, vii., and referred to in the History of this Clause. No General Rule 30 appears in 31 How. or be- tween it and 12 Wall. Ward V. Btate of Maryland, 12 Wall. 163. (December Term, 1870.) 2. In a criminal case where the motion to advance was made on behalf of the United States, upon the representation of the Postmaster-General in substance that the questions in dispute would embarrass the operations of the Government while they remained unsettled, the Supreme Court accepted the statement as sufficient and granted the motion, because their Rule, as stated in the opinion, had but recently gone into operation; but the Court stated that thereafter, motions to advance, upon the ground Rule 26.] UNITED STATES SUPREME COURT. 205 asked for in this case, must state the facts in such a manner that the Court might judge whether the Government would be embarrassed in the administration of its affairs by the delay; as in the then crowded state of the docket it was the duty of the Supreme Court to see that cases were not unnecessarily brought forward to the prejudice of others. Jiniud States v. Nwton, 91 U. 8. 558. (October Tenn, 1875. ) [See same case under Clause 5, Rule 36.] 4. Cases once adjudicated by this court upon the merits, and again brought up by writ of error or appeal, may be advanced by leave of the court on motion of either party. HISTORY. This Clause is entirely new. For this Clause in the Revision of 1884, see 108 U. S. 589. AUTHORITIES. See Authorities under Clause 5, Rule 34. 5. Revenue and other cases in which the United States are con- cerned, which also involve or affect some matter of general public in- terest, may also by leave of the court be advanced on motion of the attorney-general. HISTORY. This Clause originated in the third clause of an Original General Rule numbered 3, promulgated at December Term, 1866, 4 Wall, vii., and which appeared as Clause 4 of General Rule 36 of the Revision of May 1st, 1871. These prior Rules differed from Clause 5 of the present General Rule 36 in that they began as follows, viz. : "Revenue cases and cases in which the United States," being otherwise the same as Clause 1 of the present General Rule 36. For this Clause in the Revision of 1884, see 108 U. S. 589. AUTHORITIES. 1. No case can be taken up out of order on the docket where pri- vate interests only are concerned. This Rule is departed from when the question in dispute will embarrass the operations of the Government while it remains unsettled. United States v. Fossatt, 31 How. 445. (December Term, 1858. [See same case under Clause 5, Rule 34.] 206 GENERAL RULES OF THE [Rule 26. 3. A motion on behalf of the United States to advance a criminal case on the ground that the questions in dispute would enibarrass the Govern- ment while they remained unsettled was denied. For the grounds of the decision, see same case under Clause 3, Rule 26. United States v. Norton, 91 U. S. 558. (October Term, 1875.) [See same case under Clause 3, Rule 26.] 8. A case where the Supreme Court stated that until the enactment of an Act of Congress approved June 30th, 1870 (16 Stat, at Large, 176) which act gave priority to certain cases to which a State was a party in the courts of the United States, and is re-enacted in Section 949 of the Re- vised Statutes of the United States (Second Edition), p. 180 (See this sec- tion under Clause 7, Rule 26), the order of hearing cases in the Supreme Court was regulated almost entirely by Rules, and that prior to that Act they had held that the only cases of general public interest which should •be taken up out of their regular order, were those in which the question in dispute would embarrass the operations of the Government while it remained unsettled, citing United States v. Fossatt, 21 How. 445, (Author- ity No. 1 under this Clause of Rule 26.) Eoge V. Richnumd, etc. B. M. Co., 93 U. S. 1. (October Term, 1876.) [See same case under Clause 7, Rule 26.) 6. All motions to advance cases must be printed, and must contain a brief statement of the matter involved, with the reasons for the ap- plication. HISTORY. This Clause is in precisely the same language as an amendment to Gen- eral Rule 26 promulgated May 3d, 1875, 21 Wall. v. This amendment added the words of this Clause at the end of Clause 4 of General Rule 26, as promulgated at the Revision of May 1st, 1871. See Clause 5 of General Rule 26, and the History thereunder. For this Clause in the Re- vision of 1884, see 108 U. S. 589. 7. Ho other case will be taken up out of the order on the docket, or be set down for any particular day, except under special and peculiar circumstances to be shown to the court. Every case which shall have been called in its order and passed and put at the foot of the docket shall, if not again reached during the term it was called, be continued to the next term of the court. Rule 26.] UNITED STATES SUPREME COURT. 207 HISTORY. This Clause originated in the third and fourth sentences of an Original General Rule promulgated March (January Term), 1830, and given with- out number, in 3 Pet. xvii., and stated to have been omitted with other Rules in 1 "Wheat, and 1 Pet. because they were not regularly entered with the other Rules of the Court by the then Clerk of the Court, at the time of their adoption. These sentences were as follows : "No cause shall be taken up out of its order on the docket, or be set down for any particular day ; except under special and peculiar cir- cumstances, to be shown to the Court. Every cause which shall have been twice called, in its order, and passed, and put at the foot of the docket, shall, if not again reached during the term it was last called, be dismissed, and no longer continued on the docket." The fourth and last sentence of this Original General Rule was amended February 5th, 1840, the Rule being in the amendment spoken of as Rule 86, 14 Pet. xi., so as to read as follows: " Every cause which shall have been twice called in its order, and passed, and put at the foot of the Docket; shall, if not again reached during the term it is called, be continued to the next Term of the Court." These two sentences as amended appear as the third and fourth sen- tences of Original General Rule 36, in 1 How. xxxiii. They also appear as amended, in substantially the same language, as the third and fourth sen- tences of General Rule 36 of the Revision of December Term, 1858, 31 How. XV., the principal change being the omission in said "Revision of the word " twice " as contained in the fourth (last) sentence of Original General Rule 36 as amended. The first Clause of a General Rule numbered 8, promulgated at Decem- ber Term, 1866, 4 "Wall, vii., was as follows : "That all cases on the calendar, except cases advanced as herein- after provided, shall be heard when reached in the regular call of the docket, and in the order in which they are entered." The cases therein referred to as " advanced as hereinafter provided " are the cases referred to under Clauses 3, 5 and 8 of the present General Rule 36 in the History of each thereof respectively. "With the exception of some immaterial verbal alterations Clause 7 of the present General Rule 36 is the same as Clause 5 of General Rule 36 of the Revision of May 1st, 1871. For this Clause in the Revision of 1884, see 108 U. S. 589. FEDERAL STATUTES. See 709 Revised Statutes (Second Edition), p. 133, as amended by Act of Congress of 18th February, 1875, ch. 80, 18 Stat, at Large, 318, quoted under Clause 8, Rule 36, and the Acts of Congress cited thereunder. " Sec. 949. "When a State is a party, or the execution of the revenue 208 GENERAL EULES OF THE [Rule 26. laws of a State is enjoined or stayed, in any suit in a court of the United States, such State or the party claiming under the revenue laws of a State, the execution whereof is enjoined or stayed, shall be entitled, on showing sufficient reason, to have the cause heard at any time after it is docketed, in preference to any civil cause pend- ing in such court between private parties." Revised Statutes (Second Edition), § 949, p. 180; Act of Congress of 30tli June, 1870, ch. 181, 16 Stat, at Large, 176. AUTHORITIES. ESPECIALLY APPLICABLE TO THIS CLATTSB. 1. Where a case in relation to a writ of Habeas Corpus had been called at a prior day during the Term, and, neither party appearing, it was placed at the foot of the calendar ; and where application was made to advance it on a petition showing the nature of the case, and certain pe- culiar circumstances, as that the plaintiff in error was a British subject residing in England, had come to the United States to attend the Supreme Court at the previous Term, but was obliged to return home as the case was not reached, had again come to the United States to attend the Court, but did not arrive owing to an unusually long passage, until after the Court had met, and was then detained in New York by illness, and upon writing to the Clerk of the Court, found that the day before the letter was received by the Clerk the case was placed at the foot of the calendar, and where it was evident that from the number of cases standing before it, it could not be reached during the present Term unless it was given priority, the Supreme Court while indicating their disposition to bring the case to a speedy hearing, stated that at present the assignment of a particular day for the trial involved other and higher considerations than that of a mei'e departure from established Rules, as the Court would soon adjourn, and several important cases, some of which could not be con- tinued without producing much public inconvenience in several States, had already been specially assigned, and the order in which they were to be taken up announced from the bench. The Court therefore declined, under the circumstances, to make a new and unexpected arrangement in the order of business by which another case, not entitled to priority, is interposed out of its proper order. Barry v. Mercein, 4 How. 574. (January Term, 1846.) [See same case under Clause 1, Rule 36.] 3. Cases regularly on the calendar of the Supreme Court, whether brought there by writ of error or appeal, if within the jurisdiction of the Court, are required to be heard when reached in the regular call of the docket, and they cannot be heard before they are reached, except when they are advanced by the order of the Court. When !i case is within the jurisdiction of the Court, and there has been no defect in removing it Rule 26.] UNITED STATES SUPREME COURT. 209 from the subordinate Court, the Supreme Court 'will not dismiss the case on motion made out of the regular call of the docket. " TU Eutaw," 13 Wall. 136. (December Term, 1870.) 3. The Supreme Court cannot advance a cause for argument for reason that they may think it has no merits, for further argument may show the contrary. Amm-y v. Amory, 91 U. S. 356. (October Term, 1875.) 4. Soge v. Biehmmd, etc., B. R. Co., 93 U. S. 1. (October Term, 1876.) [For the substance of the decision in this case, see same case under Clause 5, Rule 26.] 5. Where both the appellants and appellees ask leave to have a cause advanced for a hearing, but only private interests are involved, the Su- preme Court sees no reason why it should have preference over other suits on the docket. Sage v. Cemtral B. B. Go., 93 U. S. 413 (419). (October Term, 1876.) 6. A case where, the Supreme Court at the previous Term having de- cided that it did not present questions which entitled it to a hearing in advance of others standing before it on the docket, application was made at the next Term to advance the case and hear it with another which had precedence on the docket. The defendant in error objected. The Court denied the motion, stating that "when a case is advanced to be heard with another which has precedence on the docket, the Rule is to re- quire the two to be argued as one," which is never departed from except under very peculiar circumstances; that the Supreme Court could not compel a party against his will to argue his case with another, and there- fore they had always denied motions of that kind when resisted, and that there were no such special circumstances in this case as made it proper to be advanced and heard separately from the other. Louisiana v. Hsw Orleans, 108 XJ. S. 531. (October Term, 1880.) [See same case under Clause 8, Rule 36.] 7. Although the questions involved may be of great public importance, that does not necessarily entitle the parties to a hearing in preference to others. Practically every case advanced postpones another that has been on the docket three years awaiting its turn in the regular call. Under these circumstances the Supreme Court deem it their duty not to take up a case out of its order, except for imperative reasons. Poindexter, White & Garter v. Cheenhow, 109 U. S. 63 (64). (October Term, 1888.) [See same case below under this Clause.] TJKDEK SECTION 949 OP THE REVISED STATUTES OP THE UNITED STATES. 8. A case where both parties moved to advance a cause on the ground, 14 310 GENERAL RULES OF THE [Rule 26. under the Act of Congress of June 30th, 1870, 16 Stat, at Large, 176, that it was a case where a State was a party. The Supreme Court denied the motion, stating that such motions are not granted as of course, even when both parties concur, as such an order, if improperly made, would prejudice the rights of other parties on the 'calendar, and that, in view of that consideration, it became necessary to determine whether the case was one where the parties, or either of them, were entitled to such pref- erence. The Supreme Court held that although the State was nominally a party, the proceedings being in the nature of a quo warranto, the re- lators were the real plaintiffs in interest, and not the State. Miller v. The State, 13 Wall. 159 (161-). (December Term, 1870.) 9. The Supreme Court denied a motion to advance, under the Act of June 30th, 1870, 16 Stat, at Large, 176, on the ground that the ordi- nances of municipal corporations levying taxes, cannot be classed as rev- enue laws of a State, but Congress seemed to have intended to give to the State the right to preference in hearing, when itself a party to a cause pending in the Supreme Court, and a like preference, when the ex- ecution of the revenue laws of a State is enjoined or suspended, to any party claiming under such laws ; that this preference is given plainly enough, because of the presumed importance of such cases to the ad- ministration and internal welfare of the States, and because of their dig- nity as equal members of the Union, but that the reasons for preference do not apply to municipal corporations, more than to railroad and many other corporations, and that nothing is shown which requires the ad- vancevnent of the cause on account of special and peculiar circumstances. Danenport Gity v. Dowa, 15 Wall. 390 (393). (December Term, 1872.) 10. In a suit where the motion to advance was made under an Act of Con- gress approved June 30th, 1870, entitled "An Act giving priority to cer- tain cases to which a State is a party in the Courts of the United States," 16 Stat, at Large, 176, and under Section 949 of the Revised Statutes of the United States which embodies the provisions of said Act, the Su- preme Court denied the motion to advance the cause under section 949 of the Revised Statutes of the United States, on the ground that the Statute is not imperative and does not provide that all cases in which the execu- tion of the revenue laws of a State is enjoined or stayed, shall have pref- erence over others upon the docket, but only such as, upon a showing, the Court is of the opinion should be heard out of their order, and the Court must determine what is ' ' sufficient reason " for this preference under all the circumstances of the case; that in the present crowded condition of the docket the Court must take care that injustice is not done to "private parties " by unnecessarily advancing causes affecting public interests, and to that end they lield that they, would not give preference to cases in which the execution of the revenue laws of a State was enjoined, unless it sufficiently appeared that the operations of the government of the State Rule 26.] UNITED STATES SUPREME COURT. 211 would be embarrassed by delay. Held, in this case, that a proper showing to this effect had not been made. In Its opinion the Court refers to the Illinois Kailroad Tax Cases (State Railroad Tax Cases), 93 U. S. 575, as having been heard out of their order at the previous Term, and stated that in these cases questions of great public interest were involved, and that the operations of the government of the State would be embarrassed so long as they remained undetermined in the Supreme Court, and that sufficient reason being shown, the cases were advanced. Eoge V. Richmond, etc., B. B. Go., 93 U. S. 1. (October Term, 1876.) [See same case under Clause 5, Rule 36.] 11. A motion to advance a suit against a Tax Collector was denied on the ground that neither of the parties was entitled to a hearing in pref- erence to others, under the provisions of Section 949 of the Revised Stat- utes, as the State of Virginia was not a party to either of the suits, and the execution of the revenue laws had not been enjoined or stayed; that this Clause related only to revenue cases ; that Clause 4 of General Rule 36 then in force related only to revenue cases and cases in which the United States were concerned, which also involved or affected some mat- ter of general public interest ; but that even such cases could not be ad- vanced except in the discretion of the Court, and on the motion of the Attorney-General. Poindexter, While <6 Carter v. Oreenhaw, 109 TJ. S. 63 (64). (October Term, 1883.) [See same case above under this Clause.] 8. Two or more cases, involving the same question, may, by the leave of the court, be heard together ; but they must be argued as one case. HISTORY. With the exception of the omission of. the word "also "before the word " involving " in this Clause, it is precisely the same as the fourth Clause of a General Rule numbered 3, promulgated at December Term, 1866, 4 Wall, vii., and as Clause 6 of General Rule 36, of the Revision of May 1, 1871. For this Clause in the Revision of 1884, see 108 U. S. 589. AUTHORITIES. 1. Where of two cases before the Supreme Court one, and the princi- pal case was not before the Court in such a form as would enable the Court to hear it at the then term, the Court ordered the second case to be continued to the next term, to be argued when the whole subject was 212 GENERAL KULES OF THE [Rule 26. ready for hearing. All the questions which were involved in both cases grew out of the same transaction, and depended upon the same facts, and it was impossible to decide one without disposing of the principal ques- tion in the other. The Court held that it would not be proper, where questions of so much interest were concerned, to hear a portion of them at one term and a portion at another. Both cases were ordered to be argued together. The United States v. Booth; AlleimnY. Booth, 18 How. 476 and 479. (December Term, 1855.) 3. When a case is advanced to be heard with another which has pre- cedence on the docket, the Rule is to require the two to be argued as one, and this Rule is never departed from, except under very peculiar circum- stances. As the Supreme Court cannot compel a party against his will to argue his case with another, they have always, heretofore, denied mo- tions of that kind when they are resisted, as was done in this case. The motion to advance was overruled. Louisiana v. New Orleans, 103 XJ. S. 531. (October Term, 1880.) [See same case under Clause 7, Rule 36.] 9. If, after a case has been passed under circumstances wMch do not place it at tlie foot of the docket, the parties shall desire to have it heard, they may file with the clerk their joint request to that efiect, and the case shall then be by him reinstated for call, ten cases after that under argument, or next to be called at the end of the day the request is filed. If the parties will not unite in such a request, either may move to take up the case, and it shall then be assigned to such place upon the docket as the court may direct. HISTORY. This Clause, with the exception of some immaterial verbal alterations, is the same as the first Clause of an amendment to Greneral Rule 36, as contained in the Revision of May 1st, 1871, promulgated January 18th, 1875, 20 Wall, xvi., which has been considered as being the first two sen- tences of Clause 7 of said General Rule 36 after such Revision. For this Clause in the Revision of 1884, see 108 U. S. 589. AUTHORITIES. BEFOBB THE AMENDMENT OF 1875. 1. A motion to reinstate a cause is addressed to the discretion of the Su- Rule 26.J UNITED STATES SUPREME COURT. 213 preme Court. Such a motion was denied in a case previously dismissed by written consent of counsel for both parties on April 30th, of one term, the Court continuing to sit till April 30th of the same term, the long vacation then intervening, the mandate having been sent down in May, and the mo- tion not having been tiled till November 7th, it appearing that the party moving was aware of the dismissal shortly after the order was made, and it being stated that counsel for the moving party acted without his knowledge or consent, and nothing being produced from the counsel who made the motion to dismiss. Held, that the silence of the party after the facts came to his knowledge must be held to amount to acquiescence and ratification, and the motion was denied, although the Attorney-General, who represented the other side, consented that the order of dismissal should be rescinded. • Deming's Appeal, 10 Wall. 251 (255). (December Term, 1869.) 2. See Hurley v. Jorm, 97 U. S. 318. (October Term, 1877.) [Under Clause 3, Eule 9, Rule 16, and Clause 1, Rule 36.] 8. See Ahord v. United States, 99 U. S. 593. (October Term, 1878.) [Under Rule 16, and Clause 1, Rule 36.] 4. A motion was made to use the printed record without paying the Clerk's fee for printing. The record was printed, but the Clerk did not furnish the necessary copies to the justices, because his fee for preparing the record for the printer and other services had not been paid by the appellant, though demanded. The Supreme Court Jield that while under Rule 10, if through the fault of a plaintifE in error or appellant, printed copies of the record are not furnished to the justices or the parties when required in the due prosecution of the cause, the writ on appeal will be dismissed for want of prosecution, unless sufficient cause be shown to the contrary, yet as this was the first time the question had arisen, and the practice had not theretofore been authoritatively an- nounced, it was ordei'ed, that, unless the appellant pay to the Clerk within twenty days from the entry of the opinion or order what was due him for this fee, the appeal be dismissed for want of prosecution ; that if the payment be made the Clerk should at once notify the op- posite party, and the cause might thereafter be brought on for hearing under paragraph 7 (present Clause 9), of Rule 26, as a case that had been passed under circumstances which did not place it at the foot of the docket. Steever v. Biehman, 109 U. S. 74. (October 38d, 1883.) [See same case under Clause 2, Rule 10.] 214 GENERAL RULES OF THE [Rule 27. 10. No stipulation to pass a case without placing it at the foot of the docket will be recognized as binding upon the court. A case can only be so passed upon application made and leave granted in open court. HISTORY. This Clause, with the exception of an immaterial verbal alteration, is the same as the second Clause of an amendment to General Rule 36, as contained in the Bevision of May 1st, 1871, promulgated Janu- ary 18th, 1875, 20 Wall, xvii., which has been considered as being the third and fourth sentences of Clause 7 of said General Rule 36 after such Revision. For this Clause in the Revision of 1884, see 108 U. S. 590. Rule 27. ADJOtTENMENT. The court will, at every term, announce on what day it will ad- journ at least ten days before the time which shall be fixed upon; and the court will take up no case for argument, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjournment. HISTORY. "With the exception of some immaterial changes, this General Rule is the same as Original General Rule 52, promulgated at January Teim, 1838, 12 Pet. viii., given as Rule 47 in 1 How. xxxvii., and as General Rule 28 of the Revision of December Term, 1858, 31 How. xv., and as General Rule 37 of the Revision of May 1st, 1871. For this Rule in the Revision of 1884, see 108 U. S. 590. FEDERAL STATUTES. KBLATING TO THE SESSIONS OP THE SUPREME COURT. " Sec. 684. The Supreme Court shall hold, at the seat of Government, one term annually, commencing on the second Monday in Octo- ber, and such adjourned or special terms as it may find nece^ary for tlie despatch of business ; and suits, proceedings, recognizances, and processes pending in or returnable to said court shall be tried, heard, and proceeded with as if the time of holding said sessions had not been hereby altered." Revised Statutes (Second Edition), § 684, p. 136 ; Act of Congi'ess of 39th April, 1802, ch. 31, sec. 1, 2 Stat, at Large, 156; Act of Congress of 23d July, 1866, ch. 210, sec. 1, 14 Stat, at Large, 209; Act of Congress of 24th January, 1878, ch. 64, 17 Stat, at Large, 419. EuLB 28.] UNITED STATES SUPREME COURT. 215 " Sec. 685. If, at any session of the Supreme Court, a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn the court from day to day for twenty days after said appointed time, unless there be sooner a quonim. If a quorum does not attend within said twenty days, the business of the court shall be continued over till the next appointed session; and if, during a term, after a quorum has assembled, less than that number attend on any day, the justices attending may adjourn the court from day to day until there is a quorum, or may adjourn without day." Eevised Statutes (Second Edition), § 685, p. 136; Act of Congress of a9th April, 1803, ch. 31, sec. 1, 3 Stat, at Large, 156; Act of Congress of aist January, 1839, ch. 13, §§ 1, 3, 4 Stat, at Large, 333; Act of Congress of 33d July, 1866, ch. 310, sec. 1, 14 Stat, at Large, 309. "Sec. 686. The justices attending at any term when less than a quorum is present, may, within the twenty days mentioned in the preceding section, make all necessary orders touching any suit, proceeding or process, depending in or returned to the coui't, pre- paratory to the hearing, trial, or decision thereof." Revised Statutes (Second Edition), § 686, p. 137; Act of Congress of 29th April, 1803, ch. 31, sec. 1, 3 Stat, at Large, 156; Act of Congress of 21st January, 1839, ch. 13, sec. 1, 4 Stat, at Large, 333. Bule 28. DISMISSING OASES IN VACATION. Whenever the plaintiff and defendant in a writ of error pending in this conrt, or the appellant and appellee in an appeal, shall in vacation, by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and speci- fiying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agreement filed ; but no mandate or other process shall issue without an order of the court. HISTORY. With the exception of some immaterial changes in its language, this General Rule is substantially the same as Original General Rule 64, pro- mulgated at December Term, 1857, 30 How. iv., and as General Rule 39 of the Revision of December Term, 1858, 31 How. xvi., and as General 216 GENERAL RULES OF THE [Rule 29. Rule 38 of the Revision of May 1st, 1871. For this Rule in the Revision of 1884, see 108 U. S. 590. [For table of Clerk's fees, see Clause 7, Rule 34.] AUTHORITIES. 1. This case came to the Supreme Court on appeal as the United States, appellant, and J. J. Eitudillo, appellee. On behalf of the United States and the appellee, an agreement under the then General Rule 39, was signed at the last vacation that the appeal should be dismissed, and the cause was dismissed by the clerk accordingly. Thereafter, au application was made by Thomas W. Mulford and others to vacate the stipulation; "which stipulation," the motion ran, "was made without their consent, or the consent of their attorney, or the consent of the District Attorney of the United States for the Northern District of California," &c. The motion was denied, it having been made by parties whose names did not actually appear in the record as having an interest in the case, although it was obvious that below there were some private owners contesting the case under cover of the Government name, and that such were there repre- sented by the same counsel who represented them on the motion. United StaUs v. Estudillo, 1 Wall. 710. (December Term, 1863.) Bule 29. SUPERSEDEAS. Supersedeas bonds in the circuit courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise se- cured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal ; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages, or where the property is in the custody of the marshal under admiralty process, as in case of capture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just dam- ages for delay, and costs and interest on the appeal. Rule 29.] UNITED STATES SUPREME COURT. 217 HISTORY. This Rule is in precisely the same language as General Rule 33, pro- mulgated at December Term, 1867, 6 Wall, v., and as general Rule 29 of the Revision of May 1st, 1871. For this Rule in the Revision of 1884, see 108 U. S. 590. FEDERAL STATUTES. " Sec. 1000. Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or by direction of any Department of the Government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeaa, and stays execution, or all costs only where it is not a supersedeas as aforesaid." Revised Statutes (Second Edition), § 1000, p. 187 ; Act of Congress of 34th September, 1789, ch. 30, sec. 33, 1 Stat, at Large, 84 ; Act of Con- gress of 13th December, 1794, ch. 3, 1 Stat, at Large, 404; Act of Con- gress 31st February, 1863, ch. 50, 13 Stat, at Large, 657; Act of Congress of 27th July, 1868, ch. 255, sec. 1, 15 Stat, at Large, 326. "Sec. 1001. Whenever a writ of error, appeal, or other process in law, admiralty, or equity, issues from or is brought up to the Su- preme Court, or a circuit court, either by the United States or by direction of any Department of the Governmfot, no bond, obliga- tion, or security shall be required from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs. In case of an adverse decision, such costs as by law are taxable against the United States, or against the party acting by direction as aforesaid, shall be paid out of the contingent fund of the Department under whose direc- tions the proceedings were instituted." Revised Statutes (Second Edition), § 1001, p. 187; Act of Congress of 31st February, 1863, ch. 50, 13 Stat, at Large, 657 ; Act of Congress of 37th July, 1868, ch. 255, sec. 1, 15 Stat, at Large, 336. " Sec. 1002. Writs of error shall be prosecuted from the final judg- ments of district courts acting as circuit courts to the Supreme Court in the same manner as from the final judgments of circuit courts." Revised Statutes (Second Edition), § 1002, p. 187. See Acts of Con- gress there cited. "Sec. 1003. Writs of flrror from the Supreme Court to a State court in cases authorized by law, shall be issued in the same manner, and under the same regulations, and shall have the same effect as if the 218 GENERAL RULES OF THE [Rule 29. judgment or decree complained of had been rendered or passed in a court of the United States." Eeviaed Statutes (Second Edition), § 1003, p. 187; Act of Congress of 34th September, 1789, ch. 30, sec. 35, 1 Stat, at Large, 85-86 ; Act of Congress of 5th February, 1867, ch. 38, sec. 3, 14 Stat, at Large, 386. " Sec. 1007. In any case where a writ of error may be a supersedeas, the defendant may obtain sucli supersedeas by serving the writ or [of] error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains, within sixty days, Sundays exclu- sive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward with the permission of a justice or judge of the appellate court. And in such cases where a writ of error may be a super- sedeas, executions shall not issue until the expiration of ten days." Revised Statutes (Second Edition), § 1007, p. 188; Act of Congress of 34th September, 1789, ch. 30, sec. 33, 1 Stat, at Large, 85; Act of Con- gress, of 1st June, 1873, ch. 255, sec. 11, 17 Stat, at Large, 198; Act of Congress of 18th February, 1875, ch. 80, 18 Stat, at Large, 318, amending the foregoing Section. "Sec. 1013. Appeals from the circuit courts and district courts act- ing as circuit .courts, and from district courts in prize causes, shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error." Revised Statutes (Second Edition), § 1013, p. 189; Act of Congress of 3d March, 1803, ch. 40, sec. 3, 3 Stat, at Large, 344; Act of Congress of 80th June, 1864, ch. 174, sec. 13, 18 Stat, at Large, 310. AUTHORITIES. PKIOR TO THE ADOPTION OP QBNEKAL BTTLB 33 IN 1867. 1. On an objection that it did not appear that the judge who granted the writ of error did, upon issuing the citation, take the bond required by Section 33 of the Judiciary Act, the Supreme Court said that they con- sidered that provision as merely directory to the judge, and that an omission did not avoid the writ of error, and that if any party be preju- diced by the omission, the Supreme Court could grant him summary relief, by imposing such terms on the other party as, under all the circumstances, might be legal and proper, and that the presumption of law was, that, until the contrary appears, every judge who feigns a citation has obeyed the injunctions of the act. Martin v. Hunter's Lessee, 1 "Wheat. 304 (361). (February Term, 1816.) Rule 29.] UNITED STATES SUPREME COURT. 219 3. Under the Judiciary Act of 1789, chap. 30, sec. 33, the security to be talsen from the plaintiff in error by the judge signing the citation on a writ of error, must be sufficient to secure the whole amount of the judg- ment, and is not to be confined to such damages as the Appellate Court might adjudge for delay. Ordered that the cause stand dismissed unless the plaintiff in error should give a bond with good and sufficient security in due form of law, within thirty days, to prosecute his writ with effect, and to answer all damages and costs if he fail to make his plea good, the amount of such security to be sufficient to secure the whole judgment in case the same shall be affirmed, and be not otherwise discharged. CatUtt V. BrodU, 9 Wheat. 553. (February Term, 1834.) 3. An admiralty appeal where the Supreme Court said it was true that the security required by law was not given until after the lapse of the five years, and that under such circumstances, the court might have disallowed the appeal, and refused the security, but that, as the court accepted it, it must be considered as a sufficient compliance with the order of the court, and tliat it had relation back to the time of the allowance of the appeal; that the mode of taking the security, and the time for perfecting it, were matters of discretion, to be regulated by the court granting the appeal, and that when its order was complied with, the whole had relation back to the time the appeal was prayed. " The Dos Hermanoi," 10 Wheat. 306 (311). (February Term, 1835.) 4. Objection was taken at the argument to the regularity of the ap- peal, it having been prayed by all the defendants against whom the decree was made, and the appeal bond having been given by one defend- ant only. The Supreme Court held that the objection, if it had been material in the cause, ought to have been taken by way of a preliminary motion to dismiss the appeal for irregularity, on account of the failure to give the proper appeal bond ; but that the question was not material in the case under the circumstances. MaTidemlle v. Siggs, 3 Pet. 483 (490). (January Term, 1839.) 5. An appeal dismissed because the transcript showed that no appeal bond was taken or approved by the judge who signed the citation in the case. Boyce v. Grundy, 6 Pet. 777. (January Term, 1833.) 6. A case where a writ of error, bond, and citation having been given in due season according to law, operated as a stay of execution, and ac- cordingly the Supreme Court granted a motion for a sfupersedeas as the issuing of execution by the court below was wholly irregular. StoektonY. Bishop, 3 How. 74. (January Term, 1844.) 7. It is not necessary that all the defendants should join in the appeal bond, though all must join in the appeal. It is sufficient if the appeal 220 GENERAL RULES OF THE [Rule 29. bond is approved by the court as satisfactory and complete security by whomsoever it might be executed. Broekett v. Brochett, 3 How. 338 (340). (January Term, 1844.) 8. The Supreme Court holdsthaX where an appeal is intended to operate as a supersedeas, the security given in the appeal bond must be equal to the amount of the decree, as it is in the case of a judgment at common law. Stafford v. The Union Bank of Louisiana, 16 How. 135. (December Term, 1853). 9. Where the appeal was prayed on the same day that the decree was entered, but the bond was not given until nearly a year afterwards, the Supreme Court held that an appeal must be perfected within ten days after a decree is entered, to operate as a supersedeas; and 'a motion for a supersedeas was accordingly denied. Adams V. Law, 16 How. 144 (148). (January Term, 1853.) Stafford v. Union Bank of Louisiana, 17 How. 375. (December Term, 1854.) 10. An appeal bond may be approved by a judge out of court. Hudgins v. Kemp, 18 How. 530. (December Term, 1855.) 11. In an action of ejectment, the plaintiff in error, on the allowance of the writ of error, gave security in the sum of $1,000, conditioned that he would prosecute his writ to effect, and answer all damages and costs if he failed to make his plea good. The defendant in error declared that the bond for $1, 000 was not sufflcien t to answer all the damages and costs if the plaintiff in error should fail to prosecute his writ to effect, and moved for an order requiring the plaintiff in error to give additional security in the sum of $85,000, or such other sum as the Supreme Court might deem sufficient to cover all damages which the defendant in error might suffer, if the writ of error should not be prosecuted with effect. The Supreme Court could find no precedent fof the motion and denied it, the motion being for the purpose of covering apprehended damages which the plaintiff below thought he might sustain by being kept out of his land. Bdberts v. Cooper, 19 How. 373. (December Term, 1856.) 13. Time was allowed within which to give a bond for costs to prevent a dismissal of an appeal where no appeal bond was given either as security for costs or supersedeas of execution at the time of granting the appeal. Ansoti-v. Blue Bidge R.B. Go., 33 How. 1. (December Term, 1859.) 13. On an appeal from a decree of foreclosure, the condition of the appeal bond was that "he shall diligently prosecute said appeal, and shall pay all costs and damages that may be awarded against him." The Supreme Court lisld that the appeal- from the decree of the court below directing a sale of the mortgaged premises did not operate to stay the pro- ceedings, as the bond given was simply a bond for costs. Orclmrd v. Hughes, 1 Wall. 78 (76). (December Term, 1863.) Rule 29.] UNITED STATES SUPREME COURT. 221 14. In a case where an appeal was taken from that part of the case covered by the final decree, and a certificate of division upon tlie residue, and where no appeal bond was given, the Supreme Court stated that the omission to file the bond, under the circumstances, might be corrected by filing a bond in conformity with the Act of Congress, as the peculiar state of tlie record and mode of bringing up the questions from the court below probably misled the solicitors. The appellant was given time to file a bond with the Clerk of the Court, to be approved by the proper oflElcer, and upon complying with which, the motion to dismiss the appeal for want of the bond be dismissed, otherwise granted. Brdbst V. Brdbst, 3 Wall. 96. (December Term, 1864.) 15. A case wherein the Supreme Court states, referring to sec. 22 of the Judicially ActJ that when a defendant sues out a writ of error and de- sires that it may operate as a supersedeas, he is required to do two things, and if either is omitted," he fails to accomplish his object: 1, He must serve the writ of error as aforesaid, within ten days, ' ' Sundays exclu- sive," after the rendition of the judgment; and 3, He must give bond with sureties to the satisfaction of the Court, for the benefit of the plaintiff, in a sum sufficient to secure the whole judgment in case it be affirmed. Security for costs only is required of the defendant when the writ of error sued out by him does not stay the execution, and he is not compelled, in any case, to make the writ of error a supersedeas, although it may be sued out within ten days after the judgment. United States v. Dashiel, 3 Wall. 688 (701). (December Term, 1865.) 16. A case where the Supreme Court stated that it was urged that the appeal bond was not approved by the judge. The Court, however, Tield that it was a fair inference, from the acts of the judge, in signing the ci- tation, and in witnessing the appeal bond, that he approved of the secur- ity; that the Judiciary Act did not, in terms, require that the judge shall put his approval of the bond in writing, nor can a writ of error be treated as a nullity because sufficient security is not given, and the Su- preme Court will take care, on application, that the rights of the defend- ant in error be not prejudiced by the omission, but will not dismiss the writ, except on failure to comply with such terms as it might impose. The motion to dismiss was denied. Davidson v. Lanier, 4 Wall. 447 (453). (December Term, 1866.) 17. Where the District Judge rfcfused to approve a supersedeas bond, on the ground that all the sureties were non-residents of the district, the Supreme Court, although not agreeing with the opinion of the District Judge that the fact that the non-residence of the sureties within the dis- trict was a sufficient reason for rejecting a bond, if it were in all other respects unobjectionable, declined to interfere by mandamus, but held that the case being properly in the Supreme Court by appeal, the Court might order that upon the filing of a bond in the sum of $50, 000, with the usual 222 GENERAL RULES OF THE [Rule 29. conditions, at any time within tliirty days, wliich should be approved by the Clerk of the Supreme Court, a supersedeas would issue, commanding a stay of proceedings on said decree until the further order of the Court. Ex parte The Milwaukee Bailroad Go., 5 Wall. 188. (December Term, 1866.) 18. A motion to dismiss an appeal because a bond for the prosecu- tion of the appeal was not filed within ten days after the decree, de- nied. The decree was placed in the hands of the clerk, November 15th, 1866. It was retained by the Judge for several days ; was entered by the clerk on the 20th, as of the 15th. The bond was filed on the 28th. The Supreme Coui't held that for the purposes of the appeal the decree must be regarded as having been passed on the 20th, and that the bond was filed in time ; but that if this were otherwise, and through mistake or ac- cident no bond, or a defective bond, had been filed, the Supreme Court would not dismiss the appeal, except on failure to comply with an order to give proper security within such reasonable time as it might prescribe. Security for prosecution should be taken by the judge on signing the citation ; but if this duty be omitted, or defectively performed, a remedy can be applied by the Supreme Court on motion. The bond filed was sufficient both for costs and to operate as a supersedeas. Seymour v. Freer, 5 Wall. 832. (December Term, 1866.) 19. When an appeal has been taken, and a supersed,eas bond given in time, and approved below, it is a matter of discretion with the Supreme Court to increase or diminish the amount of the bond, and to require ad- ditional sureties or otherwise as justice may require. Leave was given ap- pellants to withdraw the appeal bond on file, on filing one in smaller amount with good and sufficient sureties to the satisfaction of the Clerk of the Supreme Court. Riibber Co. v. Goodyear, 6 Wall. 153. (December Term, 1867.) 20. A motion was made to dismiss a writ of error on the ground that the bond for prosecution was not taken as required by law. The motion was denied, the Supreme Court stating that the law requires that the judge signing the citation shall take good and sufficient security; that this, doubtless, is equivalent to a provision that the judge shall approve the bond, but that no particular form of approval was required, that ap- proval might be inferred from the facts .of the transaction, and the Court thought it a fair, and almost necessary inference, from the fact of the sureties being sworn to their sufficiency by the judge who signed the cita- tion, that the security was taken by him as required by law. Silver v. Ladd, 6 Wall. 440. (December Term, 1867.) SUBSBQUBNT TO THE ADOPTION OF GENERAL RULE 32 IN 1867. 21. A bond is not essential to a valid appeal. It can be given in the Rule 29.] UNITED STATES SUPREME COURT. 223 Supreme Court, and cases have been brought to the Supreme Court where no bond was approved by the court below; and the Court has permitted the appellant to give bond in the Supreme Court. Citing Ex parte Mil- waulcee Railroad Co., 5 Wall. 188; Beymourv. Freer, 5 Wall. 833; " The Dos Sermanos," 10 Wheat. 306 (Authorities Nos. 17, 18, and 3 respectively, under Rule 39), and other cases. Edmonson v. BloomsUre, 7 Wall. 306 (311). (December Term, 1868.) 33. Sufficient bonds were given in each of these cases, which is neces- sary in every case in order that the appeal or tvrit of error may operate as a supersedeas, and stay execution on judgments removed into the Supreme Court for re-examination. What is necessary is, that the bond shall be sufficient ; and when it is desired that the appeal or writ of error shall operate as a supersedeas, the bond must bo given within ten days from the decree or judgment. SlaugJiUr Souse Oases, 10 Wall. 373. (December Term, 1869.) 33. A case where the appellee denied that the appeal operated as a supersedeas, because it was insisted that the bond given in the case was not in a sum sufficient to constitute indemnity for the whole amount of the decree. The Supreme Court said that where the judgment or decree is for the recovery of money, not otherwise secured, the indemnity must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal; but that in all suits where tlie property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages, indemnity is only required in an amount sufficient to secure the sum recovered for the use or detention of the property and the other incidental items, as in cases where the judgment or decree is for money; that what is neces- sary is that it be sufficient, and when it is desired to make the ap- peal a supersedeas, that it be filed within ten days from the rendering of the deci'ee, and the question of sufficiency must be determined in the first instance by the judge who signs the citation, but that after the allowance of the appeal that question as well as every other in the cause becomes cognizable in the Supreme Court; and it is therefore a matter of discre- tion with the Supreme Court to increase or diminish the amount of the bond, and to require additional sureties or otherwise, as justice may re- quire, and that' where a writ of error is not a supersedeas, a bond should only be in an amount sufficient for costs in case the judgment or decree is affirmed, and that as nothing appeared in the record to show that tlie indemnity was insufficient, and inasmuch as nothing appeared to the con- trary, the Supreme Court was of the opinion that it must be presumed that the amount was sufficient. French v. Shoemaker, 13 Wall. 86 (99). (December Term, 1870.) 34. It is the constant pi'actice of the Supreme Court to 'allow irregu- larities and defects in supersedeas bonds to be obviated by granting leave 224 GENERAL RULES OF THE [Rule 29. to the appellant or plaintiff in error to file a new bond within a reasonable time to be fixed by the Court in view of all the circumstances when the application is made. Bigler v. WalUr, 13 "Wall. 143. (December Term, 1870.) 25. A case where it did not appear from the record that any copy of the writ of error was lodged for the defendants in error in the Clerk's office of the Supreme Court, it being necessary that such a writ should be filed within ten days to make the writ of error a supersedeas ; nor did it appear when the bond was allowed aud filed. It was dated, but the allow- ance was not dated, nor was its filing noticed. SeU that the writ of error could not operate as a supersedeas. O'Dowd V. Bussea, 14 Wall. 402. (December Term, 1871.) 36. The Supreme Court, after stating that prior to the enactment of the 11th section of the Act of Congress of June 1st, 1872 (17 Stat, at Large, 198), the bond required in cases of appeals by the Act of Congress of September 34th, 1789 (1 Stat, at Large, 84), by the Act of Congress of March 3d, 1803 (3 Stat, at Large, 244), and by the 29th Rule of the Court, must be approved and filed within the ten days prescribed for the service of a writ of error, held, that by the Act of June 1st, 1873, it was ex- pressly declared that a supersedeas bond might be executed witkin sixty days after the rendition of the judgment, and later, with the permission of the judge; that it was not said when the writ of error should be served; that its issuance must, of course, precede the execution of the bond ; and that as the judge who signs the citation is still required to take the bond, the Supreme Court thinks it is sufficiently implied that it may be served any time before or simultaneously with the filing of the bond ; that the giving of the bond alone is made the condition of the stay, and the section is silent as to the writ. Telegraph Company v. Byser, 19 "Wall. 419. (October Term, 1873.) 27. In order that a writ may operate as a supersedeas, it is necessary that a copy of the writ should be lodged for the adverse party in the clerk's office where the record remains, and that the bond approved by the judge allowing the writ should also be filed there. Execution cannot issue upon the judgment until the expiration of ten days, exclusive of Sundays, from the entry thereof. If the writ of error and bond are filed before the expiration of the ten days an execution may issue, notwith- standing this. Under the act of June 1st, 1872 (17 Stat, at Large, 198), sec. 11, upon the filing of the bond within sixty days from the time of the entry of the judgment, a supersedeas maybe obtained; but such supersedeas stays proceedings only from the filing of the bond. It prevents further proceed- ings under an execution which has been issued, but does not interfere with what has already been done. Board of Commissioners v. Gorman, 19 "Wall. 661. (October Term, 1873.) Rule 29.] UNITED STATES SUPREME COURT. 225 38. A case in which the Supreme Court considered carefully the statutes and the prior authorities, and states that they all agree that if, after se- curity has been accepted, the circumstances of the case, or of the parties, or of the sureties upon the bond have changed, so that security which, at the time it was taken, was "good and sufficient," does not continue to be so, the Supreme Court may, upon proper application, so adjudge and order as justice may require. But upon facts existing at the time the security was accepted, the action of the justice within the statute and within the Eules of practice adopted for his guidance is final, and the Supreme Court will presume that when he acted every fact was pre- sented to him that could have been. So that while they agree that in a proper case, after an appeal or writ of error taken to the Supreme Court, they may interfere and require additional security upon a supersedeas, they will not attempt to direct or control the discretion of a judge or justice in respect to a case as it existed when he was called upon to act, except by the establishment of rules of practice. The action of the justice approving the bond was accordingly deemed conclusive. Jerome v. MeCarter, 21 Wall. 17 (31). (October Term, 1874.) 29. Under the law as it now stands, the service of a writ of error or the perfection of an appeal within sixty days, Sundays exclusive, after the rendering of the judgment or the passing of the decree complained of, is an indispensable prerequisite to a supersedeas, and it is not within the power of a justice or judge of the appellate Court to grant a stay of process on the judgment or decree if this has not been done. In this case, as the appeal was taken after the expiration of sixty days, the motion to vacate the supersedeas was granted. The statutes and authorities relating to the question of supersedeas are fully discussed in this case. Kitchen v. Randolph, 93 U. S. 86 (92). (October Term, 1876.) 30. A motion for a rule upon the plaintiff in error to iile a new superse- deas bond denied, as the showing made in the case did not satisfy the Supreme Court that the alleged insufficiency of the security taken when the writ of error was sued out, arose from any change in the circum- stances of the sureties since the acceptance and approval of the bond. Jerome v. MeCa/rter, 21 Wall. 17 (Authority No. 28, under Rule 29), ap- proved. Martin v. Hamrd Powder Co., 93 U. S. 302. (October Term, 1876.) 31. Where the court below entered an order allowing an appeal, but refused to accept a supersedeas bond, the appeal being allowed within the time prescribed by law, and where one of the Justices of the Supreme Court, after the term at which the decree appealed from was entered, ap- proved a bond to operate as a supersedeas when the same was filed in the office of the clerk of the court below, and it was thereafter filed, the Su- preme Court refused to vacate the supersedeas, stating that the refusal of the Circuit Court to accept a supersedeas bond when offered during the 15 226 GENERAL RULES OF THE [Rule 29. Term, did not necessarily take from a judge of that court, or a Justice of the Supreme Court, the power to approve one thereafter; and that they were satisfied that the appellants were entitled to their appeal, and that if taken in time, the supersedeas followed as a matter of law upon the giv- ing of the necessary security ; and that they ought not to set aside a super- sedeas, in a case like this, simply because the justice who approved the bond, and thus allowed the appeal which operated as a supersedeas, might have sent the appellants to another judge with their application, if he had known all the facts. Sage v. Hailroad Off., 96 U. 8. 712 (715). (October Term, 1877.) 33 . In a case where the supersedeas bond was apjjroved by the clerk of the court below, the Supreme Court stated that the security required upon writs of error and appeal must be taken by the judge or justice, and that he cannot delegate the power to the clerk. Accordingly, time was given to the appellant to file a supersedeas bond, properly executed and approved, within a certain time ; otherwise the cause would stand dis- missed. O'Heilly v. Edrington, 96 IT. S. 734. (October Term, 1877.) 33. To same effect as O'SeiUy v. Edrington (Authority No. 33, under Eule 39,) is National Bank v. Omaha, 96 II. S. 737. (October Term, 1877.) 34. In a case where the approval of a supersedeas bond was brought about by gross fraud and perjury, and the bond obtained in the most u-reg- ular way, tlie Supreme Court, although they approved of the ruling in Jerome v. McGarter, 31 Wall. 17 (Authority No. 38, under Eule 39), and were not inclined to depart from that ruling, stated that still in a case like the present, fraud is always open for inquiry, and that under the circumstances they had no hesitation in setting aside the ap- proval of the bond ; that an application to accept a new bond in place of an old one is addressed to the judicial discretion of the Court. Under the circumstances, the Supreme Court refused to accept a new bond, and granted the motion to vacate the supersedeas. Railroad Co. v. 'Schutte, 100 U. S. 644. (October Term, 1879.) 35. A motion to vacate a supersedeas denied, the conditions of the bond in the case being claimed to be defective. It was in these words : that the appellants " shall duly prosecute their said appeal with effect, and, moreover, pay the amount of costs and damages rendered and to be ren- dered in case the decree shall be affirmed in said Supreme Court." It was claimed that the language of the bond should have followed the language of Section 1,000, Rev. Stat, of the United States in these words: "That the plaintiff in error or appellant, shall prosecute his writ or appeal to ef- fect, and, if he fails to make his plea good, shall answer all damages and costs." Tlie Supreme Court held that the language of the bond as givett covered fully all the requirements of the statute. Oay V. Parpart, 101 U. S. 391. (October Term, 1879.) Rule 29.] UNITED STATES SUPREME COURT. 227 36. A bond on an appeal conditioned that we, the appellants, "will well and truly pay to the said defendants in said appeal and suit all such damages as they may recover against us in case it should be de- cided that the said appeal was wrongfully obtained." Held insufficient in form, either for the purposes of a supersedeas or an appeal, inasmuch as it contained no security for costs. The appeal was therefore dismissed, unless a new bond properly executed, and complying with the provis- ions of the law, be filed by a certain day. Seward v. Cortieau, 103 U. S. 161. (October Term, 1880.) 37. An appeal from the Supreme Court for the District of Columbia, where a final decree was rendered April 30th, 1873. An order was entered May 7tli, on the minutes of the court below, sitting in General Term, allow- ing an appeal to the Supreme Court, but no security was then taken, either for costs or to obtain a supersedeas. A justice of the Court be- low approved a bond, conditioned according to law for a supersedeas, on the sixtieth day after the rendition of the decree, and also approved a citation which was served, and afterward, the justice being satisfied that the bond he had taken and approved was insufficient and inadequate se- curity, ordered an additional bond with good and sufficient surety, to be duly approved within a certain time. The appellant presented an additional bond for approval within the required time, but it did not appear that it was ever accepted. The appellant fearing that the court below would proceed to carry its decree into efiect, asked the Su- preme Court for a writ of supersedeas. The Supreme Court denied the motion, holding that the supersedeas which resulted from taking the first bond was still in force and had never been vacated ; that the power of the justice over the appeal and the security, in the absence of fraud, was exhausted when he took the security and signed the citation, and that from that time the control of the supersedeas as well as the appeal was , with the Supreme Court. Draper v. Davis, 103 U. S. 370. (October Term, 1880.) 88. A case where the doctrine laid down in Jerome v. McGarter, 31 Wall. 17 (Authority No. 38, under Eule 39), was followed and approved. Williams v. Clafiin, 103 U. S. 753. (October Term, 1880.) 39. A decree was entered August 3d, 1879, and on the same day an ap- peal was allowed on the complainant's giving bond according to law. No bond was ever given under this allowance, and the case was not docketed in the Supreme Court at the October Teim, 1879. On August 1st, 1881, the circuit judge approved a bond for an appeal from the decree, which was filed the same day, and signed a citation which was served August 18th. On October 8th the Circuit Court entered an order allowing the appeal nwie pro tunc as of August 1st. Held, that the circuit judge by taking the security and signing the citation allowed the appeal, that no formal order 228 GENERAL RULES OF THE [Rule 29. of allowance was necessary, tliat the appeal was therefore taken in time, and that the order of October 8th was not required to give it efEect. Brandies v. Cochrane, 105 U. S. 262. (October Term, 1881.) 40. After the bond for appeal and the docketing of the cause in the Supreme Court, the jurisdiction of the court below is gone. From that time the suit is cognizable only in the Supreme Court. Keyaer v. Farr, 105 U. S. 365. (October Term, 1881.) 41. An appeal in a foreclosure suit where the supersedeas bond was con- ditioned that "if the said Omaha Hotel Gompany shall duly prosecute said appeal to efEect, and pay said Jeptha H. Wade and others [naming them], their executors, administrators, or assigns, for the use and deten- tion of the property covered by the mortgage in controversy in this suit, during the pendency of said appeal, and the costs of the suit, and just damages for delay, and costs and interest on said appeal, if it fails to make good its plea, this obligation shall be void ; otherwise to remain in full force and virtue." Held, that if the condition of an appeal bond or bond in error substantially conforms to the requirements of the statute it is sufficient to sustain it, though it contain variations of language ; and that if further conditions be superadded, the bond is not therefore invalid, so far as it is supported by the statute, but only as to the superadded condi- tions. The words "use and detention,'" therefore, in the bond were deemed surplusage. The authorities are considered at length in this case. Eountze v. Omaha Hotel Go., 107 U. S. 378 (396.) (October Term, 1882.) 43. A case where, as it appeared that a personal decree for money could not be given, and as the circumstances of the parties were not shown to have changed since the security was taken, the Supreme Court denied a motion for additional security on the supersedeas bond. Johnson v. Waters, 108 U. S. 4. (October Term, 1883.) 48. An appeal which the Supreme Court dismissed for want of jurisdic- tion. The appellee had not appeared, and was never served with the cita- tion. The decree was entered on the 14th of June, 1879, and at the foot of the entry was the following : ' ' Petitioner prays an appeal, which is granted upon bond and security being given, according to law, within thirty days." A copy of what purported to be an appeal bond, filed on the 3d of July, 1879, was found with the transcript, but there was no evidence that it was ever approved or taken as good and sufficient secu- rity by the court, or any justice or judge thereof. A commissioner of the Circuit Court certified that he knew the obligors to be good and re- sponsible for any costs that might accrue in the cause, but the Supreme Court held that this was not enough ; that section 1000 of the Revised Statutes requires tlie justice or judge signing the citation to take the secu- rity; that this power cannot be delegated to a clerk or to a commissioner; that if the appeal is allowed in open court the security may be taken by Rule 30.] UNITED STATES SUPREME COURT. 229 the court, and no citation is necessary ; but that if the security is not given until after the term is over, a citation must be issued and served. EasUns v. St. Louis & S. E. Bailway Co., 109 U. S. 106. (October 29th, 1883.) 44. A case where the decree appealed from was rendered October 30th, 1883, and an appeal was then prayed for and allowed. No bond of any kind was executed until May 10th, 1883, when one of the Justices of the Supreme Court granted a supersedeas and took the necessary security. The Supreme Court denied a motion to vacate the supersedeas because no appeal was perfected within sixty days after the rendition of the defcree appealed from and also to dismiss the appeal, and held, after reviewing the cases, that, in view of the rulings contained therein, if a court in session and i acting judicially allows an appeal, which is entered of record with- out taking a bond within sixty days after rendering a decree, a Justice or Judge of the Appellate Court may, in his discretion, grant a supersedeas after the expiration of that time, under the provisions of sec. 1007 of the Eevised Statutes; but that nothing contained in their opinion was to be construed as affecting appeals other than such as are allowed by the Court acting judicially and in Term time. Pmgh V. Dams, 110 U. S. 227 (239). (January 21st, 1884.) 45. Texas & Pacific Railway Co. v. Murphy, 111 U. 8. 488. (April 21st, 1884.) Bule 30. EEHEAEING. A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave granted during the term ; and must be printed, and briefly and dis- tinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines. • HISTOHT. This Rule has never either in its present form or in substance been formally adopted or published as a General Rule of the Supreme Court prior to the Revision of 1884. Reference is made in the case of Public Schools V. Walker, 9 Wall. 603 (604) (December Term, 1869), to the fact that Chief Jitsticb Taney, at the December Term, 1852, stated a Rule on the subject of rehearing in these words : "No re-argument will be granted in any case unless a member of the 230 GENERAL RULES OF THE [Rule 30. court who concurred in the judgment desires it, and when that is the case it will be ordered without waiting for the application of counsel." This Rule as so stated does not however appear as a Rule in 14 How- ard Reports, which covers December Term, 1852, nor in any subsequent Supreme Court Reports, but is substantially stated as the Rule governing re-hearings in Brown v. Aspden, 14 How. 25. For this Rule in the Revis- ion of 1884, see 108 U. S. 591. AUTHORITIES. PRIOR TO THB PROMtTLSATION OF THE RULE. See the Authorities cited under Clause 5, Sule 24, where applicaMe, and also 1. On an application for a re-hearing the Supreme Court stated that as the original decree had not been carried with execution, they thought it proper, under the peculiar circumstances of the case, to allow a rehear- ing, but that this was not to be drawn into precedent ; nor was any point previously determined to be brought again into litigation, unless the state of the facts respecting it should be allowed by the new evidence. Federal Court of Appeals. Miller v. The Ship "Resolution,^'' 2 Dallas, 19. (December Session, 1781.) 2. It is too late to question the jurisdiction of the Circuit Court after the cause has been sent back by mandate. Skillern''s Executors v. May''s Bxecutors, 6 Cranch, 267. (February Term, 1810.) [See same case under Clause 5, Rule 24.] 3. On the first day of February Term, 1812, counsel moved for and obtained a rule to show cause why the cause, which was decided at Feb- ruary Term, 1810, should not be reheard. The Supreme Court after- wards decided that the case would not be reheard after the term in which it had been decided. Hudson Y. Ouestier, 7 Cranch, 1. (February Term, 1812.) 4. A final judgment of the Supreme Court is supposed to be conclusive upon the rights which it decides, and'no statute has provided any process by which the Supreme Court can revise its own judgments. In several cases which have been formally adjudged in the Supreme Court, the same point was argued by counsel, and expressly overruled. It was solemnly held that a final judgment of the Supreme Court was conclusive upon the parties, and could not be re-examined. From motives of a public nature, however, the Supreme Court were willing to waive all objections, and to go back and re-examine the question of jurisdiction as it stood upon the record formerly in judgment. Martin v. Hunter's Lessee, 1 Wheat. 304 (355). (February Term, 1816.) Rule 30.] UNITED STATES SUPREME COURT. 231 5. The Circuit Courts have no power to set aside their decrees in equity, after tlie term at which they are rendered. Cameron, v. WBaberU, 3 Wheat. 591. (February Term, 1818.) 6. It is not deAied as a general rule that a fact which has been directly tried, and decided by a court of competent jurisdiction, cannot be con- tested again between the same parties, in the same or any other court, but the rule does not apply to points wliich come only collaterally under consideration, or are only incidentally considered, or can only be argu- mentatively inferred from tlie decree. Hophins y. Lee, 6 Wheat. 109. (February Term, 1821.) 7. The Supreme Court denied a motion for a rehearing, bemg of opin- ion that it was too late to grant a rehearing in a cause after it had been remitted to the court below, to carry into effect the decree of the Supreme Court, according to its mandate. Bfowder v. W Arthur, 7 Wheat. 58. (February Term, 1833.) [See same case under Clause 5, Rule 34.] 8. After a case has been dismissed by the Supreme Court for want of Jurisdiction, the pleadings having been technically defective, the Supreme Court will not, at a subsequent term, allow them to be amended, and the case to be reinstated on the docket. It would be, in effect, a reversal of the former decree, after the case had been finally disposed of in the Supreme Court. Jackson v. Ashton, 10 Pet. 480. (January Term, 1836.) [See same case under Clause 5, Rule 34.] 9. No principle is better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments, for errors of fact or law, after the term in which they have been rendered, ex- cept for clerical mistakes. After a mandate no rehearing will be granted. Ex parte Siblald v. The United States, 13 Pet. 488 (493). (January Term, 1838.) [See same case under Clause 5, Rule 34.] 10. A case which was affirmed by a divided court in December, 1853; and in February, 1853, the appellants filed a petition for a rehearing. In delivering the opinion of the Supreme Court, Me. Chief Jubticb Taney stated in substance, that the Court had been referred to the practice of the English Chancery Court in support of the application, and that the argument presupposed that the Supreme Coui't in cases in equity had adopted the rules and practice of the English chancery; that this was a mistake; that the English chancery is a court of original jurisdiction, and the Supreme Court was sitting as an appellate tribunal, and that it would be impossi- ble, from the nature and office of the two tribunals, to adopt the same rules of practice in both. The Court also stated that nothing could show this 232 GENERAL RULES OF THE [Rule 30. more strongly than the present application; that by the established rules of chancery practice, a rehearing, in the sense in which that term is used in proceedings in equity, cannot be allowed after the decree is enrolled ; that if the party desires it, it must be applied for before the enrollment ; but no appeal would lie until after it was enrolled, either actually, or by construction of law, and that, consequently, the time for a rehearing must have gone by before an appeal could be taken ; that in the House of Lords, in England, to which the appeal lies from the Court of Chancery, a rehearing is altogether unknown; that a reargument may be ordered, if the house desires it, for its own satisfaction, but that the chancery rules in relation to rehearing, in the technical sense of the word, are alto- gether inapplicable to proceedings on appeal. The Supreme Court further stated that there was nothing in the history of the English Court of Chancery to induce them to adopt rules in relation to rearguments, analogous to the chancery practice on applications for a rehearing; that according to the general practice of that court, one rehearing, where the appScation was sanctioned by the signatures of two counsel, was a matter of course ; that this facility of obtaining one rehearing, naturally led to others, and that in cases of interest or difficulty, two, or even three, re- hearings were sometimes allowed, under the special leave of the court, be- fore the decree was enrolled, and, consequently, before it could be removed to the House of Lords, and that the natural result of this practice was to produce some degree of carelessness in the first argument, and hesitation and indecision in the court. The mischievous results of the practice, as, for example, the enormous expenses, and the delay to other suitors, are pointed out by the Supreme Court, and they state that if they should adopt a practice analogous to that of the English chancery, they would soon find themselves in the same pre- dicameut, and they deem it safer to adhere to the Rule theretofore acted upon, viz., call for a reargument after judgment entered, where doubts are entertained which it is supposed maybe removed by further discussion at the bar, provided the order for reargument is entered at the same term; and the Rule of the Court is stated to be "that no reargument will be heard in any case after judgment is entered, unless some member of the Court who concurred in the judgment afterwards doubts the correctness of his opinion, and desires a further argument on the subject. And when that happens, the Court will, of its own accord, apprise the counsel of its wishes, and designate the points on which it desires to hear them." The application for a reargument was denied. Brovm v. Aspd^V; 14 How. 25 (36 & 37). (December Term, 1852.) [See same case under Rule 3.] 11. The Supreme Court cannot grant a motion for a rehearing of a cause which has been transmitted to the court below, and that too in a case where the application was made by counsel for the appellee on the' ground that he was prevented by sickness from attending the Court at the RuLB 30.J UNITED STATES SUPREME COURT. 233 time of the hearing, and -where the cause of absence was, by a failure in the mail, unknown to the Court at the time of the argument. As a brief of the counsel was filed, the Supreme Court stated that it was not prob- able that an oral argument would have changed the result. Peck V. Sanderson, 18 How. 42. (December Term, 1855.) 13. After a cause has been argued and decided, the Supreme Court will not hear a motion to change the decree based on affidavits taken to show facts which do not appear in the record. United States v. KnigMs Administrator, 1 Black, 488. (December Term, 1861.) 13. Where the Supreme Court of its own motion does not order a re- hearing, it will be proper for counsel to submit without argument, as was done in this case, a brief written or printed petition or suggestion of the point or points thought important. If upon such petition or suggestion any judge who concurred in the decision thinks proper 'to move for a re- hearing, the motion will be considered. If not so moved, the motion will be denied as a matter of course. The pptition in this case was denied, as no member of the Supreme Court who concurred in the judgment desired a reargument, and the Rule was stated to have been long since established and to have been stated by Chief Jtjsticb Taney at December Term, 1852, in the language given in the History of this Rule. Public Schools v. Walker, 9 Wall. 603. pecember Term, 1869.) 14. Repeated decisions of the Supreme Court have established the Rule that a final judgment or decree of that Court is conclusive upon the parties, and that it cannot be re-examined at a subsequent term, as there is no Act of Congress which confers any such authority. (Citing Shilleni's Executors V. May's Executors, 6 Cranch, 267. Authority No 2, under Rule 30.) Rehearings are never granted where a final decree has been entered and the mandate sent down, unless the application is made at the same term, except in cases of fraud (Citing Browder v. M^ Arthur, 7 Wheaton, 58. Authority No. 7, under Rule 30; " The Santa Maria," 10 Wheaton, 443. Authority No. 6, under Clauses, Rule 24), and in this case the Supreme Court refused to grant a rehearing after nine terms had elapsed, though perhaps in form the judgment which it was sought to have reheard was not quite regularly given. The Supreme Court has no power to review its deci- sions, whether in a case at law or in equity, and a final decree is as con- clusive as a judgment at law. (Citing Washington Bridge Go. v. Stewart, 3 How. 424 ; Ex pa/rte Sibbald, 13 Peters, 493. Authorities Nos. 16, 17, un- der Clause 5, Rule 34; Peck v. Sanderson, 18 How. 43. Authority No. 11, under Rule 80.) Monan v. Bradley, 13 Wall. 131 (129). (December Term, 1870.) [See same case under Clause 5, Rule 34.] 15. It is a well settled Rule of the Supreme Court, to which it has 234 GENERAL RULES OF THE [Rule 30. steadily adhered, that no rehearing is granted unless some member of the Court who concurred in the judgment, expresses a desire for it, and not then unless the proposition receives the support of a majority of the Court. For this reason, and for the better reason that the pressure of business in the Court does not permit it, tw reply to the petition whatever is allowed from the other side or given ly the Court. In this case the Supreme Court, while stating that the petition for a rehearing presented some features which required a departure from the rule, denied the petition, holding in efiect that a rehearing will not be granted on the ground that the record on which the case was heard was imperfect,' it appearing by an examination of the parts which, on the original hearing, were left out, but which were present on the motion, that they presented nothing but matter which did not aflect the merits of the case, or matter which only further established that which the Supreme Court in giving its decree considered to be already otherwise abundantly proved. Anibler v. Whipple, 33 Wall. 378. (October Term, 1874.) 16. A case wherein the Supreme Court states that a petition for rehear- ing after judgment, under the Rule promulgated in Public Schools v. Wallcer, 9 Wall. 603 (Authority No. 13 under Rule 30), cannot be filed except at the term at which the judgment was rendered ; that at the end of the term, the parties are discharged from further attendance on all causes decided, and that the Supreme Court has no power to bring them back, and after that they can do no more than to correct any clerical errors that may be found in the record of what they have done. (Citing Hudson V. Guestier, 7 Cranch, 1. Authority No, 8 under Rule 30.) The case of Brown v. Aspden, 14 How. 35 (Authority No. 10 under Rule 30), is there referred to as a case where the practice in respect to orders for rearguments was first formally announced, and where the Rule in this particular was not extended, for Mb. Chief Justice Tanbt was careful to say tliat the order for reargument might be made after judgment, pro- i)ided it was entered at the same term ; that the same limitation was main- tained in United States v. EnigWs Administrator, 1 Black, 488 (Authority No. 13 under Rule 30); that down to that time, such an order could be made on the application of some member of the Court who concurred in the judgment, and this continued until Public Schools v. Walker, 9 Wall. 603 (Authority No. 13 under Rule 30), when leave was given counsel to submit a petition to the same effect; and that in all other respects the Rule is now substantially the same as it was before this relaxation. Brools V. Railroad Company, 103 U. S. 107. (October Term, 1880.) Rules 31,32.] UNITED STATES SUPREME COURT. 235 Rule 31. FOEM OF FEINTED EEOOEDS AND BEIEFS. All records, arguments, and briefs printed for the use of the court must be in such form and size that they can be conveniently bound together, so as to make an ordinary octavo volume. HISTORY. The first and only Rule on the subject matter of this Rule prior to this General Rule was General Rule 31, promulgated December 1st, 1879, 100 U. 8. ix. It was in these words, viz. : " All records and arguments printed for the use of the court must be in such form and size that they can be conveniently cut and bound so as to make an ordinary octavo volume. After the first day of October, 1880, the clerk will not receive or file records or arguments intended for distribution to the judges that do not conform to the requii'ements of this rule. " For this Rule in the Revision of 1884, see 108 U. S. 591. AUTHORITIES. 1. General Rule 31 declared to relate only to the form and size of the printed records, briefs, and arguments, and to have nothing to do with the fee of the Clerk for printing the record. See under paragraph 13 of Clause 7, Rule 34. Bean v. Patteram, 110 U. S. 401. (February 4th, 1884.) Rule 32. WEITS OF EEEOE AND APPEALS TJNDBE SECTION 5 OF THE ACT OF MARCH 3d, 1875. 1. Writs of error and citations under section 5 of the Act of Ma,rch 3d, 1875, " to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from the State courts, and for other purposes," for the review of orders of the circuit courts dismissing suits, or remanding suits to a State court, must be made returnable within thirty days after date, and be served before the return-day. HISTORY. This Clause is in precisely the same language as Clause 1 of General 236 GENERAL RULES OF THE [Rule 32. Rule 33, promulgated January 16th, 1883, 104 U. S. ix., which was the first General Rule on the subject. For this Clause in the Revision of 1884, see 108 U. S. 591. FEDERAL STATUTES. " Sec. 5. That if, in any suit commenced in a circuit court or re- moved from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or contro- versy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or coUusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as jus- tice may require, and shall make such order as to costs as shall be just ; but the order of said circuit court dismissing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be." Act of Congress of 8d March, 1875, ch. 137, sec. 5, 18 Stat, at Large, 470 (473). AUTHORITIES. See the Authorities collected under Clauses 1, 3, 3, 4, 5, Rule 8, where applicable. 2. In all cases where a writ of error or appeal is brought to this court under the provisions of that act, it shall be the duty of the plaintiff in error or the appellant to docket the case and file the rec- ord in this court within thirty-six days after the date of the writ of error, or the taking of the appeal, if there shall be a term of the court pending at that time, and if not, then during the first six days of the next term. If default be made in this particular, pro- ceedings to docket and dismiss may be had as in other cases. HISTORY. This Clause, with the exception of some immaterial verbal alterations, is the same as Clause 3 of General Rule 83, promulgated January 16th, 1883, 104 U. S. ix., which was tlie first General Rule on the subject. For this Clause in the Revision of 1884, see 108 U. S. 591. Rule 32.] UNITED STATES SUPREME COURT. 237 FEDERAL STATUTES. See Act of Congress of 3d March, 1875, cb. 137, sec. 5, 18 Stat, at Large, 470 (473), quoted under Clause 1, Rule 33. AUTHORITIES. See the Authorities collected under Clauses 1 and 3, Rule 9, where applicable. 3. All such cases will be advanced on motion. The motion may be made ex parte. If granted, the party on whose motion the case shall have been advanced may have the case submitted on printed briefe, on serving, with a copy of his brief, on the adverse party, a notice of intention to submit, such as is required by Rule 6 to be given upon motions to dismiss writs of error and appeals, [As amended Slay 5th, 1884.] HISTORY. This clause was represented in General Rule 83 promulgated January 16th, 1883, 104 U. S. ix., which was the first General Rule on the subject, by Clause 4 thereof, which was in these words: " All such cases will be advanced on motion, and heard under the rules applicable to motions to dismiss." In the Revision of January 7th, 1884 (108 U. S. 593), Clause 3 of Gen- eral Rule 33 represented Clause 4 of General Rule 33 as promulgated Jan- uary 16th, 1883, and was in these words : " 3. All such cases will be advanced on motion, and heard under the rules prescribed by Rule 6 in regard to motions to dismiss writs of error and appeals." On May 5th, 1884, Clause 3 of General Rule 33 of the Revision of Jan- uary 7th, 1884 was amended so as to read as above stated. See 111 U. S. FEDERAL STATUTES. See Act of Congress of 3d March, 1875, ch. 137, sec. 5, 18 Stat, at Large, 470 (473) quoted under Clause 1, Rule 33. AUTHORITIES. See the Authorities collected under the appropriation Ghmsea of Rule 6, and of Rule 36 when applicable, also. 1. A motion to advance under Rule 33 an appeal from a decree on the 238 GENERAL RULES OF THE [Rule 32. merits in a suit removed from a State Court to a Circuit Court, was denied, the Supreme Court holding that Eule 33 applies only to oases which have been remanded by a Circuit Court to a State Court, or dismissed, under the authority of sec. 5, of the act of March 3d, 1875, c. 137. The motion to remand to the State Court had been denied, and the cause was regularly heard and decided by the Circuit Court. Also held, that motions un- der this Eule should be accompanied by an agreed statement of the case, or by such extracts from the record as would show that the case was one to which the Rule was applicable. Call V. Palmer, 106 U. S. 39. (October Term, 1882.) 3. A motion to advance a suit against a tax collector was denied, the Su- preme Court holding that Rule 83 applied only to writs of error and appeals brought to the Supreme Court under the provisions of sec. 5 of the Act of March 3d, 1875, that is to say, to writs of error and appeals from orders of the Circuit Courts remanding causes which have been removed from a State Court, and from orders dismissing suits because they do not really and substantially involve disputes or controversies properly within the jurisdiction of the Circuit Courts, or because the parties to the suits have been improperly made or joined for the purpose of creating a case cogni- zable under that act. These cases did not come under the Act. Neither were they entitled to be advanced merely because the questions involved may be of great public importance. Poindexter v. Oreenhow, White v. Same, Carter v. Same, 109 U. S. 63. (October 15th, 1883.) 4. As soon as sueh a case is docketed and advanced, tlie record shall be printed, unless the parties stipulate to the contrary, and file their stipulation with the clerk. HISTORY. With the exception of the words "and advanced," this Clause is the same as Clause 3 of General Rule 33, promulgated January 16th, 1883, 104 U. S. ix., which was the first General Rule on the subject. For this Clause in the Revision of 1884, see 108 U. S. 592. FEDERAL STATUTES. See Act of Congress of 3d March, 1875, ch. 137, sec. 5, 18 Stat, at Large, 470 (473) quoted under Clause 1, Rule 33. AUTHORITIES. See the Authorities collected under the appropriate clauses of Rule 10, where applicable. Rule 33.] UNITED STATES SUPREME COURT. . 239 5. In all cases where a period of thirty days is included in the times fixed by this rule, it shall be extended to sixty days in writs of error and appeals from California, Oregon, or Nevada. HISTORY. Witli the exception of an immaterial verbal alteration this Clause is the same as Clause 6 of General Bule 83, promulgated January 16th, 1883, 104 U. S. ix., which was the first General Rule ou the subject. For this Clause in the Revision of 1884, see 108 U. S. 593. FEDERAL STATUTES. See Act of Congress of 3d March, 1875, ch. 137, sec. 5, 18 Stat, at Large, 470 (473), quoted under Clause 1, Rule 33. AUTHORITIES. See the Authorities collected under Clause 4, Rule 9. Rule 33. MODELS, DLA.GEAMS, KST) EXHIBITS OF MATERIAL. All models, diagrams, and exhibits of material, placed in the cnstody of the marshal for the inspection of the court on the hearing of a case, must be taken away by the parties within one month after the case is decided. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the require- ments of this rule ; and if the articles are not removed within a rea- sonable time after the notice is given, he shall destroy them, or make such other disposition of them as to him may seem best. HISTORY. With the exception of some immaterial verbal changes this Rule is the same as General Rule 33, promulgated November 13th, 1882, 106 TJ. S. viii., which was the first General Rule on the subject. For this Clause in the Revision of 1884, see 108 U. S. 593. APPENDIX. FEDERAL STATUTES RELATING TO APPEALS FEOM THE COURT OF CLAIMS AND REGULATIONS ^ OP THE SUPREME COURT OF THE UNITED STATES RELATING TO SUCH APPEALS. FEDEEAL STATUTES KELATING TO APPEALS FROM THE COUET OF CLAIMS. Sec. 707. An appeal to the Supreme Court shall be aUowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court, as pro- vided in section one thousand and eighty-sLx. Revised Statutes (Second Edition), § 707, p. 133 ; Act of Congress of 3d March, 1863, ch. 93, §§ 5 and 11, 13 Stat, at Large, pp. 766, 767; Act of Congress of 35th June, 1868, ch. 71, sec. 1, 15 Stat, at Large, 75 ; Act of .Congress of 3d March, 1875, ch. 133, sec. 1, 18 Stat, at Large, 453. For Sec. 1086, Revised Statutes above referred to, see the section printed at length among the Federal Statutes immediately preceding the Rules of the Court of Claims. Sec. 708. All appeals from the Court of Claims shall be taken within ninety days after the judgment is rendered, and shall be aUowed under such regulations as the Supreme Court may direct. Revised Statutes (Second Edition), § 708, p. 133 ; Act of Congress of 8d March, 1863, ch. 93, §§ 5 and 11, 13 Stat, at Large, pp. 766, 767; Act of Congress of 35th June, 1868, ch. 71, sec. 1, 15 Stat, at Large, 75 ; Act of Congress of 3d March, 1875, ch. 133, sec. 1, 18 Stat, at Large, 453. EEGULATIONS OF THE SUPREME COURT BBLATIHQ TO APPEALS FEOM THE COUKT OF CLAIMS. ADOPTED IN 1866, AND AFTBBWABDS ADDED TO AND AMENDED. Ride 1. In all cases hereafter decided in the Court of Claims, in which, by the act of Congress, such appeals are allowable, they shall be heard in the Supreme Court upon the following record, and none other : 1. A transcript of the pleadings in the case, of the final judgment or decree of the court, and of such interlocutory orders, ruUngs, judgments, and decrees as may be necessary to a proper review of the case. 2. A finding by the Court of Claims of the facts in the case, established by the evidence, in the nature of a special verdict, but not the evidence establishing them ; and a separate statement of the conclusions of law upon said facts on which the court founds its judgment or decree. The finding of facts and conclusions of law to be certified to this court as part of the record. RiaZb 2. NOW OBSOLETE. In all cases in which judgments or decrees have heretofore been rethdered, when either party is by law entitled to an appeal, the party desiring it shall make application to the Court of Claims by petition for the allowance of such appeal. Said petition shall contain a distinct specification of the errors alleged to 246 KULES ON APPEALS FROM COURT OF CLAIMS. have been committed by said court in its rulings, judgment, or decree in the case. The court shall, if the specification of alleged error be correctly and accurately stated, certify the same, or may certify such alterations and modifications of the points decided and alleged for error as, in the judgment of said court, shall distinctly, fully, and fairly present the points de- cided by the court. This, with the transcript mentioned in Eule 1 (except the statement of facts . and law therein men- tioned), shall constitute the record on which those cases shall be heard in the Supreme Court. Rule 3. In aU cases an order of allowance of appeal by the Court of Claims, or the Chief Justice thereof in vacation, is essential, and the limitation of time for granting such appeal shaU cease to run from the time an application is made for the allowance of appeal. Rule 4. In all cases in which either party is entitled to appeal to the Supreme Court, the Court of Claims shall make and file their findings of facts and their conclusions of law therein, in open court, before or at the time they enter judgment in the case. Rule 5. In every such case, each party, at such time before trial, and in such form, as the court may prescribe, shall submit to it a request to find aU the facts which the party considers proven and deems material to the due presentation of the case in the finding of facts. Rule 6. Ordered, That Eule 1, in reference to appeals from the Court of Claims, be and the same is hereby made appUcable to ap- peals in aU cases heretofore or hereafter decided by that court under the jurisdiction conferred by the act of June 16, 1880, c. 243, " to provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction on the Court of Claims to hear the same, and for other pur- poses." (Adopted May 7, 1883.) II. FEDEEAL STATUTES KBLATING TO THE COURT OF CLA.IMS AND EULES OP THE COUET OF CLAIMS. JUDGES AND OFFICERS OF THE COURT OF CLAIMS. Chief Justice. CHARLES D. DEAKE, Appointed Decbmbeb 12, 1870. Judges. CHARLES C. ITOTT, WM. A. RICHARDSON", Appointed Febbuabt 33, 1865. Appointed JmrB 3, 1874. GLEJSnsri W. SCOFIELD, LAWRENCE WELDOIST, Appointed Mat 30, 1881. Appointed Notembeb 34, 1883. Chief Cleric. Assistant Glerh. Archibald Hopkins, John Raitdolph, Appointed January 1, 1873. Appointed Becbmber 3, 1867. Assistant Attorney-General. (Charged with the defence of the Government.) THOMAS SIMONS, AppODtTBD Mat 28, 1875. Assistants. John S. Blaie, Isaac S. Lyon, Appointed Deoembeb 2, 1873. Appointed Jult 1, 1880. John C. Fat, Andee Beewstee, Appointed Jult 12, 1880. Appointed June 2, 1882. Feank H. Howe, Geoege L. Douglass, Appointed Notembbb 6, 1883. Appointed August 16, 1883. Bailiff. Staek B. Tatloe, Appointed Messenger Mat 16, 1855; Bailiff June 6, 1863. Messenger. ElCHAED F. KeAENET, Appointed November 26, 1877. sessions of the couet of claims. There is one annual session of the Court of Claims held at the City of "Washington, beginning on the first Monday in December, and continuing as long as may be necessary for the prompt disposition of the business of the court. [Revised Statutes (Second Edition) § 1052, p. 194.J FEDEEAL STATUTES. BliLATDia TO THB COURT OF OL^IlVtS. SECTIONS OF THE EEVI8ED STATUTES WHICH AEE APPLICABLE. Sec. 188. In all suits brought against the United States in the Court of Claims founded upon any contract, agreement, or transaction with any Department, or any Bureau, officer, or agent of a Department, or where the matter or thing on which the claim is based has been passed upon and decided by any Department, Bureau, or officer authorized to adjust it, the Attorney-General shall transmit to such Department, Bureau, or officer, a printed copy of the petition filed by the claimant, with a request that the Department, Bureau, or officer, shall furnish to the Attorney-General all facts, circumstances, and evidence touching the claim in the possession or knowledge of the Department, Bureau, or officer. Such Department, Bureau, or officer shall, without delay, and within a reasonable time, furnish the Attorney-General with a full statement, in writing, of all such facts, information, and proofs. The statement shall contain a reference to or description of all such official documents or papers, if any, as may furnish proof of facts referred to in it, or may be necessary and proper for the defence of the United States against the claim, mentioning the Department, office, or place where the same is kept or may be procured. If the claim has been passed upon and decided by the Department, Bureau, or officer, the state- 'ment shall succinctly state the reasons and principles upon 250 FEDERAL STATUTES RELATING which such decision was based. In all cases where such de- cision was founded upon any act of Congress, or upon any sec- tion or clause of such act, the same shall be cited specifically ; and if any previous interpretation or construction has been given to such act, section, or clause by the Department, Bureau, or oflficer, the same shall be set forth succinctly in the state- ment, and a copy of the opinion filed, if any, shall be annexed to it. Where any decision in the case has been based upon any regulation of a Department, or where such regulation has, in the opinion of the Department, Bureau, or officer transmit- ting such statement, any bearing upon the claim in suit, the same shall be distinctly quoted at length in the statement. But where more than one case, or a class of cases, is pend- ing, the defence to which rests upon the same facts, circum- stances, and proofs, the Department, Bureau, or oificer shall only be required to certify and transmit one statement of the same, and such statement shall be held to apply to all such cases, as if made out, certified, and transmitted in each case re- spectively. Revised Statutes (Second Edition), § 188, p. 29 ; Act of Congress of 25th June, 1868, ch. 71, sec. 6, 15 Stat, at Large, 76. Sec. 707 and 708 Eevised Statutes (Second Edition), 132. See same among Federal Statutes under Regulations of the Supreme Court relating to appeals from the Court of Claims, page 244. Sec. 748. ISTo clerk, assistant, or deputy clerk, of any terri- torial, district, or circuit court, or of the Court of Claims, or the Supreme Court of the United States, or marshal or deputy marshal of the United States within the district for which he is appointed, shall act as a solicitor, proctor, attorney, or coun- sel in any cause depending in either of said courts, or in any district for which he is acting as such officer. Revised Statutes (Second Edition), § 748, p. 141 ; Act of Congress of I'eth January, 1873, ch. 36, sec. 1, 17 Stat, at Large, 411 ; See Act of Congress of 3d March, 1879, ch. 183, par. 3, 20 Stat, at Large, 410. Sec. 749. Whosoever violates the preceding section shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice, and be heard TO THE COURT OF- CLAIMS. 251 in his defence ; and in the case of a marshal or deputy marshal so acting, he shall be recommended by the court for dismissal from office. Revised Statutes (Second Edition), § 749, p. 141 ; Act of Congress of 16th January, 1873, cli. 36, sec. 3, 17 Stat, at Large, 411. Sec. 1049. The Court of Claims, established by the act of February twenty-four, eighteen hundred and fifty-five, shall be continued. It shall consist of a chief justice and four judges, "who shall be appointed by the President, by and with the ad- vice and consent of the Senate, and hold their offices during good behavior. Each of them shall take an oath to support the Constitution of the United States, and to discharge faith- fully the duties of his office, and shall be entitled to receive an annual salary of four thousand five hundred dollars, payable quarterly from the Treasury. Revised Statutes (Second Edition), § 1049, p. 194 ; Act of Congress of 34th February, 1855, ch. 133, sec. 1, 10 Stat, at Large, 613 ; Act of Congress of 3d March, 1863, ch. 93, sec. 1, 13 Stat, at Large, 765 ; Act of Con- gress of 8th May, 1873, ch. 140, sec. 13, 17 Stat, at Large, 85 ; Act of Congress of 3d March, 1881, ch. 130, sec. 1, par. 4, 31 Stat, at Large, 385. Sec. 1050. The Court of Claims shaU have a seal, with such devices as it may order. Revised Statutes (Second Edition), § 1050, p. 194 ; Act of Congress of 3d March, 1863, ch. 93, sec. 4, 13 Stat, at Large, 766. Sec. 1051. It shall be the duty of the Speaker of the House of Eepresentatives to appropriate such rooms in the Capitol, at "Washington, for the use of the Court of Claims, as may be necessary for their accommodation, unless it appears to him that such rooms cannot be so appropriated without interfering with the business of Congress. In that case, the court shall procure, at the city of Washington, such rooms as may be neces- sary for the transaction of their business. Revised Statutes (Second Edition), § 1051, p. 194 ; Act of Congress of 34th February, 1855, ch. 132, sec. 10, 10 Stat, at Large, 614 ; Joint Reso- lution of Congress of 1st July, 1879, No. 30, sec. 3, 31 Stat, at Large, 55. Sec. 1052. The Court of Claims shall hold one annual session, at the city of Washington, beginning on the first Monday in 252 FEDERAL. STATUTES RELATING December, and continuing as long as may be necessary for the prompt disposition of the business of the court. And any two of the judges of said court shall constitute a quorum, and may hold a court for the transaction of business. Eevised Statutes (Second Edition), § 1053, p. 194 ; Act of Congress of 34th February, 1855, ch. 133, sec. 11, 10 Stat, at Large, 614 ; Act of Congress of 6th August, 1856, ch. 81, sec. 1, 11 Stat, at Large, 30. The last Clause of the foregoing section was in effect amended by ch. 468 of Act of Congress of 33d June, 1874, 18 Stat, at Large, 353, which was in the following words : Be it enacted, dc, That any three judges of the Court of Claims shall 'constitute a quorum : Provided, That the concur- rence of three judges shall be necessary to the decision of any case. Sec. 1053. The said court shall appoint a chief clerk, an as- sistant clerk, if deemed necessary, a bailiff, and a messenger. The clerks shall take an oath for the faithful discharge of their duties, and shall be under the direction of the court in the per- formance thereof ; and for misconduct or incapacity they may be removed by it from oflBce ; but the court shaU report such removals, with the cause thereof, to Congress, if in session, or if not, at the next session. The bailiff shall hold his office for a term of four years, unless sooner removed by the court for cause. Revised Statutes (Second Edition), § 1053, p. 194 ; Act of Congress of 34th February, 1855, ch. 123, sec. 11, 10 Stat, at Large, 614 ; Act of Congress of 8d March, 1863, ch. 93, sec. 4, 12 Stat, at Large, 765. Sec. 1054. The salary of the chief clerk shall be three thou- sand dollars a year, of the assistant clerk two thousand dollars a year, of the bailiff fifteen hundred dollars a year, and of the messenger eight hundred and forty dollars a year, payable quarterly from the Treasury. Revised Statutes (Second Edition), § 1054, p. 194 ; Act of Congress of 34th February, 1855, ch. 123, sec. 11, 10 Stat, at Large, 614 ; Act of Congress of 3d March, 1863, ch. 93, sec. 4, 13 Stat, at Large, 765 ; Act of Congress of 7th June, 1870, ch. 134, 16 Stat, at Large, 148 ; Act of Con- gress of 13th July, 1870, ch. 351, sec. 3, 16 Stat, at Large, 250 ; Act of Congress of 8th May, 1872, ch. 140, sec. 1, 17 Stat, at Large, 82. Sec. 1055. The chief clerk shall give bond to the United States in such amount, in such form, and with such security as shall be approved by the Secretary of the Treasury. Revised Statutes (Second Edition), § 1055, p. 195 ; Act of Congress of 6th August, 1856, ch. 81, sec. 3, 11 Stat, at Large, 30. TO THE COURT OF CLAIMS. 253 Seo. 1056. The said clerk shall have authority, when he has given bond as provided in the preceding section, to disburse, under the direction of the court, the contingent fund vrhich may from time to time be appropriated for its use ; and his ac- counts shall be settled by the proper accounting officers of the Treasury in the same vray as the accounts of other disbursing agents of the Government are settled. Revised Statutes (Second Edition), § 1056, p. 195 ; Act of Congress of 6th August, 1856, ch. 81, sec. 3, 11 Stat, at Large, SO. Sec. 105T. On the first day of every December session of Congress, the clerk of the Court of Claims shall transmit to Congress a full and complete statement of all the judgments rendered by the court during the previous year, stating the amounts thereof and the parties in whose favor they were rendered, together with a brief synopsis of the nature of the claims upon which they were rendered. And at the end of every term of the court he shaU transmit a copy of its decisions to the heads of Departments ; to the Solicitor, the Comptrol- lers, and the Auditors of the Treasury ; to the Commissioners of the General Land-Office and of Indian Affairs ; to the chiefs of bureaus, and to other officers charged with the adjustment of claims against the United States. Revised Statutes (Second Edition), § 1057, p. 195 ; Act of Congress of 17th March, 1866, ch. 19, sec. 3, 14 Stat, at Large, 9 ; Act of Congress of 35th June, 1868, ch. 71, sec. 9, 15 Stat, at Large, 77. Sec. 1058. Members of either House of Congress shall not practise in the Court of Claims. Revised Statutes (Second Edition), § 1058, p. 195 ; Act of Congress of 3d March, 1863, ch. 93, sec. 4, 13 Stat, at Large, 765. Sec. 1059. The Court of Claims shall have jurisdiction to hear and determine the following matters : First. All claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any con- tract, expressed or implied, with the Government of the United States, and aU claims which may be referred to it by either House of Congress. Second. All set-offs, counter-claims, claims for damages, whether liquidated or unUquidated, or other demands whatso- 254: FEDERAL STATUTES RELATING ever, on the part of the Government of the United States against any person making claim against the Gi-overnment in said court. Third. The claim of any paymaster, quartermaster, com- missary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for rehef from re- sponsibility on account of capture or otherwise, while in the Une of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible. Fourth. Of all claims for the proceeds of captured or aban- doned property, as provided by the act of March 12, eighteen hundred and sixty-three, chapter one hundred and twenty, en- titled "An act to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States," or by the act of July two, eighteen hundred and sixty four, chapter two hundred and twenty-five, being an act in addition thereto : Provided, That the remedy given in cases of seizure under the said acts, by preferring claim in the Court of Claims, shall be exclusive, precluding the owner of any property taken by agents of the Treasury Department as abandoned or captured property in virtue or under color of said acts from suit at com- mon law, or any other mode of redress whatever, before any court other than said Court of Claims : {Provided, also, That the jurisdiction of the Court of Claims shall not extend to any claim against the United States grow- ing out of the destruction or appropriation of, or damage to, property by the Army or Navy engaged in the suppression of the rebellion.] Revised Statutes (Second Edition), § 1059, pp. 195, 196. See also the following Acts of Congress under the following paragraphs of the foregoing section respectively : First. Act of Congress of 24th February, 1855, ch. 122, sec. 1, 10 Stat, at Large, 613; Act of Congress of 22d Juno, 1874, ch. 393, sec. 2, 18 Stat, at Large, 192; Act of Congress of 3d March, 1875, ch. 149, 18 Stat, at Large, 481. Second. Act of Congress of 3d March, 18G3, ch. 92, sec. 3, 12 Stat, at Large, 765. TO THE COURT OF CLAIMS. 255 Third. Act of Congress of 9th May, 1866, ch. 75, sec. 1, 14 Stat, at Fourth. Act of Congress of 13th March, 1863, ch. 130, sec. 3, 13 Stat, at Large, 830 ; Act of Congress of 3d July, 1864, ch. 335, sec. 3, 3, 13, Stat, at Large, pp. 375, 376; Act of Congress of 37th July, 1868, ch. 376, sec. 3, 15 Stat, at Large, 343 ; Act of Congress of 18th February, 1875, ch. 80, 18 Stat, at Large, 318. See also the following Acts of Congress and Joint Resolutions applicable to this section, and relating to the jurisdiction of the Court of Claims, and which are not incorporated in the Second Edition of the Revised Statutes: Act of Congress of 4th July, 1864, ch. 340, 13 Stat, at Large, 381; Joint Resolution of Congress of 18th June, 1866, No. 50, 14 Stat, at Large, 360; Act of Congress of 19th February, 1867, ch. 57, 14 Stat, at Large, 397 ; Joint Resolution of Congress of 33d December, 1869, No. 5, 16 Stat, at Large, 368; Joint Resolution of Congress of 3d March, 1871, Ko. 50, 16 Stat, at Large, 600; Act of Congress of 3d March, 1875, ch. 133, par. 3, sec. 1, 18 Stat, at Large, 453; Act of Congress of 19th June, 1878, ch. 319, 30 Stat, at Large, 171 ; Act of Congress of 1st March, 1879, ch. 115, 30 Stat, at Large, 334; Act of Congress of 16th June, 1880, ch. 343, 21 Stat, at Large, 284; Act of Congress of 3d March, 1883, ch. 116, 22 Stat, at Large, 485. For the convenience of the profession the following Acts and Joint Resolutions of Congress which are referred to above under § 1059 of the Revised Statutes are quoted in fuU : ACT OF JTJLT 4tH, 1864. Be it enaeted, etc., That the jurisdiction of the Court of Claims shall not extend tO; or include any claim against the United States growing out of the destruction or appropriation of, or damage to, property by the Army or Navy, or any part of the Army or Navy, engaged in the sup- pression of the rebellion, from the commencement to the close thereof. Sec. 3. That all claims of loyal citizens in States not in rebellion, for quartermasters' stores actually furnished to the Army of the United States, and receipted for by the proper officer receiving the same, or which may have been taken by such officers without giving such receipt, may be submitted to the Quartermaster-General of the United States, ac- companied with such proofs as each claimant can present of the facts in his case ; and it shall be \h.e duty of the Quartermaster-General to cause such claim to be examined, and, if convinced that it is just, and of the loyalty of the claimant, and that the stores have been actually received or taken for the use of and used by said Army, then to report each case to the Third, Auditor of the Treasury, with a recommendation for settlement. 256 FEDERAL STATUTES RELATING Sbc. 3. That all claims of loyal citizens in States not in rebellion, for subsistence actually furnished to said Army, and receipted for by the proper officer receiving the same, or which may have been taken by such officers without giving such receipt, may be submitted to the Commis- sary-General of Subsistence, accompanied with such proofs as each claim- ant may have to oiler; and it shall be the duty of the Commissary-Gen- eral of Subsistence to cause each claim to be examined, and, if convinced that it is just, and of the loyalty of the claimant, and that the stores have been actually received or taken for the use of, and used by said Army, then to report each case for payment to the Third Auditor of the Treas- ury with a recommendation for settlement. Act of Congress of July 4th, 1864, ch. 340, 13 Stat, at Large, 881. JOINT BESOIiTJTION OF JUNE 18TH, 1866. Be it resolved, c6c.. That the provisions of the act of Congess of July fourth, eighteen hundred and sixty-four, entitled ' ' An act to restrict the jurisdiction of the Court of Claims, and for other purposes," be, and the same are hereby, construed to extend to the counties of Berkeley and Jef- ferson, of the State of West Virginia. Joint Eesolution of Congress of 18th June, 1866, No. 50, 14 Stat, at Large, 360. ACT or FEBRTfABT 19TH, 1867. Be it enacted, &c., That the provisions of chapter two hundred and forty of the acts of the Thirty-eighth Congress, first session, approved July fourth, eighteen hundred and sixty-four, shall not be construed to authorize the settlement of any claim for supplies or stores taken or fur- nished for the use of, or used by, the armies of the United States, nor for the occupation of, or injury to, real estate, nor for the consumption, ap- propriation, or destruction of, or damage to, personal property, by the military authorities or troops of the United States, where such claim originated during the war for the suppression of the Southern rebellion, in a State, or part of a State, declared in insurrection by the proclamation of the President of the United States, dated July first, eighteen hundred and sixty-two, or in a State which by an ordinance of secession attempted to withdraw from the United States Government: Provided, That nothing herein contained shall repeal or modify the ef- fect of any act or joint resolution extending the provisions of the said act of July fourth, eighteen hundred and sixty-four, to the loyal citizens of the State of Tennessee, or of the State of West Virginia, or any county therein. Act of Congress of 19th February, 1867, ch. 57, 14 Stat, at Large, 397. ACT OF JULY 27th, 1868. Be it enacted, &c., That all the provisions of section eight of the act of TO THE COURT OF CLAIMS. 257 July twenty-eight, eighteen hundred and sixty-six, entitled, "An act to protect the revenue, and for other purposes," {a) and the forms and modes by that section and the twelfth section of the act of March three, eighteen hundred and sixty-three, (J) therein referred to, pre- scribed for prosecuting suits, withholding executions, and paying judg- ments against officers of the United States, or other persons engaged in executing the acts relative to captured and abandoned property, shall extend and be applied to all suits and proceedings (except those in behalf of the United States) which have been brouglit, or may here- after be brought, against any officer or agent of the Government, civil or military, for acts done during the rebellion while acting by virtue or under color of his' office or employment; and every defendant in such suit or proceeding having made full defence thereto, and having notified the Attorney-General of the United States to appear and de- fend the same, shall be entitled to the full benefit and protection pro- vided in said section for officers and agents of the Government engaged in the collection of the public revenue; and any defendant being aggrieved by any order or direction, certificate, ruling, or judgment of any court made or had in any such proceeding, may except thereto and appeal therefrom to the Supreme Court of the United States, and have the questions arising there heard and determined. Sec. 2. That no action or suit shall be maintained in any court of the United States, or of any State tliereof, in the name or in the behalf or in- terest of any alien, against the United States, or any person, for or on ac- count of any act done or omitted to be done by such person as an officer or agent of the United States, in the administration of the act of Con- gress entitled "An act to provide for the collection of abandoned prop- erty and for the prevention of frauds in insurrectionary districts within the United States," approved March twelve, eighteen hundred and sixty- three, or of the act of Congress entitled "An act in addition to the sev- eral acts concerning commercial intercourse between loyal and insurrec- tionary States, and to provide for the collection of captured and aban- doned property, and the prevention of fraud in States declared in insurrection," approved July two, eighteen hundred and sixty-four, or in virtue or under color of the acts of Congress aforesaid, or any other acts of Congress relative to the said insurrectionai'y States, or to persons or property therein ; and to any action or suit which may have been hereto- fore, or shall hereafter be, instituted by any alien against the United States, or any such person as aforesaid, on account of any act done or omitted to be done, as aforesaid, the defendant may and shall plead or al- lege in bar thereof, that such act was done, or omitted to be done, in the administration of one of the acts of Congress aforesaid, or in virtue or under color thereof, and such plea or allegation, if the fact be sustained (o) The provisions of the act here referred to may be f onnd in Revised Statutes, § 629, par. 18, §§ 643, MB, 646, 934, (6) The section here referred to is incorporated in Bevised Statutes, § 989. 17 258 FEDEEAL STATUTES RELATING by the proof, shall be, and shall be deemed and adjudged in law to be, a complete and conclusive bar to any such suit or action : Provided, That this section shall not be construed so as to deprive aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such Govern- ment in its courts, of the privilege of prosecuting claims against the United States in the Court of Claims, as now provided by law. Sec. 3. That it is hereby declared to have been the true intent and meaning of tlie act approved March twelve, eighteen hundred and sixty- three, entitled ' ' An act to provide for the collection of abandoned prop- erty and for the prevention of frauds in insurrectionary districts within the United States," that the remedy given in cases of Seizure made under said act, by preferring claim in the Court of Claims, should be exclusive, precluding the owner of any property taken by the agents of the Treasury Department as abandoned or captured property in virtue or under color of said act from suit at common law, or any other mode of redress what- ever, before any court or tribunal other than said Court of Claims ; And in all cases in which suits of trespass, replevin, detinue, or any other form of action may have been brought and are now pending, or shall hereafter be brought against any person for or on account of private property taken by such person as an officer or agent of the United States, in virtue or under color of the act aforesaid, or the act approved July second, eighteen hundred and sixty-four, entitled ' ' An act in addition to the several acts concerning commercial intercourse between loyal and in- surrectionary States, and to provide for the collection of captured and abandoned property, and the prevention of frauds in States declared in insurrection," the defendant may and shall plead or allege in bar thereof that such act was done or omitted to be done by him as an officer or agent of the United States in the administration of one of the acts of Congress aforesaid, or in virtue or under color thereof, and such plea or allegation, if the fact be sustained by the proof, shall be, and shall be deemed and adjudged in law to be, a complete and conclusive bar to any such suit or action : Provided, however. That no judgment, recovered in accordance with this act, shall be paid by the United States, unless the amount received by the defendant as the proceeds of the transaction which was the foundation of the suit shall have been paid into the Treasury, except upon an appropri- ation duly made therefor after a full examination of the claim upon its merits. Act of Congress of 37th July 1868, ch. 376, 15 Stat, at Large, 343. JOINT EB80LUTI0NS OF DECEMBBK 33d, 1869, AND OF MABCH 3d, 1871. Be it resolved, &e.. That the act of Febniary nineteenth, eighteen hun- dred and sixty-seven, entitled "An act to declare the sense of an act entitled 'An act to restrict the jurisdiction of the Court of Claims,'" and so forth, and so forth, shall not apply to nor be construed to debar the TO THE COURT OP CLAIMS. 259 settlement of claims for steamboats or other vessels taken without consent of the owner, or impressed into the military service of the United States, during the late war, in States or parts of States declared in insurrection : Provided, That the claimants were loyal at the time their claims orio-. inated, and remained loyal thereafter, and were residents of loyal States, and such steamboats or other vessels were in the insurrectionary districts by proper authority, viz. : charter, contract, impressment, or in conformity with niles or regulations established by the Secretary of the Treasury and approved by the President of the United States, or in conformity with the laws of the United States. Joint Resolution of Congress of 33d December, 1869, No. 5, 16 Stat, at Large, 368, as amended by Joint Resolution of Congress of 3d March, 1871, No. 50, 16 Stat, at Large, 600. ACT OF JUNE 16th, 1880, DISTRICT CLAIMS ACT. [Section 1.] That the jurisdiction of the Court of Claims is hereby extended to, and it shall have original legal and equitable jurisdiction of, All claims now existing against the District of Columbia arising out of contracts made by the late Board of Public Works, and extensions thereof made by the Commissioners of the District of Columbia, And such claims as have arisen out of contracts made by the District Commissioners since the passage of the act of June twentieth, eighteen hundred and seventy-four, And of all claims for work done by the order or direction of the said Commissioners, and accepted by them for the use, purposes or benefit of the said District of Columbia, and prior to the fourteenth day of March, eighteen hundred and seventy-six ; And all certificates of the auditor of said Board of Public Works, All certificates issued by the auditor and comptroller of the District of Columbia, All claims based on contracts made by the Levy Court, All sewer certificates, all sewer taxes not heretofore converted into three-sixty-five bonds, All measurements made by the engineers of said District, of work done under contracts made since February twenty-first, eighteen hundred and seventy-one, for which no certificates have been issued to and received by the contractor or his assignee which certificates shall be prima facie evi- dence of the amount of work done. All claims based upon contracts made by the Board of Public Works for which no evidence of indebtedness has been issued. Said Court of Claims shall have the same power, proceed in the same manner, and be governed by the same rules, in respect to the mode of hearing, adjudication, and determination of said claims, as it now has in relation to the adjudication of claims against the United States : Provided, Said court may make such additional rules as may be neces- sary to save costs and prevent delays in the prosecution of such claims. 260 FEDERAL STATUTES RELATING When the trial of any claim against the District of Columbia, prose- cuted under the provisions of this act, involves the taking and stating of a long account, or the making of measurements or computations involving the services of engineers, said court shall have power to award a reference to a competent referee to take and state such account, or to the engineer commissioner of the District to make and report such measurements and computations ; And said referee or engineer shall report to the court the evidence taken by him for the information of said court, and any such referee shall be allowed such compensation for his services as the court may determine, not exceeding ten dollars per day for time actually employed, to be paid on the order of the court by the Secretary of the Treasury and charged to the account of the District of Columbia. Sec. 3. All such claims against the District of Columbia shall, in the first instance, be prosecuted before the Court of Claims by the contractor, his personal representatives or his assignee, in the same manner and sub- ject to the same rules, so far as applicable, as claima against the United States are prosecuted therein, or to such other rules as the court shall prescribe. In any case if before trial either party requests in writing a finding of facts by the court, there shall be the same right of appeal, either by the District of Columbia or by the claimant, and subject to the same rules and regulations, as are prescribed by law for appeals on behalf of the United States or claimants against the United States from the judgments of the Court of Claims : Provided, That the prosecution of all such claims shall be commenced in the Court of Claims by the filing of the petition of the claimant, as re- quired by the rules and practice of said court, within six mouths from the passage of this act ; and all such claims against the District of Columbia now existing, and not so filed within said time, shall be forever barred, except in cases of claims owned and held by persons under legal disabili- ties, in which case such claims shall be in like manner barred unless com- menced as aforesaid within six months after the expiration of such disability • Provided,, That all certificates, measurements, or other evidence of in- debtedness, in the custody of the Commissioners of the District of Colum- bia, shall be deposited with the Court of Claims, upon the application of any claimant. When the validity of a number of claims depends substantially upon a like state of facts, they may be brought before the court in one petition in which all parties are joined, and may be tried together under such rules as the court may prescribe, and such judgments may be entered therein as the court may determine ; and cases of like kind may be consolidated and tried together whenever the court so orders. Sec. 3. The Attorney-General of the United States shall have authority, and it shall be his duty, to defend the District of Columbia against TO THfi COURT OF CLAIMS. 261 all such clainls against said District of Columbia prosecuted in said Court of Claims, and on appeal, in like manner as he is now by law required to defend the United States in said court, with the same power to interpose counter claims and offsets against claims and defences for fraud practised or attempted and all other legal defences, and with like power of appeal as in cases against the United States tried in said court. Sec. 4. All laws now in force relating to prosecutions of claims against the United States in the Court of Claims shall apply, as far as applicable, to the prosecution, practice, hearing, and determination of claims against the District of Columbia authorized to be prosecuted under the provisions of this act : Provided, That motions for new trials shall be made by either party within twenty days after the rendition of any judgment : And provided further, That in the trial of such cases no person shall be excluded as a witness because he or she is a party to or interested in the same. Sec. 5. If no appeal be taken from the judgment and determination of the Court of Claims in cases provided for in this act within the term lim- ited by law for appealing from the judgments of said court, and in all cases of final judgments by the Court of Claims, or on appeal by the Supreme Court where the same are afllirmed in favor of the claimant, the sum due thereby shall be paid, as hereinafter provided, by the Secretary of the Treasury : Provided, That no payment shall be made except upon the presentation to the Secretary of the Treasury of a copy of said judgment certified by the clerk of the Court of Claims, and signed by the chief justice, or, in his absence, by the presiding judge of said court. , Sec. 6. The Secretary of the Treasury is hereby authorized to demand of the sinking-fund commissioner of the District of Columbia so many of the three-sixty-five bonds authorized by act of Congress approved June twentieth, eighteen hundred and seventy-four, and acts amendatory thereof, as may be necessary for the payment of the judgments ; and said sinking-fund commissioner is hereby directed to issue and deliver to the Secretary of the Treasury the amount of three-sixty-five bonds required to satisfy the judgments ; which bonds shall be received by said claimants at par in payment of such judgments, and shall bear date August first, eighteen hundred and seventy-four, and mature at the same time as other bonds of this issue : Provided, That before the delivery of such bonds as are issued in pay- ment of judgments rendered as aforesaid on the claims aforesaid, the coupons shall be detached therefrom from the date of said bonds to the day upon which such claims were due and payable ; a6d the gross amount of such bonds heretofore and hereafter issued shall not exceed in the ag- gregate fifteen millions of dollars : Provided, The bonds issued by authority of this act shall be of no more binding force as to their payment on the Government of the United States 262 FEDERAL STATUTES RELATING than the three-sixty-flve bonds issued under authority of the act of June twentieth, eighteen hundred and seventy-four. Sbo. 7. In all cases prosecuted under the provisions of this act it shall be the duty of the claimant, after the commencement of said actions, to prosecute them in said court diligently ; And after any issue of law or of fact shall be joined in any case, the At- torney-General shall have power to place the same on the trial calendar of said court for trial ; And in all cases when any case has been reached in its order on the calendar, and the trial thereof has been unreasonably delayed by the claimant, the said court may, on motion of the Attorney-General, on notice to the claimant, or his counsel, attorney, or solicitor, dismiss said claim ; and such dismissal or final judgment on any claim shall be a con- clusive bar against any further prosecution of such claim before any court or tribunal whatsoever. The Secretary of the Treasury shall pay, according to the provisions of this act, the said judgments from time to time as they may be presented. Sec. 8. No claim shall be presented to, or considered by the Court of Claims under the provisions of this act which was rejected by the Board of Audit. Sec. 9. That the Treasurer of the United States as ex-officio sinking- fund commissioner of the District of Columbia is hereby authorized and directed to redeem the outstanding certificates of the late Board of Audit, created by the act approved June twentieth, eighteen hundred and seventy-four, with the interest accrued on said certificates by issuing and delivering to the owners or holders of such certificates, bonds of the District of Columbia as, provided in section seven of the act approved June twentieth, eighteen hundred and seventy-four, entitled, "An act for the government of the District of Columbia, and for other purposes," and acts amendatory thereof, said bonds to bear the same date, same rate of interest, and interest and principal be payable at same time, and subject to all the conditions, pledges of faith, and exemptions as the bonds authorized to be issued by the said seventh section of said act, and shall be signed by the said treasurer as ex-ofl5cio sinking-fund commissioner ot the District of Columbia, and numbered, countersigned, sealed and registered as the said seventh section of said act prescribes, detaching all coupons from said bonds up to the date of such certificates. Sec. 10. No suit now pending for the collection of any claim based upon a contract or extension of contract hereinbefore mentioned, in the Supreme Court of the District of Columbia, shall be in any manner preju- diced by the provisions of this act. Act of Congress of 16th June, 1880, ch. 243, 21 Stat. p,t Large, 287, known as the " District Claims Act.'' ACT OF MARCH 3d, 1883. BOWMAN ACT. Be it enacted, die. [Section 1], That whenever a claim or matter is pend- TO THE COURT OF CLAIMS. 263 ing before any committee of the Senate or House of Representatives, or before either House of Congress, which involves the investigation and de- termination of facts, the committee or house may cause the same, with the vouchers, papers, proofs, and documents pertaining thereto, to be transmitted to the Court of Claims of the United States, and the same shall there be proceeded in under such rules as the court may adopt. When the facts shall have been found, the court shall not enter judg- ment thereon, but shall report the same to the committee or to the house by which the case was transmitted for its consideration. Sec. 2. That when a claim or matter is pending in any of the Execu- tive Departments which may involve controverted questions of fact or law, the head of such Department may transmit the same, with the vouch- ers, papers, proofs, and documents pertaining thereto, to said court, and the same shall be there proceeded in under such rules as the court may adopt. Wlien the facts and conclusions of law shall have been found, the court shall not enter judgment thereon, but shall report its findings and opinions to the Department by which it was transmitted for its guidance and action. Sec. 3. The jurisdiction of said court shall not extend to or include any claim against the United States growing out of the destruction or damage to property by the Army or Navy during the war for the suppression of the rebellion, or for the use and occupation of real estate by any part of the military or naval forces of the United States in the operations of said forces during the said war at the seat of war ; Nor shall the said court have jurisdiction of any claim against the United States which is now barred by virtue of the provisions of any law of the United States. Sec. 4. In any case of a claim for supplies or stores taken by or fur- nished to any part of the military or naval forces of the United States for their use during the late war for the suppression of the rebellion, the pe- tition shall aver that the person who furnished such supplies or stores, or from whom such supplies or stores were taken, did not give any aid or comfort to said rebellion, but was throughout that war loyal to the Gov- ernment of the United Sitates, and the fact of such loyalty shall be a juris- dictional fact ; And unless the said court shall, on a preliminary inquiry, find that the person who furnished such supplies or stores, or from whom the same were taken as aforesaid, was loyal to the Government of the United States throughout said war, the court shall not have jurisdiction of such cause, and the same shall, without further proceedings, be dismissed. Sec. S. That the Attorney-General, or his assistants, under his direc- tion, shall appear for the defence and protection of the interests of the United States in all cases which may be transmitted to the Court of Claims under this act, with the same power to interpose counter-claims, oS-sets, defences for fraud practised or attempted to be practised by claimants, and 264 FEDERAL STATUTES RELATING other defences, in like manner as lie is now required to defend the United States in said court. Sbc. 6. That in the trial of such cases no person shall be excluded as a ■witness because he or she is a party to or interested in the same. Sec. 7. That reports of the Court of Claims to Congress under this act, if not finally acted upon during the session at which they are reported, shall be continued from session to session and from Congress to Congress until the same shall be finally acted upon. Act of Congress of 3d March, 1883, ch. 116, 33 Stat, at Large, 485, known as " The Bowman Act." Note. — In the edition of the Rules of the Court of Claims with the Statutes applicable to the Court issued at Washington from the Govern- ment Printing Office in 1884, the following note is appended to this Act. "This act does not repeal Revised Statutes, section 1063, which author- izes the head of a Department to transmit to the Court of Claims any cases of the class of which, by reason of the subject-matter and character, the court might take jurisdiction of on the voluntary action of claimants, and which are set forth in Revised Statutes, section 1059. "Nor does it repeal that provision in section 1059 of the Revised Stat- utes which gives the court jurisdiction to hear and determine ' all claims which may be referred by either house of Congress.' "In all the above-mentioned cases the court has jurisdiction to enter judgment. "Care must therefore be taken in referring to the court cases which might come under either the Revised Statutes, or the act of March 3d, 1883, to specify under which law the reference is made.'' Sec. 1060. All petitions and bills praying or providing for the satisfaction of private claims against the Government, founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, expressed' or imphed, with the Government of the United States, shall, unless othen\'ise ordered by resolution of the House in which they are introduced, be transmitted by the Secretary of the Senate or the Clerk of the House of Representatives, with all the ac- companying documents, to the Court of Claims. Revised Statutes (Second Edition), § 1060, p. 196 ; Act of Congress of 8d March, 1863, ch. 92, sec. 3, 13 Stat at Large, 765. Sec. 1061. Upon the trial of any cause in which any set-off, counter-claim, claim for damages, or other demand is set up on the part of the Government against any person making claim against the Government in said court, the court shall hear and TO THE COURT OP CLAIMS. 265 determine such claim or demand both for and against the Government and claimant ; and if upon the whole case it finds that the claimant is indebted to the Grovernment, it shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk's of&ce of any district or circuit court, shall be entered on the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such courts are enforced. Revised Statutes (Second Edition), § 1061, p. 196 ; Act of Congress of 3d March, 1863, cli. 93, sec. 3, 13 Stat, at Large, 765. Sec. 1062. "Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other disbursing officer, in the cases herein- before provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the Treasury shall allow to such officer the amount so decreed, as a credit in the settlement of his accounts. Revised Statutes (Second Edition), § 1063, p. 196 ; Act of Congress of 9th May, 1866, ch. 75, sec. 2, 14 Stat, at Large, 44. Sec. 1063. "Whenever any claim is made against any Ex- ecutive Department, involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision wiU affect a class of cases, or furnish a precedent for the future action of any Executive Department in the adjustment of a class of cases, without regard to the amount involved in the particular case, or where any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States, the head of such Department may cause such claim, with all the vouchers, papers, proofs, and documents pertaining thereto, to be trans- mitted to the Court of Claims, and the same shall be there pro- ceeded in as if originally commenced by the voluntary action of the claimant ; and the Secretary of the Treasury may, upon the certificate of any Auditor or Comptroller of the Treasury, direct any account, matter, or claim, of the character, amount, 266 FEDERAL STATUTES EELATING or class described in this section, to be transmitted, with all the vouchers, papers, documents, and proofs pertaining thereto, to the said court, for trial and adjudication : Provided, That no case shall be referred "by any head of a Department unless it belongs to one of the several classes of cases which, by reason of the subject-matter and character, the said court might, under existing laws, take jurisdiction of on such voluntary action of the claimant. Revised Statutes (Second Edition), § 1063, pp. 196, 197 ; Act of Con- gress of 35th June, 1868, ch. 71, sec. 7, 15 Stat, at Large, 76 ; Act of Congress of 16th June, 1874, ch. 385, 18 Stat, at Large, 75. Sec. 1064. AU cases transmitted by the head of any Depart- ment, or upon the certificate of any Auditor or Comptroller, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the Court of Claims, and shall, in all respects, be subject to the same rules and regulations. Kevised Statutes (Second Edition), § 1064, p. 197 ; Act of Congress of 35th June, 1868, ch. 71, sec. 7, 15 Stat, at Large, 76. Sec. 1065. The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the Court of Claims under the two preceding sections, shall be paid out of any specific appropriation apphcable to the case, if any such there be; and where no such appropriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court. Revised Statutes (Second Edition), § 1065, p. 197 ; Act of Congress of 35th June, 1868, ch. 71, sec. 7, 15 Stat, at Large, 76 ; Act of Congress of 3d March, 1875, ch. 149, 18 Stat, at Large, 481. Sec. 1066. The jurisdiction of the said court shall not extend to any claim against the Government not pending therein on December one, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into vrith foreign nations or with the Indian tribes. Revised Statutes (Second Edition), § 1066, p. 197 ; Act of Congress of 3d March, 1863, ch. 93, sec. 9, 13 Stat, at Large, 767. Seo. 106Y. No person shall file or prosecute in the Court of TO THE COURT OF CLAIMS. 26 T Claims, or in the SupTeme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any per- son who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or profess- ing to act, mediately or immediately, under the authority of the United States. Revised Statutes (Second Edition), § 1067, p. 197 ; Act of Congress of 35th June, 1868, ch. 71, sec. 8, 15 Stat, at Large, 77. Sec. 1068. Aliens, who are citizens or subjects of any gov- ernment which accords to citizens of the United States the right to prosecute claims against such Government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject-matter and character, might take jurisdiction. Revised Statutes (Second Edition), § 1068, p. 197 ; Act of Congress of 27th July, 1868, ch. 276, sec. 2, 15 Stat, at Large, 343. Sec. 1069. Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the pe- tition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Kepresentatives as provided by law, within six years after the claim first accrues : ■ Provided, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, limatics, insane persons, and persons beyond the seas at the time the claim ac- crued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased ; but no other disabihty than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumu- latively. Revised Statutes (Second Edition), § 1069, pp. 197, 198 ; Act of Con- gress of 3d March, 1863, ch. 93, sec. 10, 13 Stat, at Large, 767. Sec 1070. The said court shall have power to estabhsh rules for its government and for the regulation of practice therein, and it may punish for contempt in the manner prescribed by 268 FEDERAL STATUTES RELATING the common law, may appoint commissioners, and may exercise such powers as are necessary to carry into effect the powers granted to it by law. Revised Statutes (Second Edition), § 1070, p. 198 ; Act of Congress of 24th February, 1855, ch. 122, sec. 3, 10 Stat, at Large, 613 ; Act of Con- gress of 3d March, 1863, ch. 92, sec. 4, 13 Stat, at Large, 765. Sec. 1071. The judges and clerks of said court may admin- ister oaths and affirmations, take acknowledgments of instru- ments in writing, and give certificates of the same. Revised Statutes (Second Edition), § 1071, p. 198 ; Act of Congress of 3d March, 1863, ch. 93, sec. 4, 13 Stat, at Large, 765. Sec. 1072. The claimant shall, in all cases, fully set forth ia his petition the claim, < The action thereon in Congress, or by any of the Depart- ments, if such action has been had ; "What persons are owners thereof or interested therein, "When and upon what consideration such persons became so interested ; That no assignment or transfer of said claim, or of any part thereof or interest therein, has been made, except as stated in the petition ; That said claimant is justly entitled to the amount therein claimed from the United States, after allowing aU just credits and off-sets ; That the claimant, and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to the Government of the United States, and, whether a citizen or not, has not in any way vol- untarily aided, abetted, or given encouragement to rebellion against the said Government, and that he believes the facts as stated in the said petition to be true. And the said petition shaU be verified by the affidavit of the claimant, his agent, or attorney. Revised Statutes (Second Edition), § 1073, p. 198 ; Act of Congress of 34th February, 1855, ch. 123, sec. 1, 10 Stat, at Large, 613 ; Act of Con- gress of 3d March, 1863, ch. 92, sec. 13, 12 Stat, at Large, 767. Sec 1073. The said allegations as to true allegiance and vol- untary aiding, abetting, or giving encouragement to rebellion TO THE COURT OF CLAIMS. 269 against the Government may be traversed by the Government, and if on the trial such issues shall be decided against the claimant, his petition shaU be dismissed. Eevised Statutes (Second Edition), § 1073, p. 198 ; Act of Congress of 3d March, 1863, ch. 93, sec. 13, 13 Stat, at Large, 767. Sec. 1074:. "Whenever it is material in any claim to ascertain whether any person did or did not give any aid or comfort to the late rebellion, the claimant asserting the loyalty of any such person to the United States during such rebellion shall be required to prove affirmatively that such person did, during said rebellion, consistently adhere to the United States, and did give no aid or comfort to persons engaged in said rebeUion ; and the voluntary residence of any such person in any place where, at any time during such residence, the rebel force or organiza- tion held sway, shall be prima-facie evidence that such person did give aid and comfort to said rebeUion and to the persons engaged therein. Eevised Statutes (Second Edition), § 1074, p. 198; Act of Congress of 35th. June, 1868, oh. 71, sec. 3, 15 Stat, at Large, 75. Sec. 1075. The Court of Claims shall have power to appoint commissioners to take testimony to be used in the investiga- tion of claims which come before it ; to prescribe the fees which they shall receive for their services, and to issue com- missions for the taking of such testimony, whether taken at the instance of the claimant or of the United States. Eevised Statutes (Second Edition), § 1075, p. 198 ; Act of Congress of 24th February, 1855, ch. 132, sec. 3, 10 Stat, at Large, 613; Act of Con- gress of 3d March, 1863, ch. 93, sec. 4, 13 Stat, at Large, 765. Sec. 1076. The said court shall have power to call upon any of the Departments for any information or papers it may deem necessary, and shall have the use of all recorded and printed reports made by the committees of each House of Con- gress, when deemed necessary in the prosecution of its business. But the head of any Department may refuse and omit to com- ply with any call for information or papers when, in his opin- ion, such compliance would be injurious to the public interest. Eevised Statutes (Second Edition), § 1076, p. 198; Act of Congress of 34th February, 1855, ch. 133, sec. 11, 10 Stat, at Large, 614. 270 FEDERAL STATUTES RELATING Sec. 1077. "When it appears -to the court in any case that the facts set forth in the petition of the claunant do not fur- nish any ground for relief, it shall not be the duty of the court to authorize the taking of any testimony therein. Revised Statutes (Second Edition), §1077, p. 198; Act of Congress of 34th February, 1855, ch. 132, sec. 4, 10 Stat, at Large, 613. Sec. 1078. JSTo witness shall be excluded in any suit in the Court of Claims on account of color. Revised Statutes (Second Edition), § 1078, p. 199 ; Act of Congress of 3d July, 1864, ch. 310, sec. 3, 13 Stat, at Large, 351 ; Act of Congress of 3d March, 1867, ch. 166, sec. 3, 14 Stat, at Large, 457; Act of Congress of 3oth June, 1868, ch. 71, sec. 4, 15 Stat, at Large, 75. Sec. 1079. No claimant, nor any person from or through whom any such claimant derives his alleged title, claim, or right against the United States, nor any person interested in any such title, claim, or right, shall be a competent witness in the Court of Claims in supporting the same, and no testimony given by such claimant or person shall be used except as pro- vided in the next section. Revised Statutes (Second Edition), § 1079, p. 199 ; Act of Congress of Sd March, 1863, ch. 93, sec. 8, 13 Stat, at Large, 766 ; Act of Congress of 25th June, 1808, ch. 71, sec. 4, 15 Stat, at Large, 75. By an Act of Congress of 16th June, 1880, ch. 343, 31 Stat, at Large, 284, entitled: " An Act to provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction on the Court of Claims to hear the same, and for other purposes," it was provided as follows : " Sec. 4. All laws now in force relating to prosecutions of Claims against the United States in the Court of Claims shall apply, as far as applicable, to the prosecution, practice, hearing, and determination of claims against the District of Columbia authorized to be prosecuted under the provisions of this act : "Promded, That motions for new trials shall be made by either party within twenty days after the rendition of any judgment : '^And provided further, That in the trial of such cases no person shall be excluded as a witness because he or she is a party to or interested in the same." Sec. 1080. The court may, at the instance of the attorney or soUcitor appearing in behalf of the United States, make an TO THE COURT OP CLAIMS. 271 order in any case pending therein, directing any claimant in such case to appear, upon reasonable notice, before any com- missioner of the court, and be examined on oath touching any or all matters pertaining to said claim. Such examination shall be reduced to writing by the said commissioner, and be returned to and filed in the court, and may, at the discretion of the attorney or sohcitor of the United States appearing in the case, be read and used as evidence on the trial thereof. And if any claimant, after sucQ order is made, and due and reasonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge material to the issue, the court may, in its discre- tion, order that the said cause shall not be brought forward for trial until he shall have fuUy complied with the order of the court in the premises. Revised Statutes (Second Edition), § 1080, p. 199 ; Act of Congress of 3d March, 1863, ch. 92, seo. 8, 13 Stat, at Large, 766 ; Act of Congress of 25th June, 1868, ch. 71, sec. 4, 15 Stat, at Large, 75. Sec. 1081. The testimony in cases pending before the Court of Claims shall be taken in the county where the witness re- sides, when the same can be conveniently done. Revised Statutes (Second Edition), § 1081 p. 199 ; Act of Congress of 24th February, 1855, ch. 133, sec. 3, 10 Stat, at Large, 613. Sec. 1082. The Court of Claims may issue subpoenas to re- quire the attendance of witnesses in order to be examined before any person commissioned to take testimony therein, and such subpoenas shall have the same force as if issued from a dis- trict court, and compliance therewith shall be compelled under such rules and orders as the court shall establish. Revised Statutes (Second Edition), § 1083, p. 199; Act of Congress of 34th February, 1855, ch. 133, sec. 3, 10 Stat, at Large, 613. Seo. 1083. In taking testimony to be used in support of any claim, opportunity shall be given to the United States to file iaterrogatories, or by attorney to 'examine witnesses, under such regulations as said court shall prescribe ; and like oppor- tunity shall be afforded the claimant, in cases where testimony is taken on behalf of the United States, under like regulations. Revised Statutes (Second Edition), § 1083, p. 199; Act of Congress of 34th February, 1855, ch. 133, seo. 5, 10 Stat, at Large, 618, _^ 272 FEDERAL STATUTES RELATING Sec. 1084. The commissioner taking testimony to be used in the Court of Claims shall administer an oath or aifirmation to the witnesses brought before him for examination. Revised Statutes (Second Edition), § 1084, p. 199 ; Act of Congress of 24tli February, 1855, ch. 133, sec. 3, 10 Stat, at Large, 613. Sec. 1085. "When testimony is taken for the claimant, the fees of the commissioner before whom it is taken, and the cost of the commission and notice, ^haU be paid by such claimant ; and when it is taken at the instance of the G-ovemment, such fees, together with all postage incurred by the Assistant Attor- ney-General, shall be paid out of the contingent fund provided for the Court of Claims, or other appropriation made by Con- gress for that purpose. Revised Statutes (Second Edition), § 1085, p. 199; Act of Congress of 34th February, 1855, ch. 133, sec. 3, 10 Stat, at Large, 613. Sec. 1086. Any person who corruptly practises or attempts to practise any fraud against the United States in the proof, statement, estabhshment, or allowance of any claim, or of any part of any claim against the United States, shall ipso facto forfeit the same to the Government ; and it shall be the duty of the Court of Claims, in such cases, to find specifically that such fraud was practised or attempted to be practised, and thereupon to give judgment that such claim is forfeited to the Government, and that the claimant be forever barred from prosecuting the same. Revised Statutes (Second Edition), § 1086, p. 199; Act of Congress of 3d March, 1863, ch. 93, sec. 11, 13 Stat, at Large, 767. Sec. 1087. "When judgment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial. Revised Statutes (Second Edition), § 1087, p. 300; Act of Congress of 24th February, 1853, ch. 133, sec. 9, 10 Stat, at Large, 614. Seo. 1088. The Court of Claims, at anytime while any claim is pending before it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion on behalf of the United States, grant a new trial and stay the TO THE COURT OF CLAIMS. 273 payment of any judgment therein, upon such evidence, cumu- lative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States ; but imtil an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law. Revised Statutes (Second Edition), § 1088, p. 300 ; Act of Congress of 25th June, 1868, ch. 71, see. 2, 15 Stat, at Large, 75. Sec. 1089. In aU cases of final judgments by the Court of Claims, or, on appeal, by the Supreme Court, where the same ■ are affirmed in favor of the claimant, the sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the Court of Claims, and signed by the chief justice, or, in his absence, by the presiding judge of said court. Revised Statutes (Second Edition), § 1089, p. 300 ; Act of Congress of 3d March, 1863, ch. 92, sec. 7, 12 Stat, at Large, 766. See Act of Con- gress of 3d March, 1875, ch. 149, 18 Stat, at Large, 481. Sec. 1090. In cases where the judgment appealed from is in favor of the claimant, and the same is affirmed by the Supreme Court, interest thereon at the rate of five per centum shall be allowed from the date of its presentation to the Secretary of the Treasury for payment as aforesaid, but no interest shall be allowed subsequent to the affirmance, unless presented for pay- ment to the Secretary of the Treasury as aforesaid. Revised Statutes (Second Edition), § 1090, p. 300 ; Act of Congress of 8d March, 1863, ch. 92, sec. 7, 13 Stat, at Large, 766. Sec. 1091. No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest. Revised Statutes (Second Edition), § 1091, p. 200.; Act of Congress of 3d March, 1863, ch. 93, sec. 7, 12 Stat, at Large, 766. Seo. 1092. The payment of the amount due by any judg- ment of the Court of Claims and of any interest thereon al- lowed by law, as hereinbefore provided, shall be a fuU dis- 18 274 FEDERAL STATUTES RELATING charge to the United States of all claim and demand touching any of the matters involved in the controversy. Revised Statutes (Second Edition), § 1093, p. 300 ; Act of Congress of 3d March, 1863, ch. 93, sec. 7, 13 Stat, at Large, 766. Sec. 1098. -Any final judgment against the claimant on any claim prosecuted as provided ih this chapter shall forever bar any further claim or demand against the United States arising out of the matters involved in the controversy. Revised Statutes (Second Edition), § 1093, p. SOD ; Act of Congress of 3d March, 1863, ch. 93. sec. 7, 13 Stat, at Large, 766. Sec 3477. All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney, must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified' by the officer ; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person ac- ' knowledging the same. Revised Statutes (Second Editipn), § 3477, p. 689; Act of Congress of 39th July, 1846, ch. 66, 9 Stat, at Large, 41 ; Act of Congress of 36th February, 1853, ch. 81, sec. 1, 10 Stat, at Large, 170. Sec. 3744. It shall be the duty of the Secretary of "War, of the Secretary of the Navy, and of the Secretary of the In- terior, to cause and require every contract made by them severally on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof; a copy of which shall be filed TO THE COURT OF CLAIMS. 275 by the officer making and signing the contract in the Eeturns Office of the Department of the Interior, as soon after the contract is made as possible, and within thirty days, together with all bids, offers, and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting .bids, offers, or proposals for the same. All the copies and papers in relation to each contract shall be attached together by a ribbon and seal, and marked by numbers in regular order, according to the number of papers composing the whole return. [See §§ 512-515.] Revised Statutes (Second Edition), § 3744, p. 738 ; Act of Congress of 2d June, 1862, ch. 98, sec 1, 13 Stat, at Large, 411. ACT OF MARCH 3d, 1877. Be it enacted, &c., ******* There shall be taxed against the losing party in each and every cause pending in the Supreme Court of the United States or in the Court of Claims of the United States, the cost of printing the record in such case, which shall be collected, except when the judgment is against the United States, by the clerks of said courts respectively, and paid into the Treasury of the United States ; but this shall only apply to records printed after the first of October next. ***** Act of Congress of 3d March, 1877, ch. 105, 19 Stat, at Large, 844. RULES OP THE COUET OF CLAIMS. Article 1, ATTOENETS AND OOirNSEL. Seo. 1. Suits may be commenced by the claimant in person, or through his attorney in fact, or an attorney of this court. If the claimant is represented by an attorney in fact, the power must be filed with the clerk, and its execution must be proved or acknowledged before an officer authorized to take acknowledgments of deeds. Sec. 2. Any person of good moral character, who has been admitted to practise in the Supreme Court of the United States, or in the highest court of the District of Columbia, or in the highest court of any State or Territory, may be admitted, on motion in open court, to practise as an attorney and coun- seUor of this court. He may also be admitted at chambers, in vacation, by any member of the court, on its being shown by his affidavit or otherwise, that he has been admitted to practise in any of the aforesaid courts, and is still entitled to practise therein. Sec. 3. There shall be but one attorney of record for the claimant in any case at any one time ; but a claimant may be permitted to change his attorney, on such conditions as the court may prescribe. A firm of attorneys wOl be regarded as the attorney of record. Sec. 4. Petitions, pleadings, and motions on the part of the claimant will be signed by the attorney of record ; pleadings and motions on the part of the United States, by the Assistant Attorney-General. 278 RULES OF THE Sec. 5. Attorneys of record, or the claimant if he appear in person, will, on commencing or appearing in a suit, register with the clerk of the com't a post-office address, to which all notices required by these rules or ordered by the court may be addressed. Sec. 6. Counsel, other than the attorney of record, may be heard on either side at the trial or in any stage of the proceed- ings, but shall not be entitled to file pleadings, give notices, or make motions. Article 2. THE PETITION. Sec. 1. Suits will be commenced by petition, verified in the manner provided by law, and filed in the office of the clerk. The clerk will note the day of the filing of the petition thereon. Within twenty days thereafter, the claimant will file in the clerk's office twenty-five printed copies of such petition and note of filing. Sec 2. The petition must set forth : 1st. The title of the action, with the full Christian and sur- names of all the claimants. 2d. A plain, concise statement of the facts and circum- stances, giving place and date, free from argumentative and impertinent matter. 3d. The prayer, in which the claimant must state distinctly the amount for which he demands judgment, or the rehef for which he prays. Sec 3. "When the claimant cannot state his case with the requisite particularity without an examination of papers in one of the executive departments, and has been unable to obtain a sufficient examination of such papers on applica- tion, he may file a petition stating his claim as far as is in his power, and specifying as definitely as he can the papers he requires in order to enable him to state his claim. The court will thereupon call upon the proper Department for such information or papers as it may deem necessary; and when the same are furnished, the petition may be amended, and the amended petition shall be printed and filed, and may talce the place of the original petition. Sec 4. If the claimant be an executor, administrator, COUET OF CLAIMS. 2T9 guardian, or other representative, appointed by a judicial tribunal, a duly authenticated copy of~ the record of the appointment must be filed with the petition at the commence- ment of the action. Sec. 5. If the claim be founded upon an act of Congress, or upon a regulation of an Executive Department, the act and the section thereof upon which the claimant relies must be specified, and the particular regulation of the Department must be stated in terms. Sec 6. If the claim be founded upon an express contract with the United States, such contract must be set forth in the petition, and, if it be in writing, must be annexed thereto. If it be founded upon an implied contract, the circumstances upon which the claimant relies to prove a contract must be specified. If it consist of several matters or items, each must be sepa- rately stated. Sec. 7. If the petition be verified by the attorney at law or other agent of the claimant, a power of attorney authorizing him to make the verification must be filed with it. Sec. 8. If a claimant desire to amend his petition at any time, he must set forth in his motion the specific amendments desired. If the motion be allowed, he must within twenty days thereafter file a copy of the petition, with the amend- ments properly incorporated therein, unless the court order otherwise. Sec. 9. If the claimant die pending the suit, his death may be suggested on the record, and his proper representative may, on motion, and on filing a duly authenticated copy of the record of his appointment as executor or administrator, be ad- mitted to prosecute the suit. Article 3. PLEAS. Sec. 1. Demurrers to petitions and general traverses thereof niust be filed within two months after the fifing of the petition; and pleas averring special defence, set-off, or cpunter-claim, within one month after the claimant places his case on the notice-book. Siio. 2. When the Attorney-General demurs to the peti- 280 RULES OF THE tion, he must set forth the grounds of the demurrer spe- cially ; but if the ground be that the petition does not allege facts sufficient to constitute a cause of action, that objection may be stated generally. If the demurrer be sustained, the claimant may, of right, amend his petition, within such time as the court may direct ; but if he dechne to amend, judgment will be rendered dismiss- ing the petition. If the demurrer be overruled, the defendants may, of right, plead to the petition, within such time as the court may direct ; but if they decline so to plead, judgment will be rendered for the claimant according to the prayer of the petition ; or the court will order an assessment of damages, as the Attorney-General may elect. Sec. 3. "Within one month after the filing of a set-off or counter-claim by the defendants, the claimant must answer the same by rephcation under oath ; in default whereof the court may, after ten days' notice by the defendants to the claimant, order that the set-off or counter-claim be considered as ad- mitted. Sec. 4. When the Attorney-General pleads, under section 1086 of the Eevised Statutes, that the claimant has practised or attempted to practise fraud, he shall set forth the facts with sufficient particularity to enable the claimant to answer the same in detail ; and the claimant shall, within two months after the filing of said plea, reply to the same with like particularity, under oath. Article 4. MOTIONS. Sec. 1. Motions will be heard in the first instance before a Judge at chambers; but he may direct the same to be heard in open court. They must come to him through the clerk's office, and, when acted upon, will be returned there by him. Sec. 2. Motions must be in writing, signed by the attorney of record, and must give the title and number of the case and the term at which they are made; and in no case shall the clerk enter the motion unless this rule be complied with. Seo. 3. No order wUl be entered by the clerk unless it be COURT OF CLAIMS. 281 directed from the bench, or be reduced to writing and marked " Allowed " by the Chief Justice or one of the Judges. Sec. 4. The clerk will not file any paper unless it be properly indorsed with the title and number of the suit and the name of the attorney fifing it. Article 5. SERVICE OF NOTICES. Sec. 1. Parties filing petitions, pleadings, and motions, ex- cept motions for caUs on Departments, must at the same time leave with the clerk written notice thereof, addressed to the attorney of the adverse party, with postage prepaid, and the clerk will mail the same and note the fact on the general docket. All other notices to adverse parties may be served in like manner. The clerk's entry on his docket will be prima facie evidence of the service. In the computation of time, the day of the service will be excluded, and the day on which a party is required to appear, or on which an act is required to be done, will be included. Article 6. WITNESSES. Sec. 1. "When a petition is filed, either party may proceed to take testimony, notwithstanding that issue of fact has not been joined or that issue on demurrer may be pending. Sec. 2. Unless the court order a witness to testify orally on the trial, the evidence of witnesses must be by deposition, taken either before a commissioner of the court, or a judge of a court of the United States, or a judge of a court of record in a State or Territory of the United Stated, or a commissioner appointed by a circuit court of the United States, or a notary pubhc. Sec. 3. "When a witness can be conveniently examined be- fore a judge of this court, either party, at any time prior to the examination, may move for an order directing that his depo- sition be so taken. Sec 4. If a witness, having been duly summoned and his fees tendered him, shall fail or refuse to appear and testify before any officer authorized to take his testimony, a rule upon 282 RULES OF THE him will be issued by the court, on motion, to show cause why a fine should not be imposed upon him ; and, if he fail to show suificient cause, he shall be fined not exceeding one hundred dollars. Sec. 5. The fees of witnesses shall be such as are now, or may hereafter be, prescribed by Congress, and shall be paid by the party at whose instance the witnesses appear. Sec. 6. The court may remand any case to the docket, and order a witness or a claimant to be produced before the court or one of the Judges thereof for examination. Article 7. DEPOSITIONS ON WEITTEN INTEEEOGATOEIES. Sec. 1. Depositions obtained in foreign countries must be taken on written interrogatories, sent out under a special com- mission issued by the clerk. Depositions may be taken in like manner within the United States, by consent of parties, or when authorized by the court, or by a Judge in vacation. The written interrogatories must be filed in the clerk's office, and notice thereof given to the adverse party. "Within fifteen days after such notice, the adverse party may file objections to any of the interrogatories, specifically stating the grounds of ob- jection ; and may either file cross-interrogatories, or a notice that he will cross-examine the witnesses orally ; which notice shall be attached to and sent out with the special commission. If he file cross-interrogatories, the other party may, within fifteen days thereafter, file objections thereto, specifically stating the grounds of objection. 'No objections to an interrogatory or a cross-interrogatory wiU be considered at the trial unless taken before the commission issues. Sec. 2. "When a deposition is taken upon written inter- rogatories and written cross-interrogatories, neither the Attor- nejJ^-General, nor the claimant, his agent or attorney, nor any other person, shall be present at the examination of the witness ; which fact shall be certified by the officer taking the deposition ; who shaU, in such cases, propound the inter- rogatories and cross-interrogatories to the witness in their order, and reduce his answers to writing as nearly as practi- cable in his precise words. COURT OF CLAIMS. 283 Article 8. DEPOSITIONS ON ORAL EXAMINATION. Seo. 1. The party proposing to take depositions on oral ex- amination shall cause fifteen days' notice to be given thereof to the other party. The notice must be in writing, and state the names of the witnesses to be examined, the day of the month, the hour, and the place of taking the deposition. "When the claimant proposes to take a deposition, and the witness resides more than five hundred miles from "Washington, or when the defendants propose to take the deposition, and the witness resides more than five hundred miles from the claimant or his attorney, one day's further notice shall be given for every additional hundred miles. Sec. 2. If the claimant proposes to take a deposition in the city of "Washington, three days' notice shall be sufficient ; and a like notice by the defendants shall be sufficient when the claimant's attorney resides in the city of "Washington. Seo. 3. "When a deposition is taken by oral examination, each question propounded to the witness must be recorded, and his answers must be taken down, as nearly as may be, in his own words. Seo. 4. No general objection to any question shall be noticed by the officer ; but where an objection is made on specifically stated grounds, the officer shall record the same in direct con- nection with the question objected to. Sec. 5. "When depositions are taken on notice, as provided in section 1 of this article, if both parties are present or repre- sented at the time and place specified in the notice, either party may, after the examination of the witnesses produced under the notice, be entitled to produce and examine other witnesses ; but in order thereto one day's notice must be given to the adverse party, or his attorney, there present. Article 9. GENERAL PROVISIONS AS TO DEPOSITIONS. Sec. 1. Witnesses must be sworn or affirmed, before any ■questions are put to them, to tell the truth, the whole truth, and nothing but the truth, relative to the cause in which they 284 RULES OP THE are to testify ; and each witness shall then state his name, his occupation, his age, if under twenty-one years, his place of resi- dence ; whether he has any, and, if any, what, interest, direct or indirect, in the claim which is the subject of inquiry ; and whether, and in what degree, he is related to the claimant. At the conclusion of the deposition, the witness shall state whether he knows of any other matter relative to the claim in question ; and if he do, he shall state it. The testimony of the witness when completed shall be read over to him, and be signed by him in the presence of the officer. Sec. 2. The officer should so connect the sheets of the depo- sition that they cannot be tampered with, and should return them sealed together. He should sign, and make the witness sign, each sheet ; and generally he should spare no pains to return to the court the exact evidence he has taken. All ex- hibits should be carefully marked so as to be capable of imme- diate identification, and, when practicable, should be attached to the deposition under seal. Sec. 3. The officer must state, in the caption of the deposi- tion, the cause in which it was taken, the place and date of taking, the name of the witness, the party by whom called, and the names of the parties and counsel present. And in the body of the deposition must also be shown by whom the wit- ness was examined and cross-examined. Sec. -L In his return the officer must show that the witness was' properly sworn or affirmed, and that the answers were taken down in his presence, and read over to and signed by the witness. Sec. 5. The officer must inclose the commission, depositions, and exhibits in a packet, under his seal, and direct the same to the clerk of the court at Washington, and deposit the packet in the post-office, or in an express-office, or he may transmit the same by a messenger, whose name shall be by him in- dorsed on the packet. Sec. 6. If the officer's fees be not paid at the time of taking the deposition, he should indorse on the outside of the packet the gross amount of his fees and disbursements, and inclose inside a detailed statement thereof. The packet must not be opened until the party for whom the depositions were taken COURT OF CLAIMS. 285 deposits with the clerk the amount indorsed thereon. The clerk will then open the packet, and tax the officer's charges at the rates hereinafter provided, and will immediately trans- mit to him the amount taxed, returning the overplus, if any, to the party. The money will be transmitted by draft or registered letter, and the clerk will retain his vouchers there- for. Sec. 7. The fees shall be three dollars a day for attending to take the depositions, and twenty cents a folio of one hun- dred words for taking and returning it ; but this per Mem al- lowance is hmited to one day for a deposition or series of dep- ositions taken iri the same case. Short-hand reporters, act- ing as special commissioners, will receive, in addition to these fees, ten cents a f oho for writing out the deposition from their notes. Sec. 8. Any permanent commissioner charging in excess of the prescribed fees, except under a previous written agreement with the parties, will be deemed guilty of improper and illegal conduct, and his commission will be revoked. Sec. 9. Objections to the notice, or the form and manner of taking or returning the testimony, must be made in writing, and filed within one month after notice of the fiUng of the deposition, or they will be considered as waived. Article 10. EVIDENCE OEETIEIED FEOM THE DEPAiSTMENTS. Sec. 1. The Attorney-General may offer in evidence properly certified information and papers from any Executive Depart- ment, without calling for the same under the provisions of section 1076 of the Eevised Statutes. A call for such informa- tion and papers will be made at a claimant's request, on the approval of a Judge in chambers. On the receipt of an an- swer to the call, the clerk wiU notify the claimant's counsel and the Attorney-General by post. Seo. 2. All information or papers furnished by an Executive Department in response to a call, or through the Attorney- General, is subject to objection by either party according to the rules of evidence at the common law ; but neither party will be required to produce the origiuals of such papers, or to 286 RULES OF THE prove their execution, unless within one month after the return is filed the party objecting to such papers enter of record in the clerk's office a written denial of their genuineness. Sec. 3. "Whenever it is charged in a petition that a contract has been made or other Uability incurred through an oificer or agent of the United States other than the head of an Execu- tive Department or the chief of a bureau, the claimant will be required to prove that such person was an officer or agent of the United States, by the certificate of the proper Executive Department, oi^ by other legal and sufficient evidence. Sec 4. Any information or papers certified from any Execu- tive Department, and filed in any cause, may be used and ap- phed in any other pending cause to which the same may be applicable or pertinent. To entitle such information or papers to be so used, copies thereof must be filed in such other cause before the same shall have been placed on the trial docket. Article 11. PEODTTCTIOU OF ORIGINAL PAPERS BY THE CLAIMAITT. Sec. 1. The court may, at the instance of the Attorney-Gen- eral, order any claimant, his agent or attorney, to produce in court, or before any officer authorized to take depositions, any letters, papers, deeds, documents, or other writings in his pos- session or subject to his control, in any way relating to the claim sued upon ; and any claimant, his agent or attorney, who, after due notice, refuses to produce such letters, papers, deeds, documents, or other writings, when in his power to do so, shall be subject to attachment for contempt ; and if he persist in such refusal, the court will direct the petition to be dismissed. Article 12. BEIEFS AND REQUESTS FOE FINDINGS OF FACT. Sec. 1. The claimant may at any time give notice to the Attorney-General that his proof is closed, by an entry to that effect in the notice-book in the clerk's office. If the Attorney- General shall not within two months thereafter file a request for further time to take proof, the claimant may, at any time after the expiration of that period, have the case placed on the trial hst. COURT OF CLAIMS. 287 Seo. 2. The clerk shall not place a case on the trial Ust until the claimant files in the clerk's office twenty-five printed copies of a brief stating the points of law on which he relies, with references to authorities, and twenty-five printed copies of the request for facts required by Rule Y. of the "Regula- tions prescribed by the Supreme Court of the United States under which appeals may be taken from the Court of Claims." Sec. 3. Such request must be in the following terms : '■'■The clavmomt, considering the facts hereinafter set forth to he proven, a/nd deeming them material to the due presentation of this case in the findings of fact, requests the court to fmd the same, as follows." Following this request must be a statement, in the form of distinct numbered propositions, of the facts which the party desires to have found ; and each proposition must be so pre- pared, with respect to its length, subject, and phraseology, that the court may conveniently pass upon it ; and they must be so arranged as to present a concise statement, in orderly and logical sequence, of the whole case, as the party desires it to appear in the findings of fact. Sub- joined to each proposition must be references to the pages of the record containing the evidence relied on in its support ; but no evidence must be set out. Documents which may en- ter into the findings of fact need not be presented in the state- ment, but may be referred to therein by the pages of the record. Sec. 4. The Attorney-General, within one month after the filing of the claimant's brief and request, must file his brief and request for findings of fact, and should indicate the re- quests on the claimant's part to which no objection is made. Such request must be in form and substance like that required of the claimant by the next preceding section. Seo. 5. If the claimant neglect, for two years after fihng his petition, to close his proof and give notice to the Attorney- General, as required by section 1 of this article, the defendants may place the case on the trial hst. Sec. 6. Whenever, in any case which the claimant has not put on the trial list, it shah be shown to the court that an early decision thereof is important to the interests of the Govern- 288 RULES OF THE ment, the case may, in the discretion of the court, be placed on the trial list by the defendants. Article 13. TEIALS AIJD OTHEE PEOCEEDINGS IN COTTET. Sec. 1. When the defendants' brief and request are filed the case wlH be considered as ready for trial, and, when reached, a continuance -mil not be ordered, except by consent of parties, or for good causfe shown. Sec. 2. The trial docket will be made up monthly. Oases wiU go upon it in the order in which notices of trial have been filed. Sec. 3. The peremptory call of the trial docket wiU begin on the Tuesday after the first Monday of each month during the term. Sec 4. No case will be heard for trial unless the printed pleadings, evidence, and briefs be made up in book form together and paged consecutively, and a copy thereof furnished to each member of the court at the hearing ; and all citations from, or references to, such pleadings, evidence, and briefs must be by the consecutive paging of such book. Sec. 5. When, in any case, the record shall be made up in book form, as required in the next preceding section, the chief clerk win make, cause to be printed, and prefix to each copy of the record so made up, a table of the contents thereof, with references to the page where each document and each piece of evidence may be found. Sec 6. The law docket will be taken up on Monday of each week during the term. Article 14. PEINTrCTG. Sec. 1. The testimony and briefs will be printed. In print- ing the testimony, the notices and the ofiicers' captions and certificates ivill be omitted ; but to each deposition there must be prefixed a title in the following form : I)eposition of ■ for claimant [or defendant, as the case may be], taken at , 071 the day of , 18 — ; claimanfs counsel, ; defendant s counsel . COURT OF CLAIMS. 289 Seo. 2. "Where an answer of a Department is printed as evi- dence, the call for the same must be printed therewith. Sec. 3. Before printing a return made to a caU on a Depart- ment, the chief clerk wiU withhold from the copy for the print- er, 1st, all papers of which copies have been previously printed in the record of the case ; and for this purpose he wUl compare the two copies, and if variations are found he wiU take the directions of a Judge in chambers before sending the return to the printer ; 2d, all certificates of authenticity and certificates of acknowledgment ; 3d, all papers which both parties agree to omit ; 4th, all papers which a Judge in chambers orders to be omitted. In each case the chief clerk will make a memoran- dum of the omission in the copy for the printer, verified by his initials. Sec. 4. If the claimant objects to printing information or pa- pers so returned, and the Attorney-General requests to have the same printed, the clerk wiU note a memorandum of such re- quest in the copy for the printer, with his initials attached ; and when such information or papers are printed, the same will be regarded as evidence offered on the part of the defence. AU information and papers transmitted from a Department in reply to a claimant's call, and not thus objected to by him within ten days after return of the caU, wiU be regarded as evidence offered by the claimant. Sec. 5. The printed papers required by these rules must be in long primer type and in royal octavo pages, and the style and number of the case must be prefixed to all printed papers and to records of evidence. Sec. 6. No deposition, return, or record on file shall be taken from the custody of the clerk by a claimant or his attorney, but either may attend at the clerk's office, and prepare his evi- dence for the press in the form and manner before prescribed. When the evidence is complete and ready for the printer, the chief clerk wiU have it printed at the PubUc Printing Office. Article 15, LIMITATION. Sec 1. If it appear on the face of the petition that the claim first accrued more than six years before the petition was filed, 19 290 KULES OF THE the claimant must aver therein the existence and period of duration of some disability, recognized by law, which prevented his filing his petition within that time ; in default whereof, it will be considered that no such disabihty existed, and the pe- tition may be dismissed on motion. Sbo. 2. If the claimant, in avoidance of the bar of limitation, aver in his petition the existence and duration of any such dis- abihty, and it thereby appears that, after the disability ended, more than three years had elapsed before the petition was filed, the petition may be dismissed on motion. Sec. 3. If upon the face of the petition it does not appear when the claim first accrued, the court may require the claim- ant to make the petition definite and certain in that regard, and in default thereof may dismiss the suit. Sec. 4. Averments in regard to the time when a claim first accrued, or in regard to an alleged disabihty of the claimant, will be held to be put in issue by the defendants' general traverse. Article 16. DISCONTINUANCE. Sec. 1. "Where fraud or set-off is pleaded, the claimant shall not, without leave of the court, discontinue his suit. In other cases he may do so, either in open court, or, with the approval of a Judge, in vacation. Article 17. new teial. Sec 1. A new trial wiU not be granted where, upon the whole case, justice has been done between the parties and the judgment is substantially right, although there may have been some mistakes committed at the trial. Sec. 2. A motion by a claimant for a new trial may be founded upon one or more of the following grounds : 1st. Er- ror of fact ; 2d. Error of law ; and 3d. Newly-discovered evi- dence. It must be made at the term in which the judgment is rendered, and before the commencement of the long vacation. Sec. 3. A motion founded upon an error of fact must specify with minuteness the fact or facts which are regarded as errone- COURT OF CLAIMS. 291 ously found or erroneously omitted to be found by the court, with full reference to the evidence which is relied on to support the motion. Sec. 4. A motion founded upon error of law must specify with Hke minuteness the points upon which the court is sup- posed to have erred, with references to the authorities reUed upon to support the motion. Seo. 5. A motion upon the ground of newly-discovered evi- dence will not be entertained unless it appear that the newly- discovered evidence came to the knowledge of the claimant or his attorney after the trial and before the motion was made ; that it was not for want of due diligence that it did not sooner come to his knowledge ; that it is so material that it would probably produce a different judgment if the new trial were granted ; and that it is not cumulative. Such motion must be accompanied by the affidavit of the claimant or his attorney of record, setting forth — 1st. The facts in detail which the claimant expects to be able to prove, and whether the same are to be proved by witnesses or by documentary evidence. 2d. The name, occupation, and residence of each and every witness whom it is proposed to call to prove said facts. 3d. That the said facts were unknown to either the claimant or his attorney of record, and, if other counsel was employed at the trial, were unknown to such counsel, until after the close of the trial. 4th. The reasons why the claimant and his attorney of record and his said counsel could not have discovered said evidence before the trial, if due diligence had been used. Sec. 6. If the court desires to hear argument upon a motion by a claimant for a new trial, the motion will be ordered to the law docket ; otherwise decision wUl be announced from the bench without hearing. Article 18. APPEALS. Sec. 1. Application for appeal to the Supreme Court of the United States from any judgment or decree of this court must be in writing, and signed by the claimant or his attorney of 292 RULES OF THE record, if the appeal be on his behalf ; or, if taken by the United States, it must be signed by the Attorney-General or his Assistant. Sec. 2. Such application, if made when the court is not iu session, must be filed with the clerk, and the date of filing the same must be indorsed upon it and noted upon the general docket. Article 19. cleek's office. Sec. 1. During term time the clerk's office must be kept open every day, except Sundays and holidays, from 9^ a. m. to 4 p. m., or to such later hours as the court may be in session or in con- ference. During the Christmas holidays, the office may be closed at 1 p. m., and in vacation at 3 p. m. Sec 2. "When the court is in session, both the chief clerk and the assistant clerk will be at the office during office hours. In vacation they may arrange their hours to suit each other and the public business. Sec. 3. The chief clerk will have charge of the journal of the court, of the law and trials dockets, of the printing, and of the preparation of the tables of contents of the records of each case ; and he wUl also prepare the annual return to Congress. Sec. 4. The assistant clerk will attend to office business, and will have charge of the general docket, the notice book, and the giving of notices under these rules. Sec. 5. In the absence of the chief or the assistant clerk, his duties will be temporarily performed by the other. Sec. 6. Any one wishing to see any papers on file in the clerk's office will apply therefor to the chief or assistant clerk, who will take them from their place of deposit, and return them thereto when done with ; and no such papers can be taken out of the clerk's office, except by authority of the court, or of one of the members thereof. Article 20. WITHDRAWAL OF PAPERS. Sec 1. Papers shall not be withdrawn from the ffies except on motion for good cause shown, and upon such terms as the court or a Judge may order. COURT OF CLAIMS. 293 Article 21. EXTENSION OF TEMK. Seo. 1. The time named in these rules for the doing of any act may be extended on motion for good cause shown. Article 22. DEPAETMENTAL AND CONGEESSIONAL CASES. Seo. 1. Cases involving controverted questions of fact or law in any claim or matter, transmitted to the court under the pro- visions of section 2 of the act of March 3, 1883, entitled " An Act to aflPord assistance and relief to Congress and the Ex- ecutive Departments in the investigation of claims and demands against the Government," shall be proceeded with, in like man- ner, and subject to the same rules, so far as applicable, as other cases in the court under its general jurisdiction, except as herein provided. Sec. 2. When a case is so transmitted the clerk shall examine the papers and send notice thereof by mail to every person, whose post-office address is given, who appears therefrom to be directly interested therein, and to the Attorney-General, noting the fact on the records, and specifying the names of the parties notified, and the date of notice. Sec. 3. "Within two months after mailing of such notices, or vsdthin such further time as the court may allow, any person directly interested in the case may appear as a party therein, by filing his petition, under oath, setting forth concisely and specifically his interest and claim. Sec. 4. Any person claiming to be indirectly interested in any question involved in such case may, by leave of court, be permitted to appear and be heard on the one side or the other, as his interest may require, upon filing a petition, under oath, setting forth specifically and concisely how he claims to be so interested, and submitting the questions raised to the de- cision of the court. Sec. 5. If no claimant, directly or indirectly interested, ap- pears and files his petition within said two months, the Attorney- General, or Assistant Attorney-General charged with defend- ing the Government in this court, may set the case down for trial upon such evidence as he may submit. 294 RULES OF THE COURT OF CLAIMS. Sec. 6. "When a case is transmitted to the court by either House of Congress, or a committee thereof, under the first sec- tion of said act, involving the investigation and determination of facts in any claim or matter, the clerk shaU examine the papers and send notice by mail to every person, whose post- office address is given, who appears therefrom to be directly interested therein, and to the Attorney-General, noting the fact on the record and specifying the names of the parties notified and the dates thereof. Sec. 7. Within two months after the maUing of such notices, or within such further time as the court may allow, any person directly interested in the case may appear as a party therein, by filing his petition, under oath, setting forth concisely and specifically his claim and interest. Thereafter the case shall be proceeded with, in like manner, and subject to the same rules, so far as apphcable, as other cases in the court under its general jurisdiction. III. FEDEEAL STATUTES B8PBCIALLT BELATINQ TO THE POWER OP THE SUPREME COURT OF THE UNITED STATES, EEGULATE THE PEACTICE TO BE USED IN SUITS IN EQUITY BT THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES, AND THE EULES OF PEACTICE ADOPTED BT THE SUPREME COURT OF THE UNITED STATES FOR THE COURTS OF EQUITY OF THE UNITED STATES. FEDEEAL STATUTES ESPECLAIXT RELATING TO THE POWEE OF THE SUPKEME COUET TO REGULATE THE PRACTICE TO BE USED IN SUITS m EQUITY BY THE CIE- CUIT AND DISTEICT COURTS OF THE UNITED STATES. " Sec. 913. The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and maritime jurisdiction in the circuit and district courts shall be according to the principles, rules, and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof ; but the same shaU be subject to alteration and addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States." Revised Statutes (Second Edition), § 913, p. 174; Act of Congress of 29th September, 1789, cli. 31, sec. 3, 1 Stat, at Large, 93 ; Act of Congress of 8th May, 1793, eh. 36,. sec. 3, 1 Stat, at Large, 376; Act of Congress of 19th May, 1838, ch. 68, sec. 1, 4 Stat, at Large, 378; Act of Congress of 1st August, 1843, ch. 109, 5 Stat, at Large, 499. " Sec. 917. The Supreme Court shall have power to prescribe, from time to time, and in any manner not iaconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining dis- covery, of proceeding to obtain relief, of drawing up, enter- ing, and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice, to be used in suits in equity or admiralty, by the circuit and district courts." Bevised Statutes (Second Edition), § 917, p. 175; Act of Congress of 33d August, 1843, ch. 188, sec. 6, 5 Stat, at Large, 518. RULES OF PRACTICE ADOPTED BT THE SUPREME COURT OF THE UNITED STATES TOR THE COURTS OP EQUITY OF THE UNITED STATES. PRELIMINARY REGULATIONS. Hule 1. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers and other pleadings; for issuing and returning mesne and final process and commissions; and for making and directing all interloc- utory motions, orders, rules, and other proceedings, prepar- atory to hearing of all causes upon their merits. Rule 2. The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining, and dispos- ing of aU motions, rules, orders, and other proceedings, which are grantable of course and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. Rule 3. Any judge of the circuit court, as well in vacation as in term, may, at chambers, or on the rule-days at the clerk's office, make and direct all such interlocutory orders, rules and other proceedings, preparatory to the hearing of all causes 298 SUPREME COUET RULES upon their merits in the same manner and with the same effect as the circuit court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary, at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing. Rule 4, AU motions, rules, orders, and other proceedings, made and directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when they are made and directed ; which book shall be open at all office-hours to the free inspection of the parties in any suit in equity, and their sohcitors. And, except in cases where per- sonal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedtags entered in such order-book, touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitor shall be deemed notice to the parties for whom they appear and whom they represent, in all cases .where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders, or other proceedings not requiring personal service on the parties, in their discretion. Mule 5. All motions and applications ia the clerk's office for the issu- ing of mesne process and final process to enforce and execute decrees ; for filing bills, answers, pleas, demurrers, and other pleadings ; for making amendments to bills and answers ; for taking bills ;pro confesso ; for filing exceptions ; and for other proceedings in the clerk's office which do not, by the rules hereinafter prescribed, require any allowance or order of the court or of any judge thereof, shall be deemed motions and ap- plications grantable of course by the clerk of the court. But ■ FOR COURTS OP EQUITY. 299 the same may be suspended, or altered, or rescinded by any judge of the court, upon special cause shown. Rule 6. All motions for rules or orders and other proceedings, which are not grantable of course or without notice, shall, unless a different time be assigned by a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then ap- pear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion. PEOCESS. Rule v. The process of subpoena shall constitute the proper mesne process in aU suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill ; and, unless otherwise provided in these rules, or specially ordered by the circuit court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the pur- pose of compelling obedience to any interlocutory or final order or decree of the court. Rule 8. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a convej'-- anoe of land or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice ; and upon aflidavit of the plaintiff, filed in the clerk's oflSice, that the same has not 300 SUPREME COURT RULES been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. Hide 9. When any decree or order is for the delivery of posses- sion, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. Rule 10. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shaU have been made, shaU be enabled to enforce obedience to such order by the same process as if he were a party to the cause ; and every person, not being a party in any cause, against whom obedi- ence to any order of the court may be enforced, shaU be liable to the same process for enforcing obedience to such orders as if he were a party in the cause. SERVICE OF PROCESS. Rule 11. No process of subpoena shall issue from the clerk's office in any suit in equity unto, the bill is filed in the office. Rule 12. "Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall be returnable into the clerk's office the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the FOR COURTS OF EQUITY. 301 issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defendant is to enter his ap- pearance in the suit in the clerk's office on or before the day at which the writ is returnable ; otherwise, the bill may be taken 'pro confesso. "Where there are more that one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of hus- band and wife defendants, or a joint subpoena against aU the defendants. B,tile 13. The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant per- sonally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult per- son who is a member or resident in the family. Rule 14. "Whenever any subpoena shall be returned not executed as to any defendant, the plaintifif shall be entitled to another subpoena, toties quoties, against such defendant, if he shall re- quire it, until due service is made. Mule Id. The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof. Mule 16. Upon the return of the subpoena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. APPEARANCE. Mule 17. The appearance-day of the defendant shall be the rule-day to which the subpoena is made returnable, provided he has 302 SUPREME COURT RULES been served witli the process twenty days before that day ; otherwise his appearance-day shall be the next rule-day suc- ceeding the rule-day when the process is returnable. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order-book on the day thereof by the clerk. BILLS TAKEN PEO OONFESSO. Rule 18. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer, or answer to the bill, in the clerk's office, on the rule-day next succeeding that of entering his appearance. In default there- of, the plaintiff may, at his election, enter an order (as of course) in the order-book, that the bill be taken pro confesso / and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed ; or the plaintifif, if he requires any dis- covery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when ar- rested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause. Mule 19. "When the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso, and such decree rendered shall be . deemed absolute, unless the court shall, at the same term, set aside the same, or enlJirge the time for filing the answer, upon cause shown upon motion and afiidavit of the defendant. And no such motion shall be FOR COURTS OF EQUITY. 303 granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall under- take to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. FEAME OF BILLS. Bule 20. Every bill, in the introductory part thereof, shall contain the names, places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the biU is brought. The form, in substance, shall be as follows : " To the judges of the circuit court of the United States for the district of : A. B., of , and a citizen of the State of , brings this his bill against C. D., of , and a citi- zen of the State of , and E. F., of ■, and a citizen of the State of . And thereupon your orator complains and says that," &c. Bule 21. The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common confed- eracy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff ; also what is com- monly called the charging part of the biU, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defence to the biU ; also what is commonly called the jurisdiction clause of the bill, that the acts com- plained of are contrary to equity, and that the defendant is without any remedy at law ; and the biU shall not be demur- rable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant by way of defence or excuse to the case made by the plaintiff for relief. The prayer of the bill shall ask the special rehef to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief ; and if an injunction, or a writ of ne exeat regno, or any 304 SUPREME COURT RULES other special order, pending the suit, is required, it shall also be specially asked for. Bule 22. If any persons, other than those named as defendants in the bUl, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bUl may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. Bule 23. The prayer for process of subpoena in the biU. shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fac^, so that the court may take order thereon, as justice may require upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process. Bule 24. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that, upon the instructions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. Bule 25. In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness, and directness in the allegations of bills and answers, the regular taxable costs for every biE and answer shall in no case exceed the sum which is allowed in the State court of chancery in the district, if any there be ; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer. FOR COURTS OF EQUITY. 305 SCANDAL AND IMPEKTINENCE IN BILLS. Bule 26. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary re- citals of deeds, documents, contracts, or other instruments, in hoBG verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on excep- tions, be referred to a master, by any judge of the court, for impertinence or scandal ; and if so found by him, the matter shall be expunged at the expense of the plaintiff, Etnd he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master shall report that the biU is not scandalous or im- pertinent, the plaintiff shall be entitled to all costs occasioned by the reference. Bule 27. No order shall be made by any judge for referring any bill, answer, or pleading, or other matter or proceeding, depending before the court, for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the par- ticular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examination. AMENDMENT OF BILLS. Bule 28. The plaintiff shall be at hberty, as a matter of course, and without payment of costs, to amend his biU, in any matters whatsoever, before any copy has been taken out of the clerk's ofice, and in any smaU matters afterwards, such as filling 20 306 SUPREME COURT RULES blanks, correcting errors of dates, misnomer of parties, mis- description of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as lie may do of course) after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without deky, furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish, in like manner, to the defendant, a copy of the whole bill as amended ; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. Bule 29. After an answer, or plea, or demurrer is put in, and before rephcation, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule-day, upon pay- ment of costs or without payment of costs, as the court or a judge thereof may in his discretion direct. But after replica- tion filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that, the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. Bule 30. If the plaintiff so obtaining any order to amend his biU after answer, or plea, or demurrer, or after rephcation, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no appUoation for any amendment had been made. FOR COURTS OF EQUITY. 807 DEMUEKEES AND PLEAS. Rule 31. No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel, that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant ; that it is not interposed for delay ; and, if a plea, that it is true in point of fact. Bute 32. The defendant may at any time before the bill is taken for confessed, or afterward with the leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue ; but in every case in which the biU specially charges fraud or combination, a plea to such part must be accompanied with an answer forti- fying the plea and explicitly denying the fraud and combina- tion, and the facts on which the charge is founded. Bule 33. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity' they ought to avail him. Rule 34. If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period unless the court shall be satisfied that the defendant has good ground, in point of law or fact, to interpose the same, and it was not interposed vexatiously or for delay. And, upon the overruliag of any plea or demurrer, the defendant shall be assigned to answer the bUl, or so much thereof as is covered by the plea or demurrer, the next succeeding rule-day, or at such other period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; in default whereof, the biU shall be taken against him pro confesso, and the matter thereof proceeded in and decreed accordingly. 308 SUPREME COURT RULES Hule 33. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintifif, allow him to amend his bill, upon such terms as it shall deem reasonable. 'Bute 36. No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the biU as it might by law have extended to. Bule 37. ISTo demurrer or plea shaU be held bad and overruled upon argument, only because the answer of the defendant may ex- tend to some part of the same matter as may be covered by such demurrer or plea. Rule 38. If the plaintiff shaU not reply to any plea, or set down any plea or demurrer for argument on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow 'him further time for that purpose. ANSWEES. Bule 39. The rule, that if a defendant submits to answer he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in aU cases by answer to insist upon all matters of defence (not being matters of abatement, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar ; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar and an answer in support of such plea, touching the matters set forth in the bill to FOR COURTS OP EQUITY. 309 avoid or repel the bar or defence. Thus, for example, a bond- fide purchaser, for a valuable consideration without notice, may- set up that defence by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compel- lable to inake any further answer or discovery of his title than he would be in any answer in support of such plea. Rule 40. A defendant shall not be bound to answer any statement or charge in the bill, imless specially and particularly interrogated thereto ; and a defendant shall not be bound to answer any interrogatory in the bill, except those interrogatories which such defendant is required to answer ; and where a defendant shall answer any statement or charge in the bill to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent. December Teem, 1850. Ordered, That the fortieth rule, heretofore adopted and pro- mulgated by this court as one of the rules of practice in suits in equity in the circuit courts, be, and the same is hereby, repealed and annulled. And it shall not hereafter be neces- sary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so, to obtain a discovery. Mule 41. The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3, «fec. ; and the inter- rogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say : " The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3," &c. ; and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such de- fendant shall require to be furnished with a copy of the whole bill. 310 SUPREME COURT RULES Decembee Teem, 1871. Amendment to 41s< Equity JRule. If the complainant, in his bill, shall -waive an answer under oath, or shaU only require an answer under oath with regard to certain specified interrogatories, the answer of the defend- ant, though under oath, except such part thereof as shaU be directly responsive to such interrogatories, shall not be evi- dence in his favor, unless the cause be set down for hearing on bill and answer only ; but may nevertheless be used as an affidavit, with the same eflFect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of Congress of July 2, 1864. Mule 42. The note at the foot of the bill, specifying the interrogato- ries which each defendant is required to answer, shall be con- sidered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note, after the bill is filed, shall be considered and treated as an amendment of the bill. Rule 43. Instead of the words of the bill now in use, preceding the interrogating part thereof, and beginning with the words " To the end therefore," there shall hereafter be used words in the form or to the effect following : " To the end, therefore, that the said defendants may, if they can, show why your orator should not have the rehef hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, fuU, true, direct, and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer; that is to say — " 1. Whether, &c. " 2. Whether, &c." FOR COURTS OF EQUITY. 311 Mvie 44. A defendant shall be at liberty, by answer, to decline answering any interrogatory, or part of an interrogatory, from answering which, he might have protected himself by demurrer ; and he shall be at liberty so to decline notwithstand- ing he shall answer other parts of the bill from which he might have protected himself by demurrer. Mule 43. No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court, or a judge thereof, may in his discretion direct. Hule 46. In every case where an amendment shall be made after answer filed, the defendant shall put in a new or supplemental answer on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court ; and upon his default, the like proceedings may be had as in cases of an omission to put in an answer. PARTIES TO BILLS. Rule 47. In all cases where it shall appear to the court that persons, who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdic- tion of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties ; and in such cases the decree shall be w;ithout prejudice to the rights of the absent parties. Rule 48. Where the parties on either side are very numerous, and 312 SUPREME COURT RULES cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making aU of them parties, and may pro- ceed in the suit, having sufficient parties before it to represent all the adverse interest of the platntiifs and the defendants in the suit properly before it. But, in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. Rule 49. In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give dis- charges for the proceeds of the sale, and for the rents and prof- its of the estate, such trustees shall represent the persons ben- eficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit ; but the court may, upon considera- tion of the matter on the hearing, if it shall so think fit order such persons to be made parties. Mule 50. In suits to execute the trusts of a wOl, it shall not be neces- sary to make the heir at law a party ; but the plaintiffs shaU be at liberty to make the heir at law a party where he desires to have the will established against him. Rule 31. In aU cases in which the plaintiff has a joint and several de- mand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand, all the persons Mable thereto ; but the plaintiff may proceed against one or more of the per- sons severally hable. Rule 52. Where the defendant shall, by his answer, suggest that the FOK COURTS OF EQUITY. 313 bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only ; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order-book, in the form or to the effect ,|oUovving (that is to say ) : " Set down upon the defendant's objection for want of parties." And where the plaintiff shall not set down his cause, but shall proceed there- with to a hearing, notwithstanding an objection for want of parties taken by the answer, he shaU not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. Rule 53. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description of parties to whom the objection applies, the court (if it shall think fit) shaU be at liberty to make a decree saving the rights of the absent parties. i;roMmAL pahties to bills. Sule 34, "Where no account, payment, conveyance, or other direct re- lief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his biU ; but he may appear and an- swer at his option ; and if he does not appear and answer he shall be bound by aU the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. little 33. "Whenever an injunction is asked for by the biU to stay pro- 314 SUPEEME COUET EULES ceedings at law, if the defendant do not enter his appearance, and plead, demur, or answer to the same within the time pre- scribed therefor by these rules, the plaintiff shall be entitled as of course, upon motion, without notice, to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a heariag, which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case where an injunction — either the common injunc- tion or a special injunction — is awarded in vacation, it shall, unless previously dissolved by the judge granting the sarnie, continue until the next term of the court, or until it is dissolved by some other order of the court. BILLS OF EEYIYOE AISTD SUPPLEMENTAL BILLS. Utile 36. "Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a biU of revivor, as the circumstances of the case may require, filed by the proper parties, entitled to revive the same ; which bin may be filed in the clerk's office at any time ; and, upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule-day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. jRule 37. Whenever any suit in equity shall become defective from any event happening after the filing of the bill, (as, for exam- ple, by change of interest in the parties,) or for any other rear son a supplemental bUl, or a biU in the nature of a supplemen- tal bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule-day, upon proper cause shown, and due notice to the other FOR COURTS OF EQUITY. 315 party. And if leave is granted to file such supplemental biU, the defendant shall demur, plead, or answer thereto, on the next succeeding rule-day after the supplemental bUl is filed in the clerk's office, unless some other time shaU. be assigned by a judge of the court. IRule 58. It shall not be necessary in any biU. of revivor or supple- mental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. ANSWEES. Hule 39. Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any com- missioner appointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a State or Territory. AMEE"DMENT OF ANSWEES. Bute 60. After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be resworn, at any time before a replication is put in, or the cause is set down for a hearing upon bill and answer. But after replication, or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defences, or quaUfying or altering the original state- ments, except by special leave of the court, or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by affidavit ; and in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom. 316 SUPREME COURT RULES EXCEPTIONS TO AJSrSWEKS. Rule 61. After an answer is filed on any rule-day, the plaintiff shaU be allowed until the next succeeding rule-day to file in the clerk's oflBce exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court, or a judge thereof; and, if no excep- tion shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. Bule 62. When the same sohcitor is employed for two or more de- fendants, and separate answers shall be filed, or other proceed- ings had, by two or more of the defendants separately, costs shall not be allowed for such separate answers, or other pro- ceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were nec- essary or proper, and ought not to have been joiued together. Bule 63. "Where exceptions shall be filed to the answer for insuffi- ciency, within the period prescribed by these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule-day thereafter, before a judge of the court, and shall enter, as of course, in the order-book, an order for that purpose ; and if he shall not so set down the same for a hearing, the excep- tions shall be deemed abandoned, and the answer shall be deemed sufficient ; provided, however, that the court, or any judge thereof, may, for good cause shown, enlarge the time for fihng exceptions, or for answering the same, in his discre- tion, upon such terms as he may deem reasonable. Rule 64. If, at the hearing, the exceptions shall be allowed, the de- fendant shall be bound to put in a full and complete answer thereto on the next succeeding rule-day ; otherwise the plain- FOR COUETS OF EQUITY. 317 tiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the ex- ceptions ; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct. Mule OS. If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, the prevailing party shall be entitled to aU the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions. EEPLICATION AND ISSUE. Bule 66. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next suc- ceeding rule-day thereafter ; and in all cases where the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such repUcation within the prescribed period, the defendant shaU be entitled to an order, as of course, for a dismissal of the suit ; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion, for cause shown, allow a replication to be filed nunc pro time, the plaintiff submitting to speed the cause, and to such other terms as may be directed. TESTIMONY— HOW TAKEN. Itule 67. After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories 318 SUPREME COURT RULES filed by tlie party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases, the commissioner or commissioners shall be named by the court, or by a judge thereof. If the parties shall so agree, the testi- mony may be taken upon oral intertogatories by the parties or their agents, without filing any written interrogatories. Deoembee Tekm, 1854. Ordered, That the sixty-seventh rule governing equity prac- tice be so amended as to allow the presiding judge of any court exercising jurisdiction, either in term time or in vacation, to vest in the clerk of said court general power to name com- missioners to take testimony in like manner that the court or judge thereof can now do by the said sixty-seventh rule. Deoembee Teem, 1861. Ordered, That the last paragraph in the sixty-seventh rule in equity be repealed, and the rule be amended as follows : Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an exam- iner to be specially appointed by the court, the exanoiner to be furnished with a copy of the bill and answer, if any ; and such examination shall take place in the presence of the par- ties, or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-examinar tion, and which shall be conducted as near as maj"^ be in the mode now used in common-law courts. The depositions taken upon such oral examinations shall be taken down in writing by the examiner in the form of narrative, unless he determines the examination shall be by question and answer in special instances ; and when completed, shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend ; provided, if the witness shall refuse to sign the said deposition, then the examiner shall sign the FOR COURTS OF EQUITY. 319 same ; and the examiner may, upon all examinations, state any special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions ; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. The comjpulsory aitendwnce of witnesses. In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or so- licitor, the same practice shall be adopted as is now practised with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors, to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the ex- aminer may fix by order in each cause. "When the examination of witnesses before the examiner is concluded, the original deposition, authenticated by the signa- ture of the examiner, shall be transmitted by him to the clerk of the court, to be there filed. of record, in the same mode as prescribed in the thirtieth section of act of Congress, Septem- ber 24th, 1789. Testimony may be taken on commission in the usual way, by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. December Teem, 1869. Amendment to GTth Rule. Where the evidence to be adduced in a cause is to be taken orally, as provided in the order passed at the December term, 1861, amending the 67th General Eule, the court may, on mo- tion of either party, assign a time within which the complain- ant shall take his evidence in support of the biU, and a time thereafter within which the defendant shall take his evidence in defence, and a time thereafter within which the complainant 320 SUPREME COURT RULES shall take his evidence in reply ; and no further evidence shall be taken in the cause, unless by agreement of the parties, or by leave of court first obtained, on motion, for cause shown. Bule 68. Testimony may also be taken in the cause, after it is at issue, by deposition, according to the act of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affi- davit of the fact, be entitled to a cross-examination of the wit- ness, either under a commission or by a new deposition taken under the acts of Congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable. Bule 69. Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Im- mediately upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the olerk's office, by any judge of the court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the circumstances ; but, by consent of the parties, publication of the testimony may at any time pass into the clerk's office, such consent being in writing, and a copy thereof entered in the order-books, or in- dorsed upon the deposition or testimony. TESTIMONY DE BENE ESSE. Bule 70. After any biU filed and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's wit- nesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commis- sioners as a judge of the court may direct, to take the exami- FOR COURTS OF EQUITY. 321 nation of such witness or witnesses de lene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. FORM OF THE LAST ESTTEEEOGATOEY. Mule 71. The last interrogatory in the written interrogatories to take testimony now commonly in use shaU in the future be altered, and stated in substance thus : " Do you know, or can you set forth, any other matter or thing which may be a benefit or ad- vantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examina- tion, or the matters in question in this cause ? If yea set forth the same fully and at large in your answer." CEOSS-BILL. Rule 72. Where a defendant in equity files a cross-bUl for discovery only against the plaintiff in the original biU, the defendant to the original bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restrictions as the answer praying rehef may now be read and used. EEFEEEJSrCE TO AISTD PEOCEEDIl^GS BEFOEE MASTEES. Mule 73. Every decree for an account of the personal estate of a testa- tor or intestate shall contain a direction to the master to whom it is referred to take the same to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct. Bule 74. Whenever any reference of any matter is made to a master 21 322 SUPREME COURT RULES to examine and report thereon, the party at whose instance or for whose benefit the reference is made shall cause the same to be presented to the master for a hearing on or before the next rule-day succeeding the time when the reference was made ; if he shall omit to do so, the adverse party shaU be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. Rule 75, Upon every such reference, it shall be the duty of the mas- ter, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at Uberty to proceed ex parte, or, in his discretion, to adjourn the examina- tion and proceedings to a future day, giving notice to the absent party or his sohcitor of such adjournment ; and it shall be the duty of the master to proceed with all reasonable dili- gence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the pro- ceedings and to make his report and to certify to the court or ' judge the reasons for any delay. Btde 76. In the reports made by the master to the court, no part of any state of facts, charge, afiidavit, deposition, examination, or answer brought in or used before them shall be stated or recited. But such state of facts, charge, affidavit, deposition, examination, or answer shall be identified, specified, and re- ferred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination, or answer were so brought in or used. JRule 77. The master shall regulate all the proceedings in every hear- ing before him, upon every such reference ; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference ; and also to FOR COURTS OF EQUITY. 323 require the production of all books, papers, ^VTitings, vouchers, and other documents applicable thereto ; and also to examine on oath viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's oiflce or by deposition, according to the acts of Congress, or otherwise, as hereinafter provided ; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do aU other acts, and direct all other inquiries and proceedings in the matters before hira, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. B%de 78. Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear before the com- missioner appointed to. take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court ; and if any witness shaU refuse to appear or give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an at- tachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein contained shall prevent the examination of witnesses vwa voce when produced in open court, if the court shall, in its discretion, deem it advisable. Rule 79. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the ac- counting party viva voce, or upon interrogatories, in the mas- ter's office, or by deposition, as the master shall direct. 324 SUPREME COURT RULES Rule 80. All afladavits, depositions, and documents which have been previously made, read, or used in the court, upon any proceed- ing in any cause or matter, may be used before the master. Rule 81. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon writ- ten interrogatories or viva voce, or in both modes, as the nat- ure of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. Bule 82. The circuit courts may appoint standing masters in chancery in their respective districts, both the judges concurring in the appointment ; and they may also appoint a master pro hoc vice in any particular case. The compensation to be allowed to every master in chancery for his services in any particular case shall be fixed by the circuit court, in its discretion, having re- gard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation ; but, when the com- pensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the tune prescribed by the court. EXCEPTIONS TO EEPOET OF MASTER Rule 83. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file exceptions thereto ; and, if no exceptions are within that period filed by FOR COURTS OF EQUITY. 325 either party, the report shall stand confirmed on the next rule- day after the month is expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in session ; or, if not, then at the next sitting of the court which shall be held thereafter, by adjournment or otherwise. Rule 84. And, in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs ; the cost to be fixed in each case by the court, by a standing rule of the circuit court. DECREES. Rule 85. Clerical mistakes in decrees or decretal orders, or errors aris- ing from any accidental slip or omission, may, at any time be- fore an actual enrolment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or ex- pense of a rehearing. Btae 86. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the re- port of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin, in substance, as follows : " This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz : " [Here insert the decree or order.] GUAEDIANS AND PEOCHEIN" AMIS. Mule 87. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other per- sons who ai-e under guardianship, or otherwise incapable to 326 SUPREME COURT RULES sue for themselves. All infants and other persons so incapa- ble may sue by their guardians, if any, or by their prochein arnii ; subject, however, to such orders as the court may direct for the protection of infants and other persons. Bule 88. Every petition for a rehearing shall contain the special mat- ter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been en- tered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. Mule 89. The circuit courts (both judges concurring therein) may make any other and further rules and regulations for the prac- tice, proceedings, and process, mesne and final, in their respec- tive districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. Bule 90. In aU cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the high court of chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local con- veniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice. JRule 91. Whenever, under these rules, an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. FOR COURTS OF EQUITY. 327 Decembee Teem, 1863. Mule 92. Ordered, That in suits in equity for the foreclosure of mort- gages in the circuit courts of the United States, or in any court of the Territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complayiant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the eighth rule of this court regulating the equity practice, where the decree is solely for the payment of money. OcTOBEE Teem, 1878. INJUNCTIONS. Mule 93. When an appeal from a final decree, in an equity suit, grant- ing or dissolving an injunction, is allowed by a justice or judge who took part in the decision of the cause, he may, in his dis- cretion, at the time of such allowance, make an order suspend- ing or modifying the injunction during the pendency of the appeal, upon such terms as to bond or otherwise as he may con- sider proper for the security of the rights of the opposite party. OcTOBEB Teem, 1881. Mule 94. Every bill brought by one or more stockholders in a corpo- ration, against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since, by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action. 328 SUPREME COURT RULES. The following provisions relating to equity practice a/re to le found in the act of 1st of June, 1872 : Sec. T. That whenever notice is given of a motion for an in- junction, out of a circuit or district court of the United States, the court or judge thereof may, if there appear to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the^otion. Such order may be granted with or without security, in the discretion of the court or judge : Provided, That no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order except within the circuit to which he is allotted, and in causes pending in the circuit to which he is allotted, or in such causes at such place outside of the circuit as the parties may in writing stipulate, except in causes where such application cannot be heard by the ckcuit judge of the circuit, or the district judge of the district. Sec. 13. That when in any suit in equity, commenced in any court in the United States, to enforce any legal or equitable lien or claim against real or personal property within the dis- trict where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be law- ful for the court to make an order directing such absent de- fendant to appear, plead, answer, or demur to the complain- ant's bill at a certain day therein to be designated, which order shall be served on such absent defendant, if practicable, wherever found ; or where such personal service is not practi- cable, such order shall be published in such a manner as the court shall direct ; and in case such absent defendant shall not appear, plead, answer* or demur within the time so limited, or within some further time to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdic- tion, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards such absent defendant without appearance, afifect his property within such district only. IV. FEDEKAL STATUTES BSPECIALLT RELATING TO THE P0T7EB OP THE SUPREME COURT OF THE UNITED STATES, TO EEGULATE THE PEACTICE TO BE USED IN ADMIRALTY AND MARITIME CASES, BY THE CIRCUIT AND DISTRICT COURTS OF TEE UNITED STATES, AND THE EULES OE PEACTICE ADOPTED BT THJi SUPREME COURT OF THE UNITED STATES, FOB THE COURTS OF THE UNITED STATES, In Admiralty and Maritime Jurisdiction, on the Instance Side of the Court, in pursuance of the Act of 33d of August, 1843, chapter 188. FEDEEAL STATUTES ESPECIALLY BBLATINa TO THE POWER OF THE SUPEEME COURT TO REGULATE THE PRACTICE TO BE USED IN ADMIRALTY AND MARITIME CASES BY THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES. Sec. 913. The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and maritime jurisdiction in the circuit and district courts shall be according to the principles, rules, and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rtiles of court made in pursuance thereof ; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States. Revised Statutes (Second Edition), § 913, p. 174 ; Act of Congress of 29th Sept., 1789, ch. 21, sec. 2, 1 Stat, at Large, 93; Act of Congress of 8th May, 1792, ch. 36, sec. 2, 1 Stat, at Large, 276; Act of Congress of 19th May, 1828, ch. 68, sec. 1, 4 Stat, at Large, 278; Act of Congress of 1st August, 1843, ch. 109, 5 Stat, at Large, 499. Sec. 917. The Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other pro- cess, the modes of framing and filing proceedings and plead- ings, of taking and obtaining evidence, of obtaining discovery, of proceeding to obtain reUef, of drawing up, entering, and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in equity or admiralty, by the circuit and dis- trict courts. Revised Statutes (Second Edition), § 917, p. 175; Act of Congress of 23d of August, 1842, ch. 188, sec. 6, 5 Stat, at Large, 518. See also Act of Congress of 3d March, 1851, referred to immediately ' before Rule 54, ch. 43, 9 Stat, at Large, 635, of which act sections 1, 3, 4, 5/ 6 and 7, will be found embodied in the following sections of the Revised Statutes (Second Edition), viz., § § 4282^389 inclusive, p. 837. EULES OF PKAOTICE ADOPTED BY THE SUPKEME COURT OF THE UNITED STATES FOR THE COURTS OF THE UNITED STATES m ADMIKALTY AND MARITIME JURISDICTIOISr, OJSr THE INSTANCE SIDE OF THE COURT, IN "PURSUANCE OF THE ACT OF THE 23d OF AUGUST, 1842, CHAPTER 188. JRule 1. No mesne process shall issue from the district courts in any civil cause of admiralty and maritime jurisdiction until the Mbel, or Ubel of information, shall be filed in the clerk's office from which such process is to issue. All process shall be served by the marshal or by his deputy, or, where he or they are in- terested, by some discreet and disinterested person appointed by the court. Hule 2. In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant, in the nature of a capias, or by a warrant of arrest of the person of the de- fendant, with a clause therein, that if he cannot be found, to attach his goods and chattels to the amount sued for ; or if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein ; or by a simple monition, in the nature of a summons to appear and answer to the suit, as the libeUant shall, in his hbel or information, pray for or elect. 332 SUPREME COURT RULES Rule 3. In all suits in personam, where a simple warrant of arrest issues and is executed, the marshal may take baU, with sufficient sureties, from the party arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in any appellate court. And upon such bond or stipulation, summary process of execution may and shall be issued against the principal and sureties by the court to which such process is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. Hide 4. In all suits in personam, where goods and chattels, or credits and effects, are attached under such warrant authorizing the same, the attachment may be dissolved by order of the court to which the same warrant is returnable, upon the defendant whose property is so attached giving a bond, or stipulation, with sufficient sureties, to abide by all orders, interlocutory or final, of the court, and pay the amount awarded by the final decree rendered in the court to which the process is returnable, or in any appellate court ; and upon such bond or stipulation, summary process of execution shall and may be issued against the principal and sureties by the court to which such warrant is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. Mule 5. Bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, or before any commis- sioner of the court who is authorized by the court to take affidavits of bail and depositions in cases pending before the court, or any commissioner of the United States authorized by law to take baU and affidavits in civil cases. Mule 6. In all suits in personam, where bail is taken, the court may, upon motion, for due cause shown, reduce the amount of the FOR COURTS OF ADMIRALTY. 333 sum contained in the bond or stipulation therefor ; and in all cases where a bond or stipulation is taken as bail, or upon dis- solving an attachment of property as aforesaid, if either of the sureties shall become insolvent pending the suit, new sureties may be required by the order of the court, to be given, upon motion, and due proof thereof. Rule 7. In suits m personam, no warrant of arreSt, either of the per- son or property of the defendant, shall issue for a sum exceed- ing five hundred dollars, unless by the special order of the court, upon affidavit or other proper proof showing the pro- priety thereof. Mule 8. In all suits in rem against a ship, her tackle, sails, apparel, furniture, boats, or other appurtenances, if such tackle, sails, apparel, furniture, boats, or other appurtenances are in the pos- session or custody of any third person, the court may, after a due monition to such third person, and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the custody of the marshal or other proper officer, if, upon the hearing, the same is required by law and justice. Hule 9. In all cases of seizure, and in other suits and proceedings m rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods, or other thing to be arrested ; and the marshal shall thereupon arrest and take the ship, goods, or other thing into his possession for safe custody, and shall cause public notice thereof and of the ' time assigned for the return of such process and the hearing of the cause, to be given in such newspaper within the district as the district court shaU order ; and if there is no newspaper pub- lished therein, then in such other pubhc places in the district as the court shall direct. Mule 10. In all cases where any goods or other things are arrested, if 334: SUPREME COURT RULES the same are perishable, or are hable to deterioration, decay, or injury, by being detained in custody pending the suit, the court may, upon the apphoation of either party, in its discre- tion, order the same or so much thereof to be sold as shall be perishable or liable to depreciation, decay, or injury; and the proceeds, or so much thereof as shall be a full security to sat- isfy in decree, to be brought into court to abide the event of the suit ; or the court may, upon the application of the claim- ant, order a delivery thereof to him, upon a due appraisement, to be had under its direction, either upon the claimant's de- positing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, in such sum as the court shall direct, to abide by and pay the money awarded by the final decree rendered by the court, or the appellate court, if any appeal intervenes, as the one or the other course shall be ordered by the court. Rule 11. In like manner, where any ship shall be arrested, the same may, upon the application of the claimant, be delivered to him upon a due appraisement, to be had under the direction of the court, upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, as aforesaid ; and if the claimant shall decline any such application, then the court may, in its discretion, upon the ap- phcation of either party, upon due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court or otherwise disposed of, as it may deem most for the benefit of aU concerned. Rule 12. In all suits by material men for supplies or repairs, or other necessaries, the Mbellant may proceed against the ship and freight m rem, or against the master or owner alone mperso- nmrv. Mule 13. In aU suits for mariners' wages, the libellant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone in personam. FOR COURTS OF ADMiRALTY, 335 Mule 14. In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, or against the owner alone or the master alone in personam. Rule 15, In all suits for damage by collision, the libellant may pro- ceed against the ship and master, or against the ship alone or against the master or the owner alone mpersonmn. Hule 16. In aU suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only. Mule 17. In aU suits against the ship or freight, founded upon a mere maritime hypothecation, either express or implied, of the mas- ter, for moneys taken up in a foreign port for supphes or re- pairs or other necessaries for the voyage, without any claim of marine interest, the libellant may proceed either in rem, or against the master or the owner alone in personam. Mule 18. In all suits on bottdmry bonds, properly so called, the suit shall be in rem only against the property hypothecated, or the proceeds of the property, in whosesoever hands the same may be found, unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has, by his own misconduct or wrong, lost or subtracted the prop- erty, in which latter cases the suit may be in personam against the wrong-doer; Mule 19. In all suits for salvage, the suit may be in rem against the property saved, or the proceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service has been performed. 336 SUPREME COURT RULES Rule 20. In all petitory and possessory suits between part owners or adverse proprietors, or by the owners of a ship, or the major- ity thereof, against the master of a ship, for the ascertainment of the title and delivery of the possession, or for the possession only, or by one or more part owners against the others to ob- tain security for the return of the ship from ahy voyage under- taken without their consent, or by one or more part owners against the others to obtain possession of the ship for any voy- age, upon giving security for the safe return thereof, the pro- cess shall be by an arrest of the ship, and by a monition to the adverse party or parties to appear and make answer to the suit. Mule 21. In all cases of a final decree for the payment of money, the libeUant shall have a vn'it of execution, in the nature of &jieri facias, commanding the marshal or his deputy to levy and col- lect the amount thereof out of the goods and chattels, lands and tenements, or other real estate, of the defendant or stipu- lators. Bule 22. All informations and libels of information upon seizures for any breach of the revenue, or navigation, or other laws of the United States, shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought aud where it then is. The information or libel of information shall also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shaU conclude with a prayer of due process to enforce the forfeiture, and to give nptice to all persons concerned in interest to appear and show cause at the return-day of the process why the forfeiture should not be decreed. Bule 23. All libels in instance causes, civil or maritime, shall state the FOR COURTS OF ADMIRALTY. 337 nature of the cause ; as, for example, that it is a cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be ; and if the libel be m rem, that the property is within the district ; and, if in per- sonam, the names and occupations and places of residence of the parties. The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article ; and it shall conclude with a prayer of due process to enforce his rights, m rem or in jpersonmn (as the case may require), and for such relief and redress as the court is competent to give in the premises. And the hbeUant may further require the defendant to answer on oath all inter- rogatories propounded by him touching aU and singular the allegations in the hbel at the close or conclusion thereof. Rule 24. In aU informations and libels in causes of admiralty and maritime jurisdiction, amendments in matters of form may be made at any time, on motion to the court, as of course. And new counts may be filed, and amendments in matters of sub- stance may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant. Rule 25. In aU cases of libels in personam, the court may, in its dis- cretion, upon the appearance of the defendant, where no baU has been taken, and no attachment of property has been made to answer the exigency of the suit, require the defendant to give a stipulation, with sureties, in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication thereof, or by any interlocutory order in the progress of the suit. Rule 26. In suits in rem, the party claiming the property shall verify 22 338 SUPREME COURT RULES his claim on oath or solemn afflrmation, stating that the claimant by whom or on whose behalf the claim is made is the true and bona fide owner, and that no other person is the owner thereof. And where the claim is put in by an agent or consignee, he shall also make oath that he is duly authorized thereto by the owner ; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner. And, upon putting in such claim, the claimant shall file a stipulation, with sureties, in such sum as the court shall direct, for the payment of all costs and expenses which shall be awarded against him by the final decree of the court, or, upon an appeal, by the appellate court. Bule 27. In all libels in causes of civil and maritime jurisdiction, whether in rem or in personam, the answer of the defend- ant to the allegations in the libel shall be on oath or solemn affirmation ; and the answer shaR be full and explicit and dis- tinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory propounded at the close of the hbel. Mule 28. The libellant may except to the sufficiency, or fullness, or distinctness, or relevancy of the answer to the articles and interrogatories in the Ubel; and, if the court shall adjudge the same exceptions, or any of them, to be good and valid, the court shall order the defendant forthwith, within such time as the court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge reasonable. Rule 29. If the defendant shall omit or refuse to make due answer to the libel upon the return-day of the process, or other day as- signed by the court, the court' shall pronounce him to be in contumacy and default ; and thereupon the libel shall be ad- judged to be taken pro confesso against him, and the court shall FOR COUKTS OF ADMIRALTY: 339 proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain. But the court may, in its discretion, set aside the default, and, upon the application of the defendant, admit him to make answer to the libel, at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave there- for. * Rule SO. In aU cases where the defendant answers, but does not an- swer fully and explicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by at- tachment, compel the defendant to make further answer there- to, or may direct the matter of the exception to be taken pro confesso against the defendant, to the full purport and effect of the article to which it purports to answer, and as if no an- swer had been put in thereto. Mule 31. The defendant may object, by his answer, to answer any allegation or interrogatory contained in the libel which wiU expose him to any prosecution or punishment for crime, or for any penalty or any forfeiture of his property for any penal offence. Hule 32. The defendant shall have a right to require the personal an- swer of the libellant- upon oath or solemn affirmation to any interrogatories which he may, at the close of his answer, pro- pound to the hbellant touching any matters charged in the libel, or touching any matter of defence set up in the answer, subject to the like exception as to matters which shall expose the libellant to any prosecution or punishment, or forfeiture, as is provided in the thirty-first rule. In default of due answer by the libellant to such interrogatories, the court may adjudge the hbellant to be in default, and dismiss the libel, or may com- pel his answer in the premises, by attachment, or take the sub- ject-matter of the interrogatory ^TO confesso in favor of the defendant, as the court, in its discretion, shall deem most fit to promote public justice. ' 340 SUPREME COURT RULES Bule 33. m Where either the hbellant or the defendant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discretion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be practicable. Mule 34. If any third person shajl intervene in any cause of admiralty and maritime jurisdiction m rem for his own interest, and he is entitled, according to the cause of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable allegations, to which, if admitted by the court, the other party or parties in the suit may be required, by order of the court, to make due answer ; and such further proceedings shaU be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervener shall be required, upon filing his allegations, to give a stipulation, with sureties, to abide by the final decree ren- dered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final de- cree, whether it is rendered in the original or appellate court. Rule 35. The stipulations required by the last preceding rule, or on appeal, or in any other admiralty or maritime proceeding, shall be given and taken in the manner prescribed by rule fifth as amended. Bule 36. Exceptions may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, or scandal; and if, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shaU be expunged, at the cost and expense of the party in whose libel or answer the same is found. FOR COURTS OF ADMIRALTY. 341 Rule 37. In cases of foreign attachment, the garnishee shall be re- quired to answer on oath or solemn aifirmation as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded by the libellant ; and if he shall refuse or neglect to so do, the court may award compulsory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands, liable to answer the exigency of the suit. Hule 38. In cases of mariners' wages, or bottomry, or salvage, or other proceedings in rem, where freight or other proceeds of prop- erty are attached to or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application, by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit ; and if no sufficient cause be shown, the court may order the same to be brought into court to an- swer the exigency of the suit, and, upon failure of the party to comply with the order, may award an attachment, or other compulsive process, to compel obedience thereto. JEtule 39. If, in any admiralty suit, the Hbellant shall not appear and prosecute his suit, according to the course and orders of the court, he shall be deemed in default and contumacy ; and the court may, upon the application of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs. Mtde 40. The court may, in its discretion, upon the motion of the defendant and the payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against htm, and grant a rehearing thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct. 342 SUPREME COURT RULES Rule 4:1. All sales of property under any decree of admiralty shaU be made by the marshal or his deputy, or other proper officer assigned by the court, where the marshal is a party in inter- est, in pursuance of the orders of the court ; and the proceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law. Rule 42. All moneys paid into the registry of the court shall be de- posited in some bank designated by the court, and shall be so deposited in the name of the court, and shall not be drawn out, except by a check or checks, signed by a judge of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn, and in what suit and out of what fund in particular it is paid. The clerk shaU keep a regular book, containing a memorandum and/ copy of all the checks so drawn and the date thereof. Rule 43. Any person having an interest in any proceeds in the reg- istry of the court shall have a right, by petition and summary proceedings, to intervene joro interesse suo for a delivery thereof to him ; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree therein according to law and justice. And if such petition or claim shall be deserted, or, upon a hearing, be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party. Rule 44. In cases where the court shall deem it expedient or neces- sary for the purposes of justice, the court may refer any mat- ters arising in the progress of the suit to one or more commis- sioners, to be appointed by the court, to hear the parties and make report therein. And such commissioner or commis- sioners shall have and possess all the powers in the premises which are usually given to or exercised by masters in chancery in reference to them, including the power to administer oaths FOR COURTS OF ADMIRALTY. 343 to and to examine the parties and witnesses touching the premises. Rule 45. All appeals from the district to the circuit court must be made while the court is sitting, or within such other period as shall be designated by the district court by its general rules, or by an order specially made in the particular suit ; or in case no such rule or order be made, then within thirty days from the rendering of the decree. Bule 46. In all cases not provided for by the foregoing rules, the dis- trict and circuit courts are to regulate the practice of the said courts respectively, in such manner as they shall deem most expedient for the due administration of justice in suits in admiralty. Mule 47. In all suits m personam, where a simple warrant of arrest issues and is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the Jaws of the State where an arrest is made upon similar or analogous process issuing from the State courts. And imprisonment for debt, on process issuing out of the admiralty court, is abolished in all cases where, by the laws of the State in which the court is held, imprisonment for debt has been, or shall be hereafter, abolished, upon similar or analogous process issuing from a State court. Mule 48. The twenty-seventh rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclusive of costs, unless the district court shall be of opinion that the proceedings prescribed by that rule are necessary for the pur- poses of justice in the case before the court. All rules and parts of rules heretofore adopted, inconsistent with this order, are hereby repealed and annulled. Mule 49. Further proof, taken in a circuit court upon an admiralty 344 SUPREME COURT RULES appeal, shall be by deposition, taken before some commissioner appointed by a circuit court, pursuant to the acts of Congress in that behalf, or before some officer authorized to take depo- sitions by the thiftieth section of the act of Congress of the 24th of September, 1789, upon an oral examination and cross- examination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such depositions upon written interrogatories and cross-interrogatories. When such deposi- tion shall be taken by oral examination, a notification from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending, to the ad- verse party, to be present at the taking of the same, and to put interrogatories, if he think fit, shall be served on the adverse party or his attorney, allowing time for their attendance after being notified not less than twenty-four hours, and, in addition thereto, one day, Sundays exclusive, for every twenty miles' travel ; provided, that the court in which such appeal may be pending, or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required. Rule 50. "When oral evidence shall be taken down by the clerk of the district court, pursuant to the above mentioned section of the act of Congress, and shall be transmitted to the circuit court, the same may be used in evidence on the appeal, saving to each party the right to take the depositions of the same witnesses, or either of them, if he should so elect. Hule 51. When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libellant, and no rephca- tion, general or special, shall be allowed. But within such time after the answer is filed as shall be fixed by the district court, either by general rule or by special order, the hbellant may amend his libel so as to confess and avoid, or explain or add to, the new matters set forth in the answer ; and within such time as may be fixed, in like manner, the defendant shaU answer such amendments. FOR COURTS OF ADMIRALTY. 345 Rtde 52. The clerks of the district courts shall make up the records to be transmitted to the circuit courts on appeals, so that the same shall contain the following : 1. The style of the court. 2. The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place. 3. If bail was taken, or property was attached or arrested, the process of the arrest or attachment and the service thereof ; aU bail and stipulations ; and, if any sale has been made, the orders, warrants, and reports relating thereto. 4. The libel, with exhibits annexed thereto. 5. The pleadings of the defendant, with the exhibits annexed thereto. 6. The testimony on the part of the libeUant, and any ex- hibits not annexed to the libel. 7. The testimony on the part of the defendant, and any ex- hibits not annexed to his pleadings. 8. Any order of the court to which exception was made. 9. Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report 'was not excepted to, only the fact that a reference was made, and so much of the report as shows what results were arrived at by the assessor, are to be stated. 10. The final decree. 11. The prayer for an appeal, and the action of the district court thereon ; and no reasons of appeal shall be filed or in- serted in the transcript. The following shall be omitted : 1. The continuances. 2. All motions, rules, and orders not excepted to which are merely preparatory fpr trial. 3. The commission^ to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some exception to a deposition in the district court was founded on some one or more of these ; in which case, so much of either of them as may be involved in the exception shall be set out. 346 SUPREME COURT RULES In all other cases it shall be sufficient' to give the name of the witness, and to copy the interrogatories and answers, and to state the name of the commissioner, and the place where and the date when the deposition was sworn to ; and, in copying all depositions taken on interrogatories, the answer shall be in- serted immediately following the question. 2. The clerk of the district court shall page the copy of the record thus made up, and shall make an index thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the district court in the cause named at the beginning of the copy made up pursuant to this rule ; and no other certificate of the record shall be needful or inserted. 3. Hereafter, in making up the record to be transmitted to the circuit court on appeal, the clerk of the district court shall omit therefrom any of the pleading, testimony, or exhibits which the parties by their proctors shall by written stipulation agree may be omitted ; and such stipulation shall be certified up with the record. Rule 33. Whenever a cross-libel is filed upon any counter-claim, aris- ing out of the same cause of action for which the original Hbel was filed, the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross-libel, unless the court, on cause shown, shall otherwise direct ; and all proceedings upon the original libel shall be stayed until such security shall be given. Supplementary rules of practice in admiralty, under the act of March 3, 1851, entitled "An act to limit the liability of ship-owners, and for other purposes." Rule 54. When any ship or vessel shall be libeled, or the owner or owners thereof shall be sued, for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or mer- chandise, shipped or put on board of such ship or vessel, or for any loss, damage, or injury by colhsion, or for any act, mat- FOR COURTS OF ADMIRALTY. 347 ter, or thing, loss, damage, or forfeiture done, occasioned, or incurred, without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limitation of liability provided for in the third and fourth sections of the said act above recited, the said ovraer or owners shall and may file a Hbel or petition in the proper dis- trict court of the United States, as hereinafter specified, setting forth the facts and circumstances on which such limitation of habihty is claimed, and praying proper reUef in that behalf ; and thereupon said court, having caused due appraisement to be had of the amount or value of the interest of said owner or owners, respectively, in such ship or vessel, and her freight, for the voyage, shall make an order for the pajTnent of the same into court, or for the giving of a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered ; or, if the said owner or owners shall so elect, the said court shall, without such appraisement, make an order for the transfer by him or them of his or their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of said act; and, upon compliance with such order, the said court shall issue a monition against all persons claiming damages for any such embezzlement, loss, destruction, damage, or injury, citing them to appear before the said court and make due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same ; and public notice of such monition shall be given as in other cases, and such further notice reserved through the post-offlce, or other- wise, as the court, in its discretion, may direct ; and the said court shaU also, on the application of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. Mule 55. Proof of all claims which shall be presented in pursuance of said monition shall be made before a commissioner, to be designated by the court, subject to the right of any person interested to question or controvert the same ; and, upon the completion of said proofs, the commissioner shall make report 348 SUPREME COURT RULES of the claims so proven, and upon confirmation of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court as aforesaid, or the proceeds of said ship or vessel and freight (after payment of costs and ex- pense), shall be divided ^o rata amongst the several claimants, in proportion to the amount of their respective claims, duly proved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. Mule 56. In the proceedings aforesaid, the said owner or owners shall be at liberty to contest his or their liability, or the liabihty of said ship or vessel for said embezzlement, loss, destruction, damage, or injury (independently of the limitation of Hability claimed under said act), provided that, in his or their hbel or petition, he or they shall state the facts and circumstances by reason of which exemption from liability is claimed ; and any person or persons claiming damages as aforesaid, and who shall have presented his or their claim to the commissioner under oath, shall and may answer such libel or petition, and contest the right of the owner or owners of said ship or vessel, either to an exemption from liability, or to a limitation of habihty under the said act of Congress, or both. Mule 57. The said libel or petition shall be filed and the said proceed- ings had in any district court of the United States in which said ship or vessel may be libeled to answer for any such em- bezzlement, loss, destruction, damage, or injury ; or, if the said ship or vessel be not libeled, then in the district court for any district in which the said owner or owners may be sued in that behalf. If tlie ship have already been libeled and sold, the pro- ceeds shall represent the same for the purposes of these rules. Mule 58. AH the preceding rules and regulations for proceeding in cases where the owner or owners of a ship or vessel shall desire to claim the benefit of Umitation of liability provided for in the act of Congress in that behalf, shall apply to the circuit FOR COURTS OF ADMIRALTY. 349 courts of the United States where such cases are or shall be pending in said courts upon appeal from the district courts. Mule 59. In a suit for damage by collision, if the claimant of any vessel proceeded against, or any respondent proceeded against m personam,, shall, by petition, on oath, presented before or at the time of answering the libel, or within such further time as the court may allow, and containing suitable allegations show- ing fault or negligence in any other vessel contributing to the same collision, and the particulars thereof, and that such other vessel or any other party ought to be proceeded against in the same suit for such damage, pray that process be issued against such vessel or party to that end, such process may be issued, and, if duly served, such suit shall proceed as if such vessel or party had been originally proceeded against ; the other parties in the suit shall answer the petition ; the claimant of such vessel or such new party shall answer the libel ; and such further proceedings shall be had and decree rendered by the court in the suit as to law and justice shall appertain. But every such petitioner shall, upon filing his petition, give a stipulation, with sufiicient sureties, to pay to the libellant and to any claimant or new party brought in by virtue of such process, all such costs, damages, and expenses as shall be awarded against the petitioner by the court upon the final decree, whether rendered in the original or appellate court ; and any such claimant or new party shall give the same bonds or stipulations which are required in like cases from parties brought in under process issued on the prayer of a UbeUant. V. FEDERAL STATUTES BELATIKQ TO THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES, ESPECIALLY TO THOSE EMBRACED WITHIN THE SECOND JUDICIAL CIRCUIT, AND THE RULES OF THE CIRCUIT AND DISTRICT COURTS OP THE UNITED STATES, EMBRACED WITHIN THE SECOND JUDICIAL CIECUIT. FEDEKAL STATUTES BELATIHO GEISrEBAXLT TO THE PRACTICE IN THE CIRCUIT AND DISTRICT COUETS ANB THEIE POWER TO MAKE EULES. Sec. 911. All writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof. Those issuing from the Supreme Court or a circuit court shall bear teste of the Chief Justice of the United States, or, when that oflBice is vacant, of the associate justice next in pre- cedence, and those issuing from a district court shall bear teste of the judge, or, when that office is vacant, of the clerk thereof. The seals of said courts shall be provided at the expense of the United States. Eevised Statutes (Second Edition), § 911, p. 174. Sec. 912. All process issued from the courts of the United States shall bear teste from the day of such issue. Revised Statutes (Second Edition), § 913, p. 174. Sec 913. The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and mai;itime jurisdiction in the circuit and district courts shall be according to the principles, rules, and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof ; but the same shall be subject to alteration S3 354 STATUTES RELATING TO PRACTICE and addition by the said courts, respectively, and to regulation by tbe Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States. Eevised Statutes (Second Edition), § 913, p. 174. Sec. 914. The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shaU conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding. Revised Statutes (Second Edition), § 914, p. 174. Sec. 915. In common-law causes in the circuit and district courts the plaintiff shaU be entitled to similar remedies, by at- tEichment or other process, against the property of the defend- ant, which are now provided by the laws of the State in which such court is held for the courts thereof ; and such circuit or district courts may, from time to time, by general rules, adopt such State laws as may be in force in the States where they are held in relation to attachments and other process : Pro- vided, That similar preUminary affidavits or proofs, and simi- lar security, as required by such State laws, shall be first fur- nished by the party seeking such attachment or other remedy. Revised Statutes (Second Edition), § 915, p. 174. Sec. 916. The party recovering a judgment in any common- law cause in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now pro- vided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court ; and such coiu'ts may, from time to time, by general rules, adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise. Revised Statutes (Second Edition), § 916, p. 175. OF CIRCUIT AND DISTRICT COURTS. 355 Sec. 917. The Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining dis- covery, of proceeding to obtain relief, of drawing up, entering, and enrolling decrees, and of proceeding before trustees ap- pointed by the court, and generally to regulate the "whole practice, to be used, in suits in equity or admiralty, by the cir- cuit and district courts. Eevised Statutes (Second Edition), § 917, p. 175. yote.—Foi the Rules adopted by the Supreme Court of the United States to regulate the practice of the Circuit and District Courts in suits in Equity and Admiralty, see pp. 297 to 349. Sec. 918. The several circuit and district courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delay in proceedings. Revised Statutes (Second Edition), § 918, p. 175. FEDEEAL STATUTES liELATma OEStEBAIXT TO TSZ FEES ATTOEKEYS, SOLICITOES, PEOCTOES, &o., &o. IK THB COURTS OF THE UNITED STATES. Sec. 823. The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several States and Territories, except in cases otherwise expressly provided by law. But nothing herein shall be construed to prohibit attorneys, sohcitors, and proctors from charging to and receiviag from their chents, other than the Government, such reasonable' compensation for their services, in addition to the taxable costs, as may be in ac- cordance with general usage in their respective States, or may be agreed upon between the parties. Revised Statutes (Second Edition), § 823, p. 154. FEES OF ATTOENEYS, SOLICITOES, AND PEOC- TOES. Sec. 824. On a trial before a jury, in civil or criminal causes or before referees, or on a final hearing in equity or admiralty, a docket fee of twenty doUars : Provided, That in cases of admiralty and maritime jurisdiction, where the hbeUant re- covers less than fifty doUars, the docket fee of his proctor shall be but ten dollars. 358 FEDERAL STATUTES In cases at law, when judgment is rendered without a jury, ten dollars. In cases at law, when the cause is discontinued, five dollars. For scire facias, and other proceedings on recognizances, five dollars. For each deiposition taken and admitted in evidence in a cause, two dollars and fifty cents. For services rendered in cases removed from a district to a circuit court by a writ of error or appeal, five dollars. For examination by a district attorney, before a judge or commissioner, of persons charged with crime, five dollars a day for the time necessarily employed. For each day of his necessary attendance in a court of the United States on the business of the United States, when the court is held at the place of his abode, five doUars ; and for his attendance when the court is held elsewhere, five dollars for each day of the term. For traveling from the place of his abode to the place of holding any court of the United States in his district, or to the place of any examination before a judge or commissioner, of a person charged with crime, ten cents a mile for going and ten cents a mile for returning. "When an indictment for crime is tried before a jury and a conviction is had, the district attorney may be allowed, in ad- dition to the attorney's fees herein provided, a counsel fee, in proportion to the importance and difficulty of the cause, not exceeding thirty dollars. Eevised Statutes (Second Edition), § 834, p. 154. Sec. 825. There shall be taxed and paid to every district at- torney two per centum upon aU moneys collected or realized in any suit or proceeding arising under the revenue laws, and conducted by him, in which the United States is a party, which shall be in lieu of all costs and fees in such proceeding. Eevised Statutes (Second Edition), § 835, p. 154. Sec. 826. ISTo fee shall accrue to any district attorney on any bond left with him for collection, or in a suit com- menced on any bond for the renewal of which provision is made by law, unless the party neglects to apply for such re- RELATING TO FEES. 359 newal for more than twenty days after the maturity of the bond. Revised Statutes (Second Edition), § 826, p. 154. Sec. 827. "When a district attorney appears by direction of the Secretary or Solicitor of the Treasury, on behalf of any officer of the revenue in any suit against such officer, for any act done by him, or for the recovery of any money received by him and paid into the Treasury in the performance of his official duty, he shall receive such compensation as may be cer- tified to be proper by the court in which the suit is brought, and approved by the Secretary of the Treasury. Revised Statutes (Second Edition), § 837, p. 154. See also, Act of Con- gress of 20tli June, 1874, cli. 338, sec. 3, 18 Stat, at Large, pp. 85, 109. CLEKK'S FEES. Sec. 828. For issuing and entering every process, commis- sion, summons, capias, execution, warrant, attachment, or other writ, except a writ of venire, or a summons or subpoena for a witness, one dollar. For issuing a writ of summons or subpoena, twenty-five cents. For fihng and entering every declaration, plea, or other paper, ten cents. For administering an oath or affirmation, except to a juror, ten cents. For taking an acknowledgment, twenty-five cents. For taking and certifying depositions to file, twenty cents for each folio of one hundred words. For a copy of such deposition furnished to a party on re- quest, ten cents a foUo. 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 foHo, ten cents. For making dockets and indexes, issuing venire, taxing costs, and all other services, on the trial or argument of a cause where issue is joined and testimony given, three dollars. 360 FEDERAL STATUTES For making dockets and indexes, taxing costs, and all other services, in a cause where issue is joiaed, but no testimony is given, two dollars. For making dockets and indexes, taxing costs, and other services, in a cause which is dismissed or discontinued, or where judgment or decree is made or rendered without issue, one dollar. For making dockets and taxing costs, in cases removed hy writ of error or appeal, one dollar. For affixing the seal of the court to any instrument, when required, twenty cents. For every search for any particular mortgage, judgment, or other hen, fifteen cents. For searching the records of the court for judgments, de- crees, or other instruments constituting a general Men on real estate, and certifying the result of such search, fifteen cents for each person against whom such search is required to be made. For receiving, keeping, and paying out money, in pursuance of any statute or order of court, one per centum on the amount so received, kept, and paid. For traveling from the office of the clerk, where he is re- quired to reside, to the place of holding any court required by law to be held, five cents a mile for going and five cents for returning, and five dollars a day for his attendance on the court while actually in session. All books in the offices of the clerks of the circuit and dis- trict courts, containing the docket or minute of the judgments, or decrees thereof, shall, during office hours, be open to the inspection of any person desiring to examine the same, without any fees or charge therefor. Revised Statutes (Second Edition), § 828, p. 155. MAESHAL'S FEES. Sec. 829. For service of any warrant, attachment, summons, capias, or other writ, except execution, venire, or a summons or subpoena for a witness, two dollars for each person on whom service is made. For the keeping of personal property attached on mesne RELATING TO PEES. 361 process, such compensation as the court, on petition setting forth the facts under oath, may allow. For serving venires and summoning every tvrelve men as grand or petit jurors, four dollars, or thirty-three and one- third cents each. In States where, by the laws thereof, jurors are drawn by lot, by constables, or other officers of corporate places, the marshal shall receive, for each jury, two dollars for the use of the officers employed in drawing and simimoning the jurors and returning each venire, and two dollars for his own services in distributing the venires. But the fees for dis- tributing and serving venires, drawing and summoning jurors by township officers, including the mileage chargeable by the marshal for each service, shall not at any court exceed fifty dollars. For holding a ooilrt of inquiry or other proceedings before a jury, including the summoning of a jury, five dollars. For serving a writ of subpoena on a witness, fifty cents ; and no further compensation shall be allowed for any copy, sum- mons, or notice for a witness. For serving a writ of possession, partition, execution, or any final process, the same mileage as is allowed for the service of any other writ, and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set off, or otherwise according to law receiving and paying over the money, the same fees and poundage as are or shall be allowed for similar services to the sheriffs of the States, respect- ively, in which the service is rendered. For each bail-bond, fifty cents. For summoning appraisers, fifty cents each. For executing a deed prepared by a party or his attorney, one dollar. For drawing and executing a deed, five dollars. For copies of writs or papers furnished at the request of any party, ten cents a folio. For every proclamation in admiralty, thirty cents. For serving an attachment in rem or a libel in admiralty, two dollars. For the necessary expenses of keeping boats, vessels, or other property attached or hbelled in admiralty, not exceeding two dollars and fifty cents a day. 362 FEDERAL STATUTES "When the debt or claim in admiralty is settled by the parties without a sale of the property, the marshal shall be entitled to a commission of one per centum on the first five hundred dol- lars of the claim or decree, and one-half of one per centum on the excess of any sum thereof, over five hundred dollars : Pro- vided, That, "when the value of the property is less than the claim, such commission shall be allowed only on the appraised value thereof. For sale of vessels or other property under process in admi- ralty, or under the order of a court of admiralty, and for receiving and paying over the money, two and one-half per centum on any sum under fivd hundred dollars, and one and one-quarter per centum on the excess of any sum over five hundred dollars. For disbursing money to jurors and witnesses, and for other expenses, two per centum. For expenses while employed in endeavoring to arrest, under process, any person charged with or convicted of a crime, the sum actually expended, not to exceed two dollars a day, in addition to his compensation for service and travel. For every commitment or discharge of a prisoner, fifty cents. For transporting criminals, ten cents a mile for himself and for each prisoner and necessary guard ; except in the case pro- vided for in the next paragraph. For transporting criminals convicted of a crime in any dis- trict or Territory where there is no penitentiary available for the confinement of convicts of the United States, to a prison in another district or Territory designated by the Attorney- General, the reasonable actual expense of transportation of the cruninals, the marshal, and the guards, and the necessary sub- sistence and hire. For attending the circuit and district courts, when both are in session, or either of them when only one is in session, and for bringing in and committing prisoners and witnesses during the term, five dollars a day. For attending examinations before a commissioner, and bringing in, guarding, and returning prisoners charged with crime, and witnesses, two dollars a day ; and for each deputy not exceeding two, necessarily attending, two dollars a day. RELATING TO FEES. 363 For traveling from Ms residence to the place of holding court, to attend a term thereof, ten cents a mile for going only. For travel, in going only, to serve any process, warrant, attachment, or other writ, including writs of subpoena in civil or criminal oases, six cents a mile, to be computed from the place where the process is returned to the place of service, or, when more than one person is served therewith, to the place of service which is most remote, adding thereto the extra travel- which is necessary to serve it on the others. But when more than two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs ; and to save unnecessary expense, it shall be the duty of the clerk to insert the names of as many witnesses in a cause in such subpoena as convenience in serving the same will permit. In all cases where mileage is allowed to the marshal he may elect to receive the same or his actual travelling expenses, to be proved on his oath, to the satisfaction of the court. Revised Statutes (Second Edition), § 829, p. 155. Sec. 830. There shall be paid to the marshal his fees for services rendered for the United States, for summoning jurors and witnesses in behalf of the United States, and in behalf of any prisoner to be tried for a capital offense, for the mainte- nance of prisoners of the United States confined in jail for any criminal offense; also, for his reasonable actual expense for the transportation of criminals, and of the marshal and guards, to prisons designated by the Attorney-General, and for hire and subsistence in that behalf, as hereinbefore provided ; also, his fees for the commitment or discharge of prisoners ; his expenses necessarily incurred for fuel, hghts, and other contin- gencies that may accrue in holding the courts within this dis- trict, and providing the books necessary to record the proceed- ings thereof : Provided,, That he shall not incur, or be allowed, an expense of more than twenty dollars in any one year for furniture, or fifty dollars for rent of a building and making improvements thereon without first submitting a statement and 364 FEDERAL STATUTES estimates to the Attorney-General and getting his instructions in the premises. Revised Statutes (Second Edition), § 830, p. 157. Sec. 831. No per diem or other allowance shall be made to any district attorney, clerk of a circuit court, clerJi of a district court, marshal or deputy marshal, for attendance at rule-days of a circuit or district court ; and when the circuit and district courts sit at the same time no greater per diem or other allow- ance shall be made to any such officer than for an attend- ance on one court. Revised Statutes (Second Edition), § 831, p. 157. " Sec. 832. The marshal of the Supreme Court of the United States shall be entitled to receive for the service of any war- rant, attachment, summons, capias, or other writ, except exe- cution, venire, or a summons, or subpoena for a witness, one dollar for each person on whom such service may be made. His fees for all other services shall be the same as are herein allowed to other marshals ; but he shall pay into the Treasury of the United States all fees received by him, and render a true account thereof at the close of each term to the Attorney- General. Revised Statutes (Second Edition), § 883, p. 157. Sec. 833. Every district attorney, clerk of a district court, clerk of a circuit court, and marshal, shall, on the first days of January and July, in each year, or within thirty days there- after, make to the Attorney-General, in such form as he may prescribe, a written return for the half year ending on said days, respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk-hire, together with the vouchers for the payment of the same for such last half year. He shaU state separately in such returns the fees and emolu- ments received or payable under the bankrupt act ; and every marshal shall state separately therein the fees and emoluments received or payable for services rendered by himself personally, those received or payable for services rendered by each of his deputies, naming him, and the proportion of such fees and RELATING TO FEES. 365 emoluments whicli, by tlie terms of his service, each deputy is to receive. Said returns shall be verified by the oath of the officer making them. Kevised Statutes (Second Edition), § 833, p. 157. Sec. 834. The preceding section shaU not apply to the fees and compensation allowed to district attorneys by sections eight liundred and twenty-five and eight hundred and twenty- seven. AH other fees, charges, and emoluments to which a district attorney or a marshal may be entitled, by reason of the discharge of the duties of his office, as now or hereafter pre- scribed by law, or in any case in which the United States wiU be bound by the judgment rendered therein, whether pre- scribed by statute or allowed by a court, or any judge thereof, shall be included in the semi-annual return' required of said officers by the preceding section. Revised Statutes (Second Edition), § 834, p. 158. Sec. 835. !N^o district attorney shall be allowed by the Attorney-General to retain of the fees and emoluments of his office which he is required to include in his semi-annual return, for his personal compensation, over and above the necessary expenses of his office, including necessary clerk-hire, to be audited and allowed by the proper accounting officers of the Treasury Department, a sum exceeding six thousand dollars a year, or exceeding that rate for any time less than a year. Revised Statutes (Second Edition), § 835, p. 158. Sec. 836. There shall be paid to the district attorney for the southern district of ISTew Tork, in addition to his salary, at the rate of six thousand dollars a year, such sum as shall be neces- sary, together with the costs and fees allowed him by law, to pay such amount as may be fixed by the Attorney-General for the proper expenses of his office. But nothing in this or the preceding section shall forbid the allowance of additional com- pensation for services in prize causes, as provided in Title "PRIZE." Revised Statutes (Second Edition), § 836, p. 158. Sec. 837. The district attorneys and marshals for the dis- tricts of Oregon and Nevada shall be entitled to receive, for 366 FEDERAL STATUTES the like services, double the fees hereinbefore provided; but neither of them shall be allowed to retain of such fees any sum exceeding the aggregate compensation of such ofllcer as herein- before provided. KeYised Statutes (Second Edition), § 837, p. 158. Sec. 838. It shall be the duty of every district attorney to ■whom any collector of customs, or of internal revenue, shall re- port, according to law, any case in which any fine, penalty, or forfeiture has been incurred in the district of such attorney for the violation of any law of the United States relating to the revenue, to cause the proper proceedings to be commenced and prosecuted without delay, for the fines, penalties, and forfeitures in such case provided, unless, upon inquiry and examination, he shall decide that such proceedings cannot probably be sustained, or that the ends of public justice do not require that such pro- ceedings should be instituted ; in which case he shall report the facts in customs cases to the Secretary of the Treasury, and in internal revenue oases to the Commissioner of Internal Eev- enue for their direction. And for the expenses incurred and services rendered in all such cases, the district attorney shall receive and be paid from the Treasury such sum as the Secre- tary of the Treasury shall deem just and reasonable, upon the certificate of the judge before whom such cases are tried, or disposed of : Provided, That the annual compensation of such district attorney shall not exceed the maximum amount pre- scribed by law, by reason of such allowance and payment. Revised Statutes (Second Edition), § 838, p. 158. Sec. 839. ' ISTo clerk of a district court, or clerk of a circuit court, shall be allowed by the Attorney-General, except as pro- vided in the next section, and in section eight hundred and forty-two to retain of the fees and emoluments of his office, or, in case both of the said clerkships are held by the same person, of the. fees and emoluments of the said offices, respectively, for his personal compensation, over and above his necessary office expenses, including necessary clerk-hire, to be audited and allowed by the proper accounting officers of the Treasury, a sum exceeding three thousand five hundred dollars a year for RELATING TO FEES. 36Y any such district clerk or for any such circuit clerk, or exceed- ing that rate for any time less than a year. ' Revised Statutes (Second Edition), § 839, p. 158. See also Act of Con- gress of 3d March, 1883, ch. 143, 22 Stat, at Large, 603, 631, aflecting the Clerk of the Supreme Court of the District of Columbia. Sec. 840. The clerks of the several circuit and district courts in Cahfornia, Oregon, and JS'evada shall be entitled to charge and receive double the fees hereinbefore allowed to clerks, and shall be allowed, respectively, by the Attorney-General, to re- tain of the fees so received by them, for their personal com- pensation, over and above the necessary expenses -of their offices, including the salaries of deputy clerks, and necessary clerk-hire, to be audited by the proper accounting ofBlcers of the Treasury Department, any sum not exceeding seven thou- sand dollars a year, nor exceeding that rate for any time less than a year : Provided, That whenever, in either of the said districts, the same person holds the office of clerk of both the circuit and district courts, he shall be allowed by the Attorney- General to retain for his personal compensation, as aforesaid, only such sum as is herein allowed to be retained by a per- son holding the office of clerk of only one of the said courts. Revised Statutes (Second Edition), § 840, p. 159. Sec. 841. No marshal shall be allowed by the Attorney- General, except as provided in the next section, to retain of the fees and emoluments which he is required to include in his semi-annual return, as aforesaid, for his personal compensation, over and above the necessary expenses of his office, including necessary clerk-hire, to be audited and allowed by the proper accounting officers of the Treasury Department, and a proper allowance to his deputies, any sum exceeding six thousand dol- lars a year, or exceeding that rate for any time less than a year. The allowance to any deputy shall in no case exceed three- fourths of the fees and emoluments received or payable for the services rendered by him, and may be reduced below that rate by the Attorney-General, whenever the returns show such rate to be unreasonable. Revised Statutes (Second Edition), § 841, p. 159. Sec 842. Clerks and marshals may be allowed to retain, for 368 FEDERAL STATUTES all official services in prize causes, an additional compensation not exceeding in amount one-half of the maximum compen- sation allowed to them, respectively, by the three preceding sections. Eevised Statutes (Second Edition), § 843, p. 159. Sec. 843. The allowances for personal compensation of dis- trict attorneys, clerks, and marshals, for each calendar year, shall be made from the fees and emoluments of that year, and not otherwise. Revised, Statutes (Second Edition), § 843, p. 159. Sec. 844. Every district attorney, clerk, and marshal shall, at the time of making his half yearly return to the Attorney- General, pay into the Treasury, or deposit to the credit of the Treasurer, as he may be directed by the Attorney-General, any surplus of the fees and emoluments of his oifice, which said return shows to exist over and above the compensation and allowances authorized by law to be retained by Mm. Revised Statutes (Second Edition), § 844, p. 159. Sec. 845. In every case where the return of a district attor- ney, clerk, or marshal shows that a surplus may exist, the At- torney-General shall cause such return to be carefully ex- amined, and the accounts of disbursements to be regularly audited by the proper officer of his Department, and an ac- count to be opened with such officer in proper books to be provided for that purpose. Revised Statutes (Second Edition), § 845, p. 159. Sec. 846. The accounts of district attorneys, clerks, mar- shals, and commissioners of circuit courts shall be examined and certified by the district judge of the district for which they are appointed, before they are presented to the accounting officers of the Treasury Department for settlement. They shall then be subject to revision upon their merits by said ac- counting officers, as in case of other public accounts : Provided, That no accounts of fees or costs paid to any witness or juror, upon the order of any judge or commissioner, shall be so re- examined as to charge any marshal for an erroneous taxation RELATING TO PEES. 369 of such fees or costs. That where the ministerial officers of the United States have or shall incur extraordinary expense ia executing the laws thereof, the payment of which is not speci- fically provided for, the President of the United States is au- thorized to allow the payment thereof under the special taxa- tion of the district or circuit court of the district in which the said services have been or shall be rendered, to be paid from the appropriation for defraying the expenses of the judiciary. Revised Statutes (Second Edition), § 846, p. 159. COMMISSIONEE'S FEES. Sec. 847. For administering an oath, ten cents. For taking an acknowledgment, twenty-five cents. For hearing and deciding on criminal charges, five doUars a day for the time necessarily employed. For attending to a reference in a litigated matter, in a civil cause at law, in equity, or in admiralty, in pursuance of an order of the court, three dollars a day. For taking and certifying depositions to file, twenty cents for each folio. For each copy of the same furnished to a party on request, ten cents for each f oho. For issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services. For issuing any warrant under the tenth article of the treaty of August nine, one thousand eight hundred and forty-two, be- tween the United States and the Queen of the United Kingdom of Great Britain and Ireland, against any person charged with any crime or offence set forth in said article, two dollars. For issuing any warrant under the provision of the con- vention for the surrender of criminals, between the United States and the King of the French, concluded at "Washington November nine, one thousand eight hundred and forty-three, two doUars. For hearing and deciding upon the case of any person charged with any crime or offence, and arrested under the provisions of said treaty, or of said convention, five doUars a day for the time necessarily employed. For the examination and certificate in cases of applications 34 370 FEDERAL STATUTES « for discharge of poor convicts imprisoned for non-payment of a fine or fine and costs, five dollars a day for the time neces- sarily employed. Revised Statutes (Second Edition), § 847, p. 160. WITNESSES' FEES. Sec. 848. For each day's attendance in court, or before any officer pm'suant to law, one dollar and fifty cents, and five cents a nule for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem com- pensation shaU. be aUowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsist- ence, to a compensation of one dollar a day. Revised Statutes (Second Edition), § 848, p. 160. Sec. 849. No officer of the United States courts, in any State or Territory, or in the District of Columbia, shaU be entitled to vritness fees for attending before any court or commissioner where he is officiating. Revised Statutes (Second Edition), § 849, p. 160. Sec. 850. When any clerk or other officer of the United States is sent away from his place of business as a witness for the Government, his necessary expenses, stated in items and sworn to, in going, returning, and attendance on the court, shall be audited and paid ; but no mileage, or other compensa- tion in addition to his salary, shall in any case be allowed. Revised Statutes (Second Edition), § 850, p. 160. Sec. 851. There shah be paid to each seaman or other per- son who is sent to the United States from any foreign port, station, sea, or ocean, by any United States minister, charg^ d'affaires, consul, captain, or commander, to give testimony in any criminal case depending in any court of the United States, RELATING TO FEES. 371 such compensation, exclusive of subsistence and transportation, as such court may adjudge to be propar, not exceeding one doUar for each day necessarily employed in such voyage, and in arriving at the place of examination or trial. In iixing such compensation, the court shall take into consideration the con- dition of said seaman or witness, and -whether his voyage has been broken up, to his injury, by his being sent to the United States. When such seaman or person is transported in an armed ves- sel of the United States no charge for subsistence or trans- portation shall be allowed. "When he is transported in any other vessel, the compensation for his transportation and sub- sistence, not exceeding in any case fifty cents a day, may be fixed by the court, and shall be paid to the captaia of said vessel accordingly. Revised Statutes (Second Edition), § 851, p. 161. JUKOES' FEES. Sec. 852. For actual attendance at any court or courts, and for the time necessarily occupied in going to and returning from the same, three dollars a day during such attendance. For the distance necessarily travelled from their residence in going to and returning from said court by the shortest prac- ticable route, five cents a mile. Revised Statutes (Second Edition), § 853, p. 161. PEmTEES' FEES. Sec. 853. For publishing any notice, or order, required by law, or the lawful order of any court. Department, Bureau, or other person, in any newspaper, except as mentioned in sections thirty-eight hundred and twenty-three, thirty-eight hundred and twenty-four, and thirty-eight hundred and twenty-five. Title, " Public Feinting, Adveetisements, and Public Documents," forty cents per folio for the first insertion, and twenty cents per folio for each subsequent insertion. The compensation herein provided shall include the furnishing of lavsrful evidence, under oath, of publication, to be made and furnished by the printer or pubhsher making such publication. Revised Statutes (Second Edition), § 853, p. 161. 372 FEDERAL STATUTES. Sec. 854. The term folio, in this chapter, shall mean one hundred words, counting each figure as a word. When there are over Mtj and under one hundred words, they shall be counted as one f oho ; but a less number than fifty words shall not be counted, except when the whole statute, notice, or order contains less than fifty words. Revised Statutes (Second Edition), § 854, p. 161. FEES : HOW PAID AND EECOYEEED. Sec. 855. In cases where the United States are parties, the marshal shall, on the order of the court, to be entered on its minutes, pay to the jurors and witnesses all fees to which they appear by such order to be entitled, which sum shall he al- lowed him at the Treasury in his accounts. Revised Statutes (Second Edition), § 855, p. 161. Sec. 856. The fees of district attorneys, clerks, marshals, and commissioners, in cases where the United States are hable to pay the same, shall be paid on settling their accounts at the Treasury. Revised Statutes (Second Edition), § 856, p. 161. Sec. 85Y. The fees and compensations of the officers and persons hereinbefore mentioned, except those which are di- rected to be paid out of the Treasury, shall be recovered ia hke manner as the fees of the oificers of the States respective- ly for like services are recovered. Revised Statutes (Second Edition), § 857, p. 161. See also the following Acts of Congress affecting the foregoing sections 833 to 857 of the Revised Statutes in vyhole or in part, viz. ; Act of Congress of 23d June, 1874, ch. 469, 18 Stat, at Large, 353, relating to Utah. Act of Congress of 33d February, 1875, ch. 95, entitled "An Act regulating fees and costs and for other purposes," 18 Stat, at Large, 333. Act of Congress of 36th June, 1876, ch. 147, 19 Stat, at Large, 61. Act of Congress of 16th June, 1880, ch. 347, 31 Stat, at Large, 390, re- lating to Colorado. Act of Congress of 7th August, 1883, ch. 436, 23 Stat, at Large, 344, relating to Xew Mexico and Arizona. See also Revised Statutes (Second Edition), § 399, p. 49, § 715, p. 136, § 877, p. 166, § 980, p. 184, § 981, p. 184, and § 1030, p. 191. THE SECOND JUDICIAL CIECUIT. lyCLUDSS THE STATES OF VERMONT, CONNECTICUT AND NEW YORK. See Revised Statutes (Second Edition), § 604, p. 106. The States of Yermont and Connecticut each constitute one Judicial District. See Revised Statutes (Second Edition), §§ 530, 531, p. 89. The State of New York is divided into the following Dis- tricts : Southern District of New York. Eastern District of New York. Northern District of New York. See Revised Statutes (Second Edition), §§ 530, 541 and 543, pp. 89, 91. There is one Circuit Judge for the entire Circuit. See Revised Statutes (Second Edition), § 607, p. 107. An Associate Justice of the Supreme Court is also allotted to the Circuit and must attend at least one term of the Cir- cuit Court in each district of the Circuit during every period of two years. See Revised Statutes (Second Edition), §§ 605, 606 and 610, p. 107. There is a Circuit and a District Court established for each of the Districts within the Circuit, and the Circuit Courts may be held at the same time in the different Districts in the same Circuit. See Revised Statutes (Second Edition), §§ 651, 608, 613, pp. 93, 107. There is one District Judge for each District within the Cir- cuit. See Revised Statutes (Second Edition), § 551, p. 93. 374 SECOND JUDICIAL CIECITIT. Circuit Courts are held by the Circuit Justice, or by the Circuit Judge of the Circuit, or by the District Judge of the District sitting alone, or by any two of the said Judges sitting together. See Revised Statutes (Second Edition), § 609, p. 107. Cases may be heard and tried by each of the Judges hold- ing a Circuit Court sitting apart, by direction of the presiding Justice or Judge, who shall designate the business to be done by each. See Revised Statutes (Second Edition), § 611, p. 107. Criminal terms of the Circuit Court in the Southern District of ITew York may be held by the Circuit Judge and the Dis- trict Judges for the Southern and Eastern Districts of ISTew York, or any one of them. See Revised Statutes (Second Edition), § 613, p. 107. For the jurisdiction of the Cieouit Couets generally, see Eevised Statutes (Second Edition), "Title XIII., Chapter Seven— Circuit Court — Jurisdiction," §§ 629 to 657, pp. 109 to 120, and especially respecting appeals and writs of error from the District to the Circuit Courts of the United States, see §§ 631, 633, and 635, Eevised Statutes (Second Edition), p. 113. JURISDICTION OF THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES EMBRACED WITHIN THE SECOND JUDICIAL CIRCUIT. SOTJTHEEN DiSTEICT OF NeW ToEK. Counties of New York, Westchester, Putnam, Dutchess, Columbia, Greene, Ulster, Sullivan, Orange and Eockland, with the waters thereof, and the District Court for the South- ern District of New York has concurrent jurisdiction with the District Court for the Eastern District of New York over the waters within the counties of New York, Kings, Queens and Suffolk. See Revised Statutes (Second Edition), §§ 541 and 543, p. 91. Eastern District of New Yoek. Counties of Kings, Queens, Eichmond and Suffolk, with the waters thereof, and the District Court of the Eastern District of New York has concurrent jurisdiction with the District Court for the Southern District of New York over the waters within the counties of New York, Kings, Queens and Suffolk. See Revised Statutes (Second Edition), §§ 541 and 543, p. 91. NOETHEEN DiSTEICT OF NeW YoEK. Counties of Albany, Allegany, Broome, Cattaraugus, Cay- uga, Chautauqua, Chemung, Chenango, Clinton, Cortland, Delaware, Erie, Essex, EranMin, Fulton, Genesee, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Montgomery, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Otsego, Eensselaer, St. Lawrence, Saratoga, Schenec- 3V6 JURISDICTION OP COURTS IN SECOND CIRCUIT. tady, Schoharie, Schuyler, Seneca, Steuben, Tioga, Tompkins, "Warren, "Washington, "Wayne, "Wyoming and Yates. See Revised Statutes (Second Edition), § 541, p. 91. District of Connecticut. The entire State of Connecticut. See Eevised Statutes (Second Edition), § 531, p. 89. DiSTEIOT OF VeEMONT. The entire State of Vermont. See Revised Statutes (Second Edition), § 531, p. 89. FEDEEAL STATUTES BELATINa aBNEnALLT TO THE SESSIONS CIRCUIT AND DISTRICT 'COURTS OF THE UNITED STATES, AND APPLICABLE TO THE SECOND JUDICIAL CIEOUIT. Southern District of New York. — Circuit Court. Note. — The sections of Eevised Statutes quoted hereunder are equally applicable to the Circuit Courts for the other Districts embraced within the Circuit, except where, on its face, the section shows that it applies to the Circuit Court for the Southern District of New York. There- fore the general sections are not repeated under the heading of the Circuit Courts for the other Districts in the Circuit, reference to them being made only by number, and the sections especially referring to the Circuit Courts for those Districts only being quoted in full. Sec. 658. The regular terms of the circuit courts shall be held in each year, at the times and places following ; but when any of said dates shall fall on Sunday, the term shall com- mence on the following day : ******* In the southern district of ISqyt York, at the City of New York, on the first Monday in April and the third Monday in October ; and for the trial of criminal causes and suits in equity, on the last Monday in February; and exclusively for the trial and disposal of criminal cases, and matters arising and pending in said court, on the second "Wednesday ia January, March, and May, on the' third Wednesday in June, and on the second "Wednesday in October and December : Provided, That the holding of any of the last mentioned terms for criminal business shall not dispense with nor affect 378 SESSIONS OF COURTS the holding of any other term of the eourt at the same time, and that the pending of any other term of the court shall not prevent the holding of any of the said terms for criminal business. Revised Statutes (Second Edition), § 658, pp. 120, 132. Sec. 661. Any circuit court may, at its own discretion, or at the discretion of the Supreme Court, hold special sessions for the trial of criminal causes. Bevised Statutes (Second Edition), § 661, p. 133. Sec. 662. The Supreme Court, or, when that court is not sittiug, any circuit justice or circuit judge, together with the judge of the proper district, may direct special sessions of a circuit court to be held, for the trial of criminal causes, at any convenient place within the district nearer to the place where the offenses are said to be committed than the place ap- pointed by law for the stated sessions. The clerk of such court shall, at least thirty days before the commencement of such special session, cause the time and place for holding it to be notified, for at least three weeks, consecutively, in one or more of the newspapers pubhshed nearest to the place where it is to be held. AU process, writs, and recognizances respecting juries, witnesses, bail, or otherwise, which relate to the cases to be tried at such special sessions, shall be considered as belonging to such sessions, in the same manner as if they had been issued or taken in reference thereto. Any such session may be ad- journed from time to time to anj^ time previous to the next stated term of the court ; and all business depending for trial at any special session shall, at the close thereof, be considered as removed to the next stated term. Revised Statutes (Second Edition), § 662, p. 133. Sec. 669. In the district not mentioned in the five preced- ing sections, [these sections relate to California, Oregon, Ne- vada, Kentucky, Indiana, Tennessee, North Carolina, Virginia, and "Wisconsin only] the presiding judge of any circuit court may appoint special sessions thereof, to be held at the places where the regular sessions are held. Revised Statutes (Second Edition), § 669, p. 124. IN THE SECOND CIRCUIT. 379 Sec. 671. If neither of the judges of a circuit court is present to open any session, the marshal may adjourn the court from day to day until a judge is present : Provided, That if neither of them attends before the close of the fourth day after the time appointed for the commencement of the session, the marshal may adjourn the court to the next regular term. Kevised Statute's (Second Edition), § 671, p. 134. Sec. 672. If neither of the judges of a circuit court be present to open and adjourn any regular or adjourned or special ses- sion, either of them may, by a written order, directed alter- natively to the marshal, and, in his absence, to the clerk, ad- journ the Court from time to time, as the case may require, to any time before the next regular term. Revised Statutes (Second Edition), § 673, p. 134. Sec. 613. The terms of the circuit court for the southern district of New York, appointed exclusively for the trial and disposal of criminal business, may be held by the circuit judge of the second judicial court and the district judges for the southern and eastern districts of New York, or any one of said three judges ; and at every such term held by said judge of said eastern district he shall receive the sum of three hundred dollars, the same to be paid in the manner now prescribed by law for the payment of the expenses of another district judge while holding court in said district. Revised Statutes (Second Edition), § 613, p. 107. Sotttheen Disteict of New Yoek. — Disteict Court. Note. — The sections of the Revised Statutes quoted hereunder are equally applicable to the District Courts of the other Districts embraced within the Circuit, except where, on its face, the section shows that it ap- plies to the District Court for Southern District of New York. Therefore, the general sections are not repeated under the heading of the District Courts for the other Districts in the Circuit, reference to them being made only by number, and the sections especially referring to the District Courts for those Districts only being quoted in full. Sec. 572. The regular terms of the district courts shall be held at the times and places following, but when any of said dates shall f aU on Sunday, the term shall commence on the fol- lowing day : 380 SESSIONS OF COURTS * * * *** * * In the southern district of New York, in the city of New YoTk, on the first Tuesday in every month. Eevised Statutes (Second Edition), § 573, pp. 98, 100. Sec. 573. No action, suit, proceeding, or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court ; but the same shall be deemed to be returnable to, pending, and triable in the terms established next after the return-day thereof. Eevised Statutes (Second Edition), § 573, p. 101. Seo. 574. The district courts, as courts of admiralty, and as courts of equity, so far as equity jurisdiction has been conferred upon them, shall be deemed always open, for the purpose of fihng any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing, upon their merits, of all causes pending therein. And any dis- trict judge may, upon reasonable notice to the parties, make, and direct and award, at chambers, or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Revised Statutes (Second Edition), § 574, p. 101. Sec. 578. District courts shall hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such cases. Revised Statutes (Second Edition), g 578, p. 102. Sec. 581. A special term of any district court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge, and any business may be transacted at such special term which might be transacted at a regular term. Revised Statutes (Second Edition), § 581, p. 102. IN THE SECOND CIKCUIT. 381 Seo. 583. If the judge of any district court is unable to attend at the commencement of any regular, adjourned, or special term, the court may be adjourned by the marshal, by virtue of a written order directed to him by the judge, to the next regular term, or to any earher day, as the order may direct. Revised Statutes (Second. Edition), g 583, p. 103. Sec. 587. When satisfactory evidence is shown to the circuit judge of any circuit, or, in his absence, to the circuit justice allotted to the circuit, that the judge of any district therein is disabled to hold a district court, and to perform the duties of his office, and an application accordingly is made in writ- ing to such circuit judge or justice, by the district attorney or marshal of the district, the said judge or justice, as the case may be, may issue his order in the nature of a certiorari, directed to the clerk of such district court, requiring him forth- with to certify into the next circuit court to be held in said district all suits and processes, civil and criminal, depending in said district court, and undetermined, with all the proceed- ings thereon, and aE the files and papers relating thereto. Said order shall be immediately pubhshed in one or more newspapers printed in said district, at least thirty days before the session of such circuit court, and shall be sufficient notifica- tion to all concerned; and thereupon the circuit court shall proceed to hear and determine the suits and processes so cer- tified. And all bonds and recognizances taken for, or returnable to, such district court, shall be held to be taken for, and re- turnable to, said circuit court, and shall have the same effect therein as they could have had in the district court to which they were taken. Revised Statutes (Second Edition), § 587, p. 103. Sec. 688. When an order has been made as provided in the preceding section, the clerk of the district court shall continue, during the disabiUty of the district judge, to certify, as afore- said, aU suits, pleas, and processes, civil and criminal, thereafter begun in said court, and to transmit them to the circuit court next to be held in that district ; and the said court shall pro- ceed to hear and determine them as provided in said section : 382 SESSIONS OF COURTS Provided, That when the disability of the district judge ceases or is removed, the circuit court shall order all such suits and proceedings then pending and undetermined therein, in which the district courts have an exclusive original cog- nizance, to be remanded, and the clerk of such court shall transmit the same, with aU matters relating thereto, to the dis- trict court next to be held in that district ; and the same pro- ceedings shall then be had in the district court as would have been had if such suits had originated or continued therein. Revised Statutes (Second Edition), \ 588, p. 103. Sec. 589. In the case provided in the two preceding sections the circuit judge, and in his absence the circuit justice, shall have and exercise, during such disability, all the powers of every kind vested by law in such district judge. But this pro- vision does not require them to hold any special court, or court of admiralty, at any other time than that fixed by law for hold- ing the circuit court in said district. Revised Statutes (Second Edition), § 589, p. 104. Sec. 590. "When the business of a district court is certified into the circuit court on account of the disability of the district judge, the district clerk shall be authorized, by order of the circuit judge, or, in his absence, of the circuit justice vrithin whose circuit such district is included, to take, during such dis- ability, all examinations and depositions of witnesses, and make aU necessary rules and orders, preparatory to the final hearing of all causes of admiralty and maritime jurisdiction. Revised Statutes (Second Edition), § 690, p. 104. Sec. 591. When any district judge is prevented, by any dis- ability, from holding, any stated or appointed term of his dis- trict court, or of the circuit court in his district in the absence of the other judges, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to the cir- cuit judge, or, in his absence, to the circuit justice of the cir- cuit in which the district lies, such circuit judge or justice may, if in his judgment the pubUc interests so require, designate and appoint the judge of any other district in the same circuit to hold said courts, and to discharge all the judicial duties of the IN THE SECOND CIRCUIT. 383 judge so disabled, during such disability. Such appointment shall be filed in the clerk's ofl3.ce, and entered on the minutes of the said district court, and a certified copy thereof, under the seal of the court, shall be transmitted by the district clerk to the judge so designated and appointed. Eevised Statutes (Second Edition), § 691, p. 104. Sec. 592. "When, from the accumulation or urgency of business in any district court, the public interests require the designation and appointment hereinafter provided, and the fact is made to appear, by the certificate of the clerk, under the seal of the court, to the circuit judge, or, in his absence, to the circuit justice of the circuit in which the district hes, such cir- cuit judge or justice may designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested iu the judge thereof; and each of the said district judges may, in case of such appointment, hold separately at the same time a district or circuit court in such district, and discharge all the judicial duties of a district judge therein ; but no such judge shall hear appeals from the district court. Revised Statutes (Second Edition), § 593, p. 104. Sec. 593. If the circuit judge and circuit justice are absent from the circuit, or are unable to execute the provisions of either of the two preceding sections, or if the district judge so designated is disabled or neglects to hold the courts and trans- act the business for which he is designated, the district clerk shall certify the fact to the Chief Justice of the United States, who may thereupon designate and appoint, in the manner aforesaid, the judge of any district within such circuit or within any circuit next contiguous; and said appointment shall be transmitted to the district clerk, and be acted upon by him as directed in the preceding section. Revised Statutes (Second Edition), § 593, p. 104. Sec. 594. The circuit judge, or circuit justice, or the Chief Justice, as the case may be, mgy, from time to time, if in his judgment the public interests so require, make a new designa- tion and appointment of any other district judge within the 384 SESSIONS OF COURTS said circuits, for the duties, and with the powers mentioned in the three preceding sections, and to revoke any previous desig- nation and appointment. Revised Statutes (Second Edition), § 594, p. 104. Sec. 595. It shall be the duty of the district judge who is designated and appointed under either of the four preceding sections, to discharge aU the judicial duties for which he is so appointed, during the continuance of such disability, or, in the case of an accumulation of business, during the time for which he is so appointed ; and aU the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provisions, shaU have the same effect and vaUdity as if done by or before the district judge of the said district. Revised Statutes (Second Edition), § 5Q5, p. 104. Sec. 596. It shaU be the duty of every circuit judge, when- ever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section five hundred and ninety-one, the district judge of any judicial district within his circuit to hold a district or circuit court in the place or in aid of any other district judge within the same circuit ; and it shall be the duty of the district judge, so designated and appointed, to hold the district or circuit [court] as aforesaid, without any other compensation than his regular salary as established by law, except in the case pro- vided in the next section. Revised Statutes (Second Edition), § 596, p. 105. By Act of Congress of 3d March, 1881, ch. 133, sec. 1, par. 2, 21 Stat, at Large; 435, so niucli of § 596 of the Revised Statutes as forbids the payment of the ^- penses of district judges while holding Court outside of their districts was repealed. Sec 597. Whenever a district judge, from another district, holds a district or circuit court in the southern district of New York, in pursuance of the preceding section, his expenses, not exceeding ten dollars a day, certified by him, shall be paid by the marshal of said district, as a part of the expenses of the court, and shall be allowed in the marshal's accounts. Revised Statutes (Second Edition), § 597, p. 105. IN THE SECOND CIRCUIT. 385 Sec. 599. "Whenever the judge of the northern district of New York is disabled to perform the duties of his office, it shall be the duty of the judge of the southern district, upon receiving from him notice thereof, to hold the district court, and to perform all the duties of district judge for such district. And whenever the judge of the southern district is so disabled, it shall be the duty of the judge of the eastern district, upon a like notice, to hold the district court, and to perform all the duties of district judge for the southern district. In such cases the said judges, respectively, shall have the same powers as are vested in the judge so disabled. Eevised Statutes (Second Edition), § 599, p. 105. Sec. 600. Whenever the judge of the southern district of New York deems it desirable, on account of the pressure of pubhc business or other cause, that the judge of the eastern district shall perform the duties of a district judge in the southern district, an order to that effect may be entered upon the records of the district court thereof ; and thereupon the judge of the eastern district shall have power to hold the dis- trict court, and to perform all the duties of district judge for the southern district. Eevised Statutes (Second Edition), § 600, p. 105. Sec. 601. "Whenever it appears that the judge of any dis- trict court is in any way concerned in interest in any suit, pend- ing therein, or has been of counsel for either party, or is so re- lated to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application by either party, to cause the fact to be entered on • the records of the court ; and, also, an order that an authenti- cated copy thereof, with all the proceedings in the suit, shall be forthwith certified to the next circuit court for the district ; and if there be no circuit court therein, to the next circuit court in the State ; and if there be no circuit court in the State, to the next convenient circuit court in an adjoining State ; and the circuit court shall, upon the filing of such record with its clerk, take cognizance of and proceed to hear the case, in like manner as if it had originally and rightfully been commenced therein. Revised Statutes (Second Edition), § 601, p. 105. 35 386 SESSIONS OF COURTS Sec. 602. "When the office of judge of any district court is vacant, all process, pleadings, and proceedings pending before such court shall be continued "of course until the next stated term after the appointment and quahfication of his successor ; except when such first mentioned term is held as provided in the next section. Eevised Statutes (Second Edition), § 603, p. 105. Sec. 603. "When the office of district judge is vacant in any district in a State containing two or more districts, the judge of the other or of either of the other districts may hold the district court, or the circuit court in case of the sickness or ab- sence of the other judges thereof, in the district where the va- cancy occurs, and discharge all the judicial duties of judge of such district, during such vacancy ; and aU the acts and pro- ceedings in said courts, by or before such judge of an adjoining district, shall have the same effect and validity as if done by or before a judge appointed for such district. Revised Statutes (Second Edition), § 603, p. 106. Easteen Disteict of New Yoek. — CiEcrrrr Ootiet. Sec. 658. The regular terms of the circuit courts shall be held in each year, at the times and places following ; but when any of said dates shaU fall on Sunday, the term shall com- mence on the following day : ******* In the eastern district of New York, at Brooklyn, on the first "Wednesday in every month. Revised Statutes (Second Edition), § 658, pp. 120, 123. For other Sections of tlie Revised Statutes (Second Edition) applicable, to the Sessions of the Circuit Courts held in this District, see § § 661, 663, 669, 671 and 672, on pp. 123 and 124 of the Revised Statutes (Second Edition), and printed ante at pp. 378 and 379. Easteen Disteict of New Yoek. — Disteict Coitet. Sec. 572. The regular terms of the district courts shall be held at the times and places following, but when any of said dates shall faU on Sunday, the term shall commence on the fol- lowing day. IN THE SECOND CIRCUIT. 387 In the eastern district of 'Rew York, in Brooklyn, on the first Wednesday in every month. Revised Statutes (Second Edition), § 573, pp. 98, 100. For other Sections of the Revised Statutes (Second Edition) applicable to the Sessions of the District Courts held in this District, see §§ 573, 574, 578, 581, 583, 587, 588, 589, 590, 591, 593, 593, 594, 595, 596, 601, 603 and 603, on pp. 16I-IO6 of the Revised Statutes (Second Edi- tion), and printed ante at pp. 380-386. NoETHEEN DiSTEICT OF NeW YoEK. ClECUIT CoTJET. Sec. 668. The regular terms of the circuit courts shall be held in each year, at the times and places following ; but when any of said dates shall fall on Sunday, the term shall commence on the follow:ing day : * * ' * * * * « In the northern district of New York, at Canandaigua, on the third Tuesday in June ; at Syracuse, on the third Tuesday in November ; at Albany, on the third Tuesday in January. And when the said term appointed to be held at Albany be adjourned, it shall be adjourned to meet in Utica on the third Tuesday in March : but said adjourned term shall be for the transaction of civil business only. Revised Statutes (Second Edition), § 658, pp. 130, 131, as amended by Act of Congress of March 33d, 1883, ch. 48, sec. 3, 33 Stat, at Large, 33. For other Sections of the Revised Statutes (Second Edition) applicable to the Sessions of the Circuit Courts held in this District, see §§ 661, 663, 669, 671 and 673, on pp. 133 and 134, and printed ante at pp. 378 and 379. NoETHEEN DiSTEIOT OF NeW YoEK. DiSTEICT CoUET. Sec. 572. The regular terms of the district courts shall be held at the times and places following, but when any of said dates shall fall on Sunday, the term shall conamence on the fol- lowing day : ******* In the northern district of New York, at Albany, on the third Tuesday in January ; at Utica, on the third Tuesday in March; at Ebchester, on the second Tuesday in May; at Buffalo, on the third Tuesday in September ; at Auburn, on the third Tuesday in November ; and in the discretion of the judge of the court, one term annually at such time and place 388 SESSIONS OF COURTS within the counties of Onondaga, Saint Lawrence, Clinton, Jefferson, Oswego, and Franklin as he may from time to time appoint. Such appointment shall be made by notice of at least twenty days published in the State paper of New York and one newspaper pubhshed at the place where said court is to be held. Revised Statutes (Second Edition), § 573, pp. 98, 100, as amended by Act of Congress of 33d March, 1883, ch. 48, sec. 1, 33 Stat, at Large, 33. For other Sections of the Revised Statutes (Second Edition) applicable to the sessions of the District Courts held in .this District, see §§ 573, 574, 578, 581, 583, 587, 588, 589, 590, 591, 593, 593, 594, 595, 596, 599, 601, 603 and 603 on pp. 101-106, and printed ante at pp. 380-386. DisTEicT OF Connecticut.— OiEcuiT Cotirt. Sec. 658. The regular terms of the circuit courts shaU be held in each year, at the times and places following ; but when any of said dates shall fall on Sunday, the term shall com- mence on the following day : ******** In the district of Connecticut, at New Hayen, on the fourth Tuesday in April; and at Hartford, on the third Tuesday in September. Revised Statutes (Second Edition), § 658, p. 130. For other Sections of the Revised Statutes (Second Edition) applicable to the sessions of the Circuit Courts held in this District, see §§ 661, 663, 669, 671 and 673 on pp. 133 and 134 of the Revised Statutes (Second Edition), and printed ante at pp. 378 and 379. District of Connecticut. — Disteiot Couet. Sec. 572. The regular terms of the district courts shall be held at the times and places following, but when any of said dates shall fall on Sunday, the term shall commence on the fol- lowing day : ******** In the district of Connecticut, at New Haven, on the fourth Tuesday in February ; at Hartford, on the fourth Tuesday in May ; at New Haven, on the fourth Tuesday in August, and at Hartford on the first Tuesday in December. Revised Statutes (Second Edition), § 573, p. 98, as amended by Act of Congress of 30th June, 1879, ch. 49, 31 Stat, at Large, 41. IN THE SECOND CIRCUIT. 389 For other Sections of the Revised Statutes (Second Edition) applicable to the sessions of the District Courts held in this District, see §§ 573, 574, 578, 581, 583, 587, 588, 589, 590, 591, 593, 593, 594, 595, 596, 601, 603 and 603 on pp. 101-106 of the Revised Statutes (Second Edi- tion), and printed ante at pp. 880-386. District of Yeemont. — Ciecuit Oouet. Sec. 658. The regular terms of the circuit courts shall be held in each year, at the times and places following ; but where any of said dates shall fall on Sunday, the term shall commence on the following day : ******* In the district of Yermont, at Burhngton, on the fourth Tuesday in February ; at Windsor, on the third Tuesday in May ; and at Rutland, on the first Tuesday in October. Revised Statutes (Second Edition), § 658, pp. 130, 133, as amended by Act of Congress of 5th June, 1874, ch. 314, 18 Stat, at Large, 53. ^ For other sections of the Revised Statutes (Second Edition), applicable to the sessions of the Circuit Courts held in this District, see §§ 661, 663, 669, 671 and 673 on pp. 133 and 134 of the Revised Statutes (Second Edition), and printed ante pp. 378 and 379. DiSTEICT OF YeEMONT. DiSTEICT CoUET. Sec 5Y2. The regular terms of the district courts shaR be held at the times and places following, but when any of said dates shall fall on Sunday, the term shall commence on the fol- lowing day : °** * * * * * In the district of Yermont, at Burlington, on the fourth Tuesday in February ; at "Windsor, on the third Tuesday in May ; at Rutland, on the first Tuesday of October. Revised Statutes (Second Edition), § 573, pp. 98, 101, as amended by Act of Congress of 5th June, 1874, ch. 314, 18 Stat, at Large, 53. For other Sections of the Revised Statutes (Second Edition), applicable to the Sessions of the District Courts held in this District, see §§ 573, 574, 578, 581, 583, 587, 588, 589, 590, 591, 593, 593, 594, 595, 596, 601, 603 and 603 on pp. 101-106 of the Revised Statutes (Second Edition), and printed ante at pp. 380-386. VI. RULES. SOUTHEEN DISTRICT OF NEW YORK. CIRCUIT COURT. JUDGES AND OFFICEKS CIRCUIT COURT OF THE UNITED STATES SOUTHERN DISTRICT OP NEW YORK. Samuel Blatohfokd — Associate Justice of the Supreme Court of the United States assigned to the Second Judicial Circuit — Cir- cuit Justice. No. 1433 K Street, N. "W., Washington, D. C. William J. Wallace — Circuit Judge. Syracuse, N. Y. Elihu Hoot — United States Attorney. No. 53 East Fifty-fifth Street, New York City. United States Attorney's Oflace, Eoom No. 50 Post-Office Building, New York City. Timothy Geiffith — Clerk Circuit Court. New York City. John a. Shields — Deputy Clerk. No. 300 Schermerhoru Street, Brooklyn, Kings Co., N. Y. Clerk's Office— Room No. 83 Post-Office Building, New York City. Clerk's Private Office, Room No. 77 Post-Office Building, New York City. Clerk's Office— Record Room, Room No. 133 Post-Office Building, New York City. Joel B. Eehaedt — United States Marshal. New York City. JUDGES AND OFFICERS OF THE CIECUIT COURT. 393 Heney R. Curtis — Chief Deputy Marshal. No. 138 East Fortieth Street, New York City. Marshal's Office, Room No. 56 Post-Office Building', New York City. Court Rooms in the Post-Office Building, New York City, as follows, viz. : Court Room for Jury Trials — Room No. 43. Court Room for Equity Trials — Room No. 47. Court Room for Criminal Trials — Room No. 78. Circuit Courts are held in the appropriate Court Rooms in the City of New York as follows, viz. : First Monday in April and third Monday in October, for all cases. Last Monday in February for Criminal and Equity cases only. Second "Wednesday in January, March and May, the third Wednesday in June, and the second Wednesday in October and December exclusively for Criminal cases. For Fedebal Statutes especially relating to this Court, See Respecting the Practice in the Cikodit Courts generally, their power to make Rdles, etc., pp. 353 to 355. Respecting Fees, etc., pp. 357 to 373. Respecting. the Jurisdiction of the Court, p. 375. Respecting Sessions, etc., pp. 377 to 379. RULES CIRCUIT COURT OF THE UNITED STATES SOUTHEEN DISTKICT OF NEW YORK. I. COMMON LAW RULES. [Adopted April 28th, 1838, and took effect the 1st Monday of August, 1838.] Rule 1. Suits relating to the title or possession of land (including all real actions), are to be the same in form, in this Court, and to be conducted by Mke processes, as are now used in the Su- preme Court of the State of New York. Bule 2. Other actions at law shaU be commenced by owpias ad re- spondendum, or summons, in which shall be expressed the true cause of action; except that bills of privilege may be filed, according to the usual course of the Court, at the elec- tion of the plaintiff. Mule 3. Writs and process must be signed and sealed by the Clerk, and have the name of the attorney at whose instance they issue, endorsed upon them. Usually, they are to bear test the day they are issued, and 396 CIRCUIT COURT RULES may be returnable the same day, or any day thereafter (Sun- days excepted), in term, or vacation ; but alias and plv/ries ■writs may be tested on the return day of the next preceding process ; and writs of execution, attachments for contempt of Court, or non-payment of costs, writs of error, mandamus, or inhibition, and writs of recognizance of bail in civil causes, must be returnable in term. When bail is to be charged, the capias ad satisfaciendum shall be placed in the marshal's office at least six days before the return day thereof. Mule 4. The defendant may be held to bail, of course in actions of debt, covenant and assumpsit, where the suit is on an obligar tion or agreement to pay money, and the writ expresses the cause of action and the true amount due ; bail may be taken to double the amount stated in the writ, provided, however, that the addition to such amount shall not, in any case, exceed one thousand dollars. In all other cases (except when regulated by statute), bail shall not be exacted without an order of a judge endorsed upon the writ. Rule S. If the writ is issued for a sum greater than is justly due, the plaintiff shall pay aU costs incurred in proceedings to obtain a mitigation of bail. Mule 6. Eules that the marshal return process, or bring in the body, shall be rules of ten days, " or that he show cause, at the ex- piration of that time, before one of the judges at Chambers, why an attachment should not issue against him ; " and, in de- fault of sufficient cause shown, an attachment may be ordered, and such attachment may be proceeded upon, before either of the judges, and the marshal be committed or discharged upon his order ; all the proceedings shall be filed, and a rule of Court be entered upon the final order of the judge, in conformity thereto. Mule 7. In bailable suits, the defendant shall appear, and put in bail SOUTHERN DISTRICT OF NEW YORK. 397 to the action, and give due notice thereof, within ten days after the return day of the process served upon Iiim ; or, if the suit was removed to this Court from a State Court, within ten days after filing a copy of the process in this Court. Rule 8. The plaintiff shall except to bail and give notice thereof, within four days after notice that the same has been put in, and, in default thereof, such bail shall be deemed perfected. Rule 9. Within four days after notice of 'exception, the bail shall justify, or new bail be put in and perfected ; and, if bail justify at any time subsequently, such subsequent justification shall not affect any proceedings on the bail bond, or against the officer, which may have been instituted, unless upon the spe- cial order of a judge, and on such terms as he shall impose. Mule 10. Bail may justify before the clerk, or one of the commission- ers to take affidavits, &c., appointed by this Court, with a right of appeal to one of the judges at Chambers, and thence to the Court. Rule 11. The service of a declaration before bail shall be put in, or the acceptance of a plea before the time of exception to bail shaU have expired, shaU not be construed to be a waiver of bail, or of justification. Rtile 12. If bail to the ofiicer becomes special bail, and the plaintiff except thereto, he may nevertheless take an assignment of the bail bond, if bail to the action is not duly perfected. Rule 13. The following shall be terms on which proceedings in the suit on the bail bond shall be stayed, or the attachment against the officer set aside : 1st. Putting in and perfecting bail above, and paying the 398 CIRCUIT COURT RULES costs of the suit on the bail bond, or of the attachment and proceedings thereon and of the motion, unless a full compliance with these terms shall have been previously offered ; 2d. Consenting to place the cause in the same condition of progress as if bail had been duly put in and perfected. And if, by the default of putting in bail, a trial shall have been lost, then the suit on the bail bond, or proceedings on attachment, shall stand as security, with such leave to pro- ceed thereon, as the judge may allow. Rule 14. The appearance of the defendant endorsed on the cwpias shall be a sufficient appearance, where special bail is not re- quired. Rule 15. AH rules, which, by the practice of this Court, either party is entitled to enter without special application to the Court, may be entered as well in vacation as in term, and shall have the like effect as if entered in term. Rule 16. The defendant having perfected his appearance, may, at any time thereafter, take a rule against the plaintiff, "to declare within twenty days after service of notice of the rule, or be non-prossed." Rule 17. The rule to plead, answer, or join in demurrer, shall be a rule of twenty days after service of a notice of the rule, and of a copy of the pleading to be answered ; except the rule to join in demurrer to a plea in abatement, which shall be a rule of four days only. Rule 18. In suits commenced by scire facias, the service of the writ shall be personal on the party to be summoned, except in pro- ceedings for the revival of a judgment, or continuance of other liens. Rule 19. A sGwe facias upon recognizance, or to revive a judgment, or SOUTHERN DISTRICT OF NEW YORK. 399 continue any other lien, shall be served by personal summons of the defendant, or, if he cannot be found, by leaving a copy at his residence or usual place of bushiess ; and the marshal shall return the manner of service. If the defendant has no knovra residence or place of business within the district, the plaintiff may proceed as heretofore, by two writs of scire facias. But the return of ^^ nihil" by the marshal shall also state the reason for not making the service as above directed. Bule 20. Upon the return of "scire feci" to a scire facias, or "nihil" to an alias scire facias, the rule shall be that the defendant appear and plead in twenty days, or judgment ; but notice of the rule to appear need not be served ; nor notice of the rule to plead, unless the defendant appear. Hule 21. When there shall have been a judgment of respondeas ouster, on demurrer to a plea in abatement, the plaintiff having served the defendant with a notice of the judgment, may, after four days from the day of service of such notice, cause the default of the defendant in not pleading to be entered. Rule 22. After default entered, the party shall not be bound to accept a declaration, pleading, or answer of course, unless the opposite party shall file an affidavit of merits, and serve a copy, pay or offer to pay the costs of the default, and consent to place the cause in- the same condition as if the pleading had been duly filed and served. Bule 23. The party in whose favor a default has been entered, may, at any day after, enter a rule for such judgment as is to be rendered by law by reason of the default ; and, in all actions sounding in damages, after judgment for the plaintiff by de- fault, or on demurrer, the damages shall be assessed on writ of inquiry ; the damages on notes, bills, or specialties for the pay- ment of money, shall be assessed by the clerk. 400 CIRCUIT COURT RULES Rule 24:. The caption of declarations and all subsequent pleadings may be of the return day of the writ, and need not be stated as of any term of the Court. All pleadings must be signed by an attorney of the Court. Hule 23. No order to show cause of action, mitigate bail, or for a bill of particulars, will be allowed, except upon affidavit showing probable cause therefor ; nor unless the order to show cause is apphed for within four days after the arrest ; and for particu- lars, within four days after the pleading under which it is de- manded is filed and served. JRule 26. In actions founded upon contract, the defendant, if he shall appear and plead the general issue, shall annex to his plea, and file therewith, an affidavit that he has a good and substantial defence upon the merits, as he is advised by his counsel and verily believes, together with a certificate of counsel that he so advised the party ; otherwise, such plea may be treated as a nuUity. Mule 27. Special pleas or demurrers to pleadings shall be accompanied by a certificate of a counsellor of this court, that, in his opin- ion, the special plea or demurrer is well founded ; otherwise, the plea or demurrer may be treated as a nuUity. Bule 28. If a plea in abatement is not served within ten days from the day of service of a notice of the rule to plead and copy of the declaration, the plaintiff shall not be held to receive the same without a special order of the Court or a judge. Bide 29. The plaintiff may, at any time before default for not reply- ing shall be entered, i£ the plea shall be a special plea in abate- ment, or withia twenty days after service of a copy of the plea, if it shall be the general issue, amend the declaration ; and the SOUTHERN DISTRICT OF NEW YORK. 401 rule to plead, wMch may have been taken against the defend- ant, shall then be deemed to be from the day of the service of a copy of the amended declaration ; and, in lilie manner, where there shall be a demurrer to a declaration or other pleading, not being a plea in abatement, the party against vfhom the demurrer shall be taken, at any time before default for not joining in demurrer is entered, may amend the pleading de- murred to; and, in these cases, the respective parties may amend of course, and without costs, but shall not be entitled so to amend more than once. Nor shall any amendment be made without first entering in the book of common rules, a rule for the amendment, and either amending the pleading on file in a distinct manner, showing the amendment, or filing a copy of the amended pleading. Bule 30. If the defendant shall plead the general issue, and if the plaintiff shall not, within twenty days after service of a copy of the plea, amend the declaration, or if either party shall, in pleading, in any degree after the plea, tender an issue to the country, and if the opposite party shall not demur to such pleading within twenty days after service with a copy thereof, the cause shall, in each of these cases, be deemed to be at issue at the end of such twenty days. Utile 31. All notices shall be in writing ; and, unless the party to be served therewith be an attorney of this Court, residing in the city of New York, or shah, have employed an attorney of this Court, it shall be sufficient service upon him to put up any notice, declaration, or other pleading or paper, in a conspicuous place in the clerk's office ; or the same may be given to the party. But, if notice of a retainer shall be received after a copy of a declaration and notice of rule to plead shall have been put up in the clerk's office, and before the defendant's default has been entered, a copy of the declaration and a notice of the rule to plead, stating the time when the declaration and notice were put up in the clerk's office, shall be served on the defendant's attorney ; and the time of pleading, in such case, shall be from the day of serving in the clerk's office, deducting 26 402 CIRCUIT COURT RULES the time that may have elapsed between the receipt of the notice of retainer and such service on the defendant's attorney. Rule 32. After notice of retainer, all notices, pleadings and papers shall be served on the attorney ; provided, however, that where a defendant is returned in custody, and remains in jail, and has retained no attorney, a copy of the declaration and notice of rale to plead, shall be dehvered to such prisoner, or to the officer or keeper of the jail in whose custody he is ; and, pro- vided further, that where the object is to bring a party into contempt for disobeying any rule or order of Court, the service shall be on him personally, unless otherwise especially ordered by the court. Mule 33. When an attorney of this Court, who does not reside in the city of JSTew York, has no agent in this Court, but has one in the Supreme Court of the State, residing in this city, he shall be considered the agent of such attorney in this Court ; and, if there is no such agent, service of all notices and papers directed to the attorney, by affixing the same in a conspicuous place in the clerk's office, shall be sufficient. Mule 34. Service on an attorney's agent shall be as vaKd, in all cases, as if made on the attorney himself. The appointment of agents in this Court shall be in writing, signed by the attorney and filed with the clerk, who shall keep a catalogue of the same, with the attorneys' names alphabetically arranged. MtiZe 35. Notices of trial, argument, hearing, or motion, are to be for the first day of term ; if, however, sufficient cause is shown therefor, an order may be obtained from the Court or a judge, permitting such notice to be given for any other day of term, including times to which the Court may stand adjourned. Mule 36. Notices of justification of bail, notices of motions, argument, SOUTHERN DISTRICT OF NEW YORK. 403 or hearing, shall be served at least four days before the time of such justification, hearings &c., and eight days when the same shall be served pursuant to the 31st and 34th Eules of this Court. Notices of trial shall be at least eight days. Rule 37. The day on which any rule shall be entered, or order, notice, pleading, or paper served, shall be excluded, in the computation of the time for complying with the exigency of such rule, order, notice, pleading, or paper ; and the day on which compliance therewith is required, shall be included ; except where it shall fall on a Sunday, in which case the party shall have the next day to comply therewith. Utile 38. The attorney of either party may give notice of argument of issues in law, or on writs of error or cases made, and set them down for hearing, and either party shall be at hberty to bring them on when called upon his notice, and if the other party does not appear, he may take such judgment or order as he is entitled to thereupon, by default. Bide 39. Motions in arrest of judgment ; to set aside nonsuit, verdict, or inquisition, otherwise than for irregularity only ; to with- draw pleadings from the files or alter the minutes of Court ; to quash indictments ; for a new trial ; in relation to writs of error, mandamus or certiorari ; to stay proceedings beyond a stated term ; or for the judgment of the Court on issues of law or case made ; or for the relief of special bail after they are fixed at law, must be made before the Court in term. Mule 40. All other motions may be made before either of the judges out of Court. Hule 41. Commissions to take testimony may be taken out by either party after suit brought. Stile 42. Four days' notice shall be given in writing to the opposite 404 CIRCUIT COURT RULES party, or his attorney, of the intention to sue out a commission, together with the names of the commissioner or commissioners, witness or witnesses, when known, and residence and occupa- tion of commissioners and witnesses, when known, and of the facts expected to be proved. Rule 43. At the expiration of the four days, a rule may be entered of course in the common rules, ordering such commission, unless proceedings are previously stayed by a judge, or unless the at- torney of the opposite party file a written consent to admit, on the trial, that the witness named will swear to the facts stated. ^ JSule 44. AU commissions must be issued under the seal of the Court and signed by the clerk, with the name of the attorney mov- ing it subscribed thereto. They may be directed to one com- missioner or three ; but no costs shaR be taxed for the services of more than one commissioner, unless both parties unite in requiring a greater number. Mule 43. After a commission is actually issued and in a train for ex- ecution, proceedings may be stayed in the cause by a judge, on proper cause shown, a reasonable time for the execution and return thereof. Mule 46. A commission may be moved for before the Court, or a judge out of Court, (under special circumstances to be allowed by the Com-t or judge,) and the proceedings in such case are to be comformable to the rules of this Court and the District Court apphcable thereto. Mule 47. A commission may be executed by a majority of the com- missioners named therein, if more than one, and shall be ac- companied by written or printed instructions directing the manner of its execution and return. SOUTHEEN DISTRICT OF NEW YORK. 405 Mule 48. The interrogatories for the direct and cross-examination shall be annexed to the commission, and, in case the parties dis- agree respecting them, be presented to a judge for his allow- ance at one time ; a copy of the direct interrogatories, with a notice of the time of presenting the same for allowance, shall be served eight days before such time, and copies of cross- interrogatories four days after such service. Mule 49. "Witnesses not named in the commission may be examined by the commissioners, and, if the depositions are objected to on trial, the Court will decide upon the sufficiency of the excuse for not nahiing them ; aU -objections to the depositions for this cause shall, however, be deemed waived, unless notice in writing be given thereof to the opposite party within four days after the commission is opened. Mule 30. Commissions executed within the United States may be re- turned by mail, addressed to the clerk, and having the title of the cause marked upon the envelope ; those executed out of the United States, may be returned in like form, by the usual mode of transmitting letters between such place and the city of New York. Mule 31. Motion for judgment, that the suit be dismissed for not going to trial, may be made after the discharge of the jury, in the same term for which notice of trial was given, or at the next term ; and the plaintiff shall not be permitted to stipulate to try the cause at the next term, unless upon sufficient excuse, to be approved by the Court, for not having proceeded to trial ; and, if the costs ordered to be paid on permission to stipulate, be not paid within twenty days after such permis- sion, the defendant may, after demand and service of a certi- fied copy of the order to pay costs, and of the taxed bill, on ffiing an affidavit of such demand and service and of non-pay- ment, enter judgment that the suit be dismissed, in the same manner as if no permission had been given. 406 CIRCUIT COURT RULES Mule 52. Each judge shall be furnished, at the argument, with a copy of the case, bill of exceptions, demurrer to evidence, demurrer book, or spiecial verdict ; or, on motion for a new trial upon newly-discovered evidence, with copies of the affidavits or papers whereon the motion is founded or opposed ; or, if the motion be in arrest of judgment, with copies of the pleadings, or so much thereof as may be necessary, together with the points intended to be made by the respective parties. And copies of the affidavits and papers on which such motions are founded, shall be served on the opposite party, four days before the day for which the motion is noticed. Mule 53. If the plaintiff, at the commencement of the action, be, or, pending the same, become, a non-resident of this State, or if, on demand in writing by the defendant's attorney, notice of his residence shall not be given, the defendant may, upon proof of either such cause, enter a rule of course, that the plaintiff give security for costs, within ten days after service of notice there- of, or be non-prossed. Mule 54. The security shall be a bond to the opposite party, filed in the clerk's office, duly executed by some sufficient person re- siding within the district, in the penalty of one hundred dollars, (unless a larger penalty shall be directed by the Court or a judge,) with a condition, that, if the plaintiff shall discontinue his action, or it be dismissed or non-prossed, or if judgment shall pass against him therein, he shall pay all such costs as shall be adjudged or awarded against him in such action. The sufficiency of the security may be excepted to ; and, thereupon, such security shall justify before the clerk, within the respect- ive periods, and in like manner, as is the practice with respect to special bail. And, on failure of giving such security, or in default of such justification, and on due proof of the service of notice of such rules, and of any such default, a judgment of non-fros may be entered. Mule 55. "When a cause is noticed for trial or argument for the first SOUTHEEN DISTRICT OF NEW YORK. 407 day of the term, a notice thereof, with a note of the issue and of the pleadings, and of the attorneys' names, shall be deliv- ered to the clerk at least eight days next preceding the term ; and the clerk shall, as early as the following Thursday, have the calendar of causes to be tried made up, arranging them according to the dates of their issues. And no cause shall be put upon the calendar, without the special order of the Court, unless the note of issue shall be furnished as is hereby re- quired. Mule 56. "Where an action is pending, in this Court, and either party dies before final judgment, and the cause of action survives, the legal representatives of the deceased party may, on pre- senting letters testamentary, or of administration, in open Court, be admitted voluntarily to come in and prosecute or defend such suit, as party thereto ; the letters testamentary, or of administration, remaining deposited in Court during such term, to the end that any legal objection to the right of such representative to appear may be taken. Rule 57. The order admitting such party, unless assented to by the opposite party, shall be nisi, in the first instance, and become absolute if sufficient cause be not shown against it, within four days after notice thereof. Mule 58. If such representative be appointed more than ten days be- fore a stated term, an order may be entered nisi, in the com- mon rules, authorizing him to prosecute or defend, and shall become absolute, if not vacated or suspended by order of a judge or the Court, within ten days after service of a copy thereof on the attorney of the opposite party. Mule 59. When such rule is entered out of Court, the letters testa- mentary, or of administration, shall at the same time be de- posited with the clerk, and so remain until the succeeding term, or until the rule becomes absolute, or is vacated, as before pro- vided. 408 CIRCUIT COURT RULES Rule 60. The clerk shall, fifteen days before a stated term, (and as many days before a special sessions, or adjourned term, as cir- cumstances will permit, where fifteen days do not intervene,) issue to the marshal a, venire, requiring him to summon twenty- four grand jurors, and thirty-six petit jurors. If the state of pubhc business requires a greater number of petit jurors, a man- date shall be obtained from one of the judges, and be endorsed on the venire, directing the additional number of jurors to be sunmioned, which shall then be regarded as part of such venire. Mule 61. All jurors residing out of the city of New York shall be summoned at least six days and petit jurors residing within the city, four days, before the return day of the venire. Bule 62. The venire shall specify the qualifications of jurors : " free " and lawful men, resident within the Southern District of " New York, above the age of twenty-one, and under the age " of sixty years, each of whom shall have in his own name, or " right, or in trust for him or his wife, a freehold in lands, " messuages, and tenements, (or a personal estate, if resident " within the city of New York,) of the value of one hundred " and fifty dollars, free of all reprises, debts, demands, or encum- '' brances whatsoever." Mule 63. The marshal shall annex to the return of every venire a panel of jurors summoned, designating their names, residence, and occupation, and at the request of any party indicted, or having a civil cause on the calendar for trial, the clerk shall furnish him with a copy of the panel. Mide 64. « Inquests in causes may be taken, out of their order on the calendar, at the opening of the Court, on any day after the first day in term, provided the intention is expressed in the notice of trial, and a sufficient affidavit of merits be not filed SOUTHERN DISTRICT OP NEW YORK. 409 and a copy thereof served ; and, when an inquest is regularly- taken, the same shall not be set aside except on payment of the costs thereof, and of opposing the motion. Mule 65. Eules for final judgment shall be absolute from the time of entry, unless conditional in their terms ; and the party obtain- ing the same is entitled to proceed thereon instanter. Bute 66. Proceeaings upon judgments may be stayed, by motion to the Court, or by order of a judge ; and a case agreed or set- tled, or a biU of exceptions signed, will, per se, stay proceed- ings thereon. Mule 67. "Whenever it shaU be intended to move to set aside a verdict, except for irregularity, a case may be prepared by the party intending the motion, and a copy thereof served on the oppo- site party, before judgment is rendered and entered upon such verdict, who may, within four days thereafter, propose amend- ments thereto, and serve a copy on the party who prepared the case, and, if the parties cannot agree together in regard to such amendments, then, within four days thereafter, either party may give the other notice to appear, within a convenient time, and not more than four days after service of such notice, before the judge who tried the cause, to have the case and amendments settled ; and the judge shall thereupon correct and settle the same as he shall deem to consist with the truth of the facts ; but, if the parties shall omit, within the several times above limited, unless the same shall be enlarged by a judge, the one to propose amendments, and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as prepared ; and, if the party omit to make a case within the time above limited, unless the time shaU be enlarged as aforesaid, he shaU be deem to have waived his right thereto. 410 CIRCUIT COURT RULES Btde 68. If judgment has been rendered upon a verdict, the party in- tending to move for a new trial shall give four days' notice in writing to the opposite party, of any motion to stay execution thereon, and also of the petition intended to be filed pursuant to 18th section of the Act of Sept. 24:th, 1T89, unless a shorter time be allowed by the Court or a judge. Btde 69. "Where exceptions to the opinion of the Court are taken by either party on the trial of a cause, or there is a demurrer to evidence interposed, or a special verdict found, the party shall not be required to prepare his biU of exceptions at the trial, or his demurrer or statement of the evidence, or to put in form the special verdict, but shall merely reduce such exceptions to writing, or make a minute of the demurrer to the evidence, and of the facts found specially by the jury, as the case may happen to be, and deliver it to the Court ; or the Court will themselves, at the request of either party, note the point, and the bin of exceptions, demurrer to evidence, and special ver- dict, shall afterwards be draAvn up, amended, and settled, within such times, and under the same rules and regulations as are observed with respect to cases. Bide 70. The same rules and regulations shall apply to cases made upon verdicts taken subject to the opinion of the Court, and it shall be the dut}-- of the party in whose favor such verdict shall be taken, to make and prepare the case. Where a case shall be made, with leave to turn the same into a special ver- dict, or biU of exceptions, the party shall not be at hberty to do either at his election, but the Court may, if they think proper, prescribe the one which he shall adopt. Bule 71. "When a bill of exceptions shall be taken on the trial, the same may before judgment, be used instead of a case, on motion for a new trial, and notice of such motion, together with service of a copy of such biU of exceptions, shall operate SOUTHEEN DISTRICT OF NEW YORK. 411 to stay all further proceedings, until the decision of the Court, provided, that proceedings shall not be longer stayed than if a case had been regularly made. Bule 72. In cases of division of opinion between the judges on points of law, the Court, at the instance of either party, wiU fortV with note such points in writing. Ittae 75. Either party may, within four days thereafter, serve on the other a statement, or certificate in writing, of such points, and also of facts in the case upon which the points arose, and, if no amendments are proposed thereto within two days, such state- ment shall be filed and shall be engrossed by the clerk, and be certified to the Supreme Court, under the seal of this Court. Bule 74. In case of disagreement between the parties, the statement or certificate shall be submitted to the Court, and be settled by the judges, as in the matter of a case or bill of exceptions. Bule 75. The hke practice shall be pursued, in certifying a division of opinion in proceedings on indictments. Bule 76. The placita of judgment records shall be of the day when issue was joined, or the default was entered, and need not be stated as of any term of the Court. Bule 77. Continuance by mce comes non misit treve or curi(\ admisari vult, are abolished in this Court, and, instead thereof, an entry shall be made that the cause was duly continued until the time when the trial, judgment, or other act of the Court therein re- quiring an entry on the record, was had. Bule 78. In the sale of real estate under execution issuing from this 412 CIRCUIT COURT RULES Court, the marshal shall conform his proceedings to the direc- tions of the law of this State, now in force, in relation to the sale of real estate on execution, and, in addition to the certifi- cate filed with the clerk of the county where the lands sold are situated, shall file a copy thereof with the clerk of this Court. Bule 79. Redemption of lands sold under execution out of this Court, may be made in the same manner, and with like effect, and by the same persons, as prescribed by the laws of this State now in force. And the sales by the marshal shall be made subject to such redemption. Bute 80. On suing out a writ of error to the District Court, and be- fore the clerk seals the same, the plaintiff in error, (other than the United States,) shall file security, with two or more sure- ties, to be approved by one of the judges of the Court, (in the sum of five hundred dollars when the writ of error does not operate as a siipersedeas,) conditioned to prosecute his writ of error to effect, and answer all damages and costs awarded against him. Mule 81. The clerk shall forthwith make return to a writ of error, by transmitting a certified copy of the record and all proceedings in the cause, (including the biU of exceptions, Avhen one has been signed by the judge and filed by the party,) under the seal of the Court. Mule 82. The plaintiff in error shall assign error within two days of the term, in which the writ is returned, first following the re- turn thereof, and the defendant shall join issue, within two days after the assignment, unless, in either case, the Court, by special order, shall enlarge the time. Mule 83. 1^0 further order on the defendant in error to appear and join in error, need be given, than the citation required by stat- ute, provided that the same is served twenty days previous to the return of the writ of error. SOTJTHERlSr DISTRICT OF NEW YORK. 413 Bule 84. If the plaintiff in error fails to appear and file his assign- ment of errors, within two days after the return of the writ of error, the defendant may have a rule of course, for judgment of nonpros. But if there are not two days remaining in term after the return of the writ of error, the plaintiff wiU be en- titled to the two fijst days of the succeeding term. Mule 83. The plaintiff in error may, by affidavit, show and prove the value of the matter in dispute, in order to sustain the jurisdic- tio of the Court, and a suggestion shall thereupon be entered on the record. Bule 86. 'Eo certiora/ri for diminution shall issue, without the affidavit of the party, showing reasonable cause for alleging diminution, and in -what such diminution consists ; nor shaU it be allowed after issue in error joined, without special order. Mtilc 87. In every cause in which the defendant in error fails to ap- pear, the plaintiff in error may proceed ex parte. Bule 88. "When a bond vnth sureties is approved by the judge and filed, the clerk may seal a writ of error, without mandate or allowance by the judge. Bule 89. A judge's order, staying proceedings, accompanied with ser- vice of notice of motion, and copies of proofs to be used there- on, shall stand in force until revoked or modified by one of the judges, or until the order of the Court thereon. But, if the party obtaining such order shall not proceed thereon at the next term, the opposite party may enter an order of course, vacating such stay of proceedings, and for his costs in conse- quence thereof. Bule 90. No agreement, or consent, between the parties or their at- 414 CIRCUIT COURT RULES torneys, in respect to the proceedings in court, shall be binding unless reduced to writing, and signed by the party against whom it shall be alleged or suggested. Mule 91. When a suit shaU be commenced for a non-resident, and also when, at any time pending the action, the plaintiff shall remove out of the district, and the attorney shall thereafter proceed in such suit, without security for costs being given, he shall, in either case, be deemed to have become security for costs to an amount not exceeding one hundred dollars. Provided, that this rule shall not apply where one of several plaintiffs resides within the district. Rtile 92. Upon payment of money into Court, except with a plea of tender, the plaintiff, if he accept thereof in full of the debt or damages claimed, shall serve the defendant with a bill of costs, and give two days' notice of taxation ; and unless the defend- ant pays the costs within two days after the same shall be taxed, the plaintiff may take out the money and proceed in the cause, and shall be entitled to judgment for the amount so taken out of Court ; but execution shall be endorsed " to levy the costs of suits." And, where money is paid into Court, the amount shall not be struck out of the declaration or verdict, but the plaintiff shall deduct the same from his execution. Bule 93. Attorneys and counsellors of the Supreme Court, and solici- tors and counsellors of the Court of Chancery, of this State, may, on presentation of their licenses to the clerk and his report of their degree, have an order of course entered, in open Court, in term time, or in the common rules, in vacation, ad- mitting them to the same standing in this Court ; and attorneys and solicitors of the said Courts may also be admitted as proc- tors, and counsellors of the said Courts may be admitted as advocates, on the Admiralty side of this Court; all such officers first taking and subscribing the oaths of office pre- scribed by the Constitution and laws of the United States. SOUTHERN DISTRICT OF NEW YORK. 415 Rule 94. The clerk may tax or certify bills of costs, and sign judg- ment records. In case of the absence of the clerk from the city, or his inability to transact business, his deputy or chief clerk is authorized to sign judgments, and tax or certify all biUs of costs in this Court, other than those of the clerk. JRule 93. 'No costs shall hereafter be taxed by either party, as against the other, on motion made pursuant to the 40th rule of this Court, except for disbursements actually incurred, unless upon proceedings taken under the 5th rule of this Court. JRule 96. The .costs of parties, except as otherwise regulated by law, shall be allowed according to the rates, for the time being, in the Supreme Court of this State ; and for taking depositions, under the Act of Congress, or under commissions, the same charges, and no other, shall be taxed, as if the depositions had been drawn and engrossed by the attorneys; and no other charges, or expenses, incurred in taking such depositions, or executing, or returning, commissions, shall be taxed by one party against the other. Mule 97. Appeals from taxation of costs, may be made instanter to a judge out of Court, but no costs shall be allowed to either party, on such appeal. Rule 98. No notice, (except to settle a case, or bill of exceptions,) can be given for proceedings before a judge out of the city of New York, without an order first obtained for that purpose, or an affidavit showing both judges absent from the city. Rule 99. Causes will be called in their place on the calendar, and no motion will be entertained to set them down for a particular day, and if not moved for trial, when called, the party entitled to bring them on will be regarded in default, unless the entire calendar is called again. 416 CIRCUIT COURT RULES Btcle 100. Where two coimsel, on each side, either in civil or criminal causes, sum up to the jury, or argue to the Court, the arguments shaU be heard alternately, and not from both counsel consecu- tively on the same side. Mule 101. The clerk of this Court, and, in case of his sickness, or ina- bility to transact business, or absence from the city, his deputy, or chief clerk, being of the degree of attorney or counsellor of this Court, (and whose appointment shall have been duly filed in the clerk's office,) may take the acknowledgment of satisfac- tion of judgment entered in this Court. Bule 102. In cases not provided for by the rules of this Court, the Eules of the District Court of the Southern District of J^ew York, for the time being, whether now in force, or subsequently adopted, so far as the same are applicable, are to be considered as rules for this Court. Mule 103. The sheriff, and under-sheriff, of the city and county of New York, are appointed to serve process, issued out of this Court, in aU causes in which the marshal of the Southern District of New York, or his deputy, is a party. Mtile 104. The clerk of this Court, and his chief clerk or deputy, the general deputy of the marshal of the Southern District of New York, (the said chief clerk or deputy of the clerk and general deputy of the marshal being designated by appointments duly filed in the clerk's office,) and the clerk of each of the counties within the Southern District of New York, (other than the city and county of New York,) for the time being, shall, ex-officio, be commissioners to take affidavits and acknowledgment of ban, in civil causes depending in the Courts of the United States, pursuant to the provisions of the Acts of Congress in that behalf ; and all orders heretofore made for the appoint- ment of such commissioners are hereby annulled. SOUTHERN DISTRICT OF NEW YORK. 417 II. EQUITY EULES. [Adopted April 38th, 1838, and took effect the Ist Monday of August, 1838.1 Mule 105. No motion for an injunction, (except to stay waste,) shall be heard, unless a copy of the biU, and of the depositions to be offered in its support, shall be served on the adverse party, or his attorney, at least four days before motion made. Rule 106. The defendant may show cause against the allowance of an injunction, either by plea, answer, or demurrer to the bill, or by parol exception to its legal sufficiency, or by deposition, disproving the equity on which the motion is founded. Mule 107. Suppletory, or supporting, proofs may, at the discretion of the Court, or judge, be offered by the complainant, to rebut the cause shown by the defendant ; but the reception of such additional proofs is not to permit the introduction of further proofs in opposition thereto, by the defendant, previous to the final hearing upon the merits. Mule 108. If a general commission is not issued, pursuant to the 25th Eule of the Supreme Court, within ten days after rephcation filed, either party may give notice of the examination of wit- nesses before the standing examiner of this Court ; and three months from the time of the replication shall be allowed the parties for taking their depositions before the examiner. Mule 109. When no proceedings are taken by either party within thirty days after replication, for the examination of witnesses out of Court, either party may set the cause down for hearing upon the pleadings. 27 418 CIRCUIT COURT RULES Bule 110. "Whenever it is intended to offer oral proof in open Court, the party proposing it shall give due notice to the opposite party of the names of the witnesses, the matters to which they are to be examined, and of the reasons upon which he will move for an examination. Mule 111. All special motions, in reference to matters of practice, may be made in open court, or before a judge at chambers. Bule 112. No rule, or order, need be entered for the publication of testimony ; but, so soon as the commissioner or examiner shall have completed the testimony offered, the party taking it shall cause the deposition to be filed in the clerk's office, and forth- with give notice thereof to the adverse party. Either party may thereupon enter a rule of course, that the clerk open the commission, or deposition, and file the same. JRule 113. Within four days after the clerk shall have prepared copies of the depositions, (provided the same were applied for in two days after the notice of the filing thereof,) the adverse party may give notice of exception, before a judge at chambers, to the proofs or any part of them, on account of any irregularity in taking the depositions, or executing the commissions ; and, if no such notice of exception is given, all objections to the form, or manner, in which the proofs were taken, shall be deemed waived. Mule 114. "When a motion for rehearing is made during the term at which a decree has been rendered, the enrolling or recording of such decree shall be suspended, until the final disposition of such motion by the Court. Mtile 115. A master, or examiner, in taking proofs, or in matters of reference, shall not, without the written consent of all parties, or the authorization of one of the judges, adjourn proceedings pending before him, for a longer time than ten days. SOUTHERN DISTRICT OP NEW YORK. 419 III. EULES ON APPEALS. [Adopted April 28th, 1838, and took effect the 1st Monday of August, 1838.] Bule 116. An appeal can be taken from no other than final decrees. Bute lit. A decree shall be deemed final, when in a state for execu- tion without further action of the Court below. Bule 118. Every appeal to the Circuit Court, in a cause of Admiralty and maritime jurisdiction, shall be in writing, signed by the party, or his proctor, and delivered to the clerk of the District Court from the decree of which the appeal shall be made ; and it shall be returned to the Court, with the necessary documents and proceedings, within' twenty days, and by the first day of the next term after the delivery thereof to the clerk, unless a longer time is allowed by the judge. Bule 119. The appeal shall briefly state the prayers, or allegations, of the parties to the suit, in the District Court, the proceedings in that Court, and the decree, with the time of rendering the same. It shall also state whether it is intended, on the appeal, to make new allegations, to pray different relief, or to seek a new decision on the facts, and the appellants shall be concluded in this behalf, by the appeal filed. Bule 120. A copy of the appeal shall, at the same time, be served on the proctor of the appellees in the Court below. And an affi- davit of the due service of such copy, shall be filed with the appeal. And no process, or order, shall be necessary to bring the appellees into this Court. 420 CIRCUIT COURT RULES Bule 121. If, in the appeal, it shall not be intended to make new alle- gations, to pray different relief, nor to seek a new decision of the facts, then the pleadings, evidence, and decree, in the Dis- trict Court, where the stipulations in the cause, and the clerk's account of the funds in Court, in the cause, if any, shall he certified to this Court with the appeal. But, in all cases, the statement of facts agreed between the parties, or settled by the judge of the District Court, and on file, according to the practice of that Court, may be- certified in the place of the evidence at large. Bule 122. If it shall be intended to seek only a new decision of the facts, then the pleadings of the parties, with the stipulations in the cause, and the clerk's account of the funds in Court, if any, and the exhibits and depositions in the cause, shaU be certified to this Court Avith the appeal, but the proofs need not be certi- fied, unless especially required by the appellant or ordered by this Court. Utile 123. If it shall be intended to make new allegations, or to seek new relief, then the return to the petition of appeal shall only contain copies of the pro'cess issued upon the libel, and of the return thereof, the account of the clerk of the funds in Court, in the cause, the depositions and exhibits, and the stipu- lations in the cause. Rule 124. The appellant shall cause the notice of appeal, and an affi- davit of the service of a copy thereof, with the documents re- quired to be returned with the appeal, to be filed in this Court within four days after the return is completed by the clerk, otherwise the appeal shall not be received, and shall be deemed deserted ; and a certificate in this behalf shall be made to the Court from which the appeal is made, which may proceed to execution of its decree. Rtile 125. This Court shall be deemed possessed of. the cause from the time of filing the appeal, with the documents required to be returned therewith, in this Court. SOUTHERN" DISTRICT OF NEW YORK. 421 Bule 126. If the appellee does not enter his appearance within the two first days in term succeeding the filing the appeal and proceed- ings, and affidavit of service of notice thereof on him, the ap- pellant may proceed ex parte in the cause, and have such de- cree as the nature of the case may demand. Mule 127. JSTo answer, or issue, need be given to the appeal. Each party may notice the cause for hearing, for the term to which the appeal is made, (if made in term time,) or, if made in va- cation, for the term next succeedins. Mule 128. A writ of inhibition wiU be awarded, at the instance of the appellant, when circumstances require, to stay proceed- ings in the Court below, notice of such application having been previously given. Mule 129. A mandomius may, in like manner, be obtained, to com- pel a return of the appeal, when unreasonably delayed by the clerk, or Court, below. Mule 130. If the appellee shall have any cause to show why new allegations, or proofs, should not be offered, or new relief prayed, on the appeal, he shall give four days' notice thereof, and serve a copy of the affidavit containing the cause in- tended to be shown; and such cause shaU be shown within the two first days of the term; otherwise, the appeal shall be allowed according to its terms. Mule 131. If new allegations are to be made, or different relief prayed, in this Court, then the Ubellant in the District Court shall exhibit in this Court a libel, on oath, within ten days, to which the adverse party shall, in twenty days, answer on oath, subject, in each case, to the extension of those periods, by order of either of the judges of this Court ; and, 422 CIRCUIT COURT RULES on a default in this behalf, the Court wiU, on motion, with- out notice, make such order for finally disposing of the cause, on the default of the party, as the nature of the case may re- quire. Utile 132. After the hbel and answer, whether newly filed in this Court, or certified from the District Court, shall be filed in this Court, the cause shall be proceeded into a hearing, as in other cases. But, where interrogatories have been answered in the District Court, or written testimony taken, the same may be used in this Court. Bule 133. The appellee may move this Court to have the decree made in the District Court carried into effect, subject to the judg- ment of this Court, or of the Supreme Court on appeal, upon giving his own stipulation to abide and perform the de- cree of such Courts ; and this Court will make such order, un- less the appellant shall give security, by the stipulation of him- self and competent sureties, for payment of all damages and costs, on the appeal in this court, and in the Supreme Court, in such sums as this Court shall direct. Rule 134. In cases where an appeal shall lie from the decree of this Court, the final decree shall not be executed until ten days shall have elapsed from the pronouncing, or filing, of the de- cision of the Court. Mule 133. When appeal shall be made from the decree of this Court, the appellant shall, within four days from the pronouncing or fifing of such decision, unless further time is allowed by the judge, make, and serve on the adverse party, a statement of the testimony on the trial, excepting such evidence as was in writing, which shall be properly referred to therein. The party on whom the same shall be served shall, in four days after such service, propose amendments thereto, or the state- nient shall be deemed acquiesced in, and the statement and amendments, unless acquiesced in, shall be submitted by the SOUTHEEN DISTRICT OF NEW YORK. 423 appellant to the judge in four days afterwards for settlement ; and the same, when settled, shall be engrossed by the clerk, and, with the written evidence, shall be deemed the proofs on which the decree is made, and shall operate as a stay of further proceedings in this Court. Bute 136. In all cases, in civil causes of Admiralty and maritime juris- diction, not expressly provided for by the foregoing Eul^ of this Court, the Rules of Practice of the District Court for the Southern District of New York, being in force at the time, and whether estabhshed before or after these Rules, (not being in- consistent with these Rules,) are adopted, and are to be re- ceived as Rules of Practice in this Court. rv. MISCELLANEOUS RULES. [Applicable, as each Rule may show, to practice in Common Law or Equity or Criminal Cases or on Appeals.] Rule Without Kumber. March 4th, 1840. In all cases in which persons convicted of offences against the statutes of the United States shaU be sentenced to impris- onment, and the sentence shall not also specify that the party be kept at hard labor, it shall be the duty of the marshal to cause such party to be imprisoned in any one of the prisons within the city and county of New York which he may select for the purpose. Mule 1S7. NOVEMBKR 11th, 1840. Hereafter, jurors to serve in this Court shall be designated by baUot, according to the method of forming grand and petit juries now practised in the highest Court of law of this State, except that the panels shall be certified to the marshal by the clerk of this Court, or his deputy, if present at the drawing, 424: CIRCUIT COURT RULES and except further that it shall not be necessary for either judge of this Court, or any judge of a State Court, or jus- tice of the peace, to be present at the drawing, or for any notice thereof to be published. Rule 138. November 11th, 1840. The jurors shall be drawn from the ballot-boxes kept by the. clerk of the city and county of New York, in all cases except as is provided for and directed by Rule 140. In case of default or defect of jurors at term, or the discharge of a panel, and the summoning a new one in its place, the venire may be made returnable forthwith, or at any convenient day in term, and, in either such case, the drawing shall be at the time directed by the Court or either of the judges. Bule 139. November 11th, 1840. In case a sufQcient number of grand jurors shall not appear on the return of the venire, or, after appearing, shall be excused by the Court, or absent themselves, so that there shall be in attendance less than sixteen grand jurors duly qualified, the Court may, by order, direct the marshal forthwith to summon the number of persons necessary to complete such grand jury. Bule 140. November 11th, 1840. The Court, or either of the judges, may, from time to time, by order to the clerk (to be by him endorsed on the venire,) direct the whole or any part of the jurors required to serve at any term, or portion of a term, to be returned from such parts of the district, besides the city and county of ISTew York, as the Court or judge may designate, so as shall be most favora- ble to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of the district with jury service. Mule 141. November 11th, 1840. In executing venires issued pursuant to Rule 140, the clerk assisting in drawing shall insert upon the panels, and certify, SOUTHERN DISTRICT OF NEW YORK. 425 the names of qualified jurors residing in the following places only in the counties hereafter named, (and shall omit the names of jurors drawn from the box who reside elsewhere,) to wit : in Stuyvesant and Hudson, in Columbia County ; in Athens and Catskill, in Greene County ; in Saugerties and Kingston, in Ulster County ; in Poughkeepsie and Fishkill, in Dutchess County ; in Newburgh and New Windsor, in Orange County ; in Castleton, in Eichmond County ; in Brooklyn, Wil- liamsburgh and Flatbush, in Kings County ; and in Flushing andjJamaica, in Queens County. Rule 142. November 11th, 1840. The clerks of the several counties within the district in which venires are to be executed, are empowered to draw jurors and certify panels for this Court, in the same manner practised for the highest Court of law of the State, when the clerk of this Court or his deputy is not present at the drawing. Bule 143. November 11th, 1840. In case the clerk of the city and county of New York, or any county of this district, shall refuse to draw jurors for this Court, or shall not permit the officers of this Court to use the boxes provided and kept in his office for drawing jurors to serve in the State Court, the marshal shall immediately thereupon procure copies of the lists of jurors qualified to serve in the highest Court of law of the State, prepared, from time to time, pursuant to the law of the State, in the different wards of the city of New York, and in the other places designated in Eule 141, and file the same with the clerk of this Court, verified by the official certificate of the officers with whom the same are filed or deposited, or by that of the officers required by the law of the State to prepare and authenticate them, or, if such proof is refused, or cannot be obtained, then by affidavit ; and the clerk shall thereupon prepare proper boxes and ballots, conformably to the practice in the State Courts, and the drawing of jurors from such boxes shall be made and conducted thereafter by the marshal and clerk according to the mode now practised under 426 CIRCUIT COURT RULES the law of the State, except that a publication of any previous notice thereof, or the attendance thereat of either of the judges of this Court, or any other magistrate, shall not be necessary. Mabch 12th, 1841. The clerk of this Court, and also the clerk of the District Court of the United States for the Southern District of N"ew York, and the chief clerk or deputy of each of said clerks (the said chief clerk or deputy being designated by appointment duly filed in the office of the said clerks respectively), for the time being, shall, ex-offioio, be commissioners to take affidavits and acknowledgments of bail in civil causes depending in the Courts of the United States, pursuant to the provisions of the Acts of Congress in that behalf ; and the said clerks and deputies are also hereby respectively authorized and empowered to take bail within the Southern District of New York, pursuant to the Act of Congress of March 2d, 1793. April 17th, 1845. So much of standing Eule 99 of this Court, as prohibits motions to set down causes placed on the calendar for a par- ticular day, and also so much of standing Rule 104, as designates and appoints the general deputy of the marshal of the South- ern District of New York, ex-officio, a Commissioner to take affidavits and acknowledgments of bail, in civil causes depend- ing in the Courts of the United States, be, and the same are, hereby abrogated and repealed, but no other portions of the said rules are to be affected by this order. Masters and Examiners in Chancery, designated and ap- pointed by this Court to act as such, on the Equity side thereof, shall, ex-offioio, be Commissioners to take affidavits and ac- knowledgments of bail, in civil causes depending in the Courts of the United States, and to take bail vfithin the Southern District of New York, pursuant to the provisions of the several Acts of Congress in that behalf; and every such Master in Chancery for the time being is hereby designated and ap- pointed, ex-qfficio, Commissioner as aforesaid. This rule or order is not to affect the rule or order of the Court in this behalf, entered March 12th, 1841. SOUTHERN DISTEICT OP NEW YORK. 427 June 38th, 1845. In place of the provisions of Rule 96 of this Court, for the taxation of costs of parties, the costs of parties (their attorneys, solicitors and counsel,) shall be allowed and taxed conformably to the regulation and appointment of costs made in the last proviso but one to section one, No. 167, of the Act of Congress approved May 18th, 1842, entitled an "An Act making ap- propriations for the civil and diplomatic expenses of Govern- ment for the year 1842." For services rendered pursuant to the course of practice of this Court, for which no fees are appointed specially by Acts of Congress, or of the State of JS'ew York, in force, there shall be allowed, on taxation, the same rates of compensation as, by the usages or adjudications of this Court, or the Supreme Court of the United States, were allowed therefor at the time of the passage of the Act of May 18th, 1842, aforesaid. In all cases of taxation of costs, fees shall be allowed, as having been appointed by the laws of the State, only accord- ing to the rates allowed for hke services, in similar cases, in the highest courts of law or equity, of original jurisdiction, of the State of New York. Septembeb 3tl, 1845. On appeals, no paper proceedings shall be read in this Court, unless they be papers duly sent up by the Court below, and on file in this Court, or original papers on the files of this Court, or copies of such papers duly certified by the clerk of this Court. * Mat 18th, 1846. Hereafter, on motions for an injunction, because of the in- fringement of a patent right, the complainant shall not be per- mitted to give evidence to rebut the cause shown by the defendant against the allowance thereof, other than to a denial that the defendant uses the discovery or invention claimed by the complainant, or to a claim by the defendant that he acts under an assignment or license from the patentee; and, on motions for injunctions to stay waste, only to a defence set up justifying the waste; and, in neither case shall such sup- pletory or supporting proofs be received, unless the Court, or one of the judges, on satisfactory cause shown, shall, by 428 CIRCUIT COURT RULES order previously made, allow the same to be given, and so much of Rule 107, of the standing Eules in Equity of this Court, adopted April 28th, 1838, as may be inconsistent here- with, is repealed. Motions for injunctions shaU be brought on by the complain- ant on the day named in the notice, if the Court is then in session, and, in default thereof, the defendant may move that the notice be discharged for the term, with costs, unless further time is given, or the hearing is delayed by order of the Court. Apkil 1st, 1850. 'No action, real or personal, shall abate by the death, mar- riage, or other disabihty of either party, or by the transfer of. any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the Court, on motion, may allow the cause to be continued by or against the successor in interest, on the usual notice to the party interested, or such other notice as may be directed by the Court. OCTOBBE 10th, 1850. The clerk of this Court, and the clerk of the District Court of the United States for the Southern District of New York, and also the chief clerk or deputy of each of said clerks, and also the county judge of each of the counties within the South- ern District of the State of New York, and also the standing masters in Chancery appointed by this Court, (such officers respectively being of the degree (jf counsellor at law, of this or of the Supreme Court of the State of New York,) shall each be, ex-officio, and is hereby appointed by this Court, a commis- sioner of this Court, to take affidavits in civil causes depending in the Courts of the United States, and to execute and perform all the powers conferred by the Act of Congress, entitled, " An Act in addition to the Act entitled, ' An Act to establish the judicial Courts of the United States,'" approved March 2d, 1793 ; and the Act of Congress entitled " An Act for the more convenient taking of affidavits and bail in civil causes depend- ing in the Courts of the United States," approved February 20th, 1812 ; and the Act of Congress entitled " An Act in ad- dition to an Act entitled, ' An Act for the more convenient SOUTHERN DISTRICT OF NEW YORK. 429 taking of affidavits and bail in civil causes depending in the Courts of the United States,' " approved March 1st, 1817; and the Act of Congress entitled, " An Act further supplementary to an Act entitled, ' An Act to establish the judicial Courts of the United States,' passed the 24th September, 1789," approved August 23d,' 1842; and the Act entitled, " An Act to amend and supplementary to the Act entitled, 'An Act respecting fugitives from justice, and persons escaping from the service of their masters,' approved February 12th, 1793," approved Sep- tember 18th, 1850. Januakt 20th, 1851. The clerk of this Court, and the clerk of the District Court of the United States for the Southern District of JSTew York, and also the chief clerk or deputy of each of said clerks, (such chief clerk or deputy being designated in writing by the clerk appointing him, and the appointment being approved by the circuit judge of this circuit, or, in case of his absence from the district, by the district judge, and sach designation, with the approval endorsed thereon, being filed in his office by each of the said clerks respectively,) and also the standing masters in Chancery appointed by this Court, and also the county judge of each county within the Southern District of New York, other than the county of Kings and the city and county of JSTew York, (if the said officers before named shall be each of the degree of counsellor at law of this Court, or of the Supreme Court of the State of New York,) whether said officers are in office at the time of making this order, or shall be subsequently appointed, or elected thereto, shall be, whilst holding such office, ex-officio, commissioners of this Court, and each of such officers, whilst in office, is hereby appointed a commissioner to take affidavits in civil causes depending in the Courts of the United States, and to execute all the powers, and perform all the duties, authorized or conferred by the Act of Congress entitled, " An Act in addition to the Act entitled, ' An Act to establish the judicial Courts of the United States,' " approved March 2d, 1793 ; and the Act of Congress entitled, " An Act for the more convenient taking of affidavits and bail in civil causes depending in the Courts of the United States," approved February 20th, 1812 ; and the Act of Congress entitled, " An 430 CIRCUIT COURT RULES Act in addition to the Act entitled, ' An Act for the more con- venient taking of affidavits and bail in civil causes depending in the Courts of the United States,' " approved March 1st, 1817 ; and the Act of Congress entitled, " An Act further sup- plementary to an Act entitled, ' An Act to establish the judi- cial Courts of the United States,' passed the 24:th September, 1789," approved August 23d, 1842; and the Act entitled, "An Act to amend and supplementary to the Act entitled, ' An Act respecting fugitives from justice, and persons escaping from the service of their masters,' approved February 12th, 1793," approved September 18th, 1850 ; or of any other Act of Con- gress having relation to such commissioners and their duties or powers. Januakt 29tli, 1851. Except as may be from time to time otherwise specially ordered by the Court, when hereafter a venire shall issue pur- suant to the standing rules of the Court, for the purpose of summoning petit jurors to serve in this Court, the marshal or other officer to whom such venire shall be directed, shall, with the clerk, or his deputy, repair therewith to the office of the clerk of the city and county of New York, and there, at least ten days before the return of such venire, in the presence of the said clerk of the city and county, and of the marshal, or other such officer, the clerk or deputy shall proceed, if the clerk of said city and county shall consent thereto, to draw out of the box of jurors qualified, according as the law of the State of New York was on the 20th day of July, 1840, to serve ia the highest Court of law thereof, kept by the clerk of the said city and county, the names of so many jurors as by the said venire shall be required to be summoned. And the clerk of this Court shall immediately make out and certify under his hand a panel of the jurors so drawn, with their respective additions and places of abode, and deliver the same to the marshal or other such officer, and the persons so certified shall be sum- moned to serve as jurors pursuant to such venire, and, if any of the persons whose names are so drawn shall be dead, or removed from the city and county, or not qualified as afore- said, within the knowledge of the clerk or marshal, then such names shall be disregarded, and the clerk shall forthwith pro- SOUTHERN DISTRICT OF NEW YORK. 431 ceed to draw out of the said box other names, until the said panel shall be completed. "Whenever the Court shall order petit jurors under such venire to be taken wholly, or in part, from anj^ county or counties within the District other than the citj'- and county of Ifew York, the panel or panels thereof shall be drawn, certi- fied, and summoned, in like manner as is directed in the pre- ceding order or rule. October Teem, 1851. Whereas, Samuel Blatchford, Esq., cousellor-at-law, has been appointed Eeporter of the decisions of the Circuit Judge in the Circuit Court of the United States held in the Second Circuit thereof : Ordered, That the solicitors, attorneys and proctors of said Court, in case of motions for new trials, demurrers, writs of error, appeals in Admiralty, and cases in Equity, bringing on the argument, furnish the said Eeporter with a copy of the case, demurrer book, error book, apostles, including all proofs in the Court below, and in this Court, in the case, and of the pleadings and proofs in Equity, as the case may be, at or before the commencement of the argument. Januaky 37th, 1853. All and each of the Commissioners appointed by this Court, by order or rule, entered January 20th, 1851, to take aifidavits in civil causes depending in the Courts of the United States, &c., be, and the said Commissioners are hereby, appointed and authorized to act as Commissioners, and each of them is hereby appointed, to act as a Commissioner, under the provisions of the Act of Congress entitled, " An Act for giving effect to certain treaty stipulations between this and foreign governments for the apprehension and dehvering up of certain offenders," ap- proved August 12th, 1848. Mat 7th, 1853. The clerk shall issue a venire to the marshal for a grand jury to be in attendance at the commencement of each regular term of this Court. 432 CIRCUIT COURT RULES Costs taxable to Commissioners appointed and acting on EEFEEENCES, UNDEE KuLE 44 OF THE RuLES OF PeAOTICE FOE THE CorETS OF THE UnITED StATES IN AdMIEALTY AND MARI- time jueisdiction, prescribed by the supeeme couet of the United States at the Januaey Teem, 1845, and under Rules of Peactice in Admiralty, adopted in January Teem, 1839, by the Disteiot Court of the United States FOE THE SoUTHEEN DiSTEICT OF New YoEK. It being made a question of taxation, what fees or compensa- tion may be lawfully allowed to said officers, for services rendered by them, under their appointments by authority of the above Rules of Court ; and it appearing, that the Act of Congress entitled, " An Act to regulate the fees and costs to be allowed Clerks, Marshals, and Attorneys of the Circuit and District Courts of the United States, and for other purposes," ap- proved February 26th, 1853, (10 U. S. Stat, at Large, 161,) makes no provision for compensating Commissioners appointed by the Courts under the aforesaid Rules, for their services ren- dered in aid of the administration of justice, in the matters and cases therein specified; and we being of opinion, that these special officers of the Court do not come strictly within the Act, and that, upon the usages and doctrines of Courts of the United States, officers called upon to render services in those Courts, according to their rules and modes of practice, for which no specific fees or costs are appointed by statute law, will be awarded compensation therefor by the Courts respect- ively in which the services are performed, corresponding in amount to that allowed by law in the State, for similar ser- vices rendered by the State officers, in a like capacity, particu- larly in Chancery procedures, (1 Blatchf. C. C. R., 652 ; Hath- OAJoay V. Eoach, 2 Woodb. & M., 63 ;) and it further appearing to us, that such is an equitable and sound rule to be applied in relation to this class of officers, especially as the above cited statute law of costs contains no prohibition of compensation to them by authority of the Courts otherwise than through a positive appointment by statutory law : "We are, therefore, of opinion, that such Commissioners are entitled to have taxed in their behalf, by the proper taxing officers, the rate of fees or costs allowable in the Court of Chancery of the State of New SOUTHERN DISTRICT OF NEW YORK. 433 York to Masters in Chancery of that Court, for services therein, performed by them, on the first of September, 1845, being the time the Eule of Practice aforesaid adopted by the Supreme Court went into operation, unless in particulars in whioh the rate of allowance then prevailing in the State Court shall have been rescinded or modified by subsequent regula- tions made by orders of the Courts of the United States ; and we designate as proper subjects of taxation, in cases where those services have been actually performed by such Commis- sioners, in Admiralty and Maritime causes referred to them pursuant to the aforesaid Kules, the following items, embraced in the Eules and Orders of the Court of Chancery of the State of 'Sew York, revised and ' estabhshed by Chancellor Walworth, in 1844, under the head of "Master's Fees," (pages 190, 191,) to wit : CoTrmiissioners' Costs. For signing every summons for a witness or party to attend a reference, twelve Gents. For attending at the time and place, and adjourning the same at request, or upon reasonable cause, one dollar. Attendance and hearing every argument upon any matter referred to him, when litigated, three dollars ; and when he proceeds expa/rte., one dolla/r. Attending and settling his report after argument, if both parties attend and litigate the same, three dolla/r s ; if he pro- ceeds ex parte, one dollar. For writing out and certifying the testimony of witnesses taken orally before him on the hearing, to file with his report, for every foho of 100 words, twenty cents. Copies of the same, furnished, on request, to either party, for each folio, ten cents. Drawing every report in pursuance of an order of reference to him, (exclusive of schedules and the written proofs,) for every folio, twenty cents. Drawing all schedules to be annexed to reports, for every folio, ten cents. Copies of reports and schedules, to be filed, for every foMo, ten cents. 28 434 CIRCUIT COURT RULES Copies of reports and schedules and all other proceedings, furnished by him to the parties, upon request, for every folio, six cents. Marking every exhibit produced before him on a reference, vp^ith the title of the cause, and signing the same, six cents. May 28th, 1859. S. Nelson, Saml. R. Betts. 2fote,— The foregoing Eule was adopted in the Circuit Court of the United States for the Southern District of New York, as well as in the District Court for said District on the day of the date thereof. September 21st, 1859. All money brought into Court in any suits pending in this Court, shall be deposited by the clerk of the Court in the United States Trust Company, upon such terms as shall be agreed between the clerk and the Company, and approved of by the Court. November 11th, 1867. It having been found impracticable to obtain jurors for the Courts of the United States in this District from the jury boxes used by the authorities of the State of New York, in the city and county of New York, for the procuring of juries for the Courts of said State, in said city and county, It is now ordered, that the clerk of this Court, and the clerk of the District Court of the United States for this District, make out -and file in the office of the clerk of this Court, a list of persons to serve as jurors in the Courts of the United States for this District, and that such list be made out in the same manner as, by the laws of the State of New York, the public officers charged with the duty of making out the list of jurors to serve as jurymen in the Courts of said State, in and for said city and county, are required to make out such list. And it is further ordered,- that the said clerks, from time to time, correct and revise such list, as they may deem it necessary so to do, to the end that such list may be made and kept, so far as practicable, in conformity with the laws of the State of New York ; and it is further or- dered, that, from the list so made and filed, grand and petit jurors shall be selected, and shall be drawn by lot, in accord- ance, so far as practicable, with the laws of the State of New SOUTHERN DISTRICT OF NEW YORK. 435 York, by the said clerks, as from time to time the same may be ordered by the Courts of the United States for this District, and a list of the persons so drawn, certified by said clerk, shall be attached to the writ of venire issued to the marshal for the summoning of such jurors ; and it is further ordered, that as to all matters relating to the selecting, drawing and summoning of jurors for said Courts, the said clerks follow, so far as prac- ticable, the provisions in respect thereto contained in the laws of the State of New York. And it is further ordered, that the order made by this Court on the 29th day of January, 1851, in regard to the drawing and summoning of jurors, be and the same is hereby vacated. NOVEMBEK 10th, 1868. In taking testimony, all Masters, Examiners, Eeferees and Commissioners shall, where testimony is written down by ques- tion and answer, number the questions put to each witness continuously, from the commencement of his direct examination to the final close of his examination, direct and cross. November 17th, 1868. On the hearing, in this Court, of an appeal from the District Court, on any record which shall hereafter be transmitted from the District Court, no statement or report found in such record, of any testimony given vwa voce, in open court, in the District Court, will be considered by this Court as evidence, unless such testimony shall appear, on its face, to have been taken down in the same manner as in jury trials in common law issues, and not verbatim, as in depositions de hene esse. ■ January 14th, 1871. Issues, whether of law or fact, and appeals, in this Court, may be noticed for trial or hearing, and placed upon the calen- dar, by either party ; and either party noticing the same may, when the cause shall be called, move the trial or hearing, and take verdict or judgment, or order to dismiss the suit for not going to trial, as the Court shall direct. Junk 27th, 1871. On the hearing of appeals in Admiralty, the appellant shall furnish to the Court a printed copy of the Apostles, certified 436 CIRCUIT COURT RULES by the clerk of this Court, unless, by special order of the Court, obtained before the hearing, such printing, or some part thereof, shall be dispensed with. October 2d, 1872. Rule 55 of the Rules of the Circuit Court of the United States for the Southern District of l!iew York is amended so as to read as foUows : When a cause is noticed for trial or argument for the first day of the term, a notice thereof, with a note of the issue and of the pleadings, and of the attorneys' names, shall be delivered to the clerk at least eight days next preceding the term ; and the clerk shall, as early as the following Thursday, have the calendar of causes to be tried made up, arranging them accord- ing to the dates of their issues. And no cause shall be put upon the calendar without the special order of the Court, unless the note of issue shall be furnished as is hereby required. Fbbrtjakt 26th, 1873. In order to f acihtate the dispatch of business at the criminal terms of the Circuit Court of the United States for the South- ern District of New York, the following calendar Rules are adopted for those terms : 1. Four days prior to the commencement of each criminal term, the clerk of the Court shall prepare a calendar of all the causes which shaU have been designated by the District Attor- ney, in a written notice, as causes which the Government is ready to try at such term. The causes will be arranged upon the calendar in the order designated in the notice of the Dis- trict Attorney, and no cause not so designated shaU be placed upon the calendar ; provided, that indictments found after the commencement of any criminal term may be placed upon the calendar of such term, upon special order of the Judge. 2. At the opening of each criminal term, all the causes upon the calendar for that term wiU be called, for the purpose of enabling counsel to fix upon days of the term on which the various causes are to be tried. In case of failure of counsel in any cause to agree upon a day of trial, the day wiU be fixed by the Court. 3. "When a day has been assigned for the trial of any cause, such cause wiU not thereafter be postponed for the term on the SOUTHERN DISTRICT OF NEW YORK. 437 application of a defendant, except upon showing facts to have arisen since the assignment of the cause, which entitle the de- fendant to postpone the trial for the term. 4. Eveijy cause placed upon the calendar of any term upon the request of the District Attorney, which shall not be tried during such term for either of the following reasons, to wit, be- cause of the failure of the District Attorney to apply to have a day in such term assigned for the trial, or because of the omis- sion of the District Attorney to move the trial at the time when the cause is called for trial, shall be stricken off the calendar, as for want of prosecution, and, unless otherwise specially ordered, shall not thereafter be placed upon any calendar, ex- cept by permission of the Judge, obtained on notice to the de- fendant, or his attorney, and upon showing proper reasons for the failure to try the cause when upon the calendar. 6. AU assigned causes which are not reached for trial during the term of their assignment shall, without further notice to the clerk, be placed at the head of the calendar of the next criminal term, in the order of their assignment, and shall stand as causes assigned in that order, to be tried upon the first day of the said next term. 6. Motions to quash the indictment in any cause upon the calendar of any term must be made uppn the opening day of the term, unless otherwise ordered. T. The clerk will, for the information of the Court, attach to each calendar a hst of the names of all persons under indict-" ment in the Court, who are in custody. November 31st, 1873. Hereafter, in all cases brought to this Court, from the Dis- trict Court, by writ of error, or appeal, or petition of review, the clerk of the District Court shall annex to, and transmit with, the record or proceedings of that Court, a copy of any opinion or opinions filed in that Court upon the decision of any -matter contained in such record or proceedings, and, if no such opinion has been filed, such clerk shall so certify ; and the said opinions, or such certificate, shall be considered as filed in the case in this Court, and a copy thereof shall be transmitted, with the record, to the Supreme Court, in the cases provided for by 438 CIRCUIT COURT RULES the amendment to the eighth rule of that Court, promulgated April 28th, 1873. Makch 16th, 1875. For the purpose of carrying out more efficiently the provi- sions of the recent Act of Congress, (Act of February 16th, 1875, § 1, 18 TI. 8. Stat, at Large, 315,) after it shall take effect, ^in regard to the finding of facts and of conclusions of law by the Circuit Court, in cases in Admiralty, on appeal, each party to an appeal shall furnish to the Court, at the commencement of the hearing, and shall serve on the proctor for each of the ■ other parties to the appeal, five days before the hearing, a printed finding of facts and conclusions of law, as proposed, printed on writing paper, on only one side. If this be. not done, the party in default will not be heard on the appeal, and if the party in default be the appellant, his appeal wiU be dis- missed. JxjLT 1st, 1876. The cases and points, and all other papers furnished to the Court in calendar causes, other than causes for trial before a jury and reviews in bankruptcy, shall be printed, unless, by special order of the Court obtained eight days before the hear- ing, such printing or some part thereof shall be dispensed with. The appellant in appeals, the plaintiff in error in writs of error, and the moving party on motions for a new trial and the argu- ment of demurrers, shall cause the papers to be printed. In all other cases, each party shall cause to be printed the pleadings, proofs and papers filed on his behalf. At the beginning of the argument each party shall furnish to his adversary three copies of his printed points, and, at least eight days before the argu- ment, three printed copies of all other papers shall be furnished by the party printing the same to the adverse party. A party recovering costs shall be allowed his disbursements for the printing required of him by this rule. [Amended by Bule adopted May 18th, 1878. See page 440.] January 6th, 1877. On filing the written consents of all the parties, orders may be entered in the rule books, in cases at law or in equity, with SOUTHERN DISTRICT OF NEW YORK. 439 the same efPect as if directed upon such consent by a Judge, except final decrees in equity. [See Eules adopted May 6th, 1879, and May 36th, 1883, printed at pages ^43 and 446 respectively.] Pebruakt 1st, 1877.- 1. Notice of an intended appUcation to the Circuit Court for the exercise of the general superintendence and jurisdiction conferred by section 4986 of the Revised Statutes of the United States, must be given within ten days after the entry in the District Court of the order complained of, by filing such notice in the clerk's office of that Court, and serving the same on the adverse party. The application must be made within thirty days, after the entry of such order, or within such further time as may be allowed by an order of the District Judge filed within said thirty days in the clerk's office of that Court. An application cannot be made at a later period. 2. Except where special provision is otherwise made by stat- ute, or where the aggrieved party proceeds by biU in equity, the application must be by petition filed in the office of the clerk of the Circuit Court, and verified by oath. The petition must designate the order complained of, and set forth the facts of the case, so far as may be necessary to show the errors, whether of fact or of law, alleged to have occurred in the Dis- trict Court, and must point out such errors specifically, and the relief sought therefor. 3. The petitioner must, within five days after filing the peti- tion, procure from the clerk of the Circuit Court a certificate of the filing of such petition, designating the order therein com- plained of, by its date, and file the same in the office of the clerk of the District Court. 4. Within ten days after filing the petition, the petitioner must serve a copy thereof on the adverse party, who may file an answer thereto, verified by oath, within ten days after such service, and must, in that case, serve a copy of the answer on the petitioner within the further period of ten days. The pe- titioner may, within ten days thereafter, file a reply to the an- swer, and serve a copy thereof on the adverse party. The clerk may once extend either oi these periods, by order made before its expiration. 440 CIRCUIT COURT RULES 5. The application will be heard upon these papers only, un- less the Court shall, of its own motion, otherwise direct. As soon as the case is disposed of, the clerk of the Circuit Court must certify the order to the District Court. February 5th, 1877. In actions at law, a consent to a reference of the whole issue must likewise contain a provision that judgment shall not be entered untU after ten days' notice of the filing of the report of the referee, and of the judgment proposed to be entered thereon. After a reference, at any time before the entry of judgment, either party may move for a new trial upon a case or exceptions, and, if such motion be denied, the decision of the motion and the questions involved in it may be entered on the record, as if it had been a ruling made upon a trial by the judge without a jury, and excepted to in like manner. "When a motion for a new trial is intended to be made, the Court may extend the time for entering judgment, upon the application of the moving party, and may stay all other proceedings untU the decision of the motion. Mat 18th, 1878. The rule adopted by the Circuit Court of the United States for the Southern District of I^ew York, to take effect July 1st, 1876, is hereby amended so as to read as follows : " The cases and points, and all other papers furnished to the Court in calendar causes, other than causes for trial before a jury and reviews in bankruptcy, shall be printed, unless, by special order of the Court obtained eight days before the hear- ing, such printing or some part thereof shall be dispensed with. The appellant, in appeals, the plaintiff ia error in writs of error, the excepting party in exceptions to master's reports, and the moving party, on motions for a new trial and the argument of demurrers, shall cause the papers to be printed, and such papers shall include all the papers necessary for the proper presentation of the case on both sides. In all other cases, each party shall cause to be printed the plead- ings, proofs and papers filed on his behalf. At the begin- ning of the argument each party shall furnish to his adver- sary three copies of his printed points, and, at least eight days SOUTHERN DISTRICT OF NEW YORK. 441 before the argument, three printed copies of all other papers shall be furnished by the party printing the same to the ad- verse party. A party recovering costs shall be allowed his disbursements for the printing required of him by this rule." [For the Rule of July 1st, 1876, see page 438.] June 15th, 1878. Ordered, that no warrant of arrest shall be issued by a Com- missioner of the Circuit Court in a criminal case, unless such warrant is applied for by the District Attorney, or by one of his regularly appointed assistants, in person, or by the au- thority of such District Attorney, or assistant, produced in writing to the Commissioner. No account of any Commis- sioner for issuing a warrant in any other case wiU be ap- proved by a Judge ; and every account shall be accompanied by an affidavit of the Commissioner, showing by whom each warrant was applied for, and on what authority. This order shall not apply to extradition cases. Sbptembbb 2d, 1878. The appellate docket shall consist of five divisions : (1.) Ap- peals in Admiralty ; (2.) Writs of Error ; (3.) Appeals in equity cases ; (4.) Appeals in bankruptcy ; (5.) Keviews in bankruptcy. The docket of original causes shall consist of four divisions : (1.) Equity cases, embracing pleas, demurrers, cases to be heard on pleadings and proofs, and cases to be heard on pleadings alone; (2.) Issues of law in suits at law, upon the pleadings or upon special verdict; (3.) Issues of fact triable by a jury, between private parties; (4.) Issues of fact triable by a jury, to which the United States is a party, including customs and revenue suits against collectors. For each division of the appellate docket, and for each division of the docket of original causes, there shall be a sepa- rate permanent calendar, the first of which shall be made up for the October Term in the year 1878, and shall continue to be the permanent calendar, subject to the addition to it of new cases, until the Court shall order a new permanent calendar to be made. The causes remaining on each permanent calendar shall be renumbered for every October Term. 4A2 CIRCUIT COURT RULES In each division of tlie appellate calendar the causes shall, originally and at every re-numbering, be arranged and num- bered thereon according to the priority of the filing of the re- turn in this Court. Pleas and demurrers in equity cases, set dov?n by order for hearing, shall be numbered op the calendar as of the date of such order. Pleas replied to, and cases to be heard on pleadings and proofs, and cases to be heard on pleadings alone, as of the time of filing the last pleading. Issues of law in suits at law, upon the* pleadings, as of the date of the issue. Special verdicts, as of their date. Issues of fact triable by a jury, as of the date of the iasue. ^ The note of issue filed with the clerk shaU specify the proper date. Motions for a new trial, on cases or exceptions, shall not be put on any calendar, but must be made before the Judge who tried the cause, at any such time and place as he may direct. Only one note of issue to the clerk and one notice of trial or hearing to the opposite party, shall be necessary for any per^ manent calendar. The cause will then remain and stand for hearing or trial, until it is reached and caUed, when it may be moved by either party. If it be passed upon the regular call, no postponement being granted by the Court, it wiU go to the foot of the calendar. If it be a second time thus passed, it wiU be marked off the calendar. It may afterward be renoticed . and a new vote of issue filed, stating the date at which it was last passed, as of w;hich date it may again be placed on the calendar. October lltli, 1878. In pursuance of the provisions of section 915 of an Act en- titled " An Act to revise- and consolidate the statutes of . the United States, in force on the first day of December, Anno Domini one thousand eight hundred and seventy-three," ap- proved June 22d, 1874, — it is ordered, that the provisions of the Act of the Legislature of the State of New York entitled, " An Act relating to Courts, officers of justice and civil pro- ceedings," passed June 2d, 1876, and the provisions of any Act heretofore passed by said Legislature, amending said last named Act, so far as such proceedings relate to a remedy by attach- ment against the property of a defendant, are hereby adopted SOUTHERN DISTRICT OF NEW YORK. 443 by this Court as rules of this Court in respect to a remedy by attachment, against the property of a defendant in a common- law cause in this Court. [See Rule adopted December 39th, 1881, printed on page 445.] March 12th, 1879. For the purpose of securing a right of review to defendants in criminal cases tried in the Circuit Court of the United States for the Southern District of New York, hereafter, in all such cases, where the defendant shall, within three days after convic- tion, file jiotice c^ a motion for a new trial upon exceptions taken at the trial, or a motion in arrest of judgment, sentence wiU be deferred until the next criminal term of the Court, in order to give opportunity for the hearing of such motion before a Court to be composed of the Circuit Judge and the two Dis- trict Judges authorized by law to hold the said terms of said Court, under § 613 of the Eevised Statutes of the United States. The Court wiU sit for the purpose of such hearings on the second day of each of the exclusively criminal terms pro- vided for in § 658 of said Eevised Statutes, at which time either party may move the hearing, and the same will be had upon the minutes of the trial, as settled by the Judge who tried the case. The minutes so settled shall be printed by the 'moving party, and five copies thereof shall be filed before the first daypf the term next subsequent to the term at which the trial was had, one of which copies shall be dehvered to the District Attorney, at his request. A failure to file such copies will be deemed an abandonment of any motion of which notice may have been given in pursuance of this rule. Mat 6th, 1879. The rule of January 6th, 1877, in these words: "On filing the written consents of all the parties, orders may be entered in the rule-books-, in causes at law or in equity, with the same effect as if directed upon such consent by a Judge, except final decrees in equity,"- is hereby aKrogated. [See Rules adopted January 6th, 1877, and May 36th, 1883, printed at pages 438 and 446 respectively.] September 13th, 1879. In pursuance of the provisions of the recent Act of the 4M CIRCUIT COURT RULES Congress of the United States on the subject of the dramng of jurors, Samuel D. Babcock, of the city of New Yorii, is hereby- appointed a commissioner to discharge the duties prescribed by that Act, in this Court ; and the said Commissioner and the clerk of this Court shall, as soon as practicable after the entry of this order, place in a box the names of twelve hundred per- sons to serve as grand jurors and as petit jurors in this Court, each on a separate sHp of paper, each of which persons shaU possess the qualifications prescribed in section 800 of the Ke- vised Statutes of the United States, being the qualification set forth in sections 1079, 1080, and 1029 of the Code of Civil Procedure of the State of New York, passed June 2d, 18Y6, the said clerk and the said commissioner each placing one name in said box alternately, commencing with said clerk, without reference to party affiliations, until the said number of twelve hundred names shall have been placed therein. All jurors, grand and petit, to serve in this Court, shall be publicly drawn by the said clerk from the said box, and from the names so placed therein ; and, at the time of the drawing of any juror, the said box shall contain the names of not less than eight hundred persons, so placed therein. The said commissioner and the said clerk shall, from time to time, as may be neces- sary, place in said box, in manner aforesaid, the names of additional persons, or the same persons, or both, possessing said qualifications, so that the number of said names shah not, when any juror is drawn, be less than eight hundred nor more than twelve hundred. The box shall be locked and retained by the clerk and the key shall be kept by the commissioner. The box shall be provided by the marshal. The clerk shall post upon the outer door of the clerk's office notice of the time and place of drawing jurors, at least five days prior to the drawing, except when jurors are summoned during a session of the Court. [See Amendment of November 33d, 1880, printed on page 444.] NovEMBBB 33d, 1880. The order made by this Court on the twelfth day of Sep- tember, in the year of our Lord, one thousand eight hundred and seventy-nine, in relation to the drawing of jurors, is hereby amended so as to read as follows : SOUTHERN DISTRICT OF NEW YORK. 445 " In pursuance of the provisions of the Act of Congress of the United States on the subject of the drawing of jurors, ap- proved June 30th, 1879, Samuel D. Babcock, of the city of New York, is hereby appointed a commissioner to discharge the duties prescribed by that Act, in this Court ; and the said com- missioner and the clerk of this Court shall, as soon as practicable after the entry of this order, place in a box the names of two thousand persons to serve as grand jurors and as petit jurors in this Court, each on a separate slip of paper, each of which persons shall possess the qualifications prescribed in section 800 of the Revised Statutes of the United States, being the quahfi- cations set forth in sections 1079, 1086, and 1029 of the Code of Civil Procedure of the State of New York, passed June 2d, 1876, the said clerk* and the said commissioner each placing one name in said box alternately, commencing with said clerk, without reference to party aflBUations, until the said number of two thousand names shall have been placed therein. AU jurors, grand and petit, to serve in this Court, shall be publicly drawn by the said clerk from the said box, and from the names so placed therein ; and, at the time of the drawing of any juror, the said box shall contain the names of not less than eight hundred persons, so placed therein. The. said commis- sioner and the said clerk, shall, from time to time, as may be necessary, place in said box, in manner aforesaid, the names of additional persons, or the same persons, or both, possessing said qualifications, so that the number of said names shall not, when any juror is drawn, be less than eight hundred nor more than two thousand. The box shaU be locked and retained by the clerk, and the key shall be kept by the commissioner. The box shall be provided by the marshal. The clerk shall post upon the outer door of the clerk's office notice of the time and place of drawing jurors, at least five days prior to the drawing, except when jurors are summoned during a ses- sion of the Court." [See Rule Adopted September 12th, 1879, printed on page 443.] December 29th, 1881. In pursuance of the provisions of sections 915 and 916 of an Act, entitled, " An act to revise and consolidate the statutes of the United States in force on the first day of December, Anno 446 CIRCUIT COURT RULES Domini one thousand eight hundred and seventy-three," ap- proved June 22d, 1874, it is ordered, that the provisions of the Act of the Legislature of the State of New York, entitled "An Act relating to Courts^ officers of justice and civil proceedings," passed June 2d, 1876, as amended by the Act of said Legisla- ture, entitled "An Act supplemental to the Code of Civil Procedure," passed May 6th, 1880, and the provisions of any other Act heretofore passed by said Legislature amending either of said Acts, so far as such provisions relate to a remedy by attachment against the property of a defendant, or to a remedy by execution, or otherwise, to reach the property of a judgment-debtor, are hereby adopted by this Court as rules of this Court in respect to a remedy by attachment against the property of a defendant, in a. common law cause in this Court, and in respect to a remedy by execution, or otherwise, to reach the property of a judgment-debtor, in a common law cause in this Court. [See Eule Adopted October 11th, 1878, printed at page 443.] Mat 36th, 1883. On filing the written consent of aU the attorneys for the parties, orders for discontinuance, extensions of time, and sub- stitutions of attorneys, may be entered in the Rule book, in cases at law, or in equity, without the special direction of a judge. [See Rules adopted January 6th, 1877, and May 6th, 1879, printed at pages 438 and 443 respectively. ] October 1st, 1883. At the jury terms for trials of issues in which the United States is not a party or interested, a day calendar shall be made from causes on the general calendar. The first twelve causes on the calendar shall comprise the day calendar for the first day of the term. For each subsequent day, six causes, to be selected by the clerk from all causes noticed for the day calen- dar, according to their order on the general calendar, shall comprise the day calendar. Causes that have not been placed upon the day calendar may be reserved for a future day, by fihng a consent of the attorneys, specifying the day, with the clerk, but will not have priority over causes previously placed SOUTHERN DISTRICT OP NEW YORK. 447 on the day calendar, unless the Court, for special reasons, so directs. Causes will be placed on the day calendar upon the notice of either party filed with the clerk by 3 o'clock p.m. of the preceding day. A copy of the day calendar for each suc- ceeding day shall be. conspicuously posted by the clerk, in the Court room, by 4 o'clock p.m. After the day calendar is thus posted, no change shall be made, and each cause must be dis- posed of for the term, when reached, unless, for sufficient cause shown, the Court may otherwise direct. Causes not reserved by consent, or noticed for the day calendar before causes hav- ing a later date of issue shall have been placed thereon, shall be deemed passed for the term. October 1st, 1883. "When a cause has been removed from a State Court, either party may forthwith cause a copy of the record to be filed in this Court, and thereupon may notice the cause for trial in this Court, although the term has commenced ; and, upon filing a note of issue, may place the cause upon the calendar, as of the date when the record was filed. Such cause will not be placed on the calendar until five days after the filing of the note of issue. When the cause has been duly noticed for trial in the State Court before removal, no new notice of trial in this Court will be required, but the party filing a note of issue shall, on the day of filing the same, serve notice thereof on the adverse party. OcTOBBR 8th, 1883. Ordered, that the United States Marshal for this District, under the direction of the Clerk of this Court, cause the per- manent Calendar for causes for the October and April Terms of the Court to be printed, and ready for distribution by the Clerk of the Court, four days prior to the commencement of each term respectively. VII. RULES. SOUTHEEN DISTRICT OF NEW YOEK. DISTRICT COURT. 29 JUDGE AND OFFIOEKS OP THE DISTRICT COUET OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OP NEW YORK. Addison Brown — District Judge. No. 233 East Forty-eighth Street, New York City. Elihu Eoot — United States Attorney. No. 53 Bast Fifty-fifth Street, New York City. United States Attorney's Office, Room No. 50, in Post-Office Building, New York City. Samuel H. Lyman — Clerk District Court. No. 328 East Forty-second Street, New York City. Samuel M. Hitchcock — Deputy Clerk. The "Benedict" Washington Square, New York City. Clerk's Office— Room No. 62 Post Office Building, New York City. Joel B. Eehardt — United States Marshal New York City. Heney R. Cuetis— Deputy Marshal. 138 East Fortieth Street, New York City. Marshal's Office, Room No. 56 Post-Offlce Building, New York City. Court Room— Room No. 40 Post Office Building, New York City. District Court held in Room No. 40 Post-Office Building, New York City, on the 1st Tuesday in every month. For Federal Statutes especially relating to this Court, see — Respecting the Pbactice in the District Courts generally, their power to make Rules, etc., pp. 358 to 355. Respecting Fees, etc., pp. 357 to 372. Respecting the Jurisdiction of this Court, etc., p. 375. Respecting Sessions, etc., pp. 379 to 386. RULES OP THE DISTRICT COURT OP THE UNITED STATES FOR THE { SOUTHEEN DISTEICT OF NEW TOEK IN PKAOTICE ADMIRALTY, COMMON LAW, INTOBMATIONS AND PEIZE OASES, AND MISOELLANEOUS EULES OTHEE THAN IN BANKEUPTOT PEOCEEDINGS. Note. — Wherever under any of the Rules printed hereunder reference is made to "Admiralty Rule," followed by a number, the Rule of Practice of that number adopted by the Supreme Court of the United States in Admiralty and Maritime Jurisdiction, on the Instance Side of the Court, in pursuance of the act of the 33d of August, 1842, chapter 188, printed at pages 331 to 349, is intended to be referred to ; and whenever under any one of the said Rules reference is made to "District Court Rule," followed by a number, the Rule of the District Court of the United States for the Southern District of New York of that number is intended to be referred to. Rules 1 to 178, inclusive, hereunder, were adopted November 6th, 1838. Rule 1. A libel, information, or petition, must state plainly the facts upon which relief is sought, without any repetitions or amplifi- cation of charges. See Admiralty Rules 23 and 23, page 886. 452 DISTRICT COURT RULES Rule 2. No process shall issue until the pleading or statement in writing upon which it is allowed be duly filed. See Admiralty Rule 1, p. 331. Rule 3. Libels (except on behalf of the United States) praying an attachment in personam or in rem, or demanding the answer of any party on oath, shall be verified by oath or affirmation. See District Court Rule 87, p. 468. Mule 4, The oath or affirmation of the party himself, in all cases where one is necessary, shall be required to pleadings filed in his name, except as is hereafter otherwise provided, or as shall be specially ordered by the Judge. See District Court Rule 98, p. 469. Mule S. Libels, informations, or petitions, praying a monition or cita- tion only, without attachment, need not be sworn to. Rule 6. Libels, and other proceedings to be filed, shall be plainly and fairly engrossed, without erasures or interlineations materially defacing them. If papers not conforming to this Rule are offered, the clerk shall require the allocatur of the Judge to be indorsed thereon, before he receives them on the files. Rule 7. Amendments, or supplementary matters, must be connected with the libel or other pleading by appropriate references, with- out a recapitulation or restatement of the pleading amended or added to. Rule 8. In suits for seamen's wages, any mariner in the same voyage, not made a party, may, by short petition to the Court, in any stage of the cause previous to the final distribution of the fund SOUTHERN DISTRICT OF NEW YORK. 453 in Court, or discharge of the defendant and his .sureties, be joined as libellant in the cause, but no costs shall be allowed for the proceedings taken to make him a party. Rule 9. The proctor in the original cause shall not, however, be com- pelled to proceed in behalf of such petitioning mariner, unless a reasonable indemnity is offered for such costs as may be in- curred in consequence of his being joined in the cause. Mule 10. In case of salvage and other causes, civil and maritime, per- sons entitled to participate in the recovery, but not made par- ties in the original libel, may, upon petition, be admitted to prosecute as co-libellants, on such terms as the Court may deem reasonable. Hule 11. Process on libels or informations may be made returnable on any day, at a stated or special term, but writs for the sale of property under any order or decree of the Court, and all final process, shall be returnable at a stated term, unless, upon cause shown, an earlier day is specially appointed by the Judge. JS,ule 12. Tuesday of each week is appointed as a special sessions of the Court (except the stated term be then in session), at which the same proceedings may be taken, in causes of admiralty and maritime jurisdiction, as at a stated term. Rule 13. Process to be used in commencing suits shall be a citation or monition ; an attachment in rem, united with a monition, or, by special allowance of the Judge, with an attachment in per- sonam ; an attachment in personam and a writ of f oreigii attachment. See Admiralty Rule 1, p. 331. Rule 14. Where no specific process is provided by the rules, parties 454 DISTRICT COURT RULES may have ^uch process as is in use in like cases in the Supreme Court of the State. See Admiralty Rule 3, p. 333. Rule 15. Where it is not desired to arrest a defendant, the clerk, on filing a Ubel or information, may, at the instance of the actor, issue a citation or monition, according to the usage in civil and admiralty proceedings. See Admiralty Rules 3, p. 331, and 7, p. 333, and District Court Rule of 38th February, 1871, p. 509. Rule 16. No process in personam, for the arrest of any person, in cases of torts or unliquidated damages, shall issue, except upon the mandate of the Judge. See Admiralty Rule 7, p. 333. Rule 17. In cases of liquidated damages, vrhen the certainty and amount of the demand appear upon the face of the libel, an attachment in personam may be issued by the clerk without an order. The attachment shall plainly express the cause of action and the amount of the demand, and the clerk shall in- dorse thereon the sum for which bail is required, not exceeding one hundred dollars above the sum sworn to be due and un- paid ; but no attachment or citation shall be issued until the libellant shall have filed a stipulation for costs, in the sum of one hundred dollars, except in suits by the United States. See District Court Rules 44 and 45, p. 460, and District Court Rule of 16th April, 1847, p. 498, and Admiralty Rule 7, p. 833. Rule 18. On the return of a citation or warrant by the marshal " served personally," the party shall be deemed in Court, and may be proceeded against accordingly. Rule 19. When the citation or monition, in suits in personam, is not served personally, the libellant may, at his election, pursue the SOUTHERlSr DISTRICT OF NEW YORK. 455 defendant to a decree of contumacy, in which decree may be embraced an order for the attachment of the defendant as for contempt of process; or, on verifying by oath the matters demanded by the libel, the libellant may have an attachment m personam instanter, on the return of the citation "not served." Bule 20. In the latter case, all subsequent proceedings, may be as if the attachment had been sued out in the first instance. Hule 21. On warrants to arrest the person, in admiralty and maritime causes, the marshal may take bail in the form of a stipulation, and in the sum indorsed on the warrant, conditioned for the appearance of the party on the return day, to answer to the libellant in a cause civil and maritime, according to the course of the court. See Admiralty Rules 3, p. 332, and 48, p. 843. Bule 22. The sureties having made oath thereon to their sufficiency, and the bail stipulation being filed, it shall have the same effect in favor of the actor, and against the defendant, as if taken in Court ; and the marshal shall be deemed discharged of all per- sonal responsibility for the appearance of the respondent. Mule 23. In case the marshal does not file such stipulation, or the sureties being required, refuse to justify, like proceedings may be taken to compel the marshal to bring in the party, as if no stipulation had been entered into. Rule 24. The condition of the stipulation shall be deemed satisfied, if the party shall appear in person, on the return day of the warrant, and submit himself for commitment, or enter into the usual stipulation in the cause, according to the course of the Court. 456 DISTRICT COURT RULES Jtule 25. If a party against whom a warrant of arrest issues cannot be found, and return thereof be made, the plaintiff may, upon the mandate of the Judge, have a warrant to attach the prop- erty of the defendant, and may also have inserted therein a clause of foreign attachment, according to the course of the admiralty. Bule 26. In aU cases of attachment, under admiralty process, to com- pel an appearance, the attachment may be dissolved on the party's giving a stipulation with sureties, to the same effect as in cases of arrest. See Admiralty Eule 4, p. 333. Bule 27. In cases of foreign attachment, if the defendant appear, the same proceedings may be had as is usual in suits m personam, and, if he make default, the Court will proceed ex parte, and pronounce the proper decree, unless the attachment is dis- charged at the instance of the garnishee. Hide 28. Process cannot issue against goods, choses in action, or moneys in the hands of third persons, except by the order of the Judge, and upon due proof of the claim first made ; and the names of such persons, and also of the persons whose effects are to be attached, together with a specification of such effects, shall be expressed in the process. Bule 29. On the service of the attachment by arrest of property, the parties holding the property or funds attached shall, on the return day of such process, file an affidavit containing a full and true statement of the property or funds in their hands, be- longing to the principal party at the time the attachment was served, and at the time the deposition is made, and declare whether they have any, and, if any, what claim to any, and what part thereof, and shall then, on motion of the actor, pay SOUTHERN DISTRICT OF NEW YORK. 457 into Court such amount as they shall not claim, or as may be ordered by the Court, or give stipulation, with suiRcient surety, to abide the further order or decree of the Court in relation thereto ; and, on their default in this behalf, a rule may be en- tered, that an attachment issue against them, unless they shall show cause in four days, or on the first day the Court is in session afterwards. See Admiralty Rule 37, p. 341. Rule 30. "When the property, effects or credits named in the process are not dehvered up to the marshal by the garnishee or trustee, or are denied by him to be the property of the party, it shall be a sufficient service of such foreign attachment to leave a copy thereof with such trustee, or at his residence or usual place of business, unless the libeUant shall, by competent surety, indemnify the marshal for arresting the property pointed out to him. See Admiralty Rule 87 d. 841. Mule 31. On the return, by the marshal, of service of such attach- ment by notice and copy, with the reason thereof, the libeUant may move the Court for a peremptory attachment, or such order as the equity of the case may demand ; or, on proof sat- isfactory to the Court, that the property, &o., belongs to the defendant, may proceed to a hearing and final decree in the cause, as if the property had been held in arrest. See Admiralty Rule 37, p. 341. Rule 32. All process to the marshal shall be returned on the return day thereof, and, if he shall not return the same in four days after being required in writing so to do, by any party or his proc- tor, upon affidavit of such requirement and of the delivery of the process to him, an order may be entered, of' course, that he show cause why an attachment shall not issiie against him ; and, in the case of process m retn, the return of the marshal shall express the day of the seizure of the property or the day of sale, if a process for that object. 458 DISTRICT COURT RULES Ittde 33. No process shall be received on file unless duly returned by the ofl&cer to whom directed. Rule 34. In case the Court is not in session at the return of process requiring to be acted on in open court, proceedings shall be deemed continued to the next sitting of the Court (either stated or special), at which time the Mke proceedings may be had thereupon as if then returnable. Utile 3d. On proclamation, after due return of process, the libeUant shall be entitled to a decree of default or contumacy, ac- cording to the nature of the case, and the three proclamations heretofore used are abolished. See District Court Eules of 1st December, 1847, p. 498 ; and District Court Rule of 7th February, 1863, p. 505 ; and Admiralty Rule 29, p. 338. Bute 36. In case of the attachment of property, or the arrest of the person, in causes of civQ and admiralty jurisdiction (except in suits for seamen's wages, when the attachment is issued upon certificate, pursuant to the Act of Congress of July 20, 1790), the party arrested, or any person having a right to intervene in , respect to the thing attached, may, upon evidence showing any improper practices, or a manifest want of equity on the part of the libeUant, have a mandate from the Judge, for the libeUant to show cause instanter why the arrest or attachment should not be vacated. Mule 37. Stipulations may be taken, in admiralty and maritime causes, out of Court, before the Clerk or a commissioner, under a dedimus potestatem. The oiBcer taking the stipulation shall, if required by the opposite party, examine the sureties on oath and decide as to their competency. An appeal may be taken instanter to the Judge, in case the decision is against the sufficiency of the sureties. See Admiralty Rules 5, p. 333, and 35, p. 340. 1 SOUTHERN DISTRICT OF NEW YORK. 459 Rule 38. The conditions of stipulations, in causes m personcmi, shall be, that the principal, whenever required by this Court, or an appellate Court, in case of appeal, shall appear and answer to the cause or to interrogatories, and pay all costs that may be decreed against him, and, by the respondent or defendant, that he will also perform and abide all orders and decrees in the cause, interlocutory or final, or deliver himself personally for commitment,^ in execution of such orders, to the proper oflBcer. See Admiralty Rule 3, p. 333. Rule 39. The amount of stipulations on the part of the defendants, in causes in personam, shall be the sum indorsed on the warrant, and, in rem, on the dehvery of property attached, the appraised or agreed value of the property seized, unless the sum, in either case, is modified or enlarged by order of the Court. Mule 40. Application may be made instanter to the Judge, after an arrest in personam, to mitigate the amount of the bail stipula- tion; and hke application may be made at any time after property has been delivered on bail stipulation, upon facts occurring after such dehvery, to discharge such stipulation, or to reduce the amount, according to the equity of the case, previous notice of the application having been given the proc- tor of, the libeUant. See Admiralty Rule 6, p. 332. Rule 41. Two days' notice shall be given the proctor of the libeUant, of apphcation for dehvering up on stipulation property under attachment, specifying the sureties intended to be given, and their occupations and places of residence, and the officer before whom, and the place where, the stipulation will be offered, except in suits by seamen for wages, when such notice may be instanter. See District Court Rule of 1st October, 1857, p. 502. 460 DISTRICT COURT RULES Sule 42. The stipulation or bond to be given upon releasing and de- livering up property arrested by process of the Court, shall be conditioned that the claimant and his sureties shall, at any time, upon the interlocutory order or decree of the Court, or of any appellate Court to which the cause may proceed, and on notice of such order to the proctor of the party to whom the property shall have been delivered, bring into Court the ap- praised or agreed value of such property, or any part thereof so ordered or decreed. If no proctor is employed by such party, the order or decree shaU be deemed peremptory two days after the same is entered. See Admiralty Rules 10, p. 333, and 11, p. 834. Mule 43. The clerk shall provide a book in which shall be registered all stipulations filed in causes civil and admiralty, which shall be open to the examination of all parties interested. Hule 44. . ITo process m rem shall be issued, nor shall any appearance or answer be received, or third party be permitted to intervene and claim, except on the part of the United States, unless a stipulation, in the sum of two hundred and fifty dollars, shaU be first entered into by the party, and at least one surety, resi- dent in the District, conditioned that the principal shall pay all costs awarded against him by this Court, or, in case of appeal, by the appellate Court. See District Court Rule 17, p. 454 ; and District Court Rules of 16th April, 1847, p. 498; and of 36th April, 1865, p. 505; and Admiralty Rule 26, p. 837. See especially District Court Rule of 15th March, 1883, p. 513, amending this Rule by an addition at the end. Mule 45. But seamen suing in rem for wages in their own right and for their own benefit, for services on board American vessels, and salvors coming into port in possession of the property libelled, shall not be required to give such security in the first instance. The Court, on motion, with notice to the libeUants, SOUTHERN DISTRICT OP NEW YORK. 461 may, after the arrest of the property, for adequate cause, order the usual stipulation to be given in these cases, or that the property arrested be discharged. See District Court Eules of 16th April, 1847, p. 498, and Rule 17, p. 454. Utile 46. Notice of the arrest of property by attachment in rem, in behalf of individual suitors, shall be published and aflSxed in the manner directed by Act of Congress in the case of seizures on the part of the United States, except when the Judge by special order directs a shorter notice than fourteen days ; and except that, iiistead of the substance of the Ubel, a short state- ment of its purport may be given. Mule 47. Notice of sale of property after condemnation, in suits in rem (except under the revenue laws and on seizure by the United States), shall be six days, unless otherwise specially directed in the decree of condemnation and sale. Mule 48. All such notices shall be published in the manner directed by Act of Congress, in the case of condemnation under the revenue laws. Mule 49. The marshal shall be allowed (in conformity to the former usage of the Court) one doUar and fifty cents per day for the custody of a vessel, her tackle, apparel and furniture, seized by any officer of the revenue, and seized, libelled and prosecuted for forfeiture. Mule 50. He shall be allowed for the custody of the goods so seized, on all sums not exceeding $5,000, held in custody less than thirty days, two per cent.; on aU sums exceeding $5,000, held in custody less than thirty days, OTiQjper cent.; on all sums not exceeding $5,000, held in custody over thirty days, two and a haiiper cent.; and on aU sums exceeding $5,000, held in cus- tody over thirty days, one and a half per cent; except, on at- 462 DISTRICT COURT RULES tachment of specie, bullion, jewelry or precious stones, the al- lowance to the marshal shall be specifically fixed by the Court, having regard to the special circumstances of each case. Rule 51. The marshal may have like allowances taxed on all other attachments of property, in causes of civil and admiralty juris- diction. Hule 32. All the above allowances are, however, subject to alteration by the Court on motion, due notice thereof being given the op- posite party, and adequate cause being shown therefor. Mule 53. The allowance to the marshal, above appointed, for the cus- tody of goods, shall be computed upon the gross proceeds, ia case of sale ; or upon the appraised or agreed value, if bonded ; but the marshal, in case of an agreed valuation between the parties, not assented to by him, .may have an appraisement in the usual mode. Rule 54. If attachments m rem are accompanied by written instruc- tions to the marshal, specifying the sum demanded (adding thereto $250, to cover costs), he shall, as in case of executions, only arrest so much of the goods or effects to be seized (when severable) as shall be sufficient to satisfy such amounts. Rule 55. In all cases of stipulations, in civil and admiralty causes, any party having an interest in the subject-matter, may move the Court, on special cause shown, for greater or better security, giving the opposite party two days' notice thereof, unless a shorter time is allowed by order of the Judge. See Admiralty Rule 6, p. 332. Rule 56. After a citation or monition, or warrant of arrest, in suits in personam, returned " served personally," if the defendant do SOUTHERN DISTRICT OP NEW YORK. 463 not appear at the return day, he shall be deemed in contumacy and in default, and the libellant may take order for enforce- ment of the stipulation (in case any is given), or to compel the defendant's appearance, according to the course of admiralty proceedings ; or, at his option, may proceed to hearing expa/rte and obtain the proper decree, unless the Court, for good cause, shall allow the defendant further time. Mule 57. In suits vn personam, stipulators to the marshal on the ar- rest of the defendant may be discharged from their stipulation, on the surrender of the principal, as in cases of bail at law. Rule 58. So, also, stipulators ov fid&-jussores, after the return of the at- tachment, in suits in personam, may surrender their principal, or he may surrender himself, in discharge of the stipulation, as in cases of special bail at law ; except in respect to costs in this Court, or any other Court to which the cause may be ap- pealed. Rule 59. All stipulations in causes civil and maritime shall be execu- ted by the principal party (if within the District), and at least one surety resident therein, and shall contain the consent of the stipulators, that, in case of default or contumacy on the part of the principal or sureties, execution to the amount named in such stipulation may issue against the goods, chattels and lands of the stipulators. The Court will modify the execution as to the time it may stay and the amount to be collected, according to the equity of the case. Non-resident parties mflst supply at least two sureties. See District Court Eule of 26th April, 1865, p. 505. Rule 60. In case of seizure of property in behalf of the United States, an appraisement for the purpose of bonding the same may be had by any party in interest, on giving one day's previous notice of motion before the Court, or the Judge in vacation, for the appoiatment of appraisers. 464 DISTRICT COURT RULES Mule 61. If the parties or their proctors and the District Attorney are present in Court, such motion may be made instanter, after seizure, and without previous notice. Mule 62. Orders for the appraisement of property under arrest at the suit of an individual, may be entered, of course, by the clerk, at the instance of any party interested therein, or upon filing the consent of the proctors for the respective parties. Rule 63. Only one appraiser is to be appointed in suits by individuals, unless otherwise specially ordered by the Judge, and, if the respective parties do not agree in writing upon the ap- praiser to be appointed, the clerk shall forthwith name him, either party having a right of appeal instanter to the Judge from such nomination, for adequate cause. Rule 64. In case vessels, their tackle, or appurtenances, are to be ap- praised, the clerk shall name a warden of the port, and, in case of merchandise, an appraiser or an assistant appraiser of the Custom-house, as appraiser. Mule 65. In suits in rem for seamen's wages, and in all other actions in rem for sums certain, the claimant or respondent may pay into Court the amount sworn to be due in the libel, with inter- est computed thereon from the time it was due, to the stated term next succeeding the return day of the attachment, and the costs of the officers of Court already accrued, together with the sum of $250 to cover further costs, etc.; or, at his option, may give stipulation to pay such sworn amount, with interest, costs and damages (first paying into Court the costs of the officers of Court already accrued), and, in either case, may thereupon have an order entered instanter for delivery of the property arrested, without having the same appraised. SOUTHERN DISTRICT OF NEW YORK. 465 Rule 66. Appraisers, before executing their trust, shall be sworn or affirmed to its faithful discharge, before the clerk or his deputy (who are hereby appointed commissioners for the qualification of appraisers), and shall give one day's previous notice of the time and place of making the appraisement, by affixing the same in a conspicuous place adjacent to the United States Court Kooms, and where the marshal usually affixes his notices, to the end that all persons concerned may be informed thereof, and the appraisement, when made, shall be returned to the clerk's office. Rule 67. Appraisers acting under an order of this Court shall be severally entitled to three dollars for each day necessarily em- ployed in making the appraisement, to be paid by the party at whose instance the same shall be ordered. Bule 68. No vessels, goods, wares, or merchandise in the custody of the marshal shall be released from detention, upon appraise- ment and surety, until the costs and charges of the officers of this Court, so far as the same shall have accrued, shall first be paid into Court by the party at whose instance the appraise- ment shall take place, to abide the decision of the Court in respect to such costs. See Admiralty Rules 10, p. 833, and 11, p. 334. Bule 69. No property in the custody of any officer of the Court shall be delivered up without the order of the Court ; but such order may be entered, of course, by the clerk, on filing a written con- sent thereto by the proctor in Whose behalf it is detained ; and, also, after appraisement and bond duly executed. Bule 70. If, in possessory suits, after decrees for either party, the other shall make application to the Court for a proceeding in a petitory suit, and file the proper stipulation, the property shall not be delivered over to the prevailing party until after 30 466 DISTRICT COURT RULES an appraisement made, nor until lie shall give a stipulation with, sureties to restore the same property without waste, in case his adversary shall prevail in the petitory suit, and also to abide as well all interlocutory orders and decrees, as the final sentence and decree of the District Court, and, on appeal, of the appellate Court. Bule 71. In all cases where a judgment or decree is entered on a bond or stipulation filed with the clerk for the appraised or agreed value of any property libelled in this Court, the clerk shaU re- ceive, in addition to the amount of the bond, interest at the rate of scs.per cent, per annum, for the time which shall inter- vene between the entry of the judgment, or date of the stipu- lation, and the day when the money shall be paid into Court. Bule 72o A tender inter pa/ries shall be of no avail on defence, or in discharge of costs, unless, on suit brought, and before answer, plea, or claim filed, the same tender is deposited in Court, to abide the order or decree to be made in the matter. Rule 73. "When tender is first made after suit brought, it must in- clude taxable costs then accrued. Mule 74. No third party can intervene by claim, without proof of a subsisting interest in the subject-matter of the claim. This proof may, in the first instance, be the oath of the claimant, but subject to denial and disproof on the part of the libellant, on issue thereto or on summary petition. See Admiralty Bules 26, p. 337, and 34, p. 340. JSule 75. Double pleas, or exceptions, replications to pleas, triplica- tions or rejoinders, &c., may be filed without previous leave of the Court, the pleading of several matters being restricted to cases in which the matters are distinct. SOUTHERN DISTRICT OF NEW YORK. 467 Rule 76. Defence may be made by answer or claim, of matters of law or fact, without the employment of exceptions or special pleas usual in causes of civil and maritime jurisdiction, other than exceptions to the competency of the party or the process, or other matter of abatement. Bule 77. If matter of bar at law to the hbel is set up by answer or claim, and allowed by the Court, no costs shall be taxed for any other part of the answer or claim than that stating such bar. Bule 78. When the answer alleges a bar in law to the whole libel, it may be treated as a plea, and set down for hearing, with- out filing a replication other than to such bar, or going into proofs upon the issues in fact. Bule 79. Where a party not required to answer intervenes by claim and answer, costs will be taxed for the claims only. Bule 80. When an answer is require^, in a suit in rem, of a party hav- ing no interest in the subject-matter, he may file an exceptive allegation or disclaimer, and notice the same instanter for hear- ing. If the decree of the Court is in affirmance of his plea, he shaU be discharged the action with costs. Bule 81. One improperly joined as defendant, in an action m per- sonam,, may have a decree of discharge in the same manner ; provided it is made satisfactorily to appear to the Court that he can give material testimony as a witness in the cause. Bule 82. When the claim is in derogation of the right set up by the hbel, it may form a general issue therewith, by denying 'f that 468 DISTRICT COURT RULES the libellan-t is entitled to the remedy and relief in the prem- ises sought by him," without traversing or admitting the sev- eral articles of the libel. See Admiralty Rule 26, p. 337. Bute 83. A general issue may be taken by answer, in like manner, when the answer is not required to be under oath. See Admiralty Kule 37, p. 388. JRule 84. So, also, the libel may be contested affirmatively, by a gen- eral issue instead of a formal demurrer. Sule 83. "When a general issue is taken to the libel, in open Court, on the return day of process, either party may have the cause placed upon the calendar instanter, and it may be called in its , place for proofs, without other notice. Bule 86. Each party is entitled to like proceedings in such case as if the cause had been noticed by each pursuant to the usual practice. Mule 87. A sworn answer is not to be deemed higher evidence than the libel or information to which it responds, unless made so by the act of the promovent. An answer need not be put in under oath, unless so required by a sAvorn libel, or one filed by the United States. See District Court Rule 3, p. 453, and Admiralty Rules 37, p. 338, and 49, p. 343. Mule 88. The matter set up by a sworn answer responsive to the alle- gations or interrogatories of the libel, shall be deemed admitted on the part of the libellant, unless, within four days from the time the answer is perfected, or from the expiration of the time allowed for excepting thereto, replication is filed, or a written notice served on the proctor of the respondent, that, on the SOUTHERN DISTRICT OF NEW YORK. 469 trial of the cause, proof will be ofPered on the part of the libel- lant, in opposition to the allegations of the answer. No repli- cation need be filed for any other purpose, to an answer taking an issue in fact upon the allegation of the libel. See Admiralty Rule 53, p. 345, afEecting the subject matter of this Rule. Mule 89. A claim or answer may be put in and filed at any time after the service of process and before defaults entered ; and, when it shall be put in at any other time than on making proclamar tion, notice of the time of filing it shall be given the hbellant ; otherwise, he shall not be bound to regard it. Mule 90. If separate answers or claims are put in by the same proc- tor, or by different proctors being connected in business, all costs thereby unnecessarily incurred shaU be disallowed, on taxation. Mule 91. An answer or claim on the part of the United States is to be put in without oath, by the District Attorney, and is not subject to exception for insufficiency. Mule 92. In the case of bailable process m personam, unless the de- fendant appear and put in bail stipulation according to the rules of the Court, his claim or answer may be treated as a nuUity and his defaults be entered. An answer in such case shall be deemed filed from the time bail becomes perfected. Mtde 93. On due proof that a claimant or respondent is absent from the United States, or resides out of the district, and more than one hundred miles from the city of New York, a claim or answer to a libel may be sworn to by a proctor or attorney in fact, in behalf of such party ; and if, thereupon, the hbellant, bj'' written notice to the respondent, demands a personal answer verified by ■the oath of the party, proceedings shall stay a reasonable time to enable such answer to be taken by 470 DISTRICT COURT RULES commission or dedimus potestatem. The provisions of this rule may, also, be applied to the verification of a libel, by the oath of a proctor or attorney in fact. See District Court Rule 4, p. 452; and Admiralty Rule 26, p. 337. Mule 9d. The defendant may, on the return day of process, and before answering, demurring or pleading, file an exception to the libel, that it is multifarious or ambiguous, or without plain allegations upon which issue can be taken; and, if it be ad- judged by the Court insufiicient, for any of these causes, and be not amended by the libellant within two days thereafter, it shall be dismissed, with costs. • See Admiralty Rule 36, p. 340. Mule 95. Proceedings upon such exceptions shall conform to those on exceptions to answers or other pleadings? See Admiralty Rule 36, p. 840. Mule 96o The libellant may, within four days from the filing of the answer or claim, file exceptions thereto, for insufiiciency, irrele- vancy or scandal, which exceptions shall briefly and clearly specify the parts excepted to, by the line and page of the pa- pers in the clerk's office; whereupon, the party answering or claiming shall, in four days, either give notice to the libellant of his submitting to the exceptions, or set down the exceptions for hearing, and give four days' notice thereof, for the earhest day of jurisdiction afterward. In default whereof, the like order may be entered as if the exceptions had been allowed by the Court. See Admiralty Rules 28, p. 338, and 86, p. 840. Mule 97. If a party submit to exceptions for insufficiency, he shall answer further, within four days after notice of his submitting. If the exceptions are allowed on hearing, he shaU answer further within such time as the Court shall direct ; and, if the SOUTHERN DISTRICT OP NEW YORK. 471 hearing of the exceptions shall not be duly brought on, or the further answer duly put in, the claim or answer excepted to shall be treated as a nullity, and the default of the party be entered. See Admiralty Rules 38, p. 338, 30, p. 339, and 36, p. 340. Bute 98. If exceptions for irrelevancy be submitted to, or be allowed by the Court, or the hearing be not duly brought on by the respondent, the matter excepted to shall be struck out of the claim or answer by the clerk. See Admiralty Rule 36, p. 340. Bule 99. Either party may propound interrogatories to the other, within four days from the putting in of the claim, or answer, or other pleading, and the perfecting of the same, if excepted to. See Admiralty Rules 32, p. 839, and 33, p. 340. Bule 100. A copy of the interrogatories shall be served on the party for whom the same are intended, or his proctor, if one be em- ployed ; and, if he object thereto, he shall notify the party serving the same, who shall, on due notice, submit the same to the Judge for his allowance. The interrogatories allowed shall be filed with the clerk, and notice thereof be given, and the party shall file his answer thereto in ten days after such notice ; in. default whereof, if libellant, the libel shall be dismissed; if claimant or defendant, the claim or answer shall be tre'ated as a nullity, and default may be entered against such party. See Admiralty Rules 33, p. 339, and 33, p. 340. Mule 101. Answers to interrogatories may be excepted to in the same inanner as answers or claims put in by a defendant, and shall, in all respects, be subject to the provisions of the rules in relation to exceptions : and, if the libellant making answers shall not perfect the same after exception, the libel shall be dismissed for want of prosecution. But this rule and the pre- 472 DISTRICT COURT RULES ceding one shall not in any case be deemed to require answers to interrogatories on the part of the United States, in suits brought in their behalf. See Admiralty Rules 33, p. 339, and 33, p. 340. Rule 102. The oath of calumny shall not be required of any party, in any stage of a cause. Rule 103. Suits may be joined or consolidated upon the same princi- ple as in the practice of the Court at common law. Rule 104. "When various actions are pending, all resting upon the same matter of right or defence, the Court, by order, at its discretion, will compel the parties to abide by the decision rendered in one case, and will enter a decree in the other causes comformably thereto, although there be no common interest between the parties. Rule 105. Commissions for taking testimony, if not sued out pur- suant to the rules of the Circuit Court, shall be moved for in four days after the claim or answer is filed and perfected (if the same shall have been excepted to) ; but, if interrogatories shall be propounded for the other party, by the party who moves for a commission, he shall have four days for moving after the answers to the interrogatories shall be perfected; otherwise, such commissions shall not operate to stay proceed- ings ; but, on a proper case shown, application for a commission may be made at any time after the action is commenced, and before issue joined, or after a default or interlocutory decree. See Rules of the Circuit Court of the United States for the Southern District of New York, Nos. 41 to 50 inclusive, pp. 403 to 405. Rule 106. Affidavits on which a motion for a commission is made shall specify the facts expected to be proved, and the shortest time SOUTHERN DISTRICT OF NEW YORK. 4^3 within which, the party believes the testimony may be taken and the commission returned. Utile 107. A commission will not be allowed to ^ay proceedings if the opposite party admits in writing that the witnesses will depose to the facts stated in such aiSdavit ; such affidavit, with the admission, may be read on the trial or hearing, and will have the same effect as a deposition to those facts by the wit- ness or witnesses named. Mule 108. The motion may be noticed and made at term, before the Court, or in vacation before the Judge out of Court, and only one commissioner shall be named, unless special cause is shown for appointing a great number, nor will costs be taxed for the services of more than one, except where both parties require a greater number. Rule 109. Interrogatories for the direct and cross-examination^ in case the parties disagree respecting them, shall be presented to the Judge for his allowance at one time, and one day's notice of such reference shall be given by the party objecting to the opposite interrogatories. Bule 110. Cross-interrogatories shall be served within four days after the direct have been received, or they shall be regarded as as- sented to, and, if no notice of reference to the Judge is given within five days after both direct and cross-interrogatories have been served, each party shall be deemed to have assented to the interrogatories served. Bule 111. The interrogatories, direct and cross, as agreed to by the parties, or settled by the Judge, shall be annexed to the com- mission. Mule 112. Directions as to the execution and return of the commis- sion, signed, by the clerk and the proctor of the party moving 474 DISTRICT COURT RULES it, or of both parties, if both unite in the commission or if both propose interrogatories, shall accompany the commission. Rule 113. Depositions taken dnder commissions, or otherwise, shall be forwarded to the clerk immediately after they are taken, and be filed on their return to the clerk's ofiice, in term or vaca- tion, and notice thereof shall be forthwith given by the party fihng them to the proctor of the opposite party. And all ob- jections to the form or manner in which they were taken or returned shall be deemed waived, unless such objection shall be specified in writing in four days after the same are opened, unless further time shall be granted by the Judge. Rule 114. In suits between individuals, either party may at any time after the commissions or depositions are deposited with the clerk, enter an order of course, as of a special sessions, if in vacation, to open the same and deliver copies thereof. Rule 115. In suits on seizures, in which the United States are a party, such order may be entered on the written consent of the proc- tors or ■ attorneys of the respective parties, or on motion to the Court at a stated or special session. Rule 116. Opening such commissions or depositions shall not preclude either party from objecting to the competency or relevancy of the evidence when offered on trial. Rule 117. Exceptive allegations to the credibility or competency of witnesses examined on deposition or commission, may be filed within four days after the depositions or commissions are opened at the clerk's office, and notice shall be given forthwith of such exceptions. Rule 118. Testimony impeaching or supporting the witnesses may, in SOUTHERN DISTEICT OF NEW YORK. 475 such case, be given by the parties respectively, on the hearing of the cause, and may be taken in the same manner as proofs in chief. Bule 119. Depositions in perpetua/m rei memoria/m, to be used in this Court, may be taken under a dedimus potestatem, or by any ofBlcer authorized by Act of Congress to take depositions de hene esse, to be used in the Courts of the United States, in like cases and by like proceedings as are now authorized by the Supreme Court of the State of New York. Mule 120. Notices of trial, argument or hearing, may be for any day in term, the Court being then sitting (including days to which the Court may stand adjourned), upon a sufficient excuse for not giving notice for the first day of the term. Rule 121. In all issues brought to trial, argument or hearing, except as provided in these Rules, four days' previous notice shall be served on the attorney Or proctor of the opposite party, when the attorney or proctor resides in this city ; in all other cases, posting such notice conspicuously in the clerk's office shall be a sufficient service. Bule 122. A note of the pleadings and of the date of the issue shall be served on the clerk, with a notice of the hearing, four days before the time of hearing, and such notices shall also specify the pleadings, and whatever papers or documents in his office shall be required by the parties to be produced by the clerk at the trial. Rule 123. So soon as issue is joined, the respondent or claimant may notice the cause for hearing on his part, and be thereupon en- titled to a decree dismissing the same, with costs, or such other decree as the case may demand, unless the libellant shall also notice the cause for the same time, and proceed to trial or 476 DISTRICT COURT RULES hearing, or obtain a continuance by order of the Court, on proper cause shown. See District Court Rule 183, p. 487, and Admiralty Eule 39, p. 341. Bule 124. "When either party shall require viva voce testimony given in open Court, to be taken down by the clerk pursuant to the Act of Congress, it shall be taken in the same manner as in jury trials on common law issues, and not verbatim, as in dep- ositions de hene esse. See Disj;rict Court Rule of 17th November, 1868, p. 508, and Admiralty Rule 51, p. 844. Bule 125. The notes of the Judge may, by assent of parties, be used as if taken down by the clerk. See District Court Rule of 17th November, 1868, p. 508. Bule 126. Each party desiring to diminish, vary, or enlarge the minutes of proofs taken by the clerk or Judge, may, within two daj^s after the trial, serve a statement of proofs on the proctor of the opposite party, and such statement, if assented to, or, if no amendments are proposed thereto, within two days thereafter, by such proctor, shall be regarded the true minutes of the testi- mony given, and the notes of the Judge or clerk be corrected in conformity thereto. , See District Court Rule of 17th November, 1868, p. 508. Bule 127. If amendments are proposed and the parties do not agree therein, the statements and amendments shall be forthwith re- ferred to the Judge, and he shall settle or determine how the facts are, and the statement thus settled or adjusted shall be filed as the true minutes of the testimony given. See District Court Rule of 17th November, 1868, p. 508. Bule 128. In cases of demands arising not ex delicto, on a decree in favor of the libeUant by default or on hearing, it shall be re- SOUTHERN DISTRICT OF NEW YORK. 4Y7 ferred to the clerk to compute and ascertain the amount due the Ubellant, but reference may also be made in cases of tort, or on allegations of incidental or consequential damages, if de- sired by either party. Bule 129. In case of the absence of the clerk, or his incompetency, from interest or otherwise, or upon any sufficient cause shown, such reference may be made to assessors, or otherwise, accord- ing to the course and custom of Courts of civil and admiralty Jurisdiction. Bule 130. On such reference, either party may produce and use the pleadings and proofs filed in the cause or heard in Court, and other competent proofs pertinent to the matter of reference. Bule 131. The clerk shall allow neither party longer than ten daj'^s from the order of reference to complete the proofs thereon, without the special order of the Judge. Bule 132. At the instance of either party, the clerk shall report the ad- ditional testimony received by him and the offer of testimony rejected (if any) by him. Bule 133. Either party may except to the clerk's report and set down the exceptions for hearing, on two days' notice, at the first stated or special sessions after the report is filed. See District Court Kules of 1st December, 1847, p. 498, and of 11th May, 1868, p. 508. Bule 134. Upon the coming in of the report, a decree of confirmation may be entered, on motion, without notice, unless otherwise ordered by the Court, or the report shall be excepted to ; and, in the latter case, the exception shall be overruled or held abandoned, unless brought to a hearing the first stated or special sessions of the Court for which it can be noticed. See District Court Rule of 1st December, 1847, p. 498. 478 DISTRICT COURT RULES Rule 135. If the libellant takes no proceedings upon the report within four days after the filing thereof in open Court, the respond- ent may move the Court to dismiss the hbel, for want of due prosecution. See District Court Rule of 1st December, 1847, p. 498. Bule 136. If the promovent in a libel or information neglects to pro- ceed in the cause with the dispatch the course of the Court admits, the respondent or claimant may have the hbel or in- formation dismissed on motion, unless the delay is by order of the Judge or the act of the respondent or claimant. See District Court Bule 123, g. 475, and Admiralty Rule 39, p. 341. Bule 137. Four days' notice shall be given of the apphcation to dis- miss the action, and a copy of an affidavit, or a certificate of the clerk, that no proceedings have been taken, be served at the same time. Bule 138. A special session of the Court (besides the sittings on Tues- day each week) may be opened at any time instantsr, on the allowance of the Judge, for hearing and disposing of special motions, arguments on questions of law, and also for taking proofs, or hearing admiralty and maritime or revenue causes, and rendering interlocutory or final decrees therein. Bule 139. No party shall be compelled to take or meet proceedings at a special sessions (without the order of the Judge previously served on him), in other than civil causes of admiralty and maritime jurisdiction. Bule 140. A guardian ad litem will be appointed, on a petition, verified by oath, stating a proper case for such appointment ; and the guardian shall give stipulations for costs, &c., the same as if he was personally the party in interest. SOUTHEEN DISTRICT OF NEW YORK. 479 Utile 141. Infants may sue by prochein mni, to be first approved by the Court ; the prochevn, oumi to give stipulations and be re- sponsible for costs, in the same manner as the infant would be if of full age. JRule 142. Suits can only be prosecuted or defended in forma pauperis by express allowance of the Court. In such case, the pauper will be discharged of all stipulations or habihties for costs. Bule 143. But the Court, on satisfactory proof of the inability of a party to comply with the usual stipulations in a cause, may mitigate and modify such stipulations conformably to the equities or exigencies of the case. See Admiralty Kule 6, p. 333. Mule 144. Where proceedings on a decree shall not be stayed by an appeal, and the decree shall not be fulfilled or satisfied in ten days after notice to the proctor of the party against whom it shall be rendered, it shall be of course to enter an order that the sureties of such party cause the engagement of their stipula- tion to be performed, or show cause in four days, or on the first day of jurisdiction afterwards, why execution should not issue against them, their lands, goods, and chattels, according to their stipulation ; and, if no cause be then shown, due service having been made on the proctor of the party, a summary decree shall be rendered against them on their stipulations, and execution issue ; but the same may be discharged on the per- formance of the decree and payment of aU' costs. See Admiralty Rule 3, p. 333. Mule 145. A party obtaining a decree of the Court, may, at his elec- tion, have, for the execution thereof, like process as is now used in this State for like purposes, except that of personal attach- ment, as for a contempt of Court. See Admiralty Rule 31, p. 836. 480 , DISTRICT COURT RULES Rule 146. * The writ of fieri facias or venditioni exponas is adopted as final process, in this Court, in all cases for the sale of property ; and the proceedings thereon, in admiralty cases, shall be con- formable to those on the common law side of the Court. See Admiralty Rule 21, p. 336. Bule 147. Whenever, from the death of any of the parties, or changes of interest in the suit, defect in the pleadings or proceedings, or otherwise, new parties to the suit are necessary, the persons required to be made parties may be made such either by a peti- tion on their part or by the adverse party. Rule 148. In either mode, it ghall be suflELcient to allege briefly the prayer of the original libel, the several proceedings in the cause and date thereof, and to pray that such persons required to be made parties in the suit may be made such parties. Mule 149. On service of a copy of such petition and of notice of the presenting thereof, such order shall be made for the further proceeding in the cause as shall be proper for its speedy and convenient prosecution as to such new parties, and the same stipulations and security shall, in all such cases, be required and given, as in cases of persons becoming originally parties to a suit. Bule ISO. A party shall not be held to enter his appeal from any de- cree or order of the Court as final, unless the same is in a con- dition to be executed against him without further proceedings therein in Court. See Admiralty Rule 45, p. 343, and Rule of the Circuit Court of the United States for the Southern District of New York, No. ] 17, p. 419. ' Mule 151. Ten days from the time of rendering the decree shall be SOUTHERN DISTRICT OF NEW YORK. 481 allowed to enter an appeal, within which time the decree shall not be executed. A brief notice in writing to the clerk and opposite proctor, that the party appeals in the cause, shaU be a sufficient entry of the appeal, without any petition to the Court for leave to enter the same. See Admiralty Rule 45, p. 343. Bule 152. When an appeal shall be entered, the appellant shall, within ten days thereafter, give security for damages and costs ; and, if security shall not be given within that time, the decree may be executed as if there had been no appeal, unless further time be allowed by the Court. Bule 133. The appellant shall give four days' notice to the adverse party, or his proctor, of the person or persons proposed as his sureties, with their additions and descriptions, and of the time and place of giving the stipulation. Rule 134. "When an appeal shall be entered, the appellant shall cause the proceedings of the Court, required by law to be transmitted to the Circuit Court, to be transcribed for that purpose within thirty days after the appeal shall be entered in this Court ; and, in default thereof, the decree shall be executed as if there had been no appeal, unless the Court shall, upon special motion of the appellant, otherwise order. See Admiralty Bule 53, p. 346. Mule 133. A rehearing will not be granted in any matter in which a decree has been rendered, unless application is made at the term when the decree is pronounced, or there is a stay of pro- ceedings by order of the Judge. See Admiralty Rule 40, p. 341. Mule 136. No libel of review will be entertained in cases subject to 31 482 DISTRICT COURT RULES appeal, nor unless filed before the enrollment of tlie decree or return of final process issued in the cause. Mule 137. "When any moneys shall come to the hands of the marshal under or by virtue of any order or process of the Court, he shall forthwith pay over the gross amount thereof to the clerk, with a biU of his charges thereon, and a statement of the time of the receipt of the moneys by him, and, upon the filing of such statements, and the taxation of such charges, the same shall be paid to the marshal out of such moneys; and the general account of aU property, sold under the order or decree of this Court, shaU be returned by the marshal and filed in the clerk's office, with the execution or other process under which the sale was made. See Admiralty Bule 41, p. 343. Bule 158. All biUs of costs and of charges to be paid under any order or decree of this Court, shaU be taxed and filed with the clerk before payment thereof ; and, if the same shall include charges for disbursements other than to the officers of the Court, the proper and genuine vouchers, or an affidavit therefor (in case of loss of vouchers), shall be exhibited and filed, and, if such bill shall be taxed without four days' notice to all parties con- cerned, they shall be subject to a retaxation, of course, on ap- plication by any such party, not having had notice, and at the charge of the party obtaining such taxation. Bule 139. The clerk is authorized to tax or certify biU of costs, and to sign judgments, and also take acknowledgments of the satis- faction of judgments, and all affidavits and oaths out of Court, as in open Court, in all cases where the same are not required by law to be taken in open Court. Bule 160. The deputies or chief clerks of the clerk of this Court, not exceeding two in number, and named and designated by an SOUTHERN DISTRICT OF NEW YORK. 483 appointment filed in the office of said clerk, are each author- ized to sign judgments, to tax and certify all bills of costs in this Court, other than those of the clerk, and also to affix the seal of the Court and certify proceedings or papers in the name of the clerk, in all other cases than exemplifications of the records or files of the Court, and to perform all duties apper- taining to the clerk by the appointment of the Court, or the course of practice, which are not specifically appointed by stat- ute to be performed by the clerk. As amended by District Court Eule of 36th of March, 1841, not printed among these Eules. Rtde 161. The clerk is authorized to enter satisfaction of record of any judgment rendered in this Court in behalf of the United States, on fifing acknowledgment of satisfaction of the same duly made by the District Attorney. Bide 162. All rules to which a party is entitled of course, or which are moved for upon the written consent of the parties, may be entered by the clerk in vacation, without the mandate of the Judge, and be entitled as of a special Court held on that day. Mule 163. Proctors of any Circuit or District Court of the United States, and attorneys of the Supreme Court of this State, and solicitors of the Court of Chancery, may be adnaitted attorneys and proctors of this Court, and counsellors of the said Supreme Court and Court of Chancery, and counsellors and advocates of said Circuit or District Courts may be admitted counseUors and advocates of this Court, of course, upon taking the oaths prescribed by the Constitution and laws of the United States. Rule 164. In admiralty and maritime causes, wherein the matter in demand does not exceed fifty doUars, the proceedings for recovery thereof may be summary. See District Court Rules, June Term, 1849, p. 499. 484: DISTRICT COURT RULES Bule 165. Instead of filing a libel, the promovent, in suits by individ- uals, may, by short petition, state the matter of his demand, and the amount or value thereof, or present an account stated, or a bUl of charges by items, on filing either of which, process may issue, as on the filing of a libel in ordinary cases. See District Court Rules, June Term, 1849, p. 499. Bule 166. The same petition or statement used on application for a summons pursuant to the Act of Congress of Jidy 20, 1799, sect. 6, shaU, when admiralty process is ordered by the Judge or justice of the peace, be filed, and may stand and be pro- ceeded upon in heu of the libel in form. See District Court Rules, June Term, 1849, p. 499. Bule 167. Any party intervening may contest the petition or demand orally or in writing, by general denial or aflfirmance, or file a plea in bar, or answer, or claim. See District Court Rules, June Term, 1849, p. 499. Btde 168. No costs shall be taxed the defendant for any plea, an- swer, or claim, other than a general issue to the actor's de- mand, unless an answer on oath be demanded. See District Court Rules, June Term, 1849, p. 499. Bule 169. Either party may file interrogatories to be propounded to his adversary, which shall be answered on oath. See District Court Rules, June Term, 1849, p. 499. Bule 170. The monition, or citation, or attachment, may be made returnable the first day of a stated or special session of Court next succeeding the service thereof, at least three days intervening between the service and return of process in rem, in suits by individuals, and fourteen in suits by the United SOUTHERN DISTRICT OF NEW YORK. 485 States; and, on the return of process, in open Court, duhr sei'ved, the cause may be put instanter upon the calendar, and either party, without other notice, may proceed therein to proofs and hearing ; and the party obtaining a continuance of the cause, if in rem, shall bear all expenses taxed for keeping the thing attached, intermediate such continuance and the final hearing. See District Court Rules, June Term, 1849, p. 499; and Admiralty Rule 9, p. 333. Bule 171. The notices to be published, in suits by individuals, need con- tain only the title of the suit, the cause of action, the amount demanded, and the day and place of the return of the moni- tion, and be subscribed with the name of the marshal and proctor of the hbellant. No more than the usual printer's charge for advertisements of like size shall be taxed for the pubUcation. See District Court Rules, June Term, 1849, p. 499; and Admiralty Rule 9, p. 833. litde It 2. In summary proceedings in rem, in behalf of the United States, when the goods are under seizure by the Collector and in his possession, the clerk, at the instance of the District At- torney, may omit the attachment clause in the monition issued. See District Court Rules, June Term, 1849, p. 499. Mule 173. If the monition also contains an attachment in such cases, and the marshal returns that the goods, &c., are in the custody of the Collector, he shall stand acquitted of all responsibility for their safe keeping or production to answer the decree. See District Court Rules, June Term, 1849, p. 499. Bule 174. In such case, the service of the monition shall be by leaving a copy, or notice thereof, with the Collector or person having the goods in keeping, and also making like service on the owner, or his agent, if known to the marshal, and resident in the city. See District Court Rules, June Term, 1849, p. 499. 486 DISTRICT COURT RULES Rule 173. The costs to be taxed the District Attorney, proctor and advocate, on either side, in a summary cause, shall not exceed twelve dollars. See District Court Rules, June Term, 1849, p. 499. Bule 176. Fees shall not be taxed for more than one witness to prove the same facts, unless it appears that the witness was im- peached or his testimony contradicted. 'So charges for serv- ing writs of subpoena shall be taxed against the opposite party, when the writ is executed by the marshal. If a wit- ness does not attend after regular summons, proceedings to attachment may be had against him, without the service of a writ of subpoena. See District Court Rules, June Termj 1849, p. 499. Mule 177. The provisions of the twelve preceding rules are limited to those cases of admiralty and maritime jurisdiction, in which no appeal hes from this Court to the Circuit Court. See District Court Rules, June Term, 1849, p. 499. Mule 178. Summary proceedings, in all respects not specified in the preceding rules, are to be governed by the general course of procedure of the Court. See District Court Rules, June Term, 1849, p. 499. PEACTICE IN INFOEMATIONS. [Rules 179 to 189 inclusive, hereunder, were adopted November 6th, 1838.] Mule 179. Informations on seizures upon land or water are to be drawn in a plain and concise form, only referring to, without reciting, statutes or sections of statutes at large. The information should set forth the gravamen of the suit by plain and issuable allegation; and, when in rem, the property demanded as SOUTHERN DISTRICT OP NEW YORK. 487 forfeited is to be specified, together with the alleged cause of forfeiture. Informations are subject to the same general rules, as to their structure and amendment, as ordinary libels. See Admiralty Rule 32, p. 336. Bule 180. Proceedings m rem for a forfeiture, and m personam, for an offence, fine, penalty, or debt, may be joined in one informa- tion, when having relation to the same transaction. Mule 181. On filing an information in personam or m rem, the clerk shaU issue process thereon, corresponding as nearly as may be with that employed in the instance Court of Admiralty in similar cases. But process in personam may be, in the first instance, a capias, or attachment against goods to compel an appearance, or a monition, at the election of the complainant. See District Court Bule of 38tli Februaiy, 1871, p. 509. Rule 182. 'No party shall be held to bail on an information in personam without the mandate of the Judge, except where bail is required or authorized by statute. Bule 183. AU rules applicable to the service of, or proceedings in i ela- tion to, process in plenary causes in admiralty, shall equally apply to process on informations. See District Court Rule 123, p. 475. Mule 184. If the information filed is multifarious or ambiguous, or does not supply plain allegations upon which issue can be taken, or a distinct reference to the statute upon which it is founded, the defendant or claimer may move the Court to have it reformed, giving two days' previous notice, together with a specification of the exceptive parts, to the District Attorney or proctor in whose name it is filed. It may be amended, of course, in con- formity to such notice ; if not reformed within tw6 days after 488 DISTRICT COURT RULES pronounced defective by the Court, the defendant may take an order of discharge from the action. Mule 183. Amendments may be had to informations, in any stage of the cause ; but, if after an issue is formed between the parties, it shall be on payment of all costs which may have accrued by means of the amendment or the defective pleading. Itule 186. In informations in rem, a delivery, on stipulation, of prop- erty seized, or a sale of perishable articles, may be had, as in case of proceedings in the instance Court of Admiralty. Mule 187. The claimer shall appear and interpose his claim or plea, on informations m rem, within the same time and in the same manner as in causes on the instance side of the Court of Ad- miralty ; and shall appear and plead to informations in perso- nam within the same time and in the same manner as in causes at common law ; but no plea other than in abatement, the general issue, former recovery, pardon or remission of the offence, fine or forfeiture, shall be received. Mule 188. Instead of a traverse of each separate cause of forfeiture alleged in the information, the defendant may plead, as a gen- eral issue to an information in rem, " that the several goods in the information mentioned did not, nor did any part thereof, become forfeited in manner and form as in the information in the behalf alleged." Mule 189. Putting in and justifying bail on behalf of the defendants on arrest, and the proceedings to and on trial and execution, where a trial by jury must be had, shaU be the same as in cases of common law jurisdiction. SOUTHERN DISTRICT OF NEW YORK. 489 COMMON LAW PEACTICE. [Rules 190 to 223 inclusive, hereunder, were adopted November 6tli, 1838.] Bule 190. Process commencing suits at common law, except on bail bonds, must be returnable at a stated term. In suits on obli- gations or agreements to pay money, damages may be claimed in the declaration, and judgment be taken beyond the amount stated in the writ. Bule 191. When the cwpias has been served on the real party intended, the plaintiff, before or after its return, may amend, of course, any error in the name of the party inserted in the process, giv- ing the defendant notice of such amendment ; and, when the real name is not known, process may be issued against the per- son by a fictitious name. Bule 192. When bail is not required, it shaU be a suflBcient service of the capias, or other mesne process in personam, for the mar- shal to show such process to the defendant, or offer to show it, and, at the same time, leave with him a true copy thereof ; in which case, the marshal shall indorse his return " personally served." The same rules and orders may be taken on filing such return, as if common bail had been filed, or the defendant had indorsed his appearance on such process. Bule 193. Bail shall not be exacted, in actions of debt or informations on penal statutes, for a fine, penalty, or forfeiture, without the order of the Judge indorsed on the process, except where other- wise provided by statute. To obtain the order, it must be shown, for cause, that the defendant is a transient person, or that there is reason to beheve he is about to depart out of the jurisdiction of the Court. Bule 194. In bailable suits in behalf of the United States, wherein the 490 DISTRICT COUET RULES plaintiffs are entitled, by any statutory provisions, to have judg- ment entered at the return term of the writ, the District At- torney may waive special bail, and file common bail, on the return of the writ, and proceed to judgment accordingly. Rule 195, In the cases last specified, if the District Attorney takes an assignment of the bail bond, the writ may be issued thereon the first day of term, and be made returnable the same day, or any subsequent day in term or vacation. Mule 196. "When special bail is required, it shall be put in and perfected on the return of the writ, in default whereof a rule may be en- tered instcmter, that the marshal bring in the body of the de- fendant ; but, in such case, if the defendant is arrested in this or the county of Kings, written notice of the intention to enter such rule shall be given the marshal two days previously, and six days, if the defendant is arrested in any other county of the District. Bule 197. All other proceedings in such cases shall be the same as in other common law actions in this Court. Rule 198. In suits in which the United States shaU be plaintiffs, or in which they shall be interested, though not plaintiffs, and in which the defendant shall be held to bail, the assignment of the bail bond, and the acceptance thereof by the plaintiff's at- torney, shall not be deemed to preclude him from excepting to the sufficiency of the special bail ; and the marshal shall become responsible for good bail in like manner as if the bail bond had not been assigned and accepted as aforesaid. Mule 199. In recognizance of bail in civil suits, the sum for which the suit is instituted shaU be expressed in the bail piece, and, in suits where the sum demanded exceeds ten thousand dollars, SOUTHERN DISTRICT OF NEW YORK. 491 two or more bail may justify for proportionate parts of such amount, in sums to be determined by the Judge. Bule 200, Bail desiring to surrender the principal, or the principal wishing to surrender himself in discharge of his bail, may give two days' notice in writing to the attorney of the plaintiff of the time and place of surrender. Bide 201. Two certified copies of the bail piece being produced to the Judge, with proof of the due service of such notice, he will indorse on each a committitur of the principal to the custody of the marshal. Bule 202. On the written admission of the marshal, or due proof that the principal is in his custody under such committitwr, and no sufficient cause being shown to the contrary, the Judge will immediately thereupon order an exoneretur to be entered. Bule 203. Such order and certified copy of the bail piece being filed, the clerk shall indorse an eomneretur on the bail piece, and also enter in the registry of bail the discharge thereof. An exon- eretur may also be entered upon filing the written consent of the plaintiff's attorney, without an order of the Judge. Bule 204. An immediate committitur, before notice given, may be had, on proof satisfactory to the Judge, that the principal is about to depart the District, or that the bail cannot, with safety, await the expiration of such notice, before a surrender is made. Bule 203. In such case, the surrender shall be made in conformity to the present practice of this Court, and may be made on the ban bond, or by putting in special bail before the return day of the writ. Bule 206. In case the defendant is held in custody out of this District 492 DISTRICT COUET RULES in any jail, the use of which shall have been ceded to the United States, for the custody of prisoners, a surrender to the custody of the marshal of the District in which such jail is situated, may be made, in the same manner as before desig- nated ; but such surrender shall be at the request of the bail alone. Rule 207. No plea shall be received, in any suit instituted in this Court upon a bond executed to the United States for the payment of duties, or against persons accountable for public money, or in any suit instituted upon a bail bond taken in consequence of such suit, unless such plea shall be accompanied by an affidavit of the truth of the matters in the said plea contained. Mule 208. In suits in behalf of the United States, in which the plain- tiflPs are by statute entitled to judgment at the return term of the writ, the declaration may be filed in open Court, on the day the writ is returned; and proper proceedings may be thereon taken for perfecting judgment wistanter, unless a plea is filed and a continuance of the cause allowed by the Court. Bule 209. If the defendant pleads to any such suit, the District Attor- ney may have the cause placed on the calendar of the same term, and may, without other notice, bring the same to trial, when called, unless at the instance of the defendant, the Court shall grant a continuance in the case. Mule 210. Judgments by default, in all cases in which the United States are plaintiffs, or are interested, may be entered up at any time in vacation, as of the preceding term. Mule 211. The marshal, his deputies, and all other persons concerned in the service of any process of this Court, are respectively prohibited from becoming bail to the arrest, in any suit depend- SOUTHERN DISTRICT OP NEW YORK. 493 ing in this Court, and, also, from becoming special bail in any suit, unless for the purpose of surrendering the defendant, in which case the surrender shall be made within eight days after special bail shall be put in. Mule 212, In cases where the Collector of the customs is entitled to re- ceive the moneys in Court, the same, after deducting the costs, shall be paid him by the clerk, upon an order to be en- tered, of course, for that purpose. Bule 213. All commissions to examine witnesses shall be drawn and engrossed by the clerk, or shall be carefully examined and approved by him, and he shaU be entitled to charge for the same as if drawn and engrossed by him. Btde 214. On filing every note of issue in common law causes, and for all services not provided for by any law of the United States, the clerk shall be entitled to receive the same fees as are allowed at the time, in the Courts of this State, for similar services, with the addition thereto allowed by the laws of the United States. Bule 215. The clerk shall, before the first day of every stated term, pre- pare two calendars, one for the use of the Court and the other for the use of the bar, which calendars shall each be divided under two titles, the first containing the jury causes noticed for trial, with the usual additions contained in the notes of issue filed, and the second containing the titles of all admi- ralty suits and issues at law, with the usual additions contained in the notices of trial filed with the said clerk. Bule 216. The clerk is prohibited from practising in this Court, in all circumstances whatsoever. 494 DISTRICT COURT RULES Bute 217. The bond required by law from the clerk shaU be first re- corded in a book to be kept in his office, and deposited in that bank in the city of New York in which moneys in Court are deposited, deliverable, upon the order of the Court, to such person as the Court may designate. The marshal's bond shall be filed and recorded in the clerk's office. Rule 218. AU moneys paid into Court by the officers thereof, or any other person or persons, in causes pending therein, shaU be forthwith deposited by the clerk, to the credit of the Court, in the bank in the city of Hew York which shall be designated on the minutes of this Court as the bank for keeping the moneys of the Court. No money so deposited shall be drawn from said bank, except by order of the Judge, in term or vaca- tion, to be signed by the Judge, and the order shall state the cause or causes in or on account of which it Is drawn, and the same shall be entered on record. See Admiralty Rule 43, p. 343, and District Court Rule 14tli April, 1871, p. 510. Bule 219. Whenever, after judgment or decree for a sum certain, and before execution issued thereon, any party shall pay into Court the amount thereof, together with the costs taxed ; or, when- ever the marshal (or the proper officer) shall return process of execution satisfied, and pay the amount of the judgment or de- cree, and costs, upon which such process issued, into Court, the clerk shall forthwith, and without other authorization, enter satisfaction of record of such judgment or decree, at the charge of the party in whose favor such judgment or decree may be rend Bule 220. The clerk's costs for entering satisfaction of judgment may be taxed, in the first instance, by the party obtaining the same. Bule 221. All checks for money to be drawn out of the bank, in causes SOUTHERN DISTRICT OF NEW YORK. 495 in which money is deposited, shall be drawn and signed by the clerk as clerk, and such check shaU be written immediately under the order of the Judge, or on the same paper. Mule 222. The clerk shall exhibit to the Court, on the first day of each stated term, a f uU and particular statement or account of all moneys remaining therein, or standing to his credit as clerk, subject to the order of the Court, stating particularly on ac- count of what causes such moneys are deposited, which ac- count and the vouchers thereof shaU be filed in Court. Rule 223. The clerk shall provide a book, in which he shall keep a fuE and particular account, in each cause depending in the Court, of all moneys brought into Court, and of the payment thereof ; and such book and the accounts therein shall, at aU times, be open to the inspection and examination of the Judge, the at- torney of the United States, and the marshal of the District ; and any particular account shall also be open to the inspec- tion of any person interested therein. MISCELLAJSTEOtrS EULES. [Rules 224 to 241 inclusive, hereunder, were adopted November 6th, 1838. The date of the adoption of the remaining Bules is indicated at the head of each Rule.] Bule 224. On an indictment found by the grand jury, the District Al^ torney may forthwith sue out a capias or attachment, under the seal of the Court, for the arrest and commitment of the party indicted ; such writ may also issue, if the defendant fails to appear pursuant to his recognizance given after indictment found. Bule 223. Where default is made by any party or witness bound by recognizance in any criminal proceeding, the clerk shall im- mediately issue a sowe facias thereon. 496 DISTRICT COURT RULES Bule 226, The amount of forfeited recognizances, and all fines imposed and collected, shall be paid into Court, to be accounted for by the clerk with the United States Treasury, Mule 227. "When a fine is imposed by the Court on any person for any cause, and the party is not thereupon committed, and such fine is not discharged previous to the' close of the term, the clerk shall issue to the marshal a warrant of execution, commanding him to levy and make such fine of the goods and chattels, or, in default thereof, of the lands and tenements of the party. Mule 228. Such fine may, on application by the party, and suflicient cause shown, before payment of the same out of Court into the Treasury or otherwise, be mitigated or remitted, at any term succeeding that in which it was imposed. Mule 229. In cases wherein the marshal of the District, or his deputy, is a party in interest, process shall be directed and dehvered to the sheriff or under sheriff of the city and county of New York for the time being, who are hereby, pursuant to the statute in such case made and provided, appointed to serve and execute such process. Mule 230. Special bail may be put in and filed, for the purpose of sur- rendering the principal, before the return day of the writ. Mule 231. Bail to the arrest may surrender the principal, or he may surrender himself in their exoneration, upon the bail bond given on his arrest. Mule 232. Copies of the bail bond, certified by the marshal or his deputy, may be used for that purpose, in the same manner as certified copies of a bail piece. SOUTHERN DISTRICT OF NEW YORK. 497 Bule 233. Proceedings against the marshal or any other officer of the Court, by attachment of course, and the fihng of interroga- tories for not returniiig the process of the Court, are abolished. Bule 234. Every order for the marshal or other officer of the Court to show cause why an attachment shaU not issue against him, shall state the true cause or ground upon which such attachment is demanded. Mule 233. On due service of a certified copy of such order, the party against whom it is entered shall be bound to appear on the first sitting of the Court four days thereafter, and, by affidavit filed in Court, purge himself of every default or misfeasance in such order specified, to the same extent as if he had answered to interrogatories framed thereon. Mule 236. If such officer fails, in the judgment of the Court, so purging himself, the Court shall forthwith proceed against such officer, to commit him fully for contempt, or otherwise, the same as if he had insufficiently answered interrogatories filed against him on his attachment. MuZe 237. No writ of attachment shall issue, in the first instance, against any officer of this Court, without the special mandate of the Judge. Mule 238. All notices served on an agent, or on attorneys or proctors residing out of the city and county of New York (and not having an office or place of business in this city, in Brooklyn, or "WilKamsburg), shall be double the time ordinarily required. Mule 239. No special sessions will be held for the trial of jury causes, nor out of the city of New York, without a special order of the 32 498 DISTRICT COURT RULES Court entered upon the minutes, and published in a newspaper in the city of 'New York, and also in one nearest the place where the Court is to be held (if out of the city), at least fif- teen days previous to such sitting. Rule 240. In all cases not provided for by the rules of this Court, the rules of the Circuit Court of the United States for this Dis- trict, for the time being (whether adopted before or after these rules), so far as the same may be applicable, shall regulate the practice of this Court ; and, when there is no rule of the Cir- cuit Court to apply, then the rules of the Supreme Court of this State, now in force, so far as the same may be apphcable, shall govern. Mule 241. The arrangement of rules under distinct heads of practice, is not to prevent their governing every mode of procedure in Court to which they may be applicable ; but, if differing pro- visions are adopted, the rules in collision are to be restricted each to the head of practice under which it may be classed. April 16th, 1847. Oedeeed, that the standing Rule N^o. 45, of this Court, in admiralty, be hereafter applied ahke to suits m personam and in rem. Dbcbmbbr 1st, 1847. ]^o decree shall be entered by default, or consent of parties in Court, ordering the condemnation and sale of property arrested on process in rem, or for the distribution of the pro- ceeds thereof in Court, or of the avails of a stipulation or bond given for the value of such property, unless publication, accord- ing to the course of the Court, shall have been duly made be- fore the return day of the monition issued with the attachment in the case. All reports of commissioners, assessors, adjusters, &c., on the matters referred by order of the Court, shall be filed in Court, at the opening of the Court, on Tuesdays of the stated or spe- cial terms, unless otherwise specially allowed by the Court, and SOUTHERN DISTRICT OF NEW YORK. 499 on two days' previous notice in writing to the party to be affected thereby. Exceptions to such reports shall be filed before or at the time confirmation thereof is moved in Court, unless further time is allowed by order of the Court, and no exception to any report can be received on file without the party offering it has duly filed stipulations in the cause, according to the course of the Court (unless he be excused by the standing rules from stipulating). February 9th, 1849. Oedeeed, that the Commissioners appointed by the Circuit Court of the United States for the Southern District of New York, to take affidavits, bail, &c., under the several Acts of Congress, be Commissioners authorized by this Court to do all the acts, and exercise and be vested with all the powers, juris- diction and authority contained in and conferred by the Act of Congress of the United States, passed August 12th, 1848, and entitled " An Act for giving effect to certain treaty stipu- lations between this and foreign Governments, for the appre- hension and deUvering up of certain offenders." June Teem, 1849. To prevent wnnecessary multiplication of suits, cmd the ac- cumulation of costs for the recovery of searnen^s wages, the fol- lowing additional Eules in Summaut Actions are adopted : Rule 1. In suits in personam for wages, where the amount sworn to be due, in the libel, is less than fifty dollars, the clerk shall not issue process without the usual stipulation for costs, unless the libel be accompanied by satisfactory proof that the respondent is about to leave the district ; or by an allocatur of the Judge, or by a certificate of a Commissioner of the Court, that, upon due service of a summons to the respondent, to appear before him, sufficient cause of complaint whereon to found process ap- peared. Rule 2. Such summons shall be served at least one day previous to the day of hearing therein mentioned, and if it shall appear, on 500 DISTRICT COURT RULES the hearing, to the satisfaction of the Commissioner, that the wages claimed have been paid or forfeited, he shall refuse the certificate. And, if a reasonable oifer of compromise shall be made on such hearing, by either party, and be rejected by the other, the Commissioner shall add a certificate of such fact, and, in case of final recovery by the party rejecting such offer, he shall recover no costs. No costs shall be taxed for the pro- ceeding, unless the Commissioner shall certify that a demand of wages was made by the seamen a reasonable time previous to taking out the summons, and then the proctor shall be al- lowed no more than lli^/r) the ordinary fees for attendance and motion in Court. Mule 3. No fees shall be taxed to the marshal, clerk or. witness on such proceedings, unless, by special mandate of the Judge, a subpoena or attachment is issued to compel the attendance of witnesses. Hule 4, The Commissioner's fees for his services thereon shall not exceed one dollar for a single sitting, and every adjournment granted shall be at the expense of the party obtaining it ; if, however, it is required by the parties that the Commissioner take down in writing the testimony heard on the summons, he shall be allowed therefor the customary fees for like services. Proof so taken in writing may be used by either party, on the hearing in Court, in case the suit is further prosecuted. Rule 5. ISTo more than one process shall issue against the master or owners, at the same time, for wages claimed by a crew, or any part thereof, for the same voyage, nor during the pendency of a suit therefor, nor shall costs be taxed for more than one re- tainer or libel, in such cases, unless an order of the Judge, on cause shown, be previously had, authorizing suits therefor. Seamen claiming wages for the same voyage may file an affi- davit stating the amount due them, and, if such affidavit be filed before the issue of process, the clerk may order the re- spondent to be held to bail in a sum exceeding by $100 the whole amount of such claim. SOUTHERN DISTRICT OF NEW YORK. 501 Mule 6. The bail or stipulation given by the master or owner, on such process, shall be conditioned to abide the order of the Court in the particular suit, and in favor of such other parties as the Court may grant leave to join therein. Dbcbmbeb 33d, 1850. No counsel will be permitted to speak, in the argument of any cause in the Court, more than one hour, without the special leave of the Court, granted before the argument begins. JANUAKY 29th, 1851. Except as may be from time to time otherwise specially ordered by the Court, when, hereafter, a venire shall issue, pursuant to the standing Eules of the Court, for the purpose of summoning petit jurors to serve in this Court, the marshal, or other officer to whom such venire shall bo directed, shall, with the clerk or his deputy, repair therewith to the office of the clerk of the city and county of l^ew York, and there, at least ten days before the return of such venire, in the presence of the said clerk of the city and county, and of the marshal, or such officer, the clerk or deputy shall proceed, if the clerk of said city and county shall consent thereto, to draw out of the box of jurors qualified according as the law of the State of New York was on the 20th day of July, 1840, to serve in the highest Court of law thereof, kept by the clerk of the said city and county, the names of so many jurors as, by the said venire, shall be required to be named ; and the clerk of this court shall immediately make out and certify, under his hand, a panel of the jurors so drawn, with their respective additions and places of abode, and deliver the same to the marshal or other such officer, and the persons so certified shall be summoned to serve as jurors, pursuant to such venire, and, if any of the per- sons whose names are so drawn shall be dead or removed from the city and county, or not qualified, as aforesaid, within the knowledge of the clerk or marshal, then such names shall be disregarded, and the clerk shall forthwith proceed to draw out of the said box other names, until the said panel shall be com- pleted. "Whenevei" the Court shall order petit jurors, under such 502 DISTRICT COURT RULES venire, to be taken, wholly or in part, from any county or counties within the District, other than the city and county of 'Eew York, the panel or panels thereof shall be drawn, certi- fied and summoned in like manner as is directed in the preced- ing order or Eule. See District Court Rule of 11th November, 1867, p. 505. March 3d, 1853. No case, after being called on the docket, will be allowed to retain its priority, except for the cause of sickness of some one whose attendance upon it is necessary, or because of other inevitable accident, nor will a case so called be assigned for hearing at a future day but for like causes. Each Saturday of the term is assigned for hearing special motions, and the docket will not be called on these days. See District Court Rules of January Term, 1857, p. 503, and of 33d Feb- ruary, 1868, p. 506. Jaijtjaet Teem, 1857. All cases placed upon the day docket shall be deemed set down absolutely for hearing or trial upon that day, and no motion for postponing such cases, or assigning them for hear- ing on a different day, will be entertained by the Court, except for causes not existing, or not known to the party making the application, at the time the case was put upon the day docket. Cases must be put upon the day docket in the order they stand on the term calendar, unless otherwise directed by the Court, for cause shown prior to the making up of the day docket. Cases on the day docket shall retain their priority from day to day, until called for hearing, and shall have preference to assigned cases ; and each case not moved to hearing in its place shall go to the foot of the term calendar. See District Court Rules of 2d March, 1853, p. 503, and of 33d Feb- ruary, 1868, p. 506. October 1st, 1857. Hereafter, to obtain the approval of the Judge of this Court, of the sufficiency of sureties to bonds or stipulations offered for the discharge of vessels under arrest, upon attachments issued out of this Court, it shall be necessary to give notice in writing, a reasonable time previous to the application, to the proctor of SOUTHERN DISTRICT OF NEW YORK. 503 the libellant in the action, stating the time and place applica- tion will be made for such approval, and the name, occupation and residence of the sureties to be offered ; and the application shaU be accompanied by an affidavit proving the service of such notice. Mat 38th, 1859. Costs taxable to Commissioners appointed and acting on EBFEEENOES, tJNDEE EuLE 44 OF THE EuLES OF PeACTICE FOE THE COUETS OF THE UnITED StATES IN AdMIEALTY AND MaEI- TIME JuEISDICTION, PEBSCEIBED BY THE SuPEEME CoUET OF THE United States at the Januaey Teem, 1845, and undee THE Rules of Peactice in Admiealty, adopted by the Dis- trict CotTET of the United States foe the Southeen Dis- teict of New Yoek. It being made a question of taxation, what fees or compen- sation may be lawfully allowed to said officers, for services rendered by them, under their appointments by authority of the above Rules of Court ; and it appearing that the Act -of Congress, entitled " An Act to regulate the fees and costs to be allowed Clerks, Marshals, and Attorneys of the Circuit and District Courts of the United States, and for other purposes," approved February 26th, 1853, (10 United States Stat, at Large, 161,) makes no provision for compensating Commissioners ap- pointed by the Courts under the aforesaid Rules for their ser- vices rendered in aid of the administration of justice, in the matters and cases therein specified ; and we being of opinion, that these special officers of the Court do not come strictly within the Act, and 'that, upon the usages and doctrines of Courts of the United States, officers called upon to render ser- vices in those Courts, according to their rules and modes of practice, for which no specific fees or costs are appointed by statute law, will be awarded compensation therefor by the Courts respectively in which the services are perfonned, corre- sponding in amount to that allowed by law in the State, for similar services rendered by State officers, in a like capacity, particularly in Chancery procedures ; (1 Blatchf . C. C. R., 652 ; JSatha/way v. Roach, 2 Woodb. & M., 63 ;) and it further ap- pearing to us, that such is an equitable and sound rule to be apphed in relation to this class of officers, especially as the 604 DISTRICT COURT RULES above cited statute law of costs contains no prohibition of com- pensation to them by authority of the Courts otherwise than through a positive appointment by statutory law : We are, therefore, of opinion that such Commissioners are entitled to have taxed in their behalf, by the proper taxing officers, the rate of fees or costs allowable in the Court of Chancery of the State of New York, to Masters in Chancery of that Court, for services therein performed by them, on the 1st of September, 1845, being the time the Eule of Practice aforesaid adopted by the Supreme Court went into operation, unless in particulars in which the rate of allowance then prevailing in the State Court shall have been rescinded or modified by subsequent regulations made by orders of the Courts of the United States ; and we designate as proper subjects of taxation, in cases where those services have been actually performed by such Commissioners, in admiralty and maritime causes referred to them pursuant to the aforesaid Rules, the following items, embraced in the Rules and Orders of the Court of Chancery of the State of New Tork, revised and established by Chancellor Walworth, in 1844, under the head of "Master's Fees," (pages 190, 191,) to wit : Commissioners^ Costs. For signing every summons for a witness or party to attend a reference, twelve cents. For attending at the time and place, and adjourning the same at request, or upon reasonable cause, one dollar. Attendance and hearing every argument upon any matter referred to him, when htigated, three dollars ; and when he proceeds ex parte, one dollar. Attendance and settling his report after argument, if both parties attend and litigate the same, three dollars ; if he pro- ceeds ex parte, one dollar. For writing out and certifying the testimony of witnesses taken orally before him on the hearing, to file with his report, for every folio of 100 words, Pioenty cents. Copies of the same furnished, on request, to either party, for each folio, ten cents. Drawing every report in pursuance of an order of reference to him, (exclusive of schedules and the written proofs,) for every folio, twenty cents. SOUTHERN DISTRICT OF NEW YORK. 505 Drawing all schedules to be annexed to reports, for every folio, ten cents. Copies of reports and schedules, to be filed, for every folio, ten cents. Copies of reports and schedules and aU other proceedings, furnished by him to the parties, upon request, for every folio, six cents. Marking every exhibit produced before him on a reference, with the title of the cause, and signing the same, sim cents. S. Nelson. Sam'l. R. Betts. Note. — The foregoing Rule was adopted in the Circuit Court of the United States for the Southern District of New York as well as in the District Court for said District on the day of the date thereof. Febhdart 7th, 1863. The Eules governing the practice of the Court, on the in- stance side, in admiralty, shall not authorize interlocutory decrees, in suits in rem, taken by default, on the return of process, to direct the sale of the res condemned thereby, before the sum chargeable thereon be decreed by the Court, unless by consent of the parties in interest, or the express order of the Court, because of the perishing or perishable condition of the res. April 36th, 1865. In all cases, where, by the rules of this Court, a surety is required to be resident in this District, the rules are so modified as to require the surety to be resident in this District, or in the Eastern District of New York. See District Court Bules 44, p. 460 and 59, p. 463. Novemb:5r 11th, 1867. It having been found impracticable to obtain jurors for the Courts of the United States in this District from the jury boxes used by the authorities of the State of New York, in the city and county of New York, for the procuring of juries for the Courts of said State in said city and county, — It is now ordered, that the clerk of this Court and the clerk of the Cir- cuit Court of the United States for this District, make out and file in the office of the clerk of said Circuit Court, a list of 506 DISTRICT COURT RULES persons to serve as jurors in the Courts of the United States for this District, and that such list be made out in the same manner as, by the laws of the State of Hew York, the public officers charged with the duty of making out the list of jurors to serve as jurymen in the Courts of said State in and for said city and county, are required to make out such list. And it is further ordered, that the said clerks, from time to time, correct and revise such list, as they may deem it necessary so to do, to the end that such Ust may be made and kept, so far as practi- cable, in conformity with the laws of the State of New York ; and it is further ordered, that, from the list so made and filed, grand and petit jurors shall be selected, and shall be drawn by lot, in accordance, so far as practicable, with the laws of the State of JSTew York, by the said clerks, as from time to time the same may be ordered by the Courts of the United States in this District, and a list of the persons so drawn, certified by the said clerks, shall be attached to the writ of venire issued to the marshal for the summoning of such jurors ; and it is further ordered, that, as to all matters relating to the selecting, draw- ing and summoning of jurors for said Courts, the said clerks follow, so far as practicable, the provisions in respect thereto contained in the laws of the State of New York. See District Court Rules of 29th January, 1851, p. 501. Febbtjaky 22d, 1868. I. — The calendar of admiralty causes shall hereafter be per- manent, the causes being renumbered every January. Notices of trial shall be notices of four days, and for the first Tuesday of the term, and shall not be required, except when a cause shall be placed upon such calendar. II. — A calendar shall be made up by the clerk before the next March terra. The causes in which either party shall file a note of issue on or before the Thursday before the opening of the March term, containing the date of the issue, shall be placed on the calendar according to the dates of the issues. Thereafter causes shall be placed on the calendar by the clerk in the order in which notes of issue shall be filed by either party. III. — Causes may be generally reserved or set down for any SOUTHERN DISTRICT OF NEW YORK. 507 particular day in term, except Saturdays, by consent of parties ; but no cause shall be so reserved or set down after the same shall be placed upon the day calendar, except upon the order of the Court. When a cause shaU be called in its order upon the day calendar without being tried, the same shall go to the foot of the calendar, and the issue shall thereafter be of that date, unless otherwise ordered by the Court at the time of being passed. IV. — There shall be a day calendar prepared, which shall be posted in one or more conspicuous places in the building in which the Court room is situated, by three o'clock of the day previous (excluding Saturday), and no more than seven causes shall be placed upon the day calendar for any one day, and they shall be placed upon such day calendar according to the dates of their several issues. V. — A cause generally reserved, may, by order of the Court, upon apphcation, and upon notice of two days, be placed upon the day calendar for trial for any day which the Court, upon such application, shaU direct, subject to the provisions of Eule IV., and not to be tried before, by its issue, it shall be entitled to be called upon such calendar, except, that the Court may, for special and peculiar reasons, give a cause the preference ; and, also, except, that actions for seamen's wages and for salvage, and actions where the property shall actually be in the custody of the marshal, shall have the preference, and shall be placed upon the calendar with such preference, upon any day the Court shall, upon application, direct. VI. — Causes called on the day calendar, may, for cause shown, be set down for a later day in term, or marked off for the term, without prejudice ; and causes which so go off for the terra without prejudice, shall take their places in order at the head of the calendar for the next term. VII. — When a cause that has been generally reserved is put on the day calendar, the clerk shall receive the usual fee for filing a note of issue. VIII. — All Rules and parts of Rules heretofore adopted by this Court, not consistent with the foregoing, are hereby re- pealed. See District Court Rules of 2cl March, 1852, p. 502, and of January Term, 1857, p. 503, and of 24th May, 1870, p. 509. 508 DISTRICT COURT RULES Makch 3d, 1868. The follow regulations are adopted as Eules, by the District Court : Supplement to Instructions, Series 3, Ko. 12. Additional . regulations respecting suits arising under the Internal Eevenue laws. Treasury Department, Oifice of Internal Eevenue, Washington, February 26th, 1868. Information having been, from time to time, received at this office, to the effect that dis- tillation of spirits has been allowed in distilleries which were at the time in custody of the United States marshal, through the connivance of the person or persons employed by the mar- shal as keeper, — It is hereby ordered, that in all cases where a marshal takes possession of a distillery, by virtue of a process issued for violation of the Internal Eevenue laws, he shall im- mediately cause the head of the still to be taken off, or the machinery to be disconnected, in such manner as to render it impossible for distillation to be carried on. The expenses aris- ing out of compliance with this order should be returned by the marshal as a part of his disbursements in the cause. It is further ordered, that whenever any premises are held in cus- todj by the marshal, under process issued for violation of the Internal Eevenue laws, admission to such premises shall at all times be permitted for any Internal Eevenue officer who would be entitled to admission were the same not in custody of the marshal. E. A. EoUins, Commissioner. Approved, H. Mc- Culloch, Secretary of the Treasury. Mat 11th, 1868. Exceptions to pleadings or to Commissioners' reports, will be heard on Saturdays, on proper notice, without being placed on the calendar. KOVEMBEB 10th, 1868. In taking testimony, all masters, examiners, referees and commissioners, shall, when testimony is written down by ques- tion and answer, number the questions put to each witness, continuously, from the commencement of his direct examina- tion to the final close of his examination, direct and cross. November 17th, 1868. The clerk of this Court, in making up the record to be trans- mitted to the Circuit Court, on an appeal, in pursuance of Eule SOUTHERN DISTRICT OF NEW YORK. 509 No. 53, adopted by the Supreme Court at the December Term, 1854, as one of the rules for regulating proceedings in admiralty, shall not include in such record, as any portion of the testi- mony on the part of any party, any statement or report of any testimony given vi/va voce in open Court, unless such testimony shall have been taken down in accordance with Kules 124 and 125 of this Court, and shaU have become the true minutes of such testimony, in accordance with Kules 124, 125, 126 and 127 of this Court ; and no consent of parties shall be of any avail to dispense with or vary so much of said Eules 124 and 125 as requires such viva voce testimony given in open Court, to be taken down in the same manner as in jury trials in com- mon law issues, and not verbatim, as in depositions de hene esse. "Whenever such testimony shall be taken down by the clerk, the legal fees chargeable by him therefor shall be taxable as part of the costs in the cause. Mat 24th, 1870. In renumbering, every January, the causes left over on the permanent calendar in admiralty, every cause which, since it was last put upon such calendar, shall have gone to the foot of the calendar more than once, and every cause generally re- served, the date of the issue in which on such calendar shall be a date more than three years prior to the first day of such January, shaU be omitted from such calendar. But all such causes may be again placed upon such calendar by the fihng of a new note of issue, the date of the issue of any such cause which has gone to the foot of such calendar, to be the date of issue which it last bore upon such calendar. A new note of issue fee shall be paid for every cause that is so renumbered ; but, by a written consent of the proctors in any cause, it may at any time be stricken off from the permanent calendar. See District Court Rules of 3d March, 1853, p. 503, of January Term, 1857, p. 502, and of 22d February, 1868, p. 506. Febbuakt 2§th, 1871. In all suits in rem against property seized in this District under the provisions of any law of the United States relating to the customs, the clerk, on receiving a certificate from the collector or other principal ofiicer of the customs in this Dis- trict, setting forth that such property is in his custody, shall. 510 DISTRICT COURT RULES in issuing a monition against such property, so alter the usual form, that the monition shall command the marshal to attach the property by leaving with the collector or other person hav- ing such property in custody a copy of the monition, and also a notice requiring such collector or other person to detain such property in custody untU the further order of the Court re- specting it, and to give due notice, &c. (in the usual form). See District Court Rules 15, p. 454, and 181, p. 487. April 14th, 1871. All moneys which shall be paid into this Court, or be re- ceived by any officer thereof, shall be forthwith deposited in " The Central National Bank of the City of New York," a designated depositary of the United States, in the name and to the credit of this Court : Provided, that nothing herein shall be construed to prevent the delivery of any such money upon security, according to agreement of parties, under the direction of the Court. See District Court Rule 218, p. 494. November 31st, 1873. In all cases brought to the Circuit Court from this Court, by writ of error, or appeal, or petition of review, the clerk of this Court shall annex to, and transmit with, the record or proceed- ings of this Court, a copy of any opinion or opinions filed in this Court upon the decision of any matter contained in such record or proceedings, and, if no such opinion has been filed, the clerk shall so certify. Pebrtjart 9th, 1874. The clerk shall prepare a list, on which he shall place aU suits and matters which are to be brought before the Court on Saturdays, on notice to an adverse party, by motion, petition, order to sliow cause, or otherwise (except orders to show cause for adjudication in bankruptcy, reports of referees on denials of bankruptcy, hearings for discharges in bankruptcy, and hearings on applications to annul discharges in bankruptcy), of which a memorandum containing the title of the suit or mat- ter, and the subject of the notice, and the names of the attor- neys, solicitors or proctors on both sides, shall be filed mth the clerk for the purpose. The order of cases on the Ust shall be SOUTHERN DISTRICT OF NEW YORK. 511 the order of time in which the memoranda are filed with the clerk. Every suit and matter placed on the list shall remain thereon until the hearing on such notice is had, or until it is otherwise disposed of, and shall not lose its place by an ad- journment of it. It may be adjourned at any time, by written consent of parties, to any Saturday, such consent to be handed to the crier of the court. The list will be called in its order every Saturday. A case called and not answered to by either party will be stricken ofif. The fee to the clerk for every memorandum filed shall be ten cents. A dupUcate list shall be prepared for the use of the bar. Mat 39th, 1878. The clerk, or other officer of the Court, receiving any fees, shall deUver to the party paying the same a receipted bill, showing every item included therein, as allowed by Eevised Statutes, Title XIII., chap. 16, or other statute authorizing the charge ; and no fees so paid shall be hereafter taxed as dis- bursements unless such bill of items be presented upon the taxation. This rule shall apply to searches 'and copies of papers furnished. No charge shall be made for copies of papers not ordered or ac- cepted by thS party charged. Any party aggrieved by taxa- tion of costs or the exaction of fees by any officer whose office is in the same building with the Court, may apply to the Court for relief upon five minutes' notice to the officer taxing the costs or exacting the fees. October 5th, 1878. In suits m rem for damages, if the libellant's proctor shall notify the marshal that no keeper is required, no fees for a keeper or for the custody of the vessel from the time of such notice shall be allowed to the marshal, or recoverable as costs, unless the Court shall, for cause shown, otherwise order. October 7th, 1878. Motions in Admiralty cases will be heard on Tuesday after return of process, except during a jury term ; and during a jury term they will be heard on Tuesday at 10 o'clock, .a.m. 512 DISTRICT COURT RULES October 11th, 1878. In pursuance of the provisions of section 915, of an Act en- titled, " An Act to revise and consolidate the Statutes of the United States in force on the first day of December, Anno Domini one thousand eight hundred and seventy-three," ap- proved June 22d, 1874, it is ordered that the provisions of the Act of the Legislature of the State of New York, entitled, " An Act relating to Courts, officers of justice and civil pro- ceedings," passed June 2d, 1 876, and the provisions of any Act heretofore passed by said Legislature, amending said last- named Act, so far as such provisions relate to a remedy by at- tachment against the property of a defendant, are hereby adopted by this Court as rules of this Court in respect to a remedy by attachment against the property of a defendant in a common law cause in this Court. November 6th, 1878. Any cause in which all the testimony is taken by deposition, shall be entitled to a preference on the calendar. December 29th, 1881. In pursuance of the provisions of sections 915 and 916 of an act entitled " An act to revise and consolidate the Statutes of the United States in force on the first day of December Anno Domini, one thousand eight hundred and seveifty-three," ap- proved June 22d, 1874, it is Ordered that the provisions of the Act of the Legislature of the State of New York, entitled " An act relating to Courts, officers of justice and civil proceedings " passed June 2d, 1876, as amended by the act of said Legislar ture entitled " An act supplemental to the Code of Civil Pro- cedure" passed May 6th, 1880, and the provisions of any other act heretofore passed by said Legislature amending either of said acts, so far as such provisions relate to a remedy by at- tachment against the property of a defendant, or to a remedy by execution or otherwise to reach the property of a judgment debtor, are hereby adopted by this Court as rules of this Court in respect to a remedy by attachment against the property of a defendant in a common law action in this Court, and in re- spect to a remedy by execution or otherwise to reach the property of a judgment debtor in a common law action in this Court. SOUTHERN DISTRICT OF NEW YORK. 513 November 7th, 1883. All motions will be heard on Tuesday at 10 a.m. Decbmbek 11th, 1883. On filing the written consent of the attorneys for all the parties, orders for discontinuance, extension of time and sub- stitution of attorney may be entered of course by the clerk in actions at common law \dthout the special direction of a judge. Makch 15th, 1883. Eule 44 is hereby amended by adding at the end the follow- ing: "And the hke stipulation with surety for costs in the sum of $100 shall be filed by the respondent in actions im, per- sonam at the time of entering his appearance or answer, or the same shall not be received unless otherwise specially ordered." See District Court Rule 44, p. 460. October 3d, 1883. Admiralty causes not involving over $250 which can be tried in an hour, may be heard on any Friday for which they are set down by order granted on any previous motion day, to be applied for on afiidavit of the facts, served, with four days' notice of motion, upon the other proctors in the cause. If on the trial the hearing is not completed within an hour, the cause may be ordered to the foot of the calendar or the remaining testimony taken out of Court, and the cause submitted there- upon. November 30th, 1883. In suits in rem in colhsion cases, if one of the colhding ves- sels be wholly lost so that no cross-libel could be maintained, the defendant, if he shall desire to recoup or offset any damage to his own vessel in case it should be determined on the trial that the collision occurred through the fault of both vessels, must in his answer state his damages in hke manner as upon filing a cross-libel ; and such statement of damage shall be without prejudice to any defence he may make that the col- lision was whoUy the fault of the other vessel. 33 RULES PRIZE C-A.8E8 OF THE DISTEICT COURT OF THE UOTTED STATES FOR THE SOUTHBRIT DISTRICT OP NEW YORK. [The following Rules of the District Court of the United States for the Southern District of New York in Prize Cases are reprinted from Blatch- ford's Prize Cases.] Rule 1. There shall be issued, under the seal and authority of this court, commissions to such persons as the court shall think fit, appointing them severally commissioners to take examinations of witnesses in prize causes in jpreparatorio, on the standing inter- rogatories, which have been settled and adopted by this court, and all other depositions which they are empowered to require, and to discharge such other duties in relation to ships, or vessels, or property brought into this district, as prize, as shall be designated by the said commissions, and the rules and orders of this court. Mitle 2. The captors of any property brought into this district as prize, or some one on their behalf, shall, without delay, give notice to the district judge, or to one of the commissioners aforesaid, of the arrival of the property, and of the place where the same may be found. Mule 3. Upon the receipt of notice thereof from the captors, or dis- 516 PRIZE RULES trict judge, a commissioner shall repair to the place where the said prize property then is; and if the same be a ship, or vessel, or if the property be on board a ship or vessel, he shall cause the said ship or vessel to be safely moored in sufficient depth of water, or in soft ground. Mule 4. The commissioner shall, in case the prize be a ship or vessel, examine whether bulk has been broken ; and if it be found that bulk has been broken, one of the said commissioners shall take information upon what occasion, or for what cause, the same was done. If the property captured be not a ship or vessel, or in a ship or vessel, he shall examine the chests, packages, boxes, or casks, containing the subject captured, and shall ascertain whether the same has been opened, and shall, in every case, examine whether any of the property origiaally captured has been secreted or taken away subsequently to the capture. Mule 5. The commissioner in no case shall leave the captured property until he secure the same by seals upon the hatches, doors, chests, bales, boxes, casks, or packages, as the case may re- quire, so that they cannot be opened without breaking the said seals ; and the said seals shall not be broken, or the property removed, without the special order of the court, excepting in case of fire and tempest, or of absolute necessity. Mule 6. If the captured property be not a vessel, or on board a vessel, the commissioner shall take a detailed account of the particulars thereof, and shall cause the same to be deposited, under the seals as aforesaid, in a place of safety, there to abide the order or decree of this court. Mule 7. If no notification shall, within reasonable time, be given by the captors, or by any person in their behalf, of any property which may be brought as prize within this district, and the commissioners, or either of them, shall become informed thereof SOUTHERN DISTRICT OF NEW YORK. 617 by any means, it shall be the duty of the said commissioners, or one of them, to repair to the place where such property is, and to proceed in respect to the same as if notice had been given by the captors. Rule 8. The captor shall deUver to the judge — at the time of such notice, or to the commissioner or commissioners, when he or they shall, conformably to the foregoing rule, repair to the place where such captured property is, or at such other times as the said commissioners, or either of them, shall require the same — all such papers^ passes, sea-briefs, charters, bills of lading, cockets, letters, and other documents and writings as shall have been found on board the captured ship, or which have any reference to or connection with the captured property, and which are in the possession, custody, or power of the cap- tors. Rule 9. The said papers, documents, and writings shall be regularly marked and. numbered by a commissioner, and the captor, chief officer, or some other person who was present at the taking of the prize, and saw that such documents, papers, and writings were found with the prize, must make a deposition before one of the said commissioners that they have delivered up the same to the judge or commissioner as they were found or received, without any fraud, subduction, or embezzlement. If any docu- ments, papers, or writings, relative to or connected with the captured property, are missing or wanting, the deponent shall, in his said deposition, account for the same, according to the best of his knowledge, information, and belief. Rule 10. The deponent must further swear that if, at any time there- after, and before the final condemnation or acquittal of the said property, any further or other papers relating to the said captured property shall be found or discovered to the knowl- edge of the deponent, they shall also be delivered up, or infor- mation thereof given to the commissioners or to this court, which deposition shall be reduced to writing by the commis- sioner, and shall be transmitted to the clerk of the court, as hereinafter mentioned. 618 PRIZE RULES Rule 11. When the said documents, papers, and writings are dehvered to a commissioner, he shall retain the same till after the exam- ination m frepa/ratorio shall have been made by him, as is hereafter provided, and then he shaE transmit the same, with the same affidavit in relation thereto, the preparatory examinations, and the information he may have received in regard to the said captured property, under cover and under his seal, to this court, addressed to the clerk thereof, and expressing on the said cover to what captured property the documents relate, or who claim to be the captors thereof, or from whom he received the information of the Capture ; which said cover shaU not be opened without the order of the court. Hule 12, "Within three days after the captured property shall have been brought within the jurisdiction of this court, the cap- tor shall produce to one of the commissioners three or four, if so many there be, of the company or persons who were capt- ured with, or who claim the said captured property ; and in case the capture be a vessel, the master and mate, or super- cargo, if brought in, must always be two, in order that they may be examined by the commissioner in jpreparatorio upon the standing interrogatories. Rule 13. In the examination of witnesses m prepa/ratorio, the com- missioner shall use no other interrogatories but the standing interrogatories, unless special interrogatories are directed by the court. He shall write down the answer of every witness separately to each interrogatory, and not to several interrog- atories together ; and the parties may personally, or by their agents, attend the examination of witnesses before the com- missioners ; but they shall have no right to interfere with the examination by putting questions or objecting to questions ; nor to take notes of the proceedings before the commissioner, to be used otherwise than before the court. All objections to the regularity or legahty of the proceedings of the commis- sioners must be made to the court. SOUTHERN DISTRICT OF NEW YORK. 519 Rule 14. "When a witness declares lie cannot answer to any interrog- atory, the commissioner shall admonish the witness that, by virtue of his oath taken to speak the truth, and nothing but the truth, he must answer to the best of his knowledge ; or when he does not know absolutely, then to answer to the best of his behef concerning any one fact. Utile 15. The witnesses are to be examined separately, and not in presence of each other, and they may be kept from all com- munication mth the parties, their agents, or counsel, during the examination. The commissioners will see that every ques- tion is understood by the witnesses, and will take their exact, clear, and explicit answers thereto ; and if any witness refuses to answer at all, or to answer fully, the examining commis- sioner is forthwith to certify the facts to the court. Mtde 16. The captors must produce aU their witnesses in succession, and cannot, after the commissioners have transmitted the ex- amination of a part of the crew to the judge, be allowed to have others examined without the special order of the court ; and the examination of every witness shall be begun, continued, and finished in the same day, and not at different times. Copies of the standing interrogatories shall not be returned by the commissioner with the examinations, but it shall be sufficient for the answer of the witnesses to refer to the stand- ing interrogatories by corresponding numbers. Bule 17. Before any witness shall be examined on the standing inter- rogatories the commissioner shall administer to him an oath in the following form; "You shall true answer make to aU such questions as shall be asked of you on these interrogar tories, and therein you shall speak the whole truth, and nothing but the truth, so help you God." If the vdtness is conscientiously averse to swearing, an affirmation to the same effect shall be administered to him. 520 PRIZE RULES Mule 18. "Whenever the ship's company, or any part thereof, of a capt- ured vessel are foreigners, or speak only a foreign language, the commissioner taking the examination may summon be- fore him competent interpreters, and put to them an oath well and truly to interpret to the witness the oath administered to him, and the interrogations propounded, and well and truly to interpret to the commissioners the answers given by the wit- ness to the respective interrogatories. Sule 19. The examination of each witness on the standing interrogar tories shall be returned according to the following form : " Deposition of A B, a witness produced, sworn, and exam- ined m preparatorio, on the day of , in the year , at the of , on the standing interrogatories established by the district court of the United States for the southern district of JSTew York ; the said witness having been produced for the purpose of such examination by C D, in behalf of the captors of a certain ship or vessel called the , (or of certain goods, wares, and merchan- dise, as the case may be.) 1st. To the first interrogatory the deponent answers that he was born at ■, , &c. 2d. To the second interrogatory the deponent answers that he was present at the time of the taking, &c. Bule 20. When the interrogatories have all been answered by a wit- ness, he shall sign his deposition, and the commissioner shall put a certificate thereto in the usual form, and subscribe his name to the same. Mule 21. No person having or claiming any interest in the captured property, or having any interest in any ship having letters of marque or commissions of war, shall act as a commissioner. Nor shall a commissioner act either as proctor, advocate, or counsel, either for captors or claimants, in any prize cause whatever. SOUTHERN DISTRICT OF NEW YORK. 521 Mule 22. If the captain or prize-master neglect or refuse to give up and deliver to the commissioners the documents, papers, and writings relating to the captured property, according to these rules, or refuse or neglect to produce, or cause to be produced, witnesses to be examined m prep(watorio, within three days after the arrival of the captured property within the jurisdic- tion of this court, or shall otherwise unnecessarily delay the production of the said documents, papers, or writings, the com- missioners, or one of them nearest to the place where the capt- ured property may be, or before whom the examination in pre^pa/ratorio may have been already begun, shall give notice in writing to the delinquent to forthwith produce the said documents, papers, and writings, and to bring forward his wit- nesses ; and if he shall neglect or delay so to do for the period of twenty-four hours thereafter, such commissioner shall certify the same to this court, that such proceedings may thereupon be had as justice may require. Rule 23. If within twenty-four hours after the arrival within this dis- trict of any captured vessel, or of any property taken as prize, the captors, or their agents, shall not give notice to the judge or a commissioner pursuant to the provisions herein made, or shall not, two days after such notice given, produce witnesses to be examined in preparatorio, then any person claiming the captured property and restoration thereof may give notice to the judge or the commissioners, as aforesaid, of the arrival of the said captured property ; and thereupon such proceedings may be had by the commissioners in respect to the said prop- erty, and relative to the documents, papers, and writings con- nected with the said capture, which the claimant may have in his possession, custody, or power, and relative to the examina- tion of witnesses m preparatorio, as near as may be, as is be- fore provided for in cases where the captors shall give notice and examine in preparatorio. And the said claimant may in such cases file his libel for restitution, and proceed thereon according to the rules and practice of this court. 522 PRIZE RULES Mule 24:. As soon as may be convenient, after the _ captured property shall have been brought within the jurisdiction of this court, a Ubel may be filed, and a monition shall thereupon be issued, and such proceedings shall be had as are usual in conformity to the practice of this court in cases of vessels, goods, wares, and merchandise seized as forfeited, in virtue of any revenue law of the United States. Rule 25. In all cases, by consent of captor and claimant, or upon attestation exhibited upon the part of the claimant only, with- out consent of the captor, that the cargo or part thereof is perishing or perishable, the claimant, specifying the quantity and quality of the cargo, may have the same delivered to him, on giving bail to answer the value thereof if condemned, and further to abide the event of the suit ; such bail to be approved of by the captor, or otherwise the persons who give security swearing themselves to be severally and truly worth the sum for which they give security. If the parties cannot agree upon the value of the cargo, a decree or commission of appraisement may issue from the court to ascertain the value. Bule 26. In cases where there is no claim, an affidavit being exhibited on the part of the captor of such perishing or perishable cargo, specifying the quantity and quality thereof, the captor may have a decree or commission of appraisement and sale of such cargo, the proceeds thereof to be brought into court, to abide the further orders of the court. Mule 27. ■ The name of each cause shall be entered by the clerk upon the docket for hearing in their order, according to the dates of the returns of the monitions, and lists of the causes ready for hearing are to be constantly hung up in the clerk's office for public inspection. Mule 28. In all cases where a decree or commission of appraisement SOUTHERN DISTRICT OF NEW YORK. 523 and sale of any ship and cargo, or either of them, shall have issued, no question respecting the adjudication of such ship and goods, or either of them, as to freight or expenses, shaU. be heard tiU the said decree or commission shall be returned, with the account of sales, and the proceeds, according to such ac- count of sales, be paid into court, to abide the order of the court in respect thereto. Bule 29. After the examination, taken in prepa/ratorio on the stand- ing interrogatories, are brought- into the clerk's office, and the monition has issued, no further or other examinations upon the said interrogatories shall be taken, or aifidavits re- ceived, without the special directions of the judge, upon due notice given. Bule 30. None but the captors can, in the first instance, invoke papers from one captured vessel to another, nor can it be done without the special mandate of the judge ; and, in case of its allowance, only extracts from the papers are to be used. Mule 31. The invocation shall only be allowed on affidavit on the part of the captors, satisfying the court that such papers are material and necessary. Bule 32. Application for permission to invoke must be on service, at least two days previously, of notice thereof, and copy of the affidavit, on the claimants or their agent, (if known to be in this port ; ) and after invocation allowed to the captors, the claimants, by permission of the judge, for sufficient cause shown, may use other extracts of the same papers in explan- ation of the parts invoked. Bule 33. But when the same claimants intervene for different vessels, or for goods, wares, or merchandise captured on board different vessels, and proofs are taken in the respective causes, and the 524 PRIZE RULES causes are on the dockets for trial at the same time, the captors may, on the hearing in court, invoke, of course, in either of such causes, the proofs taken in any other of them ; the claim- ants, after such invocation, having Mberty to avail themselves also of the proofs in the cause invoked. Rule 34. In all motions for commissions, and decrees of appraisement and sale, the time shall be specified within which it is prayed that the commissions or decree shall be made returnable. MttJe 35. The commissioners shall make regular returns on the days in which their commission or decrees are returnable, stating the progress that has been made in the execution of the comniis- sion or decrees, and, if necessary, prajdng an enlargement of the time for the completion of the business. Bule 36. The commissioners shall bring in the proceeds which have been collected at the time of their returns ; and they may be required from time to time to make partial returns of such sums only as are necessary to cover expenses. Bule 37. On the returns of commissions or decrees, the commissioners or the marshal must bring in all the vouchers within their con- trol. Mule 38. AU moneys brought into court in prize causes shall be forth- with paid into such banlc, in the city of New York, as shall be appointed for keeping the moneys of the court, and shall only be drawn out on the specific orders of the court, in favor of the persons respectively having right thereto, or their agents or representatives, duly authorized to receive the same. Bule 39. At every stated term of the court, the clerk shall exhibit to SOUTHERlSr DISTRICT OF NEW YORK. 525 the court a statement of all the moneys paid into court in prize cases, designating the amount paid in each particular case, and at what time. , Rule 40. The statement, when approved by the court, shall be filed of record in the clerk's office, and be open to the inspection of all parties interested, and certified copies thereof shall be furnished by the clerk, on request, to any party in interest, his proctor or advocate. Hule 41. "When property seized as prize of war is dehvered upon bail, a stipulation, according to the course of the admiralty, is to be taken for double its value. Mule 42. Every claim interposed must be by the parties in interest, if within convenient distance — or in their absence, by their agent or the principal officer of the captured ship — and must be ac- companied by a test affidavit, stating briefly the facts respect- ing the claim, and its verity, and how the deponent stands con- nected with or acquired knowledge of it. The same party who may intervene is also competent to attest to the affidavit. Mule 43. The captors of property brought in or held as prize, or which may have been carried into a foreign port, and there delivered upon bail by the captors, shall forthwith hbel the same in fact, and sue out the proper process. The first process may, at the election of the party, be a warrant for the arrest of the prop- erty or person, to compel a stipulation to abide the decree of the court, or a monition. Mule 44. The monitions shaU be made returnable in ten days, and if the property seized as prize is in port, shall be served in the same way as in the case of monitions issued on the instance side of the court of admiralty on seizures for forfeiture under the revenue laws. In case the property claimed as prize is not 526 PRIZE RULES in port, then the monition is to be served on the parties in in- terest, their agent or proctor, if known to reside in the district, otherwise by publication d|iily in one of the newspapers of this city, for ten successive days preceding the return thereof. Rtile 43. "Whenever the jurisdiction of the court is invoked upon mat- ters as incident to prize, except as to the distribution of prize- money, there must be distinct articles or allegations in that be- half in the original hbel or . claim on the part of the party seeking relief. But in case the matters have arisen or become known to the party subsequent to presenting his libel or claim, the court wiU. allow him to file the necessary amendments. Rule 46. N^o permission will be granted to either party to introduce further proofs until after the hearing of the cause upon the proofs originally taken. Mule 47. In case of captures by the public armed vessels of the United States, and a proceeding for condemnation against the property seized as jprize Jure ielU, or in the nature of prize of war, under any act of Congress, the name of the officer under whose authority the capture was made must be inserted in the libel. Rule 48. A decree of contumacy may be had against any party not obeying the orders or process of the court, duly served upon him ; and thereupon an attachment may be sued out against him. But no constructive service of a decree or process viis et modis, or publica oitatio, will be sufficient, unless there has been a pubhcation thereof in a daily paper in this city at least ten days immediately preceding the motion for an attachment. Rule 49. "When damages are awarded by the court, the party entitled thereto may move for the appointment of three commissioners to assess the same ; two persons approved by the court wiU thereupon be associated with a standing commissioner of the SOUTHERN DISTRICT OF NEW YORK. 527 circuit court, the clerk or deputy clerk of this court, if not in- terested in the matter, whose duty it shall be to estimate and compute the damages, in conformity to the principles of the de- cree, and return a specific report to the court of the amount of damages, and the particular items of Avhich they are composed. Rule SO. Any party aggrieved may have such assessment of damages reviewed in a summary manner by the court, before final de- cree rendered thereon, on giving two days' previous notice to the proctor of the party in whose favor the assessment is made, of the exceptions he intends taking, and causing to be brought before the court the evidence given the commissioners in rela- tion to the particular excepted to. Mule 51. Every appeal from the decrees of this court must be made within ten days from the time the decree appealed from is en- tered, otherwise the party entitled to the decree may proceed to have it executed. No appeal shall stay the execution of a decree, unless the party, at the time of entering the appeal, gives a stipulation, with two sureties, to be approved by the clerk, in the sum of two hundred and fifty dollars, to pay aU costs and damages that may be awarded against him, and to prosecute the appeal to effect. Rule 32. If the party appealing is afterwards guilty of unreasonable delay in having the necessary transcripts and proceedings pre- pared for removing the cause, it will be competent to the other party to move the court for leave to execute the decree, not- withstanding the appeal. Itule 53. In . all cases of process in rem, the property after arrest is deemed in the custody of the court, and the marshal cannot surrender it on bail, or otherwise, without the special order of the court. STANDING INTERROGATORIES, REPBERED TO IN THE FOREGOING PRIZE RULES. [Standing interrogatories to be administered by a prize commissioner to all persons that may be produced as witnesses to be examined in pre- paratorio, in relation to any ship or vessel, goods, wares, or merchandise, ■which may be captured or taken as prize and brought into the southern district of New York.] Let each witness be interrogated to every of the following questions, and their answers to each interrogatory be written down under his direction and supervision : 1. "Where were you born, and where do you now live, and how long have you lived there ? Of what prince or state are you a subject or citizen, and to which do you owe allegiance ? Are you a citizen of the United States of America ? Are you a married man, and, if married, where do your family and wife reside ? 2. Were you present at the capture or taking of the vessel, or her lading, or any of the goods or merchandises concerning which you are now examined ? 3. When and where were such seizure and capture made, and into what place or port were the same carried ? Had the vessel so captured any commission, or letters, authorizing her to make prizes ? What and from whom ? For what reason or on what pretence was the seizure made ? 4. Under what colors did the captured vessel sail ? What other colors had she on board, and for what reason had she such other colors ? 6. Was any resistance made at the time of the capture, and by whom ? Were any guns fired, how many, and by whom ? By what ship or ships was the capture made ? Were any other and what ships in sight at the time of the capture ? Was the SOUTHERN DISTRICT OF NEW YORK. 529 vessel captured a mercliantmaii, a ship-of-war, or acting under any commission as a privateer or letter of marque and reprisal, and to whom did such vessel belong? Was the capturing ves- sel a ship-of-war, a letter of marque and reprisal, or privateer, and of what force ? 6. Had the capturing vessel or vessels any commission to act in the seizure or capture of the vessel inquired about, and from whom, and by what particular vessel was the capture made ? Was the vessel seized condemned, and if so, when and where, and for what reason, and upon what account, and by whom, and by what authority or tribunal was she condemned ? Y. What was the name of the vessel taken, and of her mas- ter or commander ? Who appointed him to the command of the said vessel, and where ? How long have you known the vessel and him, and when and where did he take possession of her, and who by name delivered the same to him ? Where is the fixed place of abode of the master, with his wife and family, and how long has he lived there ? If he has no fixed place of abode, where was his last place of residence, and how long did he live there ? Where was he born ? Of what country or state is he a subject or citizen ? 8. Of what tonnage or burden is the vessel which has been taken, and about which you are examined ? What number of the vessel's company belonged to her at the time she was seized and taken, and how many were then actually on board her ? What countrymen are they ? Did they all come on board at the same port and time, or at different ports and times, and when and where ? Who shipped or hired them, and when or where ? 9. Did you belong to the company of the vessel so captured at the time of her seizure, and in what capacity ? Had you, or any of the oflBcers, or mariners, or company, belonging to the said vessel at the time of her capture, any part, share, or in- terest in the same, or in the goods or merchandise laden on board her, and what in particular, and what was the value thereof at the time the said vessel was captured, and the said goods seized ? 10. How long have you known the said vessel? When and where did you first see her ? How many guns did she carry ? How many men were on board of her at the beginning of the 34 530 PRIZE RULES engagement, before slie was captured? Of what country- build was she ? What was her name, and how long was she so called ? "Whether do you know of any other name she was called by, and what were such names, as you know or have heard ? 11.. To what ports and places was the vessel, concerning which you are now examined, bound on the voyage wherein she was taken and seized ? Where did the voyage begin, and where was the voyage to have ended ? What sort of lading did she carry at the time of her first setting out on the voyage, and what particular sort of lading and goods had she on board at the time she was taken and seized ? In what year and in what month was the same put on board? Do you or not know she had on board during her last voyage, and when, goods contraband of war, or otherwise prohibited by law, and what goods ? 12. Had the vessel of which you are examined any passport or sea-brief on board, and from whom? To what ports or places did she sail during her last voyage, before she was taken? Where did her last voyage begin, and where was it to have ended ? Set forth the kind of cargoes the vessel has carried to the time of her capture, and at what ports such cargoes have been delivered. From what ports, and at what time, particu- larly from the last clearing port, did the said vessel sail, previ- ously to the capture ? 13. What lading did the vessel carry at the time of her first setting sail in her last voyage, and what particular sort of lad- ing and goods had she on board at the time she was taken ? In what year and in what month was the same put on board? Set forth the different species of the lading and the quantities of each sort. 14. Who were the owners of the vessel and goods, concern- ing which you are now examined, at the time of their capture and seizure ? How do you know they were owners thereof at that time ? Of what nation or country are they by birth, and where do they live with their wives and famihes ? How long have they resided there ? Where did they reside previously, to the best of your knowledge ? Of what country or state are they subjects or citizens ? 15. Was any biU. of sale given, and by whom, to the owners SOUTHERN DISTRICT OF NEW YORK. 531 of the said vessel, and in what month and year ? "Where, and in presence of what witnesses, was it made ? Was any, and what engagement entered into concerning the purchase, further than what appears upon the bill of sale ? Where did you last see it, and what has become of it ? 16. In what port or place, and in what month and year, was the lading found on board the vessel, at the time of her capture or seizure, first put on board her ? What were the names of the respective laders or owners, or consignees thereof ? What countrymen are they ? Where did they reside before, to the best of your knowledge, and where were the said goods to be dehvered, and for whose real account, risk, or benefit ? Have any of the said laders or consignees any and what interest in the said goods ? What were the several quahtie's, quantities, and particulars of the said goods, and have you any and what reason to know or fully believe that if the said goods shall be restored and unladen at the destined ports, they did, do, aud will belong to the same persons, and to none others. 17. How many biUs of lading were signed for the goods seized on board the said vessel ? Were any of those bills of lading false or colorable, or were any bills of lading signed which were different in any respect from those which were on board the vessel at the time she was taken ? What were the contents of such other bUls of lading, and what became of them ? . 18. Have you in your possession, or were there on board of the said vessel, at the time of her capture, any bills of lading, invoices, letters, or other writings, to prove or show your own interest, or the interest of any other person, and of whom, in the vessel or in the goods concerning which you are now exam- ined ? If in your power produce the same, and set forth the particular times when, where, and in what manner, and upon what consideration, you became possessed thereof. If you can- not produce such paper evidences, then state in whose posses- sion you last saw them, or where you know or beheve they are kept, and when, and by whom they were brought or sent with- in this district, and also set forth the contents or purport of such papers. 19. State the degrees of latitude and longitude in which the ' said vessel and her cargo were captured, as also the year, 532 PEIZE RULES month, and day, and time thereof, in which such seizure -was made, and in or near what port or place, and whether it was a port of any State or Territory of the United States of America, and what one. "Was any charter-party for the Yoyage upon which the said vessel was captured signed and executed, and hy whom and when? If in your possession, produce the same. If not, set forth its contents and state what has become of it. 20. What papers, bills of lading, letters, or other writings relating to the vessel or cargo, were on board the vessel at the time she took her departure from her last clearing port, before she was taken as prize ? "Were any of them burnt, torn, thrown overboard, destroyed, or cancelled, or attempted to be con- cealed, and when, and by whom, and who was then present ? 21. Did you or the owner, master, or person having com- mand of the said vessel or her navigation, at the time and place of her capture, know or have notice that such place or port was in a state of war with the United States, and that the naval forces of the United States held such port in a state of block- ade ? How, when, or where had you such knowledge or notice, and when and where did the master or commandant of said vessel obtain it ? 22. Was such port under an order of blockade by the gov- ernment of tiie United States, at the time the said vessel en- tered or made an attempt to enter the same ? Had warning or notice of such blockade been given to, or received by the, owner, master or commandant of said vessel, before or at the time she entered, or attempted to enter the said port, and when, and ia what manner ? Had notice in writing been indorsed on the register or other ship's papers of the said vessel, and when, where, and by whom, of an existing blockade of such port, be- fore she entered, or attempted to enter the same, or before the time of her sailing, or attempting to sail therefrom ? 23. Was the register of the vessel, about which you are ex- amined, shown to, or examined by any officer of the United States navy, or by any revenue officer of the United States, before she was captured and taken, and before she entered the port at, or near which, she was taken and seized, and was the register, or other ship's papers, indorsed by said United States officer ? Declare fully aU you know, or have reason to SOUTHERN DISTEICT OF NEW YORK. 533 believe," respecting this interrogatory, stating the persons, times, and places connected therewith. 24. Do you know, or do you believe from information, and if the latter, from what information, and when and how was it obtained,- that the vessel inquired about, at any time or times, after the blockade of the said port, and with notice thereof, and when, attempted covertly and secretly to enter the said blockaded port, or to sail therefrom, without success ? Disclose fully all your knowledge, information, and belief thereon, with the particulars upon which the same is founded. 25. Has the vessel, concerning which you are now examined, been at any time, and when, seized as prize and condemned as such ? If yea, set forth into what port she was carried, and by whom, and by what authority, or on what account she was condemned. 26. Have you sustained any loss by the seizing and taking the vessel concerning which you are iiow examined ? If yea, in what manner do you compute such your loss ? Have you already received any indemnity, satisfaction, or promise of satisfaction, for any part of the damage which you have sus- tained, or may sustain, by this capture and detention, and when and from whom ? 27. Is the said vessel or goods, or any, and what parts, in- sured ? If yea, for what voyage is such insurance made, and at what premium, and when and by what persons, and in what country was such insurance made? 28. In case you had arrived at your destined port, would your cargo, or any part thereof, on being unladen, have im- mediately become the property of the consignees, or any per- son, and whom ? Or was the lader to take the chance of the market for the sale of his goods ? 29. Let each witness be interrogated of the growth, produce, and manufacture, on board the vessel. Of what country and place was the lading, concerning which they are now interro- gated, or any part thereof ? 30. Whether all the said cargo, or any and what part there- of, was taken from the shore, or quay, or removed, or trans- shipped from one vessel to another, from what and to what shore, quay, and vessel, and when and where was the same so done? 534 PRIZE RULES 31. Are there in any country besides the United States, and where, or on board any and what vessel, cir vessels, other than the vessel concerning which you are now examined, any biUs of lading, invoices, letters, instruments, papers, or documents, relative to the said vessel or cargo, and of what nature are they, and what are their contents ? 32. "Were any papers delivered out of the said vessel, and carried away in any manner whatsoever, and when, and by whom, and to whom, and in whose custody, possession, or power do you believe the same now are ? 33. "Was bulk broken during the voyage on which you were taken, or since the capture of the said vessel, and when, and where, by whom, and by whose orders, and for what purpose, and in what maimer ? 34. "Were any passengers on board the aforesaid vessel? "Were any of them secreted at the time of the capture 1 Who were the passengers by name ? Of what nation, rank, profes- sion, or occupation? Had they any commission — for what purpose, and from whom ? From what place were they taken on board, and when ? To what place were they finally des- tined, and upon what business ? Had any, and which of the passengers, any and what property, or concern, or authority, directly or indirectly, regarding the vessel and cargo ? "Were there any officers, soldiers, or mariners secreted on board, and for what reason were they secreted ? Were any citizens of the United States on board, or secreted or confined at the time of the capture ? How long, and why ? Whether any persons on board the said vessel, at the time of her capture, were citizens or residents of any State or Territory of the United States then in a state of war or rebellion against the United States, its government and laws. If so, who by name, and of what State or Territory ? What was their employment on board the ves- sel, and what their destination ? 35. Were and are all the passports, sea-briefs, charter-parties, biUs of sale, invoices, and papers which were found on board, entirely true and fair, or are any of them false or colorable ? Do you know of any matter or circumstance to affect their credit ? By whom were the passports or sea-briefs obtained, and from whom ? Were they obtained for this vessel only, and upon the oath or affirmation of the persons thereki de- SOUTHEEN DISTRICT OP NEW YOEK. 535 scribed, or were they delivered to or on behalf of the person or persons who appear to have been sworn or to have affirmed thereto without their having ever, in fact, made any such oath or affirmation ? How long a time were they to last ? "Was any duty or fee payable and paid for the same, and is there any duty or fee to be paid on the renewal thereof ? Have such passports been renewed, and how often, and has the duty or fee been paid for such renewal? "Was the vessel in a port in the country where the passports and searbriefs were granted ; and if not, where was the vessel at the time ? Had any person on board any passport, license, or letters of safe conduct ? If yea, from whom, and for what business ? If it should appear that there are in the United States, or in any other place or country besides the United States, any bills of lading, invoices, instruments, or papers relative to the vessel and goods concerning which you are now examined, state how ' they were brought into such place or country. In whose pos- session are they, and do they differ from any of the papers on board, or in the United States, or elsewhere, and in what par- ticular do they differ.? Have you written or signed any let- ters or papers concerning the vessel and her cargo ? "What was their purport ? To whom were they written and sent, and what has become of them ? 36. Towards what port or place was the vessel steering her course at the time of her being first pursued and taken ? "Was her course altered upon the appearance of the vessel by which she was taken ? "Was her course at all times, when the weather would permit, directed to the place or port for which she ap- pears to have been destined by the ship papers ? "Was the vessel, before or at the time of her capture, sailing beyond or wide of the said place or port to which she was so destined by the said ship papers ? At what distance was she therefrom ? "Was her course altered at any, and what time, and to what other port or place, and for what reason ? 3T. By whom and to whom hath the said vessel been sold or transferred, and how often? At what time and at what place, and for what sum or consideration, has the same been paid or satisfied ? "Was the sum paid, or to be paid, a fair and true equivalent, or what security or securities have been given for the payment of the same ; and by whom, and where do they 536 PRIZE RULES now live ? Do you know, or believe in your conscience, such sale or transfer has been truly made, and not for the purpose of covering or concealing the real property. Do you verily believe that if the vessel should be restored, she will belong to the persons now asserted to be the owners, and to none others ? 38. "What guns were mounted on board the vessel, and what arms and ammunition were belonging to her ? Why was she so armed ? "Were there on board any other guns, weapons, warlike arms, or armament of any name or description, and if any, what ? "Were there any parts of warhke arms, not put together or finished, or any ammunition, fixed or unfixed, or any balls, shells, rockets, hand-grenades, flints, percussion caps, or any other thing known to be intended for military equipment ? "Were there any belts, ball-moulds, saltpetre, nitre, camp equi- page, military tools, uniforms, soldiers' clothing, or accoutre- ments, or any parts of them, or any sort of warlike or naval' stores ? Were any of such warlike, or naval stores, or things, thrown overboard to prevent suspicion at the time of the capt- ure ; and were any such warlike stores, before described, con- cealed on board under the name of merchandise, or any colorable appellation, in the ship papers? If so, what are the marks on the casks, bales and packages in which they were concealed ? Are any of the before-named articles, and which, for the sole use of any fortress or garrison in the port or place to which such vessel was destined ? Do you know, or have you heard of any ordinance, placard, or law, existing in such country or State forbidding the exportation of the same by private persons without license ? Were such warlike or naval stores put on board by any public authority ? When and where were they put on board ? 39. What is the whole which you know or believe, according to the best of your knowledge and belief, regarding the real and true property and destination of the vessel and cargo concerning which you are now examined, at the time of the capture ? 40. Did the said vessel, on the voyage in which she was captured, (or on) or during any or what former voyage or voy- ages, sail under the convoy of any ship or ships of war, or other armed vessel or vessels ? For what reason or purpose SOUTHERN DISTRICT OP NEW YORK. 537 did she sail under such convoy ? Of what force was or were such convoying ship or ships, and to what State or country did the same belong ? What instructions or directions had you or did you receive on each and every of such voyages, when under convoy, respecting your sailing or keeping in company with such armed or convoying ship or ships ; and from whom did you receive such instructions or directions ? Had you any, and what directions or instructions, and from whom, for resisting, or endeavoring to avoid or escape from capture, or for destroy- ing, concealing, or refusing to deliver up your vessel's docu- ments and papers ; or any, and what other papers, that might be or were put on board your said ship ? If so, state the tenor of such instructions and all particulars relating thereto. Are you in possession of such instructions, or copies thereof ? If so, leave them with the commissioner, to be annexed to your deposition. 41. Did the said vessel, during the voyage in which she was captured, or on making any and what former voyage or voy- ages, sail to, or attempt to enter, any port under blockade by the arms or forces of any, and what, belligerent power ? If so, when did you first learn or hear of such port being so block- aded, and were you at any, and what time, and by whom warned not to proceed to, or to attempt to enter into, or to escape from, such blockaded port? What conversation or other communication passed thereon ? And what course did you pursue upon and after being so warned off ? 42. Whether or no the vessel, concerning which you are ex- amined, did sail on her last voyage prior to her seizure, carrying a commission or hcense as a privateer, or letter of marque and reprisal, or other authority from any person or persons, to cruise against the persons or property of citizens of the United States, and to make prizes thereof. By whom was such au- thority, license, or direction given, and when? Was it in writing ? If so, did it remain with the vessel up to the time of her capture, or was it destroyed or concealed previous thereto ? When, and by whom ? What were the contents or purport thereof? State all the facts in your knowledge within this inquiry, and the sources of such knowledge. Also state fully all the acts known to you to have been done by the vessel, her 538 PRIZE EULES. master or crew, under such commission or license, up to the period of her capture. 43. "Whether or no the said vessel inquired about, at any time, and when and where, sailed or acted in company or con- cert with any other armed vessel or vessels, and what, in cruis- ing against, pursuing, or seizing as prize, any persons, vessels, or property of citizens of the United States ? Declare fully and particularly your knowledge, information and .belief therein. vin. RULES. EASTERN DISTRICT OF NEW YORK. CIRCUIT COURT. JUDGES AND OFFIOEES CIRCUIT COUET OF THE UNITED STATES EASTERN DISTEICT OP NEW YORK. SAiTOEL Blatchfoed — Associate Justice of the Supreme Court of the United States assigned to the Second Judicial Circuit — Cir- cuit Justice. No. 1432 K Street, N. W., Washington, D. C. William J. Wallace — Circuit Judge. Syracuse, JST. Y. Asa W. Tennet — United States Attorney. Brooklyn, Kings Co., N. Y. United States Attorney's Office, No. 168 Montague Street, Brooklyn, Kings Co., N. Y. Benjamin LmcoLN' Benedict — Clerk Circuit Court. Brooklyn, Kings Co., N. Y. Clerk's Office at No. 168 Montague Street, Brooklyn, Kings Co., N. Y. Augustus C. Tate — United States Marshal. No. 105 St. Felix Street, Brooklyn, Kings Co., N. Y. Marshal's Office at No. 170 Montague Street, Brooklyn, Kings Co.,N.Y. Court Rooms at Nos. 168, 170 Montague Street, Brooklyn, Kings Co., N. Y. Circuit Court held at the Court Rooms in the City of Brooklyn, N. Y., on the 1st Wednesday in every month. For Federal Statutes especially relating to this Court, see Respecting the Pkacticb in the Circttit Courts generally, and their power to make Roles, etc., pp. 853 to 355. Respecting Fees, etc., pp. 357 to 373. Respecting the Jurisdiction of this Court, p. 875. Respecting Sessions, etc., pp. 877 and 386. UTILES OP THE CIRCUIT COURT OF THE UNITED STATES POK THE EASTERN DISTRICT OF NEW YORK IN CASES AT LAW. Rule 1. Proctors of any circuit or district court of the United States, attorneys of the Supreme Court of the State of New York, may on motion in open court, or on presentation of their licenses to the clerk in vacation, be admitted attorneys and proctors of this court, and counsellors and advocates of any circuit or dis- trict court, and counsellors of the said Supreme Court may in like manner be admitted counsellors and advocates of this court of course ; on taking, and subscribing the oath or affirmation prescribed by the act' of Congress. Rule 2. All notices shall be in writing, and shall be served on the attorney in the cause. Where a party, who is also an attorney of this court, shall prosecute or defend in person, aU notices and other papers shall be served on him in like manner, except where the proceeding is by bill, in which case the same shall be personally served ; and where the object is to bring a party into contempt for disobeying any rule or order of court, the service shall be personal, unless otherwise ordered by the court. 542 CIRCUIT COURT RULES Sule 3. Notices and papers may be served on an attorney during his absence from his office, by leaving the same with his clerk in such office, or with a person having charge thereof ; or where no person is to be found in the office, by leaving the same be- tween the hours of six in the morning and six in the evening in some suitable and conspicuous place in such office, or if the office be not open so as to admit of service therein, then by leaving the same at the residence of the attorney with some person of suitable age and discretion. Rule 4. Where a party, other than an attorney of this court, pros- ecutes or defends in person, the service of notices and papers may be on such party personally, or by putting the same into the post-office, directed to him at his place of resi- dence. And no service of notices or papers in the ordinary proceedings in a cause shall be necessary to be made on a de- jfendant, who has not appeared therein, except where he is re- turned imprisoned for want of baU, in which case a copy of the declaration and notice to plead shall be dehvered to him, or to the marshal or jailer in whose custody he may be, and, where an exception is entered to bail, and no notice of retainer of attorney to defend is given, notice of such exception shall be delivered to the marshal or one of his deputies. Mule 5. All process must be signed and sealed by the clerk,- and must have the name of the attorney or person by whom issued, with his place of business endorsed thereon, and the same may be tested on any day, and (except where bail is to be charged), made returnable on any other day in term or vacation, Sun- days and legal holidays excepted. Mule 6. Where the real name of a party is not known, the proc- ess may be issued against him by a fictitious name, and when served on the real party intended, it may, by an order of course, be amended, before or after return, by inserting therein EASTERN DISTRICT OP KEW YORK. 543 the real name of the party, and by correcting any error in the names of the parties thereto. Mule 7. All actions brought for the recovery of any debt, or for dam- ages, wherein the defendant is not required to give bail, may be commenced by the issuing and service of a monition, or by summons if the defendant be a corporation. JRule 8. Upon the service of such monition or summons, the defend- ant may endorse his appearance thereon, or, if he refuse so to do, the marshal or ofiB.cer serving the same may leave a copy thereof with him, and thereupon return the same personally served ; and in either case the clerk, upon filing such process, shaU enter the defendant's appearance in the action, and such proceedings may thereupon be had as if the defendant had actually appeared, and thereupon, upon fiUng the declaration, or, if the same has been already filed, an order may be entered requiring the defendant to plead thereto within twenty days, or that his default be entered. Mule 9. The defendant may be held to bail in aU actions where the same may be allowed by any act of Congress, or, where by the laws of this State an " order of arrest " may be granted. The process upon which he may be so held to bail shall be the usual capias ad respondendwm, wherein must be stated the true cause of action, and upon which (except where otherwise pro- vided by act of Congress), must be endorsed an order of the Judge allowing the same, and fixing the amount of bail re- quired. To obtain such order an aflBldavit must be made of the facts entitling the plaintiff thereto, and which, after present- ment thereof to the Judge, shall be filed with the clerk. / Mule 10. In suits brought against persons accountable for public money, for the recovery thereof, in which the defendant is held to bail, it shall be the duty of the officer making the ar- 54:4 CIRCUIT COURT RULES rest to exact a bail-bond conditioned for the appearance of the defendant on the return day of the writ, and unless it shaU be made to appear that the plaintiff is not entitled by law to judgment at the return term, special baU shall be put in, and the bail, if excepted to, shaJl justify within two days after the return day of the writ, and before the adjournment of the court at the return term, otherwise, the plaintiff may sue out process upon the bail-bond, returnable on any day in the ensu- ing vacation, and upon the return of such process served, may proceed to judgment and execution as of the preceding term, unless the defendant shall interpose a valid plea verified by affidavit ; and judgment may also be entered in the principal suit in the same manner as if special bail had been put in and perfected. But if, within the time allowed for putting in and perfecting special baU, the defendant shall, by making the oath or affirmation prescribed by law, entitle himself to a continu- ance untU the next term, he shaU. have the same time allowed as is allowed in other cases after the return day of the writ, to put in and perfect such bail. SvZe 11. In suits upon bonds for the payment of duties, and in suits brought against persons accountable for public money, for the recovery thereof, the declaration may be filed on the day upon which the writ is returnable and the same is actually returned, and the District Attorney may thereupon move in open court for judgment, and, no plea being interposed, may have final judgment entered instanter. Rule 12. When, in suits upon bonds for the payment of duties, and in suits brought against persons accountable for pubUc money, for the recovery thereof, the defendant interposes a plea, the District Attorney may have the cause placed on the calendar at the same term without other notice, and may bring the same to trial when called, unless the court shall continue the cause over at the instance of the defendant. Rule 18. In suits in which the Uriited States are plaintiffs, or in which EASTERN DISTRICT OF NEW YORK. 545 they are interested, though not plaintiffs, if the bail to the ar- rest becomes special bail, the assignment of the bail-bond and the acceptance thereof by the plaintiff's attorney, shall not pre- clude him from excepting to the sufficiency of such special bail ; and the marshal shall still be responsible for good bail, notwithstanding such assignment and acceptance of the bail- bond. Sule 14. No plea shall be received in any suit instituted in this court upon a bond executed to the United States for the payment of duties, or in any suit instituted upon a bail-bond taken in consequence of such suit, unless such plea shall be accompanied by an affidavit of the truth of the matters therein contained. IRule 15. The time for putting in special bail and giving notice thereof in other cases shall be ten days from the day on which the process shall be returnable ; the time for exception and notice thereof, four days from the day of notice of bail ; the time of Justification, four days from the day of notice of exception, and notice of justification shall be given four days before the day of justification. Bail may justify in open court or before the Judge at chambers, or before the clerk or a commissioner of the court, with the right of appeal in the last case to the court or Judge at chambers, and, in all cases when the bail demanded exceeds five thousand dollars, two or more bail may justify for proportionate parts of such sum as the Judge may deem proper. Hule 16. In cases where special bail is required, the bail piece shall be duly acknowledged so as to entitle the same to be read in evi- dence, and be filed in the clerk's office. Notice thereof in writing shall be given to the plaintiff, or his attorney, within ten days after the return day of the process, and, in default thereof, the plaintiff may take an assignment of, and proceed upon, the bail-bond, or, against the marshal or officer who served the process. Mule 17. If the plaintiff elects to proceed against the marshal or 35 546 CIRCUIT COURT RULES olficer wko served the process, it shall be by filing an affidavit, stating that the process was delivered to him for service, that the same has been returned served, and that default has been made in putting in special bail, and thereupon the clerk shall enter in the minutes of the court an order requiring the mar- shal or other officer to put in and perfect special bail within ten days after service of a certiiied copy of such order, or show cause why an attachment should not issue. Mule 18. If the plaintiff elects to take an assignment of the bail-bond, and shall commence a suit thereon, the same shall be stayed upon the following terms: 1st. — Putting in and perfecting special bail, and paying the costs of the suit upon the bail-bond, and of the motion for relief. 2d. — Pleading issuably, and con- senting to place the cause on the calendar, and to proceed to trial at the same term, or to the entry of a judgment upon the bail-bond to stand as security to abide the event of the suit. Kule 19, To effect a surrender of bail, the bail or principal shall pro- duce to the Judge two certified copies of the bail piece, on one of which the Judge shall endorse a committitur, and on the other an order that the plaintiff show cause before him on such day as he may designate, why the bail should not be exon- erated. Mule 20. On- due proof of the service of such order on the plaintiff or his attorney, and on proof by the certificate of the marshal or his deputy to whose custody the defendant has been committed, in virtue of such committitur, acknowledged before the Judge by such officer, or proved by the oath of a subscribing witness thereto, if no sufficient cause to the contrary be shown, the Judge will endorse an order on the second certified copy of the bail piece, that an exoneretur be entered. If the plaintiff or his attorney upon whom the rule to show cause is served, re- sides at the time of service more than one hundred miles from the place at which the cause is to be shown, such rule shall be EASTERN DISTRICT OF NEW YORK. 547 served eight days before the time specified therein for showing cause ; in other cases four days shall be sufficient. Mule 21. Such certified copy shall be filed, and the clerk shall endorse thereon an exoneretur, and shaU also enter in the register of bail the discharge of the bail. Mule 22. Whenever a bail-bond shall be taken on the arrest of a de- fendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of the bail, in the same manner, and with the Mke effect, as in the case of special bail, except that true copies of the bail-bond, proved to be such by the affidavit of the marshal or his deputy, or of a subscribing witness, shall be used instead of certified copies of the bail piece. Bute 23. In case a defendant who has procured special bail in a suit in this court shall be afterwards arrested in any other district, and committed to a jail, the use whereof has been ceded to the United States for the custody of prisoners, he may be sur- rendered at the request of his bail, and in pursuance of the act of Congress (in such case made and provided), in the manner provided in the foregoing rules for ordinary cases. Mule 24:. Bail sued upon their recognizances shall have ten days after the return of the process against them, to surrender their prin- cipal, but where a surrender is made after process has been issued and served, the bail shall pay the costs of the suit against them, as a condition of discontinuance. Mule 25. No common rule shall be entered by the attorney, but aU orders to which a party may be entitled, shall be entered by the clerk in the minutes of the court. Those orders to which a party is entitled of course, may be entered by the clerk with- 548 CIRCUIT COURT RULES out an allowance thereof, but all other orders must be allowed by the Judge before entry. Mule 26. The defendant having perfected his appearance may, at any time thereafter, give notice to the plaintiff to declare in twenty days after service thereof, or that judgment of discontinuance be entered against him. Bule 27. The notice to plead, to answer, or to join in demurrer shall be twenty days, but the plaintiff shall not be held to accept a plea in abatement after four days from the day of service of the notice and a copy of the declaration, and the notice to joia in demurrer to such plea shall be a rule of four days only. Bute 28. "When there shall have been judgment of respondeas ouster, on a demurrer to a plea in abatement, and the plaintiff shall have served the defendant with a notice of such judgment, the de- fendant shall plead within four days from the day of service of such notice, or his default in not pleading may be entered. Bule 29. The party in whose favor a default has been entered may, on any day afterwards, enter such judgment as he may be entitled to by reason of such default. In all actions sounding in dam- ages, after judgment for the plaintiff by default, or on demur- rur, the damages shall be assessed on a writ of inquiry, or by the clerk, as the case may be. Mule 30. Four days' notice of trial and of argument, and two days' notice of countermand shall be given in all cases. The like notice of assessment and of inquiry shall also be given, at any time after default entered, and for any day in the term or va- cation ; but no notice of assessment or of inquiry shall be re- quired, except when the defendant shall have appeared by attorney, or shall have given notice of his intention to appear EASTERN DISTRICT OF NEW YORK:. 549 and defend the action, and all other notices, not otherwise pro- vided for, shall be notices of two days. Rule 31. "Where notice of retainer shall be received before the de- fendant's default in not pleading has been entered, a copy of the declaration and notice of the rule to plead (unless they shall have been served on the defendant personally), shall be served on the attorney retained, and the rule to plead shaU be from the time of such service, and the service of all other pleadings, papers and notices, to be made after notice of re- tainer, shall be on the attorney retained. Bule 32. If the plaintiff shall make default in declaring, then the de- fendant, or if either party shall make default in answering, then the opposite party, may have the default entered by the clerk in the miuutes of the court ; but where the previous ser- vice of a notice, copy of a pleading, or of any other matter, shall be requisite, the default shall not be entered, unless an affi- davit of such service shall be filed, neither shall it be entered until special bail, if required, is put in, and, if excepted to, has justified. Mule 33. The defendant's default being duly entered, the plaintiff shall not be bound afterwards to accept a plea, unless the de- fendant,, as soon as he shall know that the default has been en- tered, shall file an affidavit of merits, and serve a copy, pay or tender the amount of the costs of default, plead issuably and consent to go to trial at the next term. Rule 34. The plaintiff may, at any time before the default for not re- plying shall be entered, if the plea shall be a special plea, or a plea in abatement, or within ten days after service of a copy of the plea, if it shall be the general issue, amend his declara- tion. After plea either party may, before default for not answering shall be entered, amend the pleading to be answered ; and where there shall be demurrer to a declaration or other 550 • CIRCUIT COURT RULES pleading, such pleading may be amended at any time before the default for not joining in demurrer shall be entered. The respective parties may amend under this rule of course, and without .costs, but shall not be entitled so to amend more than once. This rule shall be construed to allow amendments to be made by adding new counts or pleas, but not so as to allow of any amendment to a plea in abatement. Mule 35. In order so to amend, a copy of the amended pleading shall be filed, and an order to amend entered by the clerk, and the notice to plead or answer shall be from the day of the service of a copy of the pleading as amended and on file. Bule 36. A the defendant shall plead the general issue, the cause shall be at issue unless the plaintiff shall, within ten days thereafter, amend his declaration ; and, if either party shall, in pleading in any degree after the plea, tender an issue to the country, and, if the opposite party shall not demur to the pleading within ten days after service of a copy thereof, the cause shall, in each of these cases, be deemed at issue. Bule 37. Apphcations made by a party, in pursuance of the fifteenth section of the Judiciary Act, to require the opposite party to produce books and writings, must be made upon petition veri- fied by affidavit, setting forth plainly the facts and circum- stances upon which the application is founded, and in such petition, or in the affidavit thereunto subjoined, it must be stated that the books or writings, the production whereof is sought, are not in the possession or under the control of the petitioner, and that he is advised by his counsel, and verily be- lieves, that the production of the books or writings, mentioned in such petition, is necessary to enable him safely to proceed in the prosecution or defence (as the case may be), of his suit. Bule 38. The petition may be presented to the Judge of this court in EASTERN DISTRICT OF NEW YORK. 551 vacation, as well as to the court in term, and the order to be made thereon shall be, that the party against -whom the appU- cation is made, shall produce the books or writings mentioned in the petition, or show cause on the day and at the place to be therein specified, why the prayer of such petition should not be granted. Mule 39. A copy of such petition, together with a copy of the order made thereon, shall be served upon the party against whom the order is directed, a reasonable time, to be prescribed in the order, before the day therein named for showing cause. Mule 40. The order for discovery shall also specify the manner in which such books or writing shall be produced, and may re- quire the party either to produce and deposit the same with the clerk of this court, or at such other place as the Judge shall direct, or to dehver to the petitioner or his attorney, copies thereof duly verified by oath. Mule 41. Commissions to take the examination of witnesses resident without the district, or more than a hundred miles from the place of trial, may issue by order of the court in term, or of the Judge thereof in vacation, in the manner and subject to the regulations prescribed by the Supreme Court of the State of New York. The name, residence, and occupation of each wit- ness must be stated in the commission, unless the Judge, upon a proper application, shall otherwise order. Mule 42. When a cause is noticed for trial or argument, a notice thereof, with a note of the issue and of the pleadings and the attorney's name, shall be delivered on or before the Monday preceding the term, to the clerk, who shall, as early as the fol- lowing day, have the calendar of causes to be tried and argued, properly made up, arranging them according to the dates of their issues, and separating those for trial from those for argu- 652 CIRCUIT COURT RULES ment, and no cause shall be put upon the calendar without the special order of the court, unless the note of issue shall be fur- nished as hereby required. Mule 43. "Whenever it shall be intended to move to set aside a verdict, except for irregularity, a case shall be prepared by the party intending to make the motion, and a copy thereof shall be served within ten days after the trial, on the opposite party, who may, within ten days thereafter, prepare amendments thereto, and serve a copy on the party who prepared the case, who may then, within four days thereafter, serve the opposite party with notice to appear within a convenient time before the Judge to have the case and amendments settled. The Judge shall thereupon correct and settle the case as he shall deem to consist with the facts. The time for settling the case must be specified in the notice, and shall be not less than four, nor more than twenty, days after service of such notice. Mule 44. If the party omit to make a case within the time above limited, he shall be deemed to have waived his right thereto, and when a case is made, and the parties shall omit, within the several times above limited, the one party to propose amend- ments, and the other to notify an appearance before the Judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amend- ments as proposed. If judgment has been rendered upon a ver- dict, the party intending to move for a new trial shah, give four days' notice in writing to the opposite party of any motion to stay execution thereon, and also of the petition intended to be filed pursuant to the 18th Section of the Act of September 24th, 1789, unless a shorter time be allowed by the court or the Judge. Mule 45. General verdicts may be taken subject to the opinion of the court, on a case to be made by the party in whose favor the verdict is taken, containing aU the evidence given at the trial. Such case shall be prepared and settled in the manner pre- EASTERN DISTRICT OF NEW YORK. 553 scribed in the foregoing rules, and may reserve the right to either party to turn the same into a bill of exceptions, and with liberty to the court to enter a verdict for the defendants. Rule 46. In cases of exceptions taken, demurrer to evidence, or special verdict, the party shall not, at the trial, be required to prepare his bill of exceptions, demurrer, statement of evidence, or spe- cial case, or to put in form the special verdict, but shall merely reduce such exceptions to writing, or make a minute of the demurrer to the evidence, and of the facts found specially by the jury, as the case may happen to be) and deliver it to the Judge, or the Judge himself will note the points as he may direct, and the bill, demurrer, or special verdict, shall after- wards be drawn up, amended and settled, within such times, and under the same regulations, as are made with respect to cases. Hule 47. A bill of exceptions may, before judgment, be used instead of a case on motion for a new trial, and notice of such motion, together with an order to stay proceedings, and a copy of such bill of exceptions, shall operate to stay all further proceedings until the decision of the court ; Provided, that proceedings shall not be longer stayed than if a case had been made. Mule 48. AU questions for argument, and all motions, shall be brought before the court on motion for that purpose, and if no one shall appear to oppose, the party making the motion shall be entitled to the rule or judgment moved for, on proof of due service of the notice and papers required to be served by him. Btile 49. The date of issue shall be, in cases of motion in arrest of judg- ment, of special verdict, case reserved at the trial, motion to set aside verdict or nonsuit, bill of exceptions or demurrer to evidence, the day on which the trial took place, and in case of demurrer to pleadings, the day on which the joinder in de- murrer was received. 554 CIRCUIT COURT RULES Mtile 50. The party bringing on the argument shall, at the opening thereof, furnish the Judge with a copy of the case, demurrer to evidence, special verdict, or, where the motion is for a new trial upon newly discovered evidence, with copies of the affidavits and other papers, if any, on which the motion is founded, or, if the motion be in arrest of judgment, with copies of the plead- ings, or so much thereof as may be necessary, properly folioed so as to correspond. A note of the points or questions intended to be raised by each of the respective parties shall also at the same time be furnished to the Judge and to the opposite party. If such papers shall be printed, the expenses of printing may be taxed as disbursements in the cause. Rule 51. "Whenever an order to stay proceedings shall be granted, to enable the party to make a special motion, service of such order, with copies of the affidavits upon which it is granted, and notice of the motion, shall operate as a stay of proceedings, until the further order of the court. But, if the party shall neglect to bring 6n the motion to be heard according to his notice, the proceedings shall not be longer stayed, and he shall be liable to pay the costs of attending to resist the motion. Mule 52. "So private agreement or consent between the parties, or their attorneys, in respect to the proceedings in a cause, shall be bind- ing, unless the same shall be reduced to the form of an order by consent, and entered by the clerk in the book of minutes, or, unless the evidence thereof shall be in writing, subscribed by the party or his attorney against whom the same shall be alleged. Rule 53. ."Nfotices of argument shall be accompanied with copies of the case, bill of exceptions, and papers on which the argument is to be made, duly folioed to correspond with those intended for the court, and if not, the cause may be stricken from the calen- dar. EASTERN DISTEICT OF NEW YORK. 555 Rtde 34. When a party shall, before motion, offer to comply fully with the terms of the order which it is the practice of the court upon motion in like cases to make, and shall also offer to pay the costs, if any, on the same being thereupon taxed and demanded, he shall be entitled to costs from the opposite party, if the motion shall be afterwards made. Rule 55. In aU cases where a motion shall be granted on payment of costs, or on the performance of any condition, or Avhere the order shall require such payment or performance, the party whose duty it is to comply therewith shall have ten days for that purpose, unless otherwise directed in the order. And where, by the terms of any order, an act is directed to be done instant&r, it shall be understood to require such act to be per- formed within twenty-four hours, Sundays and legal hohdays excluded. Mvle 56. Whenever the plaintiff shall have neglected to bring his cause to trial, according to the practice of the court, he may, if he have not before stipulated, tender a stipulation and offer to pay the costs to which the defendant, is entitled up to that time, and if the defendant shall afterwards move for judgment, as in case of nonsuit, he shall pay costs to the plaintiEE — except where the plaintiff shall, after demand, have refused to pay the costs as taxed. Mule 57. When on motion for judgment, as in case of nonsuit, the plaintiff shall be permitted to stipulate, he shall, within ten days thereafter, tender a stipulation to the defendant, and shall pay costs ordered to be paid thereon, and, if the stipulation be not tendered, and the costs paid within that time, the defendant, on filing an affidavit of such omission of tender and non-payment, may, after the expiration of ten days, enter judgment as in case of nonsuit. Rule 58. In cases where the plaintiff is a non-resident of the State, at 566 CIRCUIT COURT RULES the commencement of the action, or shaR become such during the pendency thereof, the clerk, upon filing an affidavit of the fact, may enter an order of course in the minutes of the court, that the plaintiff file security for costs within four days from notice of such order, and that aU proceedings on his part be stayed until such security be filed, or such order be vacated. The security may be either by the deposit of one hundred dollars with the clerli, or by the execution and filing of a bond with sufficient security to be approved by the clerk, conditioned for the payment of the costs of suit not exceeding one hundred dollars, and until such order be comphed with, the attorney in the suit shall be liable for costs not exceeding that sum. Rule 59. The notice to return process shall require that the same be returned within five days after service of such notice, and on fihng an affidavit of the due service thereof, and of default, the clerk may enter an order in the minutes of the court that the party show cause why an attachment should not issue. Rule 60. The day on which any notice, order, pleading, or paper is served shall be excluded in the computation of the time for complying with the exigency thereof, and the day on which compliance therewith is required shall be included, except when the same falls upon Sunday, or upon any day set apart by the laws of this State, or of Congress, as a hoUday, in which cases the party shall have the whole of the next day thereafter to comply therewith. Rule 61. All moneys paid into court, in causes pending therein, shall be forthwith deposited by the clerk in the name, and to the credit of the court, in such Bank or Trust Company as shall be designated for that purpose by the Judge. No moneys so deposited shall be drawn except upon the order of the Judge, signed by him, stating therein the title of the suit on account of which it is drawn, accompanying the check or draft duly signed by the clerk ; the order aforesaid shall be entered of record by the cl^rk ; any interest that may be allowed upon EASTERN DISTRICT OP NEW YORK. 557 such deposits shall be drawn and paid with the principal to the parties entitled to receive such principal. Bule 62. All sums collected or received on forfeited recognizances, and all fines imposed and collected, shall be paid into court, and be accounted for by the clerk in his account vnth the United States Treasury. Bule 63. In cases wherein the Marshal of the District is a party in interest, process against him shall be directed and delivered to the sheriff of the County of Kings, for the time being, who is hereby, in pursuance of the statute in such case made and pro- vided, appointed to serve and execute the same. Mule 64. Every order to show cause why an attachment shall not issue must state the true cause or ground upon which the same is made, and require the party to appear before the Judge, in court, or at chambers, on the return day thereof, and show cause, which shall be done by affidavits, without interroga- tories, and if he fails to purge himself of every default or mis- feasance specified in the order to the satisfaction of the Judge, an attachment may issue, or he may be forthwith committed for contempt, or otherwise, as to the Judge may seem proper. Mule 63. In all cases not provided for by these rules, the rules for the time being of the District Court of the United States for this District, so far as the same may be apphcable, shall regulate the practice of this court. Mule 66. Judgments by default may be entered inamediately after such default is entered, in vacation as well as in term. Mule 67. Upon filing a satisfaction piece duly executed and acknowl- edged by the party to the action, or by the District Attorney, 558 CmcmT COUET RULES on behalf of the United States, or upon a return of the execu- tion duly endorsed by the marshal satisfied, the clerk shall cancel and satisfy the judgment of record ; satisfaction may also be signed and acknowledged by the attorney of record, at any time within two years from the entry of such judgment. Bule 68. ' The marshal, his deputies, and all persons concerned ia the service of any process of this court, are respectively prohibited from becoming bail upon the arrest in any suit dependiag in this court, and also from becoming special bail in any suit, un- less for the purpose of surrendering the defendant, in which case the surrender shall be made within ten days after such special bail shall have been put in. Bule 69. The clerk, or in case of his absence or inabihty, the deputy clerk, may tax bills of costs, and sign judgment records. Costs shall be taxed upon two days' notice of taxation to the opposite party. Appeals from such taxation may be made instcmter to the Judge, but no costs shall be allowed on such appeal. Bule to. The following pleadings may be used in all civil actions at law in this court, namely, the declaration, plea, demurrer, rep- Mcation ; and the provisions made applicable to such or corre- sponding pleadings by the Revised Statutes of this State, so far as the same are not inconsistent with the laws of the United States, are adopted as rules applicable to the above-mentioned pleadings in this court. Bule 71. Upon payment of money into court (except with a plea of tender), the plaintiff, if he accept the same, shall be entitled to costs to be taxed, and unless the defendant pay such costs within two days after they are taxed and notice thereof, the plaintiff, may take the money out of court, and proceed in the cause, and he shall be entitled to a judgment for the amount so taken out, with costs, but the execution thereon shall be endorsed, " levy the cost of suit," and when money is paid into EASTERN DISTRICT OF NEW YORK. 559 court, the amount shall not be struck out of the declaration or verdict, but the plaintiff shall deduct the sum from his execu- tion. Mule 72. In the sale of real estate under execution, issuing out of this court, the marshal shall conform his proceedings to the direc- tions of the law of this State, for the time being, in relation to the sale of real estate in execution, and in addition to the cer- tificate filed with the clerk of the county where the lands sold are situated, he shall file a copy thereof with the clerk of this court. Rule 73. Eedemption of lands sold .under execution out of this court, so far as the same may be allowed by law, may be made in the same manner, and with like effect, and by the same persons as prescribed by the law of this State. And the sales by the marshal shall be made subject to such redemption. The foregoing Rules, as amended and revised, are adopted as the rules of the Circuit Court of the United States for the Eastern District of New York, in cases at law. Dated May 34th, 1865. ADDITIONAL EULES. September 33d, 1877. In actions at law a consent to a reference of the whole issue must likewise contain a provision that judgment shall not be entered, until after ten days' notice of the fifing of the report of the referee, and of the judgment proposed to be entered thereon. After a reference at any time before the entry of judgment, either party may move for a new trial, upon a case or exceptions, and if such motion be denied, the decision of the motion, and the questions' involved in it, may be entered on the record, as if it had been a ruling made upon a trial by the Judge without a jury, and excepted to in like manner. When a motion for a new trial is intended to be made, the Court may extend the time for entering] judgment upon the application of the moving party, and may stay aU other proceedings until the decision of the motion. 560 CIRCUIT COURT RULES •OCTOBEE 16, 1878. In pursuance of the provisions of section 915 of an act en- titled, " An Act to revise and consolidate the statutes of the United States, in force on the first day of December, Anno Domini one thousand eight hundred and seventy-three," ap- proved June 22d, 1874, it is ordered, that the provisions of the Act of the Legislature of the State of JSTew Tork, entitled " An Act relating to Courts, oiflcers of justice, and civil pro- ceedings," passed June 2d, 1876, and the provisions of any Act heretofore passed by said Legislature amending said last named Act, so far as such provisions relate to a remedy by attachment against the property of a defendant, are hereby adopted by this Court, as rules of this Court, in respect to a' remedy by at- tachment against the property of a defendant in a common lavr cause in this Court. Dbcbmbeb nth, 1878. Ordered, That the following rule shall take effect immedi- ately. The Clerk of the Court shall cause to be made up calendars, as follows : For Appellate Causes, viz., appeals in Admiralty, "Writs of Error, appeals in Equity cases, appeals in Bankruptcy and Re- views in Bankruptcy. For Original Causes, in two divisions, viz. : 1. Equity cases (embracing pleas, demurrers, cases to be heard on pleadings and proofs, and oases to be heard on plead- ings alone), and issues of law in suits at law upon the pleadings or upon special verdict. 2. Issues of fact triable by a jury, to which the United States is a party, including customs and revenue suits against collect- ors, and issues of fact triable by jury between private parties. The first of each of these calendars shall be made up for the January Term of 1879, and the second for the October Term of 1879, and thereafter each shall continue to be the perma- nent calendar for Appellate Causes and for Original Causes, subject to the addition of new cases, until the Court shall order a new calendar to be made. The causes remaining on each calendar shall be re-numbered for every October Term. Only one note of issue to the clerk, and one notice of trial EASTERN DISTRICT OP NEW YORK. 561 or hearing to the opposite party, shall be necessary for any permanent calendar. The note of issue, to be filed with the clerk not less than eight days before any term of Court, shall specify the proper date in accordance with which the causes shall be arranged and numbered upon the calendars by the clerk, as follows : For all causes upon the Appellate calendar, — the date of filing the return in this Court ; For pleas and demurrers in equity cases set down by order for hearing, — the date of such order ; For pleas replied to, and cases to be heard on pleadings and proofs, and cases to be heard on pleadings alone, — ^the date of fihng the last pleading ; For issues at law in suits at law upon the pleadings, — the date of the issue ; For special verdicts, — the dates thereof ; For issues of fact triable by a jury, — ^the date of the issue. When the calendars are so made, and the causes numbered, each cause shall remain thereon, and stand for trial or hearing, until it is reached and called, when it may be moved by either party. If it be passed upon the regular call — no postponement being granted by the Court — ^it wOl go to the foot of the cal- endar. If it be a second time thus passed, it will be marked off the calendar. It may afterwards be re-noticed, and a new note of issue filed, stating the date at which it was last passed, as of which date it may be again placed on the calendar. Motions for a new trial, on cases or exceptions, shall not be put on any calendar, but must be made before the Judge who tried the cause, at such time and place as'he may direct. Application to have any cause on the first division of the calendar of Original Causes heard before the District Judge, may be made to such Judge at any time by either party upon notice ; and the cause will be heard at such time as he may direct. NoTBMBEK 23a, 1879. In pursuance of the provisions of the second section of the Act of Congress of the United States, entitled "An Act mak- ing appropriations for certain judicial expenses of the Grovern- ment for the fiscal year ending June 30th, 1880, and for other 36 562 CIRCUIT COURT RULES purposes," approved June 30th, 1879, William H. Greene, of the City of Brooklyn, county of Kings, State of New York, is hereby appointed a commissioner to discharge the duties prescribed by that Act, in this Court, and the said Commis- sioner and the Clerk of this Court shall, as soon as practicable after the entry of this order, place in a box the names of seven hundred and fifty persons to serve as grand jurors and as petit jurors in this Court, each on a separate shp, each of which persons shall possess the qualifications prescribed in section 800 of the Revised Statutes of the United States, the said Clerk and the said Commissioner each placing one name in said box alternately, commencing with said Clerk, without reference to party aifiliations, until the said number of seven hundred and fifty names shall have been placed therein. All jurors, grand and petit, to serve in this Court, shall be publicly drawn from the said box, and from the names so placed therein, and, at the time of the drawing of any juror, the said box shall contain the names of not less than three hundred persons so placed therein. The said Commissioner and the said Clerk shall, from time to time as may be necessary, place in said box, in manner aforesaid, the names of additional persons, or the same persons, or both, possessing said qualifications, so that the num- ber of said names shall not, when any juror is drawn, be less than three hundred. RULES OP THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KEW YORK, ON APPEALS AND IN EQUITY. Jote 7th, 1865. It is ordered by the Court, that the Rules in Equity and oA Appeal of the Circuit Court of the United States for the South- ern District of New York, be, and the same are hereby, adopted as the Rules in Equity and on Appeal in this Court as fol- lows: RULES ON APPEALS. Rule 1. An appeal can be taken from no other than final decrees. Rtde 2. A decree shall be deemed final, when in a state for execution without further action of the Court below. Mule 3. Every appeal to the Circuit Court, in a cause of Admiralty and maritime jurisdiction, shall be in writing, signed by the party, or his proctor, and delivered to the clerk of the District Court from the decree of which the appeal shall be made ; and it shall be returned to the Court, with the necessary documents 564 CIRCUIT COURT RULES and proceedings, within twenty days, and by the first day of the next term after the dehvery thereof to the clerk, unless a longer time is allowed by the judge. Rule 4:, The appeal shall briefly state the prayers, or allegations, of the parties to the suit, in the District Court, the proceedings in that Court, and the decree, with the time of rendering the same. It shall also state whether it is intended, on the appeal, to make new allegations, to pray different relief, or to seek a new decision on the facts, and the appellants shall be con- cluded in this behalf, by the appeal filed. Hule 5. A copy of the appeal shall, at the same time, be served on the proctor of the appellees in the Court below. And an affi- davit of the due service of such copy shall be filed with the appeal. And no process, or order, shall be necessary to bring the appellees into this Court. Mule 6. If, in the appeal, it shall not be intended to make new alle- gations, to pray different relief, nor to seek a new decision of the facts, then the pleadings, evidence, and decree, in the Dis- trict Court, where the stipulations in the cause, and the clerk's account of the funds in Court, in the cause, if any, shall be cer- tified to this Court with the appeal. But, in all cases, the statement of facts agreed between the parties, or settled by the judge of the District Court, and on file, according to the prac- tice' of that court, may be certified in the place of the evidence at large. Mule 7. If it shall be intended to seek only a new decision of the facts, then the pleadings of the parties, with the stipulations in the cause, and the clerk's account of the funds in Court, if any, and the exhibits and depositions in the cause, shall be certified to this Court with the appeal, but the proofs need not be certi- fied, unless specially required by the appellant or ordered by this Court. EASTERN DISTRICT OF NEW YORK. 565 Rule 8. If it shall be intended to make new allegations, or to seek new relief, then the return to the petition of appeal shall only contain copies of the process issued upon the libel, and of the return thereof, the account of the clerk of the funds in Court, in the cause, the depositions and exhibits, and the stipulations in the cause. Rule 9. The appellant shall cause the notice of appeal, and an affi- davit of the service of a copy thereof, with the documents re- quired to be returned with the appeal, to be filed in this Court within four days after the return is completed by the clerk, otherwise the appeal shall not be received, and shall be deemed deserted ; and a certificate in this behalf shall be made to the Court from which the appeal is made, which may proceed to execution of its decree. Rtile 10. This Court shall be deemed possessed of the cause from the time of filing the appeal, with the documents required to be returned therewith, in this Court. Rule 11. If the appellee does not enter his appearance within the two first days in term succeeding the filing the appeal and proceed- ings, and affidavit of service of notice thereof on him, the ap- pellant may proceed ex pa/rte in the cause, and have such de- cree as the nature of the case may demand. Rule 12. No answer, or issue, need be given to the appeal. Each party may notice the cause for hearing, for the term to which the appeal is made, (if made in term time,) or, if made in vaca- tion, for the term next succeeding. Rule 13. A writ of mhibition will be awarded, at the instance of the appellant, when circumstances require, to stay proceedings in 566 CIRCUIT COURT RULES the Court below, notice of such application having been pre- viously given. IRule 14. A mandamus may, in like manner, be obtained, to compel a return of the appeal, when unreasonably delayed by the clerk, or Court below. Rule 15. If the appellee shall have any cause to show why new alle- gations or proofs shall not be offered, or new. rehef prayed, on the appeal, he shall give four days' notice thereof, and serve a copy of the affidavit containing the cause intended to be shown ; and such cause shall be shown within the two first days of the term ; otherwise, the appeal shall be allowed ac- cording to its term. Rule 16. If new allegations are to be made, or different rehef prayed, in this Court, then the libellant in the District Court shall ex- hibit in this Court a Ubel, on oath, within ten days, to which the adverse party shall, in twenty days, answer on oath, sub- ject, in each case, to the extension of those periods, by order of either of the judges of this Court ; and, on a default in this behalf, the Court wiU, on motion, without notice, make such order for finally disposing of the cause, on the default of the party, as the nature of the case may require. Rule 17. After the hbel and answer, whether newly filed in this Court, or certified from the District Court, shall be filed in this Court, the cause shall be proceeded in to a hearing, as in other cases. But, where interrogatories have been answered in the District Court, or written testimony taken, the same may be used iu this Court. Rule 18. The appellee may move this Court to have the decree made in the District Court carried into effect, subject to the judg- ment of this Court, or of the Supreme Court on appeal, upon giving his own stipulation to abide and perform the decree of such Courts ; and this Court will make such order, unless the EASTEEN DISTEICT OF NEW YORK. 567 appellant shall give security, by the stipulation of himself and competent sureties, for payment of all damages and costs, on the appeal in this Court, and in the Supreme Court, in such sums as this Court shall direct. Rule 19. In cases where an appeal shall he from the decree of this Court, the final decree shall not be executed until ten days shall have elapsed from the pronouncing, or fihng, of the de- cision of the Court. Rule 20. When appeal shall be made from the decree of this Court, the appellant shall, within four days from the pronouncing or fihng of such decision, unless further time is allowed by the judge, make, and serve on the adverse party, a statement of the testimony on the trial, excepting such evidence as was in writing, which shall be properly referred to therein. The party on whom the same shall be served shall, in four days after such service, propose amendments thereto, or the statement shall be deemed acquiesced in, and the statement and amendments, un- less acquiesced in, shall be submitted by the appellant to the judge in four days afterwards for settlement ; and the same, when settled, shall be engrossed by the clerk, and, with the written evidence, shall be deemed the proofs on which the de- cree is made, and shall operate as a stay of further proceedings in this Court. Rule 21. In aU cases, in civil causes of Admiralty and maritime juris- diction, not expressly provided for by the foregoing Eules of this Court, the Eules of Practice of the District Court for the Southern JDistrict of New York, being in force at the time, and whether estabhshed before or after these Eules, (not being in- consistent with these Eules,) are adopted, and are to be received as Eules of Practice in this Court. 568 CIRCUIT COURT RULES ADDITIONAL EULES. [The following regulations in regard to costs and fees were adopted in the Circuit and District Courts of the United States for the Southern District of New York, on the 38th of May, 1859.] Costs taxable to Commissioneks appointed and acting on eef- BEENOES, UNDER RuLB 44 OF THE KuLBS OF PeACTICB FOE THE CoUETS OF THE UnITED StATBS IN AdMIEALTY AND MARITIME jueisdiction, peesceibed by the supeemb couet of the United States at the Janitaey Teem, 1845, and undee Rules of Peactice in Admiealty, adopted in Januaey Teem, 1839, BY the Disteict Couet of the United States foe the Southern District of New Yoek. It being made a question of taxation, what fees or compensa- tion may be lawfully allowed to said oificers, for services rendered by them, under their appointments by authority of the above Rules of Court ; and it appearing, that the Act of Congress entitled, " An Act to regulate the fees and costs to be allowed Clerks, Marshals, and Attorneys of the Circuit and District Courts of the United States, and for other purposes," ap- proved February 26th, 1853, (10 U. S. Stat, at Large, 161,) makes no provision for compensating Commissioners appointed by the Courts under the aforesaid Rules, for their services ren- dered in aid of the administration of justice, in the matters and cases therein specified ; and we being of opinion, that these special officers of the Court do not come strictly within the Act, and that, upon the usages and doctrines of Courts of the United States, officers called upon to render services in those Courts, according to their rules and modes of practice, for which no specific fees or costs are appointed by statute law, will be awarded compensation therefor by the Courts respect- ively in which the services are performed, corresponding in amount to that allowed by law in the State, for similar ser- vices rendered by State officers, in a like capacity, particu- larly in Chancery procedures, (1 Blatchf. C. C. R., 652 ; Hath- cmay v. Roach, 2 Woodb. & M., 63 ;) and it further appearing to us, that such is an equitable and sound rule to be applied in relation to this class of officers, especially as the above cited statute law of costs contains no prohibition of compensation EASTERN DISTRICT OP NEW YORK. 569 to them by authority of the Courts otherwise than through a positive appointment by statutory law : We are, therefore, of opinion, that such Commissioners are entitled to have taxed in their behalf, by the proper taxing officers, the rate of fees or costs allowable in the Court of Chancery of the State of New York to Masters in Chancery of that Court, for services therein, performed by them, on the first of September, 1845, being the time the Rule of Practice aforesaid adopted by the Supreme Court went into operation, unless in particulars in which the rate of allowance then prevailing in the State Court shall have been rescinded or modified by subsequent regula- tions made by orders of the Courts of the United States ; and we designate as proper subjects of taxation, in cases where those services have been actually performed by such Commis- sioners, in Admiralty and Maritime causes referred to them pursuant to the aforesaid Rules, the following items, embraced in the Rules and Orders of the Court of Chancery of the State of New York, revised and estabhshed by Chancellor Walworth, in 1844, under the head of " Master's Fees," (pages 190, 191,) to wit : Cormnissioners' Costs. For signing every summons for a witness or party to attend a reference, twel/oe cents. For attending at the time and place, and adjourning the same at request, or upon reasonable cause, one dollar. Attendance and hearing every argument upon any matter referred to him, when litigated, three dollars ; and when he proceeds ex parte, one dolla/r. Attending and settling his report after argument, if both parties attend and litigate the same, three dolla/rs ; if hS pro- ceeds ex pa/rte, one dollar. For writing out and certifying the testimony of witnesses taken orally before hun on the hearing, to file with his report, for every folio of 100 words, twenty cents. Copies of the same, furnished, on request, to either party, for each folio, ten cents. Drawing every report in pursuance of an order of reference to him, (exclusive o£ schedules and the written proofs,) for every folio, imeni/y cents. 570 CIRCUIT COURT RUT.ES Drawing all schedules to be annexed to reports, for every folio, ten cents. Copies of reports and schedules, to be filed, for every folio, ten cents. Copies of reports and schedules and all other proceedings, furnished by him to the parties, upon request, for every folio, six cents. Marking every exhibit produced before him on a reference, ■with the title of the cause, and signing the same, six cents. May 28th, 1859. S. Nelsoit, Saml. R. Betts. OcTOBBK 15th, 1873. On the hearing of appeals in Admiralty, the appellant shall furnish to the Court a printed copy of the Apostles, certified by the clerk of this Court, unless, by special order of the Court, obtained before the hearing, such printing, or some part thereof, shall be dispensed with. Such portion of the Apostles as may have been printed for the use of the District Judge, may be furnished without reprinting. A printed copy of whatever is printed and furnished under the rule shaU be served on the proctor for the appellee at least eight days before the hearing. November 21st, 1873. Hereafter, in all cases brought to this Court, from the Dis- trict Court, by writ of error, or appeal, or petition of review, the clerk of the District Court shaU. annex to, and transmit with the record or proceedings of that Court, a copy of any opinion or opinions filed in that Court upon the decision of any mattfc contained in such record or proceedings, and, if no such opinion has been filed, such clerk shall so certify ; and the said opinions, or such certificate, shall be considered as filed in the case in this Court, and a copy thereof shall be transmitted with the record to the Supreme Court, in the cases provided for by the amendment to the eighth rule of that Court, pro- mulgated April 28th, 1873. October 19th, 1875. For the purpose of carrying out more efficiently the pro- visions of the recent act of Congress, after it shall take effect, EASTERN DISTRICT OP NEW YORK. 571 in regard to the finding of facts, and of conclusions of law by the Circuit Court, in cases in Admiralty, on appeal, each party to an appeal shall furnish to the Court, at the beginning of the hearing, and shall serve on the proctor for each of the other parties to the appeal, five days before the hearing, a printed finding of facts and conclusions of law, as proposed, printed on writing paper on only one side. If this be not done, the party in default will not be heard on the appeal, and, if the party in default be the appellant, his appeal will be dismissed. Dbcbmbek 11th, 1878. See Common Law Kule of the above date, printed at page 560. Eule as to printing. See Equity Rule, November 8th, 1881, printed at page 575. KEVIEW m BANKEUPTCY. January 22d, 1877. 1. Notice of an intended application to the Circuit Court for the exercise of the general superintendence and jurisdiction conferred by section 4986 of the Revised Statutes of the United States, must be given within ten days after the entry in the District Court of the order complained of, by filing such notice in the clerk's ofiice of that Court, and serving the same on the adverse party. The application must be made within thirty days after the entry of such order, or within such further time as may be allowed by an order of the District Judge, filed within said thirty days in the clerk's office of that Court. An application cannot be made at a later period. 2. Except where special provision is otherwise made by stat- ute, or where the aggrieved party proceeds by bill in equity, the application must be by petition, filed in the office of the clerk of the Circuit Court, and verified by oath. The petition must designate the order complained of, and set forth the facts of the case, so far as may be necessary to show the errors, whether of fact or of law, alleged to have occurred in the Dis- trict Court, and must point out such errors specifically, and the relief sought therefor. 3. The petitioner must, within five days after filing the peti- 572 CIRCUIT COURT RULES tion, procure from the clerk of the Circuit Court a certificate of the filing of such petition, designating the order therein complained of, by its date, and file the same in the office of the clerk of the District Court. 4. Within ten days after fifing the petition, the petitioner must serve a copy thereof on the adverse party, who may file an answer thereto, verified by oath, within ten days after such service, and must, in that case, serve a copy of the answer on the petitioner within the further period of ten days. The petitioner may, within ten days thereafter, file a reply to the answer, and serve a copy thereof on the adverse party. The clerk may once extend either of these periods, by order made before its expiration. 5. The application will be heard upon these papers only, unless the Court shall, of its own motion, otherwise direct. As soon as the case is disposed of, the clerk of the Circuit Court must certify the order to the District Court. EQUITY RULES. Utile 1. No motion for an injunction (except to stay waste) shaU be heard, unless a copy of the bill, and of the depositions to be offered in its support, shaU be served on the adverse party, or his attorney, at least four days before motion made. JRvle 2. The defendant may show cause against the allowance of an injunction, either by plea, answer, or demurrer to the bill, or by parol exception to its legal sufficiency, or by deposition, disproving the equity on which the motion is founded. Rule 3. Suppletory, or supporting, proofs may, at the discretion of the Court, or judge, be offered by the complainant, to rebut the cause shown by the defendant ; but the reception of such additional proofs is not to permit the introduction of further proofs in opposition thereto, by the defendant, previous to the final hearing upon the merits. EASTERN DISTRICT OP NEW YORK. 573 Rule 4. If a general commission is not issued, pursuant to the 25th Eule of the Supreme Court, within ten days after replication filed, either party may give notice of the examination of wit- nesses before the standing examiner of this Court ; and three months from the time of the replication shall be allowed the parties for taking their depositions before the examiner. Mule 5. "When no proceedings are taken by either party within thirty days after replication, for the examination of witnesses out of Court, either party may set the cause down for hearing upon the pleadings. Mule 6. "Whenever it is intended to offer oral proof in open Court, the party proposing it shall give due notice to the opposite party of the names of the witnesses, the matters to which they are to be examined, and of the reasons upon which he wiU move for an examination. Rule 7. AU special motions, in reference to matters of practice, may be made in ppen court, or before a judge at chambers. Mule 8. No rule, or order, need be entered for the publication of tes- timony ; but, so soon as the commissioner or examiner shall have completed the testimony offered, the party taking it shall cause the deposition to be filed in the clerk's office, and forth- with give notice thereof to the adverse party. Either party may thereupon enter a rule, of course, that the clerk open the commission, or deposition, and file the same. Mule 9. "Within four days after the clerk shall have prepared copies of the depositions, (provided the same were apphed for in two days after the notice of the filing thereof,) the adverse party may give notice of exception, before a judge at chambers, to 574 CIRCUIT COURT RULES the proofs or any part of them, on account of any irregularity in taking the depositions, or executing the commissions ; and, if no such notice of exception is given, all objections to the form, or manner, in which the proofs were taken, shall be deemed waived. JRule 10. "When a motion for rehearing is made during the term at which a decree has been rendered, the enrolling or recording of such decree shall be suspended, until the final disposition of such motion by the Court. Hule 11. A master, or examiner, in taking proofs, or in matters of reference, shall not, without the written consent of aU parties, or the authorization of one of the judges, adjourn proceedings pending before him, for a longer time than ten days. Rule 12. April 17th, 1845. Masters and Examiners in Chancery, designated and ap- pointed by this Court to act as such, on the Equity side thereof, shall, ex officio, be Commissioners to. take affidavits and ac- knowledgments of bail, in civil causes depending in the Courts of the United States, and to take bail within the Eastern Dis- trict of New York, pursuant to the provisions of the several Acts of Congress in that behalf ; and every such Master in Chancery for the time being is hereby designated and ap- pointed, ex officio, Commissioner as aforesaid. Rule IS. Hereafter, on motions for an injunction, because of the in- fringement of a patent right, the complainant shall not be permitted to give evidence to rebut the cause shown by the defendant against the allowance thereof, other than to a denial that the defendant uses the discovery or invention claimed by the complainant, or to a claim by the defendant that he acts under an assignment or hcense from the patentee ; and, on mo- tions for injunctions to stay waste, only to a defence set up jus- tifying the waste ; and, in neither case shall such suppletory or EASTERN DISTRICT OF NEW YORK. 575 supporting proofs be received, unless the Court, or one of the Judges, on satisfactory cause shown, shall, by order previously made, allow the same to be given : and so much of Rule 3, of the standing Eules in Equity of this Court, adopted June 7th, 1865, as may be inconsistent herewith, is repealed. Motions for injunctions shall be brought on by the complain- ant on the day named in the notice, if the Court is then in session, and, in default thereof, the defendant may move that the notice be discharged for the term, with costs, unless further time is given, or the hearing is delayed by order of the Court. Rule 14. No action, real or personal, shall abate by the death, mar- riage, or other disability of either party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the Court, on motion, may allow the cause to be continued by or against the successor in interest, on the usual notice to the party interested, or such other notice as may be directed by the Court. November 8th, 1881. The rules of the Circuit Court for the Southern District of New York in respect to printing papers for the use of the Court, and to the service and furnishing of copies thereof, and to the allowance of the disbursements for such printing in the costs, shall be deemed to be the rules of this Court, in cases not already provided for by the rules of this Court. IX. RULES. EASTERN DISTEICT OF NEW YOEK. DISTRICT COURT. 37 JUDGE AND OFFICEKS DISTEICT COURT OF THE UNITED STATES EASTERN DISTRICT OF NEW YORK. Charles L. Benedict — District Judge. No. 120 Pierrepont Street, Brooklyn, Kings Co., N. T. Asa W. Tennet — United States Attorney. Brooklyn, Kings Co., N. Y. United States Attorney's Office, No. 168 Montague Street, Brooklyn, Kings Co., N. Y. Benjamin Lincoln Benedict — Clerk District Court. Brooklyn, Kings Co., N. Y. Clerk's Office at No. 168 Montague Street, Brooklyn, Kings Co., N. T. Augustus C. Tate — United States Marshal. No. 105 St. Felix Street, Brooklyn, Kings Co., N. Y. Marshal's Office at No. 170 Montague Street, Brooklyn, Kings Co., N.T. Court Rooms at Nos. 168, 170 Montague Street, Brooklyn, Kings Co,, N. Y. District Court held at the Court Rooms in the City of Brooklyn, N. T., on the first "Wednesday in every month. For Federal Statutes especially relating to this Court, See Respecting the Pkactick in the District Courts generally, their power to make Rules, etc., pp. 353 to 855. Eespecting Fees, etc., pp. 357 to 372. Respecting the Jurisdiction of this Court, p. 375. Respecting Sessions, etc., p. 379 and p. 386. RULES OP THE DISTRICT COURT OF THE UNITED STATES POR THE EASTERN DISTRICT OF NEW YORK, CASES AT LAW. Utile 1, Proctors of any circuit or district court of the United States, attorneys of the Supreme Court of the State of JSTew York, may on motion in open court, or on presentation of their hcenses to the clerk in vacation, be admitted attorneys and proctors of this, court, and counsellors and advocates of any circuit or district court, and counsellors of the said Supreme Court may, in like manner, be admitted counsellors and advo- cates of this court of course, on taking and subscribing the oath or affirmation prescribed by the Act of Congress. Rule 2. All notices shall be in virriting, and shall be served on the at- torney in the cause. Where a party, vrho is also an attorney of this court, shall prosecute or defend in person, all notices and other papers shall be served on him in hke manner, except where the proceeding is by biU, in which case the same shall be personally served ; and where the object is to bring a party into contempt for disobeying any rule or order of court, the service shall be personal unless otherwise ordered by the court. 580 DISTRICT COURT RULES ^ule 3. I^otices and papers may be served on an attorney during his absence from his office, by leaving the same with his clerk in such office, or with a person having charge thereof ; or where no person is to be found in the office, by leaving the same be- tween the hours of six in the morning and six in the evening in some suitable and conspicuous place in such office, or if the office be not open so as to admit of service therein, then by leaving the same at the residence of the attorney with some person of suitable age and discretion. Rule 4. Where a party other than an attorney of this court prose- cutes or defends in person, the service of notices and papers may be on such party personally, or by putting the same into the post-office directed to him at his place of residence. And no service of notices or papers in the ordinary proceedings in a cause shall be necessary to be made on a defendant who has not appeared therein, except where he is returned impris- oned for want of bail, in which case a copy of the declaration and notice to plead shall be delivered to him, or to the marshal or jailer in whose custody he may be ; and where an exception is entered to bail, and no notice of retainer of attorney to defend is given, notice of such exception shall be delivered to the mar- shal, or one of his deputies. Rtde 5. AU process must be signed and sealed by the clerk, and must have the name of the attorney or person by whom issued, with his place of business endorsed thereon, and the same may be tested on any day, and, (except where bail is to be charged,) made returnable on any other day in term or vacation, Sun- days and legal holidays excepted. Rule 6. Where the real name of a party is not known, the process may be issued against him by a fictitious name, and when served on the real party intended, it may, by an order of course, be amended before or after return by inserting therein EASTERN DISTRICT OF NEW YORK. 581 the real name of the party, and by correcting any error in the names of the parties thereto. Rule 7. All actions brought for the recovery of any debt or for damages, wherein the defendant is not required to give bail, may be commenced by the issuing and service of a monition, or by summons, if the defendant be a corporation. Rule 8. Upon the service of such monition or summons the defend- ant may endorse his appearance thereon, or, if he refuse so to do, the marshal or officer serving the same may leave a copy thereof with him, and thereupon return the same personally served, and in either case the clerk, upon filing such process, shall enter the defendant's appearance in the action, and such pro- ceedings may thereupon be had, as if the defendant had actually appeared, and thereupon, upon filing the declaration, or, if the same has been already filed, an order may be entered requiring the defendant to plead thereto within twenty days or that his default be entered. Mule p. The defendant may be held to bail in all actions where the same may be allowed by any act of Congress, or where, by the laws of this State, an " order of arrest " may be granted. The process upon which he may be so held to bail shall be the usual capias ad respondendum, wherein must be stated the true cause of action, and upon which (except where otherwise provided by act of Congress), must be endorsed an order of the Judge allowing the same and fixing the amount of bail re- quired. To obtain such order, an affidavit must be made of the facts entitling the plaintiff thereto, and which, after present- ment thereof to the Judge, shall be filed with the clerk. Rule 10. In suits brought against persons accountable for public money, for the recovery thereof, in which the defendant is held to bail, it shall be the duty of the officer making the 582 DISTRICT COURT RULES arrest to exact a bail-bond conditioned for the appearance of the defendant on the return day of the writ, and, unless it shall be made to appear that the plaintiff is not entitled by law to judgment at the return term, special bail shall be put in, and the bail, if excepted to, shall justify within two days after the return day of the writ, and before the adjournment of the court at the return term, otherwise the plaintiff may sue out process upon the bail-bond returnable on any day in the ensuing vaca- tion, and, upon the return of such process served, may proceed to judgment and execution as of the preceding term, unless the defendant shall interpose a valid plea verified by affidavit ; and judgment may also be entered in the principal suit, in the same manner as if special bail had been put in and perfected. But, if, within the time allowed for putting in and perfecting special bad, the defendant shall, by making the oath or affirmation pre- scribed by law, entitle himself to a continuance until the next term, he shall have the same time allowed as is allowed in other cases after the return day of the writ, to put in and per- fect such ban. Rule 11. In suits upon bonds for the payment of duties, and in suits brought against persons accountable for public money, for the recovery thereof, the declaration may be filed on the day upon which the writ is returnable and the same is actually returned, and the district attorney may thereupon move in open court for judgment, and, no plea being interposed, may have final judgment entered instcmter. Mule 12. "When in suits upon bonds for the payment of duties, and in suits brought against persons accountable for public money, for the recovery thereof, the defendant interposes a plea, the district attorney may have the cause placed on the calendar, at the same term, without other notice, and may bring the same to trial when called, unless the court shall continue the cause over at the instance of the defendant. Mule 13. In suits in which the United States are plaintiffs, or in which EASTERN DISTRICT OF NEW YORK. 583 they are interested, though not plaintiffs, if the bail to the arrest becomes special bail, the assignment of the bail-bond, and the acceptance thereof by the plaintiff's attorney, shall not pre- clude him from excepting to the suflB.cienoy of such special bail ; and the marshal shall still be responsible for good bail, notwith- standing such assignment and acceptance of the bail-boAd. Rule 14. 'No plea shall be received in any suit instituted in this court upon a bond executed to the United States for the payment of duties, or in any suit instituted upon a bail-bond taken in con- sequence of such suit, unless such plea shall be accompanied by an affidavit of the truth of the matters therein contained. Mule 15.. The time for putting in special bail and giving notice there- of in other cases shall be ten days from the day on which the process shall be returnable ; the time for exception and notice thereof, four days from the day of notice of bail ; the time of justification four days from the day of notice of exception, and notice of justification shall be given four days before the day of justification. Bail may justify in open court or before the Judge at chambers, or before the clerk or a commissioner of the court, with the right of appeal in the last case to the court or Judge at chambers, and in all cases when the bail demanded exceeds five thousand dollars, two or more bail may justify for proportionate parts of such sum as the Judge may deem proper. Rule 16. In cases where special bail is required, the bail piece shall be duly acknowledged so as to entitle the same to be read in evi- dence, and be filed in the clerk's office. Notice thereof in writ- ing shall be given to the plaintiff or his attorney within ten days after the return day of the process, and in default thereof, the plaintiff may take an assignment of and proceed upon the bail-bond, or against the marshal or officer who served the pro- cess. Rule 17. If the plaintiff elects to proceed against the marshal or officer 584 DISTRICT COURT RULES who served the process, it shall be by filing an affidavit stating that the process was delivered to him for service, that the same has been returned served, and that default has been made in putting in special bail, and thereupon the clerk shall enter in the minutes of the court an order requiring the marshal or other officer to put in and perfect special bail within ten days after service of a certified copy of such order, or show cause why an attachment should not issue. Rule 18. If the plaintiff elects to take an assignment of the bail-bond, and shall commence a suit thereon, the same shall be stayed upon the following terms : 1st. Putting in and perfecting special bail, and paying the costs of the suit upon the bail-bond, and of the motion for relief. 2d. Pleading issuably, and consenting to place the cause on the calendar and to proceed to trial at the same term, or to the entry of a judgment upon the bail-bond to stand as security, to abide the event of the suit. Mule 19. To effect a surrender of bail, the bail or principal shall pro- duce to the Judge two certified copies of the bail piece, on one of which the Judge shall endorse a committitur, and on the other an order that the plaintiff show cause before him on such day as he may designate, why the bail should not be exoner- ated. Mule 20. On due proof of the service of such order on the plaintiff or his attorney, and on proof, by the certificate of the marshal, or his deputy to whose custody the defendant has been committed in virtue of such committitur, acknowledged before the Judge by such officer, or proved by the oath of a subscribing witness there- to, if no sufficient cause to the contrary be shown, the Judge will endorse an order on the second certified copy of the bail piece that an exoneretur be- entered. If the plaintiff, or his attorney upon whom the rule to show cause is served, resides at the time of service more than one hundred miles from the place at which the cause is to be shown, such rule shaU be served EASTERN DISTRICT OP NEW YORK. 585 eight days before the time specified therein for showing cause ; in other cases four days shall be sufficient. Bule 21. Such certified copy shall be filed, and the clerk shaU endorse thereon an exoneretur, and shall also enter in the register of bail the discharge of the bail. Bule 22. « "Whenever a bail-bond shall be taken on the arrest of a de- fendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of the bail, in the same manner and with the like effect as in the case of special bad, except that true copies of the bail-bond, proved to be such by the affidavit of the marshal or his deputy, or of a subscribing witness, shall be used instead of certified copies of the bail piece. Bule 23. In case a defendant who has procured special bail in a suit in this Court shall be afterwards arrested in any other district and committed to a jail, the use whereof has been ceded to the United States for the custody of prisoners, he may be surren- dered at the request of his bail, and in pursuance of the act of Congress (in such case made and provided), in the manner pro- vided in the foregoing rules for ordinary cases. Bule 24. Bail sued upon their recognizances, shall have ten days after the return of the process against them to surrender their prin- cipal, but where a surrender is made after process has been issued and served, the bail shall pay the costs of the suit against them, as a condition of discontinuance. Bule 23. No common rule shall be entered by the attorney, but aU orders to which a party may be entitled shall be entered by the clerk in the minutes of the court. Those orders to which a party is entitled of course may be entered by the clerk without 586 DISTRICT COURT RULES an allowance thereof, but all other orders must be allowed by the Judge before entry. Rule 26. The defendant, having perfected his appearance, may, at any time thereafter, give notice to the plaintiff to declare in twenty days after service thereof, or that judgment of discontinuance be entered against him. Bule 27. The notice to plead, to answer, or to join in demurrer shall be twenty days, but the plaintiff shall not be held to accept a plea in abatement after four days from the day of service of the notice, and a copy of the declaration ; and the notice to join in demurrer to such plea shall be a rule of four days only. Mule 28. "When there shall have been judgment of respondeas ouster, on a demurrer to a plea in abatement, and the plaintiff shall have served the defendant with a notice of such judgment, the defendant shall plead within four days from the day of service of such notice, or his default in not pleading may be entered. Bule 29. The party in whose favor a default has been entered may, on any day afterwards, enter such judgment as he may be entitled to by reason of such default. In all actions sounding in dam- ages after judgment for the plaintiff by default, or on demurrer, the damages shall be assessed on a writ of inquiry, or by the clerk, as the case may be. Bule 30. Four days' notice of trial and of argument, and two days' notice of countermand shall be given in all cases. The like notice of assessment and of inquiry shall also be given at any time after default entered, and for any day in the term or vacation, but no notice of assessment or of inquiry shall be required, except when the defendant shall have appeared by attorney, or shall have given notice of his intention to appear and defend the action ; and all other notices not otherwise pro- vided for shall be notices of two days. EASTERN DISTRICT OF NEW YORK. 587 Rule 31. Where notice of retainer shall be received before the de- fendant's default in not pleading has been entered, a copy of the declaration and notice of the rule to plead (unless they shall have been served on the defendant personally), shall be served on the attorney retained, and the rule to plead shall be from the time of such service, and the service of all other pleadings, papers, and notices, to be made after notice of re- tainer, shall be on the attorney retained. Bule 32. If the plaintiff shall make default in declaring, then the defendant, or if either party shall make default in answering, then the opposite party may have the default entered by the clerk in the minutes of the court, but where the previous ser- vice of a notice, copy of a pleading, or of any other matter shall be requisite the default shall not be entered, unless an alfi- davit of such service shah, be filed, neither shall it be entered until special bail, if required, is put in, and, if excepted to, has justified. Mule 33. The defendant's default being duly entered, the plaintiff shall not be bound afterwards to accept a plea, unless the defend- ant, as soon as he shall know that the default has been entered, shall file an affidavit of merits and serve a copy, pay or tender the amount of the costs of default, plead issuably, and consent to go to trial at the next term. Rule 34. The plaintiff may at any time before the default for not replying shall be entered, if the plea shall be a special plea, or a plea in abatement, or within ten days after service of a copy of the plea, if it shaU be the general issue, amend his declara- tion. After plea, either party may, before default for not answering shall be entered, amend the pleading to be answered, and where there shall be demurrer to a declaration or other pleading, such pleading may be amended at any time before the default for not joining in demurrer shall be entered. The respective parties may amend under this rule of course 588 DISTRICT COURT RULES » and -without costs, but shall not be entitled so to amend more than once. This rule shall be construed to allow amendments to be made by adding new counts or pleas, but not so as to allow of any amendment to a plea in abatement. Rule 35. In order so to amend, a copy of the amended pleading shall be filed, and an order to amend entered by the clerk, and the notice to plead or answer shall be from the day of the service of a copy of the pleading as amended and on file. Rule 36. If the defendant shaU plead the general issue, the cause shall be at issue, unless the plaintiff shall, within ten days thereafter, amend his declaration ; and if either party shall, in pleading in any degree after the plea, tender an issue to the country, and if the opposite party shall not demur to the pleading within ten days after service of a copy thereof, the cause shall, in each of these cases, be deemed at issue. Rule 57. Applications made by a party in pursuance of the fifteenth section of the Judiciary Act to require the opposite party to produce boolcs and writings, must be made upon petition veri- fied by affidavit, setting forth plainly the facts and circum- stances upon which the application is founded, and in such peti- tion, or in the affidavit thereunto subjoined, it must be stated that the books or writings, the production whereof is sought, are not in the possession or under the control of the petitioner, and that he is advised by his counsel and verily beheves that the production of the books or writings mentioned in such petition, is necessary to enable him safely to proceed in the prosecution or defence (as the case may be), of his suit. Rule 38. The petition may be presented to the Judge of this court in vacation as well as to the court in term, and the order to be made thereon shall be that the party against whom the application is made shall produce the books or writings EASTERN DISTRICT OF NEW YORK. 689 mentioned in the petition, or show cause on the day and at the place to be therein specified, why the prayer of such petition should not be granted. Bute 39. A copy of such petition, together with a copy of the order made thereon, shall be served upon the party against whom the order is directed, a reasonable time to be prescribed in the order before the day therein named for showing cause. Mule 40. The order for discovery shall also specify the manner in which such books or writing shall be produced, and may re- quire the party either to produce and deposit the same with the clerk of this court, or at such other place as the Judge shall direct, or to deliver to the petitioner or his attorney copies thereof duly verified by oath. Mtde 41. Commissions to take the examination of witnesses resident without the district, or more than a hundred miles from the place of trial, may issue by order of the court in term, or of the Judge thereof in vacation, in the manner, and subject to the regulations, so prescribed by the Supreme Court of the State of New York. The name, residence and occupation of each wit- ness must be stated in the commission, unless the Judge, upon a proper application, shall otherwise order. Mule 42. When a cause is noticed for trial or argument, a notice thereof, vrith a note of the issue, and of the pleadings and the attorney's name, shall be delivered, on or before the Monday preceding the term, to the clerk, who shall, as early as the following day, have the calendar of causes to be tried and argued properly made up, arranging them according to the dates of their issues, and separating those for trial from those for argument, and no cause shall be put upon the calendar without the special order of the court, unless the note of issue shall be furnished as hereby required. 590 DISTRICT COURT RULES Mule 43, Whenever it shall be intended to move to set aside a verdict, except for irregularity, a case shall be prepared by the party intending to make the motion, and a copy thereof shatU be served, within ten days after the trial, on the opposite party, vsrho may, within ten days thereafter, prepare amendments thereto, and serve a copy on the party who prepared the case, who may then, within four days thereafter, serve the opposite party with notice to appear within a convenient time before the Judge, to have the case and amendments settled. The Judge shall thereupon correct and settle the case, as he shall deem to consist with the facts. The time for settling the case must be specified in the notice, and shall be not less than four, nor more than twenty days after service of such notice. Mule 44. If the party omit to make a case within the time above hm- ited, he shall be deemed to have waived his right thereto, and when a case is made, and the parties shall omit, within the several times above limited, the one party to propose amend- ments, and the other to notify an appearance before the Judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as proposed. If judgment has been rendered upon a verdict, the party intending to move for a new trial shall give four days' notice in writing to the opposite party of any motion to stay execution thereon, and also of the petition intended to be filed pursuant to the 18th section of the act of September 24:th, 1789, unless a shorter time be allowed by the court or the Judge. Mtile 43. General verdicts may be taken subject to the opinion of the court on a case to be made by the party in whose favor the verdict is taken, containing aU the evidence given at the trial. Such case shaU be prepared and settled in the manner pre- scribed in the foregoing rules, and may reserve the right to either party to turn the same into a bill of exceptions, and with liberty to the court to enter a verdict for the defendants. EASTERN DISTRICT OF NEW YORK. 591 Mule 46. In oases of exceptions taken, demurrer to evidence, or special verdict, the party shall not at the trial be required to prepare his biU of exceptions, demurrer, statement of evidence, or spe- cial case, or to put in form the special verdict, but shall merely reduce such exceptions to writing, or make a minute of the demurrer to the evidence, and of the facts found specially by the jury, as the case may happen to be, and deliver it to the Judge, or the Judge himself will note the points as he may direct, and the bill, demurrer or special verdict shaU afterwards be drawn up, amended and settled within such times, and under the same regulations as are made with respect to cases. Mule 47. A bill of exceptions may, before judgment, be used instead of a case on motion for a new trial, and notice of such motion together with an order to stay proceedings, and a copy of such biU of exceptions, shall operate to stay all further proceedings until the decision of the court : Provided, That proceedings shall not be longer stayed than if a case had been made. Mule 48. ' AU questions for argument and all motions shall be brought before the court on motion for that purpose, and if no one shall appear to oppose, the party making the motion shall be en- titled to the rule or judgment moved for, on proof of due ser- vice of the notice and papers required to be served by him. Mule 49. The date of issue shall be, in cases of motion in arrest of judgment, of special verdict, case reserved at the trial, motion to set aside verdict or nonsuit, bill of exceptions, or demurrer to evidence, the day on which the trial took place, and, in case of demurrer to pleadings, the day on which the joinder in demurrer was received. Mule 30. The party bringing on the argument shall, at the opening thereof, furnish the Judge with a copy of the case, demurrer to 592 DISTRICT COURT RULES evidence, special verdict or, where the motion is for a new trial upon newly discovered evidence, with copies of the affidavits and other papers, if any, on which the motion is founded, or, if the motion be in arrest of judgment, with copies of the pleadings, or so much thereof as may be necessary, properly f olioed so as to correspond. A note of the points or questions in- tended to be raised by each of the respective parties shall also, at the same time, be furnished to the Judge and to the opposite party. If such papers shaU be printed, the expenses of printing may be taxed as disbursements in the cause. Rule 51. Whenever an order to stay proceedings shall be granted to enable the party to make a special motion, service of such order, with copies of the affidavits upon which it is granted, and notice of the motion, shall operate as a stay of proceedings until the further order of the court. But if the party shall neglect to bring on the motion to be heard according to his notice, the proceedings shall not be longer stayed, and he shall be liable to pay the costs of attending to resist the motion. Rule 52. 'Eo private agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding unless the same shall be reduced to the form of an order by consent, and entered by the clerk in the book of minutes, or unless the evidence thereof shall be in writing sub- scribed by the party or his attorney against whom the same shall be alleged. Rule 53. Notices of argument shall be accompanied with copies of the case, bill of exceptions and papers on which the argument is to be made, duly folioed to correspond with those intended for the court, and, if not, the cause may be stricken from the calendar. Rule 54. When a party shall, before motion, offer to comply tvlly with the terms of the order which it is the practice of the court, EASTERN DISTRICT OP NEW YORK. 593 upon motion in like cases, to make, and shall also offer .to pay the costs, if any, on the same being thereupon taxed and de- manded, he shall be entitled to costs from the opposite party, if the motion shall be afterwards made. Rule 55. In all case where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party whose duty it is to comply therewith shall have ten days for that purpose, unless othermse directed in the order. And where, by the terms of any order, an act is directed to be done instanier, it shall be understood to require such act to be per- formed within twenty-four hours, Sundays and legal holidays excluded. Mule 56. Whenever the plaintiff shall have neglected to bring his cause to trial according to the practice of the court, he may, if he have not before stipulated, tender a stipulation and offer to pay the costs to which the defendant is entitled up to that time, and if the defendant shall afterwards move for judg- ment, as in case of non-suit, he shall pay costs to the plaintiff, except where the plaintiff shall, after demand, have refused to pay the costs as taxed. Rule 5t. When on motion for judgment, as in case of non-suit, the plaintiff shall be permitted to stipulate, he shall, within ten days thereafter, tender a stipulation to the defendant, and shall pay costs ordered to be paid thereon, and if the stipulation be not tendered, and the costs paid within that time the defendant, on filing an affidavit of such omission of tender and non-pay- ment, may, after the expiration of ten days, enter judgment as in case of non-suit. Rule 58. In cases where the plaintiff is a non-resident of the State at the commencement of the action, or shall become such during the pendency thereof, the clerk, upon filing an affidavit of the fact, may enter an order of course, in the minutes of the court, that 38 594 DISTRICT COURT RULES the plaintiff file security for costs within four days from notice of such order, and that all proceedings on his part be stayed until such security be filed or such order be vacated. The se- curity may be either by the deposit of one hundred dollars with the clerk, or by the execution and filing of a bond with sufficient security to be approved by the clerk, conditioned for the payment of the costs of suit not exceeding one hundred dollars, and, until such order be complied vnth, the attorney in the suit shall be liable for costs not exceeding that sum. Bule 59. The notice to return process shall require that the same be returned within five days after service of such notice, and on filing an afiidavit of the due service thereof, and of default, the clerk may enter an order in the minutes of the court that the party show cause why an attachment should not issue. Rule 60. The day on which any notice, order, pleading or paper is served shall be excluded in the computation of the time for complying with the exigency thereof, and the day on which compliance therewith is required shall be included, except when the same falls upon Sunday, or upon any day set apart by the laws of this State, or of Congress, as a holiday, in which cases the party shall have the whole of the next day thereafter to comply therewith. Mule 61. All moneys paid into court, in causes pending therein, shall be forthwith deposited by the clerk, in the name and to the credit of the court, in such Bank or Trust Company as shall be designated for that purpose by the Judge. No moneys so de- posited shall be drawn except upon the order of the Judge, signed by him, stating therein the title of the suit on account of which it is drawn, accompanying the check or draft duly signed by the clerk ; the order aforesaid shall be entered of record by the clerk ; any interest that may be allowed upon such deposits shall be drawn and paid, with the principal, to the parties entitled to receive such principal. EASTERN DISTRICT OF NEW YORK. 595 Bule 62. All sums collected or received on forfeited recognizances, and all fines imposed and collected, shall be paid into court and be accounted for by the clerk in his account with the United States Treasury. Bule 63. In cases wherein the marshal of the District is a party in in- terest, process against him shall be directed and delivered to the sheriff of the County of Kings for the time being, who is hereby in pursuance of the statute in such case made and pro- vided appointed to serve and execute the same. Mule 64. Every order to show cause why an attachment shall not issue must state the true cause or ground upon which the same is made, and require the party to appear before the Judge in court or at chambers on the return day thereof, and show cause, which shall be done by affidavits, without interrogatories, and if he fails to purge himself of every default or misfeasance specified in the order to the satisfaction of the Judge, an at- tachment may issue, or he may be forthwith committed for contempt, or otherwise as to the Judge may seem proper. Mule 63. In all cases not provided for by these rules, the rules for the time being of the Circuit Court of the United States for this District, so far as the same may be appHcable, shall regulate the practice of this court. Mule 66. Judgments by default may be entered immediately after such default is entered, in vacation as well as in term. Mule 67. Upon filing a satisfaction piece, duly executed and acknowl- edged by the party to the action, or by the District Attorney on behaM of the United States, or upon a return of the execu- tion duly endorsed by the marshal satisfied, the clerk shall can- 596 DISTRICT COURT RULES eel and satisfy the judgment of record ; satisfaction may also be signed and acknowledged by the attorney of record, at any time within two years from the entry of such judgment. Bule 68. The marshal, his deputies, and aU persons concerned in the service of any process of this court, are respectively prohibited from becoming bail upon the arrest in any suit depending in this court, and also from becoming special bail in any suit, un- less for the purpose of surrendering the defendant, in which case the surrender shall be made within ten days after such special bail shall have been put in. Bule 69. The clerk, or, in case of his absence or inability, the deputy clerk, may tax bills of costs and sign judgment records. Costs shall be taxed upon two days' notice of taxation to the opposite party. Appeals from such taxation may be made instcmter to the Judge, but no costs shaU be allowed on such appeal. Bule 70. The following pleadings may be used in all civil actions at law in this court, namely, the declaration, plea, demurrer, rep- lication, and the provisions made applicable to such or cor- responding pleadings by the Laws of this State, so far as the same are not inconsistent with the laws of the United States, are adopted as rules applicable to the above men- tioned pleadings in this court. Bide 71. Upon payment of money into court (except -with a plea of tender), the plaintiff, if he accept the same, shall be entitled to costs to be taxed, and, unless the defendant pay such costs within two days after they are taxed and notice thereof, the plaintiff may take the money out of court and proceed in the cause, and he shall be entitled to a judgment for the amount so taken out with costs, but the execution thereon shall be en- dorsed " levy the costs of suit," and when money is paid into EASTERN" DISTRICT OF NEW YORK. 597 court, the amount shall not be struck out of the declaration or verdict, but the plaintiff shall deduct the sum from his execution. Bule 72. In the sale of real estate under execution issuing out of this court, the marshal shall conform his proceedings to the direc- tions of the law of this State for the time being in relation to the sale of real estate in execution, and, in addition to the certificate filed with the clerk of the county where the lands sold are situated, he shall file a copy thereof with the clerk of this court. Bide 73. Eedemption of lands sold under execution out of this court, so far as the same may be allowed by law, may be made in the same manner, and with Uke efPect, and by the same persons as prescribed by the law of this State. And the sales by the marshal shaU be made subject to such redemption. The forgoing rules, as amended and revised, are adopted as the rules of the District Court of the United States for the Eastern District of New York, in cases at law. Dated May 34th, 1865. ADDITIONAL EULES. JtTLY 13th, 1867. "Whenever a motion shall be noticed for hearing on any day on which there shall be no District Judge in attendance to hear the same, the papers thereon shall be handed to the clerk to be by him forwarded to the Judge at the earliest practicable day, for decision thereon, provided any one shall appear to oppose such motion, but if there be no opposition thereto, the clerk is authorized to enter, as of course, the usual order in such cases. Whenever any party, in any suit or proceeding pending in this court, shall desire to submit proofs to the Court, and there shall be no Judge in attendance to hear the same, such proofs may be taken before the clerk under an order of reference, to be entered as of course, with the like effect as if taken before the Judge in open court, and the same shall then be forwarded by the clerk to the Judge for his 598 DISTRICT COURT RULES. decision thereon, but this provision shall not apply to any- final hearing in a cause where either party shall oppose. January 30th, 1868. "When a still used or fit for the production of distilled spirits forms part of the property declared forfeited, in any case, the marshal, upon the receipt of the writ of venditioni, shall, after at least six days' public notice of the time and place, expose such still for sale in the following manner, that is to say: the still, including the worm and worm-tub, the fore heater and doubler, when the same or either of them shall have been seized and condemned, shall be put up together as a single article and sold to the highest bidder, provided the amount bid therefor and then paid shall exceed the sum of $1,000. And in case said property does not so bring a sum ex- ceeding $1,000, the marshal shall forthwith cut up the pipe, stoves, &c., and render such property useless for the purpose of distilling, and shall then proceed to sell the material thereof to the highest bidder. This rule shall be read, or the substance thereof stated, by the marshal at all sales of stni made by order of this court, and form part of the terms of sale. ADMIRALTY RULES OF THB DISTEICT COUET OF THE TJl^ITED STATES FOE THE EASTEEN DISTEICT OF NEW TOEK, APPLICABLE IN ALL INSTANCE CAUSES, CIVIL AND MAKITIMB. [Adopted December 29th, 1870.] Tlie following rules are adopted as the Rules of the Dist/riot Court of the United States, for the Eastern District of New Yorh, hy virtue of the forty-sixth Admiralty Rule ^promulgated hy tJie Suprems Court of the United States ; and a/re to ie deemed suijeet to he modified iy special order, vn any case, when it shall he made to appea/r that the due adrfiinistration of jus- tice requires a modification to he rmde. Rule 1. Libels and answers (except on behalf of the United States), shall be verified by the oath or affirmation of the party, or of some person having knowledge of the facts stated in such pleading. Mule 2. Libels, and other papers to be filed, shall be plainly and fairly engrossed, without erasures or interlineations materially defacing them. If papers not conforming to this rule are offered, the clerk shall require the allocatur of the judge to be endorsed thereon, before he receives them on the files. Mule 3. In suits for seamen's wages, any mariner in the same voyage, 600 DISTKICT COURT— ADMIRALTY RULES not made a party, may, by short petition to the court, in any stage of the cause previous to the final distribution of the fund in court, or discharge of the defendant and his sureties, be joined as Ubellant in the cause. In cases of salvage and other causes, civil and maritime, persons entitled to participate in the recovery, but not made parties in the original hbel, may, upon petition, be admitted to prosecute as co-libellants, on such terms as the court may deem reasonable. Mule 4. Wednesday of each vfeek shall be a general return day, and is appointed as a special sessions of the court (except the stated term be then in session), at which the same proceedings may be taken in causes of admiralty and maritime jurisdiction as at a stated term. AH process shall be made returnable at a general return day, imless on cause shown it is otherwise ordered. Mule 5. In all possessory actions, the process shall be made returna- ble at the first general return day after the filing of the hbel, unless otherwise ordered by the judge. In such actions, the answer wiU be required to be filed, upon return of the process duly served, and a day for hearing will then be fixed, unless otherwise ordered for cause shown. No property seized or de- tained in such actions, will be discharged from custody upon stipulations or otherwise, except upon the order of the court, after notice to the adverse party of appUcation for such order. Notice by pubhcation wiU not be required in possessory actions, unless specially ordered. Mule 6. Process, orders to show cause, and notices of motion shall upon the return day thereof be called by the clerk ; and there- upon, when there is no opposition, the orders prayed for, in accordance with the practice of the court, may be entered by the clerk, whether the judge be actually present or not ; and in like manner orders, which according to the practice of the court are granted as of course, may be entered, reserving to any party affected thereby, the right to apply to the judge at EASTERN DISTRICT OF NEW YORK. 601 the earliest opportunity to vacate or modify the same. In the event of opposition, the papers may in the absence of the judge be left with the clerk, to be by him submitted to the judge for decision thereon, or the clerk may adjourn the matter until the judge shall be in attendance. Rule 7. No process m personam, for the arrest of any person, in cases of torts or unliquidated damages, shall issue, except upon the mandate of the judge. Rule 8. In cases of liquidated damages, when the demand does not exceed the sum of five hundred dollars, and the certainty and amount of the demand appear upon the face of the libel, an attachment m personam, or warrant of arrest, may be issued by the clerk without an order. The attachment shall plainly express the cause of action and the amount of the demand, and the clerk shall endorse thereon the sum for which bail is required, not exceeding one hundred dollars above the sum sworn to be due and unpaid, and not exceeding in all the sum of five hundred dollars. No attachment or citation shaU be issued untn the hbellant shall have filed a stipulation for costs, in the sum of one hundred dollars, except iu suits by the United States. Rule 9. No warrant with an attachment clause therein against credits or effects, in the hands of third parties, will be issued, unless the libel set forth the names of the garnishees intended to be served ; and when such warrant shall be issued, it shall contain a citation to such garnishees, to be named therein, to appear at the time and place designated for the appearance and answer of the respondent in the warrant, to answer on oath as to the debts, credits, and effects of the respondent in their hands, and to such interrogatories touching the same as may be pro- pounded by the UbeUant. In case a garnishee, after due citation, fails to appear and answer at the time and place named in the citation, an order may be entered, declaring him to be in contumacy, and direct- 602 DISTRICT COURT— ADMIRALTY RULES ing that he show cause why an attachment for contempt should not issue against him. When property, debts, credits, or effects of the respondent shall be found to have been attached, and the respondent has failed to appear and answer the libel, the court will proceed expa/rte, and will pronounce the proper decree to secure the application of the attached property, debts, credits, or effects, to the payment of the sum adjudged to be due. Mule 10. Whenever in an action m personam, any debts, credits, or effects shaU be attached in the hands of any third party, the court may, upon due application, require the party charged with the possession thereof, to appear and show cause why the same should not be brought into court, to answer the exigency of the suit ; and if no sufficient cause be shown, the court may order the same to be forthwith brought into court, to answer the exi- gency of the suit ; and upon failure of the party to comply with the order, may award an attachment or other compulsive process to compel obedience thereto. Mule 11. On the return of the attachment of debts, credits, or effects of a respondent, and the citation of the garnishees, the garnishees shall file an affidavit containing a full and true state- ment of all property, debts, credits, or effects in their hands, or subject to their control, belonging to the principal party at the time the attachment was served, and at the time the answer is made ; and declare whether they have any, and, if any, what claim to any and what part thereof ; and shall then, on motion of the actor, pay into court such amount as they shall not claim, or as may be ordered by the court ; or they may be required to give stipulation, with sufficient surety, to abide the further order or decree of the court in relation thereto. If it do not appear by the answer of the garnishees, that property, credits, or effects of the defendant, sufficient to answer the exi- gencies of the suit, have been attached, the actor may move for an order that the garnishees attend before the court, or a com- missioner, and answer all proper interrogatories touching such EASTERN DISTRICT OP NEW YORK. 603 property, credits, or effects. On the default of any garnishee, in this behalf, an order may be entered, directing that an at- tachment issue against him, unless he shall show cause in four days, or on, the first day the court is in session afterwards. Rvle 12. "When the property, effects, or credits named in the process are not dehvered wp to the marshal by the garnishee or trustee, or are denied by him to be the property of the party, it shall be a suflBlcient service of such attachment to leave a copy thereof with such trustee, or at his residence or usual place of business, unless the libellant shjliU, by competent surety, indemnify the marshal for arresting the property pointed out to him. Rule 13. All process to the marslxal shall be returned on the return day thereof, and, if he shall not return the same in four days after being required in writing so to do, by any party or his proctor, upon afiidavit of such requirement and of the delivery of the process to him, an order may be entered, of course, that he show cause why an attachment shall not issue against him ; and, in the case of process in rmn, the return of the marshal shall express the day of the seizure of the property or the day of sale, if the process is for that object. Rule 14. No decree shall be entered by def^-ult, or consent of parties in court, ordering the condemnation and sale of property ar- rested on process in rem, or for the distribution of the proceeds thereof in court, unless publication, according to the course of the court, shall have been duly made before the return day of the monition issued with the attachment in the case. Rule 15. In case of the attachment of property, or the arrest of the person, in causes of civil and admiralty jurisdiction (except in suits for seamen's wages, when the attachment is issued upon certificate, pursuant to the Act of Congress of July 20th, 1790), the party arrested, or any person having a right to intervene 604 DISTRICT COURT— ADMIRALTY RULES in respect to the thing attached, may, upon evidence showing any improper practices, or a manifest want of equity on the part of the libellant, have a mandate from the judge, for the libellant to show cause mstcmter why the arrest or attachment should not be vacated. Bule 16. Stipulations may be taken, in admiralty and maritime causes, out of court, before the clerk or a commissioner duly authorized to take the same. The officer taking the stipulation shall, if required by the opposite party, examine the sureties on oath, and decide as to their competency. An appeal may be taken msianter to the judge, in case the decision is against the suffi- ciency of the sureties. Mule 17. Property under arrest may be discharged on stipulation, upon one day's notice of the application to the proctor of the hbel- lant, specifying the sureties intended to be given, and their occupations and places of residence, and the officer before whom, and the place where, the stipulation will be offered, ex- cept in suits by seamen for wages, when such notice may be mstcmter. Mule 18. In aU cases where the approval of the judge of this court of the sufficiency of sureties to bonds or stipulations is required, it shall be necessary to give notice in writing, a reasonable time previous to the application, to the proctor of the libellant in the action, stating the time and place of the application for such approval, and the name, occupation, and residence of the sureties to be oilered ; and the application shall be accompanied by proof of the service of such notice. Utile 19. All stipulations in causes civil and maritime shall be executed by the principal party (if within the State), and at least one surety resident therein, and shall contain the consent of the stipulators, that, in case of default or contumacy on the part of the principal or sureties, execution to the amount named in such stipulation may issue against the goods, chattels, and EASTERN DISTRICT OF NEW YORK. 605 lands of the stipulators. The court will modify the execution as to the time it may stay and the amount to be collected, according to the equity of the case. JSTon-residents of the State must supply at least two sureties. Bule 20. In all cases of stipulations, in civil and admiralty causes, any party having an interest in the subject-matter, may move the court, on special cause shown, for greater or better security, giving the opposite party two days' notice thereof, unless a shorter time is allowed by order of the judge. IRule 21. The clerk shall provide a book, in which shall be registered or recorded aU stipulations filed in causes civil and admiralty, which shall be open to the examination of aU parties interested. Bule 22. 1^0 process m rem shall be issued, nor shall any appearance or answer be received, or third party be permitted to intervene and claim, except on the part of the United States, unless a stipulation, in the sum of two hundred and fifty dollars, shaU. be first entered into by the party, and at least one surety, resi- dent in the State, conditioned that the principal shall pay all costs awarded against him by this court, or, in case of appeal, by the appellate court. Mule 23. But seamen suing for wages, in their own right and for their own benefit, for services on board American vessels, and salvors coming into port in possession of the property libeled, shah not be required to give such security in the first instance. The court, on motion, with notice to the libellants, may, after the arrest of the property, for adequate cause, order the usual stipulation to be given in these cases, or that the property arrested be discharged. Rule 24:. ISTotice of the arrest of property by attachment in rem, in behalf of individual suitors, shall be pubUshed in the manner 606 DISTRICT COURT— ADMIRALTY RULES directed by Act of Congress in case of seizures on the part of the United States, except when the judge by special order directs a shorter notice than fourteen days ; and except that, instead of the substance of the libel, a short statement of its purport may be given. Mtde 25. Notice of sale of property after condemnation, in suits in rem (except under the revenue laws and on seizure by the United States), shaU be six days, unless otherwise specially directed in the decree of condemnation and sale. All such notices shall be pubhshed in the manner directed by Act of Congress, in the case of condenmation under the revenue laws. Bule 26. After a citation or monition, or warrant of arrest, in suits in personam, returned " served personally," if the defendant do not appear at the return day, he shall be deemed in contumacy and in default, and the libellant may take an order for enforce- ment of the stipulation (in case any is given), or to compel the defendant's appearance, according to the course of admiralty proceedings ; or, at his option, may proceed to hearing expa/rte and obtain the proper decree, unless the court, for good cause, shall allow the defendant further time. Bule 27. In case of seizure of property in behalf of the United States, an appraisement for the purpose of bonding the same, may be had by any party in interest, on giviag one day's previous no- tice of motion before the court, or the judge in vacation, for the appointment of appraisers. If the parties or their proctors and the District-Attorney are present in court, such motion may be made insianter, after seizure, and without previous notice. Bule 28. Orders for the appraisement of property under arrest at the suit of an individual, may be entered, of course, by the clerk, at the instance of any party interested therein, or upon filing the consent of the proctors for the respective parties. Only one appraiser is to be appointed in suits by individuals, unless EASTEEN DISTKICT OF NEW YORK. 607 otherwise specially ordered by the judge, and, if the respective parties do not agree in writing upon the appraiser to be ap- pointed, the clerk shall forthwith name him, either party having a right of appeal mstcmter to the judge from such nom- iaation, for adequate cause. Bule 29, Appraisers, before executing their trust, shall be sworn or affirmed to its faithful discharge, before the clerk or his deputy (who are hereby appointed commissioners for the quahfication of appraisers), and shall give one day's previous notice of the time and place of making the appraisement, by affixing the same in a conspicuous place adjacent to the TJnited States Court Eooms, and where the marshal usually affixes his notices, to the end that all persons concerned may be informed thereof, and the appraisement, when made, shall be returned to the clerk's office ; and like notice shall also be given to the adverse party, by the party obtaining the order of appraisement. Rule 30. Appraisers acting under an order of this court, shall be severally entitled to three dollars for each day necessarily em- ployed in making the appraisement, to be paid by the party at whose instance the same shall be ordered. Mule 31. In suits in rem for seamen's wages, and in all other actions in rem for sums certain, the claimant or respondent may pay into court the amount sworn to be due in the libel, with interest computed thereon from the time it was due, to the stated term next succeeding the return day of the attachment, and the costs of the officers of court already accrued, together with the sum of two hundred and fifty dollars to cover further costs, &c.;' or, at his option, may give stipulation to pay such sworn amount, with interest, costs, and damages (first paying into court the costs of the officers of court already accrued), and, in either case, may thereupon have an order entered instanter, for discharge of the property arrested, without having the same appraised. 608 DISTRICT COURT— ADMIRALTY RULES Bule 32. No vessels, goods, wares, or merchandise in the custody of the marshal shall be released from detention, upon appraise- ment and surety, until the costs and charges of the officers of this court, so far as the same shall have accrued, shall first be paid into court by the party at whose instance the appraise- ment shall take place, to abide the. decision of the court in respect to such costs. Bule 83. ISo property in the custody of any officer of the court shall be released without the order of the court ; but (except in pos- sessory or petitory actions), such order may be entered, of course, by the clerk, on filing a written consent thereto by the proctor in whose behalf it is detained; and, also, after ap- praisement and bond duly executed. No property detained in possessory or petitory suits, will be discharged from custody upon stipulation, or otherwise, except upon motion, and due cause shown, which motion may be made by either party on reasonable notice to the adverse party. Rule 34. If, in possessory suits, after decrees for either party, the other shall make application to the court for a proceeding in a petitory suit, and file the proper stipulation, the property shall not be delivered over to the prevailing party, until after an ap- praisement made, nor until he shall give a stipulation with sureties to restore the same property without waste, in case his adversary shall prevail in the petitory suit, and also to abide as well all interlocutory orders and decrees, as the final sentence and decree of the District Court, and, on ap- peal, of the appellate court. Mule 33. A tender inter partes shall be of no avail in defence, or in discharge of costs, unless, on suit brought, and before answer, plea, or claim filed, the same tender is deposited in court, to abide the order or decree to be made in the mat- ter. When tender is first made after suit brought, it must include taxable costs then accrued. EASTERN DISTRICT OF NEW YORK. 609 Bule 36. No party can intervene by claim, without proof of a sub- sisting interest in the subject-matter of the claim. This proof may, in the first instance, be the oath of the claim- ant, but subject to denial and disproof on the part of the hbellant, on issue thereto or on summary petition. Bule 37. Defence may be made by answer or claim, of matters of law or fact, without the employment of exceptions or spe- cial pleas usual in causes of civil and maritime jurisdiction, other than exceptions to the competency of the party or the process, or other matter of abatement. Bule 38. An answer or claim on the part of the United States is to be put in without oath, by the District Attorney, and is not subject to exception for insufficiency. Bule 39. The defendant may, on the return day of process, and before answering, demurring, or pleading, file an exception to the hbel, that it is multifarious or ambiguous, or without plain allegations upon which issue can be taken ; and, if it be ad- judged by the court insufficient, for any of these causes, and be not amended by the Hbellant within two days thereafter, it shall be dismissed, with costs. Proceeding upon such excep- tions shall conform to those on exceptions to answers or other pleadings. Bule 40. The hbellant may, within four days from the filing of the answer or claun, file exceptions thereto, for insufficiency, irrele- vancy, or scandal, which exceptions shall briefly and clearly specify the parts excepted to, by the line and page of the papers in the clerk's office ; whereupon, the party answering or claiming shall, in four days, give notice to the Hbellant of his submitting to the exceptions, or the exceptions will be set down for hearing, for the earhest day afterwards. 610 DISTRICT COURT— ADMIRALTY RULES Hule 41. If a party submit to exceptions for insufficiency, he shall answer further, within four days after notice of his subrait- titig. If the exceptions are allowed on hearing, he shaU an- swer further within such time as the court shall direct ; and, if the hearing of the exceptions shall not be duly brought on, or the further answer duly put in, the claim or answer excepted to shall be treated as a nuUity, and the default of the party be entered. JRule 42. If exceptions for irrelevancy be submitted to, or be allowed by the court, or the hearing be not duly brought on by the re- spondent, the matter excepted to shall be struck out of the claim or answer by the clerk. Mule 43. "When various actions are pending, aU resting upon the same matter of right or defence, the court, by order, at its discre- tion, wUl compel the parties to abide by the decision rendered in one case, and will enter a decree in the other causes conform- ably thereto, although there be no common interest between the parties. Mule 44. Commissions for taking testimony, shaU be moved for in four days after the claim or answer is filed and perfected (if the same shall have been excepted to) ; but if interrogatories shall be propounded for the other party, by the party who moves for a commission, he shall have four days for moving after the answers to the interrogatories shall be perfected ; otherwise, such commission shall not operate to stay proceedings ; but, on a proper case shown, application for a commission and for a stay of proceedings' may be made at any time after the actiqn is commenced, and before issue joined, or after a default or in- terlocutory decree. JRtde 43. Affidavits on which a motion for a commission is made shall specify the facts expected to be proved, together with the names of the witnesses, and the shortest time within which the EASTEEN DISTRICT OP NEW YORK. 611 party believes tlie testimony may be taken and the commis- sion retm-ned. On special cause shown, an order for the ex- amination of parties not named, may be applied for on notice to the adverse party. Mule 46. A commission wiU not be allowed to stay proceedings, if the opposite party admits in writing that the witnesses will depose to the facts stated in such affidavit ; such affidavit, with the ad- mission, may be read on the trial or hearing, and will have the same effect as a deposition to those facts by the witness or witnesses named. JSule 47. The motion may be noticed and made at term, before the court, or in vacation before the judge out of court, and only one commissioner will be named, unless special cause is shown for appointing a greater number, nor will costs be taxed for the services of more than one, except where both parties re- quire a greater number. Mule 48. Interrogatories for the direct and cross-examination, in case the parties disagree respecting them, shall be presented to the judge for his allowance at one time, and one day's notice of such reference shall be given by the party objecting to the opposite interrogatories. Mule 49. Cross-interrogatories shall be served within four days after the direct have been received, or they shall be regarded as as- sented to, and, if no notice of reference to the judge is given within five days after both direct and cross-interrogatories have been served, each party shall be deemed to have assented to the interrogatories served. Mule 50. The interrogatories, direct and cross, as agreed to by the parties, or settled by the judge, shall be annexed to the com- mission. Directions as to the execution and return of the com- mission, signed by the clerk, shall accompany the commission. 612 DISTRICT COURT— ADMIRALTY RULES Mule 51. Depositions taken under commission, or otherwise, shall be forwarded to the clerk immediately after they are taken, and be filed on their return to the clerk's ofl&ce, la term or vacation, and notice thereof shall be forthwith given by the party filing them to the proctor of the opposite party. And all objec- tions to the form and manner in which they were taken or returned shall be deemed waived, unless such objection shall be specified ia writing in four days after notice that the same are opened, unless further time shall be granted by the judge. Mule 32. In suits between individuals, either party may, at any time after the commissions or depositions are deposited with the clerk, enter an order of course, as of a special sessions, if in va- cation, to open the same and dehver copies thereof. Mule 53. In suits on seizures, in which the United States are a party, such order may be entered on the written consent of the proc- tors or attorneys of the respective parties, or on motion to the court at a stated or special session. MiUe 54. Opening such commissions or depositions shall not preclude either party from objecting to the competency or relevancy of the evidence when offered on the trial. Mule 55. Exceptive allegations to the credibihty or competency of witnesses examined on deposition or commission, may be filed within four days after the depositions or commissions are opened at the clerk's office, and notice shall be given forth- with of such exceptions. Testimony impeaching or supporting the witnesses may, in such case, be given by the parties respec- tively, on the hearing of the cause, and may be taken in the same manner as proofs in chief. EASTERN DISTRICT OF NEW YORK. 613 Rule 56. Depositions m perpetuam, rei tnemoria/m, to be used in tMs court, may be taken under a deMmus potestatem, or by any officer authorized by Act of Congress to take depositions de bene esse, to be used in the Courts of the United States, when so ordered by the judge. Mule 37. When either party shall require vi/va voce testimony given in open court, to be taken down by the clerk pursuant to the Act of Congress, it shall be taken in the same manner as in jury trials on common law issues, and not verbatim, as iu deposi- tions de bene esse. Rule 58. The notes of the judge or of a stenographer, when one is employed by consent of parties, may, by assent of parties, be used as if taken down by the clerk. Rule 59. Either party desiring to diminish, vary, or enlarge the min- utes of proofs, may, within five days after the close of the testimony, serve a statement of proofs on the proctor of the opposite party, and such statement, if assented to, or, if no amendments are proposed thereto, within two days thereafter, by such proctor, shall be regarded as the true minutes of the testimony given, and the notes be corrected in conformity thereto. Rule 60. If amendments are proposed and the parties do not agree therein, the statements and amendments shall be forthwith referred to the judge, and he shall settle or determine how the facts are, and the statement thus settled or adjusted shall be filed as the true minutes of the testimony given. Rule 61. Either party may except to the report of a clerk or commis- sioner, and set down the exceptions for hearing, on two days' notice, at the first stated or special sessions thereafter, or the clerk will place the cause on the next admiralty calendar. 614 DISTRICT COURT— ADMIRALTY RULES Bule 62. Upon the coming in of the report, an order of confirmation nisi may be entered, on motion, without notice, unless other- wise ordered by the court, or the report shall be excepted to; and if no exceptions be filed within four days after notice of such confirmation, decree final may be entered. Bule 63, A guardian ad litem will be appointed, on a petition, verified by oath, stating a proper case for such appointment ; and the guardian shall give stipulations for costs, &c., the same as if he was personally the party in interest. Ktile 64. Infants may sue by prochein ami, to be first approved by the court ; the ;procheim, ami to give stipulations, and be respon- sible for costs, in the same manner as the infant would be if of full age. Rule 65. Suits can only be prosecuted or defended m forma pawpens by express allowance of the court. In such case, the pauper will be discharged of all stipulations or habilities for costs. But the court, on satisfactory proof of the inability of a party to comply with the usual stipulations in a cause, may mitigate and modify such stipulations conformably to the equities or exigencies of the case. Mule 66. Where proceedings on a decree shall not be stayed by an appeal, and the decree shall not be fulfilled or satisfied in ten days after notice to the procW of the party against whom it shall be rendered, it shall be of course to enter an order that the sureties of such party cause the engagement of their stipu- lation to be performed, or show cause in four days, or on the first day of jurisdiction afterwards, why execution should not issue against them, their lands, goods, and chattels, according to their stipulation ; and, if no cause be then shown, due ser- vice having been made on the proctor of the party, a summary decree shall be rendered against them on their stipulations, and EASTERN DISTRICT OF NEW YORK. 615 execution issue ; but the same may be discharged on the per- formance of the decree and payment of all costs. Mule 67. A special session of the court (besides the sittings on "Wednes- day of each week) may be opened at any time mstcmter, on the allowance of the judge, for hearing and disposing of special motions, arguments on questions of law, and also for taking proofs, or hearing admiralty and maritime or revenue causes, and rendering interlocutory or final decrees therein. Bule 68. "Whenever, from the death of any of the parties, or changes oi interest in the suit, defect in the pleadings or proceedings, or otherwise, new parties to the suit are necessary, the persons required to be made parties may be made such either by a peti- tion on their part or on the part of the adverse party. Bute 69. In either mode, it shall be sufficient to allege briefly the pfayer of the original libel, the several proceedings in the cause aid the date thereof, and to pray that such persons required to ke made parties to the suit may be made such parties. Bule 70. On ervice of a copy of such petition and of notice of the presentxg thereof, such order shall be made for the further pro- ceeding 1 the cause as shall be proper for its speedy and con- venient pi)secution as to such new parties, and the same stipula- tions and &curity shall, in all such cases, be required and given, as in cases f persons becoming originally parties to a suit. Bule 71. A party sha not be held to enter his appeal from any decree or order of thoourt as final, unless the same is in a condition to be executed aainst him without further proceedings therein in court. 616 DISTRICT COURT— ADMIRALTY RULES. Bule t2. Ten days from the time of rendering the decree shall be allowed to enter an appeal, within which time the decree shall not be executed. A brief notice in writing to the clerk and opposite proctor, that the party appeals in the cause, shall be a sufficient entry of the appeal, without any petition to the court for leave to enter the same. Bule 73. "When an appeal shall be so entered, the appellant shall, witt- in ten days after filing the notice, give security for damages and costs ; and, if security shall not be given within that time, the decree may be executed as if there had been no appeal, unle$ further time be allowed by the court. Bule 74. The appellant shall give four days' notice to the adverse party, or his proctor, of the person or persons proposed as his sureties, with their additions and descriptions, and of the titnf and place of giving the stipulation. Bule 73. When an appeal shall be entered, the appellant shall cauie the proceedings of the court, required by law to be transmitted to the Circuit Court, to be transcribed for that pm'pose w^hin thirty days after the appeal shall be entered in this court ?and, in default thereof, the decree shall be executed as if the^ had been no appeal, unless the court shall, upon special m^on of the appellant, otherwise order. / Bule 76. I No libel of review will be entertained in cases^ubject to appeal, nor unless filed before the enrolment of \p decree or return of final process issued in the cause. ' Bule 77. "When any moneys shall come to the handf^f the marshal under, or by virtue of any order or process/ the court, he EASTERN DISTRICT OP NEW YORK. 617 shall forthwith pay over the gross amount thereof to the clerk, with a bill of his charges thereon, and a statement of the time of the receipt of the moneys by him, and, upon the filin g of such statements, and the taxation of such charges, the same shall be paid to the marshal out of such moneys ; and the gen- eral account of all property, sold under the order or decree of this court, shall be returned by the marshal and filed in the clerk's office, with the execution or other process under which the sale was made. Bule 78. AU biUs of costs and of charges to be paid under any order or decree of this court, shall be taxed and filed with the clerk before payment thereof ; and, if the same shall include charges for disbursements other than to the officers of the court, the proper and genuine vouchers, or an affidavit thereof (in cases of loss of vouchers), shall be exhibited and filed, and, if such biU shall be taxed without four days' notice to all parties con- cerned, they shaU be subject to a re-taxation, of course, on application by any such party, not having had notice, and at the charge of the party obtaining such taxation. Bule 79. The clerk is authorized to tax or certify bills of costs and to sign judgments, and also take acknowledgments of the satis- faction of judgments and aU affidavits and oaths out of court, as in open court, in all cases where the same are not required by law to be taken in open court. Bule 80. The deputies or chief clerks of the clerk of this court, not exceeding two in number, and named and designated by an appointment filed in the office of said clerk, are each authorized to sign judgments, to tax and certify all bills of the costs in this court, other than those of the clerk, and also to affix the seal of the court and certify proceedings or papers in the name of the clerk, in all other cases than exemplifications of the records or files of the court, and to perform aU duties apper- taining to the clerk by the appointment of the court, or the course of practice, which are not specifically appointed by statute to be performed by the clerk. 618 DISTRICT COURT— ADMIRALTY RULES. Rule 81. The clerk is authorized to enter satisfaction of record of any judgment rendered in this court in behalf of the United States, on filing acknowledgment of satisfaction of the same duly made by the District Attorney. Bule 82. Attorneys, proctors, and advocates of any Circuit or District Court of the United States, and attorneys of the Supreme Court of this State, may be admitted proctors and advocates of this court, upon taking the oaths prescribed by the Constitu- tion and Laws of the United States. But no such admission will be granted, unless the same be moved by some proctor or advocate of the court. Bule 83. ISTo notice of trial or note of issue, in any cause, shall be re- quired to place a cause upon the calendar. An admiralty calendar shall, for each term designated for the hearing of admiralty causes, be made up by the clerk, who wUl place thereon all causes at issue in their proper order, and will there- upon, and at least four days prior to the commencement of the term, give notice to the respective proctors of the placing of the cause upon such calendar, with the number thereof, together with the time and place when and where the same will be called. Proof of service of such notice of trial shall be fur- nished by the certificate of the glerk. The calendar will be called upon the day designated in such notice, and the default of . any party not attending may be entered without further notice upon filing proof of service of the notice. Mule 84. Upon consent of the parties, or upon the order of the court, any cause may be omitted from the calendar, until the further order of court. Bute 83. At any term, when no admiralty calendar has been made up, the proctor in any cause may, upon two days' notice to the other side, apply to have the same heard upon a day to be designated by the court. EASTERN DISTRICT OP NEW YORK. 619 Mule 86. "Where bail is taken by the marshal, the bond or stipulation shall be forthwith filed in court, and upon such filing, and the justification of the sureties before the clerk or a commissioner duly authorized, on notice to the hbellant of the time and place thereof, the marshal shall be deemed discharged of responsi- bility for the appearance of the defendant. The marshal shall be deemed in like manner discharged by the omission of the libellant to give written notice to the marshal, to be served within five days after the receipt of notice in writing of the filing of the bond, that the sureties are re- quired so to justify. An appeal may be taken instanter to the judge from the decision of the clerk or commissioner as to the sufficiency of the sureties, in which case, the justification .shall not be deemed complete until the affirmance of the de- cision by the judge. Mule 87. In any admiralty proceeding m rem where no proctor has appeared for any claimant, a venditioni exponas will not be issued, nor a decree entered unless proof be furnished of actual notice of the action to an owner or agent of the vessel proceeded against, or to a master in command thereof, in addition to the proof of publication of the notice of arrest of the vessel ; or, unless it be made to appear on special application to the court that such actual notice is unnecessary. Mule 88. In any case of admiralty aiid maritime jurisdiction other than seaman's wages, where the libel claims less in amount than $50.00, no process m rem shall issue, except by special order of court, unless there is attached to the stipulation for costs given by the hbellant an affidavit of the surety therein named to the effect that he is not at the time surety upon any other subsist- ing stipulation in this court, nor connected with the cause as proctor or advocate. UTILES. NORTHERN DISTRICT OF NEW YORK. CIRCUIT COURT. JUDGES AND OFFICEES CIRCUIT COUET OF THE UNITED STATES NOETHEE]^ DISTEICT OF I^EW YOEK. Samuel Blatchfoed — Associate Justice of tlie Supreme Court of the United States assigned to the Second Judicial Circuit — Cir- cuit Justice. No. 1433 K Street, N. W., Washington, D. C. William J. "Wallace — Circuit Judge. Syracuse, Onondaga Co., New York. Judge's Chambers, Bastable Block, E. Genesee Street, Syracuse, Onon- daga Co., New York. "IVrARTiN I. TowNSEND— United States Attorney. Troy, Rensselaer Co., New York. United States Attorney's Office at Troy, Rensselaer Co., New York. "William S. Doolittle— ^Clerk Circuit Court. Utica, Oneida Co., New York. Clerk's Office at Utica, Oneida Co., New York. C. D. MacDougall — United States Marshal. Auburn, Cayuga Co., New York. Marshal's Office at Rochester, Monroe Co., New York. JUDGES AND OFFICERS OF THE CIRCUIT COURT. 623 Court Rooms in Albany, Albany Co., are in the United States Govern- ment Building, cor. State Street and Broadway. Court Rooms in Utica, Oneida Co., in the United States Building, Broad Street. Court Rooms in Canandaigua, Ontario Co., in the United States Court Room, Court House. Court Rooms in Syracuse, Onondaga Co., in the County Court House, W. Genesee Street. Circuit Courts are held at Canandaigua, on the 3d Tuesday in June ; at Syracuse, on the 3d Tuesday in November ; at Albany, on the 3d Tuesday in January ; at Utica, on the 3d Tuesday in March. For Federal Statutes especially relating to this Court, see 23 Stat, at Large, 33. Also Respecting the Pkacticb in the Cikcuit Coukts generally, their power to make Rtjles, etc., pp. 353 to 355. Respecting Fees, etc., pp. 357 to 373. Respecting the Jukisdiction of this Court, p. 375. , Respecting Sessions, etc., pp. 377 and 387. RULES OF THE CIRCUIT COURT OF THE UNITED STATES FOB THE ISrOETHEKN DISTEICT OF NEW YOEK. [The Clerk of the Court states that the numbering of the Rules is sim- ply arbitrary, that the original Rules as entered in the Clerk's office have no numbers whatever, and the numbers given below were given in the Clerk's office simply for convenience' sake. These Rules as here published contain those heretofore published in Blatchford's Circuit Court Reports, and some furnished by the Clerk. Rules 1 to 6 inclusive were adopted at October Term, 1841.] Sule 1. Attorneys and counsellors of the Supreme Court and solicitors and counsellors of the Court of Chancery of the State of New York, may, on motion in open court, or on presentation of their licenses to the clerk in vacation, be admitted of course to the same degrees in this court ; and attorneys and solicitors of the said courts may also, in like manner, be admitted as counsel- lors of the said courts, and proctors may be admitted as advo- cates on the admiralty side of this court. Rule 2. AH persons who had been admitted and were entitled to practise as attorneys, counsellors, soUcitors, proctors or advo- cates, in the District Court of the United States for the Northern District of New York, on the third day of March, eighteen hundred and thirty-seven, shall be entitled to prac- tise in the like capacity in this court. 40 626 CIRCUIT COURT RULES Rule 3. Grand and petit jurors, to serve at the sessions of the court required by law to be held at Albany, shall be taken alter- nately from the counties of Albany and Eensselaer ; and those to serve at the session required to be held at Canandaigua shall be taken from the county of Ontario ; and they shaU be drawn, summoned and returned in the manner prescribed by the rules of the District Court for the Northern District of New York, for the drawing, summoning and returning of jurors to serve therein. [See Rule without number adopted at January Term, 1870, p. 631, and considered as an amendment to this Rule.] Mule 4. This Eule is obsolete. It related to the subdivisions of the district for trial of issues. This subdivision of the district was abolished by Act of Congress of 24:th March, 1860, ch. Y, 12 Stat, at Large, 3. Rule 5. In cases not provided for by the rules of this court, the rules of the District Court for the Northern District of New York, so far as the same are in their nature applicable, are to be con- sidered as rules of this court. [See Rule 13 of the Cii-cuit Court of this District, p. 639.] Rule 6. AU general rules of practice heretofore made, are abrogated. Rule Without number. October 22d, 1850. Whereas Samuel Blatchford, Esq., counsellor at law, has been appointed Eeporter of the decisions of the Circuit Judge in the Circuit Courts of the United States held in the Second Circuit thereof : Ordered, That the solicitors, attorneys, and proctors of said Courts, in cases of motions for new trials, demurrers, writs of error, appeals in Admiralty, and cases in equity, bringing on the argument, furnish the said Reporter with a copy of the NORTHERN DISTRICT OF NEW YORK. 627 case, demurrer book, error book, apostles, including aU proofs in the Court below and in this Court in the case, and of the pleadings and proofs in equity, as the case may be, at or be- fore the commencement of the argument. Bule 7. June Term, 1855. Ordered, That the clerk of this court be and is hereby vested with general power to name commissioners, in commissions to be issued to take testimony, in like manner that the court or judge thereof can now do by the Qlth. equity rule prescribed by the Supreme Court of the United States. Rule 8. June Term, 1858. It is hereby ordered that the rule fomaerly adopted by the District Court of this District, while having Circuit Court powers, and which afterward became and was made a rule of this court under which the first judges of the county courts and the clerks of the several counties in this district were made or appointed commissioners, and authorized to discharge cer- tain duties conferred by acts of Congress upon commissioners appointed by the Circuit Courts of the United States, shaU be and the same is hereby repealed, annulled and vacated, and that such officers and persons shall no longer be ex-officio com- missioners under the said acts of Congress by appointment of this court, or of the said District Court, whilst exercising the powers and authority of a Circuit Court. Rule 9. June Term, 1864. "When a fine or penalty is paid into court, and the whole thereof shall belong to the United States, or one-half thereof shall belong to the Government, and the other half thereof to any other party, the clerk shall as soon thereafter as practica- ble, unless a stated term of the court shall then be in session, and then as soon as practicable after the end of such term, pay to the proper depository the amount thereof belonging to the United States ; and any person claiming any portion of such fine or penalty, as the discoverer or informer, or prosecutor of 628 CIRCUIT COURT RULES the offender, incurring such, fine or penalty, shall, on or before the first day of the next stated term of the court, file with the clerk of the court his afiidavit, and such other papers as he may think proper, showing his right to a moiety of such fine or pen- alty ; which affidavit and papers shall be presented to the court by the clerk on the second day of such term. Mule 10. In cases under the act " to provide Internal Eevenue," &c., the person so claiming shall file with such affidavit and papers, the written consent of the Collector of Internal Revenue for the district in which such fine or penalty was incurred, that a moiety shall be paid to such claimant, or shall show by affida- vit that a copy of such affidavit and papers had been served on such Collector at least eight days before the commencement of such term. Rule 11. OcTOBEB Term, 1864. The cases and points, and all other papers furnished to the court in calendar causes, other than causes for trial before a jury, except the papers sent up from the District Court on appeals in admiralty cases, shall be printed on white writ- ing paper, with a margin on the outer edge of the leaf not less than two inches wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long, and three and a half inches wide. The folios, numbering from the commencement to the end of the papers, shall be printed on the outer margin of the printed page. But the court or either judge thereof, may, before the papers are printed, and at least ten days before the time for which the cause is noticed, or is to be noticed for hearing, by written order, dispense with the printing of papers as aforesaid, a copy of which order shall be served on the attorneys of the parties to the suit interested in such hearing, at least ten days before the day appointed for such hearing. [See Eule without number adopted June 37th, 1871, p. 631, and con- sidered as an amendment to tliis Rule.] Hule 12. OcTOBEK Term, 1864. ISTo cause shall be noticed for trial before the jury, or for NORTHERN DISTRICT OF NEW YORK 629 hearing, upon pleadings and proofs, or upon a case or bill of exceptions, at the adjourned term in January, in the city of Albany, without leave of the court therefor, granted at the previous stated term. But all causes may be noticed for trial or hearing at the adjourned Circuit, to be held on the third Tuesday in March, in the city of Utica, the same as at the stated term. Ittde 13. Mabch Teem, 1868. In order to assimilate the practice of this court to the prac- tice of the State courts in respect to the noticing of causes for trial, and to allow either party to give notice of, and bring on the trial of a cause : It is hereby ordered that the following be added to the general rule of this court, adopted in October Term, 1841 (which provides that "In cases not provided for by the rules of this court, the rules of the District Court for the Northern District of New York, so far as the same are in their nature applicable, are to be considered as Eules of this Court"), the following, viz: And a party defendant or claim- ant, as well as the opposite party, may notice any issue of fact for trial and bring on the trial thereof in pursuance of such notice. See Eule 5 of the Circuit Court of this District, p. 636. Rule 14. Mabch Term, 1868. The following order, made by the presiding judge, has been regarded as having all the force of a standing rule of court, and is as follows : The proctors in the Circuit Court in admiralty appeals must each procure from the clerk of the Circuit Court a certified copy of the apostles, which includes all the papers returned from the District Court, and that the appellant must also pro- cure a certified copy for the court. Rules EEGULATma Appeals ekom the District Coiiet. [These Rules, numbered from 15 to 30 inclusive, were adopted at June Term, 1848. Rule 15. The transcript to be sent to this court, on appeal thereto 630 CIRCUIT COURT RULES from a sentence or decree of the District Court, may be certi- fied by the clerk, of the latter court, under his hand and the seal of the court. Rule 16. Eight days' notice of hearing on appeal shall in all cases be given by the service thereof on the adverse party, or on his proctor. Bule 17. "When an appeal from a decree of the District Court is inter- posed tvfenty days before the next stated session of this court, it may be noticed for hearing at such session by either party. Rule 18. "When an appeal from a decree of the District Court is inter- posed less than twenty days before the next stated session of this court, the appellee may, at his option, notice the cause for hearing at such session, on the first or other day thereof; or have the cause continued until the next stated session. Mule 19. Transcripts of the depositions taken in any cause, in the Dis- trict Court, according to law— whether de hene esse under the acts of Congress, or on commission— and read at the hearing of the cause in that court, may be transmitted to this court on appeal, and read by either party as evidence at the hearing of the cause in this court. Bule 20. A copy of the notes taken by the judge, or under his direc- tion by the Clerk of the District Court, of the evidence of wit- nesses examined orally therein, shall be certified and trans- mitted to this court on appeal, along with the transcript of the record and other proceedings in the cause, and shall be ad- mitted to prove the evidence given by such witnesses; but nothing herein contained shall be construed to abridge the right of the parties to re-examine such witnesses inthis court, if they shall see fit to do so. NORTHERN DISTRICT OF NEW YORK. 631 MISCELLANEOUS EULES. [Adopted at the dates placed at the head of each respectively.] Rule without number. Jakuaby Term, 1870. It is hereby ordered, that so much of the General Eules of this court as provides for the drawing of grand or petit jurors from the county of Kensselaer, be, and the same is hereby repealed; and that hereafter all grand jurors, and all petit jurors, for the terms of this court appointed to be held in the city of Albany, shall be drawn from the county of Albany, as is now provided in respect to the grand and petit jurors, required to be drawn from the county of Albany, under exist- ing General Rules. [Note. — In the office of the Clerk of the Circuit Court this Rule has never been numbered separately, but is considered an amendment to Rule 3, p. 626.] Mule without number. June 27th, 1871. On the hearing of appeals in admiralty the appellants shall furnish to the court a printed copy of the apostles certified by the clerk of this court, unless by special order of the court, obtained before the hearing, such printing or some part thereof, shall be dispensed with. [Note. — In the office of the Clerk of the Circuit Court this Rule has never been numbered separately, but is considered as an amendment to Rule 11, p. 638.] Rule 21. In Equity, March 29th, 1876. After the appearance of a defendant, the service of notices and also of motion papers upon such defendant or upon the complainant, except papers to bring a party into contempt, may hereafter be made by mail when the person making the service and the person on whom it is to be made reside in different places within this State, between which there is a regular com- munication by mail. In case of such service, the notice or other paper to be ■ served must be deposited in the Post Office at the residence of the person making the service, inclosed in an envelope, addressed to the person on whom it is to be served, 632 CIRCUIT COURT RULES at his place of residence, and the full postage prepaid. "When the service is by mail, under this rule, it shall be double the time required in cases of personal service, except notice of a motion, which may be made ten days before the time appointed therefor, and except service of a notice of trial and final hear- ing, which may be made sixteen days before the term at which the trial or final hearing is to be had, including the day of service. Bule 22. JxiNB 38th, 1876. In actions at law a consent to a reference of the whole issue must likewise contain a provision that judgment shall not be entered until after ten days' notice of the filing of the report of the referee and of the judgment proposed to be entered thereon. After a reference, at any time before the entry of judgment, either party may move for a new trial upon a case or exceptions, and if any such motion be denied the decision of the motion and of the questions involved in it may be entered of record as if it had been a ruling made upon a trial by the Judge without a jury, and excepted to in like manner. "When a motion for a new trial is intended to be made, the Court may extend the time for entering judgment, upon the application of the moving party, and may stay all other proceedings until the decision of the motion. Bule 23. Maech 21st, 1877. All pleadings filed, served, or for the use of the Court shall be folioed, and the folios, numbering from the commencement to the end of the papers, shall be marked on the margin of the page, and the Clerk must refuse to file any pleading not thus folioed. Rule 24. Mat 1st, 1877. [Has relation to Eeviews in Bankruptcy, and is not printed here.] Bule 25. JtWE 8th, 1878. No warrant of arrest shall be issued by a Commissioner of the Circuit Court, in a criminal case, unless such warrant is NORTHERN DISTRICT OF NEW YORK. 633 applied for by the District Attorney, or by one of his regularly appointed assistants, in person, or by the authority of such Dis- trict Attorney or assistant, produced in writing to the Com- missioner, or by a Collector of Internal Eevenue, or by his authority, produced in writing to the Commissioner, except that, in an extraordinary case, such warrant may be issued on other apphcation, provided that the commissioner shall assume the responsibility of giving reasons satisfactory to the court for issuing the warrant in such extraordinary case. JSTo account of any Commissioner for issuing a warrant in any other case will be approved by a judge ; and every account shall be ac- companied by an affidavit of the Commissioner, showing by whom each warrant was applied for, and on what authority, and, if the case was such an extraordinary case, what were the reasons for issuing the warrant. Rule witJiout number, OcTOBBK 15th, 1879. Harvey D. Talcott, of the city of Utica, Counsellor at Law, is hereby designated and appointed a Commissioner for the selection of jurors in and ^'or the Northern District of New York, under the provisions of section 2 of an Act of Congress " making appropriations for certain judicial expenses of the Government for the fiscal year ending June 30th, 1880, and for other purposes," approved June 30th, 1879, with aU the powers incident to the office created by said Act. [This has never been considered as a Rule of practice in the same sense as the preceding Rules, but as an appointment in the same category as that of Clerks and United States Commissioners.] Mule without number. October 15th, 1879. Suitable boxes will be provided by the Marshal and dehvered to the Clerk, for the safe-keeping of the names of persons to be selected as eligible to serve as grand and petit jurors. One said box shall be provided and designated for each of the sev- eral counties within the District, where stated terms of the Court are required by law to be held. On the first Tuesday of April, 1880, and annually on that day thereafter, the Clerk 634 CIRCUIT COURT RULES and the Commissioner of Jurors shall select the names of at least four hundred persons for each of said counties, qualified to serve as grand and petit jurors, residents of the county, selected without reference to party affiliations. Each name shall be written on a separate ballot, with the person's place of residence. The first name shall be selected and deposited in the box by the Clerk, and thereafter the Commissioner and the Clerk shall alternately select and deposit a name in the box, until the required number shall be completed. If, at any time, less than three hundred names remain in the box, the Clerk and the Commissioner shall replenish the quota in the manner aforesaid. The boxes shall be locked and retained by the Clerk, and the key shall be kept by the Commissioner. The names of all persons who may be required to serVe as grand or petit Jurors at any term of this Court shall be drawn publicly by the Clerk from the box for the county in which the term is to be held, and at the close of such term, the ballots containing the names of persons who actually served as jurors, or who proved to be ineligible as jurors, shall be destroyed by the Clerk. The Clerk shall post upon the outer door of the Clerk's office notice of the time and place of drawing jurors, at least ten days prior to the drawing, except when jurors are sum- moned during a session of the Court. All rules inconsistent with this rule are hereby abrogated. [See Rule 27, p. 635, amending this Rule. The Clerk of the Court states that this Rule and said Rule 27 have for convenience been practi- cally considered as one Rule.] Bute 26. It is hereby ordered that hereafter, to entitle any cause to be placed on the calendar of this Court, for trial or hearing, a note of issue, stating the date when issue Avas joined, and the nature of the issue, together with the names and residences of the attorneys for the respective parties, shall be filed with the Clerk of this Court at least eight days before the first day of the term. Mule without number. Makch 33d, 1881. Harvey D. Talcott, Commissioner of Jurors of this Court, having removed out of this District and having presented to NORTHERN DISTRICT OP NEW YORK. 635 the Court Ms resignation of said office, Ordered^ that said resig- nation be and it is hereby accepted, to take effect immediately. [Not considered as a practice Rule, but as a Rule of appointment.] JSw?e withotit number. Makch 23d, 1881. Charles A. Doolittle, of the city of Utica, Counsellor at Law, is hereby designated and appointed a Commissioner for the selection of Jurors, in and for the Northern District of New York, under the provisions of section 2 of An Act of Congress " making appropriations for certain judicial expenses for the Government, for the fiscal year ending June 30th, 1880, and for other purposes," approved June 30th, 1879, with all the powers incident to the office created by said Act. This ap- pointment is made in the place and stead of Harvey D. Talcott, resigned. [Not considered as a practice Rule, but as a Rule of appointment.] Rule without number. Jtotb 27th, 1882, A term of this Court having been appointed by law to be held in the City of Sjrracuse, in the County of Onondaga, on the third Tuesday of November in each year, it is Ordered, that the Clerk of this Court and the Commissioner of Jurors, on or before the first day of October, 1882, select the names of at least four hundred jurors, residents of Onondaga County, qualified to serve as grand and petit jurors, in the manner pro- vided by the general Rule of this Court regulating the selection and drawing of jurors to serve in this Court ; and that there- after names of persons to serve as grand and petit jurors at said term shall be selected at the time and in the manner pro- vided in said Rule. It is further ordered, that the Marshal pre- pare a suitable jury box for Onondaga County. [This Rule is practically incorporated in Rule 37, p 635. Mule 27. Mahch 21st, 1883. The Rule heretofore adopted regulating the selection and drawing of jurors to serve in this Court is hereby amended so as to read as follows : ■ 636 CIRCUIT COURT RULES " Suitable boxes will be provided by the Marshal and deliv- ered to the Clerk for the safe-keeping of the names of persons to be selected as eligible to serve as grand and petit jurors. One such box shall be provided and designated for each of the several counties within the district where stated terms of the Court are required by law to be held. Before the first Tues- day in April and the first Tuesday in May, in «ach year, the Clerk of the Court and the Commissioner of Jurors shall select the names of not less than four hundred persons, from the resi- dents of each of said counties in which a stated term of this Court is required by law to be held, quahfied to serve as grand and petit jurors. Such names shall be selected without refer- ence to party affiliations. No person shall be eligible to serve as a grand or petit juror at any term of this Court, unless he is at the time a resident of the county in which such term is held. The name of each person so selected shall be written upon a separate ballot, with his place of residence and occupation. The first name shall be selected by the Clerk and deposited by him in the bo?; designated for the proper county, and the second name shall be selected and deposited by the Commis- sioner of Jurors ; and thereafter the Clerk and the Commis- sioner of Jurors shall alternately select and deposit a name in the box until the required number shall be completed. If at any time less than three hundred names remain in the box, the Clerk and Commissioner of Jurors shall replenish the quota in the manner aforesaid. This provision, however, shall not be deemed to have any reference to the annual filling of the boxes for the several counties, which must contain, on the first Tues- day in May of each year, not less than four hundred names. The several boxes shall be locked and retained in the custody of the Clerk, and the keys shall be kept by the Commissioner of Jurors. The names of all persons who may be required to serve as grand or petit jurors at any term of this Court shall be drawn publicly by the Clerk from the box for the county in which such term is to be held, and at the close of such term the ballots containing the names of persons who actually served as jurors, or who proved to be ineligible to serve as jurors, shall be destroyed by the Clerk. The Clerk shall post on the outer door of the Clerk's office notice of the time and place for draw- NORTHEEN DISTRICT OP NEW YORK. 637 ing jurbrs, at least ten days prior to the drawing, except when jurors are summoned during a session of the Court." All Eules inconsistent with this Eule are hereby abrogated. IRule without number. Makch 21st, 1883. Whereas, Charles A. DooMttle has tendered his resignation as United States Commissioner of Jurors, for the United States Circuit Court for the I^orthern District of New York. It is Ordered, that the said resignation be and the same is hereby accepted, and it is further ordered that William Townsend, Counsellor at Law, of the City of Utica, be and he is hereby appointed as such Commissioner. [Not considered as a Rule of practice, but as a Rule of appointment.] Bule 28. October 9tli, 1883. On Sling the written consent of aU the attorneys for the parties, orders for discontinuance, extensions of time and sub- stitutions of attorneys, reciting such consent, may hereafter be entered by the Clerk, in all cases, without the special direction of the Judge. Bule 29. June 9th, 1884. The appellant, in appeals, the plaintiff in error in writs of error, the excepting party in exceptions to master's reports, and the moving party, on motions for a new trial and the ar- gument of demurrers, shall cause the papers to be printed, and such papers shall include all the papers necessary for the proper presentation of the case on both sides. In all other cases in which printing of papers is required, each party shall cause to be printed the pleadings, proofs and papers filed on his behalf. At the beginning of the argument each party shall furnish his adversary three copies of his printed points, and, at least eight days before the argument, three printed copies of all other papers shall be furnished by the party printing the same to the adverse party. A party recovering costs shall be allowed his disbursements for the printing required of him by this rule. XI. RULES. NOETHERN DISTRICT OF NEW YORK DISTRICT COURT. JUDGE AND OFFICEES OP THE DISTRICT COURT OF THE UNITED STATES FOB THE NORTHERN DISTRICT OF NEW YORK. Alfred C. Coxe — District Judge. Utica, Oneida Co., New York. Maetin I. TowNSEND — United States Attorney. Troy, Rensselaer Co., New York. United States Attorney's Office, at Troy, Kensselaer Co., New York. Chaeles B. GEBMAm — Clerk District Court. Buffalo, Erie Co., New York. Clerk's Office in the Post Office Building at Buffalo, Erie Co., New York. C. D. MacDotjgall — United States Marshal. Rochester, Monroe Co., New York. Marshal's Office, at Rochester, Monroe Co., New York. Court Rooms in Buffalo (Erie Co.), TJtioa (Oneida Co.), and Albany (Albany Co.), are in the Post Office Buildings of said cities respectively, and in Auburn (Cayuga Co.) and Rochester (Monroe Co.), in the Court Houses respectively. District Courts are held at Albany on the 3d Tuesday in January; at Utica on the 3d Tuesday iu March ; at Rochester on the 2d Tuesday in May ; at Buffalo on the 3d Tuesday in September ; at Auburn on the 3d Tuesday in November, and in the discretion of the Judge one term an- nually at such time and place as he may appoint within the counties of Onondaga, Saint Lawrence, Clinton, Jefferson, Oswego and Franklin. Tor Fbdbbal Statutes especially relating to this Court, see — Respecting the Practice in the District Courts generally, their power to make Rules, etc., pp. 353 to 355. Respecting Pees, etc., pp. 357 to 372. Respecting the Jurisdiction of this Court, etc., p. 375. Respecting Sessions, etc., pp. 379 and 387. RULES DISTRICT COURT OF THE UNITED STATES NOETHEEN DISTEICT OF NEW TOEK. GENEEAL EULES. Mule 1. The clerk of this court shall reside and keep his office at Buffalo until otherwise ordered by the court. Mule 2. Proctors of any circuit or district court of the United States, attorneys of the supreme court, and solicitors of the court of chancery of the State of New York, may, on motion in open court, or on presentation of their licenses to the clerk in vaca- tion, be admitted attorneys and proctors of this court ; and counsellors and advocates of any circuit or district courts, and counsellors of the said supreme court and court of chancery may, in like manner, be admitted counsellors and advocates of this court, of course, on taking the oath or affirmation pre- scribed by the third rule of this court. Mule 3. AH persons admitted to practise in this court shall take either an oath or affirmation of the tenor following, viz. : I do solemnly swear (or affirm, as the case may be) that I will demean myself as attorney (or counsellor, solicitor, 41 642 DISTRICT COURT RULES proctor or advocate, as the case may be), of this court, up- rightly aud according to law, and that I will support the con- stitution of the United States. Rule 4. Every attorney, proctor and solicitor of this court, who does not reside in Utica, shall have ari agent residing there. But if such attorney, proctor or solicitor has an agent in the supreme court of the state residing there, he shall be considered the agent of such attorney, proctor or solicitor in this court. The appointment of agents in this court shall be in writing, signed by the principal, and filed in the olflce of the clerk, who shall keep a catalogue of the appointments filed, with the names of the attorneys alphabetically arranged ; and no person shall be agent unless beds an attorney of this court or of the supreme court of the state. [This Kule is in practice now obsolete and not in force.] Rule 5. "When the attorneys, proctors or solicitors of the adverse parties do not reside within forty miles of each other, service may be made on the agent. Rule 6. If the attorney, proctor or solicitor, not resident in Utica, has no agent there, either in the supreme court of the state or in this court, service of aU papers and notices may be made as to him, by afiixing the same in a conspicuous place in the office of the clerk of this court. [This Rule is in practice now obsolete and not in force.] Rule 7. When the service is on the agent, or is made by affixing the notice or paper in the clerk's office, it must be double the time of service required where the service is on the attorney, proctor or solicitor. Rule 8. All notices shall be in writing, and shall be served on the attorney, proctor or solicitor in the cause, or his agent, or by NORTHERN DISTRICT OF NEW YORK. 643 afBxing in the clerk's office, and not on the party ; but where a party, who is also an attorney, proctor or solicitor of this court, shall prosecute or defend in person, all notices and other papers shall be served ou him in like manner, except where the proceeding is by bill, in which case the biU shall be personally served ; and where the object is to bring a party into contempt for disobeying any rule or order of court, the service shall be personal, unless otherwise ordered by the court. Rule 9. Ifotices and papers may be served on an attorney, solicitor or proctor, during his absence from his office, by leaving the same with his clerk in such office, or with a person having charge thereof ; or, where no person is to be found in the office, by leaving the same between the hours of six in the morning and nine in the evening, in some suitable and conspic- uous place in such office ; or, if the office be not open so as to admit of service therein, then by leaving the same at the resi- dence of the attorney, solicitor or proctor, with some person of suitable age and discretion. Mule 10. "Where a party, other than an attorney, solicitor or proctor of this court, prosecutes or defends in person, the service of notices and papers may be on such party personally, or by put- ting the same into the post-office, directed to him or her at his place of residence. And no service of notices or papers in the ordinary proceedings in a cause, shall be necessary to be made on a defendant, who has not appeared therein, except where the defendant is returned imprisoned for want of bail, in which case a copy of the declaration and notice of the rule to plead shall be delivered to him, or to the sheriff or jailer, in whose custody he may be ; and where an exception is entered to bail, and no notice of retainer of attorney to defend is given, notice of such exception shall be delivered to +he sheriff or one of his deputies. IRtile 11. Actions brought for the recovery of any debt, or for damages only, may be commenced, either — 644 DISTRICT COURT RULES 1. By the issuing and service of a capias ad respondendum against persons not privileged from arrest ; 2. By summons against corporations ; or, 3. By filing in the office of the clerk of this court a declara- tion ; entering a rule in the book of common rules kept by such clerk, requiring the defendant to plead to such declara- tion, according to the practice of the court ; and serving a copy of such declaration and notice of such rule personally on the defendant ; which last mode of commencing an action may be adopted against any person, whether privileged from arrest or not. Rule 12. Upon due proof of the service of a declaration personally upon all the defendants in the cause, their appearance shall be entered by the clerk in the same manner as if they had in- dorsed their appearance on a capias ; and their default may be entered for not pleading, and the same proceedings may be had against them, in aU respects, as if they had appeared. Mule 13. AU process, if issued in term time, may be tested on any day in that term, and made returnable on any day in the same term, or in the next term ; and if issued in vacation, may be tested on any day in the preceding term, and be made return- able on any day in the next term ; and the term shall include every day from the commencement thereof until the final ad- journment of the court, notwithstanding intermediate adjourn- ments. And in case any stated term shall not be held, process may be tested on the day fixed by law for the com- mencement of such term. Sule 14. Upon the service of a capias ad respondendum, which does not require the defendant to be held to bail, he may indorse his appearance on such writ, or, if he refuse to do so, the officer may return the writ personally served; and, in either case, it shall be the duty of the clerk, upon the return of the Avrit, to enter the appearance of the defendant upon whom the same NORTHERN DISTRICT OF NEW YORK. 645 was served ; and proceedings may thereupon be had against such defendant, as if he had actually appeared. Rule 15. "When the capias has been served on the real party intended, the plaintiff, before or after its return, may amend, of course, any error in the name of the party inserted in the process, giv- ing the defendant notice of such amendment. Rule 16. The court will not entertain a motion to set aside the process or proceedings in a cause on the ground of the misnomer of the party arrested ; but will leave him to his remedy by a plea in abatement. Rule 17. No person shall be held to bail on a capias ad respondendum, unless the true cause of action be particularly expressed therein. Rule 18. The defendant may be held to bail in the cases and in the manner, and subject to the exceptions prescribed by the laws of this State ; and bail may be put in, and the bail piece filed before the return day of the writ, for the purpose of surrender- ing the principal. Rule 19. In suits brought against persons accountable for public money, for the recovery thereof, in which the defendant is held to bail, it shall be the duty of the ofiicer making the arrest, to exact a bail bond, conditioned for the appearance of the defendant on the return day of the writ, and unless it shall be made to appear that the plaintiff is not entitled by law to judgment at the return term, special bail shall be put in, and the bail, if excepted to, shall justify within two days after the return day of the writ, and before the adjournment of the court at the return term ; otherwise the plaintiff may sue out process upon the bail bond, returnable on any day in the ensu- ing vacation, and upon the return of such process, served, may proceed to judgment and execution, as of the preceding term, 646 DISTRICT COURT RULES unless the defendant shall interpose a valid plea, verified by affidavit ; and judgment may also be entered in the principal suit in the same manner as if special bail had been put in and perfected. But if, within the time herein allowed for putting in and perfecting special bail, the defendant shall, by making the oath or affirmation prescribed by law, entitle himself to a continuance until the next term, he shall have the same time allowed as is allowed in other cases after the return day of the writ, to put in and perfect such bail. Mule 20. In suits upon bonds for the payment of duties, and in suits brought against persons accountable for pubKc money, for the recovery thereof, the declaration may be filed on the day upon which the writ is returnable and returned, and the dis- trict attorney may thereupon move in open court for judgment, and, no plea being interposed, may have final judgment entered instanter. Utile 21, When, in suits upon bonds for the payment of duties, and in suits brought against persons accountable for public money, for the recovery thereof, the defendant interposes a plea, the dis- trict attorney may have the cause placed on the calendar, at the same term, without other notice ; and may bring the same to trial when called, unless the court shall continue the cause over at the instance of the defendant. Bule 22. In suits in which the United States are plaintifiPs, or in which they are interested though not plaintiffs, if the bail to the arrest become special bail, the assignment of the bail bond and the acceptance thereof by tha plaintiff's attorney shall not pre- clude him from excepting to the sufficiency of such special bail ; and the marshal shall still be responsible for good bail, notwithstanding such assignment and acceptance of tbe bail bond. Mule 23. E"o plea shall be received in any suit instituted in this court NORTHERN DISTRICT OF NEW YORK. 64Y upon a bond executed to the United States for the payment of duties, or in any suit instituted upon a bail bond taken in con- sequence of such suit, unless such plea shall be accompanied by an affidavit of the truth of the matters in the plea contained. In seizure cases, the defendant or claimant, instead of specially traversing any or all of the allegations of the informa- tion, may plead in substance "that the goods, articles and property, in the said information mentioned, did not, nor did any, or either of them, or any part thereof, become forfeited in manner and form, as is in the said information in that behalf alleged," or may otherwise directly and expressly deny, in similar general terms, the forfeiture alleged, which shall be deemed a good plea of the general issue, to such information, and shall put in issue all the allegations thereof. When, in any such seizure case, the defendant or claimant shall, in his plea, make any affirmative allegation or allegations of matters of fact, by way of defence or answer to the information therein, the same shall be considered as denied by the district attorney and the United States, and no repUcation, either general or special, shall be required or allowed. Within twenty days after such plea shall be filed and served the United States may amend the information, as of course, and may add new allegations for the purpose of avoiding, explain- ing or adding to the new matter alleged in such plea, and the defendant or claimant shall have twenty days after the filing and service of such amended information to file and serve his plea to the same. Rvle 24. The time for putting in special bail, and giving notice thereof, shall be twenty days from the day on which the process shall be returnable ; the time for exception and notice thereof, twenty days from the day of notice of bail ; the time of justification, eight days from the day of notice of excep- tion; and notice of justification shall be given four days before the day of justification. Bail may justify in open court, or be- fore the judge at chambers, or before the clerk, with the right of appeal in the last case to the court, or judge at cham- bers. 648 DISTRICT COURT RULES Mule 23. The following shall be the terms on which proceedings shall be stayed in suits on bail bonds : 1. Putting in and perfecting bail above, and paying the costs of the suit on the bail bond, and of the motion for relief. 2. Pleading issuably, and consenting to place the cause on the calendar, and to proceed to trial at the same term ; or in case of refusal so to plead and consent, the entry of a judg- ment on the baU bond to stand as security. Hule 26. Common rules (or rules of course, without special cause shown), and rules by consent may be entered in the proper book in the clerk's oflBce in term or in vacation ; the day of entering the same being noted therein; and the party may enter such rule as he mS,y conceive himself entitled to, of course, but at his peril. Bule 27. The defendant, having perfected his appearance, may at any time thereafter take a rule against the plaintiff to declare in twenty days after service of notice of the rule, or that judg- ment of discontinuance be entered against him. Bute 28. The rule to plead, to answer, or to join in demurrer, shall be a rule' of twenty days ; but the plaintiff shall not be held to accept a plea in abatement after four days from the day of service of the notice of the rule to plead, and a copy of the declaration; and the rule to join the demurrer to such plea shall be a rule of four days only. Ride 29. "When there shall have been judgment of respondeas ouster, on a demurrer to a plea in abatement, and the plaintiff shall have served the defendant with a notice of such judgment, the defendant shall plead within four days from the day of service of such notice, or his default in not pleading may be entered. NORTHERN DISTRICT OF NEW YORK. 649 Bute 30. The party in whose favor a default has been entered may, on any day afterwards in term, have a rule entered for such judgment as is to be rendered by law by reason of such result. In aU actions sounding in damages, after judgment for the plaintiff by default or on demurrer, the damages shall be as- sessed on a writ of inquiry, or by the clerk, as the case may be. Sule 31. Fourteen days' notice of trial, and six days' notice of coun- termand, shall be given in all cases. A party defendant or claimant, as well as the opposite party, may notice any issue of fact for trial, and bring on the trial thereof in pursuance of such notice. The like notice of assessment and of inquiry (where such notices are necessary) shall also be given, and may be given at any time after default entered, and for any day in term ; but no notice of assessment or of inquiry shall be required, except when the defendant shall have appeared by attorney, or shall have given notice of his intention to ap- pear and defend the action. Rule 32. Rules for final judgment, unless cause to the contrary be shown, shall become absolute upon the expiration of four days in term, after the entry thereof, or, if there shall not be so many days remaining in term, then upon the expiration of the term. Mule 33. When notice of retainer shall be received before the defend- ant's default in not pleading has been entered, a copy of the declaration and notice of the rule to plead (unless they shall have been served on the defendant personally) shall be served on the attorney retained, and the rule to plead shall be from the time of such service, and the service of all other pleadings, papers and notices, to be made after notice of retainer, shall be on the attorney retained. Hule 34. If the plaintiff shall make default in declaring, then the de- 650 DISTRICT COURT RULES fendant, or if either party shall make default in answering, then the opposite party, may have the default entered in the book of common rules ; but where the previous service of a notice of a rule, copy of a pleading, or of any other matter shall be requisite, the default shaU not be entered unless an affidavit of such service shall be filed ; neither shall it be en- tered untU special bail, if required, is put in, and, if excepted to, has justified. Utile 35. The defendant's default being duly entered, the plaintiff shall not be bound afterwards to accept a plea, unless the de- fendant, as soon as he shall know that the default has been entered, shall file an affidavit of merits, and serve a copy, pay or tender the amount of the costs of default', plead issuably, and consent to go to trial at the next term. Bule 36. The plaintiff may, at any time before the default for not re- plying shall be entered, if the plea shall be a special plea, or a plea in abatement, or within twenty days after service of a copy of the plea, if it shall be the general issue, amend his declaration. After plea, either party may, before default for not answering shall be entered, amend the pleading to be an- swered ; and, where there shall be a demurrer to a declaration or other pleading, such pleading may be amended at any time before the default for not joining in demurrer shall be entered. The respective parties may amend under this rule of course, and without costs, but shall not be entitled so to amend more than once. This rule shall be construed to allow amendments to be made by adding new counts or pleas, but not so as to allow of any amendment to a plea in abatement. Utile 37. In order to amend, a rule for that purpose shall be entered in the clerk's office, which, however, need not specify the amendments ; but a copy of the amended pleading shall be filed ; and the rule to plead or answer, if notice thereof shall have been given, shall be from the day of the service of a copy of the pleading as amended and on file. NORTHERN DISTRICT OF NEW YORK. 651 Bule 38. If the defendant shaU plead the general issue, the cause shall be at issue, unless the plaintiff shall, within twenty days there- after, amend his declaration ; and if either party shall, in plead- ing in any degree after the plea, tender an issue to the country, and if the opposite party shall not demur to the pleading within twenty days after service of a copy thereof, the cause shall in each of these cases be deemed at issue. Bule 39. Applications made by a party in pursuance of the fifteenth section of the judicial act, to require the opposite party to pro- duce books and writings, must be made upon petition, verified by affidavit, setting forth plainly the facts and circumstances upon which the application is founded ; and in such petition, or in the affidavit thereunto subjoined, it must be stated that the books or writings, the production whereof is sought, are not in the possession nor under the control of the petitioner, and that he is advised by his counsel, and verily believes, that the production of the books or writings mentioned in such peti- tion is necessary to enable him safely to proceed in the prose- cution or defence (as the case may be) of his suit. Bule 40. The petition may be presented to the judge of this court in vacation, as well as to the court in term ; and the order to be made thereon shall be that the party against whom the appli- cation is made shall produce the books or writing's mentioned in the petition, or show cause, on the day and at the place to be therein specified, why the prayer of such petition should not be granted. Bule 4:1. Such order shall also specify the manner in which such books or writings shall be produced, and may require the party either to produce and deposit the same with the clerk of this court, or to dehver to the petitioner or his attorney copies thereof, veri- fied by oath. Bule 42. A copy of such petition, together with a copy of the order 652 DISTRICT COURT RULES made thereon, shall be served upon the attorney of the party against whom the order is directed a reasonable time, to be prescribed in the order, before the day therein prescribed for showing cause. Rule 43. Commissions to take the examination of witnesses, resident without the district, may issue by order of the court in term, or of the judge thereof in vacation, in the manner, and subject to the regulations, so far as the same are applicable, mutatis mutandis, prescribed by the Revised Statutes of this state. Rule 44:. Such commissions may also be issued by consent. But the agreement for that purpose shall be in writing, and filed in the clerk's office ; and the clerk shall, in such case, make an indorsement upon the commission, under his signature, in the following form : " Allowed by consent of parties." Rule 45. When a cause is noticed for trial, a notice thereof, with a note of the issue and of the pleadings, and the attorneys' names, shall be delivered to the clerk on or before the Thurs- day preceding term ; the clerk shall, as early as the following day, have the calendar of causes to be tried made up, arrang- ing them according to the dates of their issues ; and no cause shall be put upon the calendar without the special order of the court, unless the note of issue shall be furnished, as is hereby required. Rule 46. For the purpose of summoning and returning jurors to serve upon trials of issues in this court at the terms thereof appointed by law, or which may be appointed by the special order of the judge thereof, to be held in the village of IJtica, the clerk of this court, together with the marshal, or his deputy, resident in Utica, shall, at least fourteen days previous to every such term, repair to the office of the clerk of the county of Oneida, where the clerk of this court, in presence and with the assist- ance of the said clerk of the county of Oneida, and of the mar- NORTHERN DISTRICT OF NEW YORK. 653 shal or his said deputy, shall proceed to draw out of the box kept in the said office, containing the names of the jurors of the said county, thirty-six slips of paper ; and the clerk of this court shall immediately thereafter make out and certify, under his hand, a list of the jurors so drawn as aforesaid, with their respective additions and places of abode, and deliver the same to the said marshal, or his said deputy, who shall summon the persons named in such list to serve as jurors. And for the purpose of summoning and returning jurors to serve upon the trial of issues in this court, at the terms thereof appointed by law, or which may be appointed by the special order of the judge thereof, to be held in the city of Albany, the marshal, or his deputy resident in the said city, shall, at least fourteen days previous to every such term, repair, from term to term, to the office of the clerk of the city and county of Albany, where, in the presence and with the assistance of such clerk, the marshal or his said deputy shall proceed to draw out of the box kept in the said office, containing the names of the jurors of such county, thirty-six slips of paper, and shall immediately thereafter make out a list of the jurors so drawn as aforesaid, with their respective additions and places of abode, and shall request such clerk to certify the same, under his hand, and, in case of his refusal so to do, shall certify the same under his own hand, and thereupon proceed to sum- mon the persons named in such list to serve as jurors; and, in like manner, shall jurors, to serve at the terms of the court appointed by law, or by special order, to be held at other places, be drawn, summoned and returned by the mar- shal or one of his deputies ; and, in these cases, the jurors shall be taken from the counties respectively in which the term of the court at which they are to serve is to be held. At least six days' notice of the drawing of every jury shall be given by the clerk of this court, by affixing such notice upon the outer door of the house where the court for which such jury is to be drawn is to be held. The jurors to serve at any court shall be summoned at least six days previous to the sitting thereof, by giving personal no- tice to each person, or by leaving a written notice at his place of residence, with some person of proper age. The marshal or 654 DISTRICT COURT RULES his deputy, by wliom the jurors are summoned, shall return the list of jurors to the court at the opening thereof, specifying those who were summoned, and the manner in which each person was notified. It shall be the duty of the marshal, or of his deputy, hav- ing possession of the same, to furnish any person applying therefor, and paying therefor a fee of twenty-five cents, a copy of the list of jurors drawn to attend any court. Bule 47. Whenever it shall be intended to move to set aside a nonsuit or verdict, except for irregularity, a case shall be prepared by the party intending to make the motion, and a copy thereof shall be served within four days after the trial on the opposite party, who may, within four days thereafter, prepare amend- ments thereto, and serve a copy on the party who prepared the case, who may then, within four days thereafter, serve the opposite party with notice to appear, within a convenient time, before the judge, to have the case and amendments settled. The judge shall thereupon correct and settle the case, as he shall deem to consist with the truth of the facts. The time for settling the case must be specified in the notice, and shall be not less than four, nor more than twenty days, after service of such notice. Htde 48. If the party omit to make a case within the time above limited, he shall be deemed to have waived his right thereto ; and when a case is made and the parties shall omit, within the several times above limited, the one party to propose amendments, and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as proposed. If judgment has been ren- dered upon a verdict, the party intending to move for a new trial shall give four days' notice in writing to the opposite party of any motion to stay execution thereon, and also of the petition intended to be filed pursuant to the 18th section of the act of September 24th, 1789, unless a shorter time be allowed by the court or the judges. NORTHERN DISTRICT OF NEW YORK, 655 Rule 49. General verdicts may be taken subject to the opinion of the court on a case to be made by the party in whose favor the verdict is taken, containing all the evidence given at the trial, the case to be prepared and settled in the manner prescribed in the foregoing rules. Sule SO. In cases of exceptions taken, demurrer to evidence or special verdict, the party shall not be required to prepare at the trial his bill of exceptions, demurrer, statement of evidence or special case, or to put in form the special verdict, but shall merely reduce such exceptions to writing, or make a minute to the demurrer to the evidence, and of the facts found specially by the jury, as the case may happen to be, and dehver it to the judge, or the Judge will himself note the points, as he may direct ; and the bill, demurrer or special verdict, shall after- wards be drawn up, amended and settled within such times and under the same regulations as are made with respect to cases. JRtde 51. A bill of exceptions may, before judgment, be used instead of a case on motion for a new trial, and notice of such motion, together with an order to stay proceedings, and a copy of such biU of exceptions shall operate to stay aU further proceedings until the decision of the court : Provided, that proceedings shall not be longer stayed than if a case had been made. Rule 32. All questions for argument and all motions shall be brought before the court on motion for that purpose, and, if the oppo- site party shall not appear to oppose, the party making the motion shall be entitled to the rule or judgment moved for, on ' proof of due service of the notice and papers required to be served by him. Rule 53. Enumerated motions are motions in arre^ of judgment ; to bring on to be argued questions arising on special verdict, case reserved at the trial, case agreed between the parties without 656 DISTRICT COURT RULES trial ; demurrer to evidence or pleadings ; and all motions to set aside nonsuit, verdict or inquisition, for other cause than irregularity only. Mule S4. s Enumerated motions shall be noticed for the first day in term, by a notice of at least eight days, and may be noticed and brought on by either party. "When such notice is given by the party whose duty it is to furnish the case, demurrer-books, or other papers on which the motion is founded, such notice shall be accompanied with copies of such papers. Mule 55. Enumerated motions set down for argument shall be placed on the calendar after the causes noticed for trial, and the same rules relative to the furnishing of the clerk with notes of issue, &c., and to the making up of the calendar in cases of issues of fact, shall be applicable to them also. The date of the issue shall be, in case of motion in arrest of judgment, of special verdict, case reserved at the trial, motion to set aside verdict or nonsuit, bill of exceptions, or demurrer to evidence, the day on which the trial took place; and in case of demurrer to pleadings, the day on which the joinder in demurrer was received. Mule 56. The party bringing on the argument shall, at the opening thereof, furnish the judge with a copy of the case, demurrer to evidence, special verdict, or, where the motion is for a new trial upon newly discovered evidence, with copies of the afiBi- davits and other papers, if any, on which the motion is founded or opposed ; or if the motion be in arrest of judgment, with copies of the pleadings, or so much thereof as may be neces- sary. A note of the points or questions intended to be raised, by each of the respective parties shall also, at the same time, be furnished to the judge and to the opposite party. . Mule 57. Whenever an order to stay proceedings shall be granted to en- able the party to make a special motion, service of such order, NORTHERN DISTRICT OF NEW YORK. 65Y with copies of the affidavits upon which it is granted and notice of the motion, shall operate as a stay of proceedings until the further order of the court. But if the party shall neglect to bring on the motion to be heard during the term, according to his notice, the proceedings shall not be longer stayed, and he shall be liable to pay the costs of attending to resist the motion. Rule 58. No private agreement or consent between the parties or their attorneys in respect to the proceedings in a cause shall be bind- ing, unless the same shall be reduced to the form of a rule by consent, and entered accordingly in the book of common rules, or unless the evidence thereof shall be in writing, subscribed by the party, or his attorney, against whom the same shall be al- leged. RtJile 39. Non-enumerated motions shall be noticed for the first day of term, by a notice of at least eight days, accompanied with copies of the affidavits and papers on which the same shall be made ; and notice shall not be for a later day in term, unless sufiicient cause be shown in the affidavits served for not giv- ing notice for the first day. Rule 60. When a party shall, before motion, offer to comply fully with the terms of the order which it is the practice of the court upon motion in like cases to make, and shall also pay the costs, if any, on the same being thereupon taxed and de- manded, he shall be entitled to costs from the opposite party, if the motion shall be afterwards made. Rule 61. In all cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party whose duty it shall be to comply therewith, shaU have twenty days for that purpose, unless otherwise directed in the order. And where, by the terms of any order, an act is directed to 42 658 DISTEICT COURT RULES be done instcmter, it shall be understood to require such act to be performed within twenty-four hours. Bule 62. ."Whenever the plaintiff shaU have neglected to bring his cause to trial, according to the practice of the court, he may, if he have not before stipulated, tender a stipulation and offer to pay the costs to which the defendant is entitled, up to that time ; and if the defendant shall afterwards move for judgment as in case of nonsuit, he shall pay costs to the plaintiff, except where the plaintiff shall, after demand, have refused to pay the costs as taxed. Mule 63. "Wlien on motion for judgment, as in case for nonsuit, the plaintiff shall be permitted to stipulate, he shall, within twenty days thereafter, tender a stipulation to the defendant, and shall pay the costs ordered to be paid thereon ; and if the stipulation be not tendered, and the costs paid within that time, the de- fendant on filing an affidavit of such omission of tender and non-payment, may, after the expiration of twenty days, enter judgment as in case of nonsuit as of the preceding term. Mule 64. The provisions contained in Title 2d of Chapter 10th of Part 3d of the Revised Statutes of this State, relative to security for costs shall be taken and held to be rules of this court. Mule 63. To effect a surrender of bail, the bail or principal shall pro- duce to the judge two certified copies of the bail piece, on one of which the judge will indorse a committitur, and on the other an order that the plaintiff show ca\ise before him, on such day as he may designate, why the bail should not be exonerated. Mule 66. On due proof of the service of such order on the plaintiff or his attorney, and on proof by the certificate of the marshal or his (Jeputy, to Avhose custody the defendant has been com- NORTHERN DISTRICT OP NEW YORK. 659 mitted in virtue of such oommittitur, acknowledged before the judge by such officer, or proved by the oath of a subscribing witness thereto, if no sufficient cause to the contrary be shown, the judge wUl indorse an order on the second certified copy of the bail piece, that an exoneretur be entered. If the plaintiff, or his attorney, upon whom the rule to show cause is served, resides at the time of service more than one hundred miles from the place at which cause is to be shown, such rule shall be served eight days before the time specified therein for show- ing cause ; in other cases four days shall be sufficient. Mule 67. Such certified copy shall be filed, and the clerk shall indorse thereon an exoneretur, and shall also enter in the register of bail the discharge of the bail. Bule 68. Wh'enever a bail bond shall be taken on the arrest of a defendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of the bail, in the same manner, and with the like effect, as in the case of special bail, except that true copies of the bail bond, proved to be such by the affidavit of the marshal or his deputy, or of a sub- scribing witness, shall be used instead of certified copies of the bail piece. Bule 69. In case a defendant who has procured special bail in a suit in this court, shall be afterwards arrested in any other district, and committed to a jail, the use whereof has been ceded to the IJnited States for the custody of prisoners, he may be sur- rendered at the request of his bail, and in pursuance of the act of Congress in such case made and provided, in the manner provided in the foregoing rules for ordinary cases. Rule 70. AU moneys paid into court which any collector of customs is entitled by law to receive, shall, after deducting the costs, be paid over to him by the clerk, upon an order to be entered, of course, for that purpose. 660 DISTRICT COURT RULES Bule 71. [This Eule originally designated the bank in which all moneys paid into court, which were required by law to be de- posited in a branch bank of the United States, should be deposited. The Eule is virtually superseded by §§ 995 and 996 of the Eevised Statutes (Second Edition), p. 186, under which the Secretary of the Treasury has designated several national banks in the Northern District of New York as United States depositories.] Hule 72. All checks for money so deposited, to be drawn out of the bank, shall be signed by the clerk, as clerk, and such check shall be written on the same paper which contains the order of the judge for that purpose. Mule 73. A book shall be kept by the clerk, in which he shall enter a fuU and particular account, under the title of each cause depending in the court, of all moneys paid into court in such cause, and of the payment thereof ; and such book shall at all times be open to the inspection and examination of the judge of this court, the attorney of the United States, and the marshal of the district ; and any particular account may also, upon request, be inspected by any person interested therein. Bule 74. All process issued by this court shall be of like form and effect with process issued in like cases by the supreme court of this State, unless otherwise directed by rule. MuZe 75. The marshal, his deputies, and all other persons concerned in the service of any process of this court, are respectively pro- hibited from becoming bail in any suit depending in this court, unless for the purpose of surrendering the defendant, in which case the surrender shall be made within fourteen days after special bail shall have been put in. NORTHERN DISTRICT OF NEW YORK. 661 Mule 76. The bond required by law to be executed by the clerk of this court for the faithful performance of his duties as such, shall be recorded in his office, and immediately thereafter deposited in the Branch Bank of the United States in the village of Utica, subject to be delivered, upon the order of the judge, to such person as shall be designated in such order ; and the marshal's bond shall be recorded and filed in the clerk's office. Bule 77. In causes vrherein the marshal of the district or his deputy is a party in interest, aU process shall be directed and dehvered to the sheriff or under sheriff of the county of Oneida, for the time being, who is hereby appointed, ex officio, in pursuance of the act of Congress in such case made and provided, to serve and execute such process. Bule 78. [This Kule has been repealed.]* Bule 79. The clerk may tax and certify biUs of costs, and sign judg- ment records. Bule 80. On an indictment found by the grand jury, the district attor- ney may forthwith sue out a capias under the seal of the court, for the arrest of the person indicted. Bule 81. "Where default is made by any party or witness, bound by recognizance in any criminal proceeding, the clerk shaU imme- diately issue a scire facias thereon. Bule 82. Where a fine is imposed by the court on any person for any cause, and the party is not thereupon committed, and such fine is not discharged previously to the close of the term, the clerk shaU issue to the marshal a warrant of execution, commanding 662 DISTRICT COURT RULES him to levy and make such, fine of the goods and chattels, or, in default thereof, of the lands and tenements of the party. Bule 83. In aU cases not provided for by the rules of this court, or by law, the practice of the supreme court of this State, as pre- scribed by the Eevised Statutes of this State, and by the rules of the said court, shall regulate the practice of this court, so far as the same may be applicable. Rule 84. Persons summoned to serve as jurors in this court will be discharged or excused from serving therein, whenever by the law of this State, it would be the duty of the courts of the State to discharge or excuse such persons from serving therein. See Act of Congress of July 30th, 1840, ch. 47, 5 Stat, at Large, 394, embodied in Kevised Statutes (Second Edition), § 800, p. 150, virtually superseding this Bule. Hule 85. Any issue of fact, which, according to the Act of Congress of July 1, 1838, entitled " An act to increase and regulate the terms of the circuit and district courts for the northern district of the State of New York," would be triable at a term of the court required by law to be held in any one of the divisions of the said district into which it is divided by the said act, may be tried at a term of the court required to be held in any other of the said divisions of the said district, provided the adverse parties or their attorneys, by a stipulation in writing, signed by them and filed in the clerk's office, shall enter into an agree- ment to such effect. DELIVEEY OF PEOPEETY UNDEE SEIZUEE, PEN- DENTE LITE. Bxile 86. 1. AppUcations for the delivery to the claimant of property, seized as forfeited under any law of the United States, may be made at any time after the service of the monition and war- rant of arrest. NOKTHERN DISTRICT OF ISTEW YORK. 6^3 2. At least four days' notice of the appKcation shall be given to the district attorney and to the collector of the collection district in which the seizure was made, accompanied by the service on each of them of a copy of the petition for delivery ; unless the application be made in open court, when the district attorney and the' collector are present; in which case no pre- vious notice shall be necess&,ry. 3. Unless a claim duly verified shall have already been in- terposed by the applicant, he shall show, at the time of his application, by his own oath or other evidence, that he is law- fully entitled to appear as claimant in the case. 4. The appraisers shall be sworn faithfully and fairly to ap- praise the property in question, and make a true report of the value thereof, according to the best of their understanding, without unnecessary delay. 5. Reasonable notice of the time and place appointed by the appraisers to make the appraisement shall be given to the dis- trict attorney, the collector and the claimant. 6. For the purpose of ascertaining the value of the property to be appraised, the appraisers may examine such persons on oath, and receive such affidavits, taken before one of the com- missioners of this court (who are hereby authorized to take such affidavits), as they may think proper. 7. On the return of the appraisement to the court, or to the judge in vacation, accompanied by a certificate from the col- lector and naval officer (if there be one), that the duties on the property seized, if any be chargeable thereon, have been paid ; and on satisfactory evidence that the expenses of the appraise- ment have been paid by the claimant ; and, on the execution by the claimant of a bond, in conformity with the statutes of the United States in such case made and provided, before the court, the judge, or the clerk, an order will be granted for the dehvery of the property to the claimant. 8. The appraisers shall severally be entitled to be paid, for their services in making an appraisement, three dollars a day for each day necessarily spent in the performance of such services. 9. But whenever, in any case, the value of the property seized shall be agreed upon between the collector and district 664 DISTRICT COURT RULES attorney in behalf of the United States and the claimant, and a certificate in writing, expressive of such agreement, shall be signed by them, and filed in the clerk's office, such valuation (in conformity with the practice of the court heretofore) shall have the same validity and effect as if it had been made and reported by appraisers duly appointed for that purpose. SALE OF PERISHABLE FROPEETY. Rule 87. 1. Apphcation for the sale of perishable property seized as forfeited under any law of the United States, may be made either by the district attorney in behalf of the United States, or by the claimant, at any time after the service of the moni- tion and warrant of arrest. 2. At least four days' notice of the application, when made by the claimant, shall be given to the district attorney, and to the collector within whose collection district the seizure was made, accompanied by the service of a copy of the petition for the decree or order of sale ; and a like notice shall be given to the claimant, if there be one, or to his proctor or attorney, when the apphcation is made by the district attorney. But when the application is made in open court, and the proctor or attorney of the opposite party is present, no previous notice shall be necessary. 8. "When the application is made by the claimant before a claim duly verified shall have been already interposed, he shall be required to show, at the time of his application, by his own oath, or other evidence, that he is lawfully entitled to appear as claimant in the case. 4. The place of sale, and the length of the notice of sale to be given by the marshal (which, unless otherwise specially di- rected, shall be given in the manner prescribed by the 90th section of the collection act of March 2, 1799, in cases of con- demnation), will be determined by the court or the judge, in each case, according to its nature and circumstances, and pre- scribed in the order of sale. 5. When the application for an order of sale is resisted by the opposite party, and the propriety of such order appears NORTHERN DISTRICT OF NEW YORK. 665 doubtful, surveyors will be appointed, preliminarily, to examine and report as to the condition of the property. EEMISSIOI^ OF FINES, PENALTIES, FOEFEITUEES, AND DISABILITIES. Bule 88. Preparatory to the presentation of a petition for the remis- sion or mitigation of any fine, penalty, forfeiture or disability, a copy of such petition, together with a notice of the time and place of presenting the same, shall be served on the attorney of the United States, and another copy with the like notice on the person or persons claiming the fine, penalty or forfeiture, ten days before the time of presenting the petition. Bide 89. The petition, in addition to the other circumstances of the case, shall state whether any and what suit has been instituted, and what proceedings have been had for the recovery of the fine, penalty or forfeiture, up to the time of preferring the petition. Mule 90. The clerk, under the direction of the judge, shall prepare a statement of the facts relative to the case which appear upon the inquiry, and forthwith transmit the same, together with the petition, to the Secretary of the Treasury. Mule 91. The fees of the clerk shall be paid by the petitioner before the transmission of the petition and statement to the Secretary of the Treasury ; and where there are several petitioners or dis- tinct claimants, not being, partners, or several cases or importa- tions embraced in one petition, the clerk shall be entitled to the same fees as if a distinct petition had been presented in each case. Mule 92. [This Rule related to marshal's fees for the custody of vessels, &c., under seizure in behalf of the United States. See Act of 666 DISTRICT COURT RULES Congress of February 26th, 1853, ch. 80, 10 Stat, at Large, 164, embraced within § 829 Kevised Statutes (Second Edition), p. 155 (156), -which is considered as virtually superseding the Kule.] Mule 93. The clerk is authorized, to enter satisfaction of record of any judgment rendered in this court in behalf of the United States, on fihng an acknowledgment of satisfaction of the same, duly made, by the district attorney. Rule 94. [This Eule prescribed the fees of practitioners and the clerk, and is not now in force. See Eevised Statutes (Second Edition), ch. 16, p. 153.] ' Mule 95. Adopted December 9tb, 1863. When a fine or penalty is paid into court, and the whole thereof shall belong to the United States, or one-half thereof shall belong to the government, and the other half thereof to any other party, the clerk shall, as soon thereafter as prac- ticable, unless a stated term of the court shall then be in ses- sion, and then as soon as practicable after the end of such term, pay to the proper depositary the amount thereof belong- ing to the United States ; and every person claiming any por- tion of such fine or penalty as the discoverer or informer, or prosecutor of the offender incurring such fine or penalty, shall, on or before the first day of the next stated term of the court, file with the clerk of the court his affidavit, and such other papers as he may think proper, showing his right to a moiety of such fine or penalty, which aifidavit and papers shall be pre- sented to the court by the clerk on the second day of such term. Bule 96. In cases under the act " to provide Internal Kevenue," &c., the person claiming shall file with such affidavit and papers the written consent of the collector of the Internal Revenue for the district in Avhich such fine or penalty was incurred ; that a moiety shall be paid to such claimant, or shall show by NOETHERN" DISTRICT OF NEW YORK. 667 affidavit that a copy of such affidavit and papers had been served on such collector at least eight days before the com- mencement of such term. Bute 97. Adopted November 26th, 1867. In all cases of seizure, where a bond shall have been exe- cuted and the property seized returned, in pursuance of the provisions of section forty-eight of the act of June thirtieth, eighteen hundred and sixty-four, entitled " An act to provide Internal Revenue to support the government, to pay interest on the public debt, and for other purposes," and acts amenda- tory thereof, before the filing of the information against the same, the information shall state the fact of the execution of such bond and the return of said property, and shall set forth in an appropriate form of pleading the substance, terms and conditions of such bond, and the names and residences of the parties executing the same. Upon the filing of such an information the clerk shall insert in the process issued thereon to the marshal a condensed and brief general statement of the allegations so made in respect to such bond, including the names and residences of the parties executing the same, as stated in such information ; and shall also insert a command to the marshal that he summon and give notice to the persons named as the parties executing such bond to appear at the return day of said process to answer the alle- gations of the information, and to show cause, if any they have, why such bond should not be enforced against them ; which summons and notice shall be served by leaving a copy of such process with each of such parties, if he can be found within the district, and, if not, by leaving the same at the usual place of abode of such party, with some person of suitable age and discretion residing there, at least ten days previous to the day when such process shall be returnable ; and such service of such summons and notice, or the publication thereof, as hereinafter provided, shall be sufficient notice of the pendency of the proceedings in court against the property so seized, and upon such bond. In case the marshal shall be unable for any reason to effect a personal service of such process and summons upon such 668 DISTRICT COURT RULES parties, or either of them, or to serve the same at their usual place of abode, as above provided, the same shall be served by publishing a copy thereof three times, at least ten days previ- ous to the day when such process shall be returnable, in each of the newspapers designated by the general rules of this court for the publication of notices in banliruptcy, required to be published within the county where such seizure was made. In case any such bond shall be taken and property returned, after any information shall be filed against such property, but before the said property shall be seized or arrested by the marshal under the process of the court, such allegation in re- spect to such bond and return may be made by way of supple- mental information, or information in the nature of a supple- mental information, upon which like statement and commands may be inserted in the proper process to be issued to thejnar- shal in such suit, and like service thereof shall be made, and like proceedings shall be had thereon. The parties named in any information as having executed any such bond may appear and answer such information, and may defend the suit in which such process shall have been issued, and may contest the alleged forfeiture and their liabOity under such bond. Bule 98. Adopted March 2d, 1869. [See this Eule printed at page 684.] Bule 99. Adopted August 30th, 1869. In order that the United States may be relieved from the payment of costs in cases in which an informer should be held hable for the same, and also in order to give to claimants and defendants their proper remedy against such informers, it is hereby provided that in all cases of seizure, and in all other cases prosecuted in the name of the United States, in which any prosecutor, informer or other person shall claim or intend to claim that any share of the penalty, forfeiture or recovery for which the suit in such case is prosecuted will belong to him, as an informer or prosecutor, the person so claiming such share shall, within fifteen days after the filing of the declaration or information therein, file with the clerk of this court a state- NORTHERN DISTRICT OF NEW YORK. 669 ment in writing, setting forth that he claims to be the inform- er or prosecutor who is entitled to a share of the forfeiture, penalty or recovery for which such suit is brought : and no person shall be allowed any share of any penalty, forfeiture or recovery in any such suit who shall not have filed the state- ment hereinbefore required, in the manner and within the time aforesaid. Mule 100. Adopted August 30th, 1869. In all such cases, and in all other cases civil or criminal, in which a moiety or other share of any penalty, forfeiture, fine or recovery is claimed by any informer or prosecutor, the claim- ant thereof shall serve a copy of his claim and also of his affi- davit and all other papers intended to be used in support there- of, on the Attorney of the United States at least eight days before the commencement of the term at which the sam,e shall be presented to the court for allowance ; and the same shall be presented to the court on the morning of the first day of the term, in order that the same may be heard and determined. In case any such claimant was an officer or employee of the United States or was in any manner in the pay of the govern- ment or any officer thereof, at the time he received, obtained or gave the information upon which he bases his claims, or at any time within six months before he received, obtained or gave such information, he shall in his affidavit state the par- ticulars in respect to such official position or employment or pay, and, in all other cases, he shall state that he Avas not at the time, or within six months before the time, when he re- ceived, obtained or gave such information, in any such official position, or employment or in the pay of the United States Government or of any officer thereof. Bute 101. Adopted August 30th, 1869. Proceeding in rem for a forfeiture, and in personam for an offence, fine, penalty or debt, may be joined in one information, when having relation to the same transaction or transactions, cause or causes of forfeiture ; and if not so joined the separate 670 DISTRICT COURT RULES suits prosecuted therefor may, on motion of any party in in- terest, be consolidated. If not so joined or consolidated the costs of only one of such suits will, under ordinary circum- stances, be taxed against any informer, claimant or other party liable to costs therein. Bule 102. Adopted August 30th, 1869. ~S[o party shall be held to bail on an information im, personam, or in a suit brought to recover any penalty or forfeiture, with- out the mandate or order of the judge, except when bail is re- quired by statute ; and to obtain such mandate or order it must be' shown, as cause therefor, that the defendant or respondent is a transient person, or that there is reason to believe that the defendant is about to depart out of the jurisdiction of the court. Mule tvithout number. Adopted JuiT 14th, 1858. It is ordered that a capias be issued upon the application of the Attorney of the United States, in all cases of indictment pending in this Court, where the party is not in custody upon subsisting process, or is not upon bail, which capias shall be made returnable at the first term of the Court, at which the party may be tried, and that no capias, returnable at the same term, shall be issued to bring up a party already in custody, but he shall be brought up on the order of the Court, or Dis trict Attorney, without process, as directed by law. Mule without number. Adopted September 9th, 1879. Suitable boxes will be provided by the Marshal and deliv- ered to the Clerk for the safe-keeping of the names of persons to be selected as eligible to serve as grand and petit jurors. One such box shall be provided and designated for each of the several counties within this district where stated terms of this Court are required by law to be held. On the first day of October 1879, and annually on that day thereafter, the Clerk and Commissioner of Jurors shall select the names of at least four hundred persons for each of said NORTHERN DISTRICT OF NEW YORK. 671 counties, qualified to serve as grand and petit jurors, residents of the county, selected -without reference to party affiliations. Each name shall be written on a separate ballot, with the per- son's place of residence. The first name shall be selected and deposited in the box by the Clerk, and thereupon the Commis- sioner and Clerk shall alternately select and deposit a name in the box, until the required number shall be completed. If, at any time, less than three hundred names remain in the box, the Clerk and Commissioner shall replenish the quota in the manner aforesaid. The boxes shall be locked and retained by the Clerk, and the keys shall be kept by the Commissioner. The names of all persons who may be required to serve as grand and petit jurors at any term of this Court, shall be drawn pubUcly by the Clerk from the box for the county in which the term is to be held, and at the close of such term the ballots .containing the names of persons who actually served as jurors, or who proved to be ineHgible as jurors, shall be des- troyed by the.Clerk. The Clerk shall post upon -the outer door of the Clerk's office notice of the time and place of drawing jurors, at least ten days prior to the drawing, except when jurors are sum- moned during a session of the Court. NOETHEEN DISTEICT OF NEW TOEK DISTRICT COURT ADMIRALTY RULES. Rules of Practice of the District Court of the Urdted States for the Northern Disbrict of New York, in cases of Admi/ralty amd Maritime Jurisdiction on the instamce side of the Court, as amended and estaUished at the May Term, 1856. Mide 1. The " Eules of Practice of thg Courts of the TFnited States, in causes of Admiralty and Maritime Jurisdiction, on the in- stance side of the court," prescribed by the Supreme Court of the United States, at the January Term, 1845, and the rules of said court in addition to or in modification of the same, are rules of practice in this court in all cases of admiralty and maritime jurisdiction, including cases within the act entitled " An Act extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same," passed February 26th, 1845. Rtile 2. A special session of the court is hereby appointed to be held at Utica, on Tuesday of every week, at ten o'clock in the fore- noon ; at which special session aU process may be made return- able, and all proceedings may be had, except trials by jury, which will not be held without a special order by the judge for that purpose, except at a stated term ; and except trials of issue of fact before the court, which will be had only on the first Tuesday of each month, other than the months of July and NOETHERN DISTRICT OP NEW YORK. 6Y3 August, ■without a like special order. Issues of fact may be brought to trial by either party after twenty days' notice to the other parties in interest or in pursuance of an order pre- viously obtained for such purpose; and issues of law, and enumerated and non-enumerated motions may be brought to a hearing after eight days' notice as aforesaid, or in pursuance of a like order ; but no notice shaR be required in respect to any proceeding or motion which can be properly made or taken on the return day of process, if such motion shall be made or proceeding taken on such return day, or when the court shall not sit on such return day, on the first court day thereafter. In case of the non-attendance of the judge at the time hereby appointed, or at any other time which may by special order be appointed, for any special session of the court, all process and proceedings shall be continued as of course, and without prejudice, to the next special sessions, or by special order, to some earlier day for that purpose appointed by the judge. Mule 3. All process shall bear test of the day on which it is sealed, and shaU be made returnable before the judge at Utica, on any Tuesday thereafter, sufficiently remote to admit of the pre- scribed notice. But final process upon bonds or stipulations may be made returnable at a stated term of the court, or at a special session as hereinbefore provided. Rule 4. The newspaper called the Buffalo Commercial Advertiser, printed at the city of Buffalo, is hereby designated, in pursu- ance of ETile 9 of the Eules of Practice in admiralty and mari- tune causes prescribed by the Supreme Court, as the newspaper in which all notices shall be printed, which are by the said rule required to be published in a newspaper, in aU suits in rem, in which the arrest of the vessel, goods, or other thing proceeded against, has been made at or within the collection district of Buffalo Creek, or in the collection district of Niagara. Rule 5. The Second ]Srational Bank of Utica is hereby designated as the place of deposit for moneys paid into court. 43 674 DISTRICT COURT— ADMIRALTY RULES Hule 6. Libels, answers, and all other pleadings and papers to be filed, shall be so plainly written as to be readily legible, and shall be free, to all reasonable extent, from interlineations and erasures ; and it shall be the duty of the clerk to reject all pa- pers delivered to him to be filed, which are not in conformity with this rule. Mide 7. AU libels praying process of arrest in personam shall be veri- fied by the oath or solemn affirmation of the libellant, or of one libellant, unless, for sufficient cause shown, such oath or aflBrmation shall be dispensed with by the special order of the Judge. AU. libels praying process of arrest m 7'em shall be verified by the oath or solemn affirmation of the libellant, or of one libellant, or of an officer or agent of the libellant, or of one Ubellant, or by the oath or affirmation of the proctor, to the best knowledge, information and belief of the person so verifying the same. Such libels need only be signed by the proctor. The clerk is authorized to issue process of arrest and of monition on libels so verified and signed. AU answers and other pleadings, not hereinbefore provided for, shall be signed and verified in the same manner as hbels praying process of arrest in rem. Hule 8. In suits in rem, the mesne process shall be served, and the required notices given, at least fourteen days before the return day of the process, unless a shorter time shall be prescribed by special order, founded upon the exigencies of the particular case. Mule 9. AU process, and aU notices for publication in a newspaper in pursuance of Rule 9 of the Eules of Practice in admiralty and maritime causes, prescribed by the Supreme Court, shaU be drawn up by the clerk ; and no process, except subpoenas, shaJl be issued by him in blank. NOKTHERN DISTRICT OF NEW YORK. 675 Mtde 10. The notice mentioned in the last preceding rule shall contain the title of the suit, a summary statement of the cause of action, the amount of the demand, and the day and place fixed for the return of the process ; and shall have affixed at the close thereof the name of the proctor of the libellant, and that of the marshal, or of his deputy intrusted with the execution of the process. Rule 11. The amount of the debt or damages for which the action is brought, shall be stated in the Ubel, and, with the addition thereto, for costs, of $250 in a suit in rem, and of $100 in a suit im, personam,, shall be indorsed on the mesne process, thus: " Action for $ ; " and in a suit in rem the requisite bond or stipulation, upon the release of the property, shall be in the sum of $250, in addition to twice the amount demanded in the libel ; and in a suit m personam in the sum of $100, with the addition of twice the amount of the demand. Mule 12. "When the libellant is not a resident of the district, he shall, at the time of commencing his suit, give a bond or stipulation, with one or more sufficient sureties, in the sum of at least one hundred dollars, if the suit is in personam, ; and in the sum of at least two hundred and fifty dollars, if the suit be in rem — conditioned that he wiU appear from time to time, and abide by all orders, iaterlocutory and final, of the court, and pay the costs and ex- penses, if any, which shall be awarded against him by the final decree of this court, or of any appellate court : Provided, how- ever, that this regulation shall not extend to suits for seamen's wages, nor to suits for salvage, when the salvors have come into port in possession of the property libelled. Rule 13. In all cases not embraced within the last preceding rule, on motion of the defendant or claimant, the court will, in its dis- cretion, direct the hbellant, on pain of dismissing his libel, to give the like security. 676 DISTEICT COURT— ADMIRALTY RULES Mule 14. Instead of the security specified in the two last preceding lules, the party from whom it is required may, at his option, deposit in court a sum of money of the like amount. Rule 15. If in any case a libel shall be filed in behalf of a libeUant who is not a resident within the district, before security for costs and expenses shall be filed as required by Kule 12, the proctor for such libeUant shall be liable for costs and expenses to the amount specified in the said rule, until such security shall be filed ; and the payment thereof may be enforced by sum- mary process vn personam against such proctor. Rule 16. When a proctor is retained to defend in any suit, before the return day of the mesne process therein, who resides or has his place of business more than three miles from the clerk's office, and not more than three miles from the residence or place of business of the proctor for the libeUant, such proctor for the defendant may, at any time before the return day of the process, serve a notice of his retainer on the proctor for the libeUant ; and it shaU thereupon be the duty of the proctor for the libeUant, without delay, to serve on the proctor for the defendant a copy of the libel on file. Rule 17. When the defendant's answer, or any other pleading subse- quent to the libel, is put in by being simply filed in the clerk's office, instead of being given in open court, in presence of the proctor or advocate for the adverse party, a copy thereof, vrith notice of the time of filing the same, shall without delay be served on the proctor of such adverse party Rule 18. When a decree is made in the absence of the proctor of either party to the suit, unless such proctor resides at the place where the clerk's office is kept, it shall be the duty of the clerk imme- diately to transmit to him by mail a copy of the decree ; and NORTHERN DISTRICT OF NEW YORK. 677 such proctor and party shall be responsible to the clerk for the fees to which he may be entitled for such service, according to the usual rate of charge. Rule 19. In aU suits, other than those founded upon municipal seizure, not less than six days' notice of the sale of property on final process shall be given. A longer notice may be given at the discretion of the marshal or his deputy by whom the sale is to be made, or by order of the court. It shall be the Aaij of the marshal in all cases in which it shall be practicable, to make the sale and pay the proceeds into court on or before the return day of the process, under which such sale is to be made. The clerk wiU in aU cases make the process returnable at such time as may be necessary to enable the marshal to give the requisite notice, make the sale, and return such process on or before the return day thereof. Rule 20. Whenever any hbel shall be taken as confessed, for want of answer, there shall be an order of reference to the clerk or a commissioner pro hac vice to take proof of the material facts and circumstances stated in the libel, and to examine the hbel- lant on oath or affirmation, in respect to payments or offsets, and in the discretion of the referee in respect to any other mat- ters pertaining to his demand, and the referee shall report accordingly. Upon sufficient cause shown, the court will in the order of reference, or otherwise, direct that the oath or affirmation of the libellant may be received in support of the allegations of the libel, or will give such other special directions in respect to the proceedings upon the reference as the nature of the case may require. B,ule 21. In case of reference under a decree jpro confesso, the hbellant shall, unless otherwise specially directed, proceed with the ref- erence within four days from the date thereof ; and upon a reference in cases in which an answer shall have been inter- posed, or in which, for other reasons, notice of hearing on the reference shall be required, the hearing may proceed on any 678 DISTRICT COURT— ADMIRALTY RULES. day appointed by the referee, at the instance of either party ; provided, that eight days' notice shall have been given of such hearing, to all adverse parties who have appeared in the cause. Such reference may be continued from day to day, or by adjournment, and when adverse parties appear, the proofs shall be closed at the end of thirty days from the date of the order of reference, unless the parties shall agree to the closing of the same at an earher day, or unless the time shall be extended by the written order of the referee, or by the written stipulation of the parties, or by the order of the court for that purpose obtained ; and the clerk or commissioner shall make and file his report within eight days after the testimony shall have been closed. Bule 22. Exceptions to any report made by the clerk or a commis- sioner, must be filed or served on the adverse party within ten days after such report shall have been filed, unless the time shall be enlarged by the judge or by the written stipulation of the parties ; and if exceptions are not so filed and served, the party in whose favor the report may be, may, on the first special session thereafter, and without notice, move for the confirmation of the report, and a final decree thereupon. Rule 23. When interrogatories are propounded by the defendant at the close of his answer, touching any matters charged in the libel, or touching any matter of defence set up in the answer (according to Eule 32, of the Rules of Practice prescribed by the Supreme Court), the Mbellant shall answer the same within twelve days, unless, for sufScient cause shown, he shall, by special order, be allowed a longer period ; and the court may, in its discretion, require such interrogatories to be answ3red within a shorter time or mstanter. Mule 24. "When interrogatories are propounded to a garnishee (in pur- suance of Rule 37, of the Rules of Practice prescribed by the Supreme Court), a copy thereof shall be served upon the gar- nishee personally, or, in case of his absence from his dwelling- NOETHERN DISTRICT OF NEW YORK. 679 house or usual place of abode, by leaving such copy with some person of suitable age who is a member or resident of the family; and the garnishee shall be required to answer the interrogatories within twelve days after such service, unless a longer period shall, for adequate cause shown, be by special order allowed for that purpose ; and the court may also, in its discretion, prescribe a shorter period. Rule 25. Exceptions to the libel (taken in pursuance of Eule 36, of the Eules of Practice prescribed by the Supreme Court), for sur- plusage, irrelevancy, impertinence, or scandal, may be taken ore tenus on the return day of the mesne process ; and excep- tions to the answer or other allegations given by the defendant, taken for the like causes, in pursuance of the same rule, or in pursuance of Rule 27, for want of sufficiency, fulness, or dis- tinctness, may be taken in like manner, when the answer or other allegation is put in in open court ; and the court will thereupon, in its discretion, either decide upon the sufficiency of the exceptions so taken, wistcmter, or direct the same to be drawn up in writing, and appoint a day to hear argument thereon, or refer the same to a commissioner. Bule 26. "When, at the return of the mesne process, further time has been granted to answer the libel, and the answer, instead of being produced and offered in open court, in the presence and hearing of the advocate of the hbellant, is simply filed with the clerk, a copy thereof shall, without delay, be served on the proctor for the libellant, personally, if he resides within three miles of the proctor for the defendant, otherwise either person- ally or by mail ; and the proctor for the libellant may, within ten days after the service thereof, file and serve exceptions thereto. The defendant, vrithin eight days after the service of such exceptions, may give a written notice of his submission to any or all of them ; and if any of them are not submitted to within the time prescribed, the libellant may bring the same to a hearing before the court, by giving, at any time within six days, a notice of not less than six, nor more than ten days. 680 DISTRICT COURT— ADMIRALTY RULES. of such hearing. Every exception not submitted to, and which is not notified for hearing within the time specified, shall be considered as abandoned. Rule 27. When exceptions are referred to a commissioner, if the party who obtained the reference shaU not procure and file the com- missioner's report within fourteen days from the date of the order of reference, unless further time shall be allowed, for sufficient cause shown, by special order, the exception shall be considered as abandoned. The party by whom the reference was obtained shall have eight days after filing the report of the commissioner, to except thereto. On fiUng the report, he shall give notice of filing the same to the adverse proctor, who shall have eight days after such notice to except to the report. Exceptions to a commissioner's report may be noticed for argu- ment by either party, and the notice shall be served at least six days before the day designated for the hearing. Mule 28. AU appeals to the Circuit Court must be interposed within ten days from the date of the decree, or within such other period as shall be designated by special order made in the particular suit ; and in cases where the right of appeal is al- lowed, no final process shall issue, before the expiration of the ten days, or other period prescribed. Bule 29. The regulations prescribed by law relative to the mode of serving notices and other papers, in suits prosecuted in the courts of the State of I^ew York, are hereby adopted, mutatis mutandis, as rules of this court. Mule 30. The provisions in the foregoing rules contained, shall be held apphcable, as far as may be, to all proceedings by petition or otherwise, which may be instituted to enforce any lien or de- mand, upon or against any property in the custody of the court, or any proceeds in the registry. NORTHERN DISTRICT OF NEW YORK 681 Rule 31. It is ordered, That where several suits are instituted against one and the same vessel, or the proceeds thereof, no more than one charge for mileage shall be allowed for the service and return of mesne process in such suits, unless for special cause shown it shall be otherwise specially ordered by the court. Mule 32. It is hereby ordered, That the rule heretofore made and en- tered, requiring the office of the clerk of this court to be kept at the city of Auburn, be, and the same is hereby abrogated, and it is ordered that the said office be henceforth kept at the city of Buffalo. ADDITIONAL RULES. Adx^ted m 1860, a/nd subsequently, in some respects, modified. Mule 1. In order to prevent the commencement of suits upon small demands, and the consequent accumulation of costs altogether disproportionate to the sum demanded, the clerk wUl issue no process for seamen's wages, when the sum sworn to be due to a sole hbellant is less than ten dollars, or to several joint libel- lants is less than fifteen dollars, or for any other demand, when the amount sworn to be due is less than twenty dollars, except when especially ordered by the court or the judge thereof, or such judge shaU be absent from his place of residence. "When the amount recovered shall be less than the sums above named, no costs will, in ordinary cases, be decreed to the libeUant un- less it shall be shown upon the hearing that such hbellants could not have had a complete and perfect remedy in a court of a justice of the peace. Rule 2. In suits for seamen's wages, the clerk shall insert in the war- rant of arrest and monition, after the words "in a cause of subtraction of wages, civil and maritime," the words " and also to answer unto all other persons having demands against the said vessel, for wages earned on board thereof, who may choose 682 DISTRICT COURT— ADMIRALTY RULES to make themselves parties to the libel of the said (naming the libellant or libellants), by way of amendment or supplement without further process or citation." And all mariners having claims against such vessels may, thereupon, so long as the ves- sel remains in custody, or any proceeds thereof remain in the registry, make themselves parties to such libel or suit, by a pe- tition and proper allegations, by way of amendment or supple- ment to such original libel, and may have a decree for the pay- ment of their demands, as though they were named as parties to the original libel, and no new warrant of arrest or monition shall be issued in favor of any seaman, who, in respect to the demand on which he seeks such process, is entitled to make himself a party to proceedings already commenced ; and no costs shall be allowed to any such seaman who shall, without sufficient excuse, fail to apply to make himself a party to such a suit on the return day of such process, or the first court day thereafter. And in order to allow such seaman to make such apphcation, no final order of reference in any case for seamen's wages shall be made until the next court day after the return day of the process issued thereon. Mule 3. 'No warrant of arrest shall issue on behalf of a seaman for wages on board a British or Canadian vessel, where it shall ap- pear that such seaman shipped and was discharged in Canada or elsewhere out of the United States ; or in favor of any subject of G-reat Britain against any British vessel until the written consent thereto of the British Consul, or an order of the judge therefor, shall have been filed. Mule 4. All decrees for seamen's wages shall direct the amount decreed for such wages to be paid to the libellant in per- son ; and all checks or orders for the payment of such wages shall be drawn, payable to the order of the seaman to whom such wages shall have been decreed. Mule 5. No allowance for the expenses of keeping any ship, or ves- sel, or other property, beyond the sum of fifty cents per day. NORTHERN DISTRICT OF NEW YORK. 683 or fifteen dollars in the aggregate, shall be allowed to the mar- shal, except upon the affidavit of the ship-keeper or other cus- todian, stating his employment and service, and the amount he has been actually paid therefor, and that such payment was re- ceived for such service only, and was received wholly for his own benefit, and not for the benefit of any officer of the court ; and also, that there is no understanding or intention that the whole, or any part thereof, shall be paid, or in any way dis- posed of or allowed to the marshal or his deputy, or for his or their benefit ; and a copy of such affidavit shall be served with the copy of bUl of fees or statement of allowance claimed. Rule 6. In colUsion causes, unless the libel and answer shall respect- ively state or admit, either positively or upon information and belief, and as fully and accurately as practicable : 1. The names of the vessels which came into colhsion, and of their respective masters ; 2. The time of the collision, and whether in the night or day time; 3. The name of the officer or person in charge of the deck of the vessel of the party ; 4. The place of the collision ; 5. The general course or direction of the vessel of the party, and her direction at the time of the collision ; 6. The state of the weather, and, if in the night, the charac- ter of the night in respect to darkness, rain, &c. ; 7. The course and speed of the party's vessel, when the other was first seen ; 8. The Hghts, if any, carried by her, and their position ; 9. The bearing and apparent distance of the other vessel when the vessel itself was first seen ; 10. The hghts, if any, of the other vessel which were first seen, and their bearing, and their estimated apparent distance at that time ; 11. "Whether any lights of the other vessel other than those first seen came into view before the collision, and the particU' lars thereof ; 12. The names of the person or persons, if any, stationed and 684 DISTRICT COURT— ADMIRALTY RULES acting as lookout on the vessel of the party at the time the other vessel or her light was first seen ; 13. What measures were taken, and when, to avoid the col- lision, and particularly, whether any and what change of helm or sails was made for that purpose ; 14. The parts of each vessel which first came into contact, and the manner in which they struck ; 15. The character and extent of the injury, if any, to the party's vessel. The opposite party, on showing to the satisfaction of the court, by affidavit or otherwise, that a more full and specific statement of the circumstances of the colhsion mentioned in such libel or answer, in respect to some one or more of the par- ticulars above mentioned, is necessary to the proper prepara- tion of an answer to such libel, or the proper preparation, on his part, for the final hearing of such cause, or will materially reduce the expenses of procuring testimony for such hearing, may, on motion (due notice of such motion, with copies of affi- davits and papers, other than the files of the court, on which such motion is to be made, having been first served on the op- posite proctor at least four days before the day for which such motion is noticed), obtain a special order of the court for the amendment of such libel or answer, in regard to such particu- lars, within such time, and upon such conditions, and with such consequences, in case of a non-comphance with such order, as the court shall prescribe. And an order staying proceedings on any defective libel, or striking out any defective answer, may be made, on a further notice of motion for that purpose, in case any amendment ordered by the court is not made and filed as required by such order, unless some satisfactory cause for the non-comphance with such order shall be shown. [See Rule 98, at page 668.] March 2d, 1869. It is hereby ordered that in all cases in which the marshal is required to pubhsh any notice of any process or proceeding, or any other notice, in any case pending on the common law or admiralty side of this court (other than in cases provided for by law, or in the Bankruptcy Rules), the marshal or his deputy shall cause the same to be pubhshed as follows, viz: In all NOETHERN DISTRICT OF NEW YORK. 685 cases in admiralty, except seizure cases, the notice of, or under, or under the first process served or executed therein, shall be published in the county where such property was arrested, under such process, and in the newspaper first named in the 38th General Eule in Bankruptcy, heretofore adopted by this court, as one of the newspapers in which notices in bankruptcy cases are, under said rule, to be published in said county ; and in seizure cases, in admiralty, such notice shall be so published in the county where such seizure is alleged, in the information upon which such process was issued, to have been made, and in the newspaper therein first named in said Bankruptcy Kule, as aforesaid ; and all subsequent notices required to be published by the marshal in either of such cases shall be published in the same paper. In all other than admiralty and bankruptcy cases, and in cases otherwise provided for by law, such notices of, or under the first process or proceeding therein, and all subsequent notices in the same cause, shall be published in the county in which the property was arrested, or seized, as above first pro- vided for in admiralty cases, except that such notices shall be published in the newspaper in such county secondly named in said 38th Bankruptcy Kule, instead of the one firstly therein named. And in all cases where the first process is an execu- tion, or other process, or order for the sale of real or personal property, or both, notices of sale, under the same, shall be pub- lished in the newspaper secondly named in said Bankruptcy Rules for publication of notices in the county in which such property may be seized under such execution, process, or order. In case any other newspaper has been, or shall hereafter be, substituted for one of the newspapers named in said Bankruptcy Eule, the publications, in this rule referred to or provided for, shall, in such case, be made in such substituted newspaper, instead of the newspaper now mentioned in such Bankruptcy Eule. But notwithstanding the provisions hereinbefore contained, the Judge of this court may, in any case, by writing under his hand, direct any additional or different pubhcation of any such notice ; and whenever any such direction shall be given, such notice shall be pubhshed according to such direction. And in 686 DISTRICT COURT— ADMIRALTY RULES. all cases not provided for by this order, or the General Kules of this court, or by law, all such notices shall be pubhshed ia such newspaper, and in such manner as said judge shall by writing direct ; and in all cases in which such provision has not been made, the marshal, before publishing such notices, shall apply for and obtain such direction. AU notices, unless otherwise provided by law, by the rules of court, or the special order of the court, or the judge thereof, shall be pubhshed three times, and the first of such pubhcations shall be made at as early a day as may be required by law, or the rules and practice of the court. And it is further ordered that the clerk certify a copy of the above, and of this order, and deliver the same to the marshal of this district, and that in all seizure cases the clerk shall endorse on the first process issued therein, the name of the paper in which the notices in such case are required to be pubhshed under the above order. XII. RTJILES. DISTEICT OF CONNECTICUT. CIKCUIT COURT. JUDGES AND OFFICERS OF THS CIRCUIT COURT OF THE UNITED STATES FOB THE DISTRICT OF CONNECTICUT. Samuel Blatohfoed — Associate Justice of the Supreme Court of the United States assigned to the Second Judicial Circuit — Cir- cuit Justice. No. 1433 K Street, N. W., Washington, D. C. William J. "Wallace— Circuit Judge. Syracuse, N. Y. Daniel Chadwiok — United States Attorney. Lyme, Conn. United States Attorney's Office, at Lyme, Conn. Edwin E. Maevin — Clerk Circuit Court. Hartford, Conn. Clerk's Office at Hartford, Conn. John C. Kinney — United States Marshal. Hartford, Conn. Marshal's Office at Hartford, Conn. Court Rooms at Hartford, Conn., over Post Office, and at New Haven, over Post Office. Circuit Courts held at New Haven on the 4th Tuesday in April, at Hart- ford on the 3d Tuesday in September. For Pbdbkal Statutes especially relating to this Court, see Respecting the Pbactice in the Circuit Courts generally, and their power to make Roles, etc., pp. 353 to 355. Respecting Fees, etc., pp. 357 to 372. Respecting the Jurisdiction of this Court, p. 376. Respecting Sessions, etc., pp. 377 and 888. RULES OF THE CIRCUIT COUET OF THE UNITED STATES rOR THE DISTRICT OP CONNECTICUT. The Clerk of the Circuit Court of the TJuited States for the District of Connecticut, in response to a request of the Editor for a copy of the Rules of said Court, states in efEect as follows : 1. That there are recorded in the records of the Courts some two hundred folios of Rules, which are all practically obsolete save such as are printed hereafter, and such as appear in Blatchford's Circuit Court Reports which are included in the said Rules as printed hereafter. 2. That in Equity the Rules of the Supreme Court of the United States are followed (printed at pp. 397 to 338). 3. That by custom all criminal business is transacted in the District Court, and there are no Rules in reference thereto in this court. 4. That in cases at law in the Circuit Court the State Practice is followed, with one or two trifling exceptions, and the State Practice is largely uncodified, and follows the Common Law. 5. That the following Gbnebal Rules are observed in Cases at Law in the Circuit Court. (1.) The plaintiff must enter an appearance, either by himself or by counsel, on the first day of the term to which the writ is return- able. (3.) The defendant must, in like manner, enter an appearance before the second opening of the court, which means before the opening of the court on the second day of the session. (3.) If a case is appeared in on both sides it is immediately continued under the rule to plead, which is that the plea shall be filed with the clerk on or before the 1st day of July, when the action is brought to the April term of the court ; and on or before the 1st 44 690 CIRCUIT COURT RULES day of January, when it is brought to the previous September term. If no plea is filed within the time specified, the case must be tried on the general issue only, unless the rule is dispensed with by the court. (4. ) Amendments to the declaration may be filed during the first term of the court without costs, but not afterwards, except by leave of the court, and on such terms as the court shall prescribe. This rule extends to the other pleadings, except that it is inapplicable so far as the first term is concerned. 6. All cases once entered in this court, remain on the docket, being continued from term to term, until a final decree, judgment or discontinu- ance is entered, the clerk's fees for continuances, appearances, orders, etc., accruing in the meantime being chargeable to the plaintiff's attorney. EULES EEFEEEED TO IN SUBDIYISION 1 OF THE FOEE- GOING STATEMEIfT. EXAMINATION OF WITNESSES AND PRESENTATION OF PEOOFS IN EQUITY CASES. In Equity. Adopted at April Term, 1857. The parties shall be allowed to examine their witnesses and exhibit their proofs in open court, at the hearing of the cause, in the same manner as on the trial of actions at common law. Provision shall be made by the party or parties so examining the witnesses in court, for taking down the testimony of sucB witnesses, and placing a transcript thereof on file, in all appeal- able causes. Assignment of Causes for Trial. Adopted at September Term, 1873. Either party to any civil cause pending in the Circuit Court, desiring to have the same tried at any term thereof, shall give written notice of such desire to the Clerk of said Court by fil- ing the same in his oflB.ce at least twelve days before the open- DISTRICT OP CONNECTICUT. 691 ing of said term ; before which opening the Clerk shall make a list of the causes concerning which he has received notice as aforesaid, in the order in which they stand upon the Docket. Such notice shall not be revoked, and such list shall constitute the Ust of civil causes to be tried at said term. These causes shall stand assigned for trial in their order. If either party to any cause in said list shall not be prepared to try the same when reached in order, he may be defaulted or non-suited as the case may be ; or said cause may be postponed or continued, for cause shown upon affidavit, or stipulation, at the discretion of the Court. Causes not noticed as herein provided, shaU be continued as of course. AU new causes shall be called at the first term for which they are returned, for purposes of appear- ance or default. "Writs of error and appeals from the District Court are exempt from this rule, and shall be placed at the head of the Hst. Causes to which the United States is a party, and which are required by law to be tried at the first term to which they are returnable, shall also be exempt from this rule. Evidence in Equity Causes. Adopted at Apkil Tekm, 1876. The parties shall be allowed to examine their witnesses and exhibit their proofs in open Court at the hearing of the cause, in the same manner as on the trial of actions at common law. Provision shall be made by the party or parties so examining the witnesses in Court, for taking down the testimony of such witnesses, and placing a transcript thereof on file in all appeal- able cases. This rule shall hereafter apply to those cases only in which the parties, or their sohcitor, shall file with the Clerk a stipu- lation in -writing, signed by them, containing a waiver of their right to the mode of proof according to the rules of the Supreme Court of the United States, and an agreement that the mode of - proof shall be according to the foregoing rule. Provided, that such stipulation shall have no efiPeot upon any causes now at issue, unless filed at least three months before the session of the Court at which the cause is claimed for trial, nor upon any cause not now at issue, unless filed within sixty days after issue 692 CIRCUIT COURT RULES joined. But this provision may be waived by the written con- sent of both parties. Enumeration of Folios. Adopted at April Tebm, 1876. That in all papers filed, and records and trial copies here- after made in this Court, the successive fohos shaU be enumer- ated upon the margin. Printed Evidence. Adopted at September Term, 1878. Prior to the trial of the issue upon the merits in any equity cause, each party shall print his own evidence as taken by the Examiner, and shall file with the Clerk of Court five copies of the same. The costs of such printing, not exceeding twenty-five cents per foUo, shall be taxable in favor of the prevaiUng party. State Practice in Civil Actions Adopted, Adopted April SOtli, 1880. • In pursuance of the provisions of section 916 of the Act en- titled " An Act to revise and consolidate the statutes of the United States in force on the first day of December, Anno Domini one thousand eight hundred and seventy-three," ap- proved June 22d, 18T4, it is ordered, that all the provisions of the pubhc Act of the General Assembly of the State of Con- necticut, entitled, " An Act relating to civil actions," approved March 29th, 1878, are hereby adopted by this Court, as rules of this Court in respect to a remedy by judgment hen, to reach the real estate of a judgment debtor, in a common law cause in this Court, which lien can be foreclosed or redeemed in the manner provided in said Act. Presentation of Admiralty Appeals. Adopted September Term, 1881. On an appeal in Admiralty the appellant shall, prior to the trial in this Court, print the transcript of the record from the District Court, and each party shall print his new pleadings DISTRICT OP CONNECTICUT. 693 and proofs in this Court, and five copies of such printed matter shall be filed with the clerk of this Court. The cost of such printing, not exceeding twenty-five cents per folio, shall be taxable in favor of the prevailing party. Drawing of Jtirors. Adopted July 12th, 1883. In pursuance of the provisions of the second section of the Act of Congress of the United States, entitled " An Act mak- ing appropriations for certain judicial expenses of the Govern- ment for the fiscal year ending June 30th, 1880, and for other purposes," approved June 30th, 1879, it is Ordered, that suit- able boxes will be provided by the marshal and dehvered to the clerk for the safe keeping of the names of the persons to be selected as eligible to serve as grand and petit jurors. One said box shall be provided and designated for the counties of Hartford, Tolland, "Windham, and New London, which said counties shall be known as Sub- District No. 1, and another box shall be provided and designated for the counties of New Haven, Middlesex, Fairfield, and Litchfield, which said counties shall be known as Sub-District No. 2. The Jury Commissioner and Clerk of this Court shall, as soon as practi- cable after the entry of this order, and annually thereafter, in the month of August of each year, select to serve as grand and petit jurors in this Court, and place in the boxes so pro- vided as aforesaid, the names of at least four hundred persons for each Sub-District, each of which persons shall possess the qualifications prescribed in section 800 of the Kevised Statutes, being the qualifications set forth in "An Act relating to Jurors," passed by the General Assembly of the State of Con- necticut, approved March 25th, 1880, and shall be electors of said State, and residents of said respective Sub-Districts. Each name shall be written on a separate slip of paper, with the person's place of residence, and the said clerk and the said commissioner shall each alternately place one name in said respective boxes, commencing with said clerk, without refer- ence to party afiiliations, until the required number shall be completed. If at any time less than three hundred names remain in the box, the clerk and the commissioner shall replen- 694 CIRCUIT COURT RULES. ish the quota in the manner aforesaid. The boxes shall be locked and retained by the clerk, and the key shall be kept by the commissioner. The names of all jurors, grand and petit, to serve at any term of this court, shall be drawn publicly by the clerk from the box for the Sub-District in which the term is to be held, and from the names placed therein, and at the close of each term the ballots containing the names of persons who actually served as jurors, or who proved to be inehgible as jurors, shall be destroyed by the clerk. The clerk shall post on the outer door of the clerk's office notice of the time and place of drawing jurors at least three days prior to the draw- ing, except where jurors are summoned during a session of court. All rules inconsistent vrith this rule are hereby abro- gated. xiir. RULES. DISTRICT OF CONNECTICUT. DISTRICT COURT. JUDGE AND OFFICEES DISTRICT COUET OF THE UNITED STATES DISTEICT OF CONNECTICUT. Nathaniel Shipmait — District Judge. Hartford, Conn. Daniel Chadwick — United States Attorney. Lyme, Conn. United States Attorney's Office, Lyme, Conn. Edwin E. Marvin — Clerk District Court. Hartford, Conn. Clerk's Office— Room No. 3, over Post-Office, State Street, Hartford, Conn. John C. Kinney — United States Marshal. Hartford, Conn. Marshal's Office at Hartford, Conn., No. 5, over Post-Office. Court Rooms at Hartford, over Post-Office, and at New Haven, over Post-Office. District Courts held at New Haven, on the 4th Tuesday in February ; at Hartford, on the 4th Tuesday in llay ; at New Haven, on the 4th Tues- day in August ; at Hartford, on the 1st Tuesday in December. For Federal Statutes especially relating to this Court, See Respecting the Practice in the District Courts generally, their power to make Rules, etc., pp. 353 to 355. Respecting Fees, etc., pp. 357 to 372. Respecting the Jurisdiction of this Court, p. 876. Respecting Sessions, etc., p. 379 and p. 388. RULES DISTEICT COURT OF THE UNITED STATES DISTEICT OF CONNECTICUT, The Clerk of the District Court of the United States for the District of Connecticut in response to a request of the Editor for a copy of the Rules of said Court states in effect as follows : 1. That the Criminal Practice in said Court follows the State practice in that respect, which is uncodified and follows the Common Law. 3. That aside from the Criminal Practice, and the practice in cases of Admiralty and Maritime Jurisdiction, there is now no civil practice in the District, and no Eules of Practice except the following : RULES m ADMIEALTY AND MAEITIME CAUSES. I. MESNE PEOCESS. [See Rules 1, 3, 7, 8, 9, 13, 13, 14, 15, 16, 17, 18, 19 and 30 of the Su- preme Court of the United States in cases of Admiralty and Maritime Jurisdiction, at pp. 331, 333, 334, 335 and 336.] Hide 1. The first day of every stated Term and the second Monday DISTRICT COURT RULES of each month in which there is no stated Term of Court, shall be return days, and are appointed special days for admiralty proceedings. All process shall be made returnable to such re- turn days, unless for cause shown it be otherwise ordered, and shall be served on the defendant at least six days before the return day of said process. If there be not six days between the issuing of said process and the next return day, then said process shall be made returnable at the next succeeding return day. Mule 2. 'Eo mesne jprocess (except upon a libel on behalf of the United States or in favor of seamen's wages or praying for salvage, the salvors having possession of the property) shall be issued until the libellant shall have filed vsdth the Clerk a bond or stipulation for costs, in a sum not less than one hundred and fifty dollars. And the Court may on motion, in the cases above excepted, with notice to the libeUant after the arrest of the property for adequate cause shown, order the usual bond or stipulation to be given in these cases, or that the property arrested be discharged. Mule 3. No warrant of attachment having a clause therein of foreign attachment against the credits or effects of the defendant in the hands of third parties, will be issued, unless the hbel set forth the names and places of residence, if known, of the gar- nishees intended to be served, and it shall contain a citation to such garnishees to appear at the time and place designated for the defendant to appear. In case, after due citation, a gar- nishee shall neglect or refuse to appear and answer at the time and place named in the citation, the Court may award com- pulsory process in personam against him, the cost of which shall, in any event, be decreed against the garnishee, and if any debts, credits or effects shall be found in his possession, he shall be further decreed to pay them into Court, to abide the final disposition of the cause. DISTRICT OF CONNECTICUT. 699 II. BAIL, STIPULATIONS, RELEASE OF ATTACHMENT CLAIMS, INTEE- VEN0E8, &C., &C. [See Rules 3, 4, 5, 6, 10, 11, 35, 26, 35, 36, 43, 47 and 53 of the Supreme Court of the United States in cases of Admiralty and Maritime Jurisdic- tion, at pp. 383, 333, 334, 337, 340, 343, 343, and 346.] Rule 4. In a suit for seaman's wages any mariner in the same voyage, and in case of salvage and in other causes, civil and maritime, persons entitled to participate in the recovery, and not made parties in the original libel, may, by a short petition to the Court, in any stage of the cause previous to the final distribu- tion of the fund in court, or discharge of the defendant and his sureties, be admitted to participate as a co-hbellant, on such terms as the Court may deem reasonable. But no new process shall be issued in favor of the new parties, provided they can have adequate rehef upon the process already issued. BiUle 3. AH bonds or stipulations shall be executed by at least one surety, resident in this District, and shall contain the consent of the stipulators, that in case of default or contumacy on the part of the principal or sureties, execution to the amount named in such bond or stipulation, may issue against the goods, chattels and bonds of the stipulators. The ofl&cer tak- ing the bond or stipulation, shall examine the sureties under oath and decide as to their competency. An appeal may .be taken by either party instanter to the Judge in regard to the sufficiency of the sureties. Mule 6. "When bail is taken by the Marshal, as in Supreme Court Eule III. provided, the bond or stipulation shall be forthwith filed in Court, and upon such filing notice shall be given to the hbellant or his attorney, who may, if he sees fit, within five days of such notice, except to such bond or stipulation ; where- upon the bondsmen or stipulators shall appear before the Clerk and be examined by the hbeUant, or his attorney, as to their 700 DISTEICT COURT RULES sufficiency ; from the decision of said Clerk an appeal may be taken vnstomter to the Court ; in case no exception be taken to the sufficiency of such bond or stipulation within said five days, the Marshal shall be deemed discharged of all responsibihty for the appearance of the defendant. JSw?e 7. In suit m personam, stipulators to the Marshal in the arrest of" the defendant may be discharged from their bond or stipu- lation on the surrender of their principal, as in cases of bail at Law, and all stipulators on an arrest or for the appearance of the defendant, may, at any time before final decree, surrender their principal in discharge of the bond or stipulation. Mule 8. In case of attachment of property, or axrest of the person, the defendant, garnishee, or any person having a right to inter- vene therein, may, upon evidence showing any improper prac- tice, or a want of equity, on the part of the libeUant, have a mandate from the Judge for the libellant to show cause in^ stanter why the arrest or attachment should not be vacated. III. APPEAEANCE OF PAETIES. [See Rules 39, 37 and 39 of the Supreme Court of the United States in cases of Admiralty and Maritime Jurisdiction at pp. 338 and 341.] ly. NEW parties: inteevenoes. [See Rule 34 of the Supreme Court of the United States in cases of Ad- miralty and Maritime Jurisdiction at p. 340.] Rule 9. "Whenever, from the death of any of the parties, or change of interest in the suit, defect in the pleadings or proceedings, or that entire justice may be done, new parties to the suit are necessary, the persons so required to be made parties, may be made such either by a petition on their part or on the part of DISTRICT OF CONNECTICUT. 701 the adverse party. In which petition it shall be sufficient to allege briefly the prayer of the original libel, the several pro- ceedings in the cause, and a prayer that such persons may be made parties to the suit ; upon the filing of which petitions, process shaU be issued and served in the regular way, or the Court may, for cause shown, direct by special order the man- ner in which the same shall be served, and in either event the original action shall not be proceeded with until the new par- ties shall be regularly in court, and said new parties shall be required to enter into the ordinary stipulation required to be given by persons originally becoming parties to a suit. Y. PLEADING. [See Eules 23, 33, 34, 37, 38, 30, 31, 33, 33, 48 and 51 of the Supreme Court of the Uriited States in cases of Admiralty and Maritime Jurisdic- tion at pp. 386, 337, 388, 339, 340, 343 and 344.] Rule 10. Libels — except on behalf of the United States — shall be ver- ified by the oath or affirmation of the party or some person having knowledge of the facts stated in such pleading. Rule 11. In all possessory actions the answer shall be filed on the re- turn day unless otherwise ordered by the Judge, and a day for hearing will then be fixed. Rule 12. The amount of the debt or damages for which the action is brought shall be stated in the libel, and with the addition there- to of one hundred and fifty dollars in a proceeding in rem, and of one hundred dollars in a proceeding m personam, shaU be endorsed by the clerk on the mesne process, thus ; "Action for $ ," and the amount so endorsed by the clerk shall be considered the amount demanded in said action. Rule 13. AU interrogatories, direct or cross, shall, in case the parties 702 DISTRICT COURT RULES disagree in respect thereto, be settled by the Judge ; and six days' notice, unless the Judge shall, for cause shown, order a shorter time, be given by the party objecting to the opposite interrogatories, of the time and place of such settlement. Bule 14. •The party fiUng any pleading subsequent to the Hbel shall, within two days thereafter, notify the proctor of the adverse party, by mail or personally, that the same has been filed, or furnish him a copy thereof. VI. evidence: DEPosmoNS. Rule 15. Depositions m perpei/wam rei memoriam, to be used in this Court, may be taken under a dedimus potestatem, or by any oflBcer authorized by Act of Congress to take depositions de bene esse, to be used in the Courts of the'TJnited States. Mule 16. "When either party shall require viva voce testimony given ia open Court to be taken down by the clerk, pursuant to the Act of Congress, it shall be taken in the same manner as in jury trials, common law issues, and not verbatim, as in deposi- tions de bene esse. Rule 17. The notes of the Judge or of a stenographer, when one is employed by consent of parties, may be used as if taken down by the clerk. Rule 18. Either party may diminish, vary, or enlarge the minutes of proof upon consent of the opposite party ; and if amendments are proposed and the parties do not agree thereto, they shall be forthwith referred to the Judge, and he shall settle or de- termine how the facts are, and the statement thus settled or adjusted shall be filed as the true minutes of the testimony given. DISTRICT OF CONNECTICUT. 703 Rule 19. Depositions taken under commission, or otherwise, shall be forwarded to the clerk immediately after they are taken, and be filed on their return to the clerk's office, in term or vaca- tion; and notice thereof shall be forthwith given by the party filing them to the proctor of the opposite party. And all ob- jections to the form and manner in which they were taken or returned shall be deemed waived, unless such objection shall be specified in writing, within one week after notice that the same are opened, unless further time shall be granted by the Judge. YII. sales: beinging funds into couet. [See Rules 38, 41 and 43 of the Supreme Court of the United States in cases of Admiralty and Maritime Jurisdiction at pp. 341 and 343.] Rule 20. Whenever in an action in personam any debts, credits, or effects shall be attached in the hands of a garnishee, the Court may, of its own motion, or upon due application, require the party charged with the possession thereof to appear and show cause why the same shall not be brought into court to answer the exigency of the suit ; and if no sufficient cause be shown, the Court may order the same to be forthwith brought into court, to answer the exigency of the suit, and, upon failure of the party to comply with the order, may award an attachment, or other compulsive process, to compel obedience thereto. VII. Peactice. [See Rule 46 of the Supreme Court of the United States in cases of Admiralty and Maritime Jurisdiction, p. 343.] Rule 21. Special sessions of the Court for admiralty proceedings may be opened at any time mstanter, on the allowance of the Judge, for hearing and disposing of special motions, arguments 704 DISTRICT COURT RULES on questions of law, and also for taking proofs, or hearing ad- miralty and maritime causes, and rendering interlocutory or final decrees therein. Rule 22. Attorneys, proctors and advocates of any Circuit or District Court of the United States, and attorneys of the Supreme Court of this State, may be admitted proctors and advocates of this Court upon taking the oath prescribed by the Constitution and laws of the United States. But no such admission will be granted unless the same be moved by some proctor or advocate of the Court. IX. Cleeks: Commissionees. [See Rule 44 of the Supreme Court of the United States in cases of Admiralty and Maritime Jurisdiction, p. 342.] Rule 23, The clerk is authorized to tax or certify bills of costs and sign judgments, to take acknowledgments of the satisfaction of judgments, and all affidavits and oaths out of court, as in open court, in all cases where the same are not required by law to be taken in open court. Mule 24. Whenever a vessel shall have been sold to pay the claim of any hbellant, and the avails of the sale shall be returned into Court, an order shall be entered, as of course, for the clerk to proceed at once to ascertain and state the amount and preced- ence of the hens and claims upon said avails ; and the said clerk shall forthwith appoint a hearing for said purpose, and shall notify aU parties of record, or their attorneys of record, by de- positing, post-paid, in the post-office most convenient, a notice of said hearing, addressed to each of them, at least fifteen days prior thereto ; and he shall also give public notice of said hearing by publication two days successively in some news- paper of general circulation, both at or near the place of the vessel's arrest, and at or near its place of enrollment — so near as such place can be ascertained — the last pubh- DISTRICT OF CONNECTICUT. 705 cation to be at least ten days prior thereto ; and at the end of said fifteen days, said clerk shall proceed to ascertain and marshal all claims and hens upon said vessel, and all claim- ants who shall not at said time have filed their claims and liens with him, shall be barred from participation in said avails ; and the clerk shall forthwith return his finding into Court, and shall give notice to all parties of record, or their at- torneys of record, of the substance thereof. The Court, upon the next session-day after the expiration of fifteen days, unless objection be made to said report by some party in interest, may proceed to affirm said report, and make its final decree in accordance therewith. Any party aggrieved by said report may state and file his objection thereto in writing, and serve copies thereof on all the parties of record, or their attorneys of record, at least five days before said session day, and shall thereupon be entitled to be heard as to the same ; and upon said hearing, the Court shall make such decree as from a full hearing he shall deem meet. X. SuPPLEMEirrAEY EtJLES OF PRACTICE IN AdMIKALTT. Under the Act of March 3, 1851, entitled " An Act to limit the Habihty of ship-owners, and for other purposes." Eevised Statutes, Sections 4282-4289. [See Eules 54, 55, 56 and 57 of the Supreme Court of the United States in cases of Admiralty and Maritime Jurisdiction, at pp. 346, 347 and 348.] XI. Decrees : Final Peocess. [See Rules 21 and 40 of the Supreme Court of the United States in cases of Admiralty and Maritime Jurisdiction, at pp. 386 and 341.] Utile 25. Ifo decree shall be entered as of course, by default or mere consent of parties in Court, ordering the condemnation and sale of property arrested on process m rem, or for the disposi- tion of the proceeds thereof in court, unless notice shall be 45 706 DISTRICT COURT RULES published in the manner directed by the act of Congress — ^Ee- vised Statutes, Section 923 — ^in the case of condemnation under the revenue laws. XII. Appeals. [See Rules 45, 49, 50 and 53 of the Supreme Court of the United States in cases of Admiralty and Maritime Jurisdiction, at pp. 343, 344 and 345.] Bule 26. "Within two days of the rendering of any final decree, the clerk shall notify the proctors of both parties, by mail, of the rendering of such decree, and twelve days thereafter shall be allowed to either party to appeal therefrom, and during which time said decree shall not be executed; and if, within said time, the appellant shall enter into a bond or stipulation, in regular form and before the proper authority, conditioned to pay the damages and costs of such an appeal, the Court shall allow the same. Unless the appellant shall within thirty days cause the proceedings of the Court required by law to be trans- mitted to the Circuit Court, to be transcribed for that purpose, the appeal shall be considered abandoned, and execution shall be no longer stayed, except by special order of the Court on reasons shown. The several periods of time hereia laid down may be extended by special order of the Court. At a Stated Term of the District Court of the United States for the District of Connecticut, held at the City of Hartford on the eighteenth day of August;'in the year of our Lord one thousand eight hundred and seventy-nine. Present : the Honorable ITathanibl Shipmait, District Judge. In the Matter of the Drawing of Grand Jurors to serve in this Court. In pursuance of the provisions of the recent Act of Congress of the United States on the above-named subject, Joseph D. Bates of the City of Hartford, having been heretofore ap- pointed a commissioner to perform the duties prescribed by that act in this court, the said commissioner and the clerk of this court shall, as soon as practicable after the entry of this e.l DISTEICT OP CONNECTICUT. 707 order, place in a box the names of three hundred and forty-five persons or more to serve as grand jurors in this court, each on a separate shp of paper, each of which persons shall possess the qualification prescribed in Section 800 of the Revised Statutes of the United States, and shaU be electors of the State of Con- necticut, the said clerk and the said commissioner each placing one name in said box alternately, commencing with said clerk, without reference to party affihations, until the said number of three hundred and forty-five names or more shall have been placed therein. AU grand jurors to serve in this court shaU be publicly drawn by the said clerk from the said box, and from the names so placed therein, and at the time of the drawing of any juror the said box shall contain the names of not less than three hundred persons so placed therein. The said commis- sioner and the said clerk shall from time to time as may be necessary place in said box in manner aforesaid the names of additional persons, or the same persons, or both, possessing said qualifications, so that the number of said names shall not when any juror is drawn be less than three hundred nor more than five hundred. N. Shipmait, District Judge. At a Stated Term of the District Court of the United States for the District of Connecticut, held at Hartford, on the 12th day of July, a.d. 1883. Present : Hon. Nathaijiel Shipman, Disbrict Judge. In the Matter of the Selection of Petit Jurors for said Court. In pursuance of the provisions of the second section of the Act of Congress of the United States, entitled " An Act mak- ing appropriation for certain judicial expenses of the Govern- ment for the fiscal year ending June 30th, 1880, and for other purposes," approved June 30th, 1879, it is ordered that suitable boxes be provided by the marshal and delivered to the clerk for the safe keeping of the names of persons to be selected as eligible to serve as petit jurors. One said box shall be pro- 708 DISTRICT COURT RULES. ^ vided and designated for the counties of Hartford, Tolland, Windham and New London, which said counties shall be known as Sub-District No. 1, and another box shall be pro- vided and designated for the counties of New Haven, Middle- sex, Fairfield and Litchfield, which said counties shall be known as Sub-District No. 2. The Jury Commissioner and the Clerk of this Court shall in the months of July and August in each year, select to serve as petit jurors in this Court, and place in the box so provided as aforesaid the names of at least four hundred persons for each Sub-District, each of which persons shall possess the qualifications prescribed in Section 800 of the Kevised Statutes, being qualifications set forth in "An Act relating to Jurors," passed by the General Assembly of the State of Connecticut, approved March 25th, 1880, and shall be electors of said State, and shall be residents of said respec- tive Sub-Districts. Each name shall be Avritten on a separate slip of paper, with the person's place of residence, and the said clerk and the said commissioner shaU each place alter- nately one name in said respective boxes, commencing Avith said clerk, without reference to party affiliations, until the required number shall be completed. If at any time less than three hundred names remain in the box, the clerk and the commissioner shall replenish the quota in the manner afore- said. The boxes shall be locked and retained by the clerk, and the key shall be kept by the commissioner. The names of all petit jurors to serve hereafter at any term of this Court, shall be drawn publicly by the clerk from the box for the Sub- District in Avhich the term is to be held, and from the names placed therein, and at the close of each term, the ballots con- taining the names of persons who actually served as jurors, or who proved to be ineligible as jurors, shall be destroyed by the clerk. The clerk shall post upon the outer door of the clerk's office notice of the time and place of drawing petit jurors at least three days prior to the drawing, except when jurors are summoned during a session of court. All rules inconsistent with this rule are hereby abrogated. N. Shipman, District Judge. Habtford, July 12th, 1883. XIV. RULES. DISTRICT OF VEEMONT. CIRCUIT COURT. JUDGES AND OFFICEES CIECUIT COUKT OF THE UNITED STATES DISTEICT OF VERMONT. Samuel Blatchfoed — Associate Justice of tlie Supreme Court of the United States assigned to the Second Judicial Circuit — Cir- cuit Justice. No. 1433 K Street, N. W., Washington, D. C. "William J. Wallace — Circuit Judge. Syracuse, N. Y. KiTTEEDGE Haskins — United States Attorney. Brattleboro, Vt. United States Attorney's Office at Brattleboro, Vt. Beadlet B. Smallet — Clerk Circuit Court. Burlington, Vt. Clerk's Office at Burlington, Vt. "William "W. Henet — United States Marshal. Burlington, Vt. Court Rooms at Burlington, Rutland and Windsor, Vt. Circuit Courts held at Burlington, on the 4th Tuesday in February ; at Windsor, on the 3d Tuesday in May, at Rutland, on the 1st Tuesday in October. For Federal Statutes especially relating to this Court, see Respecting the Practice in the Circuit Courts generally and their power to make Rules, etc., pp. 353 to 355. Respecting Fees, etc., pp. 357 to 373. Respecting the Jurisdiction of this Court, p. 376. Respecting Sessions, etc., pp. 377'and 389. ' RULES CIKCUIT COURT OF THE UNITED STATES DISTKICT OF VEEMONT. Mule 1. Attorneys of the Supreme Court and solicitors of the Court of Chancery of the State of Yermont, may, on motion in open Court, or before a judge at chambers, be admitted of course, as attorneys and solicitors in this Court : and attorneys and solic- itors of said Court may, in hke manner, be admitted as proc- tors and advocates on the admiralty side of this Court. AH being sworn to support the Constitution of the United States, and to faithfully and uprightly conduct themselves in their office. And it shaU be the duty of the Clerk of the Court to make a record thereof, and give the person admitted a certified copy, for which he shall receive a reasonable compensation. Mule 2. Grand and petit jurors to serve at the session of this Court, required by law to be held at "Windsor, shall be summoned from the County of Windsor ; and those to serve at the session required to be held at Kutland, shall be summoned from the County of Kutland, unless otherwise specially ordered by the Court or a judge thereof ; and those required to serve at any special session of this Court shall be summoned from the County in which said special session shall be held, unless other- 712 CIRCUIT COURT RULES wise specially ordered ; and they shall be drawn and summoned in the manner provided by the laws of the State, for such Jurors in the County Courts ; and if any panel shall not be full when called, the same may be filled by talemen selected under the order of the Court, or a further number of regular jurors may be summoned, as the Court shall direct. Rule 3. _n cases of opposition of opinion between the judges, whether in civil or criminal cases, either party may, within four days after such opposition of opinion occurs, serve on the other party a statement in writing of the point or points of disagreement, and also of such facts and of so much of the pleadings in the case as are necessary to present the said point or points with clearness and precision, and if no amendments are proposed thereto within two days, such statement shall be filed and en- grossed by the clerk and certified under the seal of this Court to the Supreme Court. When amendments are proposed, such statement and amend- ments shall be submitted to the Court for settlement hke a case or bill of exceptions. Rule 4z. The clerk of this Court shall reside and keep his office at Burlington until otherwise ordered. Mule 5. If an attorney, proctor or solicitor does not reside in this State, service of all notices and papers may be made as to him by affixing the same in a conspicuous place in the clerk's office. Rule 6. AU notices shall be in writing, and shall be served on the attorney, proctor or solicitor, or party in the cause, either personally or by leaving the same at his last and usual place of abode in the hands of some discreet person ; but when the ob- ject is to bring the party into contempt, the service shall be personal unless otherwise ordered by the Court. And no ser- vice by notice or paper in the ordinary proceedings in a cause DISTRICT OF VERMONT. 713 shall be required to be made on a defendant who has not ap- peared- therein. Mule 7. The form of process and declaration shall be the same as is or may be provided by the laws of this State, and in cases not expressly provided for by such laws, in the form used in the County and Supreme Courts of the State so far as they may be applicable to the Federal Courts. Hule 8. All process shall be dated the day it issues, and all mesne process shall be returnable to the next regular term, if there shall be time for seasonable service thereof, according to the laws of this State, otherwise it shall be returnable to the next regular term thereafter; final process shall be returnable to the next regular term, or otherwise, if so specially ordered by a judge. Mule 9. The plaintiff, in aU mesne process, shall give security to the adverse party for the costs of defence if he fail in the action, by fiUng the bond of some responsible person, other than him- self, resident in this State, in the penal sum of two hundred dollars in the office of the clerk on or before the return day of the process, conditioned for the payment of such costs as shall be adjudged against the plaintiff ; and the Court or any judge thereof, may, on motion, require additional security for costs as shall be just ; and a failm-e to comply with this rule or any other made under it, shall be ground of non-suit, unless the Court, in its discretion, shall reheve the party in default. Mule 10, The Court or any judge may require any defendant who shall be held to bail, to put in additional or better bail, and on failure to comply, such defendant shall be defaulted, unless the Court shall, in its discretion, relieve such defendant from such • de- fault. Bail may justify in Court, or before a judge at cham- bers, or before the clerk with the right of appeal to a judge. 714 CIRCUIT COURT RULES Mule 11. The creation, continuance and termination of liens and rights created by attachment of property, or the arrest of a defend- ant, shall be governed by the laws of this State. Rule 12. In cases in which personal service of process has not been made by reason of the absence of the party to be served, from the district, notice may be given him to appear, by publication in such paper, and such manner as the Court or a judge there- of may order. Mule 13. All suits shall be docketed on the first day of the term to which they are returnable, but for special cause the Court may permit a suit to be docketed at a later day in the term. Rtile 14. The appearance of the defendant in person, or by an attor- ney of this Court, shall be entered on the docket on the first day of the term, at which he is required to appear, but for special cause the Court may permit an appearance to be en- ■ tered at a later day in the term. Mule 15. If no appearance shall be entered pursuant to the foregoing rule, the defendant may be defaulted, and final judgment be entered upon such default. Mule 16. If cases of judgment for the plaintiff, upon default, nil dioit, or on demurrer, or for non-comphance with any order of the Court, the damages may be assessed by the Court, or by the clerk, or any proper person appointed by the Court for that purpose. MuZe 17. All civil causes, except those mentioned in rules 18 and 19, shall be continued at the first term, on motion of either party ; the postponement of criminal cases shall be discretionary with the Court. DISTRICT OF VERMONT. Y15 Hule 18. When in suits upon bonds for the payment of duties, and in suits brought against persons responsible for the payment of public money, for the recovery thereof, the defendant inter- poses a plea, the district attorney may have the cause placed on the calendar, at the same term, without other notice ; and may bring the same to trial when called, unless the Court shall continue the cause over, at the instance of the defendant. Rule 19. E"o plea shall be received in any suit instituted in this Court upon a bond executed to the United States for the payment of duties, or, in any suit instituted upon a bail-bond taken in con- sequence of such suit, unless such plea shall be accompanied by an affidavit of the truth of the matters in the plea contained. Bule 20. In the cases mentioned in rules 18 and 19, the defendant, un- less the case be continued, shall plead before noon of the second day of the term, and the plaintiff may reply instcmter, or.have the case continued, at his option. If continued, he shall reply within thirty days, and the subsequent pleadings shall be put in within the same intervals. Mule 21. In aU cases continued, the defendant shaU plead or demur within sixty days, and the plaintiff shall reply or demur within thirty days thereafter, and so on until the pleadings are closed. Copies of all pleadings shall be served on the attorney of the adverse party, (or on the party himself if he have no attorney,) by depositing th^ same in the post-office properly addressed, postage paid. Dilatory pleas shall be filed before noon of the second day of the term, and the plaintiff may reply within a time to be allowed by the Court. Bule 22. A judge at chambers may, on motion and notice, make, en- large, or discharge orders for bail, enlarge the time for plead- ing, allow amendments of process, declarations, or pleadings. 716 CIRCUIT COURT RULES and make any other interlocutory orders in a cause for the orderly proceedings therein, or the speeding thereof. BiUe 23. Common orders, (or orders of course, without special cause shown,) and orders by consent, may be entered in the proper book in the clerk's ofllice in term or in vacation ; the day of entering the same being noted therein, and the party may enter such order as he may consider himself entitled to, of course, but at his peril. Rule 24. Eeasonable notice of assessment of damages and taxation of costs shall also be given ; but no notice of assessment or tax- ation shall be required except when the defendant shall have appeared by an attorney. And in cases of judgment for the defendant, reasonable notice of taxation of costs shall be given to the plaintiff's attorney, if any has appeared. And where an assessment is not made by a judge, or jury, any contested point of law or practice may be revised by a judge on application of either party, filed within twenty-four hours after the filing of the report of the assessment. Taxation of costs may also be reviewed by a judge in like manner. But in cases in which it shall be necessary to issue execution immediately, in order to hold property attached, or bail, such application for review shall not delay the making up of the judgment on such assess- ment and taxation, and the issuing of execution thereon by the clerk, unless so ordered by a judge ; but if execution thus issue, the party will take it at his peril. Rxile 25. Applications made by a party in pursuance' of the fifteenth section of the judicial act, to require the opposite party to pro- duce books and writings, must be made upon petition, verified by affidavit, setting forth plainly the facts and circumstances upon which the application is founded ; and in such petition, or in the affidavit thereto subjoined, it must be stated that the books or writings, the production whereof is sought, are not in the possession nor under the control of the petitioner, and that he is advised by his counsel, and verily believes that the pro- DISTRICT OP VERMONT. T17 duction of the books or writings mentioned in such petition is necessary to enable him safely to proceed in the prosecution or defence (as the case may be) of his suit. Bule 26. The petition may be presented to the judge of this court in vacation, as well as to the Court in term ; and the order to be made thereon shall be that the party against whom the appli- cation is made shall produce the books or writings mentioned in the petition, or show cause on the day and at the place to be therein specified, why the prayer of such petition should not be granted. Bule 27. Such order shaU also specify the manner in which such books or writings shall be produced, and may require the party either to produce and deposit the same with the clerk of this Court, or to deliver to the petitioner or his attorney copies thereof verified by oath. Bule 28. A copy of such petition, together with a copy of the order made thereon, shall be served upon the party against whom the order is directed, a reasonable time to be prescribed in the or- der before the day therein prescribed for sho^ving cause. Bule 29. Commissions to take the examination of witnesses may issue by order of Court in term, or of a judge in vacation. Bule 30. Such commissions may also be issued by consent. But the agreement for that purpose shall be in writing, and filed in the clerk's ofiice ; and the clerk shaU, in such case, make an en- dorsement upon the commission, under his signature, in the fol- lowing form : Allowed hy consent of pmrties. Bule 31. All civil causes shall (if a trial is intended) be noticed for trial. T18 CIRCUIT COURT RULES Where a cause is noticed for trial by a party desiring it, a notice thereof shall be entered on the docket at least twenty days before the term. And notice of countermand shall be given personally, or through the post office, to the counsel of the other party at least six days before the time for -which the cause was noticed. And no such cause shall be tried unless so noticed, without the consent of the parties. Mule 32. "Whenever it shall be intended to move to set aside a non-suit or verdict, except for irregularity, a case shall be prepared by the party intending to make the motion, and a copy thereof shall be served within four days after the trial on the opposite party, who may, within four days thereafter, prepare amend- ments thereto, and serve a copy on the party who prepared the case, who may then, Avithin four days thereafter, serve the op- posite party with notice to appear, within a convenient time, before the judge, to have the case and amendments settled. The judge shall thereupon correct and settle the case, as he shall deem to consist with the truth of the facts. The time for settling the case must be specified in the notice, and shall be not less than four, nor more than twenty days after service of such notice. Btde 33. If the party omit to make a case within the time above limited, he shall be deemed to have waived his right thereto ; and when a case is made and the parties shall omit, within the several times above limited, the one party to propose amend- ments and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as proposed. If judgment has been rendered upon a verdict, the party intending to move for a new trial shall give four days' notice in writing to the opposite party, of any motion to stay execution thereon, and also of the petition in- tended to be filed pursuant to the 18th section of the act of September 24th, 1Y89, unless a shorter time be allowed by the Court or a judge thereof. DISTRICT OF VERMONT. 719 Sule 34. General verdicts may be taken subject to the opinion of the Court on a case to be made by the party in whose favor the verdict is taken, containing all the evidence given at the trial, the case to be prepared and settled in the manner prescribed in the foregoing rules. Hide 35, In cases of exceptions taken, demurrer to evidence or special verdict, the party shall not be required to prepare, at the trial, his bill of exceptions, demurrer, statement of evidence or special case, or to put in form the special verdict, but shall merely re- duce such exceptions to writing, or make a minute of the demurrer to the evidence, and of the facts found specially by the jury, as the case may happen to be, and dehver it to the judge, or the judge will himself note the points, as he may direct; and the bill, demurrer or special verdict, shall after- wards be drawn up, amended and settled within such times and under the same regulations as are made with respect to cases. Bule 36. A bin of exceptions may, before judgment, be used instead of a case on motion for a new trial, and notice of such motion, together with an order to stay proceedings, and a copy of such bill of exceptions shall operate to stay all further proceedings until the decision of the Court : Provided, that proceedings shall not be longer stayed than if a case had been made. Bule 37. On hearings before the Court the clerk shall furnish each member of the Court with a certified copy of the case upon both sides, and each party shall pay for his portion of it. Mule 38. Whenever an order to stay proceedings shall be granted to ena;ble the party to make a special motion, service of such order with copies of the affidavit upon which it is granted, and notice of the motion, shall operate as a stay of proceedings until the further order of the Court. But if the party shall neglect to 720 CIRCUIT COURT RULES bring on the motion to be heard according to his notice, the proceedings shall be liable to pay the costs of attending to re- sist the motion. Bule 39. No private agreement or consent between the parties or their attorneys in respect to the proceedings in a cause shall be bind- ing, unless the same shall be reduced to the form of a rule by consent, and entered accordingly, or unless the evidence there- of shall be in writing, subscribed by the party or his attorney against whom the same shall be alleged. Rule 40. In aU cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party whose duty it shah be to comply therewith, shall have twenty days for that purpose, unless otherwise directed in the order. And where, by the terms of any order, an act is directed to be done mstanter, it shaU be understood to require such act to be performed within twenty-four hours. Mule 41. AU moneys paid into Court which any collector of customs is entitled by law to receive, shall, after deducting the costs, be paid over to him by the clerk, upon an order to be entered of course for that purpose. Mule 42. All moneys paid into Court which are required by law to be deposited in bank, shall be forthwith deposited by the clerk in such bank as the Court may designate, to the credit of the Court. Mule 43. AU checks for money so deposited, to be drawn out of the bank, shall be signed by the clerk, as clerk, and such check shall be written on the same paper which contains the order of the judge for that purpose. DISTRICT OF VERMONT. 721 Rule 44. A book shall be kept by the clerk, in which he shall enter a full and particular account, under the title of each cause de- pending in the Court, of all money paid into Court in such cause, and of the payment thereof ; and such book shall, at all times, be open to the inspection and examination of the Court or any judge thereof. Mule 45. The marshal and his deputies are prohibited from becoming bail in any case depending in this Court. And attorneys, so- Hcitors, proctors and advocates, are also prohibited from be- coming bad in any case in which they are employed. Bule 46. The clerk may tax and certify biUs of costs, and sign judg- ment records. Bule 47. On an indictment found by the grand jury, the district attor- ney may forthwith sue out a capias under the seal of the Court, for the arrest of the person indicted. Mule 48. Where a fine is imposed by the Court on any person for any cause, and the party is not thereupon committed, and such fine is not discharged previously to the close of the term, the clerk shall issue to the marshal a warrant of execution, commanding him to levy and make such fine of the goods and chattels, or in the default thereof, of the lands and tenements of the party, and in default thereof, to commit such person to jail in the county where he resides, or may be found, unless some other County is designated by order of the Court. Mule 49. In all cases not provided for by the rules of this Court, or by law, the practice of the Supreme and County Courts of this State shall regulate, so far as it may be consistent with the practice of this Court. 46 722 CIRCUIT COURT RULES Ride 50. The transcript to be sent to this Court, on appeal thereto from a sentence or decree of the District Court, may be certi- fied by the clerli of the latter Court, under his hand and the seal of the Court. Mule 51. Eight days' notice of hearing on appeal, shall, in aU cases, be given by the service thereof on the adverse party, or on his proctor. Rule 52. When an appeal from a decree of the District Court is inter- posed twenty days before the next stated session of this Court, it may be noticed for hearing at such session by either party. Utile 53. "When an appeal from a decree of the District Court is inter- posed less than twenty days before the next stated session of this Court, the appellee may, at his option, notice the cause for hearing, at such session, on the first or other day thereof ; or have the cause continued until the next stated session. Mule 54. Transcripts of the depositions taken in any cause in the District Court, according to law— whether de bene esse under the acts of Congress, or on commission — and read at the hear- ing of the cause in that Court, may be transmitted to this Court on appeal and read by either party as evidence at the hearing of the cause in this Court. Mule 55. A copy of the notes taken by the judge, or under his direc- tion, by the clerk of the District Court, of the evidence of witnesses examined orally therein, shall be certified and trans- mitted to this Court on appeal, along with the transcript of the record and other proceedings in the cause, and shall be admitted to prove the evidence given by such witnesses ; but nothing herein contained shall be construed to abridge the right of the parties to re-examine such witnesses in this Court if they shall see fit to do so. DISTRICT OF VERMONT. 723 October Tbkm, 1871. It is Ordered — That the clerk enter no suit at law, or in equity, on the docket, or issue any process thereon, until an attorney residing in this district shall enter his name for the plaintiff, or orator. And no pleadings shall be entered for the defendant, until an attorney residing in this district shall appear for such de- fendant. Lewis B. Woodetjff, ) j ■, D. A. Smallet, ) XV. RULES. DISTRICT OF VEEMONT. DISTRICT COURT. JUDGE AND OFFICEES DISTRICT COURT OF TH;E UNITED STATES DISTEICT OF YERMONT. HoYT H. "Wheelee — District Judge. Jamaica, Vt. KiTTEEDGE Haskins — United States Attorney. Brattleboro, Vt. United States Attorney's Office at Brattleboro, Vt. Bradley B. Smallet — Clerk District Court. Burlington, Vt. Clerk's Office at Burlington, Vt. "William W. Henet — United States Marshal. Burlington, Vt. Marshal's Office at Burlington, Vt. Court Rooms at Burlington, Rutland, and WindsGr. District Courts held at Burlington, on the 4th Tuesday in February ; at Windsor, on the 3d Monday in May ; at Rutland, on the 1st Tuesday in October. For Federal Statutes especially relating to this Court, see Respecting the Practice in tlie District Courts generally, their power to make Rules, etc., pp. 353 to 355. Respecting Fees, etc., pp. 357 to 372. Respecting the Jurisdiction of this Court, p. 376. Respecting Sessions, etc., pp. 379 and 389. RULES DISTEICT COURT OF THE UNITED STATES DISTEICT OF VEEMONT. Rule 1. The " Eules of Practice of the Courts of the United States, in causes of Admiralty and Maritime jurisdiction, on the in- stance side of the court," prescribed by the Supreme Court of the United States, at the January Term, 1845, are understood to be obligatory on this Court, in all causes arising under the act of Congress, entitled " An Act extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same," passed February 26th, 184:5 ; and the said Eules are hereby declared to be the Eules of Practice in this Court, in exercising the jurisdiction conferred by the said act ; and also by any subsequent law of Congress on that subject. Ride 2. A special session of the Court will be held at Burlington on the first Tuesday of every month, at ten o'clock in the fore- noon ; at which special sessions all process must be made returnable, and all proceedings must be had, except trials by jury, which will not be held without a special order of the judge for that purpose, except at a stated term. And in case of the non-attendance of the Judge at the time hereby ap- pointed, or at any other time which may, by special order, be appointed, for any special session of the Court, all process and 728 DISTRICT COURT RULES proceedings shall be continued, without prejudice, to the next special session, or to some earher day for that purpose ap- pointed by the judge. Mule 3. All process shall bear test of the day on which it is sealed, and shall be made returnable before the judge at Burlington, on the first Tuesday of the month next after the test thereof, or of some succeeding month. Rule 4. Libels, answers, and alt other pleadings and papers to be filed, shall be so plainly written as to be readily legible, and shall be free, to all reasonable extent, from interlineations and erasures ; and it shall be the duty of the clerk to reject all papers delivered to him to be filed, which are not in conformity with this rule. Mule 5. All libels praying process of arrest, whether in rem or in personam, shall be verified by the oath or solemn afiirmation of the libeUant, unless, for sufficient cause shown, such oath or affirmation shall be dispensed with by the special order of the judge. And all libels, answers and other pleadings shall be signed by the party in his own proper hand-writing, and in like manner by the proctor for the party in whose behalf they are filed, unless, for special cause shown, such signature shall be dispensed with by leave of the Court. Mule 6. In suits m rem, the mesne process shall be served, and the required notices given, at least fourteen days before the return day of the process, unless a shorter time shall be prescribed by special order, founded upon the exigencies of the particular case. Mule 7. All process, and all notices for publication in a newspaper in pursuance of Eule 9 of the Eules of Practice in admiralty and maritime causes, prescribed by the Supreme Court, shall DISTEICT OF VERMONT. 729 be drawn up by the clerk ; and no process, except subpoenas, shall be issued by him in blank. Rule 8. The notice mentioned in the last preceding rule shall contain the title of the suit, a summary statement of the cause of action, the amount claimed by the libellant, and the day and place fixed for the return of the process ; and shall have the name of the proctor of the libellant, and that of the marshal, or of his deputy by whom the • arrest shall have been made, affixed thereto. Mule 9. The amount of the debt or damages for which the action is brought, shaU be stated in the Mbel, and, with the addition thereto, for costs, of $250 in a suit in rem, and of $100 in a suit m personam,, shaU be endorsed on the mesne process, thus: "Action for $ ." Mule 10. When the libeUant is not a resident of the district, he shall, at the time of commencing his suit, give a bond or stipulation, with one or more sufficient sureties, in the sum of at least one hundred dollars, if the suit is in personmn • and in the sum of at least two hundred dollars, if the suit be in rem — conditioned that he wiU appear, from time to time, and abide by all orders, interlocutory and final, of the Court, and pay the costs and expenses, if any, which shall be awarded against him by the final decree of this Court, or of any appellate Court : Pro- vided, however, that this regulation shall not extend to suits for seamen's wages, nor to suits for salvage when the salvors have come into port in possession of the property libelled. Mule 11. In all cases not embraced within the last preceding rule, on motion of the defendant or claimant, the Court will, in its dis- cretion, direct the libellant, on pain of dismissing his libel, to give the like security. Mule 12. Instead of the security specified in the two last preceding 730 DISTRICT COURT RULES rules, the party from whom it is required may, at his option, deposit in Court a sum of money of the like amount. Bule 13. If, in any case, a libel shall be filed in behalf of a libellant who is not a resident within the district, before security for costs and expenses shaU be filed as required by Rule 10, the proctor for such libellant shall be liable for such costs and ex- penses to the amount specified in the said rule, until such secu- rity shaU be filed, and the payment thereof may be enforced by summary process in personam, against such proctor. Rule 14. "When a proctor is retained to defend, in any suit, before the return day of the mesne process therein, who resides, or has his place of business more than three miles from the clerk's office, and not more than three miles from the residence or place of business of the proctor for the libellant, such proctor for the defendant may, at any time before the return day of the process, serve a notice of his retainer on the proctor for the libellant ; and it shall thereupon be the duty of the proctor for the libellant, without delay, to serve on the proctor for the de- fendant a copy of the hbel on file. Rule 15. When the defendant's answer, or any other pleading subse- quent to the libel, is put in by being simply filed in the clerk's office, instead of being given in open Court, in presence of the proctor or advocate for the adverse party, a copy thereof, with notice of the time of filing the same, shall, without delay, be served on the proctor of such adverse party. Rule 16. When a decree is made in the presence of the proctor of either party to the suit, unless such proctor resides at the place where the clerk's office is kept, it shall be the duty of the clerk immediately to transmit to him by mail a copy of the decree ; and such proctor and party shall be responsible to the clerk DISTEICT OF VERMONT. Y31 for the fees to which he may be entitled for such service, ac- cording to the usual rate of charge. Rule 17. Not less than fourteen days' notice shall be given of the sale of property on final process, unless by a special order of the judge ; and when, in the opinion of the marshal or his deputy, by whom the sale is to be made, the circumstances of the case require a longer notice, he may, in his discretion, extend it to any time not exceeding thirty days. Mule 18. "When interrogatories are propounded by the defendant at the close of his answer, touching any matters charged in the libel, or touching any matter of defence set up in the answer, (according to Eule 32 of the Eules of Practice prescribed by the Supreme Court,) the libeller shall answer the same within twelve days, unless, for sufficient cause shown, he shall, by special order, be allowed a longer period ; and the Court may, in its discretion, require such interrogatories to be answered within a shorter time, or instanUr. Rule 19. When interrogatories are propounded to a garnishee, (in pur- suance of Eule 37 of the Eules of Practice, prescribed by the Supreme Court,) in Admiralty, a copy thereof shall be served upon the garnishee personally, or, in case of his absence from his dwelling house or usual place of abode, by leaving such copy with some person of suitable age who is a member or resident of the family ; and the garnishee shall be required to answer the interrogatories within twelve days after such service, unless a longer period shall, for adequate cause shown, be, by special order, allowed for that purpose ; and the Court may also in its discretion, prescribe a shorter period. Mule 20. Exceptions to the libel (taken in pursuance of Eule 36 of the Eules of Practice prescribed by the Supreme Court,) for surplusage, irrelevancy, impertinence or scandal, may be taken 732 DISTRICT COURT RULES ore tenus, on the return day of the mesne process ; and excep tions to the answer or other allegation given by the defendant, taken for the hke causes, in pursuance of the same rule, or in pursuance of Eule 27, for want of sufficiency, fulness or dis- tinctness, may be taken in like manner, when the answer or al- legation is put in in open Court ; and the Court will, there- upon, in its discretion, either decide upon the sufficiency of the exceptions so taken, mstanter, or direct the same to be drawn up in writing, and appoint a day to hear argument thereon, or refer the same to a commissioner. Mule 21. "When, at the return of the mesne process, further time has been granted to answer the libel, and the answer, instead of being produced and offered in open Court, in the presence and hearing of the advocate of the hbellant, is simply filed with the clerk, a copy thereof shall, without delay, be served on the proctor for the libellant, personally, if he resides within three miles of the proctor for the defendant, otherwise either person- ally or by mail ; and the proctor for the libellant may, within ten days after the service thereof, file and serve exceptions thereto. The defendant, within eight days after the service of such exceptions, may give a written notice of his submission to any or all of them ; and if any of them are not submitted to within the time prescribed, the libellant may bring the same to a hearing before the Court, by giving, at any time within six days, a notice of not less than six nor more than ten days, of such hearing. Every exception not submitted to, and which is not notified for hearing within the time specified, shall be con- sidered as abandoned. Bule 22. When exceptions are referred to a commissioner, if the party who obtained the reference shall not procure and file the com- missioner's report within fourteen days from the date of the order of reference, unless further time shall be allowed, for sufficient cause shown, by special order, the exceptions shall be considered as abandoned. The party by whom the reference was obtained shall have eight days after filing the report of the commissioner, to except thereto. On filing the report, he DISTRICT OF VERMONT. T33 shall give notice of filing the same to the adverse proctor, who shall have eight days after such notice to except to the report. Exceptions to a commissioner's report may be noticed for argu- ment by either party, and the notice shall be served at least six days before the day designated for the hearing. Mule 23. All appeals to the Circuit Court must be interposed within ten days from the date of the decree, or within such other period as shall be designated by special order made in the particular suit ; and in cases where the right of appeal is allowed, no final process shall issue, before the expiration of the ten days, or other period prescribed. Rule 24:. In all cases not otherwise provided for, the regulations pre- scribed by law relative to the mode of serving notices and other papers, in suits prosecuted in the Courts of the State of Vermont, are hereby adopted, mutatis mutandis, as rules of this Court, in cases at law as well as in admiralty. DELIVEET OF PKOPEETY UNDEE SEIZUEB, PENDENTE LTTE. Rule 23. 1. Applications for the delivery to the claimant of property seized as forfeited under any law of the United States, may be made at any time after the service of the monition and warrant of arrest. 2. At least four days' notice of the application shall be given to the district attorney and to the collector of the collection district in which the seizure was made, accompanied by the service on each of them of a copy of the petition for delivery ; unless the application be made in open Court, when the dis- trict attorney and the collector are. present; in which case no previous notice shall be necessary. 3. Unless a claim, duly verified, shall have already been in- terposed by the applicant, he shall show, at the time of his appUcation, by his own oath or other evidence, that he is law- fully entitled to appear as claimant in the case. 4. The appraisers shall be sworn, faithfully and fairly to 734 DISTRICT COURT RULES appraise the property in question, and make a true report of the value thereof, according to the best of their understanding, without unnecessary delay. 5. Eeasonable notice of the time and place appointed by the appraisers to make the appraisement shall be given to the dis- trict attorney, the collector and the claimant. 6. For the purpose of ascertaining the value of the property to be appraised, the appraisers may examine such persons on oath, and receive such affidavits taken before one of the commis- sioners of this Court, (who are hereby authorized to take such affidavits,) as they may think proper. 7. On the return of the appraisement to the Court, or to the judge in vacation, accompanied by a certificate from the collector and naval officer (if there be one), that the duties on the prop- erty seized, if any be chargeable thereon, have been paid ; and on satisfactory evidence that the expenses of the appraisement have been paid by the claimant ; and on the execution by the claimant of a bond, in conformity with the statutes of the United States in such case made and provided, before the Court, the judge, or the clerk ; an order will be granted for the delivery of the property to the claimant. 8. The appraisers shall severally be entitled to be paid for their services in making an appraisement, three dollars a day for each day necessarily spent in the performance of such services. 9. But whenever, in any case, the value of the property seized shall be agreed upon between the collector and district attorney in behalf of the United States, and the claimant, and a certificate in writing expressive of such agreement shall be signed by them and filed in the clerk's office, (in conformity with the practice of the Court heretofore,) it shall have the same validity and effect as if it had been made and reported by appraisers duly appointed for that purpose. SALE OF PEEISHABLE PEOPEETT. Btile 26. 1. Application for the sale of perishable property seized as forfeited under any law of the United States, may be made either by the district attorney in behalf of the United States, DISTRICT OF VERMONT. 735 or by the claimant, at any time after the service of the moni- tion and warrant of arrest. 2. At least four days' notice of the application, when made by the claimant, shall be given to the district attorney, and to the collector within whose collection district the seizure was made, accompanied by the service of a copy of the petition for the decree or order of sale ; and a like notice shall be given to the claimant, if there be one, or to. his proctor or attorney, when the application is made by the district attorney. But when the application is made in open Court, and the proctor or attorney of the opposite party is present, no previous notice shall be necessary. 3. When the application is made by the claimant before a claim duly verified shall have been already interposed, he shaU be required to show, at the time of his application, by his own oath or other evidence, that he is lawfully entitled to appear as claimant in the case. 4. The place of sale, and the length of the notice of sale to be given by the marshal, (which, unless otherwise specially directed, shall be given in the manner prescribed by the 90th section of the collection act of March 2, 1799, in cases of con- demnation,) will be determined by the Court or the judge, in each case, according to its nature and circumstances, and pre- scribed in the order of sale. 5. When the application for an order of sale is resisted by the opposite party, and the propriety of such order appears doubtful, surveyors will be appointed, preUminarily, to ex- amine and report as to the condition of the property. EBMISSION OF FINES, PENALTIES, FOEFEITUEES, AND DISABILITIES. Bute 27. Preparatory to the presentation of a petition for the remis- sion or mitigation of any fine, penalty, forfeiture, or disability, a copy of such petition, together with a notice of the time and place of presenting the same, shall be served on the attorney of the United States, and another copy with the like notice on the person or persons claiming the fine, penalty or forfeiture, ten days before the time of presenting the petition. T36 DISTRICT COURT RULES. Btile 28. The petition, in addition to the other circumstances of the case, shall state whether any, and what suit, has been instituted, and what proceedings have been had for the recovery of the fine, penalty or forfeiture, up to the time of preferring the petition. Bule 29. The clerk, under the direction of the judge, shall prepare a statement of the facts relative to the case which appear upon the inquiry, and forthwith transmit the same, together with the petition, to the Secretary of the Treasury. Bule 30. The fees of the clerk shall be paid by the petitioner before the transmission of the petition and statement to the Secretary of the Treasury ; and where there are several petitioners or dis- tinct claimants, not being partners, or several cases or importa- tions embraced in one petition, the clerk shaU be entitled to the same fees as if a distinct petition had been presented in each case. Mule 31. The clerk is authorized to enter satisfaction of record of any judgment rendered in this Court in behalf of the United States, on filing an acknowledgment of satisfaction of the same duly made by the district attorney. Mule 32. The practice in this Court in instance causes, and in common law, equity and criminal cases, and in all other matters not herein otherwise provided for, shall be regulated by the rules of the Circuit Court for this District. XVL THE GENEEAL EULES OF PEACTICE OF THE SUPREME COUET OP THE DISTEICT OF COLUMBIA. ALSO TBS RULES IN APPEALS FROM THE DECISIONS OF THE COMMISSIONEE OF PATENTS, THE RULES OF PRACTICE IN EQUITY OP SAID SUPREME COURT, JkKD OEPHANS' COUET EULES. RULES ADOPTED IN ADMIRALTY (Other than Prize), in addition to those prescribed by the Su- preme Court of the United States, and the EULE EEGULATING THE PEACTICE IN CASE OF FORCIBLE ENTRY OR DETAINER. 47 JUDGES AND OFFICEES THE SUPREME COURT DISTEICT OF COLUMBIA. David K. Caetter— Chief Justice. No. 1505 H Street, N. TV., Washington, D. C. Andkew Wtlie — Associate Justice. No. 1305 Fourteenth Street, N. W., Washington, D. C. Aethuk MacAethue — Associate Justice. No. 1201 N Street, N. W., Washington, D. C. Alexandee B. Hagner — Associate Justice. No. 1818 H Street, N. W., Washington, D. C. "Waltee S. Cox — Associate Justice. No. 1636 I Street, N. W., Washington, D. C. Charles P. JaImes — Associate Justice. No. 1834 Massachusetts Avenue, Washington, D. C. Augustus S. "Woethington — United States Attorney. No. 411 Maple Avenue, Le Droit Park, Washington, D. C. Eetuen J. Meigs — Clerk. No. 303 New Jersey Avenue, S. E., Washington, D. C. Clayton McMichael — -United States Marshal. No. 1015 Connecticut Avenue, N. W., Washington, D. C. SUPREME COUKT DISTRICT OF COLUMBIA. 739 The Terms of the Supreme Court of the District of Columbia are held at the City Hall in "Washington City as follows : General Tekmr. — Third Monday of January, third Monday of April and first Monday of October. CiKCUiT CouKT. — Fourth Monday of January, second Monday of May and third Monday of October. United States District Court. — First Mondays of June and Decem- ber. Criminal Court. — ^First Monday of March, third Monday of June and first Monday of December. Special Terms. — First Tuesday of every Month except August, in which month there is no Court. GEKEEAL RULES OF PRACTICE THE SUPREME COURT DISTRICT OF COLUMBIA. ADMISSION TO THE BAE. Rule 1. All applications for admission to the bar shall be made to the court in general term. Applicants for admission, who have been admitted to practice law in the Supreme Court of any- State or Territory, may, upon satisfactory evidence of good moral character, and after examination as to fitness, or, in the discretion of the court, vdthout such examination, be admitted to the bar. Provided the members of the bar of this court are admitted to the bar of the highest court of such State or Terri- tory upon the same terms. No student shall be admitted until after such examination, and proof of good moral character, and that he has studied at least three years under the direction of some competent attorney. Diligent study in any law school shall, to the extent thereof, be computed as part of said three years. Apphcants for admission to the bar must take the sub- joined OATH OF ATTOENETS. -, do solemnly (affirm) (swear) that I will demean myself as an attorney and counsellor of this court, uprightly and according to law ; and that I will support the Constitution of the United States. 14:2 GENERAL RULES SUPREME COURT TEEMS OF THE COTJET. Mule 2. The GENERAL TERMS are held— 3d Monday of jAifUAET. 3d Monday of Apeil. 1st Monday of Octobee. The CIRCUIT COURT is held— 4th Monday of Januaey. 2d Monday of May, which term shaU not continue beyond the 3d Saturday in July, except to finish a pending trial. 3d Monday of Octobee. The DISTRICT COURT is held— 1st Monday of Jttne. 1st Monday of Decbmbee. The CRIMHSTAL COURT is held— 1st Monday of Maech. 3d Monday of June. 1st Monday of December. The SPECIAL TERMS are held 1st Tuesday of every month, save August , in which month there is no court. eetuen, appeaeance, oe eule day. Utile 3. The first Tuesday of every month, save of August, shall be the return day of process, appearance day of parties, and the day on which rules or orders may be made in the Clerk's Office to speed any cause depending in the court. And the term return day, appearance day, or rule day, always desig- nates the first Tuesday of the month to which it relaies. INTEELOCUTOEY OEDEES. Mule 4. At Chambers. — "When an order is obtained from a judge at chambers, it is not presumed to be known to the opposite party without previous actual notice of the application. DISTRICT OF COLUMBIA. U3 BULE BOOK. Mule 5. A record book shall be kept in the Clerk's Office to be called the Eule Book, in which the clerk shall cause to be en- tered every interlocutory motion, rule, order, or step made or taken in a cause preparatory to its trial on the merits, except such as shall be made in special or general term, which are to be entered in the minutes of the court. MINUTES. Sule 6. The minutes of the court are, in efPect, a journal of its proceedings while sitting, entered or recorded in due legal form by the clerk, and signed by the justice or justices presiding. AMENDMENTS. Rule 7. In any stage of a cause, all such amendments may be made as may be necessary for the purpose of determining, in the existing suit, the real question in controversy between the parties, whether the defect or error be that of the party apply- ing to amend or not. [See Rule 56, also Maryland Act of November, 1785, ch. 50, § 4.] COMMENCEMENT OF SUIT. Rule 8. Every civil action shall be commenced by filing in the Clerk's Office a libel of information, bill, petition, or declara- tion, as the case may be, and in case of appeal from a justice of the peace, justice's papers and a transcript of his docket shall be filed on making the deposit required by law, or with- out such deposit, upon an order of the court, or of one of the justices ; whereupon the clerk shall immediately enter the case upon the proper docket, in the order of such filing, and num- ber it accordingly. 744 GENERAL RULES SUPREME COURT CAUSES OF ACTION WHAT INCLUDED. Rule 9. The plaintiff may include in his declaration all the causes of action, of the same nature, he has against the defendant, but must state each distinct cause of action in a separate count. Rule 10. The declaration in an action by husband and wife may include all the causes of action they jointly have against the defendant, of the same nature, but must state each distinct cause of action in a separate count; in which case, should either plaintiff die pending the suit, it will abate as to such cause of action only as does not survive. Rule 11. Where money is payable by two or more persons, jointly or jointly and severally, as by joint obligors, covenantors, makers, drawers, or endorsers, all or any of the parties by whom the money is payable, may be included in the same declaration, at the option of the plaintiff. (14 Stats., 405, § 20.) EJECTMENT. Rule 12. In ejectment, the declaration shall be in the name of the real party in interest against the party claiming to own or be possessed of the land at the commencement of the suit, and the declaration shall specifically set forth the nature and extent of the estate claimed by the plaintiff in the premises. Under separate counts, the plaintiff may unite in his declaration an action of ejectment and an action for mesne profits. And in no action for mesne profits shall proof of possession be required of the plaintiff. Rule 13. "When the suit is against a tenant by a plaintiff claiming adversely to the tenant's landlord, he may be admitted to de- fend with or instead of the tenant ; and any other person not named in the declaration may be allowed to defend on fihng an affidavit, showing that he is in possession of the land, either by himself or his tenant. DISTRICT OF COLUMBIA. 745 FOECIBLB ENTET OE DETAINEE. Rule without number. Adopted June 12, 1876. (2 Minutes, General Term, 559.) In any and every proceeding instituted before a justice of the peace under and by virtue of section 684, chapter 19, of the Revised Statutes of the United States relating to the District of Columbia, if, upon the trial, the defendant, in order to avail himself of the provisions of section 687 of the said Eevised Statutes, wishes to plead title to the premises in himself, or in another person under whom he claims the premises, the justice of the peace shall require the plea to be in writing, and to be sworn to by the defendant. The plea shall be in the following or equivalent form : Before , a justice of the peace in and for the Dis- trict of Columbia, the day of , 18 — . K.'B., Plaintiff, ) V. K No. — . C. D., Defendamt. ) Now comes the defendant in his proper person, and, denying that he held the premises as in the written complaint of plaintiff alleged, says that the title to the said premises is in himself, [or in , under whom defendant claims the said premises ;] and that the said title hereby claimed is not derived from any letting of the premises by the plaintiff, [or, by those under whom the plaintiff claims ;] and is not derived from any forcible entry or forcible detainer. C. D., Def&ndcmt. Sworn and subscribed before me, the day of , 18 — . , J. P. Any plea of title not made as above required, the justice shall treat as a nullity. Unless the plea of title be made as by this rule required, the proceedings before the justice shall not be suspended ; but the justice shall go on with the trial, and render judgment in the matter as the right of the case may require. Upon a plea of title being made by the defendant in con- formity with this rule, and upon the proceedings being certified 746 GENERAL RULES SUPREME COURT to this court by the justice, the cause shall be docketed by the clerk, and placed on the trial calendar in the same manner, and subject to the same rules, as appeals from a justice of the peace. The plaintiff shall, during the term of the Circuit Court oc- curring next after the pleading of title before the justice, file in said court a declaration making a demand for the possession of the premises, and with a description thereof, as in eject- ment, and serve the defendant with a copy thereof. In any such declaration, a general demand shall be sufficient to warrant an assessment of damages and intervening rent, as provided in section 690 of said Eevised Statutes. NOTICE TO PLEAD. Hule 14:. A notice to plead shall be subscribed to every declaration in the following form : The defendant is to plead hereto on or before the first special term of the court occurring twenty days after service hereof ; otherwise judgment. P. Q., Attorney for Plaintiff. Except this notice to plead, subscribed to the declaration, no rule to plead or demand of plea shall be necessary. PEOOESS. Utile 15. The writ for compelling the defendant's appearance shall be a summons in the following form : Summons. In the Supreme Couet of the Disteict of Columbia, the DAY OF 18 — . A. B., Plaintiff, \ V. > At law, No. — . CD^DefendoMt. ) The President of the United States to the defendant, greetvng : You are hereby commanded to appear in this court on the first day of its first special term, occurring twenty days after service of this writ on you, to answer the plaintiff's suit, and DISTEICT OF COLUMBIA. T47 show why he should not have judgment against you for the cause of action stated in his declaration. "Witness, , Chief Justice. , Clerh. Said writ shall be returnable into the Clerk's Office on or before the next rule-day, occurring twenty days from the time of the issuing thereof. ATTACHMENT. Rule 16. Besides this summons, a writ of attachment and garnish- ment may be issued — Whenever the plaintiff, his agent or attorney, shall file in the Clerk's Office, whether at the commencement or during the pendency of the suit, an affidavit, (supported by the testimony of one or more witnesses,) showing the grounds upon which he bases his action, and setting forth that the plaintiff has a just right to recover against the defendant what he claims in the declaration : and also stating either — 1. That the defendant is a non-resident of the District ; or, 2. That the defendant evades the service of ordinary process by concealing himself, or by withdrawing from the District temporarily ; or, 3. That he has removed, or is about to remove, some of his property from the District, so as to defeat just demands against him; And shall also file his (the plaintiff's) undertaking, with suf- ficient surety or sureties, to be approved by the clerk, to make good all costs and damages which the defendant may sustain by reason of the wrongful suing out of the attachment. (14 stats. 54.) The form of the plaintiff's undertaking may be as follows : In the Supeemb Court of the District op Columbia, the DAY OF , 18 — . A. B., Plaintiff, ] V. > At Law, ^0. — . CD., Defendant. ) The plaintiff and , his surety, hereby undertake. 748 GENERAL RULES SUPREME COURT for themselves and eacli of them, their and each of their heirs, executors and administrators, to make good all costs and dam- ages which the defendant may sustain by reason of the wrong- ful suing out of the attachment this day issued against said defendant. When the said affidavits and undertaking have been filed in the Clerk's Office, he shall issue the writ of attachment and garnishment as follows : Form of Writ. In the Siepkeme Cottet of the Disteict of Columbia, the DAY of , 18 — . A. B., Plaintiff, \ V. y At Law, No. — . C. D., Defendamt. ) The President of the United States to the Ma/rshal for said District, greeting : You are hereby commanded to attach, seize, and take into your custody, the defendant's lands, goods, chattels, and credits, which shall be found in this District, to the value of $ , the amount of the plaintiff's demand against the defendant, as shown by his affidavit, duly supported and filed, and claimed in his declaration ; and the further sum of $ , for the costs and charges which may accrue in the premises ; and the same, so attached, safely keep, subject to the orders of the court, un- less the defendant deliver to you, to be filed herewith, his un- dertaking, with sufficient surety or sureties, to satisfy and pay the final judgment of the court against him. And, should you attach the defendant's goods, chattels or credits in the posses- sion of any other person, warn him to appear before said court at its first special term after service of this writ on him, to show cause why said goods, chattels and credits so attached should not be condemned and execution thereof made. Witness; , Chief Justice. , Clerh. DISTEICT OF COLUMBIA. 749 Form of Defendcmfs UndertaTemg. In the Sttpeemb Coiiet of the District of Columbia, the DAT OF , 18 — . K.B.,PlamUff, ) V. > At Law, No. — . C. D., Defendant. ) The defendant and , his surety, hereby undertake, for themselves and each of them, their and each of their heirs, executors and administrators, to satisfy and pay the final judg- ment of the court against them, in consideration of the dis- charge from the custody of the marshal of the thing seized by him upon the attachment sued out against said defendant on the day of , 18 — , in the above-entitled cause. In aU cases of attachment the plaintiff may exhibit interro- gatories in vrriting to the garnishee concerning the property of the defendant in his possession or charge, or by him due or owing, at the time of serving such writ of attachment, or at any other time, and the garnishee shall file his answer under oath to such interrogatories, within ten days from the date of the service of such interrogatories upon him. And if such garnishee shall neglect or refuse so to do, then, at the time of rendering judgment against the defendant, when he has been summoned, or after due notice by publication, when he has been returned not to be found, the court shall ad- judge that he has in his possession property of the defendant to an amount sufficient to pay the debt, interests and damages of the plaintiff, and costs ; and execution shall issue as in other cases of condemnation of property or credits in the hands of garnishees, provided, that a copy of this rule be served with such interrogatories. And if it shall appear from the garnishee's answer to inter- rogS,tories, or by verdict of a jury, that he has in his possession goods or credits of the defendant, then, at the time of rendering judgment against the defendant, or after due publication against him, as aforesaid, judgment may be rendered condemn- ing said property or credits, and execution may issue thereon as in other cases of condemnation. 750 GENERAL RULES SUPREME COURT Form of Interrogatories to he answered iy the Oaornishee. 1. Whether he is or was at the time of the garnishment, in- debted to the defendant % If so, how, and in what amount ? 2. Whether he has now, or had at the time of serving the notice, or has had at any time between the date of service and the time of answering, any goods, chattels, or credits of the defendant ? 3. Whether there are, to his knowledge, or belief, any, and what goods, chattels or credits of the defendant in the posses- sion or under the control of any other, and what person ? And such other interrogatories as the plaintiff may think proper to propound within the hmits of this rule. ATTACHMENT FOE KENT. ^ule 17. In case a landlord files his declaration to recover rent, he may sue out an attachment at the time of fiUng said declara- tion, or afterwards, pending the suit, to enforce his lien upon such of his tenant's personal chattels upon the premises as are subject to execution for debt. But the clerk shall not issue this attachment unless the plaintiff file in his office, as a step in his action, an affidavit to the effect — That the rent claimed is due and unpaid ; or, if not due, that the defendant is about to remove or sell all or some of said chattels. Thereupon the clerk shall issue a writ of attachment, as fol- lows: Form of Writ of Attachment a/nd Ga/rnishment,for Rent. In the Supkemb Couet of the Disteiot of Columbia, the DAT OF , 18 — . A. B., Plaintiff, ] V. > At Law, No. — . C. D., DefendaM. ) The President of the United States to the Ma/rshal for saAd Dist/riot, greeting: You are hereby commanded to attach, seize, and take into DISTRICT OF COLUMBIA. 751 your custody, such of the defendant's personal chattels as are subject to the plaintiff's lien for rent of the premises held by the defendant as plaintiff's tenant, to the value of $ , the amount of the plaintiff's demand against the defendant for said rent, as shown by the plaintiff's aflidavit in the cause, and as claimed in his declaration. And should you attach said chat- tels in the hands of any other person, warn him to appear be- fore said court, at its first special term after service of this writ on him, to show cause why said chattels, so attached, should not be condemned towards satisfaction of the plaintiff's demand. Witness, , Chief Justice. , Clerk. WEIT OF EEPLEVIN. Mule 18. At the time of filing his declaration in replevin, the plain- tiff, his agent, or attorney, must file an affidavit, sworn to be- fore the clerk, stating : 1st. That according to affiant's information and belief, the plaintiff is entitled to recover possession of the chattels pro- posed to be replevied, being the same described in the declara- tion. 2d. That the defendant has seized and detains, or detains the same. 3d. That said chattels were not subject to such seizure or de- tention, and were not taken upon any writ of replevin. The plaintiff shall also, at the same time, enter into an under- taking with surety approved by the clerk, in the following form: In the Supeemb Couet of the Disteict of Columbia, the DAY OF , 18—. A. B., Plaintiff, ] V. > At law, No. — . C. D., Defendcmt. ) The plaintiff, and , his surety, appear, and submit- ting to the jurisdiction of the court, hereby undertake for them- selves, and each of them, their and each of their heirs, execu- tors and administrators, to abide by and perform the judgment of the court in the premises, which judgment may be rendered , against all the parties whose names are hereto affixed. Y52 GENERAL EULES SUPREME COURT Upon filing said undertaking, the clerk shall issue a writ of replevin as foUows : Form of Writ of Replevin. In the Sdpeeme Goubt of the District of Columbia, the DAT OP , 18 — . A. B., Plaintiff, ] V. \ At law, No. — . C. D., Defendcmt. ) The President of the United States to the Marshal of said Dis- trict, greeting: The plaintiff in this action having entered into an undertak- ing, with surety as required by law, you are therefore hereby comnianded to take the goods and chattels claimed by the plaintiff, to- wit : [describe them'] from the defendant, and dehver the same to the plaintiff. And warn the defendant to appear in said court, at the first special term thereof, occurring twenty days after service of this writ, and answer said action, and that if he make default in so doing, the plaintiff may pro- ceed to judgment and execution. Witness, , Chief Justice of said court. , Clerh. SPECIAL EEMEDIAL "^EITS. Mule 19. Motions or applications for special remedial writs, such as writs of qiM warranto, mandamus, certiorari, supersedeas, &c., shall be heard by the circuit or criminal court, or before one of the justices at chambers, or in special term ; but not until a petition, verified by affidavit, and stating the grounds of the apphcation, has been filed and docketed. But the justice to whom the application is made, may order it to be heard in the general term in the first instance. Motions to quash, set aside, or dissolve any of said writs, may be hea^d in the same man- ner. By order of Court, May 21st, 1869. (See 1 Minutes General Term, S70.) Proceedings to remove a justice of the peace must be com- menced by filing and docketing, on the criminal side of the court, to be heard in the General Term, an information by the DISTRICT OP COLUMBIA. 753 District Attorney, in the name of the United States against the officer, setting forth the grounds of the complaint and sup- ported by the affidavit of the relator or informer. Certiorari Rule. Ordered, That, hereafter, no certiora/ri shall issue to bring up a cause pending before any justice of the peace, on the ground of concurrent jurisdiction, unless the petitioner therefor shall present and file with the petition his affidavit, stating that his application is not for the purpose of delay, but solely because he believes he has a just and meritorious defence to the plaintiff's claim, either in whole or in part, and if to a part only, then how much thereof. (June 15th, 1877. 3d Minutes General Term, p. 91.) SERVICE or PEOCESS AND EETTJEN. Mule 20. By Marshal — Every writ, process, or notice issuing out of the clerk's office of this court shall be served by the marshal for the District of Columbia, or his deputy, if required, and the marshal's return shall be prima facie evidence of the facts it states. Every writ issued out of the clerk's office to require the de- fendant's appearance to answer to an action shall be accom- panied with a copy of the declaration and affidavit, if any, and of the notice thereto subscribed ; and the defendant shall be served with said copies, and the marshal's return shall show the fact. Rule 21. By Publication — Publication may be substituted for personal service of process upon any defendant who cannot be found, in suits for partition, divorce, by attachment, for the foreclos- ure of mortgages and deeds of trust, and for the enforcement of mechanics' liens, and all other liens against real or personal property, and in all actions at law or in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court. (§7 Act 1867, ch. 64.) 48 T54 GENERAL RULES SUPREME COURT ]!To order for the substitution of publication for personal ser- vice shall be made until a summons for the defendant shall have been issued and returned " not to be found." Hereafter aU notices which relate to proceedings in the Su- preme Court of the District of Columbia, the publication of which is required by law or by Eules of Court, or by any order of Court, shall be pubUshed in the "Washington Law Eeporter, during the time required by law, in addition to any other papers which may be specially ordered, or which may be selected by the parties. (Minutes General Term, May lOtli, 1876.) Form of Order. In such case the following is the form of the order of court which is to be published : In the Stjpeeme Couet of the District of Columbia, the DAT OF , 18^-. A. B., Plamtiff, ) V. ' >- At Law. [In Equity.] ISTo. — . CD., Defendant. ) On motion of the plaintiff, by Mr. , his attorney, it is ordered that the defendant cause his appearance to be entered herein on or before the first rule day, occurring forty days af- ter this day; otherwise the cause wiU be proceeded with as in case of default. A true copy. Test : , Clsrh. Proof of Publication. The evidence of the publication shall be an affidavit of the publisher, accompanied by a copy of the order as published, which affidavit shall state how many, and at what, times the order was inserted in the paper. ISSUES OF FACT AGEEED. B,ule 22. After return of service of the declaration and summons, if the parties to the action are agreed as to any matter or mat- ters of fact to be decided between them, they may state the same for trial in an issue in the following form : DISTRICT OF COLUMBIA. 755 In the Supeeme Couet op the Disteict of Columbia, the DAY OF , 18 — . A. B., PlamUff, ] V. > At law. No. — . C. D., Defendant. ) The affirms, and the denies, that [here state the question or questions of fact to be tried.] And the court orders that the said question shall be tried by jury. The parties may agree in writing, if they please, that, upon the finding of a jury upon such issue, in the affirmative or neg- ative, a sum of money fixed by them, or to be ascertained by the jury upon a question inserted in the issue for that purpose, shall be paid by one of the parties to the other with or with- out costs ; and judgment shall be entered accordingly, un- less otherwise agreed, or unless the court or a judge shall otherwise order, for the purpose of giving either party an opportunity for moving to set aside the verdict, or for a new trial. The proceedings upon such issue shaU be entered of record upon the minutes of the court, and the judgment shall have the same effect as any other judgment. ISSITE OF LAW AGEEED. Mule 23, After service of the summons and declaration, and before judgment, the parties may, vsath the assent of the court, make a special case for the opinion of the court without any plead- ings subsequent to the declaration. Upon the decision of every such special case, the successful party shall have judgment, including costs, unless the agree- ment otherwise direct. PLEADING. OEDEE OF PLEADING. Hide 24. The order of pleading shall be : 1. To the jurisdiction. T56 GENERAL RULES SUPREME COURT 2. To the disability of the plaintiff. ) 3. To the disability of the defendant. V Abatement. 4. To the declaration. ) 6. In bar. SIGNATUEE OF PLEADINGS. Rule 25. Every pleading shall be signed by the party or by counsel ; showing, in this way, whether the party appears in person or by an attorney, and not by stating the fact in the body of pleading. TIME OF PLEADING. Rule 26. If the defendant appear, he shall demur, or plead and serve a copy of his pleading upon the opposite party on or before the first day of the first special term of the court, oc- curring twenty days after service of the process, otherwise the plaintiff may have judgment by default. And a copy of every plea and of every subsequent pleading shall be served by the party filing it, on the opposite party or his attorney, at the time of filing it. ENLARGING TIME OF PLEADING. Rule 27. Upon appUcation of either party, for good cause shown, the court may enlarge the time of pleading, and may excuse a failure to plead within the prescribed time. DECLARATION. Rule 28. The declaration shall state only the substantive facts neces- sary to constitute the cause of action, without unnecessary ver- biage and with substantial certainty. PLEA. Rule 29. Every plea shall set forth the true defence upon which DISTRICT OF COLUMBIA. 757 the defendant supposes he may defeat the plaintiff's action. It may deny all, or any particular material allegation, of the declaration, or it may confess and avoid ; and so of the rep- lication as to the plea. Rule 30.. No formal conclusion or prayer for judgment shall be necessary in any pleading. EEPLIOATION, &0. Hule 31. After plea filed and served, the plaintiff shaU reply, and after replication filed, the defendant shall rejoin, and so on till issue is joined, within ten days after the last pleading filed, excluding the day of such filing ; otherwise, on motion and no- tice thereof, the suit may be dismissed, or judgment taken by default, according as the failure is by the plaintiff or defendant. NEW ASSIGNMENT. Mule 32. One new assignment only shall be pleaded to any number of pleas to the same action ; and such new assignment shall be consistent with, and confined to, the particulars delivered in the action, if any, and shall state that the plaintiff proceeds for causes of action different from those which the plea professes to justify, or for an excess over and above what all the de- fences set up in such plea justify, or both. JOINDER IN ISSUE. Rule 33. The joinder in issue may be : The plaintiff joins issue upon the defendant's first plea. The defendant joins issue upon the plaintiff's replication to the first plea. And this form of joinder shall be deemed to be a denial of the substance of the pleading to which it relates, and an issue thereon. 758 GENERAL RULES SUPREME COURT DEMUEEBE. Mule 34. The form of a demurrer shall be as follows, or to the like effect : The defendant says that the declaration is bad in substance. And in the margin thereof some substantial matter of law intended to be argued, shall be stated, and a demurrer without such statement, or a frivolous statement, may be set aside by a judge at chambers, or by the court, and leave given to enter judgment as for want of plea. JOINDEE IN DEMTEEEE. Mule 35. The form of a joinder in demurrer shall be as follows, or to the like effect : The plaintiff says that the declaration is good in substance. PLEA AFTEE LAST CONTINUANCE. Mtile 36. If a matter of defence has arisen since the last pleading filed, the party may plead the same instead of his former de- fence. Form, of such Plea. In THE SUPEEME CoUET OF THE DiSTEICT OF COLUMBIA, THE DAT OF 18 . A. B., Plaintiff, \ V. > At law, No. — . C. D., Defendant. ) The defendant says that after the alleged claim accrued, and after the last pleading in this action, that is to say, on the day of , 18 — , the plaintiff by deed [or otherwise as the Icm may permif] released the defendant from the said alleged claim. Unless the court or a judge otherwise order, the plea must be accompanied with an aflldavit of the truth of it, which may be in the following form : DISTRICT OF COLUMBIA. T59 In the Supbeme Court of the Disteiot of Columbia, the DAT OF , 18 — . A. B., Plaintiff, ) V. > At law, No. — . C. D., Defendcmt. ) The defendant makes oath and says that, the plea hereunto annexed is true in substance and fact. Bute 37. The plaintiff shall reply within five days after service of the plea upon him ; and the defendant shall rejoin within two days after service of the rephcation, otherwise judgment. AGREED CASE AJTEE ISSUE JOINED. Mule 38. After issue joined, the parties may, by consent of the court, state the facts in a special case for the opinion of the court, and judgment shall be entered for the plaintiff or defend- ant, according to the decision of the court. NOTICE TO ADMIT DOCUMENTS. Bule 39. Either party may call on the other party by notice to admit any document, saving all just exceptions. In case of neglect or refusal to admit, the cost of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the judge certify that the refusal to admit was reasonable. The following shall be the form of a notice to admit : In the Supreme Court of the District of Columbia. A. B., Plaintiff, ) vs. > At law, No. — . C. D., Defendant. ) Take notice that the plaintiff {defendam,{] in this cause pro- poses to adduce in evidence on the trial thereof the several documents hereunder specified, and that the same may be in- spected by the defendant, {plaintiffs his attorney or agent, at ■ , on the day of , 18 — , between the hours of 760 GENERAL RULES SUPREME COURT and ; and that the said defendant [plaintiff] will be required to admit that such of said documents as are herein specified to be originals were respectively written, signed, or executed as they purport, respectively, to have been ; that such as are specified as copies are true copies ; and such documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered, respectively, saving all just excep- tions to the admissibility of all such documents as evidence in this cause. Dated this day of , 18 — . To Mr. -, Attorney for Plaintiff. -, Attorney for Defendant. OEIGINALS. Description of Documents. Date. COPIES. Description of Docu- ments. Date. Original or duplicate served, sent or delivered, when, how and by whom. If the party to whom the notice is addressed make the ad- mission, it may be endorsed on or subscribed to the notice, as follows : I consent to make the admission required in the within notice. [January — , 18 — .] Plaintiff^s [Defendant's] Attorney or Agent. I consent to admit the documents numbered 1, 2, 3, 4, in the within notice. [January — , 18 — .] If the admission be special, it may be made in a separate paper, as foUows : DISTRICT OF COLUMBIA. 761 In the Supreme Couet of the Disteict of Columbia, the DAY OF , 18 — . A. B., Plaintiff, \ V. V At law, ISTo. — . C. D., Defendcmt. ) I do hereby, as the attorney [agent] for the above-mentioned defendant, [plaintiff] agree to admit in evidence, on the trial of the cause, the paper writing hereto annexed, marked A, as and to be a true copy of [state of what, hut more fully iham, in the notice /] and I do also hereby agree, as such attorney, to admit in evidence on such trial the paper writing hereto an- nexed, and marked B, as and to be a true copy, &c. PKODUOTION OF BOOKS AND WEITINfiS. Mule 40. A party to an action at law, having in his possession or power books or writings containing evidence pertinent to the issue, may be required by order of the court to produce the same on the trial, on motion and due notice thereof being given, in cases and under circumstances where parties might be compelled to produce the same by the ordinary rules of pro- ceeding in chancery. The motion must be made in writing, filed in the cause, and it must set forth a descriptive list of the books and writings to be produced. If the court order the production of the books and writings specified in the motion, a copy of the order and hst, made by the clerk and duly certified, shall be served on the party in question two days before the day on which he shall be required to produce the books and writings. It shall be deemed a comphance with the order to file the books and writings . in the Clerk's Office by the time therein specified. On application of the party served with the notice to the court, or to a judge in vacation, the time to comply with the order may be enlarged. If a plaintiff fail to comply with such order, the court may, on motion, give the like judgment for the defendant as in case of non-suit. 762 GENERAL RULES SUPREME COURT If a defendant fail to comply, the court may, on motion, give judgment against him by default. 1789, c. 20, § 15. EXAMmATION OF PAETIES INSPECTION OF DOCUMENTS. Riile 41. During the preparation of a suit, either party may have leave, on application to the court, or one of the justices, upon reasonable notice, to examine his adversary, orally, or by inter- rogatories, on oath or affirmation, before an examiner, or com- missioner of the court ; but the answers obtained shall not be read on the trial unless the party has died or become per- manently sick. Either party may obtain leave, in like manner, to inspect material documents in the hands of his opponent, or to exam- ine him so as to discover whether such documents exist. The leave specified in the two last paragraphs must be applied for, upon affidavit, showing the materiality of the expected disclosures or documents. NOTICE OF TRIAL. Mule 42. At any time after issue joined, and at least ten days be- fore the sitting of the court at which the cause stands for judg- ment or trial, either party may give notice of trial. Form of Notice of Trial. In "^he Supeeme Couet of the Disteiot of Columbia, the DAY op , 18 — . ( A. B., Plaintiff, \ Between X and V At law, No. — . ( 0. D., Defendant. ) Take notice that the issue joined in this cause will be tried at the next term of this court. P. Q., Attorney for Plavntiff. To Mr. P. D., Attorney for Defendant. note of issue. JRule 43. The party giving the notice of trial shall furnish the clerk, DISTRICT OF COLUMBIA. 763 at 'least four days before the sitting of the court, with a note of the issue containing — 1. The title of the action ; 2. The names of the attorneys ; and 3. The time when the last pleading was filed. TEIAl CALENDAE. Utile 44. And the clerk shall thereupon enter the cause upon a calendar, according to the date of the issue. Rule 43. Any case may, by consent of the parties or their counsel, be placed on the trial calendar at any time before the com- mencement of the trial term, or afterward, with the assent of the court. Mule 46. A case once placed on the trial calendar, if not tried at the first term, shall stand for trial on the next trial calendar, &c., according to the date of the issue, without any further notice or act of the parties. ISSTTES— BEFOEE WHOM TEIED. Mule 47. All issues of fact triable by a jury or by the court shall be tried before a single justice. When the trial is by jury it shall be at a circuit court. When the trial is without jury, it shall be at the circuit court or at a special term. Issues of law may be heard and determined at a circuit court or at a special term. Demurrers may be heard on a,nj motion day, after five days' notice. CONSOLIDATION OF CAUSES. Mule 48. Before trial, separate actions brought by the same plain- tiff against separate underwriters of the same risk or peril, or against makers and endorsers and acceptors of negotiable secu- 764 GENERAL RULES SUPREME COURT rities, or against joint and several obligors or covenantors, or cross-actions on matters of account, and the Uke, may be con- solidated and tried together. TEIAL. DIFFERENT CAUSES OF ACTION HOVf TEIED. Rule 49. If several causes of action be stated in the declaration, and it be inexpedient to try them together, the court may try each or as many of them separately as it deems convenient. NON-APPEAEANOB OF PAETIES AT THE TEIAL. Mule SO. "When a cause is reached in the regular call of the calen- dar, and neither party appears, the case may be dismissed at the cost of the plaintiff. Rule SI. If there be no appearance for the plaintiff when the case is called for trial, the defendant may have the plaintiff called and dismiss the suit, or he may have a trial. Rule S2. If the defendant fail to appear when the cause is called for trial, the plaintiff may have him called, and take a judg- ment by default. EEFEEENCE TO AEBITEATOES. Rule S3. A cause at issue, whether upon the trial calendar or not, may, by consent of the parties, by an order of court, be referred to arbitration ; and if the reference be ordered after the com- mencement of the trial, the jury shall be discharged, and the cause shall be continued until the award is returned. The party in whose favor the award is given shall cause a copy thereof to be delivered to the adverse party, or his attor- ney, at least three days before moving for judgment thereon ; and no judgment shall be entered but upon the order of the DISTRICT OF COLUMBIA. Y65 court, nor, unless by consent, till the court is satisfied of the service of a copy of the award, as aforesaid, by the party's affidavit, or by return of the marshal, or by admission of the opposite party. If no award is returned within eight months after the refer- ence, the court may order the referee to return it, or give his reasons for not returning it, or may vacate the reference and proceed with the cause as if no reference had been made. (Maryland Act of November, 1785, c. 80, § 11.) If either party die before the award is returned and judg- ment thereon, the arbitrator may proceed to make an award, after reasonable notice to the person succeeding to the interest of or representing the deceased, in the thing or matter in con- test, not being a minor ; and a judgment upon such award shall be good and sufficient, notwithstanding such death. Id. EEFEEENCE TO AUBITOE. Rule 54. Li actions at law, brought "or hereafter to be brought, grounded upon an account, or in which it may be necessary to examine and determine upon accounts between the parties, the court, in its discretion, at any stage of the case, may order the accounts and dealings between the parties to be audited and stated by the auditor of the court, or by a special auditor or auditors to be appointed by the court ; and when such order shall be made, in any case, the course of proceeding before such auditor or auditors shall be the same therein, and such auditor or auditors shall have the same powers and duties in the premises as in similar cases referred to the auditor in chancery by the court, sitting in equity. "When such audit shall be completed the auditor or auditors shall state and file the report and account in the clerk's office and give notice thereof to the parties or their attorneys, and the clerk shall note the time the same is filed in the docket ; and at the expi- ration of thirty calendar days thereafter, judgment may be entered on motion of either party in accordance with such report and account, either by the court or by a judge at chambers, unless exceptions are filed thereto within said time for errors of law or of fact therein ; and the party so except- T66 GENERAL RULES SUPREME COURT ing shall state therein definitely, in precise and distinct terms, the grounds of such exceptions, and shall point out particularly the item or items in such report and accounts to which they are taken, and shaU annex thereto a certificate of counsel that, in his opinion, the matters of law therein stated are well founded in law ; and an affidavit that such exceptions are not interposed for delay and that they are true in point of fact ; and shall serve a copy thereof on the opposite party or his attorney. When such exceptions are so filed the court shall then enter the case on the trial calendar of the term in its proper place and the issues made by such exceptions shall be tried and determined in the same manner as issues at law ; and any part of such report and accounts not so excepted to shall be adjudged to be conclusive between the parties on such trial. If only general, immaterial or frivolous exceptions are made ; or if they are filed without the certificate of counsel and affi- davit of exceptant and service of copy as aforesaid, they may be overruled by the court or by a judge at chambers on notice and motion, and judgment entered as if no exceptions had been filed. As amended May 7th, 1883, M. 4, p. 440. Mule 55. If the suit be against an administrator or executor, for debt or damages, and the real debt or damages is ascertained by the jury, their verdict shall be entered in the minutes of the court ; and it shall be referred to an auditor to ascertain the sum for which judgment shall be given. EEPLEADER. Mule 56. If it appear at the trial that the pleadings have mis- carried — that is, failed to raise material issues, on which may be decided the real questions in dispute between the parties — the court shall then and there order them to be amended. VEEDICT. Mule 57. A general verdict shall be recorded thus : " On their oath DISTRICT OF COLUMBIA. T67 say they find the issue aforesaid in favor of the plaintifif, and that the money payable to him by the defendant by reason of the premises, is the sum of $ , besides costs." If the action be founded on contract, the verdict shall proceed — " with lawful interest from the day of , 18 — , besides costs." (2 Sts., T56, o. 106, § 6.) If the verdict be for the defendant, then : " On their oath say they find for the defendant," unless, upon set-off pleaded, a balance is found due the defendant, and then the verdict shall proceed — "and that the money payable to him by the plaintiff, by reason of the premises, is the sum of $ , with interest from the day of , 18 — , besides costs." If there be several counts in the declaration, and the jury find for the plaintiff on some, and for the defendant on the rest, the verdict shall be entered thus : " On their oath say they find for the plaintiff on the first, second, and fourth issues, and that the money payable to him by the defendant, by rea- son thereof, is the sum of $ , [with interest from the day of , 18 — ,J besides costs ; and for the defend- ant on the third, fifth, and sixth issues." SPECIAL VERDICT. Mule 38. If the parties elect to have a special verdict taken, then the jury shall state all the facts as they find them proved, with certainty and precision, and then add, " but they are ignorant, in point of law, on which side they ought, upon these facts, to find the issue ; and if, upon the whole matter, the court shall be of opinion that the issue is proved for the plaintiff, they find for the plaintiff accordingly ; and that the money payable to him by the defendant is the sum of $ , [with interest from the — day of , 18 — ,] besides costs ; but if the court be of an opposite opinion, then they find for the defendant ; " all which shall be entered upon the minutes of the court, and constitute part of the record of the cause. VEEDICT SUBJECT TO OPINION OF COtTKT. Rule 59. When a verdict is taken, subject to the opinion of the Y68 GENERAL RULES SUPREME COURT court, it shall be entered as follows : " Upon their oath say they find in favor of the plaintiff ; and that the money payable to him by the defendant is the sum of $ , [with interest from the — day of , 18 — ,] besides costs ; if the court be of the opinion that he ought to recover against the defendant upon the facts submitted to us upon the trial, which facts were as follows : " Instate the facts found hy the jury.] " But upon these facts, if it be the opinion of the court that the plaintiff ought not to. recover against the defendant, then we find in favor of the defendant." MOTIONS FOE A NEW TEIAL. Bule 60. Motions for a new trial, which are designed to set aside a verdict and procure a new trial of a case, are of two kinds, to wit : 1. Those which are grounded upon alleged errors of law by the justice presiding, in his rulings during the trial in admitting or excluding evidence, or in his instructions to the jury ; these motions must be made upon a bill of exceptions, and are to be heard in the General Term in the first instance. But the jus- tice who tried the cause may, in his discretion, entertain a mo- tion on exceptions taken at the trial, to set aside the verdict for error in law. 2. Those which are grounded upon the following and similar allegations : (1.) That the party moving for the new trial had no notice and did not appear at the trial. (2.) Misbehavior of the successful party. (3.) Misbehavior of the jury. (4.) That the verdict is contrary to the evidence. (5.) That the verdict is unreasonable or uncertain. (6.) That the verdict was obtained by surprise. (7.) That a new and material fact, unknown at the time of the trial, and not ascertainable by reasonable diligence by the party moving, has come to light since trial, and the like. These motions are addressed to the discretion of the justice presiding at the trial and are not appealable. DISTRICT OF COLUMBIA. 769 Mule 61. Every motion for a new trial shall be in writing, and shall state in separate paragraphs, successively numbered, the grounds upon which it is based ; and it shall be entered on the minutes of the court on the day it is presented to the court. AU motions for a new trial must be made within four days after verdict. Bule 62. ■ JSTo motion for a new trial on a biU of exceptions shall sus- pend the entry of judgment, or the issuing and levy of execu- tion; but a stay of execution shaU be entered if the party making the motion shall within ten days after judgment, exe- cute and file in the cause an undertaking with one or more sureties, to be approved by the court, or a justice thereof, in the form provided for in Rule No. 91 in cases of appeal, and the court may, upon cause shown and notice, stay execution within the ten days and enlarge the time for filing the undertaking. No motion for a new trial for any other cause shall suspend the entering of judgment and issuing of execution, unless the party moving shall, within ten days after verdict, execute and file in the cause an undertaking, with one or more sureties, to be approved by the court or a justice thereof, in the following or equivalent form : In the Supeeme Oouet of the Disteiot of Columbia, the DAT OF , 18 — . A. B., Plavntiff, ) V. \ At law, No. — . C. D., Defendant. ) The defendant [plaintiff] having filed a motion for a new trial in this cause, and desiring to suspend the entry of judg- ment and the issuing and levy of execution on the verdict therein, and , his surety, for themselves and each of them, their and each of their heirs, executors, and adminis- trators, appearing now and submitting themselves, by this un- dertaking, to the jurisdiction of the court, hereby undertake to abide by, perform, and pay its judgment in said cause, which may be entered against each of them on the overruling of said motion. 49 770 GENERAL RULES SUPREME COURT Where the verdict is not for a specific sum of money, the amount and character of the security to be giv^ to suspend the entry of judgment, as above, shall be deternuned by an order of any justice of the court. Rule 63. Upon the overruling of this motion, judgment shall, be entered up against the moving party and his surety, and exe- cution shall issue thereon. All amotions for new trials not heard and decided at the term at which the same shall have been made, shall be deemed to have been overruled, and shall be so entered on the pro- ceedings of the last day of the term, unless the motion has been continued by special order of court. EXCEPTIONS. Mule 64. If a party proposes to have errors of law in the rulings or instructions of the justice presiding, reviewed, either in the General Term or in the Supreme Court of the United States, he must, at the trial and before verdict, except to such rul- ings or instructions ; and he may, at the time of taking excep- tion, reduce the same to writing in a formal bill of exceptions, or the justice may enter the exception upon his minutes, and proceed with the trial, and afterwards settle the bUl of ex- ceptions. Mule 63, The bill of exceptions must be settled before the close of tne term, which may be prolonged, by adjournment, in order to prepare it. Mule 66. Every bill of exceptions shall be drawn up by the counsel of the party tendering it, and submitted to the counsel on the other side ; and where the bill of exceptions is not settled be- fore the jury retires, the counsel tendering the bill of excep- tions shall give notice in writing to the counsel on the other side, of the time at which it is proposed that the bill of excep- tions shall be settled, and shall also, at least three days. Sun- DISTEICT OP COLUMBIA. 771 days exclusive, before the time designated on such notice, submit to tlie counsel on the other side, the bUl of exceptions so proposed to be settled ; and if they cannot agree, it shall be settled by the justice who presided at the trial ; and in that case, the justice shall be attended by the counsel on both sides, as he may direct. As amended May 7th, 1877. See 3 Minutes General Term, 57. IF NOT SETTLED, NEW TRIAL TO BE GEANTED. Bule 67. In case the judge is unable to settle the biU of exceptions, and counsel cannot settle it by agreement, a new trial shall be granted. TO BE MADE PART OF EECOED. Bule 68. In every case, the fact of the settling and filing of the biU of exceptions, and that it is made part of the record, shall be noted in the minutes of the court. AEEEST OF JUDGMENT. Bule 69. If a motion for a new trial, under second paragraph of Eule 60, or a motion for a new trial on exceptions enter- tained by the judge who tried the case under the first parar graph of Eule 60, be overruled and the court decide that the verdict shaU stand, then the party may move in arrest of judgment. This motion shall be made in writing, signed by counsel, and be made of record on the minutes of the court, and it shall state the reason or reasons relied upon in support of it. If sev- eral reasons be assigned, they shall be set forth separately, and each shall be numbered. No motion in arrest of judgment shaU suspend the entry of judgment, and issuing and levy of execution, unless a similar undertaking to that hereinbefore provided in the case of mo- tions for a new trial be executed and filed by the party moving. In case the motion be overruled, the party moving may appeal to the General Term, in which event- he may further stay exe- 172 GENERAL RULES SUPREME COURT cution by executing and filing the undertaking prescribed in cases of appeals, ■wMch shall supersede the undertaking origi- nally filed. JUDGMENT. Bule 70. "Whatever the cause of action may be, if the judgment be for the recovery of money, it shall be, awarded generally with- out any distinction of debt from damages — thus : " It is con- sidered that the plaintiff recover against the defendant $ , [with interest as aforesaid] being the [money payable by him to the plaintiff by reason of the premises, and $ for his costs of suit, and that he have execution thereof." Mule 71. Judgnient is for the plaintiff — - (1.) On default of appearance by the defendant. (2.) On defendant's confession, as by saying nothing, or by confession of errors. Or it is for the defendant — (1.) That the suit be discontinued. (2.) That the plaintiff be nonsuited. Or for either party — (1.) On demurrer. (2.) On issue of, " No such record." (3.) On verdict, or— (4.) On case agreed. JUDGMENT BY DEFAULT. Rule 72. Generally.— It the defendant, served with copies of the declaration, notice to plead and summons, fail to appear and plead, according to said notice, a judgment by default for non-appearance may be entered against him at the appearance term by the circuit court, or at special term, which judgment may be set aside during said appearance term, or within the first four days of the next trial term, upon the defendant's offering a plea, verified by his affidavit, setting up a defence considered by the justice sufficient, if proved, to bar the action in whole or in part. DISTRICT OF COLUMBIA. 71S Mule 73. In actions ex contractu. — In any action arising ex contractu, if the plaintifiE oi' his agent shall have filed, at the time of bringing his action, an affidavit, setting out distinctly his cause of action, and the sum he claims to be due, exclusive of all set-oif s and just groimds of defence, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with inter- est and costs ; unless the defendant shall file, along with his plea, an affidavit of defence, denying the right of the plaintiff as to the whole or some specified part of his claim, and speci- fically stating also, in precise and distinct terms, the grounds of his defence, which must be such as would, if true, be suffi- cient to defeat the plaintiff's claim, in whole or in part. And where the defendant shall have acknowledged, in his affidavit of defence, his liability for a part of the plaintiff's claim, as aforesaid, the plaintiff, if he so elect, may have judgment en- tered in his favor for the amount so confessed to be due. Itxile 74. If there are several defendants in an action ex contracts, judgment by default may be taken against such of them as fail to appear, and the plaintiff may proceed to trial and judgment against the others. Unle 75. If the cause of action be an unliquidated sum of money, claimed upon a contract, or for a wrong unconnected with con- tract, the court shall award an inquiry by the jury in attend- ance of the amount claimed in the following cases : (1.) If the defendant fail to plead to the declaration ; that is makes default. (2.) If he acknowledge the plaintiff's demand to be just; that is, confesses judgment. (3.) When his attorney declares that he has no instructions to say anything in answer to the plaintiff, or in defence of his client. (4.) "When a demurrer to the plaintiff's declaration is over- ruled, unless there be leave to plead over. In executing such inquiry in the presence of the court, the 774 GENERAL RULES SUPREME COURT jury need not draw up and sign and seal an inquisition, but shall merely ascertain the amount payable by the defendant to the plaintiff for the cause of action stated iu the declaration ; and their verdict shaU be announced and made of record on the minutes of the court in the same way as upon 9,n issue joined. Bule 76. On Attachment and Garnishment. — If the summons ac- companying the attachment has been returned "not to be found," and an order for the defendant's appearance has heea. made and pubUshed, and the return upon the attachment is that the defendant's lands, or his goods and chattels in the possession of a third person have been seized, and no cause be shown to the contrary, the judgment shall be simply a condem- nation of the property attached and an award of execution. Mule 77. If the return upon the attachment be that a credit of the defendant has been attached in the hands of a designated per- son, and that he has been warned to appear, as the writ com- mands, if he fail to appear there jnay be judgment of condem- nation of the credit, and an award of an inquisition to ascertain the amount of it. Mule 78. If in proceedings against any real or personal property oif the defendant, within the jurisdiction of the court, the smn- mons has been returned " not to be found," and a day has been fixed by order of the court for the defendant's appearance, and duly published, a judgment by default for non-appearance may be entered against the defendant, as in case of failure to appear after personal service of the summons. (14 Sts., 403, §§ 7, 8.) Bule 79. In Beplefom. — ^And in the same manner a judgment by default against a defendant in replevin may be entered, by publication of a notice that an order has been made fixing a day for his appearance, upon his failure to appear pursuant to the notice. (14 Sts., 495, § 14.) DISTEICT OF COLUMBIA. Y75 Bule 80. A judgment by default may be taken against a defend- ant in ejectment in the manner prescribed in Eule 72, in rela- tion to judgments by default generally. JUDGMENT ON VEEDIOT OE ON AUDITOe's EBPOET OF ASSETS. Hule 81. In Case of Sei-qf. — Upon the trial of an issue upon the plea of set-off, judgment shall be for the balance found due, whether to the plaintiff or defendant, with costs. (14 Stat., 403, § 6.) Mule 82. If the declaration state a cause of action of which the court has jurisdiction, but the verdict find the money payable by the defendant to the plaintiff to be less than the lowest sum of which the court has jurisdiction, the plaintiff shall have judgment for the amount found due to him from the defend- ant, but without costs. (14iStat., 406, § 22.) Bule 83. On Auditor's Report of Assets. — In an action against an administrator or executor, if, on reference to the auditor to ascertain the sum for which judgment shall be given, he report the assets in the hands of the defendant to be less than the real debt or damages found by the jury, the judgment shall be that the plaintiff recover against the defendant the amount found by the auditor, and then it shall go on to say : " And it is fur- ther considered that the plaintiff is entitled to such further sum as the court shall hereafter assess on discovery of further assets in the defendant's hands." At any time afterwards, when applied to by the plaintiff, upon a three days' notice to the defendant or his attorney, the court may assess (by reference to the auditor) and give judg- ment for such further proportionable sum as the plaintiff shall appear entitled to, regard being had to the amount of the debt and other claims. And, on any judgment so rendered an execution may issue against the defendant, and either his own goods or the goods 776 GENERAL RULES SUPREME COURT of the deceased may be thereon taken and sold. (Maryland Act of November, 1798, ch. 101, sub-chapter 8, § 9.) JTTDGMBNT ON AWARD. Rule 85. "Whenever an award has been returned by the arbitrator, and approved by the court, in the manner directed by Eule 53, judgment shall be entered thereon. COSTS. Bule 86. The defendant may move the court to limit the plaintiff's recovery of costs to those of a single action, when he has prosecuted several actions against separate defendants, who might have been joined in one action or process. JRule 87. The defendant may move to have costs imposed upon an attorney or proctor, who shall appear to have multiplied pro- ceedings in a cause, so as to increase costs unreasonably and vexatiously. (1813, c. 14, § 1.) Mule 88. A party who has refused to admit documents which have been proved at the trial, shall be adjudged to pay the costs of such proof, unless it appear to the court that his refusal was reasonable. (Eule 39.) MEASTXKES FOE STAYING EXECUTIONS. Mule 89. After judgment is entered in the circuit court, or at a special term, execution may be issued, unless the party con- demned move to vacate it or set it aside for fraud, deceit, sur- prise, or irregularity, or resort to a review of it before the Gen- eral Term. MOTION TO VACATE JUDGMENT. Mule 90. This motion will not be entertained, if made after the DISTRICT OP COLUMBIA. 777 defendant has taken any fresh step after the knowledge of the irregularity, or surprise, or fraud, or deceit complained of ; nor can it be made after execution executed, unless the defendant had no notice of the judgment. The motion must be made in writing, and the grounds upon which it is founded must be sworn to by the mover, and sup- ported by affidavits, or otherwise, as he may be advised ; and a copy of the motion and ^,ccompanying papers must be served on the opposite party at least four days, Sundays excepted, be- fore the day fixed for the hearing. (Maryland Act of Novem- ber, 1787, ch. 9, § 6.) APPEAL TO GENEEAL TEEM. Rule 91. Upon an appeal to the General Term, the court shall re- view the order, judgment or decree appealed from, and affirm, reverse or modify the same, as shall be just. No order, judgment or decree of any of the courts held by a single justice of this court shaU be reviewed in the General Term, unless the appeal be taken and perfected vdthin thirty days after the order, judgment, • or decree complained of shall have been made or pronounced. No such appeal, except in cases in which the United States or the District of Columbia is appellant, shall operate as a stay of execution where the judgment is for a specific sum of money, unless the appellant, with one surety or more, to be approved by the court or one of the justices, within twenty days after the judgment or decree, execute and file in the cause an under- taking in the following form substantially : In the Sitpeeme Oouet of the Disteict of Columbia, the DAT OF , 18 — . A. B., Plamtif, ) V. > At law. No. — . C. D., Defendcmt. ) The defendant [plamtif] having appealed to the General Term from the judgment [decree] pronounced against him by the Circuit Court [in the special term] on the — day of 18—, and , his surety, for themselves and each of them, 7Y8 GENERAL RULES SUPREME COURT their and each of their heirs, executors, and administrators, appearing and submitting to the jurisdiction of the said Gen- eral Term, hereby undertake to abide by, perform, and pay its judgment [decree] which they agree may be pronounced against each and all of them. In all other cases of appeal to the General Term, except in cases in which the United States is appellant, any justice of the court may determine, by order, to be entered upon the minutes of the court, the amount and character of the security to be given, which, in all cases, shall at least be sufficient to cover the costs of the appeal. (3 M. G. T., 409.) HEAEING BEFOEE GENBEAL TEEM. Rule 92. (1.) In all law cases before the General Term the appellant or party bringing the case up, shall cause such portions of the record to be printed as it may be necessary for the court 'to have before it in reviewing the decision of the court below. (2.) In all appeals from final decrees, rendered at Special Term, and aU cases certified to the General Term, to be there heard in the first instance, the appellant or plaintiff shaU cause to be printed an abstract of the pleadings ; not to exceed one-fourth the number of folios in the original pleadings ; and in all other equity appeals, and all other motions and proceedings certified to the General Term to be there heard in the first instance, whether at law or in equity, the appellant or party making the motion or instituting the proceeding certified up, shall cause to be printed such portions of the record as it may be necessary for the court to have before it in reviewing the decision appealed from or considering the motion or proceeding certified to be heard. (3.) Ten printed copies of all papers hereinbefore required to be printed, shall be filed in the Clerk's Office for the use of the counsel and the court, before the first day of the term, on the calendar of which the case is entered, and the costs of such printing shall be taxed as costs in the case against the losing party. (4.) In all cases in the General Term the counsel for the respective parties shall, before the argument, present to each DISTRICT OP COLUMBIA. Y79 other and to the justices holding the court a printed brief of points and authorities. (5.) In the event of a failure in any case to comply with the provisions of this Eule in regard to printing, the court may, on motion, order the case to be dismissed or otherwise disposed of ; and the court or any justice thereof may, for sufficient cause shown, by special order, dispense with the application of this Eule in any particular case, upon motion and due notice there- of to the opposite party. EXECUTION. Bule 93. If the judgment of the court be not suspended, super- seded, or reversed by one or other of the methods mentioned in the preceding, execution thereon may issue, and aU writs in execution of any judgment shall be made returnable within 60 days from the date of issuing the same. Mule 94. If the judgment be for the recovery of land, the same shall be carried into execution by a writ of possession, in the following form : In the Supreme Coukt of the Distkict of Columbia, the DAT OF . 18 — . A. B., PtomfoJ, ) V. y At law, No. — . C. D., Defendant. ) The President of the United States to the Ma/rshal for said District, greeting : You are hereby commanded, without delay, to cause the plaintiff to have possession of [describe the premises as they are described in the decla/ration\ according to his recovery there- of in this action. And do you return this writ into the clerk's office of said court immediately after you have executed it, and within sixty days, so endorsed as to show when and how you have executed the same. Witness, , chief justice of said court. 780 GENERAL RULES SUPREME COURT Mvle 95. In other actions, when the judgment is that something special shall be done or rendered by the defendant, then, in order to compel him so to do, and to see the judgment executed, a special writ of execution shall issue to the marshal, according to the nature of the case. Bule 96. Thus, in replevin, if the judgment be that the plaintiff return the chattels or chattels in controversy, the following shall be the form of the writ of return : In the Supeeme Couet of the Disteict of Colximbia, the DAT of , 18 . A. B., PUinUff, ] V. y At law, No. — . C. D., Defendcmt. ) The President of the United States to the Ma/rshal for said District, greeting : You are hereby commanded that you cause to be returned to the defendant the same chattels which, by the original writ in this action, you took from him and placed in possession of the plaintiff, which chattels the defendant is to hold irreplevi- able forever ; and if you find that the plaintiff has eloigned said chattels, then return the fact. And do you cause to be made of the goods and chattels, lands and tenements, of the said plaintiff in this District, S , for damages, costs and charges by the defendant sustained, laid out and expended, as appears of record ; and return this writ into the clerk's, office, within sixty days, so endorsed as to show when and how you have executed it. "Witness, , chief justice of said court. Bule 97. In an action where money only is recovered, and not any specific chattels, the following shall be the form of the writs of execution; DISTRICT OF COLUMBIA. Ul fieri facias. In the Supreme Court of the District of Columbia, the DAT OF , 18 — . A. B., PlcmiUff, ) V. > At law, No. — . C. D., Defendant. ) The President of the United States to the Ma/rshal for said District, greeting : You are hereby commanded that of the goods and chattels, lands and tenements of the defendant, you cause to be made $ , which the plaintifiE lately in said court, in said suit, re- covered against said defendant for so much money payable by him to the plaintiff, and the further sum of $ , for his costs and charges by him about his suit expended, as appears of rec- ord ; and return this writ into the clerk's office of said court within 60 days, so endorsed as to show when and how you have executed the same. "Witness , chief justice of said court. , Clerk. attachment. In the Supreme Court of the District of Columbia, the DAT OF , 18 — . A. B., PlamUff, ] V. y At law, No. — . C. D., Defendant. ) The President of the United States to the Ma/rshal for said District, greeti/ng : You are hereby commanded to attach the lands, tenements, goods, chattels and credits of the defendant, if to be found in this District, of value sufficient to satisfy the plaintiff's recovery against him in this court on the day of , 18 — , of $ , for money payable to him by the defendant, and % for costs of suit ; and the same, so attached, safely keep and have before said court, at its first special term after said at- tachment, that the same may be condemned, unless sufficient cause be shown to the contrary ; and if said goods, chattels or credits be attached in the hands or possession of any person 782 GENEEAL RULES SUPREME COURT other than the defendant, notify such person to appear before said court at the time aforesaid, to show cause why the same should not be condemned and execution thereof had, according to law. And have then there this writ, so endorsed as to show when and how you have executed it. "Witness , chief justice. , Clerh. Mule 98. The plaintiff, upon issuing such writ of attachment, may exhibit interrogatories to be answered by the garnishee within ten days after the service of the same upon him ; and upon his failure to answer, judgment may be entered against him, at the term at which he is required to appear, for the full amount of the judgment. If, by the answers of the garnishee, or by the verdict of a jury, it shaU appear that he has property or credits of the de- fendant, judgment of condemnation of said property or credits shall be entered, but not for an amount in excess of the original judgment and the costs, and execution shall issue thereon. MOTIONS. ENUMERATED. Bule 99. The following are enumerated motions, and shall be heard in the general term, in the first instance : Motions for a new trial upon a bill of exceptions ; Apphcations for judgment on a special verdict ; Applications for judgment on a verdict taken, subject to the opinion of the court ; Motions ordered, by the justice holding a circuit court or special term, to be heard in the general term in the first in- stance. Mule 100. The justice before whom a motion is made, whether at chambers or in court, may order such motion to be heard in the General Term in the first instance. DISTRICT OF COLUMBIA. 783 EECOEDING. Rule 101. Every motion shall be entered on the minutes of the court, if made in term, and on the rule-book or order-book, if made in vacation; and shall, together with the papers on which it is founded, if made upon matters not already of record, be filed and preserved in the Clerk's Office ; and if it relate to a cause depending in court, it shall be filed with the papers in the case, to which it relates, and numbered with the number of the same, and be noted on the docket. Mule 102. All moneys paid into court by virtue of orders of the court, in causes depending therein, shall be deposited and disbursed as required by Act of Congress, approved March 24, 1871. (17 Stat. p. 1.) APPEALS FEOM JUSTICES OE THE PEACE. Mule 103. If the justices of the peace, from whose judgment an appeal is prayed, refuse or neglect to file the papers in the case in the office of the clerk of this court, on or before the first day of the term, occurring ten days next after the rendition of his judgment, either party may have a certiorari, on applica- tion to the court by petition to command him to certify the papers into court. If the justice disregard the certiorari, either party may move the court for process of contempt to enforce obedience to the writ. Rule 104. No appeal, except in cases in which the District of Columbia is appellant, shall be allowed from the judgment of a justice of the peace, unless the appellant, with sufficient surety or sureties, approved by the justice, enter into an undertaking to satisfy and pay all intervening damages and costs arising on the appeal. Rule 105. Such undertaking shall be entered into and submitted to Y84 GENERAL RULES SUPREME COURT the justice for approval, where the appeal is to operate as a supersedeas, withiu six days, Sunday exclusive ; and when the appeal is not to operate as a supersedeas, within ten days after the rendition of the judgment complained of. And until the expiration of said six days, Sunday exclusive, no execution shall issue upon any judgment of a justice of the peace where an appeal may operate as a supersedeas. Rule 106. "When a stay of execution is desired to a judgment of a justice of the peace without an appeal, the security shall be taken and entered within the time prescribed for entering the undertaking where an appeal is to operate as a supersedeas. Bule 107. "Where any undertaking or security is to be approved by a justice of the peace, the proceedings shall be similar to those prescribed by Eule 116. Bule 108. As soon as the appellant shall have made the deposit for costs required by law, or obtained leave from one of the justices, or from the court, to prosecute his appeal without a deposit, the clerk shall docket the cause, and issue a summons for the appellee to appear at the next trial term of the court. Mule 109. If the appellant fail to prosecute his appeal, by making the deposit or obtaining the leave aforesaid, the appellee may make the deposit for costs, have the cause docketed, and move for affirmance of the justice's judgment ; or he may have a trial of the cause upon its merits. Bule 110. The cause shall be docketed according to its title before the justice, thus : A. B., Plaintiff, [appellee.] ) V. I No. — . C. D., Defendant lappellant.'] ) DISTRICT OF COLUMBIA. Y85 Rule 111. If the first summons for the appellee be returned " not to be found," another summons shall be issued, returnable to the special term then next, and if that be returned " not to be found," and the appellee shall not appear, the case may then be heard and determined in the same manner as if the appellee had regularly appeared. 1823, c. 24, § 7. Bule 112. Every such appeal, if tried upon its merits, shall be heard upon the " allegations and proofs " adduced by both parties, or by the party appearing, and shall be determined " according to law, and the equity and right of the matter." Bule 113. "Whenever a cause shall be removed from a justice of the peace by writ of certiora/ri, on the ground of the concurrent jurisdiction of this court, the subsequent proceedings in respect to the docketing and trial thereof shall be the same as pro- vided in cases of appeals from justices of the peace. See the following tmnumbered Rules. Ordered, That any Justice of the Peace may, in his discretion, within four days after judgment, open the same, and grant a new trial. (2 Min. G. T. p. 101, Oct. 25, 1872.) Rule Relating to Process in Actions before Jus- tices. Adopted May 27, 1876. (3 Minutes General Term, 547.) Ordered, That upon the issue of a. summons to commence a suit by a justice of the peace, he shall, at the same time, issue a copy thereof, which shall be served upon the party or parties defendant ; and for issuing the same, the justice shall be entitled to a fee of 10 cents for each copy so issued. EECOKDS AOTO PAPEES TO REMAIN IN CLEEk's OFFICE. Rule 114. No records or other papers of the court shall be taken from the Clerk's Office. (As amended January 9, 18Y7. 3 Min. G. T.,p.4.) 50 786 GENERAL EULES SUPREME COURT CHANGE OF PARTIES BY DEATH, MAEEIAGE, OE CONTEACT. (See Act of Maryland, 1785, chap. 80. sec. 7. ) Rule lis. An/ person who, while a cause of action at law or in equity is in suit, becomes entitled thereto or interested therein, as personal representative, husband, or transferee of the plain- tiff, may, upon motion in writing, filed in the cause, showing when and how he became entitled or interested, be allowed to prosecute the suit against the defendant or his personal repre- sentative, instead of, or with the plaintiff, as the case may be. This motion must be made within one year after the cause of action has accrued to the mover, otherwise the suit shaU abate. APPEOVAL OF BONDS. Bule 116. In aU oases where a bond or undertaking, with surety, is required by law, or rule of court, to be executed and filed in order to suspend the entry of judgment, or to act as a super- sedeas, or to discharge any mechanics' lien, or any property held under any process of attachment, replevin, or any other judicial process ; and such bond, with surety, is required by law or by rule of court, to be approved by the court, or by one of the justices or the clerk thereof, in all such cases no such approval shall be made, save upon affidavit of two days' notice of application for such approval to the opposite party in inter- est ; and without such notice, no such approval shall be opera- tive, and such notice shall contain the name and address of the proposed surety. STIPULATIONS OF COUNSEL. Mule lit. All stipulations and agreements of, counsel shall be invalid, unless the same be reduced to writing, and signed by the parties thereto, and delivered to the clerk to be filed and dock- eted in the cause to which they relate. Bule 118. The following forms may continue to be used as heretofore, for the purpose of avoiding prolixity and unnecessary verbiage in pleadings : DISTRICT OP COLUMBIA. 787 PLEADINGS. DECLAEATION. Commencement and Oonclimon. In the Supkbmb CotmT of the Distkict of Coltjmbia, the day OF , 18—. A. B., Plaintiff, ) V. V At law, No. — . C. D., Defendarit. ) The plaintiff sues the defendant for — (here state the cause of action, and conclude as follows, or to the like effect :) And the plaintiff claims $ , with interest thereon from the day of > 18 , besides costs. {Or, if the action is for the recovery of specific goods, say — ) And the plaintiff claims a return of said goods, or their value, and $ for their detention. If the came of action accrue to or against the parties in some special charac- ter, for example as bxecdtob, or administrator, or trustee, or assign- ee IN bankruptcy, or otherwise, or as partners or surviving partner, or as HUSBAND AND WIFE, it wiU promote brevity and clearness to state such character in the title of the cause, thus : A. B., executor of , deceased. Plaintiff, ) ■B. > At law. No. — . C. D., administrator of , deceased. Defendant. ) The plaintiff sues the defendant for {state the cause of action, and conclude as above). OJSr SIMPLE COITTRACTS. MONEY COUNTS COMBINED. These may be combined in a single count, as pointed out by "Williams, 2 Saunders, E., 121, c, n. 2, Stevens on PI., 33 — London, 1860 — ^thus : 1. For money payable by the defendant to the plaintiff, for goods sold and delivered by the plaintiff to the defendant ; and for work done and materials provided by the plaintiff for the defendant at his request, and for money lent by the plaintiff to the defendant ; and for money paid by the plaintiff for the defendant at his request ; and for money received by the defendant for the use of the plaintiff ; and for money found to be due from the defendant to the plaintiff on accounts stated between them. And the plaintiff claims $ , with interest from the day of 18 , ac- cording to the particulars of demand hereto annexed. And the plaintiff may recover the whole or any part of his claim on a.ny one of the considerations stated. Chitty's Forms, 84. 788 GENERAL RULES SUPREME COURT MONET COUNTS SEPARATE. 2. For goods sold. — For goods bargained and sold by the plaintiff to the defendant. 3. For goods sold and delivered. — For goods sold and delivered by the plaintiff to the defendant. 4. For money on exchange of goods.— tFot money agreed by the defendant to be paid by him to the plaintiff, together with certain goods of the de- fendant, by him delivered to the plaintiff in exchange for goods of the plaintiff, delivered by the plaintiff to the defendant. 5. For stock sold and iransf erred.— For $ five-twenty United States stock, (according to the fact,) sold and transferred by the plaintiff to the defendant. 6. For fixtures sold. — For fixtures and effects bargained and sold and given up by the plaintiff to the defendant. 7. For good-will of a htsiness. — ^Por the good-will of a business of the plaintiff, sold and given up by the plaintiff to the defendant. 8. For erops sold. — For crops bargained and sold by the plaintiff to the defendant. 9. For out-going tenant rights. — ^For that the plaintiff relinquished and gave up to and in favor of the defendant, at his request, the benefit and advantage of work done, and the materials and things found and provided, and moneys expended by the plaintiff, in and about the farming, sowing, ■cultivating, and improving of certain lands and premises, while he held and occupied the same as tenant thereof. 10. For an estate sold. — For a messuage, lands, tenements and premises sold and conveyed by the plaintiff to the defendant. 11. For the use of a house and land. — For the defendant's use, by the plaintiff's permission, of messuages and lands of the plaintiff. 13. For the use of unfurnished apartments. — For the defendant's use, by the plaintLflE's permission, of rooms and apartments of the plaintiff. 13. For the useofjumished apartments. — ^For the defendant's use, by the plaintiff's permission, of rooms and apartments of the plaintiff, with fur- niture and other goods of the plaintiff therein. 14. For the use of furnished apartments and "board, etc. — For defendant's use, by the plaintiff's permission, of rooms, apartments and furniture of the plaintiff, and for board, lodging, food, attendance, and other necessa- ries provided by the plaintiff for the defendant, at his request. 15. For double rent. — For double rent of a messuage and premises of the plaintiff, held by the defendant as tenant thereof to the plaintiff, for a quarter of a year's rent, which accrued due after the expiration of a notice given to the plaintiff by the defendant that the defendant would quit the said messuage and premises, and whereby the tenancy became and was duly determined. DISTRICT OF COLUMBIA. TS9 16. For the use of pasture land and eatage of grass. — For the defendant's use of pasture land of the plaintiff, and the eatage of grass and herbage thereon, by the plaintiff's permission. 17. For the use of a fishery.— 'Fov the defendant's use, by the plaintifi's permission, of a fishery of the plaintiff. 18. For wharfage and warehouse room. — For the wharfage and warehouse room of goods deposited, stowed and kept by the plaintiff in and upon a wharf, warehouse and premises of the plaintiff for the defendant, at his request. 19. For standing of carriages. — For the standing of carriages, kept and taken care of by the plaintiff for the defendant, at his request. 20. For horse-heep, stabling, etc. — For horse-keep, stabling, care and at- tendance, provided and bestowed by the plaintiff in feeding and keeping of horses for the defendant, at his request. 21. For agistment. — For the agisting and feeding cattle by the plaintiff for the defendant, at his request. 23. For tU hire of goods.— For the hire of goods by the plaintiff let to hire to the defendant. 33. For freight.— For freight for the conveyance by the plaintiff for the defendant, at his request, of goods in ships. 34. For the carriage of goods ly land. — For the conveyance of goods by the plaintiff for the defendant, at his request. 25. For passage-money. — For the passage of the defendant [and other persons] on board a ship of the plaintiff [or, whereof the plaintiff was master,] at the defendant's request. 26. For the tonnage of goods. — For the tonnage of goods conveyed in boats, barges, and other vessels, by the plaintiff for the defendant, at his request. 37. For lighterage of goods. — ^For lighterage of goods conveyed by the plaintiff in lighters and other vessels, and landed out of the same, at the defendant's request. 38. For demurrage. — For the demurrage of a ship of the plaintiff kept on demurrage by the defendant. 29. For primage or average. — For primage and average for the convey- ance of goods on board a ship of the plaintiff [or, whereof the plaintiff was master] at the defendant's request. 30. For tolls on carriages passing over a bridge. — For tolls payable by the defendant to the plaintiffs for the passage of loaded wagons and carts of the defendant over a bridge of the plaintiffs. 31. For tolls on goods brought into a market and weighed. — For tolls pay- able by the defendant to the plaintiff, for weighing at the plaintiff's beam [scales] goods brought by the defendant to a market for sale, and by the , plaintiff weighed at the said beam. 790 GENERAL RULES SUPREME COURT 33. Vor tolls on passing through a turnpihe and weighing. — ^Por tolls pay- able by the defendant to the plaintiff, as farmer and collector of the tolls payable at a turnpike gate, and at certain weighing machines, erected on a turnpike road, for the defendant's cattle, which traveled along the road and through the gate ; and for the defendant's carriages, which had traveled along the road, and been weighed at the machines. 33. For tolls on cattle sold in the marlcet hy farmer and proprietor. — For tolls payable by the defendant to the plaintiff, as farmer and pro- prietor of a market, and of the tolls and duties arising therefrom, for the defendant's cattle brought into the market and sold therein, whilst the plaintiff was farmer and proprietor thereof. 34. On a policy of insurance where there has lieen an adjustment. — Upon and by virtue of a policy of insurance on a ship of the plaintiff on a cer- tain voyage, underwritten by the defendant for $ , [here state the loss which, for example, may be thus :] the said ship having on the voy- age been captured and taken as prize by certain enemies of the United States, and which was one of the perils insured against by the said policy, on any policy, and a loss of 100 per cent, on said policy having been adjusted and signed by the defendant. For money payable by the defendant to the plaintiff for the ship John, wrecked and totally lost, in a voyage from Georgetown, District of Columbia, to the city of New York, by perils of the sea, against which the defendant assured the plaintifE by his policy dated the day of 18 , in the sum of $ , to be paid within 60 days after such notice of such loss, which notice has been given, but the defendant has not paid the same. And the plaintiff claims $ , by reason of the premises, besides costs. 35. On an award on a submission not under seal. — Upon and by virtue of an award, made by , by virtue of a certain submission to his award, made by the plaintifE and defendant, of and concerning [all mat- ters in difference] then depending between them, and upon and by virtue of which reference the said awarded that the defendant should pay the plaintifE % at a day now past. 36. On an umpirage. — Upon and by virtue of an umpirage, made by , upon and by virtue of a submission by the plaintiff and defendant, [of all matters in difference,] then depending between them, to the award of and , as referees, and thereby empowering them, in case they should not agree in making such award, to appoint a third person to award the said matters in difference; and whereupon the said referees, not agreeing in making said award, by virtue of said power, ap- pointed the said , as an umpire, to award of and concerning said matters of diflerence, who awarded that the defendant should pay the plaintiff $ at a day now past. 37. On an award under an order of court. — Upon and by virtue of an award, made by , in pursuance of a reference to him, by an DISTRICT OF COLUMBIA. Y91 order of the Supreme Court of the District of Columbia, made by consent of the plaintifE and the defendant, in an action therein pending, wherein tlie now plaintifi was plaintiff and the now defendant was defendant, and by which award the said referee awarded that the defendant should pay to the plaintiff $ at a day now past ; and also $ , being the costs of said action, which, by the said order of reference, were ordered to be at the discretion of said referee. 38. For premiums of insurance. — For premiums payable by the defend- ant to the plaintiff for insuring ships {or goods, o?' moneys upon ships, or upon goods] by the plaintiff for the defendant at his request. 39. For worJe and materials. — For work done and materials provided by the plaintiff for the defendant at his request. 40. For a witnesses expenses.- — For expenses necessarily incurred by the plaintiff in attending as a witness for the defendant, at his request, to give evidence upon the trial of an action at law No. — , then depending in the Supreme Court of the District of Columbia, wherein the defendant was plaintiff and one defendant. 41. For money lent. — For money lent by the plaintiff to the defendant. 43. For money paid. — For money paid by the plaintiff for the defend- ant, at his request. 43. For money received. — ^For money received by the defendant for the use of the plaintiff. 44. For interest. — For interest upon moneys due and owing from the defendant to the plaintiff, and for forbearance of interest, by the plaintiff at tlie defendant's request, of moneys due and owing by him to the plaintiff. 45. On an account stated. — ^For money found to be due from the defend- ant to the plaintiff on accounts stated between them. ON BILLS AND NOTES. Where money is payable by two or more persons, jointly or severally, as by joint obligors, covenantors, makers, drawers, or endorsers, one action may be sustained and judgment recov- ered against all or any of said parties by whom the money is payable, at the option of the plaintiff. (14 Sts., 405, § 20.) 46. Holder of note against all tTie parties.— That the defendant, , (the maher) on the day of , 18 , by his promissory note, now overdue, promised to pay to the defendant , {payee) | , [two] months after date, and the said payee endorsed the said note to the defendant, , who endorsed it to the defendant, , who endorsed it to the plaintiff, and the said note was duly presented for pay- 792 GENERAL RULES SUPREME COURT ment, and was dishouored, whereof all of said endorsers each had notice, but the said defendants did not, nor did either of them, pay the same. 47. Holder of Mil against all the parties. — That , on the day of ) 18 , by his bill of exchange, now overdue, directed to the defendant, , [drawee] required him to pay to the defendant, , {payee) $ , [two] months after date, and the said {payee) endorsed the said bill to , who endorsed it to , who endorsed it to the plaintiff, and the said drawee accepted the said bill, which was duly presented for payment, and was dishonored, whereof the defendants had due notice, but did not pay the same. 48. Payee agaivst maJcer of note. — That the defendant, on the day of ,18 , by his promissory note, now overdue, promised to pay to the plaintifE $ , [two] months after date, but did not pay the same. 49. The like on note payable on demand. — That the defendant, on the day of ) 18 ) by his promissory note, now overdue, promised to pay to the plaintiff f , on demand, but did not pay the same. 50. The nice on a note payable at a hanhefs. — That the defendant, on the day of 1 18 , by his promissory note, now overdue, promised to pay to the plaintiff,' at Messrs. Riggs & Co.'s, bankers, Washington, {as in tlie note), $ , [two] months after date, and the said note was duly presented for payment, and was dishonored, whereof the defendant had notice, but did not pay the same. 51. The nice on n/>te payable T)y instalments, the whole to become due on one default. — That the defendant, on the day of , 18 , by his prom- issory note, promised to pay to the plaintiff $100, by monthly instalments of $10, the first instalment to be paid on the day of i 18 , and in case of default in the payment of any or either of said instalments, the whole of the said sum of $100, or as much thereof as should I'emain un- paid at the time of said default, to become payable ; and default was made by defendant in the payment of the first instalment, and the whole amount of said note remains unpaid. 53. The liJce where all the instalments are due by lapse of time. — That the defendant, on the day of , 18 , by his promissory note, now wholly overdue, promised to pay to the plaintiff $100, by monthly instal- ments of $10, the first instalment to become payable on the day of , then next ; but the defendant did not pay the first, or any of said instalments. 53. The like on note payable by instalments, th^ whole to be payable on one default. — That the defendant, on the day of , 18 , by his prom- issory note, promised to pay to the plaintiff $100, by monthly instalments of $10 each, the first instalment to be paid on the day of , then next, but has not paid the said first instalment. 54. Endorsee againsrt maier of note. — That the defendant, on the day of , 18 , by his promissory note, now overdue, promised to pay to DISTRICT OF COLUMBIA. 793 , or order, $ , [two] months after date ; and the said endorsed the same to the plaintiflE; and the said note was duly presented for payment, and was dishonored, whereof the defendant had due notice, but did not pay the same. 55. The nice ly an indorsee against payee, omitting averment of notice of dis- honor, iecause maker had no effects. — That , on the day of ,18 , by his promissory note, now overdue, promised to pay to the order of the defendant, $ , [two] months after date, and the de- fendant endorsed the same to the plaintiff; and the said note was duly presented for payment, and was dishonored ; and, at the time of making the note, and from thence until and at the end of the day on which it be- came payable, the defendant had not, in the hands of the said , any effects ; nor had, at any time, any reasonable ground to expect that the said could have any such effects, or that said note would be paid upon presentment of the same for payment ; nor has the defendant sustained any damage by reason of his not having had notice of said pre- sentment and dishonor of said note ; and the defendant has not paid the same. 56. Payee against drawer of check. — That the defendant, on the day of , 18 , by his order for the payment of money, directed to Messrs. Riggs & Co. («s in the cliech), required them to pay to the plaintiff or bearer, $ , and the said order was duly presented for payment, and was dishonored, whereof the defendant had due notice, but did not pay the same. 57. Bearer against drawer of check. — That the defendant, on the day of , 18 , by his order for the payment of money, directed to Messrs. Eiggs & Co., required them to pay to the bearer % , and the plain- tiff became the bearer thereof ; and the said order was duly presented for payment, and was dishonored, whereof the defendant had due notice, but did not pay the same. 58. Brawei' against acceptor of 'bill. — That the plaintiff, on the day of ,18 , by his bill of exchange, now overdue, directed to the de- fendant, required him to pay to the plaintiff $ , [two] months after date, and the defendant accepted the said bill, but did not pay the same. 59. The like where drawer, not ieing payee, has taken up the bill. — That the plaintiff, on the day of , 18 , by his bill of exchange, now overdue, directed to the defendant, required him to pay to , or order, $ , [two] months after date, and the defendant accepted the bill, but did not pay the same, and thereupon it was returned to the plain- tiff, and remains unpaid. 60. Indorsee against acceptor. — That , on the day of , 18 , by his bill of exchange, now overdue, directed to the defendant, re- quired him to pay to the said 's order, f , [two] months after date, and the defendant accepted the same, and the said endorsed the same [to , who endorsed the same to , 794 GENERAL RULES SUPREME COURT who endorsed the same] to the plaintiff; but the defendant did not pay the same. • 61. Payee against drawer for default of acceptance. — That the defendant, on the day of , 18 , by his bill of exchange, now overdue, di- rected to , required him to pay to the plaintiff, $ , [two] months after date ; and the said bill was duly presented for acceptance, and was dishonored, of which the defendant had due notice, but did not pay the same. 63. The like for default in 'payment. — That the defendant, on the day of , 18 , by his bill of exchange, now overdue, directed to , required him to pay to the plaintiff, % , [two] months after date, and the said bill was duly presented for payment, and was dishonored, of which the defendant had due notice, but did not pay the same. 63. TTie like, averring that drawee had no effects of drawer, in order to dis- pense with notice of dishonor. — That the defendant, on the day of , 18 , by his bill of exchange, now overdue, directed to , re- quired him to pay to the plaintiff, $ , [two] months after date ; and the said bill was duly presented for payment, and was dishonored ; and at the time of making said bill, and from thence until, &o., [proceed, alleg- ing the excuse for the want of notice, as in a form upon a note, No. 55.] 64. Endorsee against drawer on non-paymemt. — That the said defendant, on the day of , 18 , by his bill of exchange, now overdue, directed to , required him to pay to the defendant's order % , [two] months after date; and the defendant endorsed the same [to , who endorsed the same] to the plaintiff ; and the said bill was duly pre- sented for payment and was dishonored, of which the defendant had due notice, but did not pay the same. 65. Endorsee against endorser (not the drawer,') on non-paymemt. — ^That , on the day of , 18 , by his bill of exchange, now overdue, directed to , required him to pay to the order of the said $ , [two] months after date ; and the said endorsed the same [to , who endorsed the same] to the defendant, who endorsed the same to the plaintiff ; and the said bill was duly presented for payment, and was dis- honored, of which the defendant had due notice, but did not pay the same. 66. Drawer against acceptor of a foreign Mil. — That the plaintiff, on the day of , 18 , in parts beyond the seas, to wit, [at Berlin, in the kingdom of Prussia,] by his bill of exchange, now overdue, directed to the defendant, required him to pay to the plaintiff $ , [two] months after date, and the defendant accepted the said bill, but did not pay the same ; [and by reason of the premises, the plaintiff was put to and in- curred expenses for presenting, noting, and protesting and re-exchange of said bill, and incidental to the dishonor of it.] Note. — Omit the aver- ment between the [ ] if no expenses are claimed. DISTRICT OF COLUMBIA. 795 67. Payee against acceptor of a foreign 'bill, supra protest. — That , on the day of j 18 , in parts beyond the seas, to wit at in the empire \or kingdom] of , by his bill of exchange, now overdue, directed to , required him to pay to the plaintiff francs, months after date ; and the said bill was duly presented for acceptance, and was dishonored by non-acceptance ; whereupon the said bill was duly protested for non-acceptance thereof, of all which the defendant had due notice, and thereupon the defendant accepted the said bill under the said protest, and the said bill was duly presented to the said [the drawee] for payment when it became due, and he did not pay the same, whereupon it was duly protested for non-payment thereof ; of all which the defendant had due notice, but did not pay the same. [Insert the averment at end of No. 66, if expenses are claimed.] 68. Endorsee against acceptor of a foreign till, payable at usances. — That , on the day of > 18 , in parts beyond the seas, to wit, at , in the empire [or kingdom] of , by his bill of exchange, now overdue, directed to the defendant, required him to pay to , or order [thalers] at usances ; and the said endorsed the said bill to the plaintiff, and the defendant accepted the said bill, but did not pay the same. [Insert averment at end of 66, if expenses are claimed.] 69. Payee against drawer for default of acceptance. — That the defendant, on the day of i 18 , in parts beyond the seas, to wit, at , in the empire [or kingdom] of , by his foreign bill of exchange, directed to , required him to pay to the plaintiff [francs] months after date ; and the said bill was duly presented for acceptance, and was dishonored by non-acceptance, whereupon it was duly protested for non-acceptance thereof, of all which the defendant had due notice, but did not pay the said bill. [Aver as in 66, if expenses are claimed.] 70. Endorsee against drawer for default of payment. — That defendant, on the day of ; 18 , [at Paris, in the republic of France, ] by his foreign bill of exchange, now overdue, directed to , required him to pay to the defendant, or order, [francs] months after date, and the defendant endorsed the said bill to the plaintiff; and the said biU was duly presented for payment and was dishonored ; whereupon it was duly protested for non-payment, of all which the defendant had due notice, but did not pay the same. ON OTHEE SIMPLE CONTEAOTS. 71. Breach of promise of marriage. — That the plaintiff and defendant agreed to marry one another, and a reasonable time for such marriage has elapsed, and the plaintiff has always been ready and willing to marry the defendant, yet the defendant has neglected and refused to marry the plaintiff. That the plaintiff and defendant agreed to marry one another on a day now elapsed, and the plaintiff was ready and willing to marry the defend- 796 GENERAL RULES SUPREME COURT ant on that day, yet the defendant has neglected and refused to marry the plaintiff. 72. Warrant of a horse. — That the defendant, by warranting a horse to be then sound and quiet to ride, sold said horse to the plaintiff, yet the said horse was not then sound and quiet to ride. 73. On a guaranty. — That the defendant, in consideration that the plain- tiff would supply with goods on credit, promised the plaintiff to be answerable to him for the same ; and the plaintiff did accordingly sup- ply the said with goods to the price of $ and upwards on credit, which credit has elapsed, yet neither the said nor the defendant has paid for said goods. 74. FofT Q, In-each of the terms of a parol demise of premises. — That the de- fendant became the plaintiff's tenant of lands and premises, on the terms during his tenancy, to keep the same in tenantable repair, and use them in a tenantable and proper manner, and cultivate and manage the land ac- cording to good husbandry and the custom of the country, (according to the terms of the demise,) yet the defendant did not, during said tenancy, keep said premises in tenantable repair, nor did he cultivate and manage said land according to the course of good husbandry and the custom of the country, but suffered the premises to become and remain out of repair, and used the land in an untenantlike and improper manner. O^ SPECIALTIES. 75. For not loading pursjcant to charter-party. — That the plaintiff and the defendant agreed, by charter-party that the plaintiff's ship, called the Ariel, should, with all convenient speed, sail to Georgetown, or so near thereto as she could safely get, and that the defendant should there load her with a full cargo of wheat, or other lawful merchandise, which she should cairy to Wilmington, in the State of Delaware, and there deliver, on payment of freight $ per ton, and that the defendant should be al- lowed 10 days for loading, and 10 days for discharge, and 10 days for demurrage, if required, at $ per day; and the plaintiff did all things necessary on his part for him to have the agreed cargo loaded on board the said ship at Georgetown, and that the time for so doing has elapsed, yet the defendant made default in loading the agreed cargo. 76. Upon a lease for rent.— That the plaintiff let to the defendant a house. No. street north, between and streets, Washing- ton city, for years, to hold from the day of , 18 , at $ a year, payable quarterly, of which rent quarters are due and unpaid, to-wit: therentdueonthe day of , and on the day of ,18 . 77. Upon a covenant to repair. ~Tha,t the plaintiff [by deed] let to the defendant a house, No. street north between and streets, Washington city, to hold for years, from the day of , 18 , and the defendant by the said [deed covenanted] with the plaintiff, well and substantially to repair the said house during said term, (accord- DISTRICT OP COLUMBIA. 797 ing to the [cosenani]) yet the said house was, during said term, out of good and substantial repair. 78. On a deed generally. — That, by deed, the defendant covenanted with the plaintiff to pay to the plaintifE $ on , but he has not paid the same. 79. On a mortgage deed for principal and interest. — That the defendant, by deed, covenanted with the plaintifiE to pay to him $ , on the day of , 18 , together with interest thereon, at tlie rate of six per cent, per annum, but did not pay the same — ([or] if the interest has leen paid) did not pay the said $ 80. Upon a bond, not stating tlie condition or a 'breach of it. — That the de- fendant, by his bond, became bound to the plaintiff in the sum of % , to be paid by the defendant to the plaintiff, but has not paid the same. 81. Upon a bond, stating the condition and breacJi. — That the defendant, by his bond, became bound to the plaintiff in the sum of | , to be paid by the defendant to the plaintiff; which said bond was subject to a certain condition thereunder written, for the payment of the sum of $ a year to the plaintiff by the defendant, during the said defend- ant's life, [if for the life of another person, say, "during the life of , who is still living,"] payable half-yearly, on the day of , and the day of in every year ; and afterwards, on the day of , 18 , the sum of $ , for two of said half-yearly payments of said annuity, became and was due and payable to the plaintiff, and is still unpaid. 83. On a judgment. — That the plaintiff, on the day of , 18 , in the Superior Court of the county and city of Kew York, by the judg- ment of the said court, recovered against the defendant % , together with $ , for costs of suit, whereof the defendant was convicted, and the plaintiff has not obtained any execution or satisfaction of the said judgment, and the same remains unsatisfied. 83. For a penalty on a statute. — That the defendant did tap or open the water-main laid down by the United States in New Jersey avenue, be- tween B and C streets south, in the city of Washington, without having obtained authority so to do, as by the statute in that behalf is directed, whereby the defendant forfeited for said offence $500, and has not paid the said $500. 11 Statutes at Large, 436, § 5. TOETS. 84. Trespass on land. — That the defendant broke and entered certain lands of the plaintiff, called Analosta, and depastured the same. 85. Assault, battery, and false imprisonment. — That the defendant as- saulted and beat the plaintiff, gave him into the custody of a policeman, and caused him to be imprisoned in a police station. 86. The lihe in a fuller form. — That the defendant assaulted the plain- Y98 GENERAL RULES SUPREME COURT tifE, and gave him into the custody of a policeman, and forced and com- pelled him to go to a police station, and caused him to be imprisoned there on a false charge, then made by the defendant, that the plaintifE had been guilty of a felony, and caused him to be kept in prison for a long time, until he was afterwards brought into custody before one of the Metropolitan Police magistrates; and the defendant again charged him with said ofEence, but the said magistrate dismissed the said charge, and caused him to be discharged out of custody. 87. For sediKtion. — For that the defendant debauched and carnally knew one , being the [daughter and] servant of the plaintifE, whereby she became pregnant with child, and was afterwards delivered of it ; and thereby the plaintifE, for a long time, lost, and was deprived of the services of the said , and incurred expenses in and about the nursing and taking care of her, and in and about the delivery of the said child, and was otherwise injtfred. 88. Wrongful conversion of goods. — That the defendant converted to his own use, and wrongfully deprived the plaintiff of the use and possession of the plaintiff's goods ; that is to say, the following household furniture, \or as the case may J«]. 89. Wrongful detention of property, &o. — That the defendant detains from the plaintiff his title deeds of the land called Fairfield, in the Dis- trict of Columbia ; that is to say, [descrihe the deeds\ , 90. Damage done to goods ly carrier.' — That the defendant being a com- mon carrier of goods for hire, the plaintiff delivered to him, as such com- mon carrier, and lie as such received from him certain goods of the plain- tiff, to wit, ten barrels of flour, to be carried by him for the plaintiff from Georgetown to New York, and there to be delivered by him to the plain- tiff for reward to him on that behalf. Yet the defendant, while he so had the goods for the purpose aforesaid, did not take due and proper care of the same, but wholly neglected to do so, and so carelessly, negligently, and improperly carried and delivered the same, and took such bad care thereof that, by his negligence, carelessness, and improper conduct in this behalf, the said goods became and were damaged, and divers of the same were lost to the plaintiff. 91. The liJee for not delivering goods. — That the defendants being com- mon carriers of goods for hire, the plaintiff delivered to them, as such common carriers, and they as such received from him certain goods of the plaintiff, to wit, ten barrels of flour, to be carried by them for the plain- tiff from Georgetown to New York, and there to be delivered by them to the plaintiff for reward to them in that behalf ; yet the defendants, al- though a reasonable time for that purpose has elapsed, have not delivered the said goods to the plaintiff at New York aforesaid, or elsewhere; and the same have, by reason of the defendant's negligence, carelessness, and improper conduct in that behalf, become lost to the plaintiff. 93. inverting water from a mill. — That the plaintiff was possessed of a DISTRICT OF COLUMBIA. 799 mill, and by reason thereof was entitled to the flow of a stream for work- ing the same, and the defendant, by cutting the bank of the said stream, diverted the water thereof away from the said mill. See 104. 93. Infringemerbt of a patent. — That the plaintifE was the original and first inventor or discoverer of a new and useful improvement in grain and grass harvesters, and thereupon the United States of America, by letters-patent under the seal of tlie Patent Office of said United States, granted the plain- tiff the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said improvement, within the said United States, for the term of 14 years, from the day of , 18 , and the defendant, during the said term, did infringe the said patent right. 94. Defamation of character. — ^That the defendant falsely and maliciously spoke and published of the plaintiff the words following, that is to say, "he is a thief," whereby the plaintiff lost his situation as messenger for the Commissioner of Patents, in the employ of said Commissioner. 95. lAbel. — That the defendant falsely and maliciously printed and pub- lished of the plaintiff, in a newspaper called " ," the words following, that is to say, "he isaregular prover under bankruptcies," the defendant meaning thereby that the plaintiff had proved, and was in the habit of proving, fictitious debts against the estates of bankrupts, with the knowledge that such debts were fictitious. 96. Malidoua proseoution. — That the defendant falsely and maliciously, and without any reasonable or probable cause, appeared before a justice of the peace in and for the District of Columbia, and made complaint be- fore said justice, charging the plaintiff with having stolen [as in the in- formation laid tefore the magistrate/] and, upon such complaint and charge, procured the said justice to grant, and the said justice did accordingly grant, his warrant for the apprehension of the plaintiff, returnable to the police court, to be dealt with according to law, for the said alleged offence; and the said defendant, under and by virtue of the said warrant, procured the plaintiff to be arrested, and to be imprisoned in a police office, and afterwards brought in custody before the said court (according to the fact,) who, having heard the said charge, dismissed the same, and discharged the plaintiff out of custody. 97. Obstructing way. — That the plaintiff was possessed of a tract of land, to which there was a way from \tlie other terminus] which the plaintiff had a right to use as a footway or carriageway, and the defendant [erected a fence across said way, and placed stones in the same,] so that 'the plain- tiff could not use the same. 98. Immoderate riding. — ^That the defendant hired from the plaintiff a horse to ride from to , and thence back to , in a proper manner ; and the defendant rode said horse so immoderately that he became sick and lame, and was greatly injured in value. 800 GENERAL RULES SUPREME COURT 99. Negligence of railroad company. — That the defendant is a corpora- tion owning a street raih'oad, called the railroad ; that the plain- tiff was a passenger on said railroad, and by reason of the insufficiency of an axle of the car in which he was riding, the plaintiff was hurt ; that the defendant did not use due care in regard to said axle, but the plaintiff did use due care. 100. Obstructing a drain. — That the plaintiff is lawfully possessed of a dwelling-house and lot in the city of Washington, and by reason thereof is entitled to have a certain drain or sewer, to drain off fllth and water, leading from the cellar of said dwelling-house, [through and across (Fifth) street west, and thence beneath the land and lot of the defendant into a certain public sewer there,] and the defendant obstructed, choked, and wholly stopped up the said drain and sewer, in a part thereof in the said land and lot of the defendant, and still keeps and continues the same stopped up and obstructed, whereby the plaintiff has wholly lost the bene- fit and use of said drain or sewer. 101. Erecting a privy near plaintiff'' s dwelling. — That the plaintiff was and is seized in fee of a dwelling-house in the city of Washington, lately in the occupation of , as plaintiff's tenant thereof ; and the defend- ant erected and built a privy near the wall of said dwelling-house, and has continued the said privy from its erection hitherto, and during all the time permitted the same to be full of ordure, excrement, and fllth, which has soaked and penetrated through the wall of the said dwelling-house, and thereby greatly mouldered, rotted, and spoiled the said wall ; and by reason thereof, and by the nasty, noisome, foul, and stinking stench, va- pors, and smells arising from said privy, penetrating and ascending into the said dwelling-house, the same has been annoyed and rendered noisome; and on account thereof, and for no other cause, the said tenant would not continue to hold said dwelling-house, as tenant, without a great abate- ment of the rent, and, notwithstanding said abatement, has abandoned the same ; and the said dwelling-house, by means thereof, has continued without a tenant for a long time. The tenant may maintain this action if he does not obtain an abatement of rent. If the nuisance injures the reversion, as well as the possession, both landlord and tenant may maintain the action. 3 Pick., 348 ; 1 M. & S., 329, 334 ; 3 Lev., 309. 103. For digging near the plaintiff's wall, so that it fed down. — That the plaintiff was owner of a dwelling-house with the appurtenances in the city of Washington ; and the defendant dug away the ground near the foundation of said house, so that it tumbled down to the ground. 3 Saund., 397 ; 13 Mass. R., 220. 108. For darhening ancient lights. — That the plaintiff is the owner and possessor of a dwelling-house in the city of Georgetown, and of ten win- dows upon part of the south side, and of five windows in and upon part of the east side thereof, in and through which light into said dwelling DISTRICT OP COLUMBIA. 801 ■was let, and has been accustomed to be let, for more than twenty years, and ought yet to be let for lighting the same ; and the defendant a certain building so near said dwelling-house built and erected and continued, that thereby the said windows were stopped up and darkened, and the plain- tiff has been deprived and lost the use of said windows. 104. For diverting a water-course from a mill. — That the plaintiff is seized in fee of a grist mill with the appurtenances, situate on Rock creek, in the Distiict of Columbia, and for many years was used to have, and now ought to have, said creek running to said mill ; and the defend- ant diverted a great part of the water thereof from the plaintiff's said mill, so that said mill, which before could grind twenty bushels of corn every hour, by reason of said diversion can grind no more than five bushels an hour. 105. Declaration in repleein. — In the Sitpkemb Coxjkt of the District of Columbia, the day OF , 18—. A. B., Plaintiff, C. D., Defendant. ■ At law, No. ■ The plaintiff sues the defendant for unjustly detaining [wrongfully taldng, and detaining] his said plaintiff's goods and chattels, to wit : [deaeribe them] of the value of $ . And the plaintiff claims that the same be taken from the defendant and delivered to him ; or if they are eloigned, that he may have judgment of their said value, and all mesne profits and damages, which he estimates at $ , besides costs. (14 Sts., 404, § 13.) R. S. D. C, § 814. 106. Declaration in ejectment. — In the Stjpkemb Coukt of the Distkict of Columbia, the day OF , 18—. A. B., Plaintiff, ■ At law. No. — . C. D., Defendant. The plaintiff sues the defendant to recover the east 24 feet of lot No. 8, in square 488, in the city of Washington, fronting 25 feet on street, and running back the depth of the lot, in which he claims a fee simple ; [or ,an estate for life ;] \or, an estate for the life of . who is still liviitg;] \or an estate for a term of years, not yet expired; and of which the plaintiff was lawfully possessed on the day of , 18 , when the defendant entered the same and unlawfully ejected the plaintiff therefrom, and unjustly detains the same from the plaintiff. And the plaintiff claims the possession of said part of said lot with the appurte- nances and costs of suit. 51 802 GENERAL RULES SUPREME COURT PLEA. Commencement and conchimm. In the Supreme Court of the District of Colttmbia, the ^— day OF , 18—. A. B., Plaintiff, ) i>. > At law, No. — . C. D., Defendant. ) 1. The defendant says, [state Jirst defence or plea.] 2. And for a further plea, defendant says, [state the second defence or 3. And for a further plea, the defendant says, [state the third defence or plea, and so on.] If the plea is to part only of the declaration, say — And for a further plea to , [stating to what it is pleaded, ] the defendant says. Every second and subsequent defence or plea must ie written in a separate paragraph, and numlered. Commencement and Conclusion, of plea in estoppel. In the Supreme Court op the District op Columbia, the day OF 18—. A. B., Plaintiff, ) V. > At law. No. — . C. D., Defendant. ) The defendant says that the plaintiff ought not to be admitted to say [state the matter in the declaration to which the plea is in estoppel, ] because he says that [state the subject-matter of the estoppel,] wherefore the defendant prays judgment if the plaintiff ought to be admitted against his own ac- knowledgment [deed] [the said record] [or whatever the matter of the es- toppel may Je] to say as in declaring he has alleged. Commencement of plea hy infant. In the Supreme Court of the District op Columbia, the day OF , 18—. A. B., Plaintiff. ] V. I C. D., Defendant, '. At law, No, — . who defends by his guardian, E. F. J The defendant says that [state the defence.] Pleas in acti-ons ex contractu. Denial of debt. — That he never was indebted as alleged. [Applicable to the monety counts.] Denial of contract. — That he did not promise as alleged, [did not war- rant as alleged,] [did not agree as alleged.] {Applicable to declarations on simple contracts, other than bills and notes.) Denial of plaintiff's or defendant's representative or fidueioury chara/iter. — DISTRICT OF COLUMBIA. 803 That the plaintifi [defendant] is not executor or [administrator. ] [trustee, ] [assignee,] as alleged. Denial that defendant made the note, accepted the Mil, &e., declared on. — That the defendant did not make said promissory note [accept the said bill] as alleged. Denial of endorsement. — That the defendant [the said ,] did not endorse the said promissory note [bill] as alleged. Denial of notice of dishonor. — That the defendant did not have due notice [was not duly notified] of the dishonor of the said promissory note [bill] as alleged. Denial of supply of goods in actum on guaranty. — That the plaintiff did not supply the goods to the said , as alleged. Denial oflreaeh ofpronme to repair. — That the defendant did keep the said premises in repair, and did not use them in an untenantlike or im- proper manner, and he cultivated and managed the same according to good husbandry and the custom of the country. {These traverses must deny the lyreach or breaches alleged in the declaration.) Cfeneral denial of hreach. — The defendant denies the said alleged breach [breaches] of the said promise, [agreement,] [covenant,] and says that he did not commit the same, or any part thereof. Denial of deed. — That the alleged deed is not his deed. No record of judgment. — That there is no record of the said judgment. Judgment recovered. — That the plaintiff impleaded the defendant in an action forthe same identical claim and cause of action in the declaration mentioned, to-wit, in the circuit court of Montgomery county, in the State of Maryland, and such proceedings were thereupon had in that ac- tion that the plaintiff afterwards, by the judgment of that court, recovered against the defendant % , for the same identical claim and cause of action in said declaration mentioned ; which judgment remains in force. Infancy of defendant. — That the defendant at the time of contracting the said debt, [accepting the said bill,] [making the said deed,] [accruing of the said cause of action,] as alleged, was an infant under the age of twenty-one years. Coverture of defendant. — That the defendant, at the time of contracting the said debt, [accepting the said bill,] [making the said deed,] [accruing of the said cause of action,] as alleged, was the wife of Statute of limitations. — That the alleged cause of action did not accrue within [three] years before this suit. Payment. — That before action he satisfied and discharged the plaintiff's claim by payment. Satisfactionly delivery of goods. — That before action he satisfied and dis- charged the plaintiff's claim by delivering to him goods of the defendant, and by the plaintiff's accepting the same in such satisfaction and discharge. 804 GENERAL RULES SUPREME COURT Set-off. — That the plaintiff, at the commencement of the suit, was, and still is, indebted to the defendant in the sum of $ for , as appears by the particulars of the said debt hereunto annexed ; and he is willing that the same be set off against the plaintiff's demand. Tender. — And for a plea to the said $ , parcel, &c., the defendant says that he was always ready and willing to pay the plaintiflE the said sum of $ , parcel, &c., and that before action he tendered and offered to pay the same to him, but he refused to accept it, and the defendant now brings the said $ into court ready to be paid to the plaintiff. Payment into court. — That as to $ , parcel of the money claimed, [as to the count of the declaration,] the defendant brings into court $ , and says that the said sum is enough to satisfy the claim of the plaintiff in respect of the matter herein pleaded to. Banh-uptcy of defendant. — That the defendant became a bankrupt within the true iutipnt and meaning of the statute in force concerning bankrupts, and that the causes of action accrued to the plaintiff before the defendant so became bankrupt. Seleaie lief ore action. — That after the alleged claim accrued, and before this suit, the plaintiff, by deed, released the defendant therefrom. The liTce after action. — That after the commencement of this action, the plaintiff, by deed, released the defendant from the said claim and causes of action, and his costs of suit herein. After last continuance. — That after the last pleading in this action, and before this day, [he satisfied and discharged the plaintiff's claim by pay- ment,] [the plaintiff, by deed, released the defendant from said claim and causes of action, and his costs of suit herein,] (or whateeer else may le the matter of defence.) Pleas in actions ex delicto. Not guilty. — That he is not guilty, by the eighth section of the act, ap- proved July 28th, 1866, entitled "An act to protect the revenue, and for other purposes," and the sections of the several acts enumerated in said eighth section of the said act of July 38, 1866. Non-detinet. — That the defendant did not, nor does, detain the said goods [deeds] or any or either of them as alleged. Traverse in Trespass, if the premises ieing plaintiff's. — That the said dwelling-house [land] was not the plaintiff's, as alleged. Traverse of the goods heing plaintiff ^s. — That the said goods {according to the terms used in declaration,'] were not, nor were any or either of them, the plaintiff's, as alleged. Freehold in defendant, or another. — That the said dwelling-house and land were the dwelling-house and land and soil and freehold [of the de- fendant,] [of ,] and that the. defendant committed the alleged trespass as his servant, and by his command.] DISTRICT OF COLUMBIA. 805 Leave and Ucense. — That he did what is complained of by the plaintiff's leave. lAen in detkme. — That it was agreed between the plaintifl and the de- fendant, in consideration of the defendant's advancing to the plaintiff $ , that the defendant should have a lien on the said goods and deeds until repayment thereof with interest ; that the defendant advanced to the plaintiff the $ , but the plaintiff has not repaid the same with in- terest ; wherefore the defendant detained and still detains the said goods and deeds. Truth of the alleged slander or libel. — That the said words complained of as spoken [written] and published by the defendant, are true in tliis, that {state the facts concisely showing the truth.) Self-deferfce. — That the plaintifl first assaulted the defendant, who there- upon necessarily committed the alleged assault in his own defence. Bight of way. — ^That the defendant, at the time of the alleged trespass, was possessed of land, the occupiers whereof, for twenty years before this suit, enjoyed as of right and without interruption, a way on foot and with cattle and vehicles, from a public highway, over the said land of the plaintifl to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway, at all times of the year, for the more convenient occupation of the said land of the defendant, and that the alleged trespass was a use, by the de- fendants, of the said way. EEPLICATION. In the Sdpkbme Couet op the District of Columbia, the day OP , 18—. A. B., ». ^ At law, No. C. D., Defendant. The plaintiff joins issue upon the defendant's [first plea,] [so much of the first plea as alleges that, &c.,] (specifying what or what part.) To plea containing new matter. — ^For example : 1. To plea of release. — That the alleged release is not the plaintiff's deed [was procured by defendant's fraud.] 3. To plea of set-off- — That the alleged set-off did not accrue within three years before this suit. 3. To plea of self-defence. — That the plaintiff was possessed of laud whereupon the defendant was trespassing and doing damage, whereupon the plaintifl requested the defendant to leave the said land, which the de- fendant refused to do, and thereupon the plaintiff gently laid his hand on the defendant in order to remove him, doing no more than was necessary for that purpose, which is the alleged first assault by the plaintiff. 4. To plea of right of way. — That the occupiers of the said land did not 806 GENERAL RULES SUPREME COURT for twenty years before this suit enjoy as of right and without interrup- tion the alleged way. 5. To plea of tw such record. — That there is not any record of the said recovery [recognizance,] [writ,] in the said plea mentioned, remaining in the said court, [said Circuit Court of Montgomery county, in the State of Maryland,] as in the said plea alleged. Replication corifesdng pa/rt of a plea of payment. — And as to the defendant's second plea, except so far as it is pleaded and relates to the sum of $ , parcel of the money claimed, the plaintiff confesses and admits that the defendant did satisfy and discharge by payment, as in the said plea alleged, the plaintiff's claim as to the said sum of $ , parcel, &c., and the plaintiff says that he will not further prosecute his suit against the defendant as to said sum of f , parcel, &c. ; and as to the residue of the defendant's second plea, the plaintiff takes issue thereon. Replication admitting part of a plea of set-off. — The plaintiff takes issue on the defendant's second plea, except so far as relates to the sum of $ , parcel of the amount in which the plaintiff is therein alleged to be indebted to the defendant ; and as to that plea, so far as it relates to those sums, parcel, &c., the plaintiff admits that he was and is indebted to the defendant in the sum of $ , parcel of the money in which he is, in that plea, alleged to be indebted, and the plaintiff is willing to set off the said sum of | , parcel of the money claimed by him, against the said sum of $ , in which he was and is so indebted to defendant, and he does set off the same accordingly, and says that he will not further prose- cute his claim or suit against the defendant for or in respect of the same. NEW ASSIGNMENT. To plea of right of way. — ^The plaintiff, as to the and pleas, says that he sues not for the trespass therein admitted, but for trespasses committed by the defendant in excess of the alleged rights, and also in other parts of the said land, and on other occasions, and for other pur- poses than those referred to in said pleas. {If the plaintiff replies and new assigns, the new assignment may be as fol- lows .') And the plaintiff, as to the and pleas, further says that he sues, not only for the trespass in those pleas admitted, but also for , &c. (If the plaintiff replies and new assigns as to some of the pleas, and new assigns only to the other, the form may he as follows :) And the plaintiff, as to the and pleas, further says that he sues, not for the trespass in the pleas (fhe pleas not replied to) ad- mitted, but for the trespasses in the pleas (the pleas replied to) ad- mitted, and also for , &c. (Subs(yrS)e the same notice to plead as in case of declaration.) DISTRICT OP COLUMBIA. 807 Con/eision and plea to new assignment. — ^And the defendant, as to the said trespasses above newly assigned, freely here in court confesses the said action of the plaintiff, and that the defendant is guilty thereof, and that the plaintiff has sustained damages in respect thereof to a small amount, to wit, $ , which he is willing to pay, and which he brings into court ready to be paid to the plaintiff, and he says that the said sum is enough to satisfy the plaintiff's cause of action so newly assigned. And the defendant relinquishes so much of his said several pleas as relates to the said newly assigned cause of action. REJOINDER. In the Stjpebme Codet of the Distbict of Coltjmbia, the day OF , 18—. A. B., mt. ) ■ At law, No. — . C. D., Defendant. The defendant joins issue upon the plaintifl's replication to the defend- ant's [pleas] [first plea,] [second plea,] (as the case may le.) DEMURRER. In the Supreme Coukt of the District of Columbia, the day OF , 18—. A. B., Plaintiff, ) 11. \ At law. No. — . C. D., Defendant, ) The defendant [plaintiff] says that the declaration [plea] is bad in sub- stance. (Insert in the margin, orlelow the demurrer, th£ following :) Note. — One of the matters of law intended to be argued is, that, &c. (State the ground of the demurrer concisely.) JOINDER IN DEMURRER. In the Supreme Court of the District of Columbia, the day OF , 18—. A. B., Plaintiff, ■ At law. No. ■ CD., Defendant. ' The plaintiff [defendant] says that the declaration [plea] is good in sub- stance. The pleader may supplement the foregoing brief forms of declarations by referring to Bcllbn and Leake's Precedents of Pleadino in Per- sonal Actions, from which the following list of Counts in Actions on Contracts and in Actions for Wrongs is extracted, with references to the pages of the book : GENERAL RULES SUPREME COURT COUNTS m ACTIONS ON CONTRACTS. FA&E Account 63 Account stated 53 Administrator (see executors and administrators). Agent 64 Agistment 68 Annuity 68 Apothecary (see medical attend- ance) 69 Appraiser (see auctioneer) 69 Apprentice 69 Arbitration and award 71 gnee of debt 75 bankrupt 76 insolvent 81 Attorney 83 Auctioneer 85 Average (see insurance) 86 Award (see arbitration) 86 Bail bond 86 Bail, recognizance of 88 Bailment 88 Bankrupt (see assignee) 92 Bills of exchange. inland 94 foreign 104 banker's checlcs 107 promissory notes 109 miscellaneous 113 Bills of lading (see carriers by water) 114 Board and lodging (see landlord and tenant) 114 Bonds 114 Broker 118 Calls (see company) 130 Carriers of goods by land 133 water 129 passengers 134 messages 137 Charter parties 137 Cheeks (see banker's checks) 140 Company 140 Conditions precedent 147 Corporation (see company) 149 Covenant (see landlord and tenant, mortgage sale of land) 149 Crops 149 Damages (see liquidated damages) 151 Debenture (see bond, mortgage).. 151 Demurrage (see carriers of goods by water) 129 Dividends (see company) 140 Exchange. 151 Executors and administrators. . . . 153 Factors (see agent, broker). Farrier 156 Fixture 157 Forbearance 157 Foreign bills (see bills). Foreign companies (see company). Foreign judgment (see judg- ments). Freight (see carriers of goods by water) . Funeral expenses 161 Gaming 161 Goods (see sale of goods). Good will (see trade). Guaranty 163 Heirs and devisees 169 Hire 170 Husband and wife 171 Indemnities 175 Infant (see infancy) 33 Insurance, marine 181 life 187 flre 191 accidents, &c 193 broker 193 Interest 51 Judgments 198 Landlord and tenant 196 Limitation, Statutes of 817 Liquidated damages 317 Market (see tolls) . Marriage 319 Master and servant 320 Medical attendance 325 Money lent 41 paid 43 received 44 Mortgage 338 Partners 327 Patents 331 Penal statutes 383 Penalty (see liquidated damages). Principal and surety (see guar- anty). Promissory notes (see bills). Railway (see company) . Recognizance of bail (see bail). Replevin bonds 285 Reward 337 Sale of goods 237 Sale of lands 246 School-master 254 Seaman 255 Shares 356 Shipping (see carriers by water, charter-parties, seamen) . Stallage (see tolls). Stock 359 Surety (see guaranty). Tolls...... 360 Trade 361 Use and occupation (see landlord and tenant). DISTRICT OF COLUMBIA. 809 Vendor and purchaser (see sale of laud). Warehouseman and wharfinger (see bailments). FASB Warranty 363 Witness 269 Work 370 COUNTS IN ACTIONS FOK WRONGS. PAGE Administrators (see executors) . Agents 373 ■ Arrest (see malicious prosecution, sheriff, trespass to the person) . 274 Assault (see trespass to the person). Assignee (see conversion). Attorney 375 Bailments 375 Carrier by land 377 by water 381 of passengers 383 of messages 285 Common 285 Company 289 Conspiracy (see malicious prosecu- tion). Conversion of goods 290 Copyright 297 Corporation 299 Defamation, libel, and slander.309-310 Detention of goods 311 Basement (see common, lights, support, water-course, ways) . Election 825 Executors 325 Fences 329 Ferry ,. . . .331-3552 Fixtures 332 Fraud 333 Game (see shooting). Highways (see nuisance). Husband and wife 338 Imprisonment (see trespass to the person). Innkeeper 343 Judge 345 Justice of the Peace 345 Landlord and tenant 346 Libel (see defamation). PASS Lights 347 Magistrate (see Justice of the Peace). Maintenance 350 Malicious prosecution 350 Market 358 Master and servant 359 Medical men 364 Mesne profits (see trespass to land) 423 Mines 365 Mischievous animals 366 Negligence 368 Nuisance 377 Partners 384 Patents 385 Pew 389 Public health 31 Railway (see carriers, company, fences, negligence). Replevin (see Statute of 1867, Statutes at Large, Vol. 14). Reversion 393 Seduction (see master and servant) 359 Sheriff 396 Slander (see defamation) 301 Slander of title 404 Stock 405 Support of land 406 Trade-marks 408 Trespass to the person 410 to goods 414 to land 415 Trover (see conversion). Warranty 263-833 Waste 423 Water and water-course 424 Ways 439 Witness 431 ADVEETISING. Bule 119. (1.) Advertising done under the authority of the court shall be paid for, at rates per square of four lines of agate type, not exceeding the following : ■810 GENERAL RULES SUPREME COURT 1 sqnare daily 1 square every other day 1 square twice a week It 75 75 75 3t 1.00 1.25 1.25 3t 1.25 1.50 4t 1.60 2.00 5t 1.75 2.50 6t 2.00 2.75 2w 3.00 2.75 2.25 3w 4.00 3.50 3.00 Im 2m 5.00 9.00 4.00 6.50 3.60 5.50 3m 9m 22.60 15.05 12.50 12.00 7.50 7.00 18m 37.60 27.60 23.60 1 square once a week, 75 cents each insertion. (2.) Every trustee or other person authorized or directed by the court to advertise property for sale shall append to the ad- vertisement his name and a reference to his place of business or residence ; but he shall not enhance the cost of the advertise- ment by pubhshing the name or card of any person employed to cry the sale. (3.) At every such sale the trustee or other officer or agent of the court making the sale shall be present, and shall himself in person receive the deposit required in such cases ; and he shall in no case entrust the payment of the advertising and other expenses to the person employed to cry the sale. (4.) In his report of the sale to the court the trustee or other person making the sale shall state, under oath, whether he has compUed with the provisions of this rule. JRtOe 120. The compensation of the person employed to cry any sale of real or leasehold estate, hereafter made by the authority or di- rection of the court, shall be one-eighth of one per cent, of the amount for which the property shall sell ; provided that such compensation shall not be less in any case than ten dollars. For an ineffectual eifort to sell such crier may be paid not ex- ceeding five dollars. Such compensation shall be paid by the trustee and deducted from his commissions. ASSIGNMENT OF JtTSTICES. Januabt 12th, 1867. Ordered, that, hereafter, in each year, on or before the first Monday of February, the Chief Justice of this Court shall make an assignment of each of the Justices of this Court, to hold the various Courts for the then coming year : And no Justice of this Court shaU transact or interfere with DISTRICT OF COLUMBIA. 811 the business of either of such Courts, to which he is not as- signed, except on a written request of the Justice assigned to hold such Court : And such assignment when made shall be entered upon the minutes of the Court. 1 Minutes, General Term, 160-161. RULES SUPREME COURT OF THE DISTRICT OF COLUMBIA, APPEALS FEOM THE DECISIONS OF THE COMMIS- SIONEE OF PATENTS, Adopted November 30, 1874. 1 Minutes, General Term, 493. Sule 1. The appellant's petition shall be addressed to the court, and shall be substantially as follows : " To the Supre?ne Court of the District of Oolwnhia, in heme, the day of , 18 — . " The petition of , a citizen of ■ , in the [State, Territory, District,] of , respectfully shows as follows : " a. About the day of , 18 — , I invented [de- scribe the subject of the desired patent, in the identical words of the application to the Patent Office.] " h. On the day of , 18 — , in the manner pre- scribed by law, I presented my apphcation to the Patent Office, praying that a patent be issued to me for the said in- vention. " c. Such proceedings were had in said office, upon said ap- 814 APPEALS TO SUPREME COURT. plication, that, on the day of , 18 — , it was rejected , by the Commissioner of Patents. " d. I thereupon appealed to this court, and gave notice thereof to the Commissioner, and filed in his office the fol- lowing reasons for said appeal : " e. The Commissioner of Patents has furnished me a com- plete copy of all the proceedings in his office, upon my said application, deemed material to the issue, which copy has been filed herewith, and is to be taken as a part hereof. "y. And thereupon I pray that the court do revise and reverse said decision, to the end that justice may be done in the premises. Mule 2. This petition shall be filed in the Clerk's Office of this court ; and as soon as the petitioner has made the deposit required by law at the commencement of suits in this court, or said deposit has been dispensed with, the clerk shall enter the case in a docket to be provided by him for the purpose, and in which a brief of said filing and of all subsequent proceedings in the case shall be entered, as and when they successively occur, down to, and including the final decision. Rule 3. The clerk shall provide a minute-book of his office, in which he shall record every order, rule, judgment, or decree of the court in each case, in the order of time in which said pro- ceedings occur; and of this book there shall be two alpha- betical indexes, one showing the name of the party applying for the patent, and the other designating the invention by its subject-matter or name. Rule 4, The cases in the docket of causes shall be successively num- bered from No. 1 onward, and each case shaU also be desig- nated by the number assigned to it on the records of the Pa- tent Office. DISTRICT OF COLUMBIA. 815 Sule 5. This docket shall be called for the trial of the cases thereon on the first day of each session of this court in General Term, provided the petition has been filed ten days before the com- mencement of the term. Appeals filed within ten days of the commencement of the term, or during the term, may, by leave of the court, be set down for hearing at any time during the term, not less than ten days subsequent to the fiUng. Rule 6. The opinions of the court, when written, shall be kept by the clerk in the order of their delivery, in a temporary book-file, indexed ; and when as many have been delivered as will make a volume of convenient size, he shall cause them to be bound. Rule 7. The clerk shall furnish to any applicant a copy of any paper in any of said appeals on payment of the lawful fees. Rule 8. Hearings of said appeals shall be subject to the rules of the court provided for other causes therein. Rule 9. "WTien the testimony of the Commissioner, or of any exam- iner, touching the principles of the invention in question shall be deemed necessary, it shall be taken orally in open court, unless otherwise ordered by the court. And, in such case, the court may order it to be reduced to vmting, and filed or en- tered on its minutes, if it think proper. Rule 10. The final judgment or order of the court shall not recite any of the facts made to appear in the case, but shall be to the following effect : " This appeal having been heard upon the record from the Patent Office, [and upon the testimony of the Commissioner of Patents,] [of one of the examiners,] [touching the principles of 816 APPEALS TO SUPREME COURT. the invention,] and having been argued by [counsel for] the petitioner [for] and the Commissioner : " It is thereupon ordered and adjudged that the [petition be dismissed] [Commissioner do issue to the petitioner a patent,] [as prayed,] [granting the petitioner (so and so.)] " And that the clerk of this court transmit to the Commis- sioner of Patents a copy of this decree, duly authenticated." EULES OF PEAOTICE EST EQUITY THE SUPREME COURT DISTRICT OF COLUMBIA. Rule 1. Cowrt to he deemed alwm/s (ypenfor prepa/raUon of ccmses. The court of equity shall be deemed always open for the purpose of fihng bills, answers, and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits. Rule 2. Attendcmoe in clerKs office. The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Tuesday of every month, for the purpose of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceedings, which are grantabje of course, and applied for, or had by the parties, or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. Rule 3. Order hooh. Any justice of the court, as well in vacation as in term, may, at chambers, make and direct all such interlocutory orders, 818 EQUITY RULES SUPREME COURT rules and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect, as the court could make and direct the same in term, reasonable notice of the appUcation therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary at the next rule day thereafter, unless some other time is assigned by the justice for the hearing. AU motions, rules, orders, and other proceedings made and directed at chambers, or on rule days, at the clerk's office, whether special or of course, shall be entered by the clerk in an order book, to be kept at the clerk's office, on the day when they are made and directed ; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. Mtde 4. Motions grcmtable of course. All motions and applications in the clerk's office for the issu- ing of mesne process and final process to enforce and execute decrees, for filing biUs, answers, pleas, demurrers, and other pleadings ; For making amendments to bills and answers ; For taking bills jwo confesso ; For filing exceptions, and for other proceedings in the clerk's office, which do not, by the rules hereinafter prescribed, re- quire any allowance or order of the court, or of any judge thereof ; Shall be deemed motions and applications, grantable of course by the clerk of the court. But the same may be sus- pended, or altered, or rescinded by any judge of the court, upon special cause shown. Rule 5. Notice of motion, when requisite. AU motions for rules or orders or other proceedings, which are not grantable of course, or without notice, shall, unless a different day be assigned by a justice of this court, be noticed for the first day of the special term, and a copy of the affida- vits or papers upon which said motion is founded shall, to- gether with the notice of motion, be served on the oppo- DISTRICT OP COLUMBIA. 819 site plarty, if he has appeared, or his solicitor, at least two days before the hearing of said motion, unless the grounds of said motion are matter of record ; in which case it shall only be necessary to refer to such parts of the record as are specified in the notice of motion. PEOCESS. S,ule 6. Leadmg process. The process of subpoena shall constitute the proper process in all suits in equity in the first instance, to require the defend- ant to appear and answer the exigency of the bill. Rule 7. Subpoena not issued till hill filed. No process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the cause. Rule 8. Where subpoena to be issued of course, omd return. "Whenever a bill is filed the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall be returnable into the clerk's office the next rule day, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defendant is to enter his ap- pearance in the suit in the clerh^s office on or before the day at which the writ is retu/rnable ; otherwise the bill man/ be taTcen pro confesso. "Where there are more than one defendant a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of hus- band and wife, defendants, or a joint subpoena against aU the defendants. Rule 9. Service. The service of all subpoenas shall be by a dehvery of a copy thereof by the officer serving the same to the defendant personally, or, in case of husband and wife, to the husband 820 EQUITY RULES SUPREME COURT personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some suitable person, who is a member or resident in the family. Rtde 10. Renewal. Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another sub- poena, toties quoUes, against such defendant, if he shall require it, until due service is made. Rule 11. Mm'shal to serve. The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not othervrise. In the latter case the person serving the process shall make affidavit thereof. Rule 12. DocTcetwig suit. As soon as the bill is filed the clerk shall enter the suit upon his docket as pending ia the court, and shall state the time of the entry. DEFENDANT'S APPEAKANOE AND DEFENCE. Rule 13. Tinne of appea/rance. A defendant served with subpoena to answer twenty days before the first Tuesday of any month must appear by the rule day first occurring twenty days after the service thereof. Rule 14. Entry of appea/rance. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order book on the day thereof by the clerk. DISTRICT OP COLUMBIA. 821 Mule 13. Defcmlt in a/ppea/rmg. In default of such appearance, the plaintiff may, at his elec- tion, enter an order (as of course) in the order book, that the bill be taken ^o eonfesso, and thereupon the cause shall be proceeded in ex jpa/rU, and the matter of the biU may be de- creed by the court at the next ensuing term thereof accord- ingly, if the same can be done without an answer and is proper to be decreed ; or the plaintiff, if he requires any dis- covery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defend- ant, to compel an answer ; and the defendant shall not, when arrested upon such process, be discharged therefrom unless upon filing his answer, or otherwise complying with such order as the court or judge thereof may direct, as to pleading to or fuUy answering the bih, within a period to be fixed by the court or judge, and undertaking to speed the cause. Mule 16. Decree on — Setting aside. When the bill is taken pro eonfesso, the court may proceed to a decree at the next ensuing term thereof, and such decree rendered shall be deemed absolute unless the court shall, at the same terra, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct for the purpose of speed- ing the cause. FEAME OF BILL. Rule 17. IntrodiiGtion. Every bill shall be divided into paragraphs, successively numbered, and shall contain the names and places of abode of 822 EQUITY RULES SUPREME COURT all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form of the introductory part thereof shall, in substance, be as follows : Bill m eguity. In the Sitpeeme Cotjet of the District of Columbia, the DAT OF , 18 — . A.'E.,Plamtif, ) V. y No. — . C. D., Defendcmt. ) To the Swprenw Court of the District of CoVumhia, holding cm Equity Court for said District. The plaintiff states as follows : 1. He is a citizen of , [in the State of New York,] and brings this suit [in his own right] or [as assignee in bank- ruptcy of the late firm of and — - — , merchants in the city of New York], [statmg the character in which he sues]. 2. The defendant is a citizen of the District of Columbia, and is sued in this action [as executor of , deceased, late of said District]. 3. That, etc. Rule 18. Parts that may he omitted. The plaintiff, in his bill, shall omit the part which is usually called the common confederacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff ; also what is commonly called the charging parrt of the biU, setting forth the matters or excuses which the defend- ant is supposed to intend to set up by way of defence to the bill ; also what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the defendant is without any remedy at law ; and the bill shall not be demurrable therefor. Rule 19. Season of omitting parties to he averred. If any persons, other than those named as defendants in the DISTRICT OF COLUMBIA. 823 bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill, if they should come within the jurisdiction. Bule 20. Bill to he signed hy cotmsel. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that, upon, the instructions given to him and the case laid before him, there is good ground for the suit in the manner in which it is framed. Mule 21. Matter of hill to he hrief, relevant, pertinent. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary reci- tals of deeds, documents, contracts, or other instruments in hcBG verba, or any impertinent, scandalous or irrelevant matter. If it does, a motion may be made to the court to expunge such portions thereof as are deemed impertinent or scandalous ; and if so found by the court, it shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court otherwise order. If the court find that the matter of the bill is not scandalous or impertinent, the plaintiff shall be entitled to the costs of the motion. Rule 22. Prayer for process. The prayer for process of subpoena in the biU shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process. If an injunction or a writ of 824 EQUITY RULES SUPREME COURT ne exeat or any other special order pending the suit, is asked for in the prayer for relief, that shall be suflacient without re- peating the same in the prayer for process. Bule 23. Prmjer for relief. The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general rehef ; and if an injunction or a writ of ne exeat, or any other special order pending the suit, is requh-ed, it shall also be specially asked for. AMEISTDMENT OF BILLS. Mule 24. Before cojyy — after copy. The plaintiff may, as a matter of course, and without pay- ment of costs, amend his biU in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filling blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point after a copy has been so taken, (as he may do, of course,) before any answer or plea, or demurrer to the biU, he shall pay to the defendant, the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous he shall furnish in like manner, to the defendant, a copy of the whole bill as amended ; and if there be more than one defend- ant a copy shall be furnished to each defendant affected thereby. Rule 25. After answer. After an answer, or plea, or demurrer is put in, and before rephcation, the plaintiff may, upon motion or petition without notice, obtain an order from any justice of the court, to amend his bill on or before the next succeeding rule day, upon pay- DISTRICT OP COLUMBIA. 825 ment of costs or without payment of costs, as the court or a judge thereof may in his discretion direct. After replication. But after replication filed the plaintiff shall not withdraw it and amend his bill, except upon a special order of a justice of the court, upon motion or petition, after due notice to the other party; and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasona- ble diligence have been sooner introduced into the bill, and upon the plaintiff submitting to such other terms as may be imposed by the judge for speeding the cause. B,ule 26. Leave to amend when deemed abandoned. If the pl9,intiff, so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shaU not file his amendments or amended bill, as the case may require, in the clerk's office, on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shaU proceed as if no application for any amend- ment had been made. DEMUKEEES AND PLEAS. Bute 27. Terms of filing. Ifo demurrer or plea shall be allowed to be filed to any bill unless upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay ; and if a plea, that it is true in point of fact. n^e 28. To whole or part of hill. The defendant may, at any time before the bill is taken for confessed, or afterwards with the leave of the court, demur or plead to the whole biU, or to part of it, and he may demur to 826 EQUITY RULES SUPREME COURT part, plead to part, and answer as to the residue ; but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortify- ing the plea, and explicitly denying the fraud and combination, and the facts on which the charge is founded. Bule 29. Argwment of, or issue on. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. Bule 30. Cost of overruling If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant had good ground in point of law or fact to interpose the same, and it was not interposed vexatiously or for delay. And upon the overruhng of any plea or demurrer, the defendant shall be assigned to answer the bill or so much thereof as is covered by the plea or demurrer, the next succeeding rule day or at such other period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be rea- sonably done ; in default whereof the bill shaU be taken against him pro confesso, and the matter thereof proceeded in and decreed accordingly. Bute 31. Cost of allowing. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bUl upon such terms as it shall deem reasonable. Bule 32. Admiitted to he true and sufficient, wJien. If the plaintiff shall not reply to any plea, or set down any DISTRICT OF COLUMBIA. 827 plea or demurrer for argument, on the next rule day, provided the same is filed five days before the commencement of the term, he shaU be deemed to admit the truth thereof. JRule 33. Defence hy answer instead of plea. The rule, that if a defendant submits to answer he shall answer fully to all the matters of the bill j, shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant may in all cases by answer insist upon all matters of defence (not being of a merely dilatory character) in bar of or to the merits of the bUl, of which he may avail himself by a plea in bar ; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar, and answer in support of such plea, touch- ing the matters set forth in the bill to avoid or repel the bar or defence. Thus, for example, a Ixma fide purchaser for a valuable consideration, without notice, may set up that defence by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. Mule 34. New or supplemental answer. In every case where an amendment shall be made by plain- tiff after answer filed, the defendant shall put in a new or supplemental answer, within ten days after notice of the filing of the amended bill, unless the time is enlarged or otherwise ordered by a justice of the court ; and upon his default the like proceedings may be had as in cases of an omission to put in an answer. PAETIES TO THE SUIT. Mule 35. Proceeding without. In aU cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to 828 EQUITY RULES SUPREME COURT the suit cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, the court may in its discretion proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties. Rule 36. Yery numerous, dispensed with. "Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense w:ith making all of them parties, and may pro- ceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. Rule 37. Beneficia/ries dispensed with. In aU suits concerning real estate which is vested in trus- tees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate or the proceeds, or the rents and profits, in the same manner, and to the same extent, as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such per- sonal estate ; and in such cases it shall not be necessary to make the personis beneficially interested in such real estate, or rents and profits, parties to the suit ; but the court may, upon consideration of the matter on the hearing, if it shall think fit, .order such persons to be made parties. Rule 38. Want of, suggested in a/nswer. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argu- DISTRICT OF COLUMBIA. 829 ment upon that objection only ; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order book, in the form or to the effect follow- ing : " Set down, upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstand- ing an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objec- tion shall then be allowed, be entitled aS of course to an order for liberty to amend his bill by adding parties ; but the court, if it thinks fit, may dismiss the biU. Bule 39. Omitted, saving for in decree. If a defendant at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or descrip- tion the parties to whom the objection applies, the court may make a decree, saving the rights of the absent parties. Mule 40. Nom/mal, when to answer — when not. Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires hun so to do by the prayer of his bill ; but he may appear and answer at his option ; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. " INJUNCTION. Mule 41. To suspend husiness of iamJe, So. No injunction nor restraining order to suspend the ordinary business of any bank or moneyed corporation, or to compel a 830 EQUITY RULES SUPREME COURT defendant to refrain from doing any other act, where the in- junction will necessarily produce great and irreparable injury to the defendant if the claim of the complainant be not sus- tained, shall be allowed, except upon a direct appUcation to the justice holding the special term of the court. To stay proceed/ings at law. Except when an injunction is to stay proceedings in an ordi- nary suit at law, or is against a judgment debtor, who is made a defendant to a creditor's bill, no injunction or restraining order shall be issued but upon the precedent condition that the complainant execute and file in the cause, with surety or sure- ties, if deemed necessary by the justice, and to be approved by him, an undertaking to make good to the defendant all dcmiages hy him suffered or sustained hy reason of wrongfully amd in- equitably suing out the injimction, and stipulating that the damages may he ascertained in such manner as the justice shaU direct; and that, on dissolving the injunction, he may give judgment thereon against the principal amd sureties for said damages in the decree itself dissolving the injv/nction. Rule 42. Notice of application for. The justice to whom an application for an injunction is made, may refuse to allow it ex parte, and instead thereof may appoint a day for hearing the application, and require the de- fendant, or if there be several defendants, such of them as he thinks proper, to be notified of the hearing for a reasonable time previously, subject to the provision of Kule No. 41, as to the undertaking to be filed by plaintiff. Mule 4:3. What Mil for must state. If the injunction prayed for be to stay proceedings at law, the biU must state whether an issue has been joined, or a ver- dict or judgment obtained, and the injunction, if granted, may stay all proceedings after issue joined, or permit the defendant to proceed to judgment, notwithstanding the injunction, with- out prejudice to the coniplainant's equities. DISTRICT OF COLUMBIA. 831 Mule 44, To stay ejectmient or r&plevm. If an action of ejectment, or other suit at law to recover possession of land, or to recover possession of specific chattels, be at issue, no injunction shall be granted to stay the same until the complainant, with surety or sureties approved by the justice, has filed an undertaking in the suit to pay such rent cmd mtervening dmmages as may he finally adjudged agaAnst the oomplaAnamt, and stvpulatvng that judgment may he gwen against the principal a/nd sureties for the sa/me if the hill he dismissed for wa/nt of equity. Mule 43. Motion to dissolve or to discha/rge. If an injunction or rke exeat be granted ex pa/rte before an- swer, the defendant, on due notice, may move to dissolve the iajunction or discharge the we exeat on the bill only ; and if his motion be allowed, it may be with or without costs, in the discretion of the justice. In this case the complainant shall serve a copy of the bUl upon the defendant's solicitor within six days after he has en- tered his appearance and notice thereof ; and if a copy of the bill be not delivered within said time, the defendant may, upon due notice to the plaintiff, move to dissolve the injunction, or discharge the ne exeat with costs. Mule 46. Not gra/nted unless prayed for a/nd hill verified. ~Ec) preliminary injunction or ne exeat shall be granted ex pa/rte unless prayed for in the bill, and the bill be verified in the manner prescribed in Eule 90. Mule 47. Not dissolved u/nless answer verified. An injunction or ne exeat shall not be dissolved or dis- charged, although the whole equity of the bill be denied by the answer, unless the answer is duly verified, provided the verification thereof is not waived by the plaiatiff in the bill. 832 EQUITY RULES SUPREME COURT Mule 48. Affidavits on application for. The application for an injunction or ne exeat, whether ex parte or upon notice, may be fortified by affidavits of third persons in support of the allegations of the bill of petition to be filed therewith ; and upon motion of the defendant to dis- solve his answer may be supported in like manner, by affidavits to be filed with said answer. EEVIYOK AND SUPPLEMENTAL BILLS. Mule 49. £ill of revvvor. Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be re- vived by a bin of revivor, or a biU in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which biU may be filed in the clerk's office at any time ; and upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. Mule SO. Supplemental Mil. Leave to file a supplemental biU, when deemed necessary, may be granted by the justice holding the special term, or, in his absence, by any other justice of the court, upon sufficient cause shown, and notice of the apphcation to the opposite party. And if leave is granted to file such supplemental bUl, the de- fendant shall demur, plead or answer thereto, on the next suc- ceeding rule day after the supplemental biU is filed in the clerk's office, unless some other time shall be assigned by a judge of the court. DISTRICT OF COLUMBIA. 833 IRule 51. Matter of. It shall not be necessary in any bill of revivor, or supple- mental biU, to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. AlfSWER. Rule 52. Tvme of filing, amd failing to file, am,swer. n defence is not made by plea or demurrer, the defend- ant must file his answer in the clerk's office by the rule day next succeeding that of entering his appearance. In default thereof, the proceedings shaU. be the same as are prescribed in case of default in appearing. Eule 15. Rule 53. Fra/me of the a/nswer. The answer, after the introductory part of it, shall be divided into paragraphs in the same manner as the bUl, and each paragraph in the answer shall correspond with the para- graph in the bill of the same number. Rtde 54. Amendment of, before amd after rejpliaation. After an answer is put in, it may be amended as of course, in any matter of form, as by filling up a blank, or correcting a date, or reference to a document or other small matter, and be resworn, at any time before a repHcation is put in, or the cause is set down for a hearing upon bill and answer. But after repUcation, or such setting down for hearing, it shall not be amended in any material matters, as by adding new facts or defences, or qualifying or altering the original statements, ex- cept by special leave of the court or of a justice thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by affidavit. And in every case where leave is so granted, the court, or the justice granting the same, 53 834 EQUITY RULES SUPREME COURT may, in his discretion, require that the same be separately en- grossed and added as a distinct amendment to the original an- swer, so as to be distinguished therefrom. Rule 35. Exo&pUons to answer, time for filing. After an answer is filed, and notice thereof given to the plaintiff's solicitor, the plaintiff shall be allowed ten days to file in the clerk's office exceptions thereto for insufficiency, un- less a longer time shall be allowed by a justice for the purpose, upon cause shown ; and if no exception shall be filed thereto within that period, the answer shaU be deemed and taken to be sufficient. Rule 56. Exceptions, when to he heard. Where exceptions shall be filed to the answer for insuf- ficiency within the period prescribed by these rules, if the de- fendant shall not submit to the same, and file an amended an- swer within ten days, and give notice thereof to the plaintiff, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule day thereafter, before a justice of the court, and shall enter, as of course, in the order book, an order for that purpose. And if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed sufficient : provided, however, that the court, or any justice thereof, may for good cause shown enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. Rule 57. Allowa/noe of exceptions — attachment. If at the hearing the exceptions shall be allowed, the de- fendant shall be bound to put in a full and complete answer thereto within ten days ;. otherwise the plaintiff shall, as of course, be entitled to take the biU, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he DISTRICT OF COLUMBIA. 835 may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions ; and the de- fendant, when he is in custody upon such writ, shall not be dis- charged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer and complying with such other terms as the court or judge may direct. Mule 38. Exceptions overruled — costs. If, upon argument, the plaintiff's exceptions to the an- swer shall be overruled, or the answer shall be adjudged insuf- ficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions. Rule 59. Separate answers, costs of. When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other pro- ceedings had by two or more of the defendants separately, costs shall not be allowed for such separate answers or other pro- ceedings, unless the court determine that such separate answers and proceedings were necessary or proper, and ought not to have been joined together. EEPLICATIOlf AND ISSUE. Rule 60. Form of replication. "So special replication to any answer shaU be filed. The general replication may be in the following or equivalent form : In the Supkeme Couet of the District of Columbia, the DAT of , 18 — . A. B., Complainant, \ vs. \ In Equity. No. — . C. D., Defendant. ) The complainant hereby joins issue with the defendant [and 836 EQUITY RULES SUPREME COURT will hear the cause on biU. and answer against the defendant], [and on the order to take the biU as confessed against the de- fendant]. Mule 61> Time of filiTig. "Whenever the answer of the defendant shall be excepted to, and shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto within ten days there- after ; and whenever the answer of the defendant shall not be excepted to, the plaintiff shall file the general repHcation there- to within ten days after notice of the filing of such answer ; and in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. Mule 62. Not filed in time — wTiat. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit ; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed mimojpro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. Mule 63. Mcmner of setting coAises for Tiewrvng and placing same on calendar. No cause in equity shall be set down for hearing unless the same be at issue and ready for hearing, or be properly set down for hearing on bill and answer, or biU and answer and replication ; and every cause may be ordered by either party or his counsel to be placed upon the calendar, provided such order be given at least five days previous to the first day of the next special term. But any cause once properly set down for hear- ing and placed upon the calendar, if not disposed of by the court, shall remain upon the calendar in its proper order. June 6, 1866, 1 General Term Minutes, 145. DISTRICT OF COLUMBIA. 837 EVIDENCE. Mule 64. Answer. — If the complainant, in his bill, waive an an- swer under oath, or only require an answer under oath to cer- tain specified paragraphs of his bOl, the answer of the defend- ant though under oath, except such parts of it as shall be directly responsive to such paragraph, shall not be evidence in Ms favor, unless the cause be set down on bill and answer only ; but may nevertheless, be used as an affidavit, with the same eifect as heretofore, on motion to grant or dismiss an in- junction, or any other incidental motion in the cause ; but this shall not prevent a defendant from being a witness in his own behalf, under Section 3 of the act of Congress of July 2, 1864, 13 Stats., 374, (Feb. 15, 1873, 2 General Term Minutes, 142.) Deposition of resident witness. — After the cause is at issue, either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon aU the witnesses to be examined, if they live or be in the District, shaU be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court, the examiner to be furnished with a copy of the bill and answer, if any ; and such examination shall take place in the presence of the parties or their agents, by their counsel or sohcitors, and the witnesses shall be subject to cross-examiaation and re-examination, and which shall be conducted, as near as may be, in the mode now used in common law courts. The depositions taken upon such oral examination shall be taken down in writing by the examiner in the form of nalrative, un- less either party request that the examination shall be by ques- tion and answer ; and when completed, shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend : provided, if the wit- ness shall refuse to sign the said deposition, then the examiner shall sign the same ; and the examiner may, upon all examina- tions, state any special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, 838 EQUITY RULES SUPREME COURT or relevancy of the questions, and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. In case of the refusal of witness to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same shall be reported to the court by the exam- iner, when such order shall be made as may be deemed best. Notice shall be given by the respective counsel or sohcitors to the opposite counsel, or solicitors, or parties, of the time and place of the examination, for such reasonable time as the ex- aminer may fix by order in each cause. "When the examination of witnesses before the examiner is concluded, the original deposition, authenticated by the signa- ture of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in the 30th section of Act of Congress, September 24, 1789. Deposition of noiMresident witness. Where the testimony of non-resident witnesses is desired by either party, the court, in term time, or any judge in vacation may, on motion designating the names of such witnesses, ap- point an examiner to take such testimony, to whom the clerk shall thereupon issue a commission under the seal of the court ; and said testimony shall be taken on written interrogatories and cross-interrogatories, which written interrogatories shall be filed in the clerk's office at least ten days before the issue of such commission, so that the adverse party may have oppor- tunity to file cross-interrogatories. But the court or judge, for special cause shown, may direct that such testimony shaU be taken orally. 3 M. 72. Hule 65. Time for taking. Where the evidence to be adduced in a cause is to be taken oraUy, as provided in Eule ISo. 64, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time there- after within which the defendant shall take his evidence in de- fence, and a time thereafter within which the complainant shall DISTRICT OF COLUMBIA. 839 take his evidence in reply ; and no further evidence shall be taken in the cause^ unless by agreement of the parties, or by leave of court first obtained, on motion, for cause shown. Mule 66. Publication. Immediately upon the return of the commissions and deposi- tions containing the testimony into the clerk's office, publica- tion thereof may be made by the clerk. Bule 67. De bene esse. After any bill filed, and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's wit- nesses are aged or infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commis- sioners as a judge of the court may direct, to take the examina- tion of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. Bule 68. Form of last mterrogatory. The last written interrogatory to a witness may be substan- tially, " Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in ques- tion in this cause ? If yea, set forth the same f uUy and at large in your answer." CEOSS BILL. Bule 69. For dAscovery only answer to, and use of answer. "Where a defendant in equity files a cross bill for discovery only against the plaintiff in the original bill, the defendant to 840 EQUITY EULES SUPREME COURT the original bill shall first answer thereto, before the original plaintiff shall be compellable to answer the cross bill. The answer of the original plaintiff to such cross bill may be read and used by the party filing the cross bill, at the hearing, in the same manner and under the same restrictions as the answer praying rehef may now be read and used. KEFEEENCE TO AND PEOCEEDINGS BEFOEE THE AUDITOR Mule 70. AccovMt of personalty, of person deceased. Every decree for an account of the personal estate of a testa- tor or intestate shall contain a direction to the auditor, to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate are out- standing or undisposed of, unless the court shall otherwise direct. Mule 71. When matter referred, to he presented to auditor. Whenever any reference of any matter is made to the audi- tor to examine and report thereon, the party at whose instance, or for whose benefit, the reference is made, shall cause the same to be presented to the auditor for a hearing on or before the next rule day succeeding the time when the reference was made ; if he shall omit to do so, the adverse party shall be at Mberty forthwith to cause proceedings to be had before the auditor, at the costs of the party procuring the reference. Mule 72. Ti/me a/nd place of hea/rmg a/nd noime. Upon every such reference the auditor shall, as soon as he reasonably can after the same is brought before him, assign a time and place for proceedings in the same, and give due notice thereof to each of the parties or their solicitors ; and if either party fail to appear at the time and place appointed, the audi- tor may proceed expa/rte, or, in his discretion, adjourn the ex- amination and proceedings to a future day, giving notice to the DISTRICT OF COLUMBIA, 841 absent party or his solicitor of such adjournment. The auditor shall proceed with aU reasonable diligence in every such refer- ence, and with the least practicable delay, and either party may apply to the court, or a justice thereof, for an order to the auditor to speed the proceedings, and to make his report, and to certify to the court or judge the reasons for any delay. Bule 73. Heport not to recite facts. In the reports made by the auditor to the court, no part of any state of facts, charge, affidavit, deposition, examination, or answer, brought in or used before him, shall be stated or re- cited. But such state of facts, charge, affidavit, deposition, ex- amination, or answer shaU be so identified, specified, and re- ferred to as to inform the court what state of facts, charge, affidavit, deposition, examination, or answer was so brought in or used. Mule 74. Avditor's powers on heari/ng. The auditor shall regulate all the proceedings in every heaiv ing before him upon every such reference ; and he shall have full authority — To examine the parties in the cause upon oath touching aU matters contained in the reference ; And also to require the production of all books, papers, writ- ings, vouchers, and other documents applicable thereto ; And also to examine on oath vwa voce, all witnesses pro- duced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office, or by deposition according to the acts of Congress, or othervrise as hereinafter provided ; And also to direct the mode in which the matters requiring evidence shall be proved before him ; And generally to do all other acts, and direct aU other in- quiries and proceedings in the matters before him, which he may deem necessary and proper to the Justice and merits there- of, and the rights of the parties. 842 EQUITY RULES SUPREME COURT Rule 75. Witmsss hefore cmditor, commissioner, or exa/miner. Witnesses who live within the District may, upon due notice to the opposite party, be summoned to appear before the com- missioner appointed to take testimony, or before an auditor or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in. blank, and filled up by the party praying the same, or by the commissioner, audi- tor, or examiner requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attend- ance the same compensation as for attendance in court ; and if any witness shall refuse to appear, or to give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, auditor, or examiner, an attachment may issue thereupon by order of the court or of any justice thereof in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein contained shall prevent the ex- amination of witnesses viva voce when produced in open court, if the court shall in its discretion deem it advisable. Bule 76. Form of acGOtmling hefore the auditor. All parties accounting before the auditor shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the ac- counts so brought in shall be at liberty to examine the account- ing party viva voce, or upon the interrogatories", in the auditor's office, or by deposition, as the auditor shall direct. Mule 77. DoGumenta/ry evidence hefore auditor. All affidavits, depositions, and documents, which have been previously made, read, or used in the court, upon any proceed- ing in any cause or matter, may be used before the auditor. Bule 78. Creditor or clavmant eoaam/med. The auditor shall be at liberty to examine any creditor or DISTRICT OP COLUMBIA. 843 other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examination shall be taken down by the auditor, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary. Rule 79. Compensation of auditor. The compensation to be allowed to every auditor in chancery for his services in any particular case shall be fixed by the court in its discretion, having regard to all the circumstances thereof ; and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The auditor shall not be compelled to make out or return a report until his fees therefor be paid or secured to his satisfac- tion, unless the court to which the report is to be returned order it to be made out and returned without such payment or security. EXCEPTIONS TO EEPOET OF AUDITOK. B,ule 80. Report a/nd exceptions thereto. The auditor, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file exceptions thereto ; and if no exceptions are within that period filed by either party the report shall stand confirmed on the next rule day after the month is expired. If exceptions are filed they shall stand for hearing before the court, if the court is then in session ; or if not, then at the next sitting of the court which shall be held thereafter by adjournment or otherwise. Rule 81. Cost of frivolous exceptions. And in order to prevent exceptions to reports from being 844 EQUITY RULES SUPREME COURT filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs — the costs to be fixed in each case by the court, by a standing rule of the Circuit Court. DECEEES. Bule 82. Mistakes in. Clerical mistakes in decrees, or decretal orders, or errors aris- ing from any accidental slip or omission, may, at any time before an actual enrolment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. Bule 83. Form amd substcmce of. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin, in substance, as foUows : " This cause came on to he heard {or to he further Jieard, as the case may he) at this term, and was a/rgued hy counsel; and thereupon, ujpon con- sideration thereof, it is ordered, adjudged, amd deoreed as fol- lows, viz : " l^Here insert the decree or order. ^ Rule 84. Execution of decree far payment of money. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of fieri facias, or by sequestration attachment against real estate, goods, chat- tels, or credits of the defendant. May 17, 1873, 2 M. G. T., 127. Rule 85. Execution of decree for specific act. If the decree be for the performance of any specific act, as, DISTRICT OF COLUMBIA. 845 for example, for the execution of a conveyance of land, or the delivery of possession, or the delivering up of deeds, or other documents, the decree shall, in aU cases, prescribe the time within which the act shaU be done, of which the defendant shall be bound without further service to take notice; and upon affidavit of the plaintiff or his solicitor, filed in the clerk's office, that the same has not been compHed with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shaU not be discharged, unless upon a full comphance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and affi- davit, enlarging the time for the performance thereof. If the dehnquent party cannot be found, a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. JRule 86. F(yr ddi/oery of possession. When any decree or order is for the dehvery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. GUAEDIAN A.WD PKOC^HEIN AMI. Rule 87. Guardians ad litem to defend a suit may be appointed by the court for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves ; all infants and other persons so incapable may sue by their guardians, if any, or by ih&iv prochein a/mi; subject, however, to such orders as the court may direct for the protection of infants and other persons. EEHEAEIIS'G. Bute 88. Sow applied for. Every petition for a rehearing shall contain the special 846 EQUITY RULES SUPREME COURT matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not ap- parent on the record, shall be verified by the oath of the party, or by some other person. 'No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded if an appeal lies to the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. BILL OF EEYIEW. Time offilvng. No bill of review shall be filed but within two years after the entry of the decree or order, with the exception specified in the proviso to section 1008 of the Eevised Statutes of the United States. Aprfi 22, 1878, 3 M. G. T., 164. i2wZe 89. Practice in English Chtmcery. In all cases where these rules do not apply, the practice of the court shall be regulated by the present practice of the high court of chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local convenience of the District, not as positive rules, but as furnishing just analogies to regulate the practice. Rule 90. Oath or Affirmation. "Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn afBrmation to the truth of the facts stated by him. Mule 91. Verification of Bill, c&c. Every verification of a bill, answer, or petition, shaU be to the following effect: "I do solemnly swear [affirrri] that I have read {hea/rd read] the bill, answer, petition,'] by me sub- DISTRICT OP COLUMBIA. 847 scribed, and know tlie contents thereof, and that the facts therein stated, upon my personal knowledge, are true, and that the facts therein stated upon information and behef, I believe to be true." DIYOEOE. JRule 92. In suits for divorce of either kind, or for nullity of marriage, if the defendant fail to answer the petition, or if the facts charged in the petition are not denied in the answer, the court shall order reference to take proof of all the material facts stated in the petition ; but in no case shall such reference be made to a person named by either party. Bule 93. No divorce shall be granted for adultery unless the petition, duly verified, charge that the adultery was committed vdthout the consent, connivance, privity, or procurement of the pe- titioner, and that, after discovery of the offence, the petitioner has not voluntarily cohabited with the defendant. Utile 94. If the suit be for nullity of marriage on the groimd that the petitioner was under the age of consent at the time of the ma/rriage, it shall be averred in the bill that the parties thereto have not freely cohabited, as man and wife, after the petitioner attained said age. Mule 95. If the suit be for nullity of marriage on the groimd that the petitioner's consent was procured hy fraud, it must be averred in the petition that there has been no voluntary cohabitation between the parties as man and wife. Mule 96. If the suit be for nuUity of marriage on the ground of petitioner's Ivmacy, it must be averred in the bill that the 848 EQUITY RULES SUPREME COURT lunacy still continues, or that the parties have not cohabited since the petitioner's restoration to reason. Bule or. All biUs for divorce, or for separation, or for nullity of mar- riage, must be verified in the mode prescribed in Rule 53. The answer to the petition may or may not be verified, at the option of the petitioner. Bute 98. On reference to take proof of the facts charged in a petition for a divorce from bed and board, the examination of the pe- titioner, on oath or affirmation, may be taken as to any cruel or inhuman treatment alleged in the petition to have taken place when no witness was present competent to testify. Bute 99. The defendant in the answer may set up adultery of the petitioner, or any other matter which would be a bar to a divorce or annulment of the marriage; and if an issue be taken thereon it shall be tried at the same time, in the same manner, as the other matters of the cause. Bute 100. Pleadings, c&c, to he written, <&o., legibly. All pleadings and other proceedings, and copies thereof, shall be fairly and legibly written and endorsed with the num- ber and, title of the cause ; and if not so done the clerk shaJI refuse to file the same. Bute 101. Costs of Copies. The lawful fee for a copy of any paper on file in any cause or matter pending in the Supreme Court of the District of Columbia, furnished by the clerk to any party therein, shall be charged as part of the costs of the cause or matter and collected as such. February 19, 1877, 3 M. G. T. 20. DISTRICT OF COLUMBIA. 849 FORM OF BILL AND ANSWEE, ACCOEDING TO EULES lY AND 53. No.—, Docket 10. In the Supeemb Coukt of the District op Columbia, the day OF , 18—. In Equity. ( John Holford and Richard Davis, plaintiffs. Between < and ( Henry Hawes, defendant. To the Supreme Court of the District of Columtna holding an Equity Court for said District : The plaintiffs complain as follows : 1. They are residents of the city of Baltimore, in the State of Maryland, and are the legal personal representatives of Henry Baker, who died on the 7th day of May, 1867, having by his will, bearing date the 10th day of January, 1864, devised to the plaintiffs and their heirs all estates vested in him by way of mortgage, and having appointed tlie plaintiffs to be his exetfutors ; and the said will was, on the 1st day of June, 1867, proved by the plaintiffs in the Orphans' Court of the District of Columbia. 2. The above named defendant, Henry Hawes, is a citizen of the Dis- trict of Columbia, and being seized in fee simple of a house and premises — being No. 500 Pennsylvania avenue, between Fifth and Sixth streets. City of Washington — by deed bearing date the 1st day of June, 1864, and duly made and executed between and by the said defendant of the one part, and said Henry Baker of the other part, for the consideration therein mentioned, granted the said house and premises unto and to the use of the said Henry Baker and his heirs; subject, nevertheless, to a proviso in the said indenture contained, for redemption and reconveyance of the said house and premises, on payment, by said defendant, his heirs, executors, administrators, or assigns, to the said Henry Baker, his executors, ad- ministrators, or assigns, of the sum of $500, with interest thereon from the date of the said indenture, at the rate of six per centum per annum, on a day in the said indenture named, (in which payment default was made,) as by said indenture when produced will appear. 3. The defendant has from time to time made various small payments on account of interest due on the said deed of mortgage of the first of June, 1864; but a large arrear of interest, together with the whole of said principal sum of $500, is due and owing to the plaintiffs, as such personal representatives as aforesaid, on the security of the said mortgage. 4. On the 7th day of April, 1868, the plaintiffs discovered that the de- fendant intended to pull down the said house, and that he had advertised the bricks thereof to be sold as building materials, and that he had entered 54 850 EQUITY RULES SUPREME COURT into a contract with one John Smithers for the execution of the work of pulling down the same. 5. If the said house be pulled down, the said premises will be an in- sufficient security to the plaintiffs for the money due on the said mortgage security. 6. The defendant ought to be restrained from pulling down or injuring the said house, and ought to be decreed to pay to the plaintiffs, as such personal representatives a§ aforesaid, what shall be found due to them for principal, interest, and costs on the said security, on an account to be taken for the purpose, together with the costs of this suit, or to be fore- closed absolutely of all right and equity of redemption in or to the said mortgaged premises. 7. The defendant has in his possession or power divers hand-bills, con- tracts, books, papers, and documents, whereby, if produced, the truth of the matters aforesaid would appear. Prayer. The plaintiffs therefore pray as follows : 1. That an account be taken of what is due for principal and interest on said mortgage. 2. That the defendant may be decreed to pay to the plaintiffs, as per- sonal representatives of the said Henry Baker, what shall be so found due, together with the costs of this suit, by a short day to be appointed for that purpose ; or, in default thereof, that the defendant, Henry Hawes, and all persons claiming under him, may be absolutely foreclosed of all right and equity of redemption in or to the said mortgaged premises. 3. That the defendant, Henry Hawes, his servants, agents, and work- men, may be restrained by order and injunction of this court from pulling down, or suffering to be pulled down, the said mortgaged house, and from selling the materials whereof the said house is composed. 4. That for the purposes aforesaid all necessary accounts may be taken, inquiries made, and directions given. 5. That the plaintiffs may have such further or other relief in the prem- ises as the nature of the case may require. To which end, the plaintiffs pray for process against the defendant Henry Hawes, requiring him to appear and answer the exigency of the bill. [Frame this prayer as prescribed in Rules 23 arid 23.J The defendant to this bill of complaint is — Hehky Hawes. X. T., Counsel for plaintiff. DISTRICT OP COLUMBIA. . 851 M.—, Docket 10. In the Supreme Court of the District of Columbia, the dat OF , 18—. In Equity. ( John Holford and Richard Davis, plaintiffs, Between } and ( Henry Hawes, defendant. The answer of the ahove-named defendant, Henry Hawes, to the bill of com- plaint of the above-named plaintiffs. In answer to the said bill of complaint, I say as follows : 1. I do not know and cannot set forth whether the said plaintiffs are the legal personal representatives of Henry Baker or not ; nor whether he died on the 7th day of May, 1867, having, by his will, devised to the plaintiffs and their heirs all estates vested in him by way of mortgage, or appointed the plaintiffs to be his executors ; nor whether the said will was on the first day of June, 1867, proved by the plaintiffs in the Or- phans' Court of the District of Columbia; but I have reason to doubt that the facts are as in that behalf alleged in the said bill of complaint. I ad- mit that I have heard that the said Henry Baker died some time in the year 1867. 3. I admit that I was, on the first day of June, 1864, seized in fee simple of the premises in the second paragraph of the bill of complaint of the said plaintiffs mentioned. And I admit that the deed, in the said second paragraph of said bill mentioned, was of such date, and made between such parties, as in the said paragraph of said bill alleged, and that the same was executed by me. I believe that the said deed was not executed by the said Henry Baker in the said bill mentioned. I believe that the said deed was of or to the purport and effect in the said second paragraph of said bill in that behalf set forth ; but for greater certainty I crave leave to refer to the same when it shall be produced and shown to the court. The said deed was made under the following circumstances : The said Henry Baker was a bachelor, without any near relations, and for many years previously to the year 1864, and thenceforward to his death, had suffered from continual ill-health and infirmity. My mother, Sarah Hawes, was in his service as housekeeper from the year 1845 down to the time of his death, and was in continual attendance upon him, and he frequently, during that time, expressed to her his gratitude for her attention to his comfort in that his illness. I attained my age of 31 years in the year 1864. In the early part of that year my mother applied to the said Henry Baker to advance me the sum of $500 to enable me to enter business, which he agreed to do on having the repayment thereof, with interest, secured by the said deed of the 1st of June, 1864. 852 EQUITY EULES SUPREME COURT In the month of May, 1864, the said Henry Baker wrote, signed, and sent to me a letter, bearing no date, containing the words and figures fol- lowing: "All is arranged about the security you are to give. I hope I shall never have occasion to enforce it; and that nothing will compel me to change my intention of rewarding your mother and yourself for her long and faithful services to me," as by such letter when produced will appear. 3. I have never made any payment whatsoever on account of interest due on the said indenture, and I was never called upon to pay interest thereon by the said Henry Baker in his lifetime. My said mother died on the 37th day of December, 1867. Under the circumstances hereinbefore appearing, I submit that nothing is due on the said deed from me to the plaintifEs, whether as such alleged personal representatives or otherwise, but I admit that nothing has ever been paid on account of the principal money secured thereby. 4. I do not know and cannot set forth whether the plaintiffs did, on the 7th day of April, 1868, discover, but I admit that it is the fact, that I intend to pull down the said house in the said bill mentioned, and that I have advertised the bricks composing the same to be sold as building materials. I deny that it is true that I have entered into a contract with John Smithers, or with any other person, for the execution of the work of pulling down the same. 5. If the said house be pulled down, I admit that the said premises would be an insufficient security for the sum of |500, with interest thereon at the rate of 6 per centum per annum from the first day of June, 1864. 6. But I submit that I have a right to pull down the said house, and to sell the bricks composing the same as building materials, and that the in- junction awarded against me by this court on the 15th day of April, 1868, ought to be dissolved, with costs. 7. I have in my possession the said letter of the said Henry Baker, writ- ten in the month of May, 1864. But, except as aforesaid, I deny that I have in my possession or power, or in that of my solicitors or agents, solicitor or agent, various or any' handbills or handbill, contracts or con- tract, receipts or receipt, documents or document, papers or paper, relat- ing to the matters in the said bill mentioned, or any of them, or whereby, if produced, the truth of such matters, or any of them, would appear. X. Z., Solieitm- fw Defendant. HENRY HAWES. Verify the answer as prescribed in Rule 91. COMMISSION'S TO TEUSTEES KKD ALLOWANCE m LIEU OF DOWEK. From Alexander's Chancery Practice : Commissions. On sales under decrees or orders of the court the following allowances are made to trustees : 2d 300, 6 3d 300, 5 4th 300, 5 5th 300, H 6th 300, H Yth 300, 3 8th 300, 3 9th 300, 2^ 10th 300, 2i $21 00 18 00 $39 00 15 00— 54 00 12 00 66 00 10 50 76 50 10 50 87 00 9 00— 96 00 9 00 105 00 7 50— 112 50 DISTRICT OF COLUMBIA. 853 On the 1st $300, 7 per cent. do. do. do. do. do. do. do. do. do. - 7*50— 120 00 And 3 per cent, on all above $3,000, besides an allowance for expenses not personal. The above allowance subject to be m- creased in cases of postponement at the request of defendants, or of extraordinary difSculty or trouble from other circum- stances and to be lessened in case of negligence, at the discre- tion of the chancellor. » Table of allowcmee to a healthy woma/n m lieu of her right of dower in lamd sold under decrees : Under 30 years of age, one-sixth. Above 30 and under 35, - - - - two-thirteenths. one-seventh. two-fifteenths. one-eighth. one-ninth. one-tenth. one-twelfth. one-fourteenth. one-eighteenth. one-twentietL " 35 a 40, " 40 u 45, « 45. u. 51, " 51 u 56, " 56 (( 61, « 61 a ■ 67, " 67 a 72, " 72 i< 7^ « 77 . . OKPHANS' COURT EULES. Rule respeciMig Applications for Letters Testamenta/ry and of A dministration. Hereafter, all applications to this court for letters testamen- tary and of administration shall be in writing, duly sworn to, setting forth, in substance, the residence and citizenship of the petitioner ; the death and date thereof, of the person on whose estate the letters are desired ; his or her last domicil ; the esti- mated value of the personal estate, the character thereof, and where situated or being ; whether the decedent died testate or intestate ; the names of the next of kin, whether residents or non-residents, adults or minors ; and if minors, their respective ages, and such other facts as the applicant may deem necessary and proper in the premises. Upon the filing of such application the Eegister of Wills shaU issue a citation, to be served on all the next of kin of the decedent who may be over the age of fourteen years, residents of or to be found within the District of Columbia, commanding them to appear in this court on a day named in such citation, not less than seven days from the date of service, to show cause, if any they have, why letters of administration or testa- mentary, as the case may be, should not be granted as prayed in the petition. Should any of the next of kin, or persons entitled by law to the estate, be non-residents or not to be found, notice of such application to them shall be by publication in one or more newspapers printed or published in the city of "Washington, for such time and in such manner as the court may direct, setting forth that application for letters on the decedent's estate has been made, and that they, and all parties interested, appear on a day named in such notice, to show cause why the application should not be granted. The evidence of such publication to DISTRICT OF COLUMBIA. 855 be the afSdavit of the publisher of the paper wherein it was in- serted, or some competent person having personal knowledge of the publication. — Jan., 1874. Oua/rdiom^ Accovrnts. It appearing to the court that a former practice of allowing certain sums annually in gross for the maintenance and educa- tion of wards by their guardians, is detrimental to the interest of wards, and leads to their being brought in debt to their guardian, and is likewise open to abuse : It is this gUh day of March, a. d. 1877, ordered that the said practice is hereby ex- pressly abolished, and hereafter aU allowances claimed by guar- dians for payments made by them on behalf of their wards or their estates shall be sustained by vouchers in due form ; by regular books of account exhibited, or by claims made out and sworn to by the guardian and approved and passed by the court. , Minutes Orphans' Court, No. 13, p. 430. Delinquent Oua/rdicms, Etc. It is ordered, this fifth day of December, 1879, that when- ever any executor, administrator or guardian, shall have failed to present to the court at the Special Term thereof, held for the transaction of Orphans' Court business, an account of his administration or trust in the manner and form prescribed by law, or by the order or allowance of the court, a citation shall be issued forthwith to such dehnquent executor, administrator or guardian, to appear and exhibit such account. 3 Minutes, General Term, p. 468. RULES OF THB SUPREME COURT OF THE DISTRICT OF COLUMBIA, IN ADMIRALTY, IN ADDITION TO THOSE FBBSGRIBED BY THB SUPREME COURT OF THE UNITED STATES. Mule 1. SECUEITT BY LIBELLANT. No process in rem shall be issued, nor shall any appearance or answer be received, or third party be permitted to intervene and claim, except on the part of the United States, unless a stipulation in the sum of one hundred dollars shall be first entered into by the party, and at least one surety, resident in the District, conditioned that the principal shall pay aU costs assessed against him by the court. Rule 2. EXCEPTION AS TO SEAMEN SUING FOE WAGES. Seamen suing in rem for wages, in their own right and for their own benefit, for services on board American vessels, and salvors coming into port in possession of the property U- belled, shall not be required to give such security in the first in- stance. The court, on motion, with notice to the libellants, may, after the arrest of the property, for adequate cause, order I the usual stipulation to be given in these cases, or that the property arrested be discharged. DISTRICT OF COLUMBIA. 857 B,ule 3. WHAT STIPULATIONS AEE TO OONTAIN. All stipulations in admiralty causes shall be executed by the principal party (if within the district), and at least one surety resident therein, and shall contain the consent of the stipulators that in case of default, or contumacy, on the part of the prin- cipal or sureties, execution to the amount named in such stipu- lation may issue against the goods, chattels, and lands of the stipulators. Rule 4. INOEEASE OF SECUEITY. In all cases of stipulations in admiralty causes, any party having an interest in the subject-matter may move the court, on special cause shown, for greater or better security, giving the opposite party two days' notice thereof, unless a shorter time is allowed by order of the judge. Utile 3. DEPOSIT OF MONEY IN PLACE OF STIPULATION. Instead of the bond or stipulation provided for in the three preceding rules, the court may direct the deposit in court of such a sum of money as the court may consider a sufficient security in the premises. JStile 6. NOTICE OF ABEBST, AITO EETUEN OF PEOCESS. Notice of the arrest of property by attachment m rem on behalf of individual suitors shall be pubUshed and affixed in the manner directed by the act of Congress in case of seizures on the part of the United States, except when the judge, by special order, directs a shorter notice than fourteen days ; and except that instead of the substance of the libel a short state- ment of its purport may be given. Monitions, citations, and warrants of arrest shall in all cases be made returnable in four- teen days, except when the judge, by special order, shall desig- nate an earlier day. 858 ADMIRALTY RULES SUPREME COURT Rule 7. NOTICE OF SALE. Notice of sale of property after condemnation in suits in rem (except under the revenue laws and on seizure by the United States), shall be six days, unless otherwise specially directed by the decree of condemnation and sale. Rule 8. DBLrVERT OF PEOPEETY AEEBSTED, ON PAYMENT OF MONEY INTO COUET. In suits in rem for seamen's wages, and in all other actions m rem for sums certain, the claimant or respondent may pay into court the amount sworn to be due in the libel, with inter- est computed thereon from the time it was due to the return day of the attachment, and the costs of the officers of the court already accrued, together with the sum of $50, to cover further costs, &c. ; or, at his option, may give stipulation to pay such sworn amount, with interest, costs, and damages (first paying into court the costs of the officers of the court already accrued), and in either case may thereupon have an order entered in- stantly for the delivery of the property arrested without hav- ing the same appraised. Rule 9. DBLFVEEY OF PEOPEETY AEEESTED ON APPEAISEMENT. In all cases where property is arrested, the same may, upon application of the claimant, be delivered to him on compliance with the conditions prescribed as to ships by Rule 10 in admi- ralty, adopted by the Supreme Court. Rule 10. COSTS TO BE PAID BEFOEB DELIVBEY. No vessel, goods, wares, or merchandise in the custody of the marshal shall be released from detention, upon appraise- ment and surety, until the costs and charges of the officers of the court, so far as the same shall have accrued, shall first be paid into court by the party at whose instance the appraise- DISTRICT OF COLUMBIA. 859 ment shall take place, to abide the decision of the court in re- spect to such costs. Rule 11. APPOINTMENT OF APPEAISEE. Only one appraiser is to be appointed in suits by individuals, unless otherwise specially ordered by the judge ; and if the re- spective parties do not agree in writing upon the appraiser to be appointed, the clerk shall forthwith name, either party hav- ing a right of instant appeal to the judge from such nomination for adequate cause. Rule 12. EEFEEENCB TO AUDITOR. In cases of demands arising, not ex delicto, on a decree in favor of the libellant by default or on hearing, it shall be referred to the auditor to ascertain the amount due the libel- lant ; but reference may also be made in cases of tort or on allegations of incidental or consequential damages if desired by either party. Rule 13. EEFEEENCE TO ASSESSOES. Upon any sufficient cause shown, such reference may be made to assessors, or otherwise, according to the course and custom of courts of civil and admiralty jurisdiction. Rule 14:. DECEEE OF CONFIEMATION. Upon the coming in of the report of the auditor or assessors, a decree of confirmation may be entered, on motion, without notice, unless otherwise ordered by the court, or the report shall be excepted to, and in the latter case the exception shall be overruled or held abandoned, unless brought to a hearing at the first stated or special sessions of the court occurring next after the filing of the report. Rule 13. FAILURE TO TAKE PEOCEEDINGS ON EBPOET. If the libellant take no proceedings on the report within five 860 ADMIRALTY RULES SUPREME COURT. days after the filing thereof in open court, the respondent may move the court to dismiss the libel for want of due prosecution. Rude 16, NEGLECT TO PEOCBED WTTB. DISPATCH. If the promovent in a hbel or information neglects to pro- ceed in the cause with the dispatch the course of the court admits, the respondent or claimant may have the libel or infor- mation dismissed on motion, unless the delay is by order of the judge, or the act of the respondent or claimant. Four days notice shall be given of the application to dismiss the action. JRule 17. APPEALS. Appeals to the general term, from orders and decrees pre- pared in admiralty causes, shall be subject to the same rules and conditions that are applied to appeals from orders and de- crees passed at the special terms of the court sitting ia equity. Proceedings in Prize. Proceedings in prize shall be conducted according to the provisions of the act of Congress of June 30, 1864 (Stat, at L., vol. xiii., p. 306), and according to such rules as the court may hereafter prescribe. xvn. TABLES OF STATISTICS heiattng to thb SUPREME COURT OF THE UNITED STATES, COURT OF CLAIMS, SUPREME COURT DISTRICT OP COLUMBIA, CONTAIHINe The Names, Places of Birth, Residences in Washington, Dates of Com- missions, etc., etc., of the Justices and Officers of said Courts. 863 SUPREME COURT OF THE UNITED STATES. O ^ 3 ^ ^ n 1? a 4 s. < s a o ^^ a a la 3 *! ■si 1 g g 00 rn P'*' bfifc. SB CO 02 1^ § cm S 5 E^ "ot>'- " spaa r^ _ V D> » IS i-;.S;o ft .'^- CQ ^ OS S s'a .9 .a* ■I-' -a .a -H O m SUPREME COURT OF THE UNITED STATES. 863 ^ g "A s ! *rP^ oxj g m y ^ ^■^ g ^ -^ 1^ ■s "3 1 M ^ p^ $ 2o5 e 3'^ S ■ « 1° I & S i I I I 3 o t to _r !5i "Sua ■gfS Is as Poo go O ed ^ III CQ &: a Eh <» cj IS as op .5 .5 » u O+j OS S'd O tS M m Sj o 1«M a W" - tCQ* §■9 hS5 feSg ■ 260 Kaa OSS IBIS'S o « Eh IE 864 SUPREME COURT OF THE UNITED STATES. ■^ H CD p ■ H I— I P W W H O (^ O O P I n 1? 1 Hl^ ^1 6; 1^. ^1 a3 1 H ^ < m ^ s \ «" o 1 p^ •1 s & I i E .a n ^1 I 3 w 5 O s I .«! I I I o Pi <1 THE COURT OP CLAIMS. 02 o O o W ^ ^ ^ s 15 J3 1 4:3 1 o 1 4 4-3 a 1 w 1 -q u 1 ^ 1 K '& 1 1 s CO i d 1 1 I «- i 1 CO -M i o S3 OS 1 i a s u "2 1? g g s fi P ^ 1 t-5 o a n i B 2 "3 S < . 2 s 2 •s ^ is o '3 o e3 -? Sa 1 i 1 03 1 Ph £ £ £ -d 1 1 ■c C3 *3 c3 t .a o .g CQ 1 a C3 03 V 1 a P. s Ph i •§ 1 •i -2 1 .2 1 1 1 03 ^ 1 •1 o 1 a a Pt B i 1 n 1 |z; o O t— 4 O O |Z5 O g 5 § 4 ri ;8 w D a 02 o 1 s ^ s 1 ^ o ■3 ^ 1 3 ^ o g < i 1^ " 1 55 866 SUPREME COURT— DISTRICT OF COLUMBIA. fe= s ^ &: ^ K ja ;2i K 1^ s « ■qf £ 2 « 2 CQ CQ m n g t^ w hH 1 00 00 s •3 ii a ^ a 3 1^ a 1 Si A 1^ H n n a S tl ) 1. a !7i ■B d £ g •a H •■§ a rt t3 P I ^ ^ g e5 XVIII. TABLES OF STATISTICS RELATING TO THE CIRCUIT AND DISTRICT COURTS UNITED STATES. COKTAINING The Names, Residences, and Dates of Commissions of tbe Judges of said Courts, the Districts embraced within the various Circuits, and the Territorial Jurisdiction of each District, according to the Revised Statutes and subsequent Acts of Congress, etc., etc. 868 CIECUIT COURTS OP THE UNITED STATES. as •dPh Sg OS 03 o cQ o „ S > 9 C3 0) (J) Is is '3 oS ."§'5 g .20* O (D c3 O 3 o:s|o .S-gS B Hjg a S a ee.Srri F -^ 0° Big's O _e; eS o o O o tSis 1^ CO a •H fe 2 «^ i qOo^j pB-a'S E 5) s S so Jig OCO'^.d :bb'« i S 2 C Or"" H as oj 3 P OS &h3 •2 la «i Co C 00 n .«J EC CEt v 05^ g Sol's Sill "III I^MO B ^ « 5 fl u «• hH oTii § i- P3 gs ■& s . s S^H c a E" s « S c ^ g 1 ^^^ '4^ 1 ■Sn 1 1* "^ a EH .a o .9 o o o .a o o o HI a O .a o OS H o CIRCUIT COURTS OF THE UNITED STATES. 869 O P EQ « 15 9 ■S.SB ■a g A g A SSI'S ?!!«' E^ B en Ib!^I ||gn1 .siS'S IS n Xi EC II |3 > - g§ i^S 03 I 1-5 3 1^ I Is a Pm O o 1^ 870 DISTRICT COURTS— FIRST CIRCUIT. r/j W H < H m Q W H 1— 1 H g H H Ph g O fe 1— I M o rn H h- 1 u ^ t) 1-5 O O r/3 H S U \^ 1— 1 M H a) M P H w H IS CO Sot H4J 5 12; ta I g S 3 ^ f^ N ^TJ ^TJ. l§;r S85' sS°? £ ». • .2 a> fl" ■5^ O :l O-t" S iiJ eacQ M W o| -2-^ i-d ^ d 03 d a-d ■" o^ 2^ OTT oa) CD ooi CO oOi £^°; 602 - ii !0"-'a ■^—'Pt „ •S tH M| hS ^t -t^ B B c3 d^s *i ?a tB CD •|S •g 6"s (C Eh 1 1 « fi ^ S V . > d fee a Oj 3 1? a o= 1 ^ t; ^ a 00 5 M tj V ■g .g .g 1 1 a ■o 0) ^ CO fl i:] a o a 5 H ■«i ■g -g i ■a •S ,a ■3 & £ g t>> f^ fi< FQ o s CO g 4J s ■■s ^ ■g i i D |2i y. ■ o t-t H t3 O PS g .S'3 g s i § o 874 DISTRICT COURTS— FOURTH CIRCUIT. ^ p I— 1 o H H hA S <1 Fh 1— 1 n [2; O tj h- 1 m y fi ^^ 1^ K n H Ph H t> o n s Ph C03 a 1 lit ft ill sis III '^ a- ».§■&■§ . cm MB i IS 11 P 1 l| H 1 E 1 1 en c 1 i 8 Ra II "«^ 1 .03 bfi 1 g" is > 1 If r d o g ^ i i g s ja '-I ^ o •£ S S s" O ■ Tl >, ja ■s >H ^ o a o 3 g M 0) »^ 1 s 1 1-= w o 1=1. < s 1 5 ■ o 1 a 1 1 jd 1 e 2 s s & fi< CN a fi .■a >!, ;> > u a-. 2 |<5 bo o m g g O CO 4 a n ^ ^ ■H o i-j ^ In i S5 to i g g 1 DISTRICT COURTS— FOURTH CIRCUIT. 875 s s 1 § m id . n a© t= ■A^ if 1^ 1 ^IS ■3 ■9,^ A •= o e o !?S n ug a a § 2. S ■2 S „-S Bo §■< £0 S'S'? uH " --g J". &1ai J St. go too « S rt - ^^w^flo Ililllli^iil OS'S -u "•a" b'^S'^-S fO! OC C3 CO fa oj 3 3 1.2 •SO .„- I -s ^ ta 83 aj (U Ss 3,0 .sa § J3 O S o a |§ § c3 « C o ■3oS»° u o 0) -a CQ Q> 0) M O r^^ a) a) tn a B5 # t> a •C3 iz; I i o S 876 DISTRICT COURTS— FIFTH CIRCUIT. ^ B I— I Q I— I P W H did o S "to 5;'w^^ « s 03 BSOa.i3>o.2 tior^ in . C-ri- >^ CCB IB 3 2 fi 2 o.a >J «i-B oio Sos ajMr, .?''-'.S 1« o o s K g.2o" -o.-a^ s S ° ■ d I g i— irtS^t^'3 u Qj si 4302 0) ■3 ,rS as g«| , oi ^ SC aj o w .. 'O ,; S P xSS.JSm S w S ^ I— I ^ IIP II. Q DISTRICT COURTS— FIFTH CIRCUIT. 877 sal p:i^^**li """11 •i B S S &JJ3 03 ts e.2 I E-i O D O Hi to o i 878 DISTRICT COURTS— FIFTH CIRCUIT. o ^ I— I o (—1 p w H fin I— I O V H S a) O a (,".0 ■pia's o'S2f op S a " " 00 sa Jj^ d (o o « I !:|ZiP W Bdm e6s P-S ^ o S i'3 ^ » r-i -Xj - '3 s3 ■sg as of « oS 'J -' _a*^ O .S , a o ■= H ^ r;: aa., otja*^ "S^3 ""ts CcfS CO .60 ■s 03 O i3 OS ^ o 'S . « [E f O u 880 DISTRICT COURTS— FIFTH CIRCUIT. •I o s o S w fits o u i'^''-l^l al^'^Ssslgs- » GQ « ' (I °fi ea t> -Tn. O c3 - to eS -QJ . ^H n H w E4 DISTRICT COURTS— SIXTH CIRCUIT. 881 ^2 Ad o V -31 3a so 1° 4Abl •a- "1 ■a" .2^ Cb O _r"EI3 'H cos ^ci_ .§oSO»i^l3.SSiJ'Sa '^rM En -r* S y^ . p--^ mo So .2fe' S' +j o MO £1 S.2 "'ft fi o O M- .a" 5- Si "I S"; ' S oS S O > o " |g(Bp ^ ■"o" aJS- ^ I PHV — . — ' ^ aj -r P.2 ^ a W O o O DISTRICT COURTS— SIXTH CIRCUIT. 883 Km J 4d U OJiTjCi OgtEBg In Ha 'S 2 - O sd S .aw ;S S «« « I •Ht! «^ «+J 0)5 ( ggs >±3 O >.s "fell's .a K 0) d C ■O S 9 a> "^ ?v K-J? -ss Soc' MO 9 s , rt 03 & '- -f; 13 o g C 03 O "^ *^ III! Hi^-SE-So ■a so „ .££■-' CO oi 'S|o=Q«| M^ 00 ait la' ) «■' <1H T=i 9 -W : g £^ t- fl ?^ u coo X » o Sfea«=« feel's ».S in O oh S S SalS^fl -Kg 2^ P5 r £ i^ PI cri CO o O ph >. ho: M g ■o^ ^ P DISTRICT COURTS— SEVENTH CIRCUIT. ■StS 9« OtO 2"3^ "a ■■3 1'g •a u ■•SM, SmS: OtoCO .CD "§.£153 •a s ^ g « 1=1 p QQ ■ag Wa- ■ " fe 3 y 'SO ■a pja < ° u S S H o ^ C7S S'd g o rg a 13 hl-a s ' " o -rt 3 =•9 B3 S.a C CD t/i ^ B CS 1 § Eh s J ri fi P5 W < &^ g H M S a D U IS CD D 886 DISTRICT COURTS— EIGHTH CIRCUIT. M h-l |2^ P ^ ^ 1— 1 o H g B 1-1 P^ O |25 o m 1— 1 OQ w o w sg 02 O .g M I » .a g 00 ef^'"' H o « rt <|£l.S-a.S|S3 « 4 s^c^ «" 12 -iH ^- M H TH ja fl^M >; .a " S°bS " 93 u M'p^ d OS O oQ :*'5. SI CD (3 .M q; "^ fl W o,B« t^ cT ■cl«fe V COr-l J.S « J. ■si g 2 g Big's oHSftS ■ES.S3 SiSrS o.S opQO e DISTRICT COURTS— EIGHTH CIRCUIT. I to t-H W I— I o 1—1 p 1-5 w h- 1 ■§5 as Or" a (U.H I'* E a as fiS.S 9^H ' O" O o ** S^ iS§|£ 11"; pis? ^ «^5 fl+3+J H ^^i^ :Sssa5g«|j o s a "'"' 2 s (S o o 0-43 p M 5°^t;sgi« ii _•■>■ ^ ia ,JW aJw^T CO § 'fM •J3B UO^ pq cQ ■3" so OJ3 (H fi ^ g & i-l n ^ CO W P3 m H Q § H CQ o 890 DISTRICT COURTS— NINTH CIRCUIT. w H <^ H m P W H P O w R W O H 1-5 Pm H ^ O s 1— ( W M P ^J o W o H H H ^ M H P^ § § "1 5 a,-, Bl^ « E3 CO -& pH fd b^ *£-* go d o a e o O g O ■■B coSoJ I la I 3 H fa- HS g § f9 i XIX. TABLES OF STATISTICS RELATING TO THE CLERKS AND TERMS OF COURT or THE CIRCUIT AND DISTRICT COURTS OP THE UNITED STATES. Giving the names of the Clerks of the Circuit and District Courts in each Distiict, the Places where the Clerks' Offices are situated, and the Times of Holding all the' Circuit and District Courts in the United States, taken from the Revised Statutes and subsequent Acts of Congress, &c., &c. 892 CLERKS AND TERMS— FIRST CIRCUIT. O rjl O o H O I— I B P is H P H H O Ph W p m O I— I Fq Ph O o aT M o P5 O >§ S""S so S'ISg ^13 « 0) aj - P g ,«« sill t- a o togs g ho & • 5 OfrS an .S-2 0S o3o feci g CO a^H ct«CD IS ■a O a) ^ "So >§>« atjo " ED M ■ -5-0 a O oij :sss "Coo 3 ^ ■ go .11 1: « t, a 3^2 "SS d lis |Sll 03 03 a. 3 ^ H ^ Sf m i-- -Js? ■■« --as 'Scd a> bo - si i'S- Sofia's .gl&.§'S^'|i|'^g ■,J:^+3 Q> al-3 53 aiH O^Sw s » 9 S aj o _cOtn ?5 >^ Sf^i 00 ess h3 Si' H U . o s MS b £ J o 1.^ 894 CLERKS AKD TERMS— SECOKD CIRCUIT. p Q I— I O o P o o ^ (u ;h d h a> o a"53 SIS Si: nSS a o S" rf" S 63 2 gab's": 'M ,a? "d Id's -a' g^lilf +^^ m « * "^ ga.TjftgO' gg tnl I: luff's s_» S 2; O fl "^ I'^'SI'SjS &< CI - o^ g6« 1^ o CLERKS AND TERMS— THIRD CIRCUIT. 895 1 f 3 •nday in January and third in Jnly at Brie; first in May and third ittonday ler, at Pittsburgh ; third in Jnne and first Mon- ctober, at Williarasport. tatutes (Second Edition), 100.] ^m lot-i o *^ 0» If = S g ^S 1 III lf|3 .si 11 Eh li ■St r i^ 1 If .tn . 3 ■a a rii m B •do-Mgg- 02 n s"s s d II. 2 1 i Xi •r-J 11 & s a 1 4A ^ fl P ^ dSg g n 02 s WO 1^ oS aj s .s II S 1 1l 1 O 6 i ^i?^ '-(0 fS 1-3 sf^^cQ O 1 g s s s @ 1 g III Ij HI- 15HS •si II ■g'OgPHgSS.ri 1 1 1^0) d ^ li. 1 3 p. i 1 1 1 1 •Saj* £ ^ g ^1 ^ g ^ 1 1 < o i4 i P s gaj 03 CO a poi P. ^>« MO •■■3 "in (1| i^H' 03§a.§&lcl&c|'S^'S3 'nStH.aS'oa «£•§ og »=»*^aj 5 cc" g dj a . 5S o-a "wA ,« 3d<=C 2 ^ ■■a tg O a e8« ta (HI n ■*e irH ^^ft lllp I 03 «W O « oats "^ c " =s o aO . oS_,ja oo , lis ►J ft H 3 « t: a 00 ff fc> a ,K a'' gSo .2 «M m . CO iT ■a*-.£f a o I s |25 12; B 5) = 1-1 ci on P4 Pi H o: IS H 01 w H M Si H O 900 CLERKS AND TERMS— FIFTH CIRCUIT. OS'S i2 ^.f- ■fe.2 P. |o« Sag §§« .§ = « en Q) ^ O > 3 H§ ^ 5 « to ofi * £3 eS-«! f-O 3rH E 5, ■3-gS S=a ^^ -*J J3 en Aj ^ til) isM ^<^ v.a ^>^ 00 . S o I « O rt fi ^ 5 w ^ ed ^ !5^ . p is n 50 .a s p ai f^ "1 P,XA hem triot. s B % . .a n do R si CLERKS AND TERMS— SIXTH CIRCUIT. 901 DflB safl la m « 'i OS . P §■§ OS .r- 03 .b CO OS £.9 O 3 SCO O 3 i-d p.»ca & < ■SfS gs B" Q Bus n o H 5 •dS ^®£^ 9 Fh v a !:°ls.i IS ". boT CXai bo a '3 •^ « S o aj 'Hi!"! ■gRS SB'S* tg o o a 5 13° coo O W ij'-' f in f o 09 si (0 IP 902 CLERKS AND TERMS— SIXTH CIRCUIT. s ^-^ of ^ 1 oc m c5 ^ g 3 5 ^ DO ^1 ^6 CQ IS I 2- 1° 15 it < ^" t" s (i5 <1> 1 > t-"A ut M ^ -■a 1 1 ■ 53 d e of ; Court rk. 53 'So n CO is HO ■Si' c: ^ til] c 5 & 1 i ■c 1 gf 13 E*- c"® ef i ^ 1 3 !1 3: 3^ "a 3 5 +f'~:' I" ■as .2 ^ I ■o5 ■33 =n Hi 1 "3 1 y 03 a C! >. OS 11 ill a. 111 c| SI- &.S ^^ assy's ■So'i 1 p. s "Sir +ra> la -2' V a) 1 1 gfe d3 ■3 Iz; 4 W % t * [fi « -r (u '^ oa B. I Hoi Sn *3 rt OS t t w p . fen W w R 904 CLERKS AND TERMS— SEVENTH CIRCUIT. '5' g.a -s 1 •13 Km H^ ^&_l fi ll P OB o o-d l| *-' 0'H-Su_,1-1 "5 CD g'O p. 1- Mil il 1 53 limits r 1 t/2 f-, i i 5 1 gs a' 1 P PI ■§« -rt OS s O ¥ « O CD ^ 00*2 goH ogoS li § 1 5» ! 1^^: DB3 td . la € 1^ il to " i ^M g "5 s s il il 1 s a 1 CLERKS AND TERMS— SEVENTH CIRCUIT. 905 (3°« ■JSm IBIS'S gCQ ,ce a> "OS M ^ s e ^ to OJ - ^ JS Q) OS o d, b'S P.u'S - O ti Qj a xJ - fei— 'o.b «^ s g o OS ■is 9 3 §1 .«b n la o o jaJSV^of^ OS 5 E S%S, ..2 a"" '§•3 .g ^ « g *^ '"I a« SB'S" 1^ o o fe .2 SI e.« 906 CLERKS AND TERMS— EIGHTH CIRCLTIT. la £0 P o a^. ft, tL ill S S =3 go-g ■~ ^rn ea ^ - CO, O CD'S . g£-S Q o^ - co^ b. to CD 03 g t> J^ ^ ■H -d IJ 5.S as rria ;^^ Iff •1?!& o 5m ON Ng O .53EH,a3Sfri"S< N a o III III in S-a „ 3 « a ga s •Sfl s '^'^ ■ =^«r &^&§ ^ 03 t,^ 3 » S 9 1 1-5 ' is • ■a Sgo . 7 a '?,3.6©sa S ■s S-S'S 1.5 5 s g° o &. J li ?5 -d -H a.2o gam . 00 . I g ^A a Pn ga n O OS 1^ ►J •a O ■4'B .a . p O si-0 S3 o 09 CLERKS AND TERMS— EIGHTH CIRCUIT. 907 ^ C O eJ pin §'^ R & ■fa*-* ii*^ ^'»-l*a*-'_. g^>.J« .2 a bg t B 'g to " jets «ia) S ^ aj i'S-s'S „.£: (U 03 H N 09 :s o lu lis 1 'C _- ^^ aT 03 HH « E"=a' ma CO go's (O +j e3 (H W " o ^£ >Sa 3 S 5 n . cf3 — B W Eh S Wo § • M His s 1^ » a >^"o 30 a 3S« _^ fi H - « t< & e03>-3 S3 B !>,•« a S^t; ^Jfia3«2_ B£Sh^S"3^ g8S|>S|3 m & -B © ^ :: la <2 g& CO g- *'-' fa si n ft , 0° B i3 s . Bo WO to (en S I*' < to >5 ■3 § ij c o E c3 O ^ §! "of 02 S I 1§i (Zl Jj -* s - gag s#a |.a;| P4 o'sa o O "tic* fjS Its E fi- 02 g .2g|s> o gs l^a — ^ o»^ 5& 14 S£Ef I |2! XX. TABLES OF STATISTICS KELATINQ TO THE COUETS, CLEEKS, AND TEEMS OF COUET TEEEITOEIES. Giving the Karnes of the Judges and Clerks of said Courts, the Location of the Clerks' Offices, the Territorial Jurisdiction of each District in each Territory, and the Terms of Court, compiled from the Register of the Department of Justice. 912 JUDGES AND JURISDICTION ■^ O . «"" ■ytmS ill ■Co," °i g3 ■p.i .5«" flis Si H r =3 p fl i'^ 2*3 Si "§« gn 1 ^ •sa g^ 11 bos so S s I I n = B -a gj gp. « 1, „-'=' d » >< 5 ■< 3 ^3 is bo .a I? 5« -'O S3 55 o ■^>< S>< "T" 11 II n ^ fco ^ n»s ill SIS §1 ►Jo gs MS pa,g PS O aS 1-3-3 4 fl o o, H Ph S.5 W s^ i 4S ci o K S ^ M3 EH a 5 I OS ■sj oS 03^ P.&H CEH o o o W a<) fig 3 &b 2. ^ F a is Sa (-1 m 6^ 5'« $> Bo NO X p. o-S IE SI Ixjl-j'- &< a HE) :1 o g o o < Q CLEEKS, TERMS, &c., OP TERRITORIAL COURTS. 917 «JOS m a D ^ £"0 S3 qS'oio'^ 9 ?* B o ||g.a« ^'^ !=" 9 " ® t^ o ° .- §•2 oa , ■*irT3 CO o ^-a &..« Sc-S S"3-s oS a e*"^ S ^2 -SI rt cj 03 eg a .g . a) o cos B'Ej ^ to ^1 SB to. <5 0T3 §5 O o H.H 03 ^2 d'S K5 ^1' PS«3 4 5 h^i? s iiO >» C3 CO ^ o CO § » . J , u € s 3 g o -w CQ s^ 5? 1 g h J3 > -O 1 H 1 o 1 il. s1 go S.2 s '^E s^ «l n «R in 1 o o| 1-3 , s 6 "C fe v H s ■s 3 c3 > !zi INDEXES. TABLE OF INDEXES. Page Index No t. — For the General Rules of the Supreme Court of the United States ... ... 935 Index No. 3. — For the Regulations of the Supreme Court relating to Appeals from the Court of Claims, and for the Rules of the Court of Claims. ...... 959 Index No. 3. — ^Por the Rules of Practice in Equity, adopted by the Supreme Court of the United States .... 969 Index No. 4. — For the Rules of Practice in Admiralty, adopted by the Supreme Court of the United States . . . 983 Index No. 5. — For the Rules of the Circuit Court of the United States for the Southftrn District of New York . . 999 ludex No. 6. — For the Rules of the District Court of the United States for the Southern District of New York, other than in Prize Cases ....... 1039 Index No. 7. — For the Rules in Prize Cases, of the District Court of the United States for the Southern District of New York. 1047 Index No. 8. — For the Rules of the Circuit Court of the United States for the Eastern District of New York, in Cases at Law ........ 1058 Index No. 9. — For the Rules of the Circuit Court of the United States for the Eastern District of New York, on Appeals . 1067 Index No. 10. — For the Equity Rules of the Circuit Court of the United States for the Eastern District of New York . 1073 Index No. 11. — For the Rules of the District Court of the United States for the Eastern District of New York, in Cases at Law 1079 Index No. 13.— For the Admiralty Rules of the District Court of the United States for the Eastern District of New York . 1089 Index No. 18.— For the Rules of the Circuit Court of the United States for the Northern District of New York. . . 1099 Index No. 14.— For the General Rules of the District Court of the United States for the Northern District of New York . 1109 922 TABLE OF INDEXES. Page Index No. 15. — For the Admiralty Rules of the District Court of the United States for the Northern District of New York . 1131 Index No. 16.— For the Rules of the Circuit Court of the United States for the District of Connecticut . . . 1145 Index No. 17.— For the Rules of the District Court of the United States for the District of Connecticut . . . II53 Index No. 18.— For the Rules of the Circuit Court of the United States for the District of Vermont .... 1161 Index No. 19.— For the Rules of the District Court of the United States for the District of Vermont .... 1171 Index No. 20.— For the General Rules of Practice of the Supreme Court of the District of Columbia .... 1177 Index No. 21. — Forthe Rules of the Supreme Court of the District of Columbia, in Appeals from the Decisions of the Commissioner of Patents ....... 1189 Index No. 22. — For the Rules of the Supreme Court of the District of Columbia, in Equity Cases .... 1195 Index No. 23. — For the Orphans' Court Rules of the Supreme Court of the District of Columbia ..... 1205 Index No. 24. — ^Por the Rules of the Supreme Court of the District of Columbia, in Admiralty, in addition to those prescribed by the Supreme Court of the United States . . . 1211 INDEX No. 1. JOB THB GENEEAL KULES SUPREME COURT OF THB UNITED STATES. Foe Table of Indexes, see Front of Volume, and also AT Beginning of Indexes. INDEX NO. 1 rOR THE GENERAL RULES OP THE SUPREME COURT OF THE UNITED STATES. ABATEMENT. Case to abate if representatives of deceased party do not appear within a certain time, etc. (Rule 15, Clause 3), 131. Provisions respecting, in cases where opposite party was dead at the time of suing out the writ of ervor or appeal, having no represen- tative within the jurisdiction of the Court which rendered the final judgment or decree, but having one in some other State or Territory (Rule 15, Clause 3), 133. ADJOURNMENT. Provisions respecting adjournment of Court (Rule 37), 314. ADMIRALTY. (See. also Maritime Cases and Jurisdiction.) What record shall contain in Admiralty and Maritime cases, where Court below has found facts, and power of review is limited to questions of law in record (Rule 8, Clause 6), 84. New evidence in the Supreme Court must be taken by Commission (Rule 13, Clause 3), 113. From what Court such commission to be issued (Rule 13, Clause 3), 113. Commissions not to issue except on interrogatories to be filed by the party applying for the same, and on notice (Rule 13, Clause 3), 113. Authorities in cases of new evidence, and further proof other than Prize, under Rule 13 (Rule 13, Clause 3), 118. No objection to be taken to certain papers found in record in Admiralty cases, unless objection was taken below and entered of record, etc. (Rule 13), 130. Interest not allowed in cases of Admiralty unless specially directed by the Court (Rule 33, Clause 4), 170. 926 INDEX NO. 1 GENERAL RULES ADVANCINa CAUSES. Criminal cases may be advanced by leave of Court on motion by either party (Rule 36, Clause 3), 303. Cases once adjudicated in Supreme Court on merits, and again brought up by writ of error or appeal, may be advanced by leave of Court on motion (Rule 36, Clause 4), 305. Revenue and other cases in which the United States are concerned, and involving matters of general public interest, may be advanced on motion of Attorney -General (Rule 36, Clause 5), 305. Motions to advance causes must be printed. Provisions respecting what they shall contain (Rule 36, Clause 6), 306. Cases under Sec. 5 of Act of March 3, 1875, will be advanced on motion. Proceedings respecting same (Rule 33, Clause 3), 337. AFFIRMANCE. Motion to affirm may be united with motion to dismiss a writ of error or appeal on ground that the writ or appeal were taken for de- lay only, or that the question on which jurisdiction depends is frivolous (Rule 6, Clause 5), 58. Certain costs to be taxed against the party against whom costs are given on affirmance (Rule 10, Clause 7), 108. Judgment or decree may be affirmed, when no counsel appears and no brief has been ffied for plaintifE in error or appellant (Rule 16), 134. On affirmance of judgment on writ of error, interest to be calculated and levied below from date of judgment until paid, at same rate that similar judgments bear interest in courts of State where judg- ment was rendered (Rule 38, Clause 1), 160. Similar provisions respecting decrees in Equity (Rule 33, Clause 3), 167. Costs allowed defendant in error or appellee on affli-mance (Rule 24, Clause 3), 176. No costs allowed for or against United States on affirmance (Rule 34, Clause 4), 179. AFFIRMATION. (See Oath.) APPEAL. (See also Writ of Error.) Motions to dismiss, except motions to docket and dismiss under Rule 9, how submitted (Rule 6, Clause 4), 57 ; time for sei-vice of notice of motion and brief (Rule 6, Clause 4), 57; evidence of such service (Rule 6, Clause 4), 57. Motion to affirm may be united with motion to dismiss on ground that appeal was taken for delay only, etc. (Rule 6, Clause 5), 58. For record on appeal, see under writ of bkror, and (Rule 8, Clause 9), 65. A copy of opinions ffied, to be annexed to and transmitted with record on appeal (Rule 8, Clause 3), 73. Original papers to be transmitted to Supreme Court for inspection in proper cases. Provisions relating to same (Rule 8, Clause 4), 76. UNITED STATES SUPREME COURT. 927 APPEAL— ( Continued). Provisions for docketing case and filing record when decree is rendered 30 days before commencement of term (Rule 9, Clause 1), 87 ; also when decree is rendered less than 30 days before commencement of term (Rule 9, Clause 1), 87. Provisions for proceedings by appellee to docket and dismiss, if appel- lant fail to docket case and file record in time (Rule 9, Clause 1), 87, "When the appearance of counsel for party docketing case shall be entered (Rule 9, Clause 3), 98. Time extended respecting appeals from certain States and Territories (Rule 9. Clause 4), 100. Original transcript on appeals to be taken by clerk to printer (Rule 10, Clause 4), 106. Copies of certain original papers to be made by Clerk for the printer (Rule 10, Clause 4), 106. Record to contain translation of papers in a foreign language, or it will not be printed, but remanded, etc. (Rule 11), 110. Proceedings where party dies pending appeal (Rule 15, Clause 1), 138. Proceedings of one party where, at the time of taking the appeal the other party is dead and has no proper representative within the jurisdiction of the Com-t which rendered final judgment or decree, but has one in another State or Territory (Rule 15, Clause 3), 132. May be dismissed, or record opened and decree affirmed when no coun- sel appears and no brief has been filed for appellant (Rule 16), 184. When case brought up on, may be submitted,etc. (Rule 30, Clausel), 139. Provisions for advancing appeals once adjudicated on merits and again brought up (Rule 26, Clause 4), 305. Dismissal of in vacation, etc. (Rule 38), 315. Under Sec. 5 of Act of March 3, 1875, time when they must be made returnable and served (Rule 33, Clause 1), 335. Duty of appellant, respecting docketing case and filing record under Sec. 5 of Act of March 3, 1875 (Rule 33, Clause 3), 236. Return day, etc., under this Section extended in cases from California, Oregon or Nevada (Rule 33, Clause 5), 339. APPEARANCE. Of counsel for party docketing case, when entered, etc. (Rule 9, Clause 3), 98. Where death of a party pending a writ of error or appeal is suggested of record the parties are to appear within a certain time, etc., else case shall abate (Rule 15, Clause 3), 131. Where representatives of deceased party do not appear by a certain time in certain cases, case to abate (Rule 15, Clause 3), 138. Proceedings where no counsel appear for plaintiff in error or appellant, when case is called (Rule 16), 134. Proceedings where there is no appearance for either party when case is reached (Rule 18), 188. 928 INDEX NO. 1 GENERAL RULES APPEARANCE— ( Gontinued). A printed alignment filed for one or both parties wlien a case is reached, is the same as if there were an appearance by counsel (Rule 20, Clause 3), 143. APPELLANT. Duty of, to docket case and file record within time prescribed (Rule 9, Clause 1), 87. Not entitled in any case to docket case and file record after case has been docketed and dismissed, unless by order of Court (Rule 9, Clause 1), 87. Time to docket case and file record, etc., extended in case of appeals and writs of error from certain States and Territories (Rule 9, Clause 4), 100. Case stands for argument at the term if appellant files the record and dockets case within the time limited by Rule (Rule 9, Clause 3), 97. On docketing case and filing records to give undertaking to Clerk for his fees (Rule 10, Clause 1), 101. Proceedings oy defendant when no counsel appears and no brief is filed for appellant (Rule 16), 134. Argument will be heard on behalf of the appellant, when defendant fails to appear and case is called (Rule 17), 137. Case will be dismissed at cost of appellant when there is no appearance for either party when case is reached (Rule 18), 138. Case will be dismissed at cost of plaintiff when called at two successive terms and neither party is ready at second term (Rule 19), 139. To file twenty-five copies printed brief six days before case is called (Rule 31, Clause 1), 143. "When default is made by, respecting his brief under the 31st Rule, case may bo dismissed on motion (Rule 31, Clause 5), 157. Entitled to open and conclude argument (Rule 33, Clause 1), 1.58. Costs allowed him on reversal unless otherwise ordered by Court (Rule 34, Clause 3), 177. No costs allowed for or against United States (Rule 34, Clause 4), 179. APPELLEE. Entitled to have case docketed and dismissed if appellant fail to file record and docket case within time prescribed by Rule on produc- ing a certain certificate (Rule 9, Clause 1), 87. May himself docket case and file record (Rule 9, Clause 2), 97. If lie do so at any time within the term after time limited to appellant to do so, case shall stand for argument at the term (Rule 9, Clause 2), 97. When entitled to have appeal dismissed or open record and pray for affirmance (Rule 16), 134. Wlien he fails to appear, Court may hear argument on the part of plain- UNITED STATES SUPREME COURT. 929 APPELLEE— ( Continued). tiff and give judgment according to right of the case (Rule 17), 137. To file with the Clerk twenty-flve printed copies of liis argument at least three days before case is called (Rule 31, Clause 3), 150. Will not be heard if he is in default respecting his brief under the 21st Rule, except on consent of his adversary and by request of Court (Rule 31, Clause 5), 157. Entitled to costs unless otherwise agreed by parties when suit dismissed, except for want of jurisdiction (Rule 34, Clause 1), 173. Costs allowed on affirmance of judgment unless otherwise ordered by Court (Rule 34, Clause 3), 176. No costs allowed for or against United States (Rule 34, Clause 4), 179. ARGUMENT. (See Brief; Hearing.) Of motion, time for (Rule 6, Clause 3), 56. Printed arguments must be submitted on motions to dismiss writs of error and appeals, except motions to docket and dismiss under Rule 9 (Rule 6, Clause 4), 57. Further argument on the subject will be ordered if desired (Rule 6, Clause 4), 57. Copy of such printed argument must be served on adverse party or his counsel, time therefor (Rule 6, Clause 4), 57. Arguments will not be heard on Saturday, except for special cause (Rule 6, Clause 6), 61. One copy printed arguments to be deposited in Law Library by Clerk (Rule 7, Clause 3), 63. "When case stands for argument at term, etc. (Rule 9, Clause 2), 97. Proceedings when defendant fails to appear, and argument is heard on part of plaintiff (Rule 17), 137. Case will be dismissed at cost of plaintiff when called for argument at two successive terms and neither party is ready, etc. TRule 19), 139. When and how cases will be submitted on printed arguments (Rule 20, Clause 1), 139. When printed argument is filed for one or both parties when case is reached, it is the same as an appearance by counsel (Rule 30, Clause^ 3), 143. Where case is argued orally on behalf of one party, no printed brief for the other party will be received unless filed before the argument begins, and case will be considered and decided upon the ex parte argument (Rule 30, Clause 3), 142. No brief or argument will be received through Clerk or otherwise, after case is argued or submitted, except upon leave granted by Court, etc. (Rule 30, Clause 4), 143. No case will be taken up for argument within three days next before the day fixed for adjournment (Rule 37), 314. When petition for re-hearing will be heard (Rule 30), 239. Provisions respecting form and size of printed arguments (Rule 81), 335. 59 930 INDEX NO. 1 GENEEAL RULES ARIZONA. Provisions as to docketing case and filing record In writs of error and appeals from (Rule 9, Clause 4), 100. ASSIGNMENT OF ERRORS. (See also Errors and SpecificaUm of Errors.') A true copy of same to be returned by the Clerk of the Court below with the writ of error (Rule 8, Clause 1), 65. Where there is no assignment of errors, as required by § 997, Rev. Stat., counsel will not be heard except at the request of Court (Rule 31, Clause 4), 153. ATTORNEYS AND COUNSELLORS Of Supreme Court, requisites of admission (Rule 2, Clause 1), 6. Form of oath or affirmation of (Rule 3, Clause 3), 9. Where commission is issued to take new evidence in Admiralty and Maritime cases in Supreme Court, attorney on opposite side entitled to certain papers, etc. (Rule 13, Clause 2), 113. Arguments filed on submission to be signed by (Rule 30, Clause 1), 139. May sign and file agreement in writing for dismissal of case in vacation. Provisions respecting same (Rule 28), 215. ATTORNEY-GENERAL. Certain cases may be advanced on motion of, etc. (Rule 36, Clause 5), 205. ATTACHMENT. When and against whom to issue to compel payment of Clerk's fees, etc. (Rule 10, Clause 8), 110. BILL OF EXCEPTIONS. Not to contain charge of Court at large upon any general exception (Rule 4), 14. Party excepting shall state therein distinctly the several matters of law excepted to (Rule 4), 14. Such matters only to be inserted therein and allowed by the Court (Rule 4), 14. To be contained in record in admiralty and maritime cases, etc. (Rule 8, Clause 6), 84. BONDS. (See Supersedeas.) BRIEFS. (See also Argument and Searing.) Printed briefs must be submitted on motions to dismiss writs of error and appeals, except motion to docket and dismiss under Rule 9 (Rule 6, Clause 4), 57. When served on adverse party or his counsel (Rule 6, Clause 4), 57. UNITED STATES SUPREME COURT. 931 BSIEFS— (Continued). One copy printed briefs to be deposited in Law Library by Clerk (Rule 7, Clause 2), 63. Proceedings by defendant when no brief is filed for plaiutiflE in error or appellant wbeu case is called (Rule 16), 134. Copies printed brief to be filed by counsel for plaintiff in error or ap- pellant, before case is called, and when (Rule 21, Clause 1), 143. One copy same to be furnished to each opposing counsel engaged (Rule 31, Clause 1), 143. Provisions respecting the contents of said brief (Rule 21, Clause 2), 146. Copies printed brief of defendant in error or appellee to be filed with Clerk within certain time (Rule 21, Clause 3), 150. His brief to be of a like character as that required of plaintiff in error or appellant, but no specification of error required, and no state- ment of case unless, etc. (Rule 21, Clause 3), 150. Proceedings when plaintiff in error or appellant is in default respecting brief under the 21st Rule (Rule 31, Clause 5), 157. Proceedings when defendant in error or appellee is in default respect- ing his brief under 21st Rule (Rule 21, Clause 5), 157. Where no printed brief or argument is filed and no counsel appears for one party, only one counsel will be heard for adverse party (Rule 21, Clause 6), 157. If printed brief or argument is filed, two counsel will be heard for ad- verse party (Rule 31, Clause 6), 157. No case will be received on printed briefs within three days next be- fore day fixed for adjournment (Rule 27), 314. Provisions respecting form and size of printed briefs (Rule 31), 335. On motions to advance cases under Sec. 5 of Act of March 3, 1875, to , be printed and served on opposite party (Rule 33, Clause 3), 337. CALIFORNIA. Provisions as to docketing case and filing record in writ of error and appeals from (Rule 9, Clause 4), 100. Time extended for certain purposes in writs of error and appeals, under Sec. 5 of Act of March 3, 1875 (Rule 32, Clause 5), 339. CALL AND ORDER OP DOCKET. (See also Docket and Docketing.) Proceedings when no counsel appears and no brief has been filed for plaintiff in error or appellant when case is called for trial (Rule 16), 134. Proceedings when there is no appearance for defendant when case is called (Rule 17), 137. Proceedings when there is no appearance for either party when case is reached in the regular call of the docket (Rule 18), 138. Proceedings when neither party is ready at the second term (Rule 19), 139. 933 INDEX NO. 1 GENERAL RULES CALL AND ORDER OF DOCKET— (Cmtinued). When a case is reached in regular call of docket and a printed argument be filed for one or both parties, case shall stand as ii there were an appearance by counsel (Rule 30, Clause 3), 143. When a case is reached and argued orally by one party, no printed argument will be received from the other parties unless filed before oral argument begins (Rule 20, Clause 3), 143. Ten cases only liable to be called on each day, including one on argu- ment (Rule 36, Clause 3), 303. Criminal cases may be advanced on motion by leave of Court (Rule 36, Clause 3), 303. CERTIFICATE Of Clerk of Court below necessary to entitle defendant in error or ap- pellee to docket and dismiss (Rule 9, Clause 1), 87. CERTIORARI. Proceedings to obtain same (Rule 14), 123. Motion for certiorari, when made, etc. (Rule 14), 133. CHANCERY. Former practice of Courts of, in England afford outlines of practice in Supreme Court (Rule 3), 10. CHARGE OF COURT. Brief of plaintiff in error or appellant to set out totidem verMs the part of the charge referred to, when the error alleged is to the charge (Rule 31, Clause 3), 146. CIRCUIT COURTS. (See Judges.) Authorized to issue commissions to take depositions in cases of further proof (Rule 13, Clause 1), 111. CITATION. Return day and service of, when judgment is rendered wu>re than thirty days before the first day of the next term of the Supreme Court (Rule 8, Clause 5), 77. Return day and service of, when judgment is rendered less than thirty days before the first day of the next term of the Supreme Court (Rule 8, Clause 5), 77. Nature and time of service of citation for revivor in certain cases (Rule 15, Clause 3), 133. Under Sec. 5 of Act of March 8, 1875, when they must be made re- turnable and served (Rule 32, Clause 1), 235. Return day, etc., under this section extended in cases from California, Oregon and Nevada (Rule 32, Clause 5), 239. UNITED STATES SUPREME COURT. 933 CLEEK. Kesideuce and office (Rule 1, Clause 1), 1. Not to practise in any Court (Eule 1, Clause 1), 1. Not to permit original record or paper to be taken from his office with- out order, etc. (Rule 1, Clause 3), 4. To give order to members of the Bar, under certain restrictions, to take books from Law Library (Rule 7, Clause 1), 62. To keep record of books so taken, etc. (Rule 7, Clause 1), 63. To deposit copy printed records, motions, briefs, etc., in Law Library (Rule 7, Clause 3), 63. How Clerk of Court to which writ of error is directed is to make return to same (Rule 8, Clause 1), 65. Shall annex to and trausmit with return in cases brought up by writ of error or appeal copy of original opinions filed (Rule 8, Clause 2), 73. To cause estimate of cost of printing record, and of his fee for prepar- ing it for printer, etc., to be made, and shall notify party docket- ing case of the estimate (Rule 10, Clause 3), 104. Shall notify adverse party of same, if, etc. (Rule 10, Clause 3), 104. Time for filing record with Clerk of Supreme Court (Rule 9, Clause 1), 87. Certificate of Clerk of Court below necessary to entitle defendant in error or appellee to docket and dismiss (Rule 9, Clause 1), 87. Undertaking to be given to Clerk for his fees by plaintiff in error or appellant in docketing case and filing record (Rule 10, Clause 1),101. To have record printed under his supervision on payment of estimated amount, &c. (Rule 10, Clause 3), 105. To take original transcript on file to printer, in cases of appellate juris- diction (Rule 10, Clause 4), 106. To have copies made for printer of original papers sent up under Rule 8, Clause 4 (Rule 10, Clause 4), 106. To have copies made of whole record in cases of original jurisdiction (Rule 10, Clause 4), 106. To supervise printing, &c. (Rule 10, Clause 5), 106. To refund to party paying it the difference between cost of printing record and amount estimated, if cost is less than the estimate (Rule 10, Clause 6), 108. If cost and Clerk's fee exceed the estimate, excess to be paid to Clerk before printed copies delivered to parties or counsel (Rule 10, Clause 6), 108. Provisions for taxing the amount of Clerk's fee for printing record (Rule 10, Clause 7), 108. Entitled to attachment against parties, or their sureties, liable for his fees (Rule 10, Clause 8), 110. To produce satisfactory evidence of service of fee bill on parties liable. (Rule 10, Clause 8), 110. 934 INDEX NO. 1 GENERAL RULES CLERK— ( Continued) . To issue mandate or other proper process to Court below, on dis- missal, &c. (Kule 34, Clause 5), 181. To insert amount of costs allowed, in body of mandate, &c. (Rule 34, Clause 6), 191. Table of fees allowed to be charged by Clerk of Supreme Court (Rule 34, Clause 7), 193. All opinions to bc' handed to, after delivery, to be recorded, and a copy, after recording, to be delivered by Clerk to Reporter (Rule 35, Clause 1), 196. Original opinions to be filed with Clerk for preservation (Rule 35, Clause 3), 300. Kot to copy opinions, printed under supervision of justices, into book, but to have same bound ; when they are to be deemed recorded (Rule 25, Clause 3), 300. Must enter case dismissed in vacation, where proper stipulation is filed and his fees are paid (Rule 38), 315. CLERK'S OFFICE. At seat of Government (Rule 1, Clause 1), 1. COMMISSIONS. To be issued to take depositions where further proof is ordered (Rule 12, Clause 1), 111. "Whence to be issued (Rule 12, Clause 1), 111. To be issued from the Supreme Court or any Circuit Court, to take testimony of witnesses where new evidence is admissible in the Supreme Court in Admiralty and Maritime cases. Provisions respecting issuing of same (Rule 13, Clause 3), 113. Kot to issue, except on interrogatories filed and copies served, and notice to opposite parties, within a certain time, to file cross- interrogatories (Rule 13, Clause 2), 113. COMPLAINANT in original suit in Supreme Court, how entitled to proceed against defendant who does not appear on return day after service of subpoena (Rule 5, Clause 3), 53. CONCLUSIONS OP LAW of Court below, to be contained in record in admiralty and maritime cases, &c. (Rule 8, Clause 6), 84. CONFERENCE ROOM. Provisions respecting same (Rule 7, Clause 3), 64. CONTINUANCE. When cases will be continued to next term (Rule 36, Clause 7), 306. UNITED STATES SUPREME COURT. 935 COSTS. What costs and fees are to be taxed against the party against whom costs are given in cases of affirmance, reversal or dismissal with costs (Rule 10, Clause 7), 108. When to be allowed to defendant in error or appellee, on dismissal, &c. (Rule 24, Clause 1), 173. Allowed defendant in error or appellee on affirmance, &c. (Rule 24, Clause 2), 176. Cost of transcript of record to be part of the costs on reversal, and to be taxable in Court below as costs (Rule 24, Clause 3), 177. Allowed plaintiff in error or appellant on reversal, &c. (Rule 24, Clause 3), 177. Provisions respecting, where the United States are a party (Rule 24, Clause 4), 179. When allowed. Clerk to insert amount thereof in mandate, &c. (Rule 24, Clause 6), 191. The terms on which a case is to be dismissed as to costs, to be embodied in an agreement in writing, filed with the Clerk (Rule 28), 215. COUNSEL. When appearance of counsel for party docketing case is entered (Rule 9, Clause 3), 98. Copies of record to be printed for use of counsel and Court (Rule 10, Clause 3), 105. Clerk to give copy printed record to counsel for respective parties (Rule 10, Clause 5), 106. Copy of printed record not to be delivered to counsel till any excess in printing record over estimated cost is paid to the Clerk (Rule 10, Clause 6), 108. Proceedings where no counsel appears for plaintiff in error or appellant when case is called (Rule 16), 134. When a printed argument is filed for one or both parties when a case is reached, it is the same as if there were an appearance by counsel (Rule 20, Clause 2), 142. Opposing counsel entitled to notice where leave is granted to file addi- tional brief, after case has been argued or submitted (Rule 20, Clause 4), 143. Briefs to be filed by counsel for plaintiff in error or appellant, and when (Rule 21, Clause 1), 143. One of such copies to be furnished to counsel for opposite side (Rule 21, Clause 1), 143. Tor defendant in error or appellee to file with the Clerk certain printed copies of his argument a certain time before case is called (Rule 21, Clause 3), 150. When counsel will not be heard, &c. (Rule 21, Clause 4), 158. One counsel only will be heard for adverse party when no counsel ap- 936 INDEX -S0. 1 GENERAL RULES COUNSEL— ( Cort