QJnrnpU ICaui ^rljnnl ICibraty Cornell University Library KF8719.A72 V.2 A treatise upon the United States courts 3 1924 020 613 588 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020613588 T'^EATISE BPON THE TOITED STATES COURTS, AND THEIR PRACTICE: EXPLAINING ■ THE ENACTMENTS BY WHICH THEY ARE CONTROLLED; THEIR ORGANIZATION AND POWERS; THEIR PECULIAR JURISDICTION; AND THE MODES OF PLEADING AND PROCEDURE IN THBIC. WITH NUMEROUS PRACTICAL FORMS.' BT BENJAMIN VAUaHAN ABBOTT. VOL. II. ORIGINAL SUITSj E E T I E Wj FORMS, NEW-TORK: DIOSSY & COMPANY. 1871. entered, according to act of Congress, in the year 1871, by BENJAMIN VAUGHAN ABBOTT. la the Office of the Librarian of Congress, at Washington. TOUTT & Bonce, Law Printers, 90, Fulton-street, Ncw-Yoik, CONTENTS. VOLUME n. BOOK IV. PROCEDURE IN THE EXERCISE OK ORIGINAL JURISDICTION. CHAPTER I. TIME or COMMENCING ACTIONS. PaoB Sources of the rules of limitation . 1 Acts of Congress prescribing limitations 2 Administration of State limitation laws -4 Interpretation of statutes of limitation '. 5 No limitation against government 6 * CHAPTER IL Suits by the government -. 8 Actions for forfeitures or penalties 10 Who are necessary parties,- generally 11 Plurality of plaintiffs or defendants 12 Assignees .' 16 CHAPTER III. WRITS AND PROCESS. Process for commencing actions at law 22 Style ; teste ; seal, &c 24 Process for commencing suits in equity 25 Process for commencing suits in admiralty 26 Service and return 27 Arrest and bail, at law 30 Arrest in admiralty 31 iv CONTENTS. CHAPTER IV. REMOVAL or CAUSES. The two kinds of removal » 33 Removal from State 1.0 Federal Courts ^ 33 The Judiciary Act 34 Revenue causes, (Act of 1833) : 35 , Suits for military arrests 36 Cases under the Civil Rights Bill 37 Internal revenue case?, (Act of 1866) 37 Citizenship of co-defendants, (Act of 1866) 38 Removal on account of local prejudice 39 Suits against corporations 39 Actions against carriers, (Act of 1869) 40 Recapitulation 41 Mode of obtaining removal 42 Procedure after removal 44 Removal from one Federal Court to another 45 ' CHAPTER V. APPEARANCE ; DEPACTLT. Appearing by attorney 47 Effect of appearance 48 Withdrawal of appearance 50 Default 50 CHAPTER VI. PLEADING AT LAW. Averring jurisdictional facts 52 Averring a statute " 56 Averring letters patent , 58 Different kinds of pleas 60 General issue, and notice of special matter 61 * CHAPTER VII. PLEADING IN EQUITY. Modifications introduced by rules 65 Averring jurisdictional facts 67 Bills of revivor 69 Supplemental bills 71 Cross bills '71 CHAPTER VIII. PLEADING IN ADMIRALTY. General requisites of admiralty pleadings , 73 The libel 74 The claim 76 CONTENTS. V , Page The answer 80 Exceptions 81 Keplication ; supplemental libel .,,.,,., 82 Cross libels. .' 82 Libels of information 83 CHAPTER IX. INTEKLOC0TORY OR PRPVISIONAL REMEDIES. General powers of the courts ,...,.,, , 88 Ne exeat. ,,,.,.,, 88 Injunction 88 Discovery. , :..,,..,,,,,, 91 Inspection of writings 93 Attachment at law '. 95 Attachment in admiralty , lOf CHAPTER X. AMENDMENTS. Provisions of the Judiciary Act 107 General principles of administration , 108 Application for the act in different tribunals , 109 Mode of making amendments 110 CHAPTER XI. DEPOSITIONS. "When depositions may be taken 111 The notice 115 Taking and return of the deposition 116 Use of the deposition as evidence 118 Depositions in equity and admiralty ; 120 CHAPTER XII. Judicial notice • 122 Presumptions 123 The burden of proof. 125 Admission of secondary evidence 12( Documentary evidence 129 Testimony of witnesses 135 CHAPTER XIII. TRIAL. Mode of trial 139 Postponements • 140 The jury ••• 1*1 yi CONTENTS. Tagh Conduct of the trial 141 References •- 142 Trial by .the court , 143 CHAPTER XIV. jcdgment; decree. What judgments may be rendered 144 Effect of judgments 146 Lien of judgments 148 Set-off against government ^ .......... ■. 149 The costs 153 Decrees. 155 CHAPTER . XV. EXECUTION. What State law governs 156 To what extent State laws operate 157 Application of the rule to new States 158 Executions in different districts. ; . . . ; 159 What property may be taken on execution 160 Levy and sale. 161 Satisfaction and discharge , 1 62 Stay of execution 163 Conflict between executions 1 65 Issuing execution against the person 166 The caption, and its effect ; 168 Privilege of the jail liberties 169 Discharge of poor debtors 170 CHAPTER XVL CRIMINAL PROCEEDINGS. What law governs criminal practice 171 The warrant 17b Arrest ; examination ; bail 174 The grand jury 176 Indictment 177 Place of trial. , 180 The plea 181 The jury 182 Witnesses ■. 188 Entering a nolle prosequi 189 Sentence and execution 189 Summary trials 190 CHAPTER XVII. NEW TRIAL. The power to grant new trials 192 -Application of the power in criminal cases 193 CONTENTS. 'va, Pags Error as a ground for a new trial ' 193 Irrepfularities or misconduct afifeoti'ng the jury ^ 194 Verdict kgairist evidence. .^ 196 Excessive damages 197 Surprise ; nevcly discovered evidence 198 The motion," and its effect 199 CHAPTER XVIII. STATUTORY REMEDIES. Bankruptcy 200 Extradition 202 Habeas corpus , 209 . , ,. BOOK V. PROCEDURE IN THE EXERCISE OF APPELLATE JURISDICTION. » CHAPTER I. GENERAL PEmOIPLBS OF APPELLATE PROCEDURE. Different rrieth'o'ds' of exercisirig appellate jurisdiction 213 Consent does hotcdnfer'the j'urisdiction 214 Jurisdiction must be deducible from act of Congress 217 Appearance; amendment 218 What is a "final " judgment '. 220 What is a " final " decree 223 What classes of questions may be reviewed , 228 Rules of decision in appellate courts 231 CHAPTER II.. PROCEDURE IN A CIRCUIT COURT, ON ERi;OK OR APPEAL. The general method of review 233 Allowance of appeals 239 Powers of the courts pending an appeal 239 Regulations of procedure upon admiralty appeals 240 Statutory regulations of procedure in error 241 Judgment upon reversal, on appeal or error 243. Injunctions against treasury warrants , 243 Appellate jurisdiction in bankruptcy. . ; 244 Appeals in habeas corpus cases 245 CHAPTER III. PROCEDURE IN THE SUPREME COURT, ON ERROR OR APPEAL. The general system of review 246 Parties to proceedings for review. 247 Time of applying for a writ of error or an appeal 250 How writs of error are issued 251 How appeals are taken 252 The return , 253 Viii CONTENTS. Pag> The citation, and its service 256 The Security to obtain a review, merely 25S How' to obtain supersedeas of execution 259 Supplying deficiencies in the record , 261 Docketing the cause; filing the record , 2(31 Dismission Of causes 262 Custody of property, pending review 265 Course and conduct of the hearing 266 Eules of decision 266 The mandate 268 CHAPTER IV. PEOCEDUEE ON EEEOR TO A STATE COURT. No appeal allowed from State courts 270 Requisites of the record 270 Enforcing the decision 271 CHAPTER V. • PEOOBDURE UPON OASES CERTIFIED. Requisites of the certificate 272 Rules of deterinination 273 BOOK VI. FORMS. CHAPTER I. ACTIONS AT LAW. Proceedings in actions at law 275 CHAPTER II. SUITS IN EQUITY. Proceedings in suits in equity 325 CHAPTER III. REMOVAL OF CAUSES. Proceedings for removal of causes from State courts 362 CHAPTER IV. ADMIRALTY. Proceedings in admiralty 370 ix CONTENTS. Paob CHAPTER V. SEIZURE. Proceeding.? in cases of seizure 429 CHAPTER VI. CRIMINAL OASES. Proceedings in criminal cases 456 CHAPTER VII. BANKEUPTOT. Proceedings in bankruptcy 469 CHAPTER VIII. PROCEEDINGS ON WRIT OF ERROR. Proceedings on writ of error 529 CHAPTER IX. PROCEEDINGS ON APPEAL. Proceedings on appeal i 534 Table of Cases 537 Table of Statutes 573 Index ' 581 THE UmTED STATES COURTS. BOOK IV. PROCEDURE m THE EXERCISE OF OEIGINAL JURlSDICTIOIir. CHAPTER I. TIME OF OOMME]^OIIsrG ACTION'S. The question, Within what time may a proceeding in the Federal courts Tie commenced? confronts the practitioner at the outset. At first sight, the rules and adjudications upon the subject appear uncertain, confused, contradictory. But they are capable of being in some degree harmonized, when the double nature of the jurisdiction is properly recognized. Sources of the rules of limitation. The strongly marked line of division between the jurisdic- tion of the United States courts which is founded on subject matter, and that which is founded on character or residence of parties, indicates that rules of limitation, applicable in those courts, are to be drawn from more than one source. That line separates the principal remedies 'into two great TOL. II.— 1 2 ORIGINAL JURISDICTION. classes ; one, of cases in which the right of action arises under national legislation, or within the field of general maritime jurisprudence reserved by the Constitution for administration by the national judiciary ; and another, of cases in which the right of action arises under ordinary municipal law, and would be enfprced by State tribunals, if it were not that a re- sort to the courts of the Union is permitted, in the particular suit, in view of the character or citizenship of the parties. And the general principle underlying the subject is, that, in respect to the first class of cases, as the subject matter in liti- gation is within the sphere of national legislation, so the law of Congress is to prescribe the limitation, if any, upon the time of sueing ; but in respect to the second, as the United States courts seek simply to enforce the right given by the municipal law, so the municipal law determines the time within which that right may be enforced. If, then, the prac- titioner is about to apply to a Federal court in virtue of sub- ject matter, — e. g., in causes of admiralty and maritime juris- diction ; in prosecutions for crimes, penalties, and forfeitures ; in patent and copyright cases, — consult the laws of Con- gress for the limitation. If he applies in virtue of character or citizenship, consult, for the limitation on the time of sueing, the same system or code of State municipal law by which the right to sue is itself ascertained. Acts of Congress prescribing' limitations. Several early enactments of Congress, prescribing terms of limitation for proceedings in courts of justice, have been superseded by subsequent statutes. The laws now in force are the following : Indictments for any capital offense except willful murder or forgery, must be found within three years ; and if for any crime not capital, within two years from the commission of the offense.' Under this provision, it is held that the indictment must be found within the term mentioned, computed from the time ■ Act of April 30, 1790, § 32, 1 that indictments for the capital offenses AnU, 22. of treason, mui-der, and piracy, as well But the provisions of the act of 1790 as for castinp; away vessels, must be have, perhaps, been recently modified by found within five years after the of- the act of July 25, 1868 (15 Stat, at L., fense is committed. 183), the efi'eot of which is said to be TIME OF COMMENCING ACTIONS. 3 of the actual commission of the offense ; the fact that none of the officers of justice knew who the offender was, for some time after the offense, does not prevent the bar from applying.' There must be a complete and formal indictment found ; and it must be the indictment on which the prisoner is arraigned ; an inforipal presentment," or an earlier indictment to which a 7bolle prosequi has been entered, ' will not save the prosecution. The objection that the indictment was not found in season is not ground for quashing it, but is a matter of defense under the general issue. Marshals'' 'bonds must Ije sued within six years after the right of action accrues ; except that a plaintiff who, at that time, is under a disability to sue, may sue within three years after the disability is removed.* In general, any suit or prosecution for any penalty or for- feiture, pecuniary or otherwise, accruing under the laws of the United States, must be commenced within fite years from the time when the penalty or forfeiture accrued ; provided the person or property liable be found within the United States during that period.' This act has been held to repeal by implication former provisions of section 32 of the Crimes Act of 1790, which limited suits for penalties to two years; and the same reasoning would require it to be deemed a repeal of the analogous pro- vision of the Copyright Law. ' ' Actions or prosecutions for any forfeiture or penalty under the Copyright Law," were re- quired, by the act of February 3, 1831,° to be commenced "within two years after the cause of action shall have arisen." By a later act,' however, suits for forfeitures, «fec., for frauds committed by persons connected with the military or naval service of the United States, must be brought within six years. By the present Bankrupt Law,' no suit at law or in equity is maintainable by or against an assignee in bankruptcy, or by or against any person claiming an adverse interest in an ' United States v. White, 5 Crancli " Act of February 28, 1839, § 4, 1 G. a, 38. Ante, 56. '' United States v. Slaciim, 1 Ormch » Section 13. 4 Slai. at L., 439. O. Ok, 485. - ' Act of March 2, 1863, § 7, 12 Stat. ' ' United States v. Ballard, 3 McLean, at L., 698. 469 » Actof March 2, 1867, § 2, IJraie • Act of April 10, 1806, § 4, 14w^ 40. 96, 4 ORIGINAL JURISDICTION. estate in bankruptcy, unless it is brouglit within two years from the time the cause of action accrued- Prosecutions or actions which could not be commenced iu d^^e season during the existence of the civU war of 1861-65 were saved by the act of June 11, 1864.' And by the act of March 3, 1869, it was declared that "the time for finding in- dictments in the courts of the United States in the late rebel States for offenses cognizable by said courts, and which may have been committed since said States went into rebellion, be, and hereby is, extended for the period of' two years from and after [the time when] said States are or may be restored to representation in Congress : Provided, however, That the pro- visions hereof shall not apply to treason or other political of- ^ fenses." Independent of these statutes, the existence of war has, in several cases, been held to suspend the running of statutes of limitations, as a necessary corollary to the fact that it sus- pends the power to sue. ' Administration of State limitation laws. As already indicated, in all that field of jurisprudence within which the jurisdiction of the United? States courts springs from the character or citizenship of parties, those courts recognize, adopt, and apply the statutes of limitation of the several States. They give such statutes the same construc- tion and effect as are given them in the local tribunals. A ' 1 Ante. 84. fore tVie -war. Jackson Ins. Co. v. Actions or prosecutions for military Stewart, 6 Am. Law Reg. N. S. 732. arrests during tlie war, were, by Act of Thus the act of limitations was sus- March 3, 1863, § 7, 12 Stat, at L., 757, pended during the revolutionary war, limited to two years. and began to run against debts due by ' Where a party hag been absent citizen.^ of the United States to British from the country during a war, the pe- creditors from the final ratification of riod of war should not be construed the treaty of peace between the United against him, in computing the length States and Great Britain. 0"dea v. of time in which an ejectment can be Blackledge, 2 Cranch, 272. brought. Delancy v. McKeen, 1 Wash. So the late conflict between the Uni- 0. Ct, 3.54. ^ _ _ ted States and the States attempting to By a declaration of war issuing from secede was a civil war, and imposed the paramount authority of the govern- among other rights and consequences ment, statutes of limitation are suspen- of public war, the suspension of the ded, during its existence, as to con- right to sue, and, therefore, the sus- tracts between citizens of the opposing pension of the statute of limitations belligerents, and revive at its termina- Jackson Ins. Co. v. Stewart 6 Am tion. This is the rule, notwithstanding Law Reg. iV. S., 732. the statute may have begun to run be- TIME OP COMMENCING ACTIONS. g statute of this kind is deemed a "rule of decision," within the meaning of that phrase as employed in section 34 of the Ju- diciary Act." Accordihgly, the reports of the United States courts contain numerous decisions construing and applying the State statutes; but the practitioner, in all this class of cases, will find that the authorities which would govern the State courts, upon the particular question involved, will be his best guides in determining it for the Federal tribunals. The constitutionality of these statutes has been often dis- cussed ; and the general principle upon which they are founded, has been fully sustained. They are held not to be objectionable as retrospective laws, even in their operation upon existing demands." They are sustained against the objection of impairing the obligation of contracts, upon the ground that they do not operate upon the contract, but upon the remedy.' IJpon the same principle it is held that the law of the forum, and not that of the place of contract, is the one which must be applied ; * and that the statute of limitations in force at the time of the commencement of an action governs the case.' Interpretation of statutes of limitation. The general inclination of courts of justice in modern times towards limitation laws, is more favorable than was formerly manifested ; and this favor has been expressed in several of the Federal decisions." They are, it is said, consid- ered as resting upon sound policy, and are not to be evaded. The privilege which they confer, is, however, a matter of ' McCIuny v. Silliman, 3 Pel, 270 ; son, 9 How., 407 ; Le Roy v. Crownin- Ross V. Duval, 13 Id., 45 ; Lefflngwell shield, 2 Mas., 151. V. Warren, 2 Black, 599. A suit in a State of the tJnited States, " Society for the Propagation of the on a judgment obtained in the courts Grospel, &c. V. Wheeler, 2 Gall., 105, of another State, must be brought 141 ; Christmas V. Russell, 5 WaH., 290, within the period prescribed by the 300: Bank of Alabama v. Daltoii, 9 local law, or the suit will be barred. How., 522. McBlmoyle v. Cohen, 13 Pet, 312. ' See Sparks v. Pico, 1 McAll, 497. ' Patterson v. Gaines, 6 How., 550. * McCluny o. Silliman, 3 Pet, 270 ; ° Clementson v. Williams, 8 Cranch, McElmoyle v. Cohen, 13 /d, 312; Le 72; Bell i).. Morrison, I Pet, 351,360; Roy V. Crowninshield, 2 Mas., 151; MoCluny v. Silliman, 3 JA, 270; Haw- Nicolls V. Rodgers, 2 Paine, 437 ; Eg- kins v. Barney, 5 Id., 457 ; Roberts v. berts u. Dibble, 3 McLean, 86; Jones Pillow, i/em^ii., 624 ; affirmed 1 3 ^oi«., V. Hays, 4 Id., 521. 472. Compare Bradstreet v. Hunting- The statute of limitations of the State ton, 5 Pet, 402 ; Reed v. Clarke, 3 Mo^- where the contract was made, does not Lean, 480, nfFect the action. Townsend v. Jemi- 6 ' ORIGINAL JURISDICTION. affirmative defense, and one resting upon strict legal right. Hence the defense must be specially pleaded. And' the defendant must establish a case which is strictly within the statute of' which he claims the benefit.' The courts wiU not create additional exceptions to the statute of limitations, founded on excuses for not bringing an action supposed to be of equal equity with the excuses specified in the statute. Statutes of limitations are deemed intended, not for the punishment of those who neglect to assert their rights, but for the protection of those who have remained in possession under a title supposed to be good." By famUiar rules, the application of a statute of limitations is, in many instances, prevented by various personal disabili- ties which have prevented the plaintiff from sueing within the time ordinarily prescribed, — such as infancy or coverture ; — by causes which may have placed it out of his power to sue, — such as the absence of the defendant, or the existence of war ; — ^by the continuance or revival of the debt, by an acknowledg- ment or new promise by the debtor ; — and, as respects some demands, by ignorance on the part of the plaintiff, during the term allowed by the statute, of the existence of the facta on which his right to sue depends. ■ But rules of this description are not peculiar in their application to the United States courts. The general course of decision of the American courts may be consulted to ascertain them. No limitation against government. One rule deserves special mention with reference to the administration of statutes of limitations in the United States courts : it is the rule which prevents the application of such statutes to demands in favor of the government. This is indeed, a principle found to be recognized in all jurisdictions. It was expressed in early English jurisprudence in the precept which forbade to impute laches to the king ; and is embodied in the maxim nullum, tempus oecurrit regi. Throughout the States it is generally understood that a statute of limitations is not understood to bar the claims of the State, unless the ' Russell V. Barney, 6 McLean, 577. The Sam Slick, 2 Curt. C. Ot. 480 • " Mclver v. Ragan, 2 Wheat., 25. reversing S. C, 1 Sprague, 289 knd 8 Bank of Alabama v. Dalton, 9 How., Laiu Rep. N. 8., 162. And see Haw- 522; Inman v. Barnes, 2 Oall., 315; kins- v. Barney, b Pet. ioT. TIME OF COMMENCING ACTIONS. 7 State is distinctly named. And it is fully establislied that this rule applies in the prosecution of demands by the United States.' No right of action accruing to the United States is barred by lajise of time, unless by special provision of an act of Congress." JSTeither an act of Congress, expressed in merely general terms, nor , a State statute of limitations, can bar an action brought by the United States in a court of the United States. ° But, though the statute of limitations is not a technical bar against the government, yet lapse of time may be used as evidence in cases to which the statute does not apply ; and the natural presumptions arising therefrom are said to be as strong against the government as against an individual. * So where a claim, already barred by a statute of limitations, is assigned to the United States, and an action is brought thereon in the name of the government, the bar of the statute is a good defense. ° ' United States v. Davis, 3 McLean, the public domain would soon be ap- 483 ; Lindsay v, Miller, 6' Pet., 666. propriated by adventurers." "If statutes of limitations were al- ' 7 Op. Att.-Gen., 614. lowed," say the court in the last cited " United States v. Hoar, 2 Mas., 311. case, "to run against the United States, * 9 Op. Att.-Gen., 197. it would be only necessary for intruders ° United States v. Buford, 3 Pet, 12. upon the public lands to maintain their And the fact that the United States possession until the period of the stat- -is a stockholder in a corporation will ute of limitations had expired, and not prevent a statute of limitations then they would be invested with the running . against such corporation, title against the government, and all Bank of United States v. M'Kenzie, 2 persons claiming under it. In this way, Brock. Marsh., 393. CHAPTER II. PARTIES. I]?r the previous volume we have stated the rules underljang the jurisdiction of the United States courts, which define the parties of whose controversies those courts are enabled to take cognizance. In so far as the power of the court to act is dependent on the character or residence of parties, the question of parties is identical with that of jurisdiction ; and the subject is covered by the statute provisions quoted, and the general explanations on the judicial power and organiza- tion, which have been made in our previous volume.' It is now more important to indicate the general course of decision, in the United States courts, upon the question of parties as depending on the relations of the individual (assuming him competent to sue or be sued in the court) to the subject matter in controversy, orto other persons interested in it. Suits by the government. It is a fundamental principle of jurisprudence, that the sovereign power cannot be sued in the courts of its own creation, except by its consent. The consent to be sued, which the United States has seen fit to give, is limited to the prosecution of remedies in the Court of Claims ; ' in the 'See the constitutional definitions tlie controversies of foreigners, 1 Ante upon the subject, 1 Ante, 2 ; the 175 ; on controversies of'publ'ie minis- various provisions of the Judiciary Act, ters, 1 Ante, 205 ; on controversies of 1 Ante, 5-16; the act of 1839, re- citizens of differeht States, 1 4w and, vice versa, by some of the tenants in behalf of themselves and the other tenants, — to establish some right, — such as right of common, or to cut turf. So by a parson of a parish against some of the parishioners to establish a general right to tithes, — or, conversely, by some of the parishioners in behalf of all, to establish a parochial modus. ' ' In all cases where exceptions to the general rule are allowed, and a few are permitted to sue and defend on behalf of the many, by representation, care must be taken that per- sons are brought on the record fairly representing the interest or right involved, so that it may be fully and honestly tried. "Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctu- ation, by death, and otherwise, that it would not be possible, without very great inconvenience, to make all of them parties, and would oftentimes prevent the prosecution of the suit to a hearing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds aU of them, the same as if all were before the court. The legal and equitable rights and liabilities of all being before the court by representation, and especially where the subject matter of the suit is common to all, there can be very little danger but that the interest of all will be properly protected and maintained. "The case in hand illustrates the propriety and fitness of the rule. There are some fifteen hundred persons represented by the complainants, and over double that number by the de- fendants. It is manifest that to require all the parties' to be brought upon the record, as is required in a suit at law, would amount to a denial of justice. The right might be de- feated by objections to parties, from the difficulty of ascer- taining them ; or, if ascertained, from the changes constantly occurring by death or otherwise." Assigrnees. The original rule of courts of law forbade the assignee of a demand to maintain an action upon it in his own name. Courts of equity were early induced to recognize an assignee as a party competent to sue, subject to restrictions necessary to protect and preserve all the rights of the debtor as against the assignor. Courts of law have been led, by this example, PARTIES. 17 to enlarge their recognition of the rights of assignees ; and it may now be said tliat, as a general rule, they take notice of assignments of choses in action, and extend to them every protection not inconsistent with the established principles and modes of proceeding which govern tribunals acting accord- ing to the course of the common law.' The course of procedure appropriate in courts of law is, however, in the absence of a statute to the contrary, for the action to be brought in the nan^e of the assignor ; though the proceedings are controlled by, and are for the benefit of the assignee. If, indeed, after the assignment, the debtor prom- ises to pay the debt to the assignee, the latter may maintain, 'an action for the amount against the debtor, as for money re • ceived to his use. But independently of such promise, the action cannot be maintained, in the name of the assignee, at law." The restrictive rule of the common law in this respect has been, in many of the United States, modified by statutes di- recting actions to be prosecuted in the name of the rekl party in interest, or otherwise enabling an assignee to sue in his own name. These statutes, however, unless they have been distinctly adopted by the United States courts holden within such State, appear not to be considered obligatory upon those courts. ' Welch V. Mandeville, 1 WJieat, 233. his right of action at law, so as to ena- The modern rule which allows a right ble the assignee to sue in his own name. in action to be assigned, and the assig- Swan v. Scholfield, 2 Crunch C. Ci., nee to enforce it in the name of the as- 140. signor, does not enable a creditor to Under a statute of Virginia which divide a single debt into parts, so as to provided that assignments of bonds, give the assignee of each a separate ac- notes, &c., shall be valid ; and that " an tion without the assent of the debtor. assignee of any such may thereupon The debtor has a right to insist On the mamtain an action of debt in his own. singleness of the obligation,, and to be name," it has been held that the assig- protected against a multiplicity af suits. nee of a note could not maintain an ac- An order drawn by the creditor for the tion against a remote assignor. As the whole debt is an assignment of the statute gives no express right to sue fund ; and as soon as the debtor is no- the assignor, an action could only be tified, he becomes, even without his maintainedagainsthimonihepromi.se own consent, obligated to pay to the which the law implies from the assign- .■jssignee ; but an order drawn for a part ment. And the a,«signment being made of it will not bind him, unless he as- to a particular person, the law implies sents to it by accepting the draft. a promise to that person, and no other. Hull of a New Ship, Daceii, 206. There is a privity between each assig- " Ternan v. Jackson, 5 Pet., 580. nor and his immediate assignee, but After a note is taken up by the in- none between an assignor and his re- dorser, its negotiability ceases, and he mote assignee. Mandeville v. Iliddle, 1 cannot, by transferring the note, assign Cranch, 290. Vol. n.— 2 18 ORIGINAL JURISDICTION. Thus, in the case of Suydam r. Ewing,' in which actions of legal cognizance, commenced in a New York court by an assignee, under permission of a State statute, were removed to the District Court, Judge Betts said: "The practice of the State courts has been changed by a recent act of the legisla- tui-e, so that suits must now be brought in the name of the real party in interest. Prior to that statute, the rule of pro- ceeding in that respect was founded upon the practice of the King's Bench in England, and required actions to be brought in the name of the party in whom the legal interest was vested. The United States courts follow the same rule, ex- cept where the assignee is authorized to sue in his own name^ by the custom of merchants, or by statute. The rules of the United States Supreme Court adopt for the Circuit Courts the practice of the English King' s, Bench, leaving to those courts the power to regulate the subject at their discretion. The standing rules of this court adopt the practice and modes of proceeding in force in the Supreme Court of the State of New York in 1838, in cases not regulated by express rule of the Circuit or District Courts. Under this state of the few govern- ing this court in common law cases, the assignor of a contract has no capacity to sue upon it in his own name, unless it be negotiable in its nature. The action must be brought in the name of the person with whom the contract was made, or by his legal representatives in case of his decease. " The change made by the New York Code of Procedure, in respect to the competency of parties to sue in their own names, when they are the ones having the real interest in the matter in controversy, does not apply to the United States courts, and cannot affect their course of practice until it is re- cognized and adopted by them. "The proceedings in this court, after the transfer of the causes, must be the same as if the suits had originally been commenced here ; and accordingly the declarations filed here must be in the names of the respective surviving partners, and must conform in structure to our modes of pleading." ' 2 ShtcJif., 359. Louisiana had jurisdiction in the case- ' But where a note was given by sev- the objection that F. was an assignor pval citizens of Louisiana to M. & F., of the note being, under the facts, pure- K. being a citizen of Ohio, but F. had ly technical, and' one which ouo-'ht not no interest in the note, it being intend- to be noticed according to the course cd for the sole and individual use of M,, of proceedings in the courts of Louisi- it was held that the District Court of ana. MoMicken v. Webb, 11 Pet 25. PARTIES. 19 The right of an assignee to sue in the Federal courts is, however, subject to one restriction peculiar to those .courts, prescribed by section 11 of the Judiciary Act.' The provision is that no District or Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover th6m, if no assignment had been made ; except in cases of foreign biUs of exchange. Under this provision it is held that where the instrument is not negotiable, and title to it must therefore be made by assignment, the assignee can sue in the Federal courts, only in case his assignor could have done so." And where a suit is brought against a remote indorser, and the plaintiff in his declaration traces his title through an interme- diate indorser, without showing that this intermediate indorser could have maintained his action in the courts of the United States, those courts have no jurisdiction.' So it has been held that the courts of the United States cannot entertain a suit upon coupons cut from municipal bonds in favor of an assignee, unless a suit might have been prosecuted if no assignment had been made, upon the ground that the bonds were not negotiable instruments." But an indorsee is not regarded as claiming through an assignment. The indorse- ment is a new contract entered into by the indorser and indorsee ; and if the indorsee is a citizen of a different State from the indorser, he may sue him in the Circuit Court, whether the maker could be sued there or not. ' So also, the restrictive provision of the statute does not apply to a note made payable "to bearer ;" or to a fictitious payee ; or to the maker's own order, with his indorsement. In a note drawn payable to an individual "or bearer," the promise to pay the bearer is as strong as that to pay the payee named. It is, therefore, unnecessary for a holder to prove any assignment or transfer from the payee. And his right to sue in the Fed- eral courts does not depend on that of the payee." A note expressed to be payable to a fictitious payee, is, in effect, pay- ' 1 Ante, 7. Mollan v. Torrance, 9 Id., 537 ; Bvana " Fry V. Ronssean,-3 McLean, 106. v. G-ee, 11 Pet., 80; Brown v. Noyes, " Mollan V. Torrance, 9 Wheat, 537. 2 Woodb. & M., 75, 82 ; Dennison v. ' Clarke v. City of Janesville, 4 Am. Larned, 6 McLean, 496 ; Campbell v. Law Re-g., 591. Jordan, Hempst, 534. 'Young V. Byran, 6 Wheat., 146; « Bradford v. Jenks, 2 jl^ci can, 130. 20 ORIGINAL JUEISDICTION. able to bearer, and may be sued as if so expressed.' And aa a note, made payable to the maker' s own order, and by him indorsed,^ passes by delivery, and is regarded as payable to bearer, it is likewise within the rule giving the Federal courts jurisdiction of an action brought against the maker of a note running to bearer, by a holder who is a citizen of another State-.' Moreover, the statute does not apply to an action to recover the note itself, but only to an action to recover the sum due on it. Therefore, where an assignee of a package of bank notes brought an action of replevin for the package, the action was deemed maintainable in the Circuit Court, although the assignor could not himself have sued in that court." So an action against a bank employed to collect a note, for damages for failure to give notice of protest, &c., is not an action to recover the contents of a note, within the provision ; only those suits are included which are founded upon the promise to pay. When the suit is founded on a mere right of action to recover damages for a delinquency, the section has no application, and the assignee may sue in the United States courts, if the other conditions required by the Judiciary Act exist." In so far as an assignee is enabled to sue in his own name at all in the courts of the United States, his right of action is understood to be subject, as a general rule, to all the equities with which it stood charged in the hands of the assignor. He takes his title subject to any equitable interests of which the circumstances gave him notice ; and unless the demand is negotiable, or there are circumstances which entitle him to favor as a bona fide purchaser, or which estop the debtor from disputing his claim, or unless he holds under some statute authority enlarging his rights, he is deemed to stand in no better position, and to possess no higher right, than his assignor. The reports of the English and American courts generally abound in adjudications recognizing, applying, and enforcing this fundamental priaciple ; and it is fully recog- nized in the jurisprudence of the United States courts. Even the assignment of a demand to the United States can give it no greater validity than it possessed in the hands of the ' Bullard v. Bell, 1 Mm., 243. ■* Barney v. Globe Bank, 2 Am,. Law • Towne v. Smith, 1 Woodh. & M., 115. Reg. N. S., 221. » Deshler v. Dodge, 16 How., 622. PARTIES. 21 assignor. If, as against him, the statute of limitations had run against it, before the assignment, the United States can- not maintain an action upon it, although, upon principles already explained,' the statute of limitations is not, in general, available against the government. ' The liberal rules of courts of admiralty allow the assignee of a chose in action to sue in his own name ; and such pro- cedure is permitted, in proper cases, in the admiralty courts of the United States." Thus the transfereeof a passage ticket can bring an action in personam in his own name, in admi- ralty, for a breach of the contract contained in the ticket.* ' Ante, 6. ^ ' United States v. Biiford, 3 Pet, 12. ' Swett V. Black, 1 Sprague, 574. * Oobb V. Howard. 3 Blaidif., 524; affirming S. 0., 10 N. Y. Leg. Ob.i., 353. But an assignment by a mariner of his wages confers upon his assignee no right to maintain a suit in rem against the vessel, for the recovery of the wages assigned. Patohin v. The A. D. Patchin, 2 Law Rep. N. S., 21. CHAPTER III. WEITS AND PEOOESS. The acts of Congress and the rules prescribed by the Su- preme Court conferring power upon the judiciary to issue writs and other descriptions of process, or regulating their form and contents and the mode in which they are issued and executed, have been stated in full in the previous volume, where, also, the general principles underlying the power of the courts on this subject have been explained.' It remains to give some practical explanations for the guidance of the practitioner in sueing out and procuring the execution of pro- cess. Process for commencing actions at law. The early, legislation (1792) directed that process (except style) and procedure in actions at law in the national courts should be the same as used in 1789 in the highest court of original and general jurisdiction in the State. The act of 1828" prescribed a similar principle for States admitted since 1789. The rule is subject, however, to such alterations in practice ' See the authority conferred by the their chronologic order in Book I. of Judiciary Act, 1 Ante, 9 ; the Acts of volume 1. May 8, 1792, Id., 25 ; March 3, 1821, » 1 Ante, 48 ; extended to States sub- Id., 45 ; May 19, 1828, Id., 48 ; August sequently admitted, by Act of Auo-ust 1, 1842, Id., 59 ; May 4, 1858, Id., 78, 1, 1842, Id., 59. Most, if not all, "acts containing regulations as to process of Congress passed since 1842, admit- generally ; the rules of the Supreme ting new States, contain a provision to Court regulating process in that court, the effect that the laws of the United Id., 125 ; in courts of equity, Id., 134, States, not locally inapphcable, shall op- 135 ; in courts of admiralty. Id., 149- erate within such States. The legal ef- 151 ; and in bankruptcy. Id., 158 ; also, feet of s\ich a provision is to render the explanations relative to the collision of Process Act of 1828 applicable in tha Federal and State process, /A, 227; and Federal courts within the newly ad- relative to the general power or the mitted State. United States v. Council courts to issue writs, /A, 253. The va- of Keokuk, 6 Wall., 514; Smith v, rious statutes applicable to single kinds ' CockriU, Id., 756. of process will also be found stated in WRITS AND PKOCESS. 23 fts may be prescribed by Congress or the Supreme Court, Dr by the subordinate courts in their several jurisdictions. Some of the States have maintained the old forms of common law proceeding substantially unchanged, while others, adher- ing to them in "principle, have directed important changes in matters of detail, and others again, by " Codes of Procedure," have abrogated the common law modes, and substituted a system substantially new. Neither Congress nor the Supreme Court have by "act" "or regulation" imposed these State statutes upon the national courts throughout the country. In some of the circuits or districts, however, those courts have seen fit, in the exercise of the power given them by the acts cited to make such alterations and additions as they should deem expedient, to ado])t for their own guidance statute regu- lations prescribed by the legislatures of the States for the State courts ; while in others these regulations are disregarded, and the courts of the United States still proceed according to the methods in use when the acts cited took effect.' Even if it were practicable to review the legislation on pro- cess in aU the States, and ascertain the precise extent to which It has been adopted in particular districts by rules of the United States courts therein holden, and to give directions for process locally applicable in each district, it would not be generally useful to do so ; since only a very small portion of the entire result could be useful to any individual reader. The practitioner must consult the rules governing the pro- cedure of the Federal court in which he is about to commence an action, to learn whether the legislation of the State, upon process, has been therein adopted. If it has, the statute book, and corelative authorities upon the State practice, will guide him in the form of process (except as to style). If it has not, the proper process is that employed in the State prior to 1789, 1828, or 1842, respectively." The process generally in use in the law courts of the ' Thus it is well understood that the rules of the Circuit Court for the South- New York Code of Procedure has not ern District of Illinois provide that "the been adopted by either of the United same process shall be used in this court States courts sitting within that State, that is used in like oases in the courts except to a partial extent in the District of the State." Substantially the same Court for the Eastern District. But the provision is made by rule of the Circuit Civil Practice Act of California has been Court for the District of Vermont, adopted by a rule of the United States. ^ See United States v. Stevenson, I Circuit Court in common law cases. The Ahh. U. S., 495 ; Conkl 2V., 323-328, 24 ORIGINAL JUEISDICTION. United States, at that time, and quite generally adhered to in the United States courts, is — for the commencement of actions against individuals, the capias ad respondendum , and for the commencement of actions against corporations, the summons. The proper forms for these two are given (in Book VI.) as being very generally, though not universally applicable.' Style; teste; seal, &e. Although the body of the process issued for commencing an action at law may vary under the legislation of the differ- 'ent States, yet there are some features and matters, of form, which are prescribed by national authority, and are uniform throughout the country. In all cases the process issues from the court in which the suit is, instituted, and is issued under the seal of the court and the signature of the clerk. It runs in the name of ' ' the President of the United States ; " " it should be directed to the marshal of the district by his official designation. ° If issued from the Supreme or a Circuit Court it is tested in the name of the chief justice of the Supreme Court ;' and if issued from a District Court it is tested in the name of the judge ' of such court. It should be made return- able before the judge or judges of the court, giving the proper designation of the court, within such time as the rule applica- ble may admit ; and at the place, naming the city or village (or more particularly designating the building, if any particu- lar building has been indicated by law) where the court is to be held. ' In the State of New York a statute been recognized and allowed by rule of was passed, some years before the Code, the Circuit Court for the District of Ma- allowing actions at law to be com- ryland. menced against individuals by filing and '' To which official description iho serving a declaration instead of by issu- words "of America" are usually, though ing a capias. This practice was adopted it is presumed unnecessarily, added, for the Federal courts for the Northern ConJd. Tr., 317. District of New York ; and is recom- ' Or when he or his deputy is a party, mended by Mr. Boyoe, writing with to such disinterested pci'son as the more especial reference to the practice court or a judge thereof shall appoint of that district {Manual, 59), as always to execute it. Cnnkl. Tr., 317. preferable, unless the defendant can be ' Act of May 8, 1792, § 1, 1 Ante 25. held to bail, and is likely to leave the Or when that ollice is vacant, in the district. It is doubtless a more conve- name of the associate justice next in nient and expeditious mode, when it is precedence. I'o. allowable. The Southern District has, ' Or of the clerk, if the office of judge however, not adopted the practice ; noi', is vacant. Act of May 8, 1792 §1,1 we believe, has the Eastern. It has Ante, 25. WRITS AND PROCESS. 25 Process for commencing suits in equity. The ordinary process for the commencement of a suit in equity is a subpcena ; being the same process, in substance, as has been so long employed in the English and i\merican courts of chancery. It ig, however, subject to the directions, relative to matters of form, time and mode of issuing, service, &c., prescribed by the equity rules of the Supreme Court ; ' and the remarks above made relative to style, teste, &c , apply to this process. Otherwise than this, the general rules of equity procedure are the guides to the practitioner in this, as in most other matters affecting process in equity. For equity practice, in the courts of the United States, when not controlled by an act of Congress, or rules prescribed by the Supreme Court, is in general regulated by the chan- cery practice of the parent country, as it existed prior to the , adoption of what are called the "New Rules."" Upon this side of the court, remedies are administered, not according to the State practice, but according to the practice of courts of equity in the parent country, as contradistinguished from courts of law ; subject, of course, to the provisions of the acts of Congress, and to such alterations and rules as, in the exer- cise of the powers delegated by those acts, the courts of the United States may from time to time prescribe.' The Supreme Court is expressly authorized to prescribe such deviations from ordinary equity procedure as are necessary to adapt its process and rules to the peculiar circumstances of the country, subject to the interposition, alteration, and control of the leg- islature.* And this power has been, to a considerable extent, exercised in the "Equity Rules." Moreover, the subordinate courts of the United States clothed with equity powers are authorized, subject to the acts of Congress and the rules of the Supreme Court, to prescribe rules of equity procedure within the particular forum. Every court of equity possesses power to mold its ru^es in relation to the time and manner of appearing and answering, so as to prevent the rule from work- ing injustice. And it is not only in the power of such a court- but it is its duty, to exercise a sound discretion upon this sul ' 1 Ante, 125. 2 Sumn.. 612 ; Pomeroy v. Manin, 2 ' Goodyear v. Providence Rubber Paine. 476. Co., 2 Fish., 499; Smith v. Burnham. » Boyle i;. Zaoharie^ 6 Pe<., 648. * Q-rayson v. Yirginia, 3 DaM., 320. '26 ORIGINAL JURISDICTION. ject, and to enlarge the time whenever it shall appear that the purposes of justice require it. The rules for proceedings in the courts of equity, prescribed by the Supreme Court, do not, and were not intended to deprive the courts of the United States of this well known and necessary power.' Upon the contrary, the power has been exercised in many of the circuita or districts, by the promulgation of codes of rules which are of force only in the particular jurisdiction, and therefore are not reprinted in this work, but must be ascertained and con- sulted by the practitioner in each of the courts where they exist. But, after all the directions upon procedure given by statute or by rules of court are considered, there remains a broad field over which it cannot be said that there are any reg- ulations peculiar to the Federal courts. Within it, the proper guide for the practitioner is not, as in the case of pro- ceedings at law, the practice authorized by the law of the particular State, so far as adopted, but the general canons and rules of chancery procedure as established by the decis- ions of the courts of equitable jurisdiction in this country and in. England. Reasons of convenience have led to mentioning process in equity and admiralty before the subject of pleading ; but it may be well to remind the practitioner that, by the equity and admiralty rules respectively, the process does not issue in either court until the bill or libel has been filed. Process for commeucing suits in admiralty. The remarks which have just been made relative to the general principles upon which process in equity is regulated, apply, with change of name, to process in admiralty. In so far as admiralty procedure in the courts of the United States is not expressly regulated by statute nor by the Admiralty Rules prescribed by the Supreme Court, it is governed by the local rules which may have been promulgated in and for the particular District Court in which the" suit is brought. If _such rules are wanting, the next guide for the practitioner is, not any laws of the States on the subject (indeed there are none), but the general course of admiralty procedure as ad- ministered m courts of maritime jurisdiction abroad. ' Poultney v. City of Lafayette, 12 Pet, 472. WRITS AND PROCESS. 27 The process issues after, not before, the libel has been filed in the clerk's office. The directions previously given as to style, teste, seal, &c., apply to admiralty. The substance of the process is prescribed by the Admi- ralty Rules. In suits in personam, the mesne process is either, 1. A simple warrant of arrest, in the nature of a capias / or, 2. A warrant of arrest of the person of the de- fendant, with a clause therein 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.' In all cases of seizure, and in other suits and pro- ceedings in rem, the process (unless otherwise provided by statute) is a warrant of arrest of the ship, goods, or other thing to be arrested." The question whether process in personam or in rem is appropriate is determined for a majority of cases by Admi- ralty Rules, Nos. 12-20.° The question which species of pro- cess in personam of the three kinds above mentioned should be used, is at the option of the libelant, subject to the obvious restriction that process for arrest is not issued unless the cause is one in which the defendant may be arrested. SerTice and return. Process for the commencement of suits may be served in any part of the district in which it is issued." This is the gen- eral rule, and conforms to the principle that no civil suit shaU be brought in the national courts by any original process in any other district than that whereof the defendant is an in- habitant, or in which he shall be found at the time of serving the writ.' Special rules for suits brought in States containing ' Admiralty Rules, No. 2, 1 Ante, 149. process, there are two cases, and only ' Admiralty Rules, No. 9, 1 Ante, two, in whicli writs of execution can 150. now by law be served in any other dis- ' 1 Ante, 151. triet than that in which ihe judgment 'Congress might have authorized was rendered; one in favor of private civil process from any Circuit Coui-t to persons in another district of the sam^ have run into any State of the Union. State; and the other in favor of the It has not done so. It has not, in terms. United States, in any part of the United authoiized any civil process to run into States. So held, in 1838, Toland v. any other district; with the single ex- Sprague, 12 Pet., 300. ception of subpoenas to witnesses within 'Act of September 24, 1789, §11. a limited distance. In regard to final 1 Ante, 7. 23 ORIGINAL JURISDICTION. more than one district are prescribed by the act of May 4, 1858. ■ Some difficulty has been experienced in applying the gen- eral rule of the act of 1789 to suits brought against corpora tions. When is a corporation defendant to be deemed an " inhabitant " of the district within which the suit is brought, or "found within it," within the meaning of the statute? It is held that a corporation created by the laws of one State is not rendered . liable to be sued by process served in another State, by the fact that it carries on business in the latter State, and that the process has been delivered to its officers or agents found therein. Nor does the fact that the laws of the latter State allow process from the State courts to be served upon foreign corporations doing business within its borders, or even the fact that the particular corporation in question holds and exercises a franchise within the State in which the service has been made, upon the condition that it shall maintain an officer or agent within the State, upon whom the process of the State courts may be served. The national courts can- not give effect to such State laws, providing for service of process on foreign corporations. They are governed, as to service, by the requirement of the Judiciary Act, that the de- fendant must be an inhabitant of the district, or be served with process within it, in order to give the court jurisdiction. Ser- vice of process against a corporation created by One State, which is made, by the assent of the corporation, upon an agent within another State, cannot be said to be service upon an inhabitant of a district or upon a person within it. The corporation is still a foreign corporation resident within the State of its creation, but consenting to be sued in another State by delivery of process to its agent therein ; and however effectual such service may be, to give jurisdiction to tribunals governed by the laws of the State, it cannot have that effect in respect to the national courts, for which the act of Congress has prescribed a different rule." The service of process generally may be made by the mar- ' 1 Ante, 78. other districts of the same State. Win- Under the act of May 4, 1858, and ter v. Ludlow, 3 Phil, 464 ; 16 Leg. under the previous law and practice of Int., 332. the Circuit Courts in equity, a sub- " Pomeroy v. New York & New poena issued in a suit in equity, out of Haven R, R. Co., 4 Blaichf., 121. And the Circuit Court, for either of two dis- see Day v. Newark India Rubbej tricts of a State, may be served in the Manuf. Co., 1 Id., 628. V7RITS AND PROCESS. 29 slial or by Ms deputy, either general or special, or by a person specially appointed by the court for the purpose. ' The usual evidence of service is the written return of the olBcer or person by whom it was made, in which he brieily certifies whatev.er he has done in pursuance of the command of the process. The return should state that the service was made within the district." In respect to the mode in which service is made, the powers and duties of the officer holding the process, &c., the dourse" of practice in the United States courts is in general substan- tially the same with that of other courts exercising the same jurisdiction.' It has been held that one who comes within the jurisdiction of one of the United States courts for the purpose of attending as suitor or witness upon a proceeding there pending, ought to be protected from the service of process (with or without arrest) issued for the purpose of commencing a suit against him within that district;* the ground of the decision being thus stated : " The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes inter- rupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify. Witnesses would be chary of coming within our jurisdiction, and would be exposed to dangerous influences, if they might be punished with a lawsuit for displeasing parties by their testimony ^ and even parties in interest, whether on the record or not, might be deterred from the rightfully fearless assertion of a claim, or the rightfully fearless assertion of a defense, if they were liable to be visited on the instant with writs from the defeated party. " As the privilege of the court, this incidental immunity to ' See Equity Rules, No. 15, 1 Ante., ' See Equity I^ules, No. 13, 1 135; Admiralty Rules, No. 1, Id., 149. Ante, 135, Ibr mode of service of sub- Judge OoNKLiNO suggests (^realise, poena. 319), tliat the general deputy of the * Parker v. Hotchkiss, 1 Wall. Jr. Q. marshal may, upon general principles, Ci., 269. ' appoint a person to serve process in The language of the report appears a particular case. But this view seems to rest the case vpon the fact that the inapplicable to equity and admiralty person served resided in another cir- process at least, under the express Ian- cuit ; but the principle, appears applioa- guage of the rules above cited. ble where the residence, is in another "Allen V. Blunt, 1 Blatch/., iSO ; 8 district. N. Y. Leg. Ohs., 105. 30 ORIGINAL JURISDTCTIOK the party can scarcely be the subject of abuse. It can be exercised or not in each particular pase, as the ptirposes of substantial justice may seem to require. The suitor or the witness from another jurisdiction may be relieved ; he who is at home here amongst us, suffering no inconvenience from the service, may be refused his discharge." It has been held that an original writ has fulfilled its func- tions when the defendant is brought into court. If it is after- wards lost, the court can, in its discretion, provide for the filing of a copy.' li-rest and bail, at law. The subject of arrest and bail, is one of those points upon which the practice of the United States courts in actions at law depends so largely upon the local law of the particular State, that no rules can be laid down, as to details, which will be extensively applicable. Except in instances as to which Congress has by act declared defendant liable to an arrest, ° the right to hold the defendant to bail is determined by reference to the State law. The doctrine of the Federal courts on this subject, is thus stated by Judge Conkliwg : " It is now well settled by the de- cisions of the Supreme Court, that the subject of arrest and bail belongs to the category of procedure. The prospective adoption of the State laws, by the Judiciary Act, as ' rules of decision,' does not, therefore, embrace it. It was provided for by the process acts of 1789 and 1793, by which the then existing State laws of procedure were adopted. The policy of these acts has since been extended to the new States ; and, so far as final process is concerned, re-asserted with regard to all the States, by the act of May 19, 1828, and again extended by the act of August 1, 1842." = In addition, therefore, to what has been decided in the courts of the United States, the practitioner must consult the common law practice of his own State, as his guide. The right to an arrest, the mode of obtaining and making it, the qualifications of bail and mode of putting in bail, and other ' York & Cumberland R. R. Co. v. be held to special bail. But see remarks Myers, 18 How., 246. on ihe effect of the act of 1841, upon ° The duties collection act of March 2, this provision, Conkl. Tr. 325. 1799, declared that defendants in suits ° See previous explanation on this for duties or pecuniary penalties might subject, anie, 22, and note 2. WRITS AND PROCESS. 31 matters incident to the remedy- of arrest, are largely deter- mined by the local law.' The Judiciary Act directs that no person shall be arrested in one district for trial in another, in any civil suii; before a Circuit or District Court." This is not, however, a restriction upon the jurisdiction of the court, but a mere personal privi- lege conferred upon a defendant. If he appears and pleads generally, without raising the objection, it is waived.' The courts of the United States recognize a privilege of per- sons necessarily in attendance upon courts of justice, to be exempt from arrest so far as to protect them in their attendance, and in going and returning. This privilege from arrest extends to suitors, witnesses, jurors, and officers, and consequently to the presiding officers of the courts of justice ; an(J protects them, while in attendance upon their public duties, from arrest, summons, or any other civil process." Members of Congress, in all cases except treason, felony, and breach of the peace, are also, by the Constitution, privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.* And, upon familiar grounds of public law and national comity, foreign ministers, and officers of foreign governments, are in general entitled to an exemption. Arrest in admiralty'. The right to arrest the person of a defendant in admiralty is largely regulated by the admiralty rules of the Supreme Court. They provide that in suits in personam, the mesne process may be by a simple warrant of arrest, or by a warrant of arrest with an attachment clause, or by a simple monition. ° Where a sim- ple warrant of arrest issues and is executed, the marshal may take bail for the appearance of the defendant, and that he will abide by all orders of the court, and pay any money awarded by final decree. Upon the bond or stipulation summary pro- cess of execution may be issued against the principal and sure- > the reader will find a brief but Blight v.. Fisher, Pet. 0. Ct., 41 ; Ex-]. useful view of the duties of a United Hurst, 1 Wa-ih. Q. Gt., 186; 4 Doll, 387 States deputy marshal, in executing " Co)is<. o/ K 5., Art. I., § vi., 1. process of arrest, in Murray's U. S. Tlie privilege of a member of Con- Conrts, p. 28; and a sketch of the New gress, thougli it extends both to judicial England and Nortliern New Yorlv prac- .or final process, and to mesne process, tico in ConJding's Treatiie, p. 327. does not extend to the right to continue " Section 11. 1 Ante. 7. a cause pending in court. Nones v. » Gracie v. Palmer, 8 WJieat., 699. Edsall, 1 WaU. jr., 189. ' Lyell V. Goodwin, 4 McLean, 29. " Admiralty Rules, No, 2, 1 Ante, Compare Geyer v. Irwin, 4 Dull, 107 ; 149. 32 ORIGINAL JURISDICTION. ties to enforce tlie final decree.' The amount of bail required may be reduced, in proper cases ; and in event of insolvency of the sureties originally given, new sureties may be required.' No warrant of arrest shall issue for a sum exceeding five hun- dred dollars, unless by the special order of the court, upon afii- davit or other proper proof.' In suits in personam, where 'a simple warrant issues and is executed, bail shall be taken in those cases only in which it is required by the laws of the State where an arrest is made upon similar or analogous process issu- ing from the State courts ; and imprisonment for debt is abolished in those cases where, by the laws of the State, impris- onment for debt has been or shall be hereafter abolished.' Subject to these rules, and to such regulations as may have been prescribed in particular districts, the general principles of admiralty procedure, as administered abroad, govern arrests in admiralty in the Federal courts. It wUI be observed that the right to have an arrest is now subject to two restrictions peculiar to the courts of the United States. One is that the cause of action must be one of that general nature that the law of the State would allow an arrest upon it, upon process from a State court. The other is that if the sum for which the defendant is arrested exceeds five hun- dred dollars, a special order of the court, upon proofs pro- duced, must be obtained. The arrest is made by the marshal or his deputy ; and in the usual manner, and subject to the usual incidents of arrests in other jurisdictions. The duty of the officer is to detain the defendant, when arrested, in custody, until the latter has been discharged by order of the court ; or has put in bail conform- ably to the requirement of the process. The undertaking of the bail may be in the form of a bond or stipulation ; should be drawn in favor of the libelant by name ; but delivered to the marshal, or taken by a commissioner ; and by either transmit- ted to the clerk of the court. ' Admiralty Rules, No. 3, \ Jnte, 149. prisonment act of the State of New » AdniiraUy Rules, No. 6, 1 Ante, 150. York (1 Rev. Stat. 807, § 1), althouijh ' Admiralty Rules, No. 7, 1 Ante, 150. made to bewithiu tliat State the law of 'Admiralty Rules, No. 48, ■ 1 Ante, the United States also, by I'orce of the 15fi. Rule No. 48 was prescribed in acts of Congress of 1839 and 1841, 1850; subsequent to the decisions in did not embrace arrests upon process Gardner v. Isaacson (Abb. Adm., 141; issuing out of a maritime court, as the 6 A' T. Leg. Ohn., 77); and Gaines ■!;. words of the statute were limited tt, Travis {Abb. Adm., 422; 8 iV, Y. Leg. civil process issuing out of coiwte q/?aw, Obn., 45.). and executions out of courts of equity. Those cases held that the non-im- CHAPTER IV. EEMOYAL OF CAUSES. The mode by which, a court of the United States acquires jurisdiction of a cause removed to it from another tribunal rests, — unlike jurisdiction acquired by mesne process, — wholly upon a system peculiar to the national co^irts. No parallel or analogous course for transferring actions from one forum to another, gives the practitioner any material aid in determining the steps to be pursued. The subject is regulated wholly by the laws of the United States. It recLuires, therefore, an extended explanation in our pages.' The two kinds of removal. Two systems of provisions exist, authorizing one of the national courts to take jurisdiction of a cause upon its removal. One system relates to suits or proceedings originally commenced in a State court ; but allowed to be removed to a national court at the instance of the defendant, because it is deemed that he has the right to invoke the national jurisdiction in preference to that of the State, if he prefers so to do. The other relates to actions instituted in one of the Federal courts in the first instance, but which for some special reason cannot be there prosecuted, and which are allowed to be removed to another, either at the instance of a party, or on the motion of the court, to prevent a failure of justice. Removal from State to Federal courts. The classes of cases in which a cause commenced in a court of one of the States may be removed, at the instance of a party, ' The substance of the first part of this chapter was communicated to the American Law Register for January, 1870. YbL. 11.-5 34 ORIGINAL JURISDICTION. to a court of the United States, have been very largely increased by recent legislation. To enable the reader to under- stand the present scope of the right of removal, it will be most advantageous to trace the course of legislation chronologically. It should, however, be premised that the right of removal is not CO- extensive with the grants of judicial power contained in the Constitution ; but is limited by the provisions which Congress has seen fit to enact upon the subject. For it is a principle un- derlyuig the national jurisprudence, as has been fuUy exhibited in the previous volume, that although the judicial power of the United States is declared by the Constitution, the provisions of that instrument are, in general, and as respects the subordi- nate courts, declaratory of the power of Congress to confer jurisdiction, rather than of the actual existing jurisdiction of such courts. The existence of judicial power depends upon the provisions of the Constitution ; its exercise depends upon acts of Congress made in conformity to the Constitution. Tha acts of Congress define the limits up to which the jurisdiction of the courts actually extends. The provisions of the Constitu- tion define ulterior limits, beyond which their jurisdiction can- not be extended. Hence the cases in which a party may invoke the jurisdiction of the Federal courts to supersede that of the State court, by a removal of the cause from the latter to the former, are to be ascertained in the acts of Congress. If indeed it should appear that such an act assumed to provide for a case which was not withta the judicial power of the United States, as defined in the Constitution, a question of con- stitutional law would arise, in which the Supreme Court would doubtless hold the right of removal contemplated by the statute to be controlled by the limits fixed by the Constitution. But unless a statute exists enabling one of the national courts to accjuire jurisdiction by removal, it can lay no claim to do so. The Judiciary Act. The first instance in which authority was given to remove causes from the courts of the States to the courts of the United States, was by section 13 of the Judiciary Act.' It provided that if a suit be commenced in any State court Against any alien, or » Act of September 24, 1789; 1 Stat, at L., 79 ; 1 Ante, 8. EEMOVAL OF CAUSES. 35 By a citizen of tlie State in wliicli the suit is brought against a citizen of another State, And. the matter in dispute exceeds the sum or value of five hundred dollars exclusive of costs, or If a cause involved a claim of title to land exceeding five hundred dollars in value, arising under a grant from a State other than that in which the suit is pending, The defendant might claim a removal of the cause to the courts of the United States. To justify the removal of a suit under this provision, the matter in dispute must be made to appear to exceed the limit of five hundred dollars. This may appear by the writ or pro- cess, if the declaration or complaint, discloses no precise sum, or by the declaration or complaint in preference to the writ, if a specific sum is claimed therein. And if doubt exists as to what is the real amount in dispute, the court, upon the application for removal, may inquire into the amount by evidence. Al- though, if the court be satisfied that the plaintiff intends to recover no more than that amount, it ought not to allow the case to be removed, yet, ' on the other hand, it ought not, by amendment or permitting the release of damages, to allow the plaintiff to defeat the right of removal, if at the time of the application the case shows clearly that the plaintiff intended or sought to recover more than that amount.' The fact that the defendant in an action properly brought in a State court, sets up a demand as a counter-claim which might be prosecuted ia a Federal court, does not entitle the plaintiff to claim a removal of the controversy as to that demand, to the latter tribunal. By sueing in the State court the plaintiff sub- mitted himself to its jurisdiction as to any counter-claim. And the action cannot be split into fragments, under the name of removal." Serenne causes (Act of 1S33). The Judiciary Act was for many years the only provision for the removal of causes. But in 1833' the case of actions against revenue officers was provided for. ' Ladd V. Tudor, 3 Woodh. & M., 325 ; ' West v. Aurora City, 6 Walt., 139. Kanouse v. Martin, 15 Ebw., 198. And ' By the act of Maroli 2, 1833, § 3, see Wright v. Wells, 1 Pet. C. Ct., 220. 1 Ante, 52. 36 ORiaiNAL JURISDICTION. By that statute it was enacted that in any case where suit or prosecution should be commenced in a court of any State against any officer of the United States or other person, For or on account of any act done under the revenue laws of the United States, Or under color thereof ; Or for or on account of any right, authority, or title set up or claimed by such officer or other person under such law of the United States, — A similar removal should be allowed. This statute differs from the preceding, in that it gives the right of removal in any cause falling within its provisions, inde- pendently of the amount in controversy. No objection can be raised in these cases to proceeding in the courts of the United States on account of the trifling value of the property or subject of action.' The post-office laws have been held to be "revenue laws " within this statute ; so that a postmaster, sued in a State court for refusing to deliver a letter, is entitled to remove the cause into the Circuit Court." Suits for military arrests. During the civU war of 1861-5, Congress made provision for removal from State to Federal courts of suits and prosecutions commenced Against any officer, civil or military, or against any other person, , For any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done at any time during the rebellion, by virtue or under color of any authority derived from the United States, under the President of the United States, or any act of Congress." An officer acting in good faith under a warrant purporting to come from his superior, whom he is bound to obey, is acting under " color of authority,'''' within the meaning of the section, whether the superior transgresses his power, or the warrant be irregular or not." ' Wood V. Mathews, 2 Blatclif.. 370; 82; amended by Act of May 11, 1866, 23 Vt, 735. ' Id., note 2. ' Warner v. Fowler, 4 Blatchf., 311. * Hodgson i^.Millward, 3 Grant Cas. ' Act of March 3, 1863, § 5, 1 Ante, 418. REMOVAL OF CAUSES. 37 Cases under the Civil Riglits Bill. By the Civil Eights Bill' jurisdiction was given to the Dis- trict Courts of aU causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribu- nals of the State or locality where they may be, the rights secured to them as citizens by the first section of the act. And the act provided that if any suit or prosecution, civil or crimi- nal, has been or shall be commenced in any State court,- Against any such person, for any cause whatever, or Against any officer, civil or military, or other persop, for any arrest or imprisonment, trespasses or wrongs done or cpm- mitted by virtue or under color of authority derived from this act, or the act establishing a bureau for the relief of freedmen and refugees, and aU acts amendatory thereof, or for refusing to do any act upon the ground that it would be inconsistent with this act, such defendant shall have the right to remove such cause for trial to the proper District or Cu'cuit Courts. Internal Eeyenue cases (Act of 1866). In 1866 the Internal Revenue law was revised and re-enacted. In reference to suits against revenue officers or persons acting under them, the act contains a provision similar to that above stated in reference to revenue causes, under the act of 1833. This provision" enacts "that in any case, civil or criminal, where suit or prosecution shall be commenced in any court of any State, Against any officer of the United States, appointed under or acting by authority of the act entitled 'An Act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,' p^-ssed June thirtieth, eighteen hundred and sixty-four, or of any. act in addition thereto or in amendment thereof, or Against any person acting under or by authority of any such officer on account of any act done under color of his office, or Against any person holding property or estate by title derived from any such officer, concerning such property or estate, and affecting the validity of this act or acts of which it is amendatory," The proceedings may. be removed. ' ' Act of April 9, 1866, 1 Ante, 88. " Act of July 13, 1866, § 67, 14 Stat, at L., 171. 38 OEIGmAL JURISDICTION. Citizenship of co-defendants (Act of 1866). Under section 12 of the Judiciary Act (the provision first above cited), it was settled that a cause could not be removed at the instance of one of several defendants ; that to bring the case within the act aL. the plaintiffs must be citizens within the State in which the suit is brought, and all the defendants must be citizens of some other State or States.' The act of July 27, 1866," extends the provisions of the ori- ginal act in this respect. It provides as follows : " If in any suit already commenced, or that may hereafter be commenced, in any State court. Against an alien, or By a citizen of the State in which the suit is brought against a citizen of another State, And the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, to be made to appear to the satis- faction of the court, A citizen of the State in wMch the suit is brought is or shall ie a defendant, And if the suit so far as relates to the alien defendant, or to the defendant who is the citizen of a State other than that in which the suit is drought, is or has ieen instituted or prose- cuted for the purpose of restraining or enjoining him, or If the suit is one in which there can he a final determina- tion of the controversy, so far as it concerns Mm, without the vresence of the other defendants as parties in the cause ; Then and in every such case the alien defendant, or the, de- fendant who is a citizen of a State other than that in which the suit is brought, may, at any time before the trial or final hear- ing of the cause, file a petition for the removal of the cause as against him." The new provision is indicated above, by italics. By this statute, then, one of several defendants who is an alien or citizen of a State other than that in which the suit is brought, may have it removed, if it was instituted for the pur- pose of restraining or enjoining him, or if the suit is one in which the controversy can be finally determined as to him with- out the presence of the other defendants. ' Beardsley -y. Torry, 4 Wash. C. Cl., Blatchf., 84; Wilson v. Blodget 4 Mc 286 ; Ward v. Arredondo, 1 Paine, 410; Lean, 363. ' Hubbard v. Northern B. B. Co., 3 ' 1 Anie, 92. REMOVAL OF CAUSES. 39 By a siibseq[uent clause of the statute tMs does not pte^U' dice the right of the plaintiflf to proceed m the State court aS against the other defendants. The effect of this statute, there- fore, is to authorize a severance of the suit at the instance of an alien or foreign defendant, who would have been entitled to re- move the cause had he been sued alone, but would not have been entitled to remove it under the former statute because sued together vrith other defendants, who are not within the act. RemoTal on account of local prejudice. There is a subsecLuent statute of the fbUowing year,' which, in form, is an amendment of the last mentioned act. We re- gard it, not as a substitute for the act, but an amendment by way of addition, and consider that the stattite, as amended, contains the provisions of the act of 1866, in their original form, with the addition of those of 1867, fextending the right to another class of cases, and allowing removal on a wholly differ- ent ground. Both statutes stand together. The provision which defines this new ground of removal, is as follows : " Where a suit is now pending, or may hereafter be brought in any State court, in which there is controversy Between a citizen of the State in which the suit is brought and a citizen of another State, And the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, Such citizen of another State, whether he be plaintiff or defendant, If he will make and file, in such State court, an affidavit stating that he has reason to and does believe that, from preju- dice or local influence, he will not be able to obtain justice in such State court, may, at any time before the final hearing or trial of the suit, file a petition in such State court for the removal of the suit."" Suits against corporations. The removal of actions against corporations organized under ' Act of March 2, 1867, 1 AnU, 122. whether an order of removal, made by * As to whether a petition filed after an inferior State court, is reviewable by & judgment in an inferior State court an appellate court dt the State, see which has been reversed by the Su- Akerly v. Vilas, 8 Am. Law. Reg. N. S., preme Court of the State is in time, and 229; and contra, S. C, 7d^j,558. 40 ORIGINAL JURISDICTION. the laws of tlie United States is provided for by the act of July 27, 1868/ This act provides "that any corporation, or any member thereof, other than a banking corporation, organized under a law of the United States, and against which a suit at law or in equity has been or may be commenced in any court other than a Circuit or District Court of the United States," " upon filing a petition therefor, verified by oath, either before or after issue joined, stating they have a defense arising under or by virtue of the Constitution of the United States, or any treaty or law of the United States, and offering good and sufficient surety," may have the cause removed. A question may arise as to what corporations are within the purview of this act. It may be thought that the language of the first line is ambiguous ; if the words "organized under a law of the United States" qualify the words "banking corpo- ration" in immediate contiguity to which they come, then this statute applies to aU corporations except national banks. But if they qualify the first member of the sentence "any corpora- tion or any member thereof," then the statute applies only to national corporations, and banks are excepted. The former construction would be the proper one if the comma after the words " banking corporation " were struck out, and the word " and," which commences the next following qualifying clause, were also struck out. In this case the provision would read thus : — any corporation, or any member thereof, other than a banking corporation organized under a law of the United States, agatast which a suit at law or in equity has been commenced, &c. It is necessary to make these changes in the letter of the statute, in order clearly to give the language that more extended application. And although it may be a nice question of con- struction, dependent upon slender tests, yet the statute, so far as the interpretation is to be gathered from its mere language, seems applicable only to corporations and members of corpora- tions, organized under a law of the United States, banking cor- porations being excepted. But the practical objects of the statute may warrant the more extensive interpretation. Actions against carriers (Act of 18G9). . An act passed in 1869" contains an extension of the pro- • 1 Ante, 123. • ' Act of January 22, 1869, 15 Stat at L., 267. REMOVAL OP CAUSES. 41 visions of the act of- Marcli 3, 1863, wMcli, altlioiigli it may not long possess practical importance, must not be overlooked. It declares tliat the provisions of the act of 1863, which we have recited, shall extend to any suit or action at law or prosecution, civil or criminal, which has been or shall be commenced in any State court against the owner or owners of any ship or vessel, or of any railway, or of any line of transportation, firm, or cor- poration engaged in business as common carriers of goods, wares, or merchandise. For any loss or damage which may have happened to any goods, wares, or merchandise whatever, which shall have been delivered to any such owner or owners of any ship or vessel, or any railway, or of any line of transportation, firm, or corpora- tion, engaged in business as common carriers, Where such loss or damage shaU have been occasioned by the acts of those engaged in .hostility to the government of the United States during the late rebellion. Or where such loss or damage shall have been occasioned by any of the forces of the United States, or by any officer in com- mand of such forces : Provided, That this act shall not be construed to affect any contract of insurance for war risks which may have been made with reference to any goods, wares, or merchandise, which shall Lave been so destroyed. Becapitulation. These complex provisions, recapitulated in the order of their practical importance to practitioners, may be indicated or enu- merated as follows : The right is given to — " An alien defendant or defendants, if the matter in dispute is over five hundred doUars ; . An alien defendant or defendants, joined -with a defendant who is a citizen of the State in which the suit is brought, if the suit is to restrain or enjoin the alien, or if there can be, a final determiaation of the controversy as to him, without the citizen defendant,, and if the matter in dispute exceeds five hundred dollars. A citizen or citizens of one or more States, sued in a State court in a State whereof none of them are citizens, and whereof the plaintiff or all the plaintiffs are citizens, if the amount exceeds five hundred dollars ; 42 ORIGINAL JURISDICTION. A citizen of a State other than that in which the suit- ia brought, sued in a State court/ by a plaintiff or plaintiffs who are citizens of that State, although a defendant who is also a citizen of the plainttfiPs State is joined, if the suit, so far as relates to the foreign defendant, is brought to restrain or enjoin him, or if there can be a final determination of the controversy as to hitn, without the other defendants ; and if the amount exceeds five hundred dollars ; Either party to a suit between a citizen of a State in which the suit is brought and a citizen of another State, where the amount exceeds five hundred dollars, and from prejudice or local influence such party will not be able to obtain justice in the State court ; Any national corporation other than a bank (perhaps any corporation other than a national bank), sued in any State court, if the defense turns on the Constitution, laws, or treaties of the United States ; The defendant in a cause involving a claim of title to land, exceeding five hundred dollars in value, arising under a grant from a State other than that in which the suit is pendiag ; Any person sued or prosecuted ia a State court on account of acts under the revenue laws or under color thereof ; Any person sued or prosecuted in a State court and holding property or estate by title derived from revenue officers, or claiming under them in various cases specified ia the statute, whatever may be the amount ; Any person sued or prosecuted for alleged wrongs, under color of authority derived from the Civil Rights Bill or Freed- man's Bureau Act, or for refusing to do any act on the ground that it would be inconsistent with the Civil Rights Bill ; Any person sued or prosecuted for alleged wrongs, under color of government authority duriag the rebellion ; or for loss or damage occasioned by acts of persons in rebellion, or of forces of the United States, to property received for transporta- tion by defendant as a carrier. Mode of obtaining remoral. The application for a removal is made in the State court ;' not in the court to which the removal is to be made. Hence ' Except under the act of 1833. 1 Ante, 52. EEMOVAL OF .CAUSES. 43 tile decisions upon the method of obtaining it are to be souglit in tlie reports of the State courts. For the most part, however, the mode of procedure is very definitely pointed out by the statutes granting the right, to which the reader's attention has been already called. The Judiciary Act required that the defendant should " at the time of entering his appearance" file a petition for removal. The cases under tMs provision concur in holding that this re- quirement niust be strictly enforced ; and if the defendant has once appeared in the State court without fiGling his petition, the right of removal is gone. It cannot be aided by any order of the State court. But the later statutes do not impose this requirement. The removal authorized by the act of 1833 may be obtained "at any time before trial." The same is true un- der the Internal Kevenue Act of 1866, the act of July 37, 1866, and the act of March 2, 1867. The broad expression of the act of July 27, 1868, relative to corporations, is that " upon filing a petition, either before or after issue joined," the defendants may have the cause removed ; but as the right of removal guaranteed by this statute is founded upon the existence of a defense under the Constitution, laws, or treaties of the United States, it would undoubtedly be deemed waived by actually going to trial in the State court, and thus submitting the investi- gation of the defense to that tribunal. The removal authorized by the Habeas Corpus Act of 1863, the Civil Eights BUI of 1866, and the act of January 23, 1869, respectively, may be ob- tained (under the aniendatory act of 1866) before a jury is im- panneled to try the cause, The result is that when the removal can be claimed under any of these statutes, the claim may be interposed at any time before the impanneling a jury ; under some, even after. It is not easy to predict to what extent cases wiU arise, in which, by reason that they depend solely upon the original provision of the Judiciary Act, the rule formerly so important, that the right was lost by appearing without claiming it, will be applied. In general, the application for removal is matter of right, and must be so regarded and treated in the State court, if it ia seasonably and duly naade, and the case presented by the ap- » " Before the final hearing or trial." Akerly v. Yil^s, 1 All. U. S., 281 44 ORIGmAL JURISDICTION. plicant is within the provisions of an act of Congress authoriz- ing a removal. It is not addressed to the discretion of the State court. We believe the decisions differ as to necessity of serving notice of the motion and copies of the papers on the plaintiff. Should the State court erroneously refuse the ap- plication for removal, any judgment afterwards rendered against the defendant may be reviewed in the Supreme Court (on writ of error, under section 25 of the Judiciary Act), and the cause ordered to be transmitted back to the court in which* it origiaated, with directions to allow the petition of defendant for removal." And it has also been held that in case of an im- proper refusal on the part of a State court to order a removal, the right may be enforced by mandamus. ' Procedure after reiuoral. When an order has been made removing a cause from a State court to the Circuit Court, certified copies of the process or papers by which the suit was commenced in the State court, and of an order of that court for the transmission of them, should be sent to, and entered in the Circuit Court." The cause then stands, in the Circuit Court, just as if it had been originally commenced in that court." And after the removal has been thus completed, any fur- ther proceedings of the State court are without jurisdiction." The act of March 2, 1833, contains provisions enabling the court of the United States to allow the record to be supplied by afiidavit or otherwise, in case of the failure of the clerk ^of the State court, upon a proper application, to transmit certi- fied copies. ' Grordon v. Longest, 16 Pet, 97. what purported to be a copy of a dec- A State court cannot refuse to per- laration in the action in the Statu mit an alien defendant to remove his court, but the copy was not certified cause into the United States Circuit from the State court, or accompanied Court, if the requisites of the act of by a certified copy or any order of the Congress have been complied with. State court for its transmission, and After such refusal, all subsequent pro- then entered a rule to declare, it was ceedings in the State court are coram held that the rule to declare must be non judice. Matthews v. Lyall, 6 Mc- vacated, and the copy declaration ba Zean, 13; Brownell v. Grordon, life- taken from the files. lb. All, 207. ' McLeod v. Duncan, 5 McLean, 342- = G-ordon v. Longest, 16 Pet., 97. Gier v. Gregg, 4 Id., 202. ' Conkl. Tr., 155. > ' Kanouse v. Martin, 15 How., 198; ' Martin v. Kanouse, 1 Blatchf., 149. Gordon v. Longest, 16 Pet., 97. As to Where the defendant, instead of themodeof objecting to a removal whfea adopting the above course, entered wrongly granted, see Dennistoun v. Draper, 5 Blatchf., 336. REMOVAL OF CAUSES. 45 After the removal of a cause has been completed, the pro- ceedings already had in the State court will often require mod- ification, in order to adapt them to the practice of the Circuit Court. The entire proceedings from' the beginning must be capable of being sustained under the rules and practice of that court. Where an attachment made in a State court would, by the law of such State, hold the property as against a foreign assignment for the benefit of creditors, the same effect will be given to it by the Circuit Court, to which the action has been removed under section 12 of the Judiciary Act.' But when at the commencement of the cause in the State court a complaint has been served pursuant to a peculiar sys- tem authorized by the legislation of the State not adopted by the Circuit Court, and not embodying the requisites of a decla- ration at common law, the plaintiff must declare anew, in the Circuit Court.* EemoTal from one Federal court to another, it has been decided that Congress has power to direct a transfer of a cause from one inferior court of the United States to another.' This power has been exercised by several enactments providing for the ordinary occasions requiring such removal. One class of cases in which such removal is allowed includes those in which the judge of the court in which the action is brought, ought not, by reason of some interest or probable bias, to preside at the trial. Cases of this description are covdred by two acts, relating to the Circuit and the District Courts respectively. The act of March 8, 1821,' provides for removal of suits and actions from a District to a Circuit Court, whenever it shall' appear that the judge of the District Court "is any ways con- cerned in interest or has been of counsel for either party, or is so related to or connected with either party as to render it im- proper for him, in his opinion, to sit on the trial of such suit or action." ' Clarke v. Chase, 11 Law Sep. K S., ' Stuart v. Laird, 1 Oranch, 299. 394. • 1 Ante, 45. " See this rule more fully explained See also the earlier act of May 8^ in Suydam v. Ewing, 2 Blatchf., 359; 1792, § 11, 1 Stat, at L., 278; Spencei quoted Ante, 18, v. Lapsley, 20 Bow., 2G4. 46 ORIGINAL JURISDICTION. Tlie act of February 28, 1839/ makes provision for removal, upon the same ground, of causes pending in one Circuit Court to the most convenient Circuit Court in the next adjacent State or circuit. The mode of procedure to obtain such removal, is distinctly prescribed by the acts themselves. The disability of a judge to hold court may obviously form a ground for transferring causes pending in his court to some other. But as this affects the trial of all causes then pending, ' the evU may more advantageously be met, ordinarily, by the designation of another judge to hold the court during the disa- bility. The act of March 2, 1809," provided that in case of the disabihty of a district judge, the Supreme Court justice alloted to that circuit might certify into the next Circuit Court, all actions depending in the District Court.' This provision is probably stiil in force, but it has lost practical importance under later legislation authorizing the designation of another judge to hold the court of one under a disaibility.'' The same remedy exists, for the disability of a c^7•CM^^ judge.' Special provisions are made for remitting criminal causes from a Circuit to a District Court, or from a District Court to a Circuit Court, vrhen the district-attorney deems it necessary, by the act of August 8, 1846 ;° and for, removing Jpr^^;e causes from Circuit Courts to the Supreme Court, by act of June 30, 1864.' ■ Section 8. 1 Ante, 57. ♦ Act of July 29, 1850, 9 Stat, at L., ' Section 1. 2 Stat at L., 6Zi. 442; Act of April 2, 1852, § 1, 10 ' Under this provision it was held Id., 5. that, where causes have been certified ' Act of March 3, 1863, 12 Stat, at L., into the Circuit Court, on account of 7G8, § 1. the disability of the district judge, and ° Section 2. 1 Ante, 63. that disability terminates by his death, This act does not apply to civil ac- the Circuit Court must remand the tions. Campbell v. Kirkpatriclf, 5 Mc- causes that have been thus certified, Lean, 175. to the District Court. Mxp. Uuited ' Section 13. 13 Stat, at L., 310. States, 1 QaU., 338. CHAPTEE V. APPEARAIifOE: DEFAULT. These gubjeets are not very folly or formally regulated by standards of practice peculiar to the national courts. There are, however, some rules and adjudications to which the reader's attention should be called. Appearing by attorney. The right of parties to causes in the national courts to appear by attorney, was recognized by the original Judiciary Act,' and is there fully defined and declared, as respects the ordinary case of a natural person made a party to a civU con- troversy." It has been decided, in applying this provision to the case of corporations, that although an authority from the corporation is necessary to entitle an attorney to appear for them, yet the appearance of any member of the bar in a cause should be received as evidence of his authority ; and no addi- tional evidence is requisite. There is no distinction ia this particular between a natural person and a corporation ; nor does there appear any reason for such distinction. A corpora- tion, it is true, can appear only by attorney, while a natural person may appear for himself. But when he waives this privilege, and elects to appear by attorney, the same evidence is to be required that the individual professing to represent Mm has authority to do so as would be exacted if he were IncaT pable of appearing in person. The practice of permitting appearance without producing a warrant of attorney, is as applicable to appearance for a oorporation, as for a natural person. ° " Section 35. 1 Ante, 17. ° Osborn v. Bank of United States, 9 ' As respects the right in the United Wheat, 738. States courts to change one's solicitor, In general, if the defendant insists and the practice upon so doing, see Sloo upon it, the plaintiff's attorney is bound V, Law, 4 Blatchf., 268. to file his warrant of attorney. But if 48 0EI(3-INAL JURISDICTION. Nor is tlie privilege necessarily confined to civil causes. In United States v. Mayo,' it has been laid down as the rule, that upon an indictment for a misdemeanor the defendant may be allowed to plead and defend by attorney, himself being absent, if, 1, it is not an ofiense for which imprisonment must be inflicted ; 2, the court be satisfied that the nature of the case, and its circumstances, are such that Imprisonment will not be inflicted ; 3, the district-attorney consent, or it appear to the court that he unreasonably or improperly withholds his con- sent ; 4, sufficient cause be shown, on affidavit, to account for the absence of the defendant ; 5, a special power of attorney, to appear and plead and defend in his absence, be executed by the defendant, and filed in court. Effect of appearance. The general principle familiarly recognized in other juris- dictions, that appearing without objection is a waiver of formal and personal obj-ections to the process employed to bring the defendant into court, is adopted, and has frequently been applied in the United States courts.' Thus it has been held that a voluntary appearance to a bill of review dispenses with the necessity of serving process ;' that objections to the regu- larity of the process to enforce appearance in admiralty causes, are waived by the appearance of the parties interested in the property seized, and filing their claims to the same ;' that the appearance of the defendants in a suit by foreign attachment removed from a State court to a Circuit Court of the United States, in a circuit where they do not reside, is a waiver of all objections to the non-service of process on them.' So an tlie court is satisfied, by the production ' Carrins^ton v. Brents, 1 McLean, 174. of tlie power of attorney, or by parol ■* The Merino, 9 Wheat., 391. evidence, that the attorney has an au- '' Pollard v. D wight, 4 Crancli, 421. thority to act for the plaintiff, they will So where a party to a suit in a Dis- not, in a summary way, arrest the pro- trict Court procures its removal to tho ceedinsrs in the suit. Nor will they re- Circuit Court before judgment, although quire the warrant to be produced after this is not authorized by law, yet if the the expiration of the term at which ap- adverse party, instead ofproperly taking pearance has been entered. Rogers v. advantage of the irregularity in the pro- Crommelin, 1 Crunch, 536; King of oeedings, enters his ajipearance in the Spain V. Oliver, 2 Wash. 0. Ct., 429. Circuit Court, takes defense, and pleads ' 1 Curt. C. Ct, 433. to issue, it is too late, after verdict, to 'Knox V. Summers, 3 Cranc/s, 496 ; object to the irregularity ; and the Su- Gracie v. Palmer, 8 Wheat, 699 ; Far- preme Court will, on error, consider the rar v. United States, 3 Pet, 459; Segee cause as an original suit in the Circuit II. Thomas, 3 Blatchf., 11; Barry v. Court. Patterson v. United States 2 Poyles, 1 Pet., 311. Wheat., 221. APPBA.RANCE: DEFAULT. 49 objection founded on the provision of section 11 of the Judi- ciary Act, ' which prohibits civil suit to .be brought before the Circuit Court, ' ' against any inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of sei-ving the writ," that the process was not served upon the defendant within the proper district, is waived by entering a general appearance." The rule, thus exemplified, re.sts upon the principle that where the jurisdiction and powers of the court are sufficiently extensive to enable it to adjudicate as to the subject matter and the parties, any right that any party may have to object that the proper form of- making him subject to the jurisdiction has not been pursued in the particular case, is a mere personal priv- ilege or exemption which he is allowed to waive.' This being the principle of the rule, it is limited in application to those objections which a party has power to cure by consent or waiver. Appearing .cannot enlarge the powers of the court ; cannot enable it to deal with, a question, or to coerce a person not subject, by the laws of the United States, to its authority. Hence appearance does not preclude the party from moving to dismiss for the want of jurisdiction, or any other sufficient ground, except for want of a process, or for mere irregularity in its service." Moreover, it is held that the appearance and pleading of a corporation aggregate by attorney, in a suit brought against it, in a court of the United States, is no waiver of an objection to jurisdiction ; because, as a corporation cannot apped,r in any other way than by attorney, to say that such an appearance amounts to a waiver of the objection, would in effect be to say, that the party shall forfeit an acknowledged right by using the only means which the law affords of asserting that right.' ' 1 Ante, 7, afterwards except to the jurisdiction on " Flanders v. Mtna, Ins. Co., 3 Mas., ' the ground of his non-residence. Shields 158; Segee v. Thomas, 3 Blatclif., 11 ; v. Thomas,' 18 How., 253. Harrison v. Rowan, 1 Pet. C. Ct., 489. ' Toland v. Sprague, 12 Pet, 300, 331. So if an absent defendant in equity * United States v. Yates, 6 How., voluntarily enters his appearance, and 605. •nswers the bill, he places himself in tlie 'Commercial & Railroad Bank d same predicament with the other parties Vicksburg v. Slocomb, 14 Pet., 60. regularly before the court, and cannot Vol. II.— 4 50 OEIGIiTAL JURISDICTION. Withdrawal of appearance. After an attorney or solicitor has entered his name upon the record, he cannot withdraw it without leave of the court ; and untU so withdrawn, the service of a citation upon him, in case of an appeal, is sufficient. ' But it is within the power of the court, upon a proper case being shown to warrant such relief, to aUow an attorney who has appeared therein to withdraw his appearance, as, for in- stance, where it was imprudently entered, by an agent, in his absence." Default. Anciently the more usual course, in courts of justice, upon a neglect or refusal of a defendant to appear, pursuant to pro- cess, was to institute proceedings of increased severity, for the. purpose of compelling him to appear. In modern practice this power is not wholly laid aside, but is replaced, for ordinary purposes, by modes of procedure afforded to the plaintiff to proceed against the defendant in his absence, to obtain a relief or remedy such as he would ask if an appearance had been entered. And such is the principle which underlies the more usual proceedings, upon default, in the United States courts.' In actions at law the subject is not regulated by any general enactments, or rules, but is determiaed by the State laws, so far as they have been rendered operative in the national courts for the particular district, either by the general enactments elsewhere explained, or by adoption of the courts, as evinced in the rules for the circuit or district. The method mofet generally in use is that familiar to the common law procedure, the writ of inquiry to assess the plaintiff's damages, when an assessment is rendered necessary by the nature of the demand or the frame of the declaration ; or by an entry of judgment upon the order of the court where, the action being for a sum ' United States v. Carry. 6 Eow., 106. ' United States v. Yates, 6 How., 605. It lias been held that the entry of the " In suits against a State, if the State appearance of the attorney-general by shall neglect or refuse to appear, upon the clerk of the Supreme Court, at the due service of a process, no coercive first term to which any writ of error or measures will be taken to compel appeal is returnable, in cases in which appearance ; but the complainant, or tlie United States are parties, is conclu- plaintiff, will be allowed to proceed ex- siye upon him, as an appearance, if he farie. Massachusetts v. Rhode Island, lets it pass for that term, without objeo- 12 Pet., 755. See New Jersey v. New tion. Farrar v. United States, 3 Per!., York, 3 JA, 461 : Same v. Same, 5 M 459. 284. APPEARANCE ; DEFAULT. gl certain, or capable of being ascertained by mere computation, no assessment is requisite. Some provisions of the Judiciary Act regulating the entry of judgment by default, in the national courts, have already been stated in fuU.' The procedure m cases of equity cognizance, for taking the bin as confessed, upon a defendant' s default, is more uniform throughout the United States. The course is substantially the same as that of courts of chancery generally ; subject, how- ever, to the provisions of Rules 'No. 18 and 19*of the Equity Rules prescribed by the Supreme Court.' In like manner the consequences of a default of defendant to a libel in personam in admiralty, to appear and answer, are regulated by Rule No. 27 of the Admiralty Rules of the Supreme Court." 'Act of September 24, 1789, § 26, as courts of admiralty and maritime ju- 1 Ante, 12. risdiction, might issue process of attach- ' 1 Ante, 135. rnent to compel appearance, both in * 1 Ante, 153. cases of maritime torts, and contracts. It was held, before the rules, that the Manro v. Almeida, 10 Wheat, 473. courts of the United States, proceeding CHAPTEE VI. PLEADIISTG AT LAW- Unless there is found some rule of court operative witliin the particular district in which the action is brought, the pleadings in actions of legal cognizance in the United States courts are governed by the rules and authorities of the com- mon law. Even in those States where the systems of common law and equitable pleadings have been swept away, and a new and homogeneous system has been substituted by a " code of procedure," this legislation has no force, of itself, within the national courts. The practitioner who brings an action at law in one of those courts must declare, and he who appears to defend must plead, according to the course of the common law.' He must acquaint himself with the rules of common law pleading, and conform to them, except so far as they may have been modified by rule of court. In addition to the au- thorities commonly respected by courts of legal jurisdiction throughout the country, which he wiU examine elsewhere, lie should be apprized of some rules and precepts having special apphcation in the national courts. ' To bring these before his notice is the purpose of this chapter." Arerring jurisdictional facts. In order to enable the court to take jurisdiction, the plain- tiff is required to aver, in his declaration, any . particular facts, &c., which, by the laws of the United States, must exist as a condition of jurisdiction. ' See -previous, explanations on this of the United States courts ; and these subject, 1 Ante, 462-464. should be examined, in addition to ths " There is a large and instructive State cases and the general treatises, body of adjudications upon the subject _ They are collected in Abb. Nat. Dig., of pleading to be found in the reports tit. Pleading. PLEADING AT LAW; " 53 Where the nature of the case shows the jurisdiction, — as where the United States are plaintiffs ; where the cause of ac- tion is one arising under a statute of the United States, and exclusively within the cognizance of their courts, &c., — no for- mal averment is necessary. But if the ground on which the plaintiff invokes the juris- diction of the national court is that he and the defendant are citizens of different States, the citizenship must be alleged.' An averment in general terms is sufficient." It must, how- ever, show the facts essential to jurisdiction. Thus, an allega- tion of residence or domicil merely, vidthout an averment of citizenship or alienage, is not sufficient to give jurisdiction. * But an averment that the defendant "is now residing in" a specified State, ' ' where he caused himself to be naturalized as an American citizen, ' ' has been held a sufficient averment of citi- izenship to give jurisdiction : for a citizen of the United States, residing in a State of the Union, is a citizen of that State, within the rule relating to the qualifications of- suitors in the Federal courts.* And when the action is brought by more than one plaintiff sueiag in virtue of a joint interest, it must appear by sufficient averments that each of the plaintiffs is capable of sueing each of the defendants.' If the action is by or against a corporation, the proper mode of complying with the rule is, not by a mere statement that the plaintiffs or defendants are citizens of such and such a State, but by alleging their incorporation and designating the State by which they are incorporated, and wherein thev have their principal place of business." ' Bingham v. Cabot, 3 Doll., 382 ; 4 Doll., 8. And see Evans v. Daven- Turner u. Enville, 4 iS., 7; Abererom- port, 4 J/cieara. 574. bie V. Dupuis, 1 Oranch. 343 ; Wood v. * G-assies v. Ballon, 6 Pei., 761. Wagnon, 2 Id., 9 ; Capron v. Van ' Strawbridge v. Curtiss, 3 Granch, Noorden, Id., . 126 ; Sallivan v. Fulton 267 ; Corporation of New Orleans v. Steamboat Co., 6 Wheat, 450; MoUan Winter,! Wheat, 9\. V. Torrance, 9 Id., 537 ; Brown v. ' Lafayette Ins. Co. v. French, 18 Keen'e, 8 Pet., 112; Jackson v. Ashton, How., 404; New York & Brie E. E. Id., 148; Donaldson v. Hazen, Hempst, Co. v. Shepard, 5 McLean, 455. 423; United States v. Alberty, Id., Merely to describe a party by a cor- 444; Tunstall v. Worthington, Id., porate name, is not enough. Piquignot 662; Findlay v. Bank of the [Jnited v. Pennsylvania E. E. Co., 16 How., States, 2 McLean, 44 ; Leavittf. Cowles, 104. Id., 491. But an averment that a defendant is ' Bradstreet v. Thomas, 12 Pet, 59; a foreign corporation formed under and Thompson v. Cook, 2 McLean, 122. created by the laws of a designated ' Turner v. Bank of North America," State is a sufficient averment that the 54 ORIGINAL JURISDICTION. If alienage of a party is the ground on wMci. the jurisdic- tion is invoked, such, alienage must be averred. The courts of the United States will not entertain jurisdiction of a cause, on the ground that one of the parties is an alien, unless he be stated to be such in express terms.' And it is not sufficient to give jurisdiction to allege merely that a party is an alien. There must also be an allegation that he is a subject or citizen of some one foreign State." And although the plaintiff be de- scribed as an alien, the defendant must also be described as a citizen of some one of the United States.' For section 11 of the Judiciary Act of September 24, 1789, — giving jurisdiction where an alien is a party, — must be construed in connection with and in conformity to the constitution of the United States. By the latter, the judicial power is not extended to private suits in which an ahen is a party, unless a citizen be the adverse party. It is therefore indispensable, in an action by an alien, to aver the citizenship of the defendant, in order to show on the record the jurisdiction of the court.* If the action is by the assignee of a demand, the declara- tion must aver facts which show that the assignor might, at the time of the assignment, have sued in the Federal courts.' But it is not required that the plaintiff should aver in the declaration the mere residence of the defendant within the dis- trict in which he is served with process. Such residence is not essential to the jurisdiction. The defendant has a personal privilege to object to service out of the district of his residence. If he does not object, the irregularity is waived. ° Where jurisdiction is dependent on the amount or value in defendant is a citizen of that State. But in a suit on a promissory note -Express Co. v. Kountze, 8 Wall, 341. payable to " Thompson, or bearer," ' Michaelson v. Denison, 3 Day, 294. brought by the bearer, the declaration ' Wilson V. City Bank. 3 Sumn.., 422. need not allege the citizenship of " Hodgson V. Bowerbank, 5 Cranch, Thompson, as the plaintifr it not an as- 303 ; Picquet v. Swan, 5 Mas., 35. signee. Sackett v. Davis, d McLean, * Jackson v. Twentyman, 2 Pet, 136. 101. '■ Rogers v. Linn, 2 McLean, 126; And although a declaration commen- Fry V. Rosseau, 3 Id., 106; Fletcher v. ces by stating the drawer and indorser Turner, 5 Id., 468. of a bill to be citizens of the same State, Thus no action is maintainable in a a subsequent allegation that the indor- Federal court by an indorsee or assig- ser, who was also payee, was an alien nee of a promissory note, unless it ap- will sustain the jurisdiction of a circuit pears upon the, record that a suit might court. Bailey v. Dozier, 6 Bow., 23. have been maintained in those courts ' Gracie v. Palmer, 8 Wheat., 699 between the original parties. Montalet Teese v. Phelps, 1 McAll., 17. V. Murray, 4 Cranch, 46. PLEADING AT LAW. 55 controversy, it is tlie better and safer practice to aver the necessary facts as to amount or value, in the declaration. This rule is indicated by the tenor of section 11 of the Judic- iary Act, and by the earlier cases. ' It is regarded as having been shaken by the decision in JExp. Bradstreet." But that decision may properly be regarded as extending no further than to allow the value to be proved without requiring an averment, in cases where the demand is not for money, and the nature of the case does not requu'e the value to be stated in the declaration. And there are strong reasons of conveni- ence and propriety for requiring the amount to be averred whenever the law makes amount a requisite to jurisdiction.' The omission of the plaintiff to aver the requisite jurisdic- tional facts may be objected to by motion to dismiss, or by de- murrer.* If the declaration contains a formal averment of the neces- sary facts, but the defendant deems them untruly stated, his remedy is by a plea to these averments, in the first instance. It is not to be understood that because these jurisdictional facts are required to be averred by the plaintiff, they therefore, when averred, enter into the issue upon the merits. If the de- fendant wishes to contest the averments, he must do so by a plea in abatement to the jurisdiction. He cannot do so under the general issue ; nor is the plaintiff required, under the general issue, to make affirmative proof of citizenship, alien- age, &c. Pleading the general issue is a waiver of objection to the truth of the facts averred." It was formerly held, in some of the circuits, that the averment of citizenship in a dif- ferent State from the one in which the suit is brought, which is required in order to give jurisdiction to the Federal courts, must be proved under the general issue. But the rule now is, that if the defendant desires to dispute the allegation of citi- zenship which is made in the declaration, he must so plead in abatement." ' Lansing v. Dolph, 5 Wash. G. Ct, Livingston v. Story, 11 Id., 351;-Et. 624 ; Smith v. Jackson, 1 Paine, 486. ans v. Davenport, -4 McLean, 574 ; See, also, Sherman v. Olarlc, 3 McLean, United States v. Bailey, 1 Id., 234 ; 91. Hilliard v. Brevoort, 4 Id., 24; Teese v. ' 7 Pet, 634. Phelps, 1 McAll, 17; Smith v. Ker- • Seo an able discussion of this ques- noohen, 7 How., 198 ; Shepherd v. tion, OonJcl Tr., 348-353. Graves, 14 Id., 505. • Gonkl. Tr., 353. • Jones v. League 18 How., 76. • De Wolf V. Kabaud, 1 Pet., 498 ; 56 ORIGINAL JURISDICTION. ATerrin^ a statute. WieD tlie right of action or defense upon which the pleader relies, is founded upon a public act of Congress, there is no necessity for settLag out, or even for referring particularly to the act. AU that is required is for the pleader to allege the facts which bring the case withia the provision of law upon which he relies 'j the court wiU take notice of the law, without aver- ment, and apply it to the facts proved. There is an extension of this principle to cases depending upon public laws of the States. The rule governing these cases is that the Circuit or District Court must take notice of the State laws, in the same cases and to the same extent as the superior courts of the State would be bound to do. No averment need be made, in pleading in a United States court in respect to the laws of the several States,, which would not be necessary in the courts of the State within which the national court is held.' In general, though the question has been the subject of some controversy, a State court takes notice of the public statutes of its own States ; but requires private or special acts of that State, and aU statutes of another State, to be pleaded and proved as mat- ter of fact. In the absence of an averment, and of proof of an enactment of a sister State, a State court will presume that the rule of the common law continues in force in siich State.' ' Pennington v. Gibson, 16 How., 65: But the common law of England is Covington Drawbridge Co. v. Shep- not to be taken in all respects to be herd, 20 /d, 227. See, also, to the that of America. Our ancestors same general efifect, Owings v., Hull, 9 • brought with them its general prin- Pet., 607 ; McNiel v. Holbrook, 12 Id., ciples, and claimed it as their birth- 84; Harpending v. Reformed Dutch right, but they brought with them and Church, 16 Id., 455 ; Beaty v. Knowler, adopted only that portion which waa 4/d., 152; Gordon v. Hobart, 2 Sumn., applicable to their situation. Van Nesa 401 ; Woodworth v. Spaffords, 2 Mc- v. Pacard, 2 Pet, 137 ; Wheaton v. Lean, 168 ; Jasper v. Porter, Id., 579 ; Peters, 8 Id., 591 ; Town of Pawlet v Jones V. Hays, 4 Id., 521 ; Mewster v. Clark, 9 Cranch, 292. Spalding, 6 Id., 24; Merrill v. Dawson, The common law of England, and all Hempst., 563. _ the statutes of Parliament made in aid ' In respect to the adoption of the of the common law, prior to the fourth common law by the American colonies, year of James I., which are of a gene- Ui^' Supreme Court of the United ral nature, and not local to ihe kins- States holds the rule to be that the dom, were expressly adopted by the statutes passed in England before the Virginia statute of 1776; and the sub- emigration of our ancestors, which sequent revisions of its code have con- were in amendment of the law, and firmed this. Scott v. Lunt, 7 Pet. 596. which are applicable to our constitu- In New York, while the *'iew haa tion, constitute a part of our common been taken in a few of the cases (such law. Patterson v. Winn, 5 Pet, 232; as Cheney v. Arnold, 15 N. Y., 345- Cathcart v. Robinson, Id., 2G4, 280. Robinson v. Dauchy, 3 Barb., 20 • PLEADING AT LAW. 57 Hence, in the United States courts, if the pleader relies on a statute (of whatever nature) enacted by any other State than that in which the court is held, he should aver it. But he is relieved from doing so in respect to public acts of Congress, or of the particular State. Sherill v. Hopkins, 1 Cow., 103), that the courts of that State should pi-e- Bume, in absence of evidence, that the law of another State was the same with that of New York, the current of au- thority is to the effect that in the ab- sence of proof of the laws of a sister State, the presumption is that the com- mon law, as it existed at the time of the separation of this country fronx England, prevails in such State. There is no presumption that the statutes of New York have been enacted in other States. Abel v. Douglas, 4 Den., 305. Courts of one State should not pre- sume that the statute law of another State is the same as that of their own. Where there is no evidence to the con- trary, it will be presumed that the com- mon law is in force in each of the other States (except possibly Louisiana). If ]t has been abrogated, changed, or modified by statute in another State, that fact must be proved, either in the way provided by the acts of Congress, or by that contained in section 426 of the Code. White v. Knapp, 47 Barb., 549; Wright v. Delafleld, 23 Id., 498; Throop V. Hatch, 3 Abb. Pr., 23. See, also, Starr v. Peck, 1 SiU, 270 ; Holmes V. Broughton, 10 Wend., 75 ; Lea v. American Atlantic, &o. Carial Co., 3 Abb. Pr. N. &, 1. Thus, there is no presumption that the usury laws of New York prevail in another State or country. Davis v. Garr, 6 K Y., 124. So it has been said that the courts of New York will not assume the law of Cuba to be the same as that of New York; nor even that the common law prevails therein. Phinney v. Phinney, 17 Sow. Pr., 197. But in another case the rule was in- timated that foreign law should be pre- sumed to be the sanie as the common law. Savage D, O'Neil, 42 Barb.,ZH. And the construction and legal effect of a Scotch testamentary settlement of real estate has been determined in conformity with the law of New York, in the ab- sence of proof of law of Scotland. Mon- roe V. Douglas, 5 N. Y., 447 ; affirming 3 Sandf. Oh., 126. Similarly, in Indiana there is a long series of cases on this subject, and the weight of authority is that the courts of the State do not take notice of the statutes of another State ; they must be specially pleaded and proved. Stout v. Wood, 1 Black/.. 71; Cone v. Cotton, 2 Id., 82; Titus v. Scantling, 3 Id., 372; Same v. Same, 4 Id., 89 ; Irving v. Mc- Lean, Id., 52 ; Doe dem. Holman v. Collins, 1 Ind., 24 ; Trimble v. Trimble, 2 Id., 76; Wilson v. Clark, U Id., 385; Keely v. Garner, 13 Id., 399 ; Davis v. Rogers, 14 Id., 424 ; Bngler v. Ellis, 16 /A, 475; Crake i». Crake, 18 Id., 156; Buekinghouse v. Gregg, 19 Id., 40) ■ Smith V. Muncie National Bank, 29 Id-., 158. The courts of Indiana will take notice of the facts that our ancestors came to this country Irom Great Brit- ain, bringing that law with them ; that that law, so far as is applicable in this country, was in force in the thirteen original States, except as modified by the statutes thereof; that it was de- clared in force in the territories of the northwest by the ordinance of 1787, &c. But the courts cannot take notice, judicially of statutes of tlie States which may have changed the common law. Johnson v. Chambers, 12 Ind., 102. They know judicially that the common law was brought from England to this country by our ancestors, and was de- clared, by the ordinance for the govern- ment of the Territory of the Northwest, of which Oiiio formed a part, to be a part of the fundamental law of that territory ; and, in the absence of proof to the contrary, that law is presumed to be still in force in a State formed out of that territory. Statutes whicli have changed it must be pleaded and proved. Crake v. Crake, 18 Ind., 156. See, also, Shurman v. Marley, 29 Id., 458. Very sinjilar discussions have arisen in other States ; but the general result 58 ORIGINAL JURISDICTION. In an action upon a statute of the United States imposing a penalty, to recover the penalty, the party prosecuting must allege every fact necessary to make out his' title and his com- petency to sue.' The declaration must state a case clearly within the letter and the spirit of the act." And in this class of cases, as the statute is the only founda- tion of the action, the declaration must aver that the act com- plained of was done "contrary to the statute." ° In general, a declaration founded exclusively upon a stat- ute, and not maintaiaable at common law, must conclude against the form of the statute.* This is essential.' Ayerring letters patent. There is a general presumption of law that all the prelim- inary steps necessary to authorize the issuing of any grant which has been made by government, were duly performed.* Letters patent issued under the great seal of the government are prima facie evidence that they have been regularly is- sued. The law presumes that public officers rightly discharge their duties ; hence the fact that a patent has been granted fur- nishes evidence that the recLuisite preliminary proofs have been regularly made, and were satisfactory.' Hence, it is not necessary, in declaring upon letters patent is believed to be that, upon the princi- the statute, and not statutes." Falconer pie that a state of things known to have v. Campbell, 2 McLean, 195. onoe existed is presumed to continue, A declaration for a statute penalty the common law is presumed by the which concluded " against the form of courts of any one State to continue in the sWuies," when the suit was founded force in any other (except Louisiana), on a single statute, was held good on until proof is made of a statute intro- error in Kenrick v. Uuited States 1 ducing a change. Gall., 268. ' Ferrett v. Atwill, 1 Slaichf.-, 151 ; 4 " Thus, the exhibition of a patent AT". Y. Leg. Obs., 215. granted under the land laws of Vir- " Jones V. Van Zandt, 5 How., 215. ginia, establishes the performance of Compare Goodwin v. United States, 2 every prerequisite. No inquiry into Wash. 0. Ct., 493; Cross v. United the regularity of the measures which States, 1 OalL, 26; Smith v. United ought to have preceded issuing it, is al- States, Id., 261 ; Wolverton v. Lacy, 8 lowable in an action at law. If 'it can Law Rep. N. S., 672. be impeached at law at all, this can ' Parker v. Haworth, i McLean, 370. only be for positive, actual '/rawd in ob- * Jones v. Vanzandt, 2 J/cZeare, 611; taining it. Stringer u. Young 3 Pet 1 West. Law J., 56. 321, 340. ' Sears v. United States, 1 Gall, 257; ' Philadelphia & Trenton R. R. Co. Smith V. United States, Id., 261 ; Cross v. Stimpson, 14 Pet., 448. V. United States, Id., 26. Thus,- a patent for an invention fur- A declaration founded on an amend- nishes presumptive evidence that th« atory act, which refers to and contains requisite proof of originality of inven- a former cue, should conclude " against tion,, of novelty and utility of the im* PLEADING AT LAW. 59 issued by government to aver tlie preliminary steps. Actions for infringement of patents present the most frequerit cases for the apphcation of this rule. They are, however, only one class of the cases to which it applies. In pleading the exist- ence of his patent, the plaintiff in. a patent cause need not in general aver that a petition was presented, or other steps necessary to authorize the grant to issue were taken ; the court will presume in favor of the grant that everything was rightly done which the law required in order to authorize the issuing of the grant." The delivery of the patent to the plaintiff, however, and the fact that it was attested in due form by the proper officer, should be averred ;' and the declaration must also set out in what the improvement claimed by the patentee consists.' But this class of declarations need not set out the letters patent in fall,' nor the specification, ° nor desciibe the means by which the defendant has infringed," nor need set forth the act complained of as contrary to the statute.' As the infringement of a patent^ although a tort, is not committed by direct force, the declaration should be in tres- pass on the case. The same is true of actions for infringe- ment of copyright ; trespass will not he.' The foregoing rules relative to the mode of averring Juris- dictional facts, statutes, and letters patent, are not confined in their application to pleading in actions at law, though most provement and of other facts necessary mode of extension should be set out at to authorize issuing the patent, was large, it was held that the general duly made. Corning v. Burden, 15 averment made was sufficient. Phelps Mow., 252; Wilson D.Barnnm, 1 WaU. v. Comstock, 4 McLean, 353. Jr. a Ct., 342; 2 Fish., 635; Allen v. 'Cutting v. Myers, 4 Wash. C. Ci., Hunter, 6 McLean, 303; Heinrich v. 220. Luther, Id., 345; Clum v. Brewer, 2 ' Peterson r. Wooden, 3 J/cXean. 248. Curi. C. Ct., 506. * Pitts v. Whitman, 2 Story C. Ct., ' Cutting V. Myers, 4 Wash. C. Ct, 220 ; 609. Wilder B. "McCormick, 2 .B?ofcA/., 31. ^ Pitts v. Whitman, supra; G-ray «. In an action for an infringement of a 'James, Pet. C. Ct., 476. patent bearing date October 19, 1S29, ^ Case v. Eedfield, 4 McLean, 526. and which had been extended, the dec- If the declaration aver that the de- laration averred, "that before the ex- fendant has made the thing "in imi- piration of the term for which the orig- tation of the plaintiff's patent," it will inal patent was granted, to wit, Octo- be sufficient to maintain the action, ber 4, 1843, such patent was in due form Parker v. Haworth, 4 McLean, 370. of law extended for the term of seven ' Parker v. Haworth, sn/ira. years from and after October 19, 1843." * Stein v. Groddard, 1 McAtl, 82. On demurrer, on the ground that the 60 ORIGINAL JURISDIOTIOK conveniently mentioned under this head. They are princi- ples of pleading generally applicable to the United States courts ; except so far as the mode of statement indicates a re- striction to legal pleadings. Different kinds of pleas. The distinction between pleas in abatement and pleas in bar, and between general and special pleas, the various kinds of these pleas known and used in modern common law prac- tice, the form of plea known as the plea puis darrein contin- uance, and, we may add, though it may not be technically included in the term "plea," the demurrer, in its various common law forms, are generally recognized and used in those United States courts which have not adopted reformed modes of pleading initiated by the State legislatures. These courts foUow the rules and authorities customarily recognized in courts proceeding according to the course of the common law, in determining the propriety and sufficiency of the defendant' s plea.' There is, however, an extension of the use of the "no- ' We have elsewhere noticed the re- cognition which prevails in these courts of the rule that a plea in bar operates as a waiver of matter in abatement, of such character as may be waived. It appears not to be fully settled how far pendency of another action for the same cause, may be pleaded in abate- ment to an action in the United States courts. In Earl v. Raymond, 4 Mc- Lean, 233, this question was ruled in the affirmative. It was there held that pendency of a suit in a State court may be pleaded in abatement, to a suit sub- sequently brought by the same parties, and for the same cause, in the Circuit Court of the United States. Tlie court considered that there was no other mode by which a conflict of jurisdiction could be avoided ; and said that it may be laid down as a general rule of aclion for the Federal and State courts, tliat whichever shall first talse jurisdiction of a ease, the jurisdiction of the other may be defeated by a plea in abatement. See also Exp. Balch, 3 Id., 321. But in White v. Whitman, 1 Curt. C. Ct., 494 it was held that a State court nmst be considered a foreign court within the rule that, the pendency of another action for the same cau.se, in a foreign court, is not a good plea in abatement, at common law. Though judgments rendered in one State must receive full faith and credit in another, yet in respect to all proceedings prior to judgment, the courts of the different States, acting under different sovereign- ties, must be considered as so far foreign to each other that a remedy sought in one cannot be deemed a mere repetition of a remedy sought in another. And the same considerations are applicable to a second suit in a Circuit Court of the United States, while one is pending in a State court. This was a ease, however, where the plea did not show jurisdiction of the former suit in the State court, and was otherwise defective. The same general view was taken in Lyman v. Brown, 2 Cmi. 'C. a., 559. See also Wadleigh V. Veazie, 3 Sumn., 165. And even in the seventh circuit, where the affirmative view of the gen- eral question has prevailed, it has been held that after jurisdiction of an action has attached in a United States court, it is not abated by an attachment subse- quently issued in a State court against PLEADING AT LAW. 61, tice of special matter," to wMch the reader's attention should be called. General issue, and notice of special matter. The practice which has grown np in the common law courts in modern times of allowing a defendant, in various cases, to plead the general issue accompanied with a simple notice of matter of defense which he will offer in evidence on the trial, instead of requiring him to plead such defense spe- cially, has been defined and enlarged, as respects the national courts, with reference to several subjects. The earliest enactment of this character is found in the Duties Collection Act of March 2, 1799.' It provides that "if any officer or other person executing or aiding and assisting in the seizure of goods, shall be sued or molested for any thing done in virtue of the powers given by this act, or by virtue of a warrant granted by any judge or justice pursuant to law, such officer or other person may plead the general issue and give this act and the special matter in evidence." A similar provision was made in the Copyright Law of 1831,' It provided that persons " sued or prosecuted for any matter, act, or thing done under or by virtue of this act," might plead the general issue, and give the special matter in evidence. We are not aware that either of these enactments has been drawn in review in any reported decisions. But a provision of the same general character, contained in section 15 of the Patent Law of July 4, 1836, has been often considered, and has been of great practical importance in the conduct of actions at law under that act. The section itself has been given in full, in a former portion of this work,' and need not be here requoted. In the application of its provisions to causes pending in the courts it has been determined that the section gives a privilege, and does not impose an obligatory rule. Instead of pleading the general issue and giving notice of special matter, as authorized by the section, the defendant may plead specially, setting up the matters of which he could the debt, or instrument on which the this view is confirmed by the decision prior suit was brought; although, on of the supreme court in Wallace u. Mo- the other hand, an attachment levied Connell, 13 Pel, 136. before the commencement of the suit ' Section 71. 1 Stat, at L., 678, might be pleaded in abatement. Camp- ' Section 10. 4 Stat, at L., 438, bell V. Emerson, 2 McLean, 30. And ' 1 Ante, 54. 62 ORIGINAL JURISDICTION. give notHe. The right to plead the general issue and give notice is an enlargement of the defendant' s mode of defense, but does not take away his right to plead specially.' Hence, in one case, where the plaintiff, an assignee, brought an action upon the case for the infringement of a patent, and the de- fendant pleaded the general issue without any notice of spe- cial matter, and also pleaded special pleas, not impeaching the validity of the patent, or denying use of the invention, but setting up a license under the patentee paramount to the right of the plaintiff, it was held that these Special pleas were well pleaded, and could not be struck out on motion.' But the better practice is, that the defenses specified in section 15 of the act of 1836 should be interposed by plea of the gen- eral issue with notice, while defenses not specified may be set up by special plea." 'No order of court is necessary to entitle a defendant to serve and file the notice of special matter required in the section un- der review. Nothing more is necessary than that such notice be in writing, and be served more than thirty days before the trial ; and it may be gifen after the depositions relied on have been filed in court.* And if a first notice is defective, or ^ot sufficiently comprehensive to admit the proper defense, tbs defendant may give other notices to remedy such defect, or supply the deficiency." The sufficiency of the notice in particular cases to admit evidence of particular facts, and the question of admissibility of various facts under the general issue alone, have been con- sidered in a number of adjudications which the reader inter- ested in the subject should examine for himself." The statute itself has been repealed, and a new system of ' Phillips V. Corabstock, 4 McLean, 215 ; Wilton v. Railroads, 1 Wall Jr. C 525; Smith I'. Ely, 15 5"om;., 137. The Ct., 192; Many v. Jasiger, 1 Blatchf., same view was taken of the effect of a 372; Philadelphia & Trenton R. R. Co. similar provision of the Patent Law of v. Stimpson, 14 Pet. 448; SiJsbv v. 1793, in Evans v. Baton, 3 Wheat, 454. Poote, 14 How., 218; Phillips v. Pagej 'Day V. New England Car Spring 24 Id., 1G4; Vance ti. Campbell 1 Co., 3 Blatchf.. 179. Black. 427 ; Kneass v. SohuvlkiU Bank ' Wilder v. Gayler, 1 Blatchf., 597. 4 Wa.ih. C. Ct., 9; Dixon v.Moyer, Jd., *Teeseu. Huntingdon, 23 Sbiy., 2, 10. 68; Evans v. Hettich, 7 Wheat '453' " lb. 469 ; Root v. Ball, 4 McLean, 177 ; Par- ' See, in particular, Evans v. Eaton, ker v. Haworth, Id., 370 ; Gray v. 3 Wheat., 454; Dixon v. Meyer, 4 James, Pet C Ct, 394 ; Judson 1;. Cope Wash, a Ct., 68; Treadwell «. Bladen, 1 Fish., 615; Teese v. Huntingdon 23 Id., 703; Evans v. Kremer, Pet. 0. Gt., How., 2. PLEADING AT LAW. 63 provisions upon the subject substituted by an act of Congress approved July 8, 1870. Section 61 of tbat act provides as follows : " In any action for infringement the defendant may plead the general issue, and having given notice in writing to the plaintiff or his attorney, thirty days before, may prove on trial any one or more of the foUovsdng special matters : ^^ First: That for the purpose of deceiving the public the descriptions and specifications filed by the patentee in the patent-office was made to contain less than the whole truth relative to his invention or discovery, or more than is neces- sary to produce the desired effect ; or, '•'•Second: That he had surreptitiously or unjustly ob- tained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same ; or, " Third : That it had been patented or described in some printed publication prior to his supposed invention or discov- ery thereof ; or, " Fourth : That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented ; or, '^ Fifth: That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public. "And in notices as to proof of previous invention, knowl- edge, or use of the thing patented, the defendant shall state the names of patentees and the dates of their patents, and when granted, and the names and residences of the persons alleged to have invented or to have had the prior knowledge of the thing patented, and where and by whom it had been used; and if any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him with costs. And the like defenses may be pleaded in any suit in equity for relief against an alleged infringement ; and proofs of the same may be given upon hke notice in the answer of the defendant, and with the like effect." Very analogous in character, though not in form, to these permissions to give notice of special matter instead of interposing a special plea, is the provision of section 34 of 64 OSIGHSTAL JURISDICTION. the Bankrupt Act of Marcli 2, 1867,' prescribing a simple method, of pleading a discharge ia bankruptcy. It enacts that a discharge duly granted under the act may be pleaded by a simple averment that on the day of its date such discharge was granted to the defendant, setting the same forth in Ticbc verba, as a full and complete bar to aU suits brought on auy such debts, claims, liabilities, or demand. ■ 14 Sfat. at L., 533. CHAPTEK VII. PLEADnfG IN" EQUITY. The general course of pleading, as pursued upon the eq- uity side of one of the United States courts, is substantially the same with, that followed in courts of full chancery juris- diction throughout this country and England, where chancery forms prevail, and no reformed practice has been introduced by a code or other special legislation. Modification^ introduced by Bnles. The rules of the subordinate courts may (and in many dis- tricts they have done so) introduce regulations governing eq- aity pleading in the particular court.' Into a review of these local regulations we have not space to enter. The rules of the supreme court governing equity procedure are, however, of general application. They are given in fall, in a former vol- ume." They recognize, — without distinctly prescribing it,— the use of bills, pleas, demurrers, and answers, substantially as in the settled- chancery practice. They prescribe some re- quirements affecting the formal parts of bUls in equity which are of practical importance. One relates to the title or intro- duction. That must contain the names, places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. A form for this introduction ' These rules cannot extend to abol- shall not be inconsistent with the rules ishing equity procedure, or to modifying prescribec. When the rules prescribed any of those features of it which are by the supreme court do not apply, the fixed by the general rules of the su- practice . Jenkins, 3 Story G. Ct., 108. Where in their libel the libelants ° Vol. 2, p. 203, et seq. The reader placed their case upon bad and careless will find additional explanations and stowage of the cargo, and upon leaks authorities, by consulting the original in the deck of the ship, through which work. PLEADING m ADMIRALTY. 77 In a strict sense, a claimant is one wlio not only has a riglit to intervene for his interest, and to contest the suit, but who, prima facie, has also a right to have the thing delivered to him on bail, pending the Suit ; o^, if he does not choose to exercise this right, to have it unconditionally surrendered to him, in case the suit proves to be groundless ; or to receive the balance of its proceeds after satisfying the decree. In the event of the libelant's success. These rights imply an exclusive proprietary interest, or at least an exclusive right of posses- session in the res ; the jus in re, and not merely the jus ad rem ; and such I understand to be the relation in which the party who appears to take upon himself the defense of a suit in the character of claimant, is bound to show himself to stand towards the property. In one of the adjudged cases, Mr. Justice Stoet observes that one who comes forward as a claimant may ultimately have an interest in the questions here litigated ; but an in- terest in the question forms no title to claim property in the admiralty. This court looks only to rights in the thing itself, to ownership, general or special, and to such claims as are di- rect, as a lien, or jus ad rem. And in another case the same learned judge observes that ' ' the claimant is an actor, and is entitled to come before the court in that chara'cfer, only in virtue of his proprietary interest in the thing in controversy ; this alone gives him a persona standi in jildieio. It is neces- sary that he should establish his right to that character, as a preliminary to his admission as a party ad litem, capable of sustaining the litigation. He is, therefore, in the regular and proper course of practice, required in the first instance, to put in his claim, upon oath, averring in positive terms his pro- prietary interest. If he refuses so to do, it is a sufficient reason for the rejection of his claim. What was here said, seems also to be clearly implied by the terms of the oath which is required of the party offering a claim, by the twenty-sixth rule. He is to "verify his claim on oath or solemn affirmation, 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." This oath, in substance, it is presumed, is to be deemed an indispensable pre-requisite, in all cases, to admis- sion into court as a claimant ; and whUe it prescribes the form 78 • ORIGINAL JURISDICTION. of the oath to be made by a person claiming on the ground of his exclusive proprietary interest, it would seem also to have been intended to limit and define the right, by restricting it to such an interest. It is not to be understood, however, that the verification of a claim in the form prescribed by the rule, or even its admis- sion by the court, is conclusive upon the question of property. The libelant has a right, by a suitable exceptive allegation, to contest the proprietary interest of the claimant, and to have it formally decided. If the claim be admitted without objection at this stage of the proceedings, and allegations and pleadings to the merits are subsequently put in, it is a waiver of the pre- liminary inquiry, and an admission that the party is rightly in court, and capable of contesting the merits. But should it afterwards appear, upon the trial, or even after the merits had been disposed of in favor of the claimant, that he had in real- ity no title to the property, but that it was the property of a third person, who was not represented by the claimant, or had an adverse interest, or whose rights had been defrauded, it might still be the duty of the court to retain the property in its custody, to afford the owner an opportunity to interpose a claim to it, and receive it from the court. When a claim is to be interposed, it is the duty of the owner, if practicable, to do it in person ; but where he is out of the country, or resides at a great distance, it may be done by his authorized agent. The master of a vessel has always been considered a competent agent, as such, for this purpose, upon the arrest of his vessel or cargo. The consignee of a cargo is also entitled, as such, to appear as claimant, and this right extends as well to other parts of the cargo consigned to him, as to those parts which belonged to him, and were shipped on his account. In the case just cited, it was also said by the court that an agent of absent owners may appear either in his own name as agent, or in the name of his princi- pals, as he thinks best. The right of the absent owner to be thus represented by another is recognized, and the form of the oath to be required in such cases in addition to the oath of ownership, is pre- scribed in the twenty-sixth rule, above mentioned, as follows : "And where the claim is put in by an agent or consignee, he shall make oath that he is duly authorized thereto by the PLEADING m ADMIRALTY. 79 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." When the property arrested is owned jointly or in com- mon by several persons, there would probably be no valid ob- jection to the interposition of a claim by one of the co-propri- etors in behalf of his associates as well as of himself; but when there are. distinct proprietary interests, separate claims are to be interposed by the several owners, or by their agents, each intervening in his own name for his proprietary interest, and specifying it. One co-shipper, therefore, has no author- ity, as snch, to interpose any claim for other shippers with whom he has no privity of interest, in a proceeding against the cargo of a ship. Where separate claims are interposed, although the libel is joint against the whole property, as in a case of salvage, each claim is treated as a distinct and inde- pendent proceeding, in the nature of a several suit, upon which there may be a several independent hearing and ap- peal. If any owner should not appear to claim any particular part of the property, the habit of courts of admii-alty is to re- tain such property, or its proceeds, after satisfaction of the li- belant's claim upon it, untU a claim is made, or a year and a day has elapsed from the time of the institution of the pro ceedings. It behooves the defendant, upon his arrest or citation, and those who are entitled to appear as claimants in the action, on the arrest of the vessel or other property proceeded against, if they intend to resist the libelant's demand, to obtain at once a copy of the Hbel on file, and to prepare the proper re- sponse thereto in season to give it in on the return day of the process, and to have it ready in court for that purpose ; and in case of their delinquency in this respect, they are liable to have the Ubel adjudged to be taken ^ro confesso against them. But for reasonable causes shown it is usual to allow a short specified time to the party defendant to prepare his re- sponse to the libel ; and the rule, in directing the libel to be taken pro confesso, on the omissi(Ai or refusal of the defend- ant to make due answer thereto on the return day of the pro- 80 ORIGINAL JURISDICTION. cess, "or other day assigned by the court," contemplates the contingency of such an indulgence. ' When, in an action in rem, the claimant puts in his re- sponse to the libel on the return day of the process, his claim, or assertion of proprietary interest in the property, is, in this country, generally combined with his answer ; in which case the pleading is denominated his "claim and answer." It is, however, in all cases more proper to put in the claim sepa- rately ; and as it is only in virtue of his right of property, or that of his principal, that a claimant obtains a standing in court which entitles him to answer at all, if he is not, on the return day, ready to answer, and desires farther time for that purpose, he ought, nevertheless, to be required then to inter- pose his claim. The answer. As in framing a libel, so in drafting an answer, a simple and untechnical style is allowed. But the answer should meet each material allegation in the libel with an admission, a de- nial, or a defense.' An answer is liberally construed ; but one which admits, to a reasonable intendment, facts stated in the libel, will be sufficient to operate as an admission, though loose and informal as a pleading." And in general, the proofs for the defense must be limited to the averments in the an- swer. ' ' The Boston, 1 Sumn., 328. allegation of the facts, with due certainty Whether supplies furnished to a ves- of time, place, and other circumstan(?es; sel are necessary, is a conclusion of law ; otherwise the court will reject it. Loose aud the claimant, in answer 10 a libel by allegations are insufficient. Orne v, a material man, is not required to either Townsend, 4 Mas., 541 ; Maconiber v. admit or deny that the articles furnished Thompson, 1 Sumn., 384: ; Hart u. The wer,e necessaries. The Gustavia, Blatchf. Otis, Crabhe, 52. <& li., 189. So, where a new clause in the ship- ' Thus, vhere a libel alleged that a ping article is relied upon to repel a particular agreement was made, and that claim for wages, it must be pleaded, a written instrument was executed, and Heard v. Rogers, 1 Sprague, 556 • 7 the instrument embodied the substance Law Rep. N. 8., 442. of the agreement, it was held that an ad- Where, in answer to a libel for wages mission, in the answer, of the execution the claimants set up a discharge of the of the instnimrnt, was substantially an libelant in a foreign port, by order of admission of the contents. TheAldeba- the consul, it is incumbent on them ran, Oh., 130. to set forth in their answer a state of ' Turner v. The Black Warrior, 1 Mq- facts justifying the discharge relied on, All, 181. and to support the allegations by ade- In a suit for wages, or for a share in quate proof. The Atlantic. Abb. Adm., a whaling voyage, if the defense sets 451. up misconduct, there must be a special An answer averring in general terms PLBAMNa m ADMIRALTY. 81 By Rule 24 of the Supreme Court, ' tlie answer must be verified. And the rule further prescribes that every answer shall be full and explicit and distinct to each separate article and separate allegation in the libel, in the same order as num- bered in the libel ; and shall also answer in like manner each interrogatory propounded at the close of the libel. The de- fendant may, however, object to answer any matter which would expose him to any prosecution or punishment for a crime, or for any penalty or forfeiture of property for a penal offense." Exceptions. Demurrers are not unknown in admiralty practice. But the more usual and convenient mode of testing the sufiiciency of a libel or answer, is by interposing exceptions. ' ' The right of the defendant," says Judge Conkling,' "to except to the libel for any defects, as well of form as of substance, is ex- pressly recognized by the twenty-fourth rule," which defines and regulates the power of the courts to allow amendments of the libel. On the other hand, the twenty-eighth rule' pro- vides that ' The libelant may except to the suflS.ciency, or full- ness, or distinctness, or relevancy of the answer to the articles and interrogatories in the libel ; and if the court shall adjudge' the same exceptions, or any of them, to be good and valid, the court shall order the defendant therewith [or] within such reasonable time as the court shall direct, to answer the same, and shall further order the defendant to pay such costs as the court shall adjudge reasonable.' And the thirty-sixth rule,' referring to defects of a different nature, provides generally, that ' Exception may be taken to any libel, allegation or an- swer for surplusage, irrelevancy, impertinence or scandal ; and if, upon reference to a master, the exception shall be re- ported to be so objectionable, and [shall be] allowed by the that a vessel was supplied with a medi- the vessel shipped the quantity and cine chest according to law,, is not, ot quality of provisions required by the itself, ■sufficient to discharge a master statute ; or an exception will lie for in- from his liability far a physician's bill suSScienoy. The Elizabeth Frith, 5WcA/ for attendance upon a sick seaman. & H., 195. Freeman v. Baker, Blatdif. & H., 372. ' 1 Ante, p. 153. Where a libel claims extra wages, in ' Rule 31, 1 Ante, 153. satistaction of a short allowance of pro- ' 2 Conhl. Adm., 238. visions, under section 9 of the act of '1 Ante, 152. 3 uly 20, 1790 (1 Stat, at L., 135), the ' 1 Ante, 153. answer must set forth precisely whether " 1 Ante, 154. Vol. II.— 6 82 ORK^INAL JUEISDICTION". court, the matter shall be expunged at the cost and expense of the party in whose libel or answer the same is found.' " Beplication. Supplemental libel. The theory of admiralty pleading requires that, where a sworn answer contains averments of fact, which, if true, re- quire to be avoided by proof on the part of libelant of matters not within the averments of his libel, the libelant should inter- pose a further pleading. But the reported cases are not agreed as to whether this should be done by a replication to the answer, or by a supplement or amendment to the libel.' Upon this subject the practitioner will do well to consult the rules and usage in the particular district in which his cause is pending. A supplemental libel is, however, an unquestioned remedy in a clas« of cases where questions arise upon new facts, pending a suit. Wherever property or its proceeds are rightfully in the possession and custody of a court of admi- ralty, it is an inherent incident to the jurisdiction of that court, to entertain supplemental suits by the parties in inter- est, to ascertain to whom those proceedings rightfully belong, and to deliver them over to the parties who establish the law- ful ownership thereof. This is exercised, for example, in re- spect to the surplus on sales of ships on libels in maritime cases ; and also in the case of supplemental libels and peti- tions, by persons asserting themselves to be joint captors, and entitled to share in prize proceeds, and of custom-house officers for their distributive share of the proceeds of property seized and condemned for breaches of the revenue laws, where the jurisdiction is habitually acted upon, in all cases of diffi- culty or controversy." Cross libels. Cross libels are recognized in American admiralty practice. It is held that in cases where the respondents in a pending ' Consult, in favor of employing a re- Ann, 2 Sumn., 206 ; Coffin v. Jenkins, plication.'Yh.&yi.axy Zsxie, Elatchf.& H., 3 Story C. CL, 108; The Boston 1 390; The Atlantic, Abb. Adm., 451; Sumn., 328; Gladding v. Constant, 1 both in the Southern District of New Sprague, 73.. York ; and, in favor of a supplement or " Andrews v. Wall, 3 How., 568. And amendment, Taber v. Jenny, 1 Sprague, see The Sibyl, 4 Wheat, 98 ; Keen v 315; 9 Law Rep. N. S., 27; The Sarah The Gloucester, 2 Dall., 36. PLEADING IN ADMIRALTY. . 83 libel desire to recover damages against the libelants, they should file a cross libel for that purpose. An agreement in writing between counsel that the answer in the libel shall have the effect of a cross Ubel, is not good practice.' By a rule of the Supreme Court, promulgated April 5, 1869 (since the rules in the first volume of this work were stereotyped), and known as number 54, it is prescribed that " Whenever a cross libel is filed upon any counter claim arising out of the same cause of action for which the original libel was filed, the respondents in the cross Ubel shall give se- curity 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." Libels of information. Courts of admiralty entertain a libel in the nature of an in- formation, as the appropriate pleading for instituting a prose- cution of an offense cognizable in that jurisdiction. By means of the pleading known as an information, the prosecutor " in- forms" the court of a violation of law, upon which he invokes a penalty ; hence its name. In admiralty practice it is em- ployed in a variety of cases in which violations of law are made punishable by forfeiture of property or pecuniary pen- alty, requiring a seizure and decree of forfeiture or sale ; whUe, in general, indictment is the proper mode for prose- cuting an offense to a punishment affecting the person of the offender, including a fine enforceable by imprisonment ; and an action of debt is the proper remedy, in the absence of any other proceeding prescribed by statute, to recover a pecuniary penalty collectable by the sale of any of the offender's prop- erty upon an ordinary execution, only. Thus an information has been held by our courts to lie, or has been employed without question, to enforce forfeitures of goods or vessels un- der the laws for the collection of duties ■j' or under embargo laws ;' or under the neutrality laws ;' or under the laws regu- ' Ward V. Chamberlain, '21 Sow., Woodb. & M., 341 ; Locke v. United 572. States, 7 Cranch, 339. » Clark V. United States, 2 Waah. C. ' United States v. Mann, 1 OaU., 3; Ct., 519; United States v. Lyman, 1 United States v. The Little Charles, I Mas., 482; Walsh v. United Slates, 3 Brock. Marsh., 347. * (Jelston V. Hoyt, 3 Wheat., 246. 84 ORIGINAL JURISDICTION. latmg vessels carrying passengers ;' or under laws against the slave trade." As thus employed, the proceedings are deemed civil pro- ceedings, not criminal. The strict rules of pleading and pro- cedure which are followed in common law prosecutions are not applied." The averments in the body of the information should be particular and certain in alleging all the material circum- stances which constitute the offense.' K a substantial state- ment of the cause is not presented, the defect cannot be cured by adducing evidence of the material facts which are not averred.* And it is not enough merely to make a reference to the penal statute which has been infringed, and to aver that it has been violated." The information must allege the facts which, under the statute, expose the property against which it is aimed, to forfeiture. In general, it is sufficient to charge the offense in the lan- guage of the statute.' If the averments show a case which comes withiQ the language of the act by which the forfeiture is imposed, this is enough. ' United States v. The Neurea, 19 How., 92. » The Mary Ann, 8 Wheat., 380. » The Palmyra, 12 Wheat., 1 ; Anon., 1 Oall, 22. An information in rem in a case of admiralty and maritime jurisdiction, -is not a suit at common law, but an ad- miralty proceeding, and does not require a trial by jurv. Clark v. United States, 2 Wai:h. a Ct., 519. It seems, that an information does not lie for a penalty imposed by the con- sular act of Feb. 28, 1803 (2 Stat, at L., 203), for not depositing the ship's regis- ter with the consul, or arriving at a foreign port. An action of debt, in the name of the consul, is the proper rem- edy. Parsons v. Hunter, 2 Sumn., 419. * The Caroline , v. United States, 7 Cranch, 496. ' The Ann v. United States, 7 Cranch, 570 ; The Hoppet v. United States, Id., 389. 'Ih.; lb. A mere conclusion of an information against the form of a statute, will not cure the want of material averments, ifejwing that a forfc'Iture has accrued. Sufficient matter must be alleged to show that the act done was within the prohibition of the statute. The Nancy, 1 Gall, 67. And no question can arise, in case of a seizure of goods for a violation of the revenue laws, except upon the causes of forfeiture alleged in the inlbrmation. Wood V. United States, 16 Pet, 342, 'The Palmyra, 12 Wlieat, 1; The Neurea, 19 Bow., 92; The Mary Ann, 8 Wheat, 380. See The Emily, 9 Id., 381; The Palmyra, 12 Id., 1; United States V. The Paryntha Davis, 1 Clif., 532. A libel for a statute forfeiture is bad, unless it agrees substantially with the terms of the statute. The Betsy, 1 Mas.. 354. It must contain a substantial statement of the offense, and it must be made with reasonable precision. Uni- ted States V. The Little Charles, 1 Brock. Marsh., 347. And an information describing an of- fense in the words of one statute, bat alleging it to be an ofiense against another and a different statute, is bad in substance. The Merino, 9 Wheat., 391. PLEADING IN ADMIRALTY. gS Thus it has recently been held that an information filed to enforce a forfeiture of a vessel under section 32 of the act of February 18, 1793,' — enacting that if any licensed vessel shall be employed in any other tra:de than that for which she is li- censed, she shall be forfeited, ^is not defective for not specify- ing the particular trade in which the vessel was unlawfully employed. For technical rules of pleading are not so much regarded in libels of this description as they are in indictments and informations at common law. Where there are no tech- nical words or phrases employed in the prohibition of the statute, it is sufficient, as a general rule, in drawing the libel, to bring the case within the words of the act. It is enough, Tinder the act cited, to aver that the vessel was employed " in a trade other than that for which she was licensed."' But this rule that to follow the words of the statute is enough, has limits. It does not apply where the statute re- quires or indicates a fuller statement, nor where the language of the statute is such that to foUow it without discrimination would lead to inconvenient uncertainty or ambiguity. If the words which describe the subject of the law are general, em- bracing a whole class of individual subjects, but must, neces- sarily, be so construed as to embrace only a subdivision of that class, the allegation must conform to the legislative sense and meaning.' As to exceptions in the statute, the general rule is, that it is sufficient to negative the exceptions in the enacting clause of a statute ; and exceptions which come in by way of pro- viso are properly matters of defense.' In order to harmonize the form of the information with the legislation which renders admiralty jurisdiction over forfeit- " 1 Stat. atL., 316. Brock. Marsh,.,^84:; TheBmily, 9 TFAcat, •United States w. The Paryntha Davis, 381. 1 Cliff., 532. * United States v. Hayward, ,2 GaU., •The Mary Ann, S^TFAcat, 380; The 485. Emily, 9 Id., 381; The Palmyra, 12 For decisions upon the sufficiency of Jd.. 1. the averments in informations in par- Whether, if a statute declares a pun- ticular cases, see Locke v. United States,- ishment against any one who shall 7 CraracA, 339; The Betsey, IjJ/os., 354; * * or who shall * * &c., United States v. Three Parcels of Em- specifying several oifenses in the al- broidery, 9 Law Rep. N. &, 140 ; Two ternative, the information must show Hundred Chests of Tea, 9 Wheat., 430; which of the prohibited acts have been Gelston v. Hoyt, 3 Wheat., 246; United committed, and is relied on to sustain States v. The Neurea, 19 Sow., 92; the prosecution, or may allege them all The Mary Ann, 8 WJieat, 380. in the alternative, see The Caroline, 1 86 ORIGINAL JURISDICTION. ures partly dependent, in this country, upon place of seizure, Rule 23 of the Supreme Court Eules in Admiralty ' prescribes that all informations and libels of information upon seizures for any breach of the laws of the United States, shaU state the place of seizure— whether on land or on the high seas, or on navigable waters within the admiralty jurisdiction— and the district within which the property is brought, and where it then is. And, by the same rule, they must propound the grounds of forfeiture relied upon, in distinct articles, and must aver the same to be contrary to the form of the statute or statutes of the United States, as the case may requii-e, and must conclude with a prayer of due process. ■ 1 Ante, 152. CHAPTER IX. I]STEELOCUTORT OE PROYISIOifAL EEMEDIES. Pkobably all ttie systems of procedure in England and America admit tlie employment of certain remedies auxDiary to tlie direct proceedings in a suit, adapted to give it an ef- ficiency and a success wMch, under tiie special circumstances of tlie case, a mere judgment or decree enforceable by ordinary execution only, might not have. Several such, remedies are recognized and employed in the United States courts, under provisions of law or regulations peculiar to those courts. They are obtained in the course and progress of the principal suit, and may, - therefore, be termed "interlocutory." The term "provisional" has probably not been generally applied to them in connection with the United States courts practice. It has, however, been employed in the legislation of some of the States for the purpose of designating those remedies auxil- iary or collateral to tlie direct objects of an action. And as it is descriptive and not technical, and has come into tolerably extensive use, it may be employed as indicating the general nature of the proceedings treated in this chapter. In delineating the provisional remedies employed in the Federal courts, those which are of chief importance are : — iVe exeat, injunction, and discovery in courts of equity ; inspection of writings in actions at law ; and attachment (of property) in actions at law, or in aid of actions in personam in admiralty. To these might have been added arrest and bail, viewed in one light ; viewed in another they are, however, a mode of serving process to compel apppearance, and under that view they have been included in the chapter on mesne process.' ' Many remedies of a provisional na- the United States courts besides those ture are re<;ognized and employed in described in the text fieplevin of 88 OEiaiKAL JURISDICTION. General powers of the courts. A general power, somewliat indefinite in extent, is con- ferred on tlie national courts, or recognized as existing in tliem, by section 14 of the Judiciary Act of 1789.' It de- clares that the courts of the United States mentioned in that act,— the Supreme, Circuit, and District Courts, — " shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." It has been held that this enactment impliedly confers a power to issue the writ of certiorari, when required as auxil- iary to the exercise of a judicial authority over some case or subject matter cognizable by the court. But this power is not. inherent in the court. It is imparted by the statute, and must be exercised under the qualifications which the statute indi- cates." Ne exeat. The power of the Federal courts to issue auxiliary writs was not long left to be deduced from the vague and general language of the act of 1789, above quoted. In 1793 ' provision was more distinctly made for the writ of ne exeat, and at the same time for injunctions. As to the former, the act provided that " writs of ne exeat might be granted by any judge of the Supreme Court, in cases where they might be granted by the Supreme or a Circuit Court ; but none should be granted un- less a suit in equity were commenced, and proof made Uiat defendant intended quickly to depart' from the United States." Since this enactment, it has been intimated that the district judges have no authority to issue the writ.' But under sec- tion 2 of the act of April 10, 1869," a circuit judge may un- doubtedly do so. Injunction. The section above cited as defining the power to issue the ne exeat, also declares that writs of injunction may be granted chattels, in actions at law ; receivership ' 1 Ante, 9. iTi eqnity ; attachments of the person ' Matter of Van Orden, 12 N. T. Leg. lor contempt, are familiar examples. Oba., 161. The list in the text is hmited to those » Act of March 2, 1793, 1 Ante, 28. concerning which peculiar regulalions ' See G-ernon v. BoecaUiie, 2 Wash, exist governing the United States C. Ct., 130. courts in employ' ing them. ' 1 Ante, 244. mTERLOCUTORT OR PROVISIONAL REMEDIES. 89 by any judge of the Supreme Court in cases where ttey might be granted by the Supreme or a Circuit Court; but that none shall be granted to stay proceedings in any court of a State ; nor, in any case, without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same. This act probably would not have clothed the district judges with the power to enjoin ; but that was done, in the act of February 13, 1807.' And circuit judges may, of course, ex- ercise the power, in view of the general provisions of the act of 1869, just referred to. A new declaration of the power of the Circuit Courts to grant injunctions was made in the acts of February 15, 1819," and the act of July 4, 1836," relating to suits in equity for in- fringement of copyrights or patent-rights. These acts are re- pealed by the act of July 8, 1870, but the remedy is pre- served. Section 55 of that act, after declaring that suits under the patent laws shall be originally cognizable in equity by the Circuit Courts of the United States, or any District Court hav- ing the powers of a Circuit Court, or, &c., declares that "the court shall have power upon bill in equity filed by any party aggrieved, to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable." The same act provides a system of recording manufecturers' trademarks ; and declares, in section 79, that if any person shall imitate such recorded trademark, the party aggrieved shall have his remedy according to the course of equity to enjoin the wrongful use of his trademark, &c. And section 106 of the same act makes a similar provision, in lan- guage almost identical, authorizing injunctions to be granted in suits under the copyright laws.* Again, the act of May 15, 1830,' authorizes an application to a district judge, or, in case of his refusal, to a Supreme Court judge, upon a biU. of complaint, for an injunction to stay proceedings upon a treasury distress warrant. ' 1 Ante, 40. script without the consent of the au- ' 1 Ante, 43. thor or proprietor. So we judge the ' Section 17. 1 Ante, 55. act is to be construed, in view of the • That is to say, either in a suit for former provision of the Act of Febru- infringement of a copyright; or in a ary 3, 1831, § 9. 8uit for printing oi publishing a manu- ' 1 Ante, 43. 90 ORIGHNAL JURISDICTION. Under these enactments, an employment of the writ of ia« junction pending a suit in equity for a permanent injunction, or for other final relief, has grown to be one of the most im- portant remedies wielded by these courts ; and this is particu- larly true of the use of the injunction in patent causes in the Circuit Courts. They have also been frequently employed to prevent infringements of copyrights ; to restrain unlawful acts of corporate officers, or acts of interference with corporate offi- cers ; to prohibit transfers of negotiable paper ; to prevent the erection or continuance of nuisances ; to stay inequitable pro- ceedings at law ; to protect trademarks ; to control the action of trustees ; and to free watercourses and navigable streams from obstructions unauthorized by law ;' and in some similar cases. The general course of procedure governing the employment of injunctions in the national courts, is substantially like that of other courts of equity. The remedy is allowed to be used only for prevention or protection ; and not to enforce the pay- ment of money, nor for extortion or vengeance." Temporary injunctions, or injunctions pending a suit, are, in general, only allowed where the prima facie right of the complaining party is clear, and the party to be enjoined threatens some in- fraction or violation of that right, which involves imminent danger of an injury which cannot be certainly or adequately remedied at law.' For the exercise of this remedy, in com- mon with all others of equitable character, is governed by the general provision of statute that suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may bo had at law." But to prevent an injunction on the ground of a remedy at law, that remedy must be plain, adequate, complete. A doubtful, or partial remedy at law, does not exclude the in- jured party from equitable relief. Thus it has been held that the action of trespass does not afford an adequate redress to a bank whose funds are annually and unlawfully abstrapted, by ' See the oases collected in Abh. Nat. 142; Poote v. Linok, 5 Id., 616; Segee Dig., tit. Injunction. v. Tliomas, 3 Blaichf., 11. " Sanders v. Logan, 9 Am. Law Reg., * Act of September 24, 1789, § 16, 1 475. Avte, 9 ; Rogers v. City of Cinciunati, " See Spooner v. MoConnell, 1 Mc- 5 McLean, 337. Lean, 337; "Woolsey v. Dodge, 6 Id., INTERLOCUTOKT OR PROVISIONAL REMEDIES. 91 the forcible collection of a tax assessed under an unconstitu- tional law, so as to prevent a court of equity from enjoining such collection.' So the fact that a plaintiff may have a right to recover on covenants of warranty in a deed, is not such an adequate remedy at law as wiU bar a suit in eqxiity to enjoia a third- party from prosecuting an ejectment." So it is said that the principle upon which courts of equity take jurisdiction in patent cases, and upon which injunctions are granted to patentees, is not that there is no remedy at law in favor of those whose property is invaded, but that it is inadequate ; for if each infringement of the patent were to be made a distinct cause of action, the remedy would be worse than the evil. The in- ventor or author might be ruined by the necessity of perpetual litigation, without ever being able to have a final, establishment of his rights. Moreover, he can have no direct preventive remedy at law,' while equity can restrain a future violation of a right, as well as require an account for a past one ; and such remedy is often better than damages, which, alone, can be had at law. * We have already adverted to the statute prescribing, notice to be given of applications for injunctions. A rule of the Su- preme Court ' contains some further regulations upon this sub- ject. In other respects, the practice in moving for an injunc- tion pending suit, in moving to dissolve one, and in enforcing one which may have been granted, substantially foUows the ordinary course of chancery practice, except so far as rules or decisions in particular districts may prescribe the procedure. DiscoTcry. The explanations necessary to acquaint the reader with whatever is peculiar and practically important in the pro- cedure of the United States courts, under the head of this remedy, may be brief. Discovery is employed, ia the equit- able jurisdiction of the national courts, under the guidance of the general rules which J)revail in courts of chancery. The remedy is also extended by act of March 31, 1830,' to a class of cases, probably not of very frequent or general importance, ' Woolsey v. Dodge, 6 McLean, 142. " Rule 55 of Supreme Court Rules in ' Segee v. Thomas, 3 Blatchf., 11. Equity, 1 Ante, 141. • Motte V. Bennett, 2 Fish.. 642. " Section 5. 4 Stat, at L., 392. ♦Pierpont v. Fowle, 2 Woodb.&M., 23. 92 ORIGINAL JURISDICTION. in which individuals are aggrieved by fraudulent contracts for the sale of public lands. In the administration of this remedy, the courts of the United States have recognized many of the familiar canons of chancery jurisprudence, as governirg their action. The juris- diction to require discovery rests upon the inability of law courts to command the evidence necessary to the administra- tion of justice in the cause. It has no other foundation ; and whenever a discovery is sought in equity, if it appears that the same facts could be obtained by the process of courts of common law, it would be an abuse of the chancery powers of the United States courts for them to interfere.' Thus, a bill for discovery does not lie for matter of which the plaintiff haa knowledge and means of proof, or of matter whereof he has the same means of information as the defendant, — e. g., public records." In particular, discovery will not be required as a means of enabling a complainant to enforce a forfeiture ; for equity does not favor forfeitures. A defendant cannot be compelled to make discoveries in answer to a biU which seeks to enforce penalties and forfeitures against him by means of such dis- coveries." A bni of discovery will not be allowed in any case where the discovery will subject the defendant to a penalty, unless the bill relinquishes all claim to the penalty." But a plaintiff, entitled to the forfeiture of a publication under the Copyright Act, may, by waiving the forfeiture in his bUl, en- title himself to a discovery in aid of an action at law for the re- covery of damages.* To obtain a discovery in equity in aid of a suit at law, the bill must show it to be necessary for the plaintiff, and that, when made, it can be used to his advantage. Therefore, when it appears from the biU that the plaintiff cannot maintain his action at law, a discovery will not be granted." It is, more- over, essential to a bill of discovery that it should set forth a ' Brown v. Swann, 10 Pet., 497. He is entitled to exact the oath of the " Baker v. Biddle, 1 Baldw., 394, 417. defendant as to facts. Bell v. Pomeroy It has been held, however, no suf- 4 McLean, 57. flcient answer to a bill of discovery in ' Atwill v. Ferrett, 2 BlaUhf. 39 • aid of a suit at law, to say that A. can Stewart v. Drasha, 4 McLean, ' 563 j prove the facts; where the person so United States v. Twenty-eight' Pack- referred to is interested. The com- ages, Gilp., 306. plainant cannot be compelled to rely * Finch v. Rikeman, 2 Blatchf., 301. upon the oath of an interested witness. ' Atwill v. Ferrett, 2 Blatchf. 39. INfERLOCUTORT OR PROVISIONAL REMEDIES. 93 title sufficient to support or defend a suit, and pray a dis- covery pertinent to that title, and nothing beyond. A party showing no right in himself to a subject matter in dispute, will not be permitted to subject the one who shows a prima facie title to it, to interrogatories as to the source or validity of that title. Bills of discovery filed under such circumstances are- always rejected as fishing.' The mode of propounding interrogatories in connection with a bill in equity, and the extent to which a defendant may be compelled to answer, and the proper mode of doing so, are regulated in considerable detail for the United States courts by the Supreme Court Rules in Equity.' It has been held that where the answer to a bill for discov- ery and an account contains extra^jts from the books of the de- fendant, the plaintiff is entitled, upon motion for that purpose, to an inspection of the portions of the books referred to in the answer, but the defendant- is at liberty to seal up the other parts of the books, and the inspection must take place under the supervision of an officer of the court." And a plaintiff is' not entitled, on motion, to the production by the defendant of papers to which.no allusion is made in the answer ; nor to the production of a book, where his bill does not in any way call for its production or discovery, or show its materiality to the matters in controversy. * Where the bill asks answers to interrogatories according to the "knowledge, information, and belief " of the respondents, it is their duty not merely to state their own knowledge, but their information, if any, derived from others, and their belief on the subject." And if one of the respondents to a bill in equity be a cor- poration, the officers answering are bound to make full in- quiries on the matter before answering." Inspection of writings. The necessity of any resort to the remedy of discovery in equity, has been greatly diminished in the United States courts by the statutory grant of power to the courts of law to compel ' Young v. Colt, 2 Blatchf., 373. ' Kittredjre v. Claremont Bank, 1 • 1 Ante, 133. Woodh.. & M, 244 • Bobbins v. Davis, 1 Blaichf., 238. ' lb. • lb. See, also, Bank of Alexandria v. Lynn, 1 Pet, 376, 383. 94 ORIGINAL JURISDICTION. the production of writings.' This power is conferred by sec- tion 15 of the Judiciary Act of 1789." The provision is, in substance, that tlie courts of the United States shall have power in the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. ° The employment of this proceeding is not limited to requir- ing the production of written matter upon the trial. The party may be required to produce the book or writing before the trial.* It is only requisite that the cause should be at is- sue, and that the court should be satisfied that the evidence required to be disclosed will be pertinent to such issue, and that the circumstances should be those in which a discovery would be decreed in chancery. ' The petition need not contain .the formalities of a bill of discovery in chancery. It is enough if it contains a notice to the opposite party of the time and place of making the application, and a plain designation of the documents sought for." But some application to the court is necessary. It is not enough, under section 15 of the Judiciary Act, to give notice to produce books or writings. The proper course is to move the court for an order ; and it is only upon a failure to comply with such order that the court can give a judgment as on de- fault. ' The motion papers must show presumptive proof of the ex- istence and materiality of the writing ; and the court wUl then ' It has been still more diminished of * lb. ; Central Bank v. Tayloe 2 late years, by the operation of State Cranch C. Ct.. 427. laws allowing parlies to be examined ' Jacques i;. Collins, 2 Blak.hf., 23. as witnesses. ° lb. ' 1 AMe, 9. That the court will control proceed- " If the plaintiff fails to comply, he is ings for the inspection of papers of ad- liable to judgment as in case of non- verse party, within such limit? as to suit ; if the defendant, he is liable to secure substantial justice, — see Geyo-er iudgment as by default. lb. v'. Geyger, 2 Dall,, 332. ' ° The statute has so far changed the ' Thompson v. Selden, 20 Hoio. 194 • common law as to inflict upon a party Maye v. Carbery, 2 Cranch 0. Ct 336 ' who disobeys an order to produce pa- Bank of United States v. Kurtz Id. pers, the penalty of a nonsuit or de- 342 ; Macomber v. Clarke,' 3 Id., '347- fault, instead of merely letting rn the Dunham v. Riley, 4 TFos/i. 0. Ct opposite party to parol proof. lasigi v. 126. ' "* Brown, 1 Curt C. Ct., 401. INTERLOOUTORY OR PROVISIONAL REMEDIES. 93 pass an order nisi, leaving the opposite party to produce, or show cause at the trial, where alone the materiality can be finally decided.' The mere affidavit of the respondent that he has no such books in his possession as the plaintiff seeks to inspect, will not prevent an order for their production ; such books having been referred to in the answer ; though it is proper to submit such affidavit to the master in answer to the order. And the court will give, in such case, a subpoena duces tecum to any witness to bring in the books, who is supposed to have them ; and will aid to detect and punish any evasion of its order." Inasmuch as it is only in cases where a court of chancery, in ordinary course of proceeding, could compel a disclosure, that section 15 of the Judiciary Act authorizes courts of law to make an order, it follows that where equity would not de- cree a discovery, — as in aid of proceedings to enforce a for- feiture,^ — an order for inspection will not be made. Thus, where, in an action at law for the infringement of a patent, the plaintiff applied to the court for an order requiring the de- fendant to produce his books, for the purpose of enabling the plaintiff to establish therefrom the quantity and value of cer- tain machinery made by the defendant, which the declaration charged to have been made in violation of the patent, it was held that the application could not be granted, because the di- rect consequence of the evidence, if obtained, would be to subject the defendant to a penalty, under section 14 of the act of July 4, 1836 ;' and the plaintiff had not relinquished his claim to the penalty." The power is granted only to courts of law. It is not avail- able in admiralty. ° Undpr special circumstances, however, the equitable powers of the United States courts, sitting in ad- miralty, may warrant making an order for inspection." Attacliment at law. • The common law appears not to have authorized courts of ' lasigi V. Brown, 1 Curt C. CI, papers not produced, is not a bar to a 401. ' motion for the production of books and *Russe]\ V. McLellm, 3 Woodb. S M., papers. lasigi r. Brown, 1 Curt. C. 157. Ci., 401. = .5 Siai. at L., 123. ° United States v. Twenty-eight Pack- * Finch V. Rikeman, 2 Elatchf., 301. ages, Oilp., 306. But the fact that a bill of discovery ' See The Voyageur de la Mer, has been filed and answered, but the Sprague, 372; 10 Law Bep. N. S., 331. 96 ORIGINAL JURISDICTION. legal jurisdiction to serve process upon persons not within the jurisdiction ; nor to attach their property within the juris- diction.' But statutes (or special customs), allowing such at- tachments to be made, as a means of inducing a voluntary ap- pearance, have been known for a long time. The statutes of the States authorizing attachments, enacted early enough to be operative under the Process Acts within the United States, or adopted by rule in those courts, form the guide as to the em- ployment of attachments against property of defendants sued at law in those courts. An attachment issued under a State law, which has not been adopted by Congress, or by a rule of court, cannot be sustained." The expression, adopted by act or "by rule of court," is here employed, as consonant with most of the reported cases, but not as intending to imply that a formal rule of court must exist in written form to warrant resort to a remedy cus- tomarily used in a court of the United States, and within the general power to alter modes of procedure. The recent de- cision of Judge Blatchfoed in the District Court for the southern district of New York, in the case of United States V. Stevenson (not yet officially reported), distinctly holds that the adoption of a mode of attachment by a United States court, may be deduced or inferred from established practice, although no written rule may be found on the records of the court. The case was a common law action in behalf of the United States, commenced by attachment ; which was issued early in 1867 by Judge Betts, then the district judge of the southern district of New York. The defendant moved to" set aside the attachment on the ground that it was issued without authority of law. In his opinion, Judge Blatchfobd, after pointing out that the necessary authority must be derived either from an attachment law of the State of New York in force on September 29, 1789, and therefore imposed upon the United States courts by the Process Act of 1792, or from some subsequent statute of New York which had been voluntarily adopted for the District Court ; — and after showing that in 1789 there was no State law allowing such an attachment as had been issued in the cause before him ; — proceeds with the ' See Clarke v. New Jersey Steam And it is not too late to take the Nav. Co., 1 Story C. Ct., 531. objection after a plea to the merits. ' Binns v. Williams, 4 McLean, 580. lb. • INTERLOCUTORY OR PROVISIONAL REMEDIES. 97 following remarks upon the question of subsequent adoption of a practice by which the writ might be sustained. " It is not necessary that a practice of a court, to be recog- nized or sustained, should be embodied in a written rule. Written rules are undoubtedly preferable, but a practice in respect to a particular matter in a court ,may be established without the existence of a positive written rule.' The fact' that my learned predecessor, who presided in this court for more than forty years, granted this attachment, is the strong- est possible evidence that he must have regarded it as the practice of the court to issue an attachment in a case like the present one, and that he must have understood either that such practice existed in the Supreme Court of New York on September 29, 1789, or that a departure had been established, either by written rule or by the practice of this court, from the practice which existed in September, 1789 ; and that this court had, within section 2 of the act of 1792, altered its form of pro- cess and mode of proceeding in the suit, like the present one, in such manner as to authorize the issuing uf the attachment that was issued in this case. The judge who issued it knew better than any other person the practice of this court in the respect in question, and his action in a case of the character of the present one, involving a claim of so large an amount, and affecting real estate of such large value, must be regarded by me as conclusive in regard to the fact of the establishment and existence of a practice which warranted the attachment in this case. Whether he regarded it as reposing on the privilege of a prerogative of the United States, or on 'the construction of some written rule of this court, or on acquiescence and uni- form mode of proceeding, or on some specific act of Congress, cannot be ascertained, as his views are not on record, and the. point is immaterial on this application. I am satisfied, from inquiry, that the matter of issuing the attachment was deliber- ately considered by Mm, and that his conclusion was not hastily reacted. The propriety of that conclusion is strength- ened by the fact that nearly two years have elapsed without the authority of the court to issue the attachment being ques- tioned by the defendant. So far, therefore, as the motion to vacate the attachment is founded upon an alleged want of ;> FulWrt(^n v. Bank of United States, 1, Pet, 604^ 613 ; Duncan v. United States,; 7 M., 435j 451.. . Vol. II.-7 98 ORIGINAL JURISDICTION. authority ia this court to issue it, the motion must be over^ ruled." A Circuit Court of the United States has no authority to issue the process of attachment against the property of a debtor, who, although a citizen of the United States, is domi- pUed abroad at the time of the institution of the suit, and not found within the district in which the process issues, so that it can be served upon him. The right to attach property, to compel a personal appearance, can only be used where the de- fendant is amenable to the process of the court in personam ; that is, where he is an inhabitant of, or found within, the United States, and not where he is an alien, or a citizen resi- dent abroad at the commencement of a suit.' And by reason of the restriction upon the civil jurisdiction of the Circuit and District Courts, contained in section 11 of the Judiciary Act, a process of foreign attachment by which the property of a de fendant is attached pursuant to State laws deemed adopted for those courts, cannot give them jurisdiction over a person not An inhabitant of, and not found within the district.' The prin- cipal defendant must be an inhabitant of the district in which the suit is brought, or be found within it at the time of the ser- vice of the process ; and service upon trustees or garnishees within the district is not sufficient to ground a judgment against the principal.' And this rule, that jurisdiction of the person of a defend- ant (who is an inhabitant of another State) can only be ob- tained in a civil action by service of process on his perspn, within the district where the suit is instituted ; and that no ju- risdiction can be acquired by attaching the property of a non- resident defendant, pursuant to a State attachment law, — ap- plies not only in cases in which the jurisdiction depends on citizenship, but as well where the suit is founded on the act ' Toland v. Sprague, 12 Pet., 300 ; where its goods were sold ; and an ac- Day v. Newark India Rubber Co., 1 tion in the Circuit Court was com- Blatchf., 628 ; Pioquet v. Swan, 5 Man., menced against it in New Torlt, by at- 35; Allen v. Blunt, 1 Blakhf., 480. taoliment of its goods there, and by ser- ' Scudder v. Hudson, 2 Curt. 0. vice of process on its president, who Ct., 7. happened to be there. It was held ' Day V. Newark India Rubber Co., 1 that the corporation was not an inhab- Blatchf., 628. itant of New York, or found within it In this case a manufacturing corpora- at the time of the service of the process, tion, chartered by New Jersey, and and that as the corporation was an in- having its place of business in that habitant of another district, the court State, had also a store in New York, had no jurisdiction of the action. INTERLOCUTORY OR , PROVISIONAL REMEDIES. 99 of Congress conferring on the Circuit Courts jurisdiction of suits by inventors against those who infringe their letters patent, including all cases, both at law and in equity, arising under the patent laws, without regard to citizenship of the parties, or the amount in controversy. Therefore, where a suit was commenced for an infringement of a patent-right, and process was served by attaching the property of an absent de- fendant, it was held that this was not sufficient to give the court jurisdiction.' It has further been held in several cases in the national courts, that in the case of a person amenable to process in personam, an attachment against his property cannot be is- sued, except as a part of, or together with, process to be serv^ed upon his person ; as it is unjust that a person should have his rights, passed upon, and finally decided by a tri- bunal, without some process being served upon him, by which he wUl have notice, which wiU enable him to appear and de- fend himself." Express adoption of State laws regulating the dissolution of attachments, is found in the act of March 14, 1848." It di- rects that whenever, upon process instituted in any of the courts' of the United States, property shall hereafter be at- tached to satisfy such judgment as may be recovered by the plaintiff in such process, and any contingency occurs by which, according to the laws of a State, such attachment would be dissolved upon like process pending in, or return- able to, the State courts, then such attachment made upon process issuing from, or pending in, the courts of the United States within such State, shall be dissolved ; the intent of the act being to place such attachments in the courts of the States and the United States upon the same footing. Some principles relative to rights of the United States af- fected by attachments, have special application in the United States courts ; and these relate either to cases in which the United States desire to proceed by attachment against indi- viduals, or to cases in which property in which the United • Chaffee v. Hay ward, 20 How., 208. Blunt, 1 Blatohf., 480; Day v. Newark " Toland v. Sprague, 12 Pet, 300; India Rubber Co.,. 1 iJZa^cA/, 628. SaaJler v. Hudson, 2 Curt. C. Ct., 7 ; M Ante, 65. By a subsequent pro- Pib.4uet V. Swan, 5 Mas., 35 ; Allen v. -viso any claim of the United States to priority is preserved. 100 OEIG-ESTAL JURISDICTION. States have some interest, is claimed in attachment proceed ings against an individual alleged to be its owner. Under the first head may be mentioned the act of April 11, 1818." Sec- tion 8 of this statute provides that in suits by the United States against any corporate body, for the recovery of money upon any bill, note, or other security, it shall be lawful to summon, as garnishees, the debtors of such corporation ; and they must appear in open court, and depose, in writing, to the amount of their indebtedness to the corporation, at the time of the ser- vice of the summons, and at the time of the deposition ; and judgment, in favor of the United States, for the sum admitted to be due to the corporation, may be entered in the same man- ner as if it had been due to the United States ; judgment being first rendered against the corporation defendant, and the sum in which the garnishee may stand indebted being actually due. It has been held that this provision operates a transfer from the corporation to the United States of those debts which might be due from the persons summoned as garnishees. They become, by the service of the summons, the debtors of the United States, and cease to be the debtors of the corpora- tion. But they owe to the United States precisely what they owed to the corporation, and no more. The sta,tute does not impair any legal or equitable set-ofi" in favor of the garnishees. It is the balance actually due that becomes a debt to the United States, for which judgment is to be rendered." The United States have, however, no general priority or privilege, in respect to debts due them by their debtors, over debts due to private persons, which entitles them to a prior satisfaction upon judgments obtained against their debtors out of property attached, before attaching creditors whose attachments are of an earlier date. In such a case, a private creditor who has a prior attachment on the property, is entitled to a preference over the subseq^uent attachment of the United States.' And it has eve^i been held that the right of a private creditor, ac- quired under an attachment issued out of a State court, and levied upon money in the hands of a debtor of the defendant, ' 3 Stat, at L., 443. ' United Stales v. Robertson, 5 Pet., For some provisions applicable in ac- 641. tions against persons indebted to the ' United States v. Canal Bank, ! post-office department, see the Act of Story C Ct 79 February 23, 1865, 13 Stat, at L., 432. INTERLOCUTOEY OR PROVISIONAL REMEDIES. 1^ cannot be defeated by the process subsecLuently issued on tlie part of the United States to secure a debt to which the United States has a priority/ In respect to claims of individuals to attach property held by the United States in a suit against an individual alleged to have an interest in it, the act of June 11, 1865," provides that whenever" any property owned or held by the United States, or in which the United States have or claim an interest, shall, in any judicial proceeding under the laws of any State, dis- trict, or territory, be seized, arrested, attached, or held for the security or satisfaction of any claim made against said prop- erty, the secretary of the treasury may, in his discretion, di- rect the solicitor of the treasury to cause a stipulation to be entered into by the proper district-attorney for the discharge of such property from such seizure, arrest, attachment, or pro- ceeding, to the effect that upon such discharge, the person as- serting the claim against such property shall be entitled to all the benefits of the act. As the United States have a lien on goods imported, for the payment of duties accruing on them, and which have not been secured by bond, and are entitled to the custody of them from the time of their arrival in port until the duties are paid or se- cured, any attachment by a State officer, in proceedings in a State court, is held to be an interference with such lien, and, being repugnant to the laws of the United States, to be void. An attachment of si^ch goods presupposes a right to take the possession and custody of those goods, and to make such pos- session and custody exclusive. And the act of tlie custom- house storekeeper, in giving to the attaching officer a certi- ficate that he holds the goods upon which the duties have not been secured or paid, subject to an attachment issued out of a State court at the suit of a creditor of the importer, is a plain departure from his duty, and is not authorized by the law of ■ Beaston v. Farmers' Bank of Dela- not entitled to priority over such at- ■ware, 12 Pet., 102. tacliing creditor, if the latter had no And the United States, upon at- notice of the. deed. United States v. tachment i.=;sued against the grantee of Canal Bank, 3 Story 0. Ct., 79. laud in Maine or Massachusetts, whose " 13 Stat, at L., 122. Some provis- deed was given before, but not le- ions additional to those cited in tha corded until after tlie levy of another text aie made; governing the mode of attachment at the suit of a private dissolving the attachment, and the ef- creditor of the grantor of the land, are feet of the judgment. ■/. 102 ORIGINAL JURISDICTION. the United States, and cannot be admitted to vary tlie rights of the parties/ Moreover, it is the established practice of the government that the earnings of employees of the government are not, while yet unpaid, attachable for their debts. Thus, money due to a naval seaman for wages, is not attachable in the hands of a purser. The purser is a disbursing agent of the government, and so long as money remains in his hands, it is as much the money of the United States as if it had not been drawn from the treasury. The purser is not the debtor of the seaman ; nor can the money in any legal sense be considered as a part of his effects until it has been paid over to him." And so the salaries of officers in the civil service, accrued but not paid, cannot be attached at the suit of their private creditors, by proceediugs of garnishment served upon the dis- bursing officers of the treasury. It is not deemed consistent with the relation between the government and its officers for the former to make itself a creditor of the latter without their consent ; and to detain their salaries in the discharge of debts so acquired." Moreover, it is obvious that the government service might be seriously embarrassed and obstructed, to the detriment of important public interests, if the earnings of its officers for their personal labors in its employ, were liable to be divested or withheld for the payment of demands against them, without their consent. In respect to the questions of conflict of jurisdictions which sometimes arise upon the effect to be attributed to State at- tachments drawn in question in United States courts, and vice ver.sa, it is held that where a suit is commenced in a court of the United States, and proceedings by attachment are after- wards instituted in a State court, such proceedings cannot ar- rest the former suit ; but the maxim qui prior est tempore, potior est Jure, must govern the case. Any other ride would produce a collision in the jurisdiction of courts, which would greatly embarrass the administration of justice. If an attach- ment had been conducted to a conclusion, and the money re- covered, thereon before the tastitution of another suit, there can be no doubt that it might be set up as a payment upon the note. And if the defendant would have been protected, pro ' Harris v. Dencie, 3 Pet., 292. '' Buchannati v. Alexander, i How 20 •1 Op. AU.-Qen., 676. '' " DTTERLOCUTORY OR PROVISIONAL REMEDIES. 103 tmdo, under a recovery iad by virtue of the attacliment, and could have pleaded such recovery in bar, the same principle would support a plea in abatement, of an attachment pending prior to the commencement of the action.' Upon similar grounds, an attachment of property upon mesne process issuing out of the Circuit Court cannot be dis- solved by making an assignment under, and taMng advantage of a State bankrupt law, passed subsequent to the time of the adoption of the processes and proceedings thereon in the tri- bunals of such State, by the United States courts, pursuant to acts of Congress. No changes of State law, made subsequent to the Process Act, have been admitted to change the nature of the process, or the proceedings thereon, or the effects there- of, as they stood at the time of their original adoption, unless so far as they have been sanctioned or adopted by subsequent- acts of Congress, or by the rules and practice of the United States courts in conformity therewith." Where an action has been commenced in a State court by attachment, and is afterwards removed to a court of the United States, provision is made, to*a certain extent, by the Judiciary Act, for preserving the effect and lien of such attachment. Section 12,' after directing proceedings of removal, provides that " any attachment of the goods or estate of the defendant \>j the original process shall hold the goods or estate so at- tached, to answer the final judgment, in the same manner as, ■ by the laws of such State, they would have been holden to an- • ' Wallace v. McConnell, 13 Pet., 136. to harass the ' defendant, so as to in- A garnishment sued out in a State duce the court to dismiss the attach- coui-t cannot be pleaded in bar of, nor ment, if, indeed, the rule in relation to in any way affect an action previously discharging at common bail, on the instituted in a United States court for ground of vexation, is at all applicable the same cause. The jurisdiction of the in case of such an attachment. Fisher latter court and the right of the plain- v. Oonsequa, 2 Wash. C. Ct.) 382. tiffs to pro-iecute their suit therein Upon the other hand, the custody ao- having attached, that right cannot be .quired through the seizure or manual arrested nor taken away by any pro- occupation of a vessel, under an attach- ceedings in another court. Greenwood ment by the sheriff, cannot legally be V. Rector, Hempst., 708. obstructed by a marshal holding pro- Where a delehdant claimed that a cess subsequently issued on a libel in foreign attachment in the Circuit Court admiralty in a court of the United should be dissolved, on the ground that ■ States. Nor can the marshal assert a the plaintiff had sued out another at- concurrent right with him in the prop- tachment for the same cause of action erty. Taylor v. Carryl, 20 How., 583. in a State court, and afterwards dis- ' Springer v. Foster, 1 Siory. C. Ct., continued it, it was held that this did 601. not constitute evidence of an intention ' 1 Ante, 8. 104 ORIGINAL JURISDICTION. swer final judgment, had it been rendered in the court in "wliich the suit commenced." But it is held that the attachmeilt cannot so hold unless it was the original process in the suit in the State court. If it was not the original process, but an or- der made after an action had been commenced bj another pro- . cess, as is the practice under the New York Code of Pro- cedure, it is not within the statute.' Attachmeut in admiralty. The courts of the United States, proceeding as courts of ad- miralty and maritime jurisdiction, may likewise issue the pro- cess of attachment against the goods and chattels of the de- fendant, in order to compel his appearance, wherever the de- fendant has concealed himself, or absconded from the country, and the goods to be attached are within the jurisdiction of the admiralty ; and may do this whether the cause of action be a maritime tort or a contract." In the discretion of the court the process may be issued against the defendant' s credits and effects, in the hands of third persons. And the remedy applies even where the same goods are liable to the process of foreign attachment, issuing from the courts of common law. And in case of default, the property attached may be condemned to answer the demand of the libelant.' Where, in a suit in personam, a respondent cannot be arrested, a foreign attachment may issue against his property in the hands of third persons to compel his appear- ance, and such process is appropriate, in admiralty, for that purpose alone.* The primary purpose of the attachment is to effect the ap- pearance of the defendant in the action, and not that of the garnishee. In order to authorize proceedings in a court of ad- miralty by foreign attachment, to be carried on against the garnishee personally, it is necessary that the warrant or pro- cess served upon him should contain a summons or notice, warning him of the claim in suit, and citing him to appear and answer. In all cases, the cardinal principle in the proceeding is that the trustee or garnishee shall, by summons or scire fa- ' New Endand Screw Co. v. Bliveii, " Manro v. Almeida, 10 Whmt., 473. 3 Blatchf., 24T). ' Reed v. Hussey, 1 Blatchf. & H. ' Manro v. Almeida, 10 Mimi!., 473 ; 525. Bouysson v. Miller, Bee's Adm., 186. INTEELOCUTOHT OR PROVISIONAL REMEDIES.' 105 ctus, be broTight into court wdth notice of the claim upon him, and that he should have a, full opportunity to oppose the de- mand.' This proceeding, by which, in an action against a person who cannot be reached, his property is seized as an auxiliary or provisional means for compelling him to appear and defend, is different in its nature, though not in its outward aspects and incidents, from the arrest of the property against which an action in rem, is aimed. In proceedings in rem, the title to the property is the direct object. The judgment or decree binds the thing itself directly ; and the person is only indi- rectly considered, in that he is allowed to intervene and defend for the protection of his interest in the thing. In a personal action, aided by a statutory attachment, the proceeding is, in its direct relations and effect, against the person. The seizure of property is resorted to only as an auxiliary means of induc- ing the person to appear and submit to the jurisdiction." As in respect to attachments at law, so in admiralty, a pro- cess of foreign attachment cannot legally issue in the admi- ralty against a citizen and iifliabitant of the United States, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. Sec- tion 11 of the Judiciary Act of 1789 applies to the courts of the United States sitting in admiralty, as well as in equity and at common law. Therefore, where process of foreign attachment issued in .accordance with the prayer of a libel in personam, against the respondent and others, parties, as trustees ; to which the marshal return'ed that the defendant was not found, and that he had attached his credits and effects in the hands of the garnishees named ; and to this protest the defendant, by his proctor, appeared under process to the jurisdiction, filing his exception that the defendant was a citizen of another State, domiciled therein, and was not found within the district at the time of serving the writ, — ^the District Court held that the proceeding was a civil suit against an inhabitant of the United States, commenced by original process, and as ' Smith V. Miln, Abb. Adm., 373. See respect to the process of foreign attach- tnis case for additional explanations as ment. to the practice of courts of admiralty in ' See Mankin v. Chandler, 2 Brock. Marsh., 125. 106 ORIGINAL JURISDICTION. such, witMn the. prohibition of section 11 of the Judiciary Act of 1789.' Rules governing the proceedings on attachments in admi- ralty, in considerable detail, have been prescribed by the Su- preme Court.' ' Wilson V. Pierce. 5 Law Rep. N. S., 1832, 1 Ante, 51 ; McDonald v. Rennel, 137. ' 11 Law Sep. N. S., 157; Shorey v. ' Supreme Court Rules in Adm., 1 Rennell, 1 Sprague, 48. Ante, 149. See, also, Act of April 5, CHAPTER X. AMEITDMEN-TS. It is convenient to discuss in one chapter tlie principles and rules wMch. govern amendments in all three classes of civil actions in the national courts, rather than to attempt a separate treatment of amendment at law, amendment in equity, and amendment in admiralty ; for the reason that one and the same provision of statute underlies the jurisprudence of each of the three forums. FroTisions of the Judiciary Act, The subject of amendments in civU proceedings in the courts of the United States is not left to be regulated by strict or technical views which may prevail in other tribunals, upon which our jurisprudence is modeled. A liberal principle was prescribed by the original Judiciary Act ; and this has con- tinued to guide the procedure of the courts in civil cases. The section is as follows :' , "No summons, writ, declaration, return, process, judg- ment, or other proceedtags in civU causes in any of the courts of the United States, shall be abated, arrested, quashed. Or re- versed for any defect or want of form, but the said courts re- spectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleading, return, process, ' ' Section 32. 1 Ante, 9. Kindred 1855, to prevent mistrial?, 1 Ante, 77 ; enactments, not necessary to be re- in tlie Act of June 11, 1864, authoriz- viewed at length in tlie text, are to be ing summary trials for minor offenses, found in sections 17 and 31 of the same Id., 85; and in the Bankrupt Law of act, regulating new trials and abate- 1867, §§ 16-26, Id., 103, 108. ment oi' actions ; in the Act of Mai'ch 2, 108 OEIOINAL JURISDICTIOK judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shaU specially set down and express together with his demurrer as the cause thereof. And the said courts respectively shall and may, by virtue of this act, from time tP time, amend all and every such imperfections, defects, and wants of form, other than those only which the party demurring shall express as afore- said, and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such con- ditions as the said courts respectively shall in their discretion, and by their rules prescribe." General principles of administration. This statute is not, indeed, a grant of a new power, but rather a declaratory definition of the power of the national courts. The equitable power of courts of law (and still more clearly that of courts of equity and admiralty) to direct the amend- ment of pleadings and proceedings in the court, and to super- vise aU the various steps in a cause, so that the rules and practice of the court shall be administered and enforced in such a manner as to prevent hardship and injustipe, and so that the merits of the cause may be fairly tried, is essential to, and is iaherent in the organization of courts of justice. But the Judiciary Act confers it upon the District and other courts of the United States, in a plenary form.' It will be observed that the language of the act suggest-s a distinction between amendments in jnatters of form and in matters of substance. The first portions of the statute au- thorize amendment of defects of form. This power may be exercised without imposing conditions ; and, generally, vrith- out limit by the stage which the cause has reached. But it does not extend to defects of substance. The last clause of the statute embraces matters of substance ; it authorizes the court, at any time, to amend any defect in the process and pleadings, upon such conditions as the court shall direct. This power is confined to the process and pleadings. It reaches all defects, but it does not extend to the judgment. When, therefore, an amendment in substance is required, it ' Eberly v. Moore, 24 Ebw., 147. AMENDMENTS. 109 must be whilst the proceedings are in fieri, and before judg- ment ; and the court then does it upon such terms as shall be deemed just and equitable.' The averment of the citizenship of the parties, or other facts extrinsic to a cause of action not cognizable from its own nature in the national court, which are necessary to show the case to be one within the jurisdiction, are matters of substance within the above distinction. Such averment may be added by leave of the court, and by way of amendment, if application thus to amend is made while the proceedings are yet in fleri.^ 3ut the defect is not cured by verdict ; and cannot be amended after final judgment.' Emphatic as is the' language of the act, it is nevertheless held that the power conferred is confided to the sound discre- tion of the court ; it is not an absolute duty which can be con- trolled by mandamus ; nor will the manner in which it has been exercised be reviewed, ordinarily, on appeal or error, un- less some substantial right has been infringed.' Application of the act in different tribunals. In the courts sitting at law the provision of section 32 of the Judiciary Act undoubtedly operates to produce a consid- erable enlargement or relaxation of the practice in respect to amendments, beyond what must have been the course of those courts had the section not been passed. As there are, how- ever, no general rules of the Supreme Court directing the ap- plication of the statute to legal proceedings, the courts in each district have been left to their own judgment, in the exercise of the power conferred. ' And they have very largely followed the general course of authorities in courts proceeding accord- ing to the course of the common law, under the ameliorating statutes which have been passed in so many jurisdictions dur- ing recent years. No general rules can be asserted. . The local rules of court operating in the particular district must be con- ' Smith V. Jackson, 1 Paine, 486. that the amount in controversy is suf- ' Fisher v Eutherford, 1 Baldw., 188; fioient to support the jurisdiction of the HiUiard v. Brevoort, 4 McLean, 24; appellate court. Udall u.The Ohio, 17 Spofford V. Kitten, Jd., 253. How., 17. = Smith V. Jackson, 1 Paine, 486. * Wright v. HoUingworth, 1 Pet, The Supreme Court will not grant a 165; Walden u Craig, 9 Wheat, 576; motion for leave to amend a libel by United States v. Buford, 3 Pet, 12. the insertion of a claim of interest, so Jackson v. Smith, 1 Paine, 453 ; JExp. as to make it apparent in ihe record Bradstreet, 7 Pet, 634. 110 ORiaiNAIi JURISDICTION. suited ; the reported decisions of tlie national ' and State courts may advantageously be examined ; but after all each question of amendment must generally be submitted to the in- dividual judge, upon arguments drawn chiefly from the cir- cumstances of the particular case, and addressed to the ju- dicial discretion.. In courts of equity and admiralty the statute is scarcely more than the echo and repetition of the almost unanimous voice of all authorities in those jurisdictions ; for in them the most liberal principles upon amendment have always pre- vailed. Moreover, within each of these jurisdictions the statute provision is reiuforced, and its application explained and directed by general rules of the Supreme Court. ' Mode of making amendments. In respect to the manner of making an amendment, it has been held that, in general, merely obtaiaing leave to amend is not enough ; the record must show that the proper amendment was made.' But it is not necessary, indeed, the'cases do not, upon the whole, recommend that the matter to be inserted or omitted from the pleading or other instrument to be amended, should be actually interlined upon or erased in the original paper on file.' Filing a writing containing the matter of the amendment, as a distinct proceeding in the cause, following the order granting leave to amend, is the proper mode. This writing may often properly extend to a new draft of the entire instrument amended ;' but it is an independent paper. * ' See those cases collected in Abb. before them, certain matters from th» Nat. Dig., tit. Amendment. ' papers in the cause, which were a sub- " Supreme Court Rules in Equity, stantial part of the decree, it was held Kos. 28, 29, 30, 45, 46, 60, 85, 1 Ante, proper fur the District Court, on the re- 137, et sej. ; Supreme Court Rules in turn of the proceedings to that court Adm.. Nos. 24, 52, Id., 152. ei seq. from the Circuit Court, to fill the blank. ' Walden v. Craig, 14 Pet., 147. The Friendschaft, 3 Wieat., 14. * lb. ; Pierce v. West, 3 Wash. 0. Ct., ' This is particularly so in cases cov- 354. Where the District Court had ered by Rule 28 of the Supreme Court omitted to have inserted in the sen- Rules in'Equity, 1 Ante, 137. tence in an admiralty case depending CHAPTER XI. DEPOSITIONS. A "deposition" is evidence given by a witness under in- terrogatories, oral or written, and usually written down by an official person. In its generic sense the term embraces all 'written evidence verified by oath, and embraces affidavits. But in ordinary legal language a distinction, not easy to be stated with precision, but generally familiar, is maintained be^ tween depositions and affidavits.' Section 30 of the Judiciary Act of 1789 ' contains provisions authorizing a mode of securing the testimony of absent wit- nesses, of sick and infirm witnesses, and of others whose per- sonal attendance at the trial cannot be depended upon, by means of taking their depositions. This system is very analogous, in general nature, to those which have been established by statutes of most of the States, for the State courts. It rests, however, on a distinct statutory authority, peculiar to the United States courts ; and, therefore, requires an explanation in these pages. ° When depositions may be talcen. Section 30 of the Judiciary Act, in its first portion, author- izes a substantially new and peculiar mode of taking depo- sitions ; and, by a clause at the end, it recognizes and permits the employment of certain methods previously in common use ' Stimpson v. Brooks, 3 Elatchf., 456. State or Territory of the TJnited States, ' 1 Ante, 14. or of any foreign nation ; or, in certain ' Provision is made by two acts ap- cases, witliout a commission ; and for proved March 3, 1869, for taking; testi- taking the testimony on commission of mony of witnesses vrithin the District witnesses residing out of the District, of Columbia, upon comjnissions issued who have attested wills oifered for pro- in suits pending in any court of any bate within the District. 112 OKIGIXAI, JtJEISDICTIOlT. in the State courts. Either course may be taken, according as the facts of the particular case bring it within the new enact- ment, or under the rules governing the employment of depositions as previously known. The two systems are dis- tinct.' The system initiated by the Judiciary Act, is thus deliQe- ated in section 30 : " When the testimony of any person shall be necessary in any civil cause depending in any district in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient or very infirm, the deposition of such person may be taken de bene esse before any justice or judge of any of the courts of the ' United States, or before any chancellor, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause, Provided that a notification from the magistrate before whom the deposition is to be taken to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party or his a' torney as either may be nearest, if either is within one hu.. di-ed miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one ^ay, Sundays exclusive, for every twenty miles travel. And in /causes of admiralty and maritime jurisdiction, or other c&ses of seizure when a libel shall be filed, in which an adverse pariy is not named, and depositions of persons cfrcumstanced as aforesaid shall be taken before a claim be put in, the like notification as aforesaid shall be given to the person having the agency or possession of the property libeled at the time of the capture or seizure of the same, if known to the libelant. And every person deposing as aforesaid, shall be carefully examined and cautioned, and sworn or ' See, upon the distinction, Sergeant Par-ott, \ McAU., 447. As to letters ro- ». Biddle, 4 Wheat., 508; Buddicum v. gaiory from abroad, see Act of March Kirk. 3 Cnnch, 293 ; Evans v. Hettiok, 2, 1855. 10 Sta,t. at. L 630 3 Wash. C. C7., 408: United States w.' ' _■' " DEPOSITIONS. 113 affirmed to testify the whole truth, and shall subscribe the tes- timony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the de- position^ so tak^n shall be retained by such magistrate until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid of their being taken, and of the notice if any given to the adverse party, be by him the said magis- trate sealed up and directed to such court, and remain under his seal until opened in court. And any person may be com- pelled to appear and depose as aforesaid in the same manner as to appear and testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a District Court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court that probably it will not be in his power to produce the witnesses there testifying be- fore the Circuit Court should an appeal be had, and shall move that their testimonj'' be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court which shall try the appeal, that the witnesses are then dead or gone out of the tJnited States, or to a greater distance than as aforesaid from the place, where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, they are unable to travel and appear in court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in tl'.e\ cause." , ; The resort to the method of taking testimony by ex-pai ie deposition,, has, in recent times, been disapproved and dis- couraged by the Supreme Court, for the following strorg reasons : When section 30 of the Judiciary Act, — ^permittiig ex-parte depositions without notice, to be taken, — was passe i. Such a provision may have been necessary, as it then require (3 nearly as much time, labor and expense to travel a hundred miles, as it does now to travel one thousand. There is noiv seldom any necessity for having recourse to this mode of tak- ing testimony. It is contrary to the course of the commo:i Vol. II.— 8 114 OEIGINAL JURISDICTION. law ; except in cases of some mere formal proof (sucTi as .the signatiire or execution of an instrument of writing), or of some isolated fact (such as demand of a bUl, or notice to an in- dorser), testimony thus taken is liable to great abuse. It is calculated to elicit only a partial; statement of the truth. In closely contested cases, testimony thus obtained must always be unsatisfactory and liable to suspicion. This provision of the act of Congress should never be resorted to, unless in cir- cumstances of absolute necessity, or in the excepted cases just mentioned.' The closing proviso of section 30 recognizes and permits a resort, in cases in the United States courts, to the customary modes peculiar in. the State courts of taking testimony de bene esse or in perpetimm. It enacts that "nothing herein shall be construed to prevent any court of the United States from granting a dedimus potestatem to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice, which power they shall severally possess, nor to extend to depositions taken in perpetuam rei memoriam, which if they relate to matters that may be cog- nizable in any court of the United States, a Circuit Court on application thereto made as a court of equity, may, according to the usages in chancery direct to be taken." And by section 3 of the act of February 20, 1812," it is farther provided that " in any cause before a court of the United States, it shall be lawful for such court, in its discretion, to admit in evidence any deposition taken in perpetuam rei memoriam, which would be so admissible in a court of the State wherein stich cause is pending, according to the laws thereof." In proceeding under this second branch of the statute, the laws of the State upon the course of the proceding, the notice to be given, the necessity of recording the deposition, &c., must be followed. ° And a change in the State law regulating the mode of taking d'epositions, which has been followed for a long time, will be considered in the United States courts as adopted by usage. But the law of the State can make no change as to the circumstances under which a deposition may be taken.' ■ "Walsh V. Rogers, 13 How., 283, 287. * Buddicum v. Kirk, 3 Oranch, 293 ; » 1 AnU, 41. Gould v. Gould, 3 Story C. Ct., 516, 541 • Curtis V. Central Railway, 6 McLean, 401. DEPOSITIONS. 115. It will be observed tbat the provision with, which the above enactment commences, only applies when the testimony is re- quired in a civil cause. The act is not applicable to criminal causes. And it applies only to causes pending in "a dis- trict" Hence, it does not aid cases pending in the Supreme Court, but only cases in the Circuit and District Courts. Tes- timony can only be regularly taken by deposition, for the Supreme Court, under a commission issuuig according to its rxles.' The distinctions indicated by the language of the act, rela- tive to the residence of the witness to be examined, have been discussed and explained in several reported cases, to which the reader is referred." The notice. It has been already indicated that when a deposition is taken under the first portion of section 30 of the Judiciary Act, notice of the taking is necessary only in certain specified cases. The courts incline to require a notice ; and to prefer such methods of obtaining depositions as involve a notice to the adverse party that it will be taken. Where notice is required to be given to the opposite party, it should show that the contingency has happened which gives tbe right to take the deposition ; so that the party on whom it is served may judge whether it is necessary to attend. ' Thus, where a notice stated only that the witness was about to de- part the State, but did not state that he was bound on a voyage to sea, or was about to go out of the United States, or a hundred miles from the place of trial, the notice was held insufl5cient.' The sufficiency of the notice in point of time, depends generally upon the circumstances of the case, the require- ments of the local law, and the adequacy of the time allowed to enable the adverse party, under the existing conditions of distance, traveling arrangements, &c., to attend, personally or by counsel ; and to return in season for the trial.* Insuf- ' The Argo, 2 Wheat, 287. Blatchf., 228 ; Evans v. Hettick, 3 Wash. ' See Parapsco Ins. Co. v. Sou.thgate, C. Ci., 408; Ehoadesi;. Selin, i/A, 715. 5 Pet., 604 ; Russell v. Ashley, Hemp.it:, ' Harris v. Wall, 7 Row., 693, 705. 616' Pettibone v. Derringer, 4 Wash, * A notice to take depositions is not C. Ct., 215 ; Curtist v. Central Railway; good, if served on counsel who could 6 McLean, 401'; >E»p. Humphrey., 2 not attend, to the taking of the. depo- 116 ORICiINAL JURISDICTION. ficiency of the notice does not necessarily nullify the testi' mony. Where depositions were taken under a special order of court requiring notice to be given to the opposite party, but the notice was so short that the party and his counsel were unable to confer before the time arrived, and reach the place of taking them, it was held that they might be admitted con- ditionally ; but time should be allowed to the party to take the depositions over again, and cross-examine the witnesses, if desired.' It wUl be observed that when the deposition is taken under the new power conferred by section 30 of the Judiciary Act, the notice is given, not by the examining party or his at- torney, but by the officer taking the deposition. In cases of the other class the notice is from the party. Taking and return of the deposition. The numerous cases to be found in the Federal courts upon the subject of the proper mode of executing and return- ing a commission to take testimony abroad, depend so much upon local law or usage, or upon rules of a particular district or circuit, that no general review of them would harmonize with the plan of this volume." Distinct provisions for com- pelling the attendance of witnesses, and the production of documents by them are, however, made by the act of January 24, 1827,' with reference to the ordinary case of a commission issued by a court of the United States for taking testimony of a witness within the United States or the territories. A similar power has been deduced from the language of section 30 of the Judiciary Act.' The witnesses should, of course, be sworn ; but the oath may be administered either before or after his de- position is reduced to writing.' Each competent and lawful interrogatory, annexed to the commission, must be answered, at least substantially ; and the omission to answer is fatal to the whole deposition.' aition without being absent at the com- " Tooker v. Thompson, 3 McLean, 92. menoement of tlie court. Bell v. JSTim- " This has been so held, even al- mon, 4 McLean. 539. though, in his answer to the general in- ' Aiken v. Bemis, 3 Woodb. & M., terrogatory, the witness said he knew 348. nothing material to either party. Hurst " They are collected in Ahjb. Nat. Dig., v. McNeil, 1 Wash. C. CU 70 ; Ket- tit. Deposition. - hind v. Bissett, /d, 144; Winthrop ■;;. ' 1 AnU, 47. Union Ins. Co., 2 /A, 7; Bell i>. David- ^ • Exp. Humphrey, 2 Blaklif^, 228.. son 3 Id., 328. ' DEPOSITIONS. 117 As commissioners to take testimony act under a special au- thority, their certificate of their proceedings must show that the authority was strictly pursued. It is not aided by intend- ment or presumption ; but mast expressly state the occurrence of every fact necessary to constitute a full discharge of tlie duty devolved upon them.' The certificate- is, however, pre- sumptive proof of the facts which it declares." And the courts So, if the cross-interrogatories are not put to a witness, examined under a commission, the deposition cannot be read. G-ilpins v. Consequa. Pet. 0. Ct, 85 ; G-ilpin v, Consequa, 3 Wash. G. Ct.', 184. And if the witness is merely asked whether an ex-parte affidavit, previously given by him of the facts, contains the truth, the deposition is bad; he should have been interrogated as to the facts contained in the affidavit. Richardson V. G-olden, 3 Wash. C. Ct, 109. ' Bondereau v. Montgomery, 4 Wash. C. Ct., 186. The authority or jurisdiction con- ferred on the magisirate by the Ju- diciary Act is special, and confined within certain limits or conditions, and the facts calling for the exercise of it should appear upon the face of the in- strumeut, and not be left to parol proof. The act of Congress requires them to be certified by the magistrate. Harris V. Wall, 7 Horn., 693, 705. If the magistrate who takes a depo- sition de bene esse, under section 30 of the Judiciary Act, does not certify any cause of taking, but merely appends the the notice to the opposite party, which states that the witness is '' about to de- part the State," the deposition cannot be read. Harris v. Wall, 7 lioiv., 693. - Where a commission is issued to take depositions at a particular place, they must be taken at that place; and the return must state where they were taken, that it may appear that the di- rection was complied with. Rhoades v. Sehn, 4 Wash. 0. Ct., 715. The certificate should show that the witness was sworn." It is not neces- sary, however, that the commissioners - should set out in their return that the witnesses were required to testify all their ktiowledge and remembrance of anything that related to the cause. It U> suffi'jieut to state that the witnesses were " sworn." The form of the oath need not be specified. If the commis- sioners certify that the witnesses were swoin, and the interrogatories annexed to the commission were all put to them, it must be presumed that they were sworn and examined as to all their knowledge of the facts. Keene v. Meade, 3 Pet., 1. It must appear that the witness was sworn to tell " the whole truth." That he was swoin to tell " the truth," is not enough. Rainer v. Haynes. JSempst., 689. Whether the omission of the officer to certify that the witness was " cau- tioned " as well as " sworn," is a fatal defect, see Luther v. The Meritt Hunt, 1 Newh., 4; Moore v. Nelson, 3 Mc- Lean, 383 ; Brown v. Piatt, 2 Cranch a Ct.; 253, 254. And inasmuch as the reducing an ex- parte deposition to writing, in the pres- ence of the magistrate, is by the statute made a material fact, his certificate to the manner of taking the deposition is not sufficient to entitre it to be read, if it omits to state that the deposition was reduced to writing in his presence. The court will not indulge a presump- tion in aid of a statement defective in this respect. Bell v. Morrison, 1 Pet, 351 ; Pettibone v. Derringer, 4 Wash, a Ct., 216, 219. And see United States V. Smith, 4 Day, 121. As to the requisite statements in the certificate relative to the residence of the adverse party, &c. ; whether more or less than one hundred miles of the place of taking the deposition. — see Pa- tapsco Ins. Co. v. Southgate, 5 Pet, 604; Dick v. Runnels, 5 How., 7. " Bell V. Morrison, 1 Pet, 351 ; Pa- tapsco Ins. Co. v. Southgate, 5 Id., 604; Tooker v. Thompson, 3 McLean, 92; Merrill v. Dawson, Hempst, 563 ; Elliot V. Hayman, 2 Cranch 0. Ct, 678. 118 ORiaiNAL JURISDICTION. -of the United States are presumed to know who, under the laws of the respective States, are authorized to take depo- sitions, and will receive the certificate of such a person as prima facie evidence of his right to take the depositions, and without other evidence of his official character.' Unless re- quired by some express provision of law, it is not necessary that other proof of the authority of the officer before whom the testimony was taken, should accompany his certificate. In respect to depositions taken under the Judiciary Act, if it appears by the certificate that the person before whom the de- position was taken was an officer authorized to take the same, this is sufficient in the first instance.'' It has been held that under the provision of section 30 of the Judiciary Act, — directing that depositions shall remain under the seal of the magistrate until opened in court, — it is a fatal objection to the deposition that it was opened out of court. ° The mode of returning commissions issued to foreign countries, in cases in which the United States are parties, is prescribed by section 1 of the act of March 3, 1863.* Use of the deposition as evidence. The general principle is recognized by the United States courts that a deposition taken according to the rules of law, must be excluded, if timely objection is made. No practice, however convenient, can give validity to depositions which are not taken according to law, unless the parties expressjy waive the objection, or by previous consent agree to the mode ia which they are taken." ' Jasper v. Porter, 2 McLean, 579. sion was ordered, to which the original ° Rugfrles V. Buoknor, 1 Paine, 358 ; papers, which had been annexed to the Price V. Morris, 5 McLean, 4. first commission, were attached. Uni- ° This was so held, although the de- ted States v. Price, 2 Wa^h. C. Ct, position was opened by the clerk to 356. whom it was addressed by mistake. * 1 Ante, 83. Beale v. Thompson, 8 Cranch, 70 ; ° Evans v. Eaton, 7 Wheat., 356, 426. Shankwiker v. Reading, 4 McLean, A commissioner to take testiipony ia 240. not the agent of the party who nomi- And in another case, a commission to nates him, in any such sense as to pre- take testimony, which had been issued elude such party from objecting to any in a case it; which the United States omission or irregularity on the part of was a party, was set aside because it the commissioner. G-ilpins v. Conse* had been opened by .an officer of the qua, Pet. G. Gt., 85; 3 Watsh. G. Gt, government before it came into the 184, hands of the clerk ; and a new ooramis- DEPOSITIONS. 119 Upon familiar principles, however, the failure to take the objection at the- proper time may operate as a waiver, and pre- clude the party from afterwards insisting upon it. Thus, if the party against whom the witness is examined attends the examination, and is at the time aware of facts re lied upon to show the witness incompetent, he should take the objection at the time ; and his failure to do so is a waiver of the objection.' So, cross-examining a witness is a waiver of any objection to the regularity of the proceedings for taking his testimony." Where a party, on the trial of a cause, consents generally that a deposition be read, with a knowledge, at the time, of grounds of objection to it, this is a waiver of formal objec- tions ; and they cannot afterwards be urged on an appeal.' Such^consent, also, is deemed to extend to incompetent as well as competent evidence which the deposition may contain.' And it extends (unless expressly limited) to a second trial or hearing of the cause.' Assuming that no objections to the sufficiency oi: regularity of the deposition exist, it remains to be observed that a depo- sition taken de bene esse, m a cause in the United States courts, can only be read upon proof that the attendance of the witness himself upon the trial 'cannot be procured." In all cases where, under the authority of the act of Congress, a de position of a witness is taken de bene esse, except where the witness lives at a greater distance from the place of trial than one hundred miles, it is incumbent on the party for whom the deposition is taken, to show that the disability of the witness to attend contiaues : the disability being supposed to be tem- " United States v. One case of Hair under a commission, on the ground of Pencils, 1 Paine, 400. onaission to annex a document referred But failure to object is no waiver to, cannot be made on the trial of the where the fact constituting the objec- cause, when the party has had full tion was not known to the party. In time and opportuniiy to move for » such case, the objection may be taken suppression of the deposition, or for a when the deposition is offered to be re-examination. Winans v. New York read. lb. & Brie R. E. Co., 21 How., 88. And the fact that the attorney of the '' Meclianics' Bank of Alexandria v. opposite party attended upon notice of Seton, 1 Pet., 299, 307. taking a deposition, but refused to take ° The Samuel, 1 Wheat, 9. part in the proceedings, does not waive * Harris v. Wall, 7 How., 693. an objeciion to the regularity of the ' Vattier v. Hinde, 7 Pet, 252. proceedings. Harris v. Wall, 7 How., " The Samuel, I Wheat, 9 ; "Weed v, 693. ^ Kellogg, 6 McLean, 44. An objection to a deposition taken 120 ORIGINAL JURISDICTIOIT. porary, and to be the only impediment to compulsory attend- ance. The act declares expressly that unless the disability shall be made to appear on the trial, such deposition shall not be admitted or used on the trial. This inhibition does not ex- tend to the deposition of a witness living at a greater distance from the place of trial than one hundred mUes, he being con- sidered beyond a compulsory attendance.' A deposition of this class cannot be read, unless the witness has been served with a subpoena, and it appears from some sufficient cause that he cannot attend." The party who offers it in evidence must prove that he has used due diligence to procure the at- tendance of the witness, and particularly that he has made in- quiries at the last place of abode of vsdtness, in order to have him served with a subpoena.' Depositions in equity and admiralty. In common law courts oral examinations of witnesses have always been preferred. Courts of equity and admiralty juris- diction, upon the other hand, have been accustomed to try causes upon written depositions of witnesses, instead off sum- moning them for oral examination. This practice obtains, to an extent, in the equity and admiralty courts of the United States. It is regulated by Rules of the Supreme Court, to which the reader is referred.' It is subject to a general pro- vision of section 30 of the Judiciary Act, that "the mode of proof by oral testimony, and examination of witnesses in ' Patapsco Ins. Co. v. Soutligate, 5 -witness. The court considered that the Pet., 604 ; The Thomas & Henry v. plaintiff should have taken out a sub- United States, 1 Brock Marsh., 367, poena. Stein v. Bowman 13 Pet 373. 209. ' ■' " Barnet v. Day, 3 Wash. C. Ct., 243 ; So it has been said to be no objection Brown v. Galloway. Pet. C. Ct., 291. to reading the deposition of a witness ' Pettibone v. Derringer, 4 Wash. C. residing more than one hundred miles Ct, 215, 219. from the place of trial, that he had been The mere fact that the witness is in the place where the court sat during sixty-five years of age, unaccompanied its sitting. But in the case in which by proof that he is too infirm to attend this general rule was laid down, the the court, is not enough to dispense fact of the witness being so present was with his attendance. Barnet v. Day, 3 unknown to the party at whose in- Wcish. C. Ct, 243. stance the deposilion wai taken. Pet- An affidavit by an agent of plaintiff, tibone v. D'erringer, 4 Wash. C. Ct that the witness whose deposition was 219. offered had left the Slate, and had not * Supreme Court Rules in Eauitv since been heard from, was held not suf- Nos. 67-71; 78; 91; Supreme Court ficient to show diligence to produce the Rules in Adm., No. 50. DEPOSITIONS. 121 open court, shall be tlie same in all the courts of tlie United States, as well in the trial of causes in equity and of admiralty and maritime jurisdiction, as of actions at common law." And there is an extension of this practice of trying causes in admiralty upon depositions in prize causes, in which the practice of admiralty allows "further proofs" to be adduced, in proper cases, where those originally exhibited do not fuUy satisfy the court of the merits of thecase.' 'See the decisions of the United ralty procedure, collected, 4^.65. Nat, States courts oq this branch of admi- Big., 33, tit. Prize. CHAPTEE XII. EYIDENOE Closely allied to the subject of depositions, is that of the competency and sufficiency of evidence in general ; including, as is not improper, in a work like the present, the subsidiary or collateral topics of judicial notice, burden of proof, pre sumptions, and testimony or the competency of witnesses. In the practice of the United States courts there are but few special or peculiar regulations governing these subjects ; the law of evidence is, for the most part, the same in these courts as in other coui'ts proceeding according to the standard canons of procedure in the departments of common law, equity and admiralty, respectively. Judicial notice. The extent to which courts of the United States will take notice of statutes, either of the national legislature, or of the State in which the court is held, has already been explained, ' in so far as it affects the duty of the pleader. To the explana- tions there made may be added, that those courts will, under proper pleadings, notice the laws of the States in which they are held, establishing counties," defining the limits of cities,' creating and defining the jurisdiction of courts,' &c. L&e- wise, they wUl take notice of a treaty, in the same manner as- of an act of Congress, ' aud of the coins made at the mint of the United States pursuant to law ; or made abroad, but de- clared current here, by law.' They wiU take notice of persons holding office under the laws of the United States, such as the ' Anfe, 56. * Mewsler v. Spalding, 6 McLean, 24. ' Lyell V. Lapeer County, 6 McLean, ' United States v. The Pecgy 1 446. Cranch, 103. ' Gnffing V. Q-ibb, '. Black, 319. • United States v. Burns, 5 McLean, 23 EVIDENCE. 123 commissioner of patents, and tlie officers of the various' na- tional courts ; and the production of the officers' commission is not necessary to support his acts.' It has been held that they will not take notice of a pardon granted by the presi- dent, unless it is brought before them by averment.' Presumjttions. Presumptions of fact are indulged by the courts of the United States upon the same general grounds and principles as in other Anglo-Saxon courts of justice. In particular it has been determined that acts which purport to have been done by public officers, in their official capacity, and within the scope of their duty, wUl be presumed to have been regular and in accordance with their authority, untU the contrary ap- pears.^ Thus the courts presume that there exists in every government a power to dispose of its lands, and, in the absence of any contrary evidence, that it exists in the officers or tri- bunal who exercise it by making grants. The acts of public officers in disposing of public lands by color or claim of public authority, are, therefore, to be received as evidence of title, until their authority to make the grant is disproved by those who oppose the title set up under if A grant or concession made by an officer who is by law authorized to make it, raises the presumption that it is within his powers. No excess of them, or departure from them, is to be presumed. He violates his duty by such excess, and is responsible for it. He who alleges that an officer intrusted with an important duty has violated his instructions, must show it.' And this principle is fully applied to acts of officers of governments formerly exer- cising sovereignty over lands now within the United States. The acts of an officer, to whom a public duty is assigned by ' York & Maryland E. E. Co. v. Wi- Uow., 87 ; Eussell v. Beebe, Hempst, nans, 17 ffow., 30; Biiford v. Hiokman, 704; Den v. Hill, 1 McAll, 480. Hempnt., 232. The piesiimption of innocence in " United States v. Wilson, 7 Pet., favor of a public officer charged with X50. conspiracy or fraud in the discharge of ' Eo?s V. Eeed, 1 WheM., 482 ; Uni- his duties, though very stronc:, may be ted States v. Arredondo, 6 Pet., 691; overcome by proi^fof previous delin- Strother v. Lucas, 12 Id., 410 ; Pliila- queucies of a similar nature. Bottom- delphia & Trenton E. E. Co. v. Stimp- ley v. United States, 1 Story C. Ct., son, 14 Id.. 448; Delassus v. United 135. States, 9 Id., 117; Wilkes «. Dinsmau, * United States v. Arredondo, 6 Pet, 7 Sow., 89; Miuter v. Croramelin, 18 C91. ' Delassus v. United States, 9 Pei.,_ 117.. 124 OEIGINAL JURISDICTION. Ms" king, witMn the sphere of that duty, are deemed prima fade taken to be within his power. He who would contro- vert a grant executed by the lawful authority, with all the solemnities required by law, takes on himself the burden of showing that the officer has transcended the powers conferred upon him,, or that the transaction is tainted with fraud.' So in regard to acts of competent officers of our own na- tional government, in issuing letters patent for an invention. Where an act is to be done, or patent granted upon evidence and^roofs to be laid before a public officer, upon the suf- ficiency of which he is to decide, the fact that he has done the act or granted the patent, affords a presumption that the proofs have been regularly made, and were satisfactory. No other tribunal is at liberty to re-examine or controvert the suf- ficiency of such proofs, when the law has made such officer the proper judge of their sufficiency and competency. It is not necessary for the patent to contain any recitals that the prerequisites to the grant of it have been complied with, for the law makes the presumption.' Likewise, any directions from the president or other supe- rior officer, necessaiy to authorize a subordinate officer to per- form an act which he has actually done, will be presumed, in aid of his act, to have been given.' In like manner, the familiar principle that every presump- tion is to be indulged in support of the proceedings of courts of general jurisdiction, competent to deal with the particular . subject matter upon which it appears they have adjudicajted, have been repeatedly recognized in the national courts.* In y ' Strother v. Lucas, 12 Pet., 410. court held that it devolved on the ' Philadelphia & Trenton R. R. Co. v. plaintiff to show that the punishment Slimpson, 14 Pet, 448 ; Allen v. Blunt, was unreasonable or excessive, or 2 Woodh. & if., 121 ; Stimpson v. West- otherwise to rebut the piesurnption Chester R. R. Co., 4 ffow., 380 ; Corn- that tlie act, beins; an official one, was inpc V. Burden, 15 Sow., 252, 271. right. Wilkes v.Dinsman, 7 Bow., 89. ' Wilcox V. Jackson, 13 Pet, 498 ; * Voorhees v. Bank of United States, United States v. Cutter, 2 Curt C. Cf., 10 Pet, 449 ; Sprague v. Litherberry, 4 C17 ; United States v. Baohelder, 2 McLean, 442 ; Philadelphia & Trenton Gall, 15; Rankin v. Hoyt, 4 How., R. R. Co. -v. Stimpson, 14 Pet, 448; 327 ; 7 Op. Att.-Gen., 452. Lathrop v. Stuart, 5 McLean, 167 ; Er- And in an action lor assault and bat- win v. Lowry, 7 How., 172 ; Ross v. tery, where it appeared that the vio- Barland, 1 Pet, 655 ; Cb puteau v. Uni- lence complained of was inflicted by ted States, 9 Id., 147. order of the defendant, a naval com- Where a certificate of naturalization mauder, upon a seaman under his com- stated that the alien had taken the oatb mand and by way of pujiishmentj the required by law, but did not state that EVIDENCE. 125 respect to this subject, and to other presumptions of fact rest- ing upon the nature of the subject matter, and the probability inferred from it, numerous decisions of the national courts are to be found in the reports ; but they follow the same general course as the decisions of the State and the English courts. The burden of proof. The general principle is familiar and well settled that the burden of proof is upon him who holds the affirmative of the issue to be tried. This principle, as a general one, is recog- nized and followed in the United States courts. It "has, how- ever, received some special definitions or modifications. The act of June 30, 1834,' declares that "in all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership." The act of July 7, 1838," provides that in actions against proprietors of steamboat's for injuries arising to person or property from the bursting of the boiler, collapse of a flue, &c., the fact of such bursting, &c., shall be prima facie evidence of negligence until defendant shall show that no negligence was committed by him, or those in his employ. Under this provision, the Supreme Court has held that if a person is in- jured on board a steamboat by the injurious escape of steam, it is incumbent on the owners, in an action against them, to prove there was no negligence. ° In actions, suits, or informations, brought upon seizures made pursuant to the act of March 2, 1799, for punishing I ;he court had received evidence as to the record ; but it did not, — it vras held is moral character, etc., it was held that, under these circumstances, citizen- 'that this would be presumed. Camp- ship ought not to be presumed, unless bell V. Gordon, 6 Cranch, 176 ; Stark v. there were some other fact, such as Chesapeake Ins. Co., 7 Id., 420. ■ holding an office of which citizens But when the alienage of the holder alone were capable, or which required of land in Virginia was fully proved; an oath of fidelity, from which it might and it appeared that the laws of Vir- be infei'red. Blight v. Rochester, 7 ginia required the oath of fealty to the WheM., 535. commonwealth to be taken in a court ' Section 22. 4 Siat at. L., 733. of record, as a condition of citizenship, ' Section 13. 5 Siat. at L., 306. and that the court was directed to ° The New World v. King, 16 How^ gfan-t a certificate thereof, which, had 469. it been done, would have appeared on 126 ORIGINAL JUEISDICTIOK frauds upon the revenue, if the property is claimed by any person, in every such case the burden of proof is, by sec- tion 71 of the act,' imposed upon the claimant. But the rule is expressly limited to cases where probable cause is shown for such prosecution, to be judged of by the court before whom the prosecution is had. This "probable cause" is held to be merely reasonable ground to presume that the charge is or may be well founded.' The phrase does not require com- plete prima facie proof. It means less than evidence which would justify condemnation, and imports a seizure made un- der circumstances which warrant suspicion.' By the act of March 2, 1867," keeping grain, &c., prepared for distillation, and an apparatus for distillation upon the same premises, is declared presumptive evidence that the per- son keeping them is a distiller ; and the burden of proof would lie upon the claimant of property seized under such circum- stances to show innocence. The necessity of averring, in commencing a suit in the the United States courts, those facts as to residence of parties which are necessary to give jurisdiction, and of traversing the averment wherever the defendant desires to dispute the facts al- leged, has already been explained. The rule as to burden of proof, under these pleadings, is perhaps anomalous. The Supreme Court has held that where a plea is filed to the jurisdiction of a Federal court, on the ground that the plaintiff and defend- ant are residents of the same State, the burden of proof is upon the defendant to prove his averment. The ground as- signed is, that although, in the courts of the United States, it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet, wherever jurisdiction is averred in the pleadings, in conformity with the laws creating those courts, its existence must be presumed ; and it is incum- bent on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes. The necessity for the allegation, and the burden of sustaining it by proof, both rest upon the party taking the exception. ' ' 1 EM,, at i.. 678. The rule of the text applies in prose- " Wood V. United States, 16 Pet., cutions under the act of March 3, 1863. 342, 366. • Section 16. U Stat, at L., 481. ' Locke V. United States, 7 Cranch, ' Sheppard v. Graves, 14 How., 505, 339 ; United States v. Twenty-five 510. cases of Cloths, Crabbe, 356. EVIDENCE. 127 Under tlie several statutes of the United States, granting Epecial protection to the rights of seamen,' the coui-ts have held that, when a seaman claims to be reimbursed expenses incurred by him, in the cure of an illness during the voyage, the burden is upon the owners to show that the vessel was fitted out with a sufficient medicine chest, if such is their ground of defense ;" — that, where an American seaman, after discharge abroad, sues for extra wages, the burden of proof is upon the deffense to show payment to the consul abroad of the sum required by law, if such payment is relied on ;' or if the ground of defense be a necessary sale of the vessel, the owners must establish the necessity for the sale ;* — and that, when the respondent, in a suit for wages, alleges payment, the burden is upon him to prove it ;" and if he relies upon a payment made in advance to the shipping agent by whom the libelant was shipped, he must show affirmatively, not only that the pay- ment was made, but also that the shipping agent was author- ized by the libelant to receive it." Moreover, by the act of July 20, 1790,' in actions in admi- ralty against vessels, for seamen's wages, it is made "incum- bent on the master or commander to produce the contract and log-book, if required, to ascertain any matters in dispute ;• otherwise the complainants shall be permitted to state the con- tents thereof, and the proof of the contrary shall lie on the master or commander." Admission of secondary evidence. The United States courts have recognized and adopted the ' Where a master found a seaman se- * The Dawn. Daveis, 121. creted on board the vessel, and ordered Whethei-, in an action by a seaman, him to do duty, and punished him for a for double wage.% under the act of July refusal, and the seaman brought an ao- 20, 1790, § 9 (1 Stat, at L., 131), the tion to recover damages for the punish- burden of proof is upon the seaman to ment inflicted, it was, held that it was show the fact that the ship was al- imperatively incumbent on the master lowed to sail without an adequate sup- to prove, in justification of the punish- ply of provisions on board, as well as ment, that, before giving the order, he that a short allowance only was actually informed himself as to the seaman's ex- served out to the libelant,— see The perience and capacity, and ascertained Elizabeth Frith, Blatclif. & H., 195; that he was able to perform the work Piehl v. Balohen, Olc, 24; The Childa required oi him. Allen v. Hallet, Ahh. Harold, Id., 275. Adm., 573. ' The Napoleon, Olc, 208. = Harden v. Gordon, 2 Mas., 540, ' Holmes u. Dodge, .ilii. ^(Zm., 60. 5g0. ' Section 6. 1 titat. at L.. 134. ' Ome V. Townsend, 4 Mas., 541. 128 OEiaiNAL JURISDICTION. well settled rule of courts of justice generally, that the best evidence must be produced which the nature of the case admits, and which is in the power of the party.' They have held the rule to be that the best evidence must be given of which the nature of the thing is capable ; that is, that no evi- dence shall be received which presupposes greater evidence behind, in the party' s possession or power. The withholding of that better evidence raises a presumption that, if produced, it might not operate in favor of the party who is called upon for it." But the meaning of the rule, as defined by the Su- preme Court, is, not that courts require the strongest possible assurance of the matters in question, but that evidence shall not be admitted which, from the nature of the case, supposes still greater evidence behind, in the party's possession or power ; because the absence of such primary evidence raises a presumption that, if produced, it would give a complexion to the case at least unfavorable, if not directly adverse, to the in- terest of the party. And although the higher and inferior testimony cannot be resolved into primary and secondary evi- dence technically, so as to compel the production of the higher, and the inferior is therefore admissible and competent without first accounting for the other, the same presumption •exists in full force and efiect against the party withholding the better evidence, especially when it appears it has been shown to be in his possession or power ; and the fact that he with- holds it may be taken into account in assigning to the inferior proof the degree of credit to which it is rightfully entitled." Under these views, the courts of the United States are Ac- customed to require, in the first instance, the production of the best evidence of which the nature of the question admits ; and if it is not produced, the party must give some satisfac- tory explanation of his failure to present, before evidence of a secondary nature can be received. After such explanation has been made, — as, for instance, when the original evidence is a writing, and the party directly proves that it has been de- stroyed without his fault ; or shows that he has made diligent search in the proper place for' it, and it cannot be found, and he has given suitable notice to the adverse party to enable him ' Cooke V. Woodrow, 5 Cranch, ' Tayloe v. Eiggs, 1 Pet, 591, 596. 13; United States v. Britton 9. Mas., ' Clilton v. United States, 4 How., 464. 242 ; United States v. Laub, 12 Pel, 1. EVIDENCE. 129 f'') produce it, if in Ms power, — secondary evidence of tlie fact is received. The mode of administering this rule, and the canons for determining what is, inlaw, "the best evidence," do not materially vary in the courts of the United States from that pursued in other American tribunals. One statutory rule, conferring a right to resort to secondary proof, peculiar to the Federal courts, should be mentioned. It is prescribed by section 4 of the act gf March 2, 1833,' and re- lates to cases where a party is entitled to copies of record, &c., in a State court, to be used in any court of the United States. The act declares that if a clerk of a State court shall, upon de- mand, and the payment or tender of the legal fees, refuse or neglect to deliver to such party certified copies of such record, &c., the court of the United States, on proof, by affidavit, that the clerk of such Sta,te court has refused or neglected to de- liver copies thereof, on demand as aforesaid, may allow such record to be supplied by affidavit, or otherwise, as the circum- stances of the case may require and allow. Documentary eridence. There are several acts of Congress, and a number of rules established by judicial decision, relating to the use of docu- mentary evidence, which, although not strictly confined in application to the|United States courts, yet relate to subjects most frequently litigated in those courts, and are, therefore, convenient to be mentioned. The edition of the Laws and Treaties of the United States, published by Little & Brown, is, by act of August 8, 1846,' declared to be competent evidence of the several public and private acts of Congress, and of the several treaties therein contained, in aU the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof. The volumes of " State papers," published under authority of Congress, and authenticated as required by law, and the journals of Congress have also been held, by decisions of the courts, to be admissible as evidence.' And by the act of ' 1 Arie, 51. Bryan v. Forsyth, 19 How., 334 ; Gregg ' 9 Stat, at L., 75. v. Forsyth, 24 Id., 179. • Watkins v. Holman, 16 Pet, 25; Vol, II.— 9 ^■'^^. 130 ORIGINAL JURISDICTION. August 8, 1846/ it is declared that extracts from the journals of the senate or of the house of representatives, and of the executive journal of the senate when the iujunction of secresy is removed, duly certified by the secretary of the senate or by the clerk of the house of representatives, shall be evidence, in the several courts of the United States, and shall have the same effect as the originals. Executive orders have been the subject of a special statu- tory regulation. The act of May 11, 1866," defines certain cases iu vfhich the order of the president, of the secrecary of war, or of a military officer commanding a department, &c., may be proved by producing the original with proof of its au- thenticity, or a certified copy of the same ; or if it was sent by telegraph, the production of the telegram shall be prima facie evidence. And if the original order or telegram is lost, &c., secondary evidence may be admitted. A passport has been held not to b"^, per se, legal and compe- tent evidence of citizenship. There is no law of the United States in any manner regulating the issuing of passports, or directing upon what evidence it may be done, or declaring their legal effeci It is understood as a matter of practice, that some evi- dence is required by the secretary of state, before issuing a passport ; but this is entirely discretionary with him. No in- quiry is instituted by hloi to ascertain the f^ct of citizenship, or any proceedings had that will in any manner bear the . character of a judicial inquiry. It is a document, addressed to foreign powers ; purporting to be only a request that the bearer of it may pass safely and freely, and is to be considered rather in the character of a political document by which the bearer is recognized in foreign countries as an American citi- zen.' But this, is a different light from that in which it is viewed in a court of justice, where the inquiry is as to the fact of citizenship. There it is looked upon as a mere ex-parte certificate. Letters patent, particularly those issued for inventions, duly issued and authenticated, bearing the sealx)f the govern- ment, &c., are daily received ia the United States courts aa evidence of the facts declared in them, and also as raising the ' Section 1. 9 Sua. at L., 80. ' Section 2. 14 Stat, at L., 46, 1 Ante, 67, n, 1. • Urtetiqui ti. D'Arbel, 9 Pel, 692. EVIDENCE. 131 presumption that every proof required by law to be made, and every act prescribed to be done, before the patent might law- fully issue, was made or done before the delivery of the letters in question.' Official records of several classes are recognized as evidence by several statutes or decisions. By. the act of Sept. 15, 1789,' copies of records and papers in the office of the secretary of state, authenticated under the seal of office of the department, are declared evidence, equally as the originals. By the act of March 3, 1797,° it is prescribed that ia suits against public debtors " a transcript from the books and pro- ceedings of the treasury certified by the register, and authen- ticated under the seal of the department, shall be admitted as evidence. . . . And all copies of bonds, contracts, or other papers relating to, or connected with the settlement of any account between the United States and an individual, when certified by the register to be true copies of the originals on file, and authenticated under the seal of the department, as aforesaid, may be annexed to such transcripts, and shall have equal validity, and be entitled to the same degree of credit, which would be due to the original papers, if produced and authenticated in court : Provided, That where suit is brought upon a bond, or other sealed instrument, and the defendant shall plead ^non est factum,'' or upon motion to the court, such plea or motion being verified by the oath or affirmation of the defendant, it shall be lawful for the court to take the same into consideration, and (if it shall appear to be necessary for the attainment of justice) to require the production of the orig- inal bond, contract or other paper specified in such affidavit." This provision, the courts have held, is not restricted to cases where suits are commenced under this particular act, but applies to all suits wherein the evidence is required.' The paper exhibited must be a "transcript" of the treasury ac- ' Philadelphia & Trenton R. R. Co. v. dared and canceled, has been held ad- Stimpson, 14 Pe^, 448; Allen v. Blunt, missible in evidence to show that an 3 Stury C. Gt., 742 ; Clum v. Brewer, 2 improvement subsequently patented Gurt. C. Ck, 506; Corning v. Burden, was not original, though it did not 15 Hoiv., 252, 270 ; Wilson v. Barnum, specifv when it was canceled, or how, I Wall Jr. G. Gt., 347; Allen v. Hunt- or for what defect. Delano v. Soott, . er, 6 McLean, 303 ; Heinrich v. Luther, Gilp., 489. Id., 345 ; Parker v. Stiles, 5 Id., 44 ; » Section 5. 1 Stat, at L., 69. Aldqp V. Dewey, 1 Story G. Gt., 336. = Section 2. 1 Stat, at L., 512. A certified copy of a patent, surren- * United-States v. Lent, 1 Paine, 417. 132 ORiaiNAL JUEISDICTION. counts ; tlie mere report of an auditor, stating a balance dne as a guide to tlie comptroller of tlie treasury," or a statement of the account in gross, without exhibiting the items of debt and credit," is not rendered admissible by the statute. And an account stated at the treasury department, which does not arise in the ordinary mode of doing business in that depart- ment, can derive no additional validity from being certified under the act of Congress.' A treasury statement can be regarded as establishing Items for moneys disbursed through the ordinary channels of the department, only where the transactions are shown by its books. In these cases the officers may well certify, for they must have official knowledge of the facts stated. But when moneys come into the hands of an individual, not through the officers of the treasury, or in the regular course of official duty, the books of the treasury do not exhibit the facts, nor can they be known to the officers of the department. In such a case, the claim of the United States for money thus in the hands of a tliird person must be established, not by a treasury statement, but by the evidence on which that statement was made.* Where a transcript shows credits in favor of the individual afiected, as well as charges against him, the credits are evi- dence in his favor, and the fact that he disputes the charges will not prevent his relying upon the credits.' The provision of the statute above cited has been, by the later act of March 3, 1817,° extended, in regard to the accounts of the war and navy departments, to the auditors respectively charged with the examination of those accounts ; and certifi- cates, signed by them, are by that act declared to be of the same effect as one directed to be signed by the register. ' United States v. Patterson, 6ilp., United States v. Jones, 8 Id., 375 ; 44. United States v. Jones, Id., 387. • United States v. Jones, 8 Pet., 375. * United States v. Buford, supra. A transcript from the treasury de- ' United States v. Jones, 8 Pet, 375; partment, which contains sums charged Id., 387. in jrross, as balances, is not evidence as ° Section 11. 3 Stat at L., 3G7. to snoh balances. The orio;inal items And transcripts from books of tlie on which the accounting officers acted treasury department, are declared suf- must be stated. United States v. Ed- iicient evidence of a balance against the wards, 1 McLean, 4G7 ; United States defendant for the purposes of a trial on V. Hilliard, 3 Id., 324. an indictment for embezzling the public ^ United States v. Buford, 3 Pet, 12, moneys, by the Act of August 6. 1846 29 ; Cox V. United States, G Id., 172 ; § 16, 9 Stat at L., 63. ' * EVIDENCE. 133 Under these two statutes, taken together, there are two kinds of transcripts which the statute authorizes the register of the treasury or auditor to certify. First, a transcript from "the books and proceedings of ttie treasury"; and second, "copies of bonds, contracts, and other papers which may re- main on file, and relate to the settlement." Under the first head are included charges of moneys advanced or paid by the department to the agent, and an entry of items suspended, re- jected, or placed to his credit. These aU appear upon the "books" of the department. Under the second head copies of papers which remain on file, and which have a relation to the settlement, may be certified. In this case it is essential that the officer certify that the transcripts " are true copies of the original, which remaia on file." ' In view of this distinction, also, it has been held that an auditor is not authorized to authenticate copies of bonds and other papers. His power, under the act of March 3, 1817, ex- tends only to ' ' transcripts from the books and proceedings of the treasury in regard to the accounts of the war department." Copies of bonds must stiU be certified by the register, and au- thenticated under the seal of the department, under the act of March 3, 1797.' The act of February 22, 1849,' declares that copies of any public documents, records, books, or papers, belonging to, or on the files of the office of the solicitor of the treasury, under the signature of said solicitor, or, when the office shall be va- cant, under the signature of such officer as may be officiating for the time being, accompanied by an impress of the seal of the office, shall be competent evidence in all cases, equally with the original records, documents, books, or papers. The restrictions which the courts felt bound to impose, in some of the earlier decisions under the statutes above cited, must be deemed modifie,d by the general permission given by section 3 of the act of February 22, 1849.* It provides that books, papers, documents, and records in the war, navy, treasury, and post-office departments, and the attorney-gen- eral's office, may be copied and certified under seal in the same manner as those in the State department, and with the same force and effect. I Smith V. United States, 5 Pet, 291, 299. ' Section 2. 9 Stat, at L., 347 • United States v. ariffith, 2 Oranch 0. Ct., 366. * 9 Stat, at L., 347. 134 ORiaiNAL JURISDICTION. The army registers, published by the adjutant and in- spector-general of the army, containing the general regulations of the army, which are delivered by the departments to the officers of the army, are held not to be evidence to establish the pay and emoluments of officers in the service. These are determined by acts of Congress.' These registers are compilations issued and published to the army by the direction of the secretary of war, in the exer- cise of his official authority ; and, when authenticated by hitn, are evidence of the facts which strictly they may contain ; such as the names of officers, dates of commissions, promotions, resignations, and regimental rank, brevet and other rank, or the department of the army to which any officer belongs. But from none of these can an inference be drawn by a jury to establish the pay and emoluments of officers ; as they are pro- vided for by law, and must be determined by the court, when they are doubtful and the subject of dispute between an officer and the United States. Nor can such registers be evidence of the correctness of any classification of the officers of the departments into a gen- eral staff of the army ;' for though they are prepared by per- sons whose professional duty it is to be well informed upon the subject, and who, from their familiarity with military science and the general arrangement of armies, are supposed to be expert interpreters of the acts of Congress for the organi- zation of our army ; still, what officers are of the staff, or general staff, depends upon acts of Congress, which are to be expounded by the courts, where an officer claims a right to pay and emoluments, from his having ranked as belonging to the staff.' In reference to records affecting land titles, some special provisions exist. By the act of January 23, 1823," whenever any person claiming to be interested in, or entitled to land, under any grant or patent from the United States, shall apply to the treasury department for copies of papers filed and remaining therein, in anywise affecting the title to such land, it shall be the duty of the secretary of the treasury to cause such copies to be made out and authenticated, under his hand and seal, » Wfttmore v. United States, 10 Pet., 647. " Section 1. 3 Siat. at L., 721 EVIDENCE. 135 for the person so applying, and such copies, so authenticated, shall be evidence equally as the original papers. And by act of July 4, 1836,' it is made the duty of the commissioner of the land-office to cause to be prepared, and to certify, under the seal of the office, such copies of records, books, and papers, on file in his office, as may be applied for, to be used in evidence in courts of justice. By the act of March 2, 1849,' keepers of laws, judgments, orders, decrees, &e., or other public documents of any foreign government or its agents, relating to the title to lands claimed by or under the United States, on the application of the head of a department, solicitor of the treasury, or commissioner of the general land-office, may "authenticate the same under his hand and seal, and certify the same to be correct and true copies of such laws, judgments, orders, decrees, journals, cor- respondence, or other public documents ; and when the same shall be certified by an American miaister or consul, under his hand and seal of office, or by a judge of one of the United States courts, under his hand and seal, to be true copies of the originals, the same shall be sealed up by him and returned to the solicitor of the treasury, who shall file the same in his office, and cause it to be recorded in a book to be kept for that purpose." A copy thereof may be read in evidence in all courts, where the title to land claimed by or under the United States may come into question, equally with the origi- nals thereof. A copy of a marshal's official bond, on file in office of Dis- trict or Circuit Court, certified by the clerk, under the seal of the said court, is made competent evidence in any court of justice, by atjt of April 10, 1806.' We forbear any extended explanation of the acts of Con-* gress governing the proof of judicial proceedings and office or public records of one State, in judicial proceedings had in another ; for the reason that the provisions of law on this sub- ject are more particularly applicable to practice in State courts than to courts of the United States. Testimony of witnesses. Provision is made for securing the attendance of witnesses • Section 7. 5 Stat at L., 107. See " 9 Stat, at L., 350. Gait V. Galloway, 4 Pet, 331. ' Seoiioa 1. 2 Stat, at L., 372. 136 ORIGINAL JUEIStlCTION. in civil causes in tlie United States courts by the act of March 2, 1793." It provides that " subpoenas for witnesses who may- be required to attend a court of the United States, in any dis- trict thereof, may run into any other district : Provided, that in civil causes, the witnesses living out of the district in which the coui"t is holden, do not live at a greater distance than one hundred miles from the place of holding the same." It wiU. be observed that the scope of this enactment tallies with the section of the Judiciary Act of 1789 regulating de- positions, and explained in the last preceding chapter ; by which the testimony of a witness living more than one hun- dred mUes from the place of trial may be taken by deposition. It is held that, under the act of 1793, subpoenas for witnesses may run into districts other than where the court is sitting, providing the witness does not live at a greater distance than one hundred mUes from the place of holding the court." But where a person attempts to summon a witness residing be- yond that distance" from the place of trial, he must pay the costs incident thereto, and cannot throw them on the opposite party.' The more important statutes regulating the procuring at- tendance of witnesses, the amount of their fees, &c., in cases in which the United States are interested, or in criminal prose- cutions, have been stated in the previous volume.' The competency of witnesses is determined in part by acts of Congress declaring classes of persons competent in all the United States courts, and in part, or as to persons not em- braced in acts of Congress, by the laws of the State in which the court is held. Thus Indians are, by the act of March 15, 1864, § 1," declared to be competent witnesses, in the cases specified in the act. The act of July 2, 1864,° declares that in the courts of the United States there shall be no exclusion of any witness on ac- ' Section 6. \ Ante, 2?,. Other pro- § 33, 1 4«fe, 14; Act of April 30, 1790, Tisions, applicable to special cases, may § 29, Id., 21; Act of May 10, 1S2G, § 1, be found in the act of Febi-uary 26, 4 Slat, at L., 174 ; Act of Aus-ust 23, 1853, 1 Ante, 70. 1842, § 2, 1 Ante, 59; Act of Au!;ust 8, ' Patapsco Ins. Co. v. Sonthgate, 5 1846, §? 7, 11, Id., t34; Act of February Pet, 604 ; Dreskill v. Parish, 5 McLean, 26, 1853, § 3, Id., 75 : Act of August 16j 241 ; Russell v. Ashley, Hempst., 546. 1856, 11 Stat, nt L.. 49. " Russell V. Ashley, supra. ' 13 Stat, at L., 28. ♦ See Act of September 24, 1789, • Section 3. 13 Stat, at L., 351. EV iDBNOE. 137 count of color ; nor, in civil actions, because he is a party to or interested in tlie issue to be tried. The act of March 3, 1865,' provides that "in actions by or against executors, administrators, or guardians, in which judg- ment may be rendered for or against them, neither party shall be allowed to testify against the other as to, any transaction with, or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court." By the act of February 8, 1865," it is declared that any officer or other person entitled to or interested in penalties and forfeitures incurred under any laws of the United States may be examined as a witness in any of the proceedings by ejther of the parties, and such examination shall not deprive such witness of his share or interest in the fine, penalty, or for- feiture. The act of May 31, 1870,' declares that all persons within the jurisdiction of the United States shall have the same right to give evidence as is enjoyed by white citizens. The above regulations prevail in all courts of the United States, wherever held, and are paramount to all State legisla- tion or decision. Subject to these, and to any other rules which may be prescribed from time to time by statutes of the United States, the general rule, prescribed by the act of July 6, 1862,* is, that " the laws of the State in which the court shall be held, shall be the rules of decision as to the competency of witnesses, in the courts of the United States, in tiials at com- mon law, in equity, and admiralty." Since the adoption, in many of the States, of statutes allow- ing parties to the record to be examined as witnesses, the ' Section 1. 13 Stat, at L., 533. or right, shall be a competent witness ° Section 2. 13 Stat, at L., 4A2. in the Court of Claims in supporting Compare the former law, under which any such title, claim, or right, and no the share of an officer required ^s a testimony given by such plaintiff, witness accrued to the United States. claimant, or person, shall be used." But Act of February 18, 1793, § 35, 1 Stat. the United States may examine such at L., 317. plaintiff, claimant, or person, as a wit- By the Act of June 25, 1868, § 4, 15 ness, under the regulations and with Stat, at L., 75, "no plaintiff or claim- the privileges provided in section 8 of ant, or any person from, or through the Act of March 3, 1863, to amend the whom any such plaintiff or claimant Act of February 24, 1855, to establish derives his allegeji title, claim, or right the Court of Claims. against the United States, or any per- ' Section 16. 16 Slot, at L., 144. son injierested in any such claim, title, * Section 1. 1 Ante, 81, 138 ORiaiNAL JURISDICTION. question has been mooted in the United States conrts whether these statutes are of force withia those courts. The early ad- judications were not uniform. But the view finally taken by the Supreme Court is, that the rules of evidence prescribed by the laws of a State being rules of decision for the Federal courts whUe sitting within the limits of such State, they must be obeyed, even though they violate the ancient laws of evi- dence so far as to make the parties to the action witnesses in their own cause ; and thus adopt a practice in opposition to a specific rule by the Federal court for the circuit.' The recent enactment of a liberal general rule, allowing parties to testify in the national courts, has, however, deprived this discussion of most of its practical importance. The rules for examining witnesses, when produced in open court ; the principles which determine the proper form of questions / the considerations which decide the admissibility and the credibility of testimony, and the method of impeach- ing and of corroborating witnesses, are substantially the same in the United States courts as in other courts of legal, ecLuit- able, or maritime jurisdiction, respectively. ' Ryan v. Bindley, 1 Wall, 66. S. Compare Dibblee v. Furniss, 4 Blaichf., P., Vance v. GampheW, I Black, 427; 262; Fowler v. Hecker, Id., 425; Haussknecht v. Claypool, Id., 431. Blanchard v. Sprague, 1 OKf., 288. CHAPTER XIII. TRIAL. The judicial examination of tlie issues in a cause, is usu- ally denominated trial, when proceedings according to the course of the common law are had in view. The correspond- ing stage of a suit in admiralty or equity is usually termed the " hearing." There are several incidents of trial in the TTnited States courts which require explanation. Mode of trial. In addition to directions governing the manner of trial in criminal cases, which are reserved to be mentioned in a subse- quent chapter, a famUiar provision of that instrument pre- scribes that " in suits at common law, where the value in con- troversy shall exceed twenty dollars, the right of trial by jury shall be preserved ; and no fact tried by a jury shaU be other- wise re-examined in^any court of the United States, than ac- cording to the rules of the common law." ' This provision is held to relate to the nature of the controversy, riather than to the mere form of procedure. It embraces all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. For the phrase " common law," in the seventh amendment, is used in contradistinction . to equity, and to admiralty and maritime jurisprudence. It means not merely suits which the old common law recognized among its settled proceedings, but all suits in which legal rights are to be determined in contra- distinction to equitable rights, and to cases of admiralty and maritime jurisdiction. It does not refer to the particulai form of procedure which may be adopted." The provision in- • Const. Amendt., Art. VII. ' Parsons v. Bedford, 3 Pet, 433. 140 OKIGINAL JURISDICTION. tends a trial according to tlie course of the common law ; and is confined to the determination of matters of fact.' As tMs constitutional right to a trial by jury is granted for the benefit of the individual only, he has power to waive it." Thus it has been held that when a defendant in a suit ac- quiesces iu its being referred, and appears upon the reference and contests the claim, he cannot, on a writ of error, object that, in the court below, the case should have been tried by a jury.' But a waiver wiU not be readily presumed or implied. On the contrary, every reasonable intendment should be made against the waiver of a right deemed so valuable as to be se- cured by the Constitution. Postponements. ' Besides the familiar grounds for asking the postponement of a trial, — such as absence of material witness, sickness of counsel, &c., — which the general practice of courts of law re- cognizes, there are two provisions of law more particularly ap- plicable to United States courts. The act of March 2, 1799,* relative to the collection of duties, authorizes, by section 65, a postponement of a trial of an action upon a bond given for duties, in cases where, at the return term, the defendant, by afiidavit, alleges error in the calculation of the amount claimed. This provision is held to be an additional one, for purposes of examination and correc- tion. It does not supersede the power «f the court to grant postponements in actions on duty bonds, on the various grounds available in other causes. Where there is a real de- fense to the claim on the bond,, requiring examination of wit- nesses abroad, or the like, an opportunity to obtain evidence by a continuance, according to the circumstances of the case, must be given." Upon the other hand, the necessity for a postponement of a lengthy trial, on account of the near approach of the end of the term, is obviated for the United States courts by act of March 2, 1855." » Matter of Martin, 2 Paine, 348. « 1 Stat, at L., 677. The principle ' Banl£ of Columbia v. Olcely, 4 seems applicable under the similar pro- Wlieat., 235; United Stateb v. Rath- vision. Act of March 3, 1797, §3, /d 514, bone, 2 Paine, 578. ' United States v. Phelps, 8 ' Pet • Kelly V. Smith, 1 Blatchf., 290. 700. ° Section 1. 1 Ante, 77. TRIAL. 14J The jury. The "acts of Congress directing the mode of impanneling petit juries, are given in the previous volume.' They refer to the State laws as the general guide for designating the persons to form a jury ; for determining their qualifications ; and give some special provisions upon the mode of summoning them, and the oath which they shall take. It is held that the provision of section 29 of the Judiciary Act of September 24, 1789, — that jurors shall be drawn from such parts of the district as the court shaU direct, — is not re- pealed by the act of July 20, 1840, but is still in force." Jurors in the Circuit Court should be selected by the marshal from the State at large ; conforming, as nearly as possible, to the State practice.' It is also held that the power conferred by tne act of July 20, 1840, upon the Federal courts, to make all necessary rules and regulations for conforming the impanneling of juries to the laws and usages in force in the State in which such courts are held, includes that of regulating the challenges of jurors, whether peremptory or for cause, and in cases both civil and criminal ; with the exception, in criminal cases, of treason and other crimes of which the punishment is declared to be death.' The statutes declare an exemption of pei^sons connected with the postal service from jury duty." To have given aid, &c., to the rebellion of 1860-65, is made, by the act of 1862," a cause of disqualification additional to those previously known. By the act of February 26, 1853,' jurors in the United States courts are allowed compensation ; for actual attendance, two dollars per day ; and for traveling from their residence, five cents per mile for going, and the same for returning. Conduct of the trial. The proceedings upon a jury trial, subsequent to the im- ' Act of September 24, 1789, § 29, 1 * United States v. Shaokleford, 18 Ante. 14; Act of April 29, 1802, § 30, How., 588. Id 37 ■ Act of July 20, 1840, Id., 58; ' Act of March 3, 1825, § 25, 4 Stat. Act of June 17, 1862, Id., 80. at L., 112 ; Act of July 2, 1836, § 34, " United Slates v. Stowell, 2 Curt. 5 Id., 88. C. Ct., 153. " 1 ^nte, 80. • United States v. Woodruff, 4 Mc- ' Section 3. 1 Ante, 76. Lean, 105. 142 ORiaiNAL JURISDICTION. panneling of the jury, are governed chiefly by the discretion of the presiding judge ; guided, however, as a general rule, very largely by the prevailing practice and usages of the State courts. The mode of conducting trials, the order of introducing evidence, and the times when it is to be introduced, are properly matters belonging to the practice of the Circuit Courts, with which, it has been said, the Supreme Court ought not to interfere ; unless it shall choose to prescribe some fixed genferal rules on the subject under the authority of the act of Congress. The Circuit Courts possess this discretion in as ample a manner as other judicial tribunals. ' By a familiar provision of the Judiciary Act of September 24, 1789,' which forms a fundamental rule of our national ju- risprudence, "the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of de- cision in trials at common law in the courts of the United States, in cases where they apply."" This rule governs the substantial determination of the rights of the parties involved in the issue ; but in the mode of conducting the inquiry, the State laws are not, as to all details, the invariable guide. ' References. Trial by reference to a master or commissioner, according to the usual equity practice, is of frequent occurrence in the equity and admiralty causes. And there is nothing in ^the views or procedure of the law courts to prevent a resort to a reference, even to the extent of submitting the entire deter- mination of the issues, where the parties consent ; nor in that limited class of cases not embraced in the seventh Constitu- tional Amendment, where the nature of the questions to be determined recommend a resort to that mode of trial for the convenience of the court. References to persons noways connected with the bench, to hear and determine aU the issues in a case, are ancient and usual ; and in the Federal courts, as in others, are proper,* so ' Philadelphia & Trenton R. R. Co. v. ' For a recent discussion of this pro- Stimpson, 14 Pet., 448. vision, see Derby v. Jacques, 1 Cliff., • Section 34. 1 Ante, 16. 425. • Heckers v. Fowler, 2 Wall, 123 TRIAL. 143 that the constitutional provision in favor of trial ty jnry be not infiinged. But the courts of the United States cannot de- prive either party of the right of trial by a jury of any issue of fact, by referring such issue to referees, without his explicit consent.' But there are no laws or general rules of court particularly favoring trial of legal issues by referees, nor have there been extended reasons, such as long calendars or dockets, to dista- cline parties to submit their causes to the arbitrament of juries ; and hence the resort to references was less common in legal actions in the United States courts, than in many of the States. Trial by the court. The act of March 3, 1865," contains some provisions author- izing trial of the facts by the court, which may properly be mentioned in this connection. They are as foUows : "Issues of fact in civil cases iu any Circuit Court of the United States may be tried and determined by the court, with- out the iutervention of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk of the court waiving a jury. The finding of the court upon the facts, which.finding may be either general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the cause, in the progress of the trial, when ex- cepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error, or upon appeal, pro- vided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment." ' U. S. V. Eathbone, 2 Paine, 578. ' Section 4. 13 Siat. at L., 501. CHAPTER XIV. JUDGMENT: DECREE. The statutes of many of the States have dropped the em ployment of the term " decree" to signify the adjudication of a cause of equitable (or maritime) cognizance, as distinguished from that of an action at law, and employ the term "judg- ment" alone, to include the adjudication of either species of controversy. But in the courts of the United States the old nomenclature stiU prevails ; "judgment" is used of the deter- mination of the issue in an action at law, "decree," of the de- termination of the issue in a suit in equity or admiralty. What judgments may be rendered. The mode of rendering judgment is left, in general, by the Process Acts of Congress, to be regulated by the State laws applying in the various districts, subject to such general rules as may be prescribed by the Supreme Court,' and such local mles as may be prescribed by the subordinate courts. As the Supreme Court have not exercised their power to regulate the subject, the practitioner is left to ascertain, as respects most questions relative to judgment, what State laws on the sub- ject have been adopted for the district in which the proceed- ings are pending, either by act of Congress or by rule of court ; and what regulations have been introduced by the rules of the Circuit or District Courts. There are, however, some rules relative to particular causes of action, which prevail through- out the Union. Section 15 of the Judiciary Act of September 24, 1789,' confers upon the courts of the Union power to require either party to an action to submit books or writings in his pos- ' 1 Ante, 9. JUDGMENT : DECREE. 145 session, pertinent to the cause, to an inspection by the other party. And the act provides that if .the plaintiff disobeys the order, the court may render judgment of nonsuit ; if the. de- fendant, judgment against him by default. The question has been raised whether the courts of the United States possess the power freely exercised by the courta of many of the States, of rendering judgment of nonsuit on a judicial view of the deficiency of plaintiff' s case,^ and without his consent thereto. The rule on this point may not be uni- form ; but, so far as we are aware, the current of authority is adverse to this practice, and to the effect that while a plaintiff may voluntarily submit to a nonsuit, to save himself from the effect of an adjudication against him, he has the right to go to the jury upon the question of the sufficiency of his proofs, if he desires ; that (except under the above statute) judgment of nonsuit cannot be rendered against him without his consent. Section 26 of the Judiciary Act' provides for entry of judg- ment by default, in a class of cases ; a subject of which a brief explanation has been made in a previous chapter.' The patent law of July 4, 1836,° under which the litigation of patent causes was for so many years conducted, contained a provision (in section 36) that when the plaintiff in an action for damages for infringement of a patent, should recover a verdict, "it shall be in the power of the court to render judg- ment for any sum above the amount found by such verdict as the actual damages sustained by the plaintiff, not exceeding three times the amount thereof, according to the circumstances of the case, with costs." , The object of the provision was to render the remedy by action at law more stringent and effectual as a preventive of in- fringement in the future.* ' 1 Ante, 12. proofs. Ives v. Merchants' Bank of It is held that under the provisions of Boston, 12 How., 159. this section, — which provides that on " Ante, 50. default the courfmay render judgment ' 1 Ante, 53. for as much as may be due, — a judg- * Hence the section has been held in- iiient for damages for an amount as- applicable to a Suit brought merely to sessed by the jury, exceeding the pen- collect damages for the past infringe- alty of the bond in suit, is bad. Farrar raent of an expired patent. Bell v vi nnited States, 5 Pet., 373. McOullough, 1 Fish., 380^ ' And the section does not apply to And see 1 Ante, 542, for remarks on cases heard on agreed statements of the comparative efficiency of the rem-. iBCts, or tried lipon the pleadings and edy by action for damages, and thai by bill for injunction. Vol. II.— 10 'W 146 ORIGINAL JURISDICTION. The enactment above quoted has been, in form, repealed by the act of July 8, 1870. But the latter act substantially re- enacts the provision with reference to actions at law for dam- ages,' and also authorizes the same increase of damages to be awarded in equity suits." Special directions are given, by section 3 of the act of March 3, 1797," for granting judgment in any suit against per- sons indebte(i to the United States, upon delinquency in pay- ing over public money, at the term at which the process is re- turnable, unless the defendant shall make oath to some matter of defense such as is specified by the section. By act of April 10, 1806," an action may be instituted upon a marshal's bond, in behalf of any party injured by any breach of such bond ; and he may recover judgment (and have execution) for such damages as may be assessed for that breach, with costs ; and this judgment does not extinguish the bond, but it remains as security for the benefit of any person injured by another breach, until the whole penalty shall have been recovered. Effect of judgments. The courts of the United States have given fuU recognition to the principles of the common law, according to which a judgment of a court of record is respected as a conclusive de- termination of the rights of the parties, and not liable to be impeached collaterally. Among many cases in which this recognition has been made, the decision of the Supreme Court in Voorhees «. Bank of the United States ' may be particu- larly cited. It is there held in substance that one of the ele- mentary principles of the common law requires whoever would ■ By section 59. 16 Pet, 71 ; Warburton v. Aken, 1 Mc-- ' By section 55. Zean, 460 ; French v. Lafayette Ins. ' 1 Ante, 31. And see explanations Co., 5 /d, 461 ; Farmer's Loan & Trust on the last clause of this section, in the Co. of New York v, McKinney, 6 last preceding chapter. Id., 1. * 1 Ante, 39. Every presumption not inconsistent * 10 Pet, 449. with the record is to be indulged in Ca- Wherever a tribunal has decided up- vor of the jurisdiction of courts of gen- OR a matter within its regular jurisdic- eral jurisdiction. Their judgments, how- tion, its decision must be presumed ever erroneous, cannot be questioned, proper, and is binding until reversed when introduced collaterally, unless it by a superior tribunal. It cannot be be shown afiBrmatively that they had affected, nor can the righls of persons no jurisdiction of the case. Harvey u .dependent upon it be impaired by any Tyler, 2 Wall, 328. collateial proceeding. Cocke v. Halsey, JUDGMENT : DECREE. 147 complain of the proceedings of a conrt to do it in such time as not to injure his adversary by unnecessary delay in the asser- tion of his right. If he objects to the mode in which he is. brought into court, he must do it before he submits to the process adopted. If the proceedings against him are not con- ducted according to the rules of law and the court, he must move to set them aside for irregularity ; or, if there is any de- fect in the form or manner in which he is sued, he may assign those defects specially, and the court will not hold him an- swerable till such defects are remedied. But if he pleads to the action generally, all irregularity is waived, and the court can decide only on the rights of the parties to the subject- matter of the controversy ; their judgment is conclusive, un- less it appears on the record that the plaintiff has no title to the thing demanded, or that in rendering judgment they have erred in law. All defects in setting out a title, or in the evi- dence to prove it, are cured, as well as all irregularities which may have preceded the judgment.. The judgment itself, so long as it remains in force, is evidence of the title adjudged by it. Errors committed by the court, however apparent, can be examined only by an appellate power. And this 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, is held applicable equally to a verdict and judg- ment in a court of common law, and to a decree of a court of equity. They both stand on the same footing, and may be of- fered in evidence under the same limitations. The rule is not confined to judgments of the same court, or to the decisions of courts of concurrent jurisdiction, but extends to every court which has proper cognizance of the subject-matter, so far as it professes to decide the particular matter in dispute. It, however, does not apply to points which come only collater- ally under consideration, or were only incidentally under cog- nizance, or can only be inferred by arguing from the decree.' Nor are judgments of the National courts excepted from this rule. Some attempt has been made to except them, founded upon the idea that they are not courts of general ju- risdiction. In a sense, they are limited in jurisdiction. But ' Hopkins V. Lee, 6 Wheat., 109. J48 . OBIGINAL JfUEISDICTION. their judgments and decrees are binding until reversed, aK though jurisdiction is not shown on the record. Although .courts of limited jurisdiction, they are not technically inferior courts.' Their judgments, even though avoidable for error, cannot be impeached collaterally ; but are valid and binding until reversed." And, under the familiar provision of the Constitution,' that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, it is held that the judgment of a court of one of the United States must receive, in the courts of every other State,, the same faith and credit which is awarded it in the State wherein it was rendered." And, upon the other hand, a Circuit Court cannot, in an action on a State judgment, entertain any plea which could not be entertained in an action upon the judgment, brought in the courts of the State." Lien of judgements. Judgments and decrees of the national courts become liens upon the real property of the defendant, lying within the district in which they are rendered. But it is not easy to state, from the adjudications, precisely how far this lien is regulated by the local law. The existence of this lien,, it has been held, ° does not result ' McCormick v. SulKvant, 10 Wheat, certain securities, afterwards found of 192 ; Kennedy v. G-eorgia State Bank, no value, and was afterwards dis- 8 How., 586. charged from the execution. The bill ' Huff u. Hutchinson, 14 How., 586. was dismissed in Q-eorgia, and the ' Art. IV., § I. plaintiff, having paid to the defendant * Warren Manufacturing Co. v. Etna the amount of the judgment, instituted Ins. Co., 2 Paine, 501 ; Green v. Sar- this suit to recover the sum ^o paid by miento, 1 Pet. C. Ct, 74 ; 3 Wash. C. him, on the ground that the discharge Ct, 17 ; Jacquette v. Hugunon, 2 Mc-- of the indorser from the execution was Lean, 129 ; Lincoln v. Tower, Id., 473. a di.=charge of the debt. It was held In Montford v. Hunt (3 Wash. 0. that the decree of the Circuit Court of Ct., 28). the plaintiff had filed a bill on Georgia was conclusive on the plaintiff, the equity side of the Circuit Court of as the same facts as those now relied upon Georgia, against the defendant, in were before that court, or might have which he sought relief from a judgment been submitted by the plaintiff in the obtained against him on a promissory bill, to the consideration of the court, note drawn by him, claiming that the at the time of the proceeding, amount of the note had been paid by ' Warren Manufacturing Co. v. Etna the indorser, against whom a suit had Ins. Co., 2 Paine, 501; Armstrong v, been instituted in a State court of Carson, 2 Dall., 302. Pennsylvania, and who, having been ° Lombard v. Bayard, 1 Wall. Jr. G. taken in execution gave the plaintiff Ct.,, 196. JUDGMENT: DECREE. 1^ from any direct legislation of Congress on the subject. But under the Judiciary Act of September 24, 1789, the courts of the United States have uniformly adopted the principles of State Jurisprudence relative to the lien of judgments, so far as appli:- oable. The extent of the lien, or the question what judgment or decree may form a lien, and what kinds of property may be holden, appears to depend upon the State law. The judgment or decree is a lien upon the property claimed, if a similar judg- ment or decree rendered in the State court would be a lien upon the like property.' The duration of the lien is expressly made by act of July 4, 1840,' dependent on the State law. That act declares that "judgments and decrees hereafter rendered in the Circuit and District Courts of the United States, within any State, shaU cease to be liens on real estate or chattels real, in the same manner as judgments and decrees of the courts of such States now cease by law to be liens thereon." But it is not to be understood that regulations of State law requiring a judgment of a State court to be registered or docketed in a particular manner or in a certain office, must be followed in I respect to United States judgments. In those States where a judgment in the State courts creates a lien, a judgment in a court of the United States has that operation throughout the district to which. the jurisdiction of the court extends; and State legislation, modifying the lien of judgments, or restricting their operation, cannot affect the lien.' Moreover, the lien extends, irrespective of State restrictive laws, to all lands of the defendant throughout the district. The act of 1840, above cited, does not operate as an adoption of all the provisions which may prescribe conditions requisite to render a State judgment a lien, — such as a statute requiring a judgment to be recorded in the county where the lands lie, — but only refers to the State law to determine when the lien shall cease.* Set-off against goTernmcnt. The practice of reducing the judgment to which the plain- tiff's evidence may indicate that he is entitled, by proof of ' See Ward v. Chamberlain, 2 Black, ' Cropsey v. Crandall, 2 Blatchf., 34rl', 430 ; Williams n). Benedict, 8 How., 107. 10 N. Y Leg. Obs., 1 ; Lombard v. Bay- ' Section 4. 1 Ante, 58. ard, 1 Wall. Jr. C. Ct., 196 ; Carroll v. • Massingill v. Downs, 7 How., 760. Watkiiis, 1 Ahh. C. & D. Ct., 475. 150 ORIGINAL JURISDICTION. oflEsets due the defendant, is familiar in the United States courts ;' and, as between private parties, the ordinary rules of State courts are followed. But where the government sues, a system of allowing a set-off arises, which, as government usually sues in the National courts, is practically peculiar to those courts. The United States is not liable to be sued (ex- cept in such mode as may be provided by its own consent). Hence, prior to the establishment of the Court of Claims, there was, generally, no way in which a claimant of money from the government could have redress in the courts, except by offer- ing his demand as a set-off, in some action brought by govern- ment against him. The courts have allowed set-offs thus to be made. We believe there is no act of Congress expressly authorizing them; though, by implication, they seem per- mitted. There is a series of cases recognizing this practice. In United States ». Ringgold, ° the question was presented whether, as the defendant could have no cause of action di- rectly enforceable against government, it was competent for the courts to entertain his demand indirectly. The Supreme > Court held this not improper, on the groxind that when an ac- tion is brought by the United States, to recover money iu the hands of a party who has a valid claim against them, it would be a too rigid principle to deny to him the right of setting up such claim in a court of justice, and turn him round to an ap- plication to Congress. For if the right of the party is fixed by the existing law, there can be no necessity for an application to Congress, except for the purpose of remedy. And no such necessity can exist, when this right can properly be set up by way of defense to a suit by the United States. The cases of United States «. Robeson,' and United States ■e. Wilkins,* applied the principle particularly to the case,— the one, indeed, in which tlie practice has most frequently ' That is, in courts of law and equity. 396 ; Snow v. Carruth, 1 Spragne, 324 ; ■ It is said that admiralty recognizes no 9 Law Rep. N. S., 198; Hutchinson v. general practice of setting off one de- Coouiba, Ware, 65. mand ajrainst another, though it some- " 8 Pet, 150. times allows the demand of a libelant ' 9 Pef., 319. to be I'eduoed by proof of matters * 6 Wheat, 135. To the sanie gene- whioh ought in justice to diminish it, ral effect are United Slates d. Hawkins, as, where a deduction is allowed from a 10 Pet, 125 ; United States v. Collier, 3 seaman's wages, for damages caused by Blakhf., 325. his misconduct. The Hudson, Olc, JUDGMENT: DECREE. 151 been invokedj — ^of a public officer, setting up a claim to credits -whicli hare been disallowed Mm by accounting officers of tlie government, as a set-oif to the claim of the government to recover moneys collected by Mm in Ms official capacity. It was held that when a defendant has, in Ms own right, an equitable claim against the government, for services rendered or otherwise, and has presented it to the proper accounting officer of the government, who has refused to allow it, he may set up the claim as a credit in a suit brought against him for any balance of money claimed to be due by the govern- ment. And when the vouchers are not ia the power of the de- fendant before the trial, or, from the peculiar circumstances of the case, a presentation of the claim to the treasury could not be required, the oflFset may be submitted to the action of the jury. Moreover, such a defendant, in a suit by the United States, is entitled to the fall benefit of any credit in Ms favor, whether arising out of the particular transaction for which he may be sued, or out of distinct and independent transactions, which would constitute a legal or equitable set-off, in whole or in part, of the debt sued for by the United States. In Gratiot v. United States,' the government instituted a suit against a public officer to recover a balance alleged to be due by Mm for money paid to him as "chief engineer in the service of the United States," aa shown by two treasury transcripts. His claims against the United States, as offsets to the demand agaiast him, which had been exhibited to the ac- counting officers of the treasury, were for commissions on dis- bursements of public money at certain forts, being two "dollars per day during the times of the disbursements,— which sum was charged separately for each day, — and for extra services in conducting civil works of internal improvement, carried on by the United States. In .the Circuit Court the evidence offered to prove the set-off claimed by the defendant was re- jected. The Supreme Court held that unless some law could be shown establishing clearly and unequivocally the illegality of each of the items of set-off, the refusal of the Circuit Court to admit the evidence was erroneous. The evidence was proper for the consideration of the jury, as conducing to the ' 15 Pet, 336. 162 OEiaiNAL JURISDICTION. establisliinent of the facts. And whether such claim was legal or equitable in its character, was held wholly immaterial ; if valid in either view, it constituted a good ground of set-oflF or deduction. The want of any positive law which expressly provides for or fixes such allowances, does not necessarily prevent them. There are many authorities conferred on the different departments of the government, which, for their due execution, require services or duties which are not strictly ap- pertaining to or devolved upon any particular officer, and which require agencies of a discretionary nature. In such cases the department charged with the execution of the par- ticular authority, business, or duty has always been deemed, incidentally, to possess the right to employ the proper persons to perform the same, as the appropriate means to carry into effect the required end ; and, also, the right, where the service or duty is an extra service or duty, to allow the person so em- ployed a suitable compensation.' In United States v. Mann," it was det«rmuied that an officer of the United States, who has levied a sum of money on an execution in favor of the United States, to whom the United States are indebted for fees of office in a sum greater than the amount of the execution, has a right to retain it by way of set- off ; and, on motion made on the part of the United States, to commit the officer for failure to pay over the money so levied, he should be permitted to show that the United States are in- debted to him ; and, if this be shown, it is sufficient cause why he should not be attached. In United States v. Bank of Metropolis,' the defendants were entitled to a credit with the United States, in a course of dealings with the post-office department. Upon an action brought against them to recover the balance of a deposit of public moneys, which they held as bankers, and which had been passed to the account of the treasurer of the United States, by direction of the postmaster-general, in pursuance of an act of Congress, the defendants were allowed to set off the claun against the department. The court held that place is certainly the treasury of the United Stated, where its money is ' The right to claim these indefinite a claim really valid may be interposed allowances has been much restricted by as a set-off. subsequent statutes ; but they appear ' 2 Brock Marsh., 9. not to affect the general principle that ' 15 Pet., 377. JUDGMENT : DECREE. I53 ' directed by law to be kept ; but if those whose duty it is to disburse appropriations made by law, employ or are allowed to employ, either for safe keeping or more convenient dis- bursement, other agencies, and it becomes necessary for the United States tp sue for the recovery of the fund, the defend- ant in the action may claim, against the demand for which the action has been brought, any credits to which he shall prove himself entitled, if they have been previously presented to the proper accounting officers of the treasury and rejected. This practice of allowing set-off against the government ia not more liberal than would be allowed were the plaintiff a private person. A demand for unliquidated damages cannot be claimed as a set-off against government.' Kor can a debtor to the government set off a demand against the government .which he holds by assignment." Moreover, the act of March 3, 1797," declares that in suits between the United States and in- dividuals no claim for a credit shall be admitted upon trial but such as shall appear to have been presented to the ac- counting officers of the treasury for their examination, "and by them disallowed, in whole or in part, unless it should be proved to the satisfaction of the court that the defendant is, at the time of trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the treasury, by. absence from the United States, or some unavoidable accident. This section is held to embrace suits for any cause of action, without dis- tinction.* Tlie costs. Judgments in the National courts, a,s in others, ar^ ren- dered for costs of suit, in addition to the amount of the sub- stantial recovery, wherever, as is very generally the case, the prevailing party is, by law, entitled to costs. Probably this right is not expressly conferred by any act of Congress. But, independent of any such statiitory grant, it has been held that by the settled practice, and the implications arising from the various acts of Congress, the prevailing party is, in general, to ' United States v. Williams, 5 Mc- ' Section 4. 1 Ante, 31. See, al?(^ Lean, 133 ; United States v. Buchanan, United States v. Giles, 9 Cranch, 212; 8 How., 83 ; Ware v. United States, 4 United States v. Lent, 1 Paine, 417. Wall., 617. * United States v. Barker, 1 Paint, * United States v. Eobeson, 9 Pet., 156. 319. 154 ORiaiNAL JURISDICTION. te allowed costs in the courts of th.e United States ; and that they are to be awarded in conformity to tlie State laws, in tht absence of any express provision of statute, or general rule of court.' Some exceptions to this general rule are, however, to be found, which are peculiar to the National courts. One of these restrictions upon the right to costs is found in the Judiciary Act of September 24, 1789." It directs that when a plaintiff originally suing in a Circuit Court, or a petitioner in equity there, other than the United States, recovers less than five hundred doUars, or a libelant on his own appeal recovers less than three hundred dollars, he shall not be allowed costs, but, at the discretion of the court, may be adjudged to pay costs." This restriction is not, however, understood to apply in those actions in which, by subsequent laws, original' jurisdic- tion has been conferred upon the Circuit Court in view of the subject-matter of the controversy, and irrespective of the amount involved. Another exception is found in the rule recognized in seve- ral of the early cases, that in actions brought by government, the defendant, although successful, does not recover costs. No judgment or decree can be rendered directly 'against the United States for costs." The amounts which may be allowed, on the taxation of costs, for the various services incurred in the cause, are now regulated in considerable detail by the statute known as the Fee Bill of February 26, 1853," which also contains several provisions of a general character. The rule as to awarding costs, by decree in equity, is somewhat more flexible than in courts of law ; and that in ad- miralty is stiU more so. It is held that, in equity, costs should go, presumptively, to the prevailing party, and it is desirable to depart as little as possible from the rules at law ' Hathaway v. Roach-, 2 WoocU). & sons ; such as frivolousness of the de- M., 63. mand, or a vexatious purpose in bring- " Section 20. 1 Anie, 10. inpr the suit. Greene v. Bateman, 2 ' The court will not charge a plain- Woodh. & M., 359. tiff, recovering less than five hundied * The Antelope, 12 Wheat., 546 • dollars, with the costs of the defend- United States v. Hooe, 3 C/anch, 73 • ant, as authorized by seciion 20 of the United States v. Barker, 2 Wheat. '395I Judiciary Act, unless for special rea- ' 1 Ante, 70. JUDGMENT: DECEEB. I55 on tMs subject. They will be departed from, however, in strong cases ; where costs are not equitable, or where the party has not prevailed on the merits, or on an important point, or one which was known, or ought to have been known, to the opposite party.' In admiralty, it is said, the court, in decreeing costs, re- gard the essential merits and equities of the parties, rather than the result of the litigation." The costs are in the discre- tion of the court ; and the exercise of that discretion wUl not ordinarily be reviewed on appeal.' The discretion of the courts of equity and admiralty is, however, governed, as to some questions in regard to the allowance of costs, by pro- visions on the subject in the equity and admiralty rules of* the Supreme Court.' Decrees. The practice oh entering decrees in equity and admiralty, in the United States courts, appears to follow the general course of courts of similar jurisdiction, except that the form of the decree in equity is the subject of special regulation in Eule 'No. 86 of the Supreme Court Rules in Equity.'' It di- rects that, "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 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 de- creed as follows, viz :' [Here insert the decree or order.]" ' Hunter v. Town of Marlboro, 2 ' United States v. The Malek Adliel, Woodh. & M., 168, 208; Hovey v. Ste- 2 How., 210, 237; Canter v. Amerioaa phens, 3 Id., 17. & Ocean lus. Co., 3 Pet, 307. ' The Martha, Blatchf. & K, 151 ; M Ante, 133. The reader will find The Victory, Id., 443 ; Shaw v. Thomp- a brief statement of numerous adjudica- son, OZc, 144; The Moslem, Id., 374; tions of National courts on this subject, McDermott v. The S. G. 'Owen.the body of it contain the good, even if the offense was punish- names of the grand jurors. United able by a single statute. United States States v. Crawford, 1 JV". Y. Leg. Ohs., V. Gibert, 2 Sumn., 19. 388. 'United States «. Staats, 8 ffoto., 41; An indictment for perjury need not United States v. Clark, 1 Gall, 497. refer to the particular act which re- ' United States v. Elliot, 3 Mas., 156. quired the oath in question to be ^ U. S. V. Wilson, BaldvK, 78, 115 ; U. taken; it should aver the facts which S. V. Bachelder, 2 Oall, 15; U. S. v. Mills, constituted the occasion for taking the 7 Pet., 138 ;_U. S. v. O'Sullivan, 9 N. Y. oath, and the court will take notice of Leg. Ohs., 257 ; U. S. v. Pond, 2 Ourt. C. any act of Congress which required it. Ct., 2G5. United States v. Nickerson, 17 How., Where words of description are so 204. used in an indictment founded on a ' United States v. Bachelder, 2 statute as to have an application only Qall., 15. CRIMINAL PROCEEDINGS. 179 the offense m the words of the statute sufficient, that, where the indictment employs the precise words of the statute, there is no necessity for superadding the word "unlawful," or any other word showing a wrongful intention.' Thus, in an in- dictment under the act of July 7, 1837, against the officers of a steamboat, for causing the death of a person through their misconduct and negligence, no malicious intent need be charged." So, where a statute makes certain acts, done with a certain fraudulent intent or purpose, felony, if the acts, and the intent or purpose described in the statute, are charged in the indict- ment, it is a conclusion of law therefrom that a felony was committed ; and a felonious intent need not be alleged. In general, it is true, the felonious intent must be charged. The exception is where this felonious intent constitutes no part of the crime, that being complete under the statutory definition without it.° So, in framing an indictment for an assault, under section 22 of the Crimes Act of March 3, 1825,* — pro- viding for the punishment of assaults with dangerous weap- ons, — ^it is not necessary to allege that the assault was com- mitted feloniously, or with intent to perpetrate a felony. The statute regards such an assault as misdemeanor, and not as felony." And the word "assault," in such an indictment, carries with it an allegation of illegality." Indictments in the N'ational courts frequently involve the averment of official character, capacity, or authority. In re- spect to this subject it has been held that an indictment for resisting an officer must describe such officer in his real ca- pacity and character.' But it need not set forth the particular exercise of office in which he was engaged, or the particular act and circumstances of obstruction." If it be for obstructing * United States v. Thompson, 6 Mc- as well as the counterfeiting, must ap- Xcare, 56. Compare United States v. pear in an indictment for making false Three Railroad Cars, 1 Ahh. U. S., 196. and counterfeit silver coin of the Uni- " United States v. Warner, 4 Mc- ted States. United States v. King, 6 Lean, 46.3 ; 6 West. Law J., 255. McLean, 208. ' United States v. Staats, 8 How., 41. * 4 Stat, at L., 121. It is necessary in an indictment ' United States v. Gallagher, 2 Paine, Against the master of a vessel for de- 447. slroying her at sea, to state that the ° United States v. Lunt, 1 Sprague, intent was to preiudice the under- 311; 8 Law Rep. N. S., 622. writers. United States v. Johns, 1 ' United States v. Phelps, 4 ZJny, 409. Wa.^h. C. Ot., 363 ; 4 Doll, 412. ' United States v. Bachelder, 2 GaU., And the intent to pass as genuine, 15. IgO ORIGINAL JUEISDICTIOX Mm in serving lagal process, it must show by proper aver- ments that the process was legal. Averring merely that it was " duly issued " is not enough ; the facts authorizing the issue must appear." And an indictment for forgery by the altera- tion of an instrument issued by an officer acting not in the line of his proper office, but in that of another office, the duties of which he had been designated to perform during a vacancy, should aver the facts necessary to show that sxich officer had been duly designated to act in the vacancy, and was competent to make the instrument alleged to have been altered. Averring that he issued it " ea; officio " is not enough." Place of trial. By the Constitution,' trials for crimes committed within a State must be held within such State ; and as respects capital offenses. Congress have further provided that they shall be tried within the county,* except in cases where that cannot be done without great inconvenience. All offenses committed upon the high seas or elsewhere, out of the limits of any State or district, are triable in the dis- trict where the offender is apprehended, or into which he may be first brought. " This latter provision, it is held, confers jurisdiction in the alternative. Jurisdiction may be exercised either in the dis- trict in which the prisoners were first brought, or that in which they were apprehended under lawful authority, for the trial ■ of the offense.' ' TTnitod States v. Stowell, 2 Curt. dictment should show -what averments C. Ct., 153 ; 8 Laiv Rep. N. S., 76. the libel contained. It is sufficient, in Where it is necessary to set out in such a case, that the indictment should an indictment that process was lej;ally show the process was valid on its face, issued, the want of an averment of the United States v. Tinklepaugh, 3 facts showing that the commissioner Blalchf., 425. issuing the warrant was authorized to ' United States «. Schoyer, 2 5Wc/i/, issue it, cannot be aided by referring to .59. the records of the court in which the ' Art. Ill,, § ii., 3 ; Const. Amendt., indiotroeni is pending, although the VI. And see United States v. Bird, 1 commissioner was appointed by such /S/irayjie, 299; United States ■«. Greuier, court. lb. 4 Phil, 396. Where an indictment for resisting an * Act of September 24, 1789, § 29, aa officer in the execution of process amended by Act of July 16, 18G2, 1 showed that the process resisted was a Ante, 13, 81. And see Act of March 2, warrant of attachment -issued by the 1793, 1 Slat, at L., 333. District Court against a vessel, on tlie ' Act of March 3, 1825, § 14, 4 Stat. filing, by the district-attorney, of a libel at L., 118. . for the lorfeiture of a vessel, it was hold " Trial of the Officers and Crew of the that it was not necessary that the in- Savannah, 368. CRIMINAL PROCEEDINGS. jgl The expression "into whicli lie may be first brought, " means a district into wMch the offender is brought in legal custody, and not one into which he has merely been conveyed by the vessel in which he arrived within the United States." And the provision, as a whole, applies only to offenses committed on, the high seas, or in some river, haven, basin, or bay, not within the jurisdiction of a particular State ; and not to those committed within the territories of the United States,, where regular courts .are established competent to try of- fenses." Objection to the want of proof that the district in which the trial is had is the one in which the accused was appre- hended, miist be taken upon the trial. It comes too late if first taken on a motion in arrest of judgment.' Provision is made by act of August B, 1848,' for remitting indictments presented to the District Court, unto the Circuit Court for trial ; and for remitting such as are presented to the Circuit Court, unto the District Court. This power, it is held, may be exercised by an order made at a term subsequent to that to which the indictment is returned, notwithstanding the defendant has pleaded, and some proceedings have been had ; provided they do not amount to a bar to a future trial. ° It does not extend to capital cases, which are triable only in the Circuit Court.' The plea. The prisoner, having been arraigned, is called upon for hia plea.' Section 4 of the act of March- 3, 1835,' enacts that ■"whenever any person indicted for any offense against the United States, whether capital or otherwise, shall upon his arraignment stand mute, or wiU not plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty ' United States v. Bird, 1 Sprague, trials for treason, entirling the accused 299. to be furnislied, before trial, with a "Mop. Bollman, 4 Cranch, 75, 105. copy of the indictment, a list of the ' United States v. Crawford, I N. Y. juiy and witnesses, the assistance of Leg. Obn., 388. counsel, and the benefit of pi-ocess to * Sections 2 3. 1 Ante, 63. secure attendance of witnesses,— see " United States v. Morris, 1 Curt. G. Act of April 30, 1790, § 29, 1 Ante, Ci 23. 21. That a criminal case cannot be cer- ^ i Stat, at L., 777. .See previous tified from the District Court after a provisions upon the same subject, m conviction,— see United States, u. Cum- Act of April 30, 1790, jf 3U, 1 Stat, at mins, 3 Pittsb. Leg. J., 405. L- 119 ; Act of March 3, 182o, § 14, 4 * For special provisions applicablo to Id., 118. 1S3 ORIGINAL JURISDICTION. on Ms behalf, in the same manner as if he had pleaded not guilty thereto. And when the prisoner shall plead not guilty, or such plea shall be entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury." The jury. The qualifications, and mode of summoning jurors, are reg- idated, — or, rather, are assimilated to the State practice, — by several acts of Congress, which apply equally in civil and criminal cases, and have been sufficiently exhibited already.' In respect to challenges, however, the statutes contain some regulations which are peculiar to criminal causes. The principal of these is the act of March 3, 1865." It declares that " when the offense charged be treason or a capital offense, the defendant shall be -entitled to twenty and the United States to five peremptory challenges. On a trial for any other of- fense in which the right of peremptory challenge now exists, the defendant shall be entitled to ten and the United States to two peremptory challenges. All challenges, whether to the array or panel or to individual jurors for cause or favor, shall be tried by the couit without the aid of triers." The fact that a juror has formed a fixed opinion upon the merits of the cause, is, in the National courts as elsewhere, a ground of challenge. A juror is not necessarily disqualified because he has formed an opinion upon a single fact, although it be conducive to a final decision. But if the opinion formed be on a point so essential as to go far toward a decision pf the whole case, and to have a real influence on the verdict to be rendered, there is no important distinction between such a person and one who has, in his mind, decided the whole case. The question must always depend on the nature and extent of the opinion that has been formed.' ' Act of September 24, 1789, § 29, 1 ment, enteitained treasonable designs; Ante, 13 ; Act of July '20, 1840, Id., 58; but, if he has made up and declared the Act of February 2G, 1853, Id., 70. opinion that, to the time when tlie fact ' 13 Stat, at L., 500. laid in the indictment is said to have ^ United States v. Burr, 1 Burr's been committed, the prisoner was pros- Trial, 417. ecuting the treasonable crime *ith Thus, on a trial for treason, it is ■which he is charged, it furnishes a just not a sufficient objection to a juror cause of challenge, lb. Compare Ui,.- that he believes, and has said, that ted States i;. Hanway, 2 Wall. Jr. the prisoner, at a I ime considerably an- Ct., 139. teiior to the fact charged in the indict- CRIMINAL PROCEEDmaS. 183 Upon the trial of tlie officers and crew of the Savancali, iu the southern district of Few York, considerable discussion arose as to the eflFect of impressions produced upon a juror's naind by reading newspaper articles relative to the case about to be tried. It was ruled that a juror is not incompetent, be- cause, from reading the newspapers, or hearing reports, he has impressions on his mind relating to the prisoner, so long as he testifies he has no opinion or prejudice which will prevent him from doing impartial justice, when he hears the testimony.' The National courts have held it to be a good cause of challenge to a juror on a capital trial that he has conscientious scruples as to finding a verdict, which may lead to capital pun- ishment." As the laws of the States governing the extent and scope of the powers of the jury differ somewhat, the decisions of the National courts defining the rule upon that subject are of in- terest. It was said, in an early case in Maryland,' that, in crim- inal cases, it is the duty of the court to declare the law to the jury, when requested either by the prosecutor or the prisoner, ; at any stage of the trial ; but the jury are not bound by the direction. But the better opinion is, that in the National courts, the jury are not the judges of the law in criminal trials ; it is their province to take the law from the court and apply it to the facts which the evidence may develop, and thus frame their general verdict.* They are, indeed, so far judges of the law that they may find a verdict according to their own opinion ; but they are as much morally and legally bound by the law as the court. If they acquit against law, the coiirt cannot set aside their verdict ; but if they convict against law, the judgment will be arrested.' Thus the jury have no right to decide upon the con- ^ Trial of the Officers and Crew of the ' Tin i led States v. Wilson, Baldw., Savannah, 2-U. 78, 99. And see United States v. ' United States v. Cornell, 2 Mas., Lynch, 2 N. Y. Leg. Obs., 51. 91 ; United States v. Hewson, 7 Law Their right to decide the law, as Jiep., 361 ; United States v. Wilson, well as the fact, in a criminal case, Baldw., 78, 83. amounts only to the power to find a ' United Jjtates v. Hodges, 2 Wheel. jreneral verdict which includes both the Ci: Can., 477 ; Trial of Hodges, Hall's law and the facts. United States o. Law Tract's, iii. Stockwell, 4 Craiich G. &., 671. See, * United States v. Morris, 1 Curl. C. also, United* States r. Fenwiok, /d, a.. 23. 675. ]84 OEiaiNAL JURISDICTION. etitutionality of a statute under which the defendant is indicted.' The same view has been elaborately propounded in a very well considered case, determined in the former Circuit Court for the District of Columbia.' It was there held that the jurors are not judges of the law, even in a criminal case. They have the power to give a general verdict upon the general issue, which includes the question of law as well as of fact. But when, by pleading, or by special verdict, or demurrer to evidence, the law is separated from the fact, they have no right to decide the law ; it must be decided by the court. The right and power of the jury, whatever they may be, are exactly alike in civil and criminal cases. The argument of counsel, on the law, should be addressed to the judge ; and when the question of law is judicially presented to him, un- mixed with the fact (either by demurrer to' the evidence, special verdict, or motion for an instruction to the jury upon a hypothetical state of facts), it is not only the right, but the duty of the judge to decide the question. And he may, if he will, instruct the jury as to the law, upon the whole evidence, leaving the question of fact, however, entirely to them. The jury have the power to judge for themselves as to the law, and the power, but not the right, to iind a verdict against law ; and such a verdict, if in favor of the defendant, will be effectual. But it is the duty of a jury to follow the law as laid down by the court. A United States court may dischstrge the jury on a trial of a capital case, without releasing the defendant from the in- dictment ; and in capital cases, as well as in misdemeanors, the discretion to withdraw a juror exists, although it should be exercised only in very extraordinary and striking circum- stances. ° Even on a trial for a capital offense, insanity of one of the jurors is a good cause for discharging the jury, without the consent of the prisoner or his counsel. Such a discharge lies in the discretion of the court, and cannot form the subject of a plea in bar to the further trial of the prisoner.' ' United States v. Lyon, Wharf. St. ^ United States v. Coolidffe, 2 GalL Tr., 333 ; United States v. Shine, 364. Jialdw., 510. « United Stales v. Haskell, 4 Wash ' Stettiniiis v. United States, 5 Cranch C. Ct., 402 ; 2 Wheel Or. Cos . 101 a ct., 573. ' ■ CRIMINAL PROCEEDINGS. 185 The power of the courts to discharge a jury in a criminal case was the subject of elaborate explanation by Judge Blatchfoed, in the recent case of the United States v. Wat- son.' In this case, the counsel for defendants moved for their discharge on the ground that, upon a previous occasion, when the indictment had been called for trial, the court had directed the withdrawal of a juror, and that such direction was equiva- lent to an acquittal. It appeared by the minutes of the court that the indictment was called for trial, June 10, 1868, and twelve jurors were impanneled and sworn ; that the cause was then adjourned, and, on an adjourned, day, the assistant dis- trict-attorney moved that the trial go off for the term, on the ground of illness of the district-attorney, and absence of wit- nesses for the prosecution ; and that the court thereupon di- rected a juror to he withdrawn, and the trial was accordingly postponed for the term. Judge Blatchfoed sustained the motion for a discharge, upon the following grounds : " There can be no doubt that a court of the United Stated has authority in a criminal case to discharge a jury from giv- ing a verdict, whenever, in its opinion, taking all the circum- stances into consideration, there is a manifest necessity for the act, or when the ends of public justice would otherwise be de- feated, and it may do this without the consent of the defend- ant ; but the court is to exercise a sound discretion on the subject, and to use the power with the greatest caution, under urgent circumstances, and for very plain and obvious causes. If the court may exercise this authority in a criminal case, without the consent of the defendant, in a case of manifest ne- cessity, it may do so with the consent of the defendant, in a case which falls short of being one of manifest necessity. " In the present case, the minutes of the court show that the reason for postponing the case from the 11th to the 19th of June was the same as that for postponing the case indefinitely on June 23, and for directing a juror to be withdrawn,— to wit : the illness of the district-attorney, and the absence of witnesses for the United States. The minutes do not show any assent by the defendants to the withdrawal of the juror, or any dissent from that course. I am satisfied that I must have un- ' Decided in the District Court of November, 1868, but not yet officially the southern district of New York, in reported. 186 oeigijstal jurisdiction. derstood the defendants by their counsel as consenting to the course that was pursued. Otherwise, the question of the effect of their not consenting would have been presented at the time, and they would have insisted then and there upon their right to a verdict of acquittal. No such verdict was asked for, nor was the question presented to the court as to what effect the want of consent by the defendants to the withdraw- ing of a juror would have as to a future trial. Although the counsel for the defendants may have urged their desire to pro- ceed with the trial, and have dwelt on the hardship of the postponement, still I regarded them, and, doubtless, the dis- trict-attorney did, in the absence of any motion on 'their part for the entry, at the time, of a verdict of acquittal, as in effect consenting to the withdrawal of a juror. If the district-attorney did not choose to proceed with the trial, after the jury were sworn and impanneled, the defendants had a right then and there to ask for a verdict of acquittal. If they had asked for such a verdict, the district-attorney might, in preference, have gone on with the trial. Still, the defendants were not bound to ask at the time for such a verdict. They have a right now to claim that what took place was in effect such a verdict. ' ' But the fact that the court and the district- attorney regarded the defendants as consenting to the course that was taken, ought not, in the absence from the minutes of the court of any statement that they consented, to conclude them. If the court, acting at the time, upon its understanding that the defendants in effect consented, had proposed to make in the minutes of the court an entry of such consent, it may very well be that the counsel for the defendants would have at once insisted on the right of defendants to a verdict of acquittal. Then the coui-t would have been called upon to pass on the sufficiency of the reasons assigned in the minutes for withdrawing a juror — the illness of the district-attorney, and the absence of • witnesses for the prosecution. The court must be governed as to the facts in this matter by its minutes. They were made by the clerk in the usual course of the business of the court, with- out the special attention of the court having been called to them, and without any motion having been made by tlie dis- trict-attorney, at the time, to enter, as a part of them, that the defendants consented to the withdrawal of the juror. It would be very unsafe, and lead to endless disputes, and prob CRIMINAL PROCEEDINGS, 187 able injustice, for the court, in matters of this kind, to act on its own recollection, or on the affidavits of witnesses, es- pecially after a lapse of time. If the parties to any suit or proceeding find that the minutes of the proceedings of the court kept by the clerk, and which are always open to inspec- tion, are erroneous, the proper way is to move to correct them promptly to comport with the facts. "It must, therefore, be assumed, for the purposes of the present application, that there was no consent by the de- fendants to the withdrawal of the juror. The question then recurs whether the reasons assigned in the minutes of the court for withdrawing a juror show a manifest necessity for doing so, or that the ends of public justice would otherwise have been defeated. The question must be disposed of now as it would have been disposed of at the time the motion was made that the trial go off for the term, if the defendants had then expressed their dissent to such action. The illness of the district-attorney, — it not appearing by the minutes that such illness occurred after the jury was sworn, or that it was impossible for the assistant district-attorney to conduct the trial, and the motion to put off the case for the term being made by such assistant, — cannot be regarded as creating a manifest necessity for withdrawing a juror. So, too, as to the absence of witnesses for the prosecution ; it does not appear by the minutes that such absence was first made known to the law officer of the government after the jury was sworn, or that it occurred under such circumstances as to create a plain and manifest necessity justifying the withdrawing of a juror. Neither the mere illness of the district-attorney, nor the mere absence of a witness for the prosecution, under the circum- stances disclosed by the record in this case, is a ground upon which, in the exercise of a sound discretion, a court can, on the trial of an indictment, properly discharge a jury, without the consent of the defendant, after the jury has been sworn and the trial has thus commenced. To admit the propriety of the exercise of the discretion on such grounds, would be to throw open the door for the indulgence of caprice and par- tiality by the court, to the possible and probable prejudice of the defendant. When the trial of an indictment has been commenced by the swearing of the jury, the defendant is in their charge, and is entitled to a verdict of acquittal, if the IQQ ORIGINAL JURISDICTION. case on the part of the prosecution is, for any reason, not made out against him, unless he consents to the discharging of the jury without giving a verdict, or unless there is such a leg-al necessity for discharging them as would, if spread on the record, enable a court of error to say that the discharge was proper. "It is impossible, within this definition, to lay down any inflexible rule as to what causes would, and what causes would not, be sufficient to warrant the exercise of the discre- tion which the court possesses. It is sufficient to say that in no case to be found in the books has any such reason as is spread upon the record in this case been admitted, in the absence of the consent of the defendant, to be a proper ground for discharging a jury after they have been sworn and impan- neled to try an indictment. "To hold now that the record of the proceedings of the court on the former trial amounts to a verdict of acquittal, is to do just what the court would have done at that time on the facts stated in the record. If I had any doubt as to the pro- priety of this course, I should resolve it in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion. But the weight of aU the authorities on the subject is, that tlie position of this case, as it stood when the juror was withdrawn, entitled the defendants, in the absence of their express consent to any other course, to a verdict of acquittal, and, therefore, entitles them to the action of the court at this time, on their applica- tion, to the same eflfect." Witnesses. A defendant, unable to pay the fees of witnesses necessary to establish his defense, may have them subpoenaed at the cost of the United States, by authority of section 11 of the act of Augusts, 1846.' A familiar provision of the Constitution " provides that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. » 1 AnU, 64. « Art. III., § m., 1. CRIMINAL PROCEEDINaS. jgg. Entering a nolle prosequi. The practice of entering a nolle prosequi, upon motion of tlie district-attorney, has been recognized in several decisions. In general, it is said that the prosecuting attorney has a right, before the trial is gone into, under leave of the court, to enter a nolle prosequi on an indictment, and such entry is no bar to a subsequent prosecution for the same offense." But after the jury are regularly impanneled and sworn to try the issue, and witnesses are sworn, the attorney has no right to enter a nolle prosequi; and an abandonment of the prosecution, under such circumstances, is equivalent to an acquittal.' And the district-attorney may, after a general verdict and before judgment, enter a nolle prosequi on one of several counts in an indictment, if he deems it advisable.' Sentence and execution. The punishments to which convicted offenders may be sentenced, are defined by the various acts of Congress. Those of a general character have been given in the previous volume, while the measure of the fine or imprisonment allowable for specific offenses, should be ascertained by consulting the Statutes at Large. Among other provisions of a general character, are enactments that no conviction for treason and other specified offenses, shall work corruption of the blood, or any forfeiture of estate ; that benefit of clergy shall not be al- lowed in capital cases ; that the punishment of death shall be by hanging, and the Ipody of the offender may be delivered to a surgeon for dissection." The punishments of whipping, and standing in the pillory, are abrogated.' By act of March 3, 1825," it is provided that "in every case where any criminal convicted of any offense against the United States shall be sentenced to imprisonment and confined to hard labor, it shall be lawful for the court by which the] pentence is passed, to order the same to be executed in any' State prison, or penitentiary, within the district where such' ' United States v. Shoemaker, 2 Mc- ' United States v. Peterson, 1 Woodb. Lean, 114 : United States v. Stovvell, 2 &M-, 305. ■'Curt. C. Gt., 153 : 8 Law Rep. N. &, * Act of April 30, 1790, 1 Ante, 17. 76 ; United States v. Hill, 1 £rock. ' Act of February 28, 1839, § 5, 1 ^Marsh., 156. Ante, 57. " United States v. Shoemaker, 2 Mc- ° 4 Stat, at L., 115. Lean, 114. 190 ORIGINAL JURISDICTION. court is holden ; the use of wMcli prison or penitentiary may be allowed or granted by the legislature of such State for such purposes ; and the expenses attendant upon the execution of said sentence, shall be paid by the United States." And by act of June SO, 1834,' jt is declared that " whenever any criminal convicted of any offense against the United States shall be imprisoned in pursuance of such conviction, and of the sentence thereupon, in the prison or. penitentiary of any State or Territory, such criminal shall in all respects be sub- ject to the same discipline and treatment as convicts sen- tenced by the courts of the State or Territory in which such prison or penitentiary is situated ; and while confined therein shall be also exclusively under the control of the officers hav- ing charge of the same, under the laws of said State or Terri- tory." An alternative power is conferred by the act of March 3, 1835.° It enacts that "whenever any person shall be con- victed of an offense against the United States which is punish- able by fine and imprisonment, or by either, it shall be lawful for the court by which the sentence is passed, to order the sentence to be executed in any house of correction, or house of reformation for juvenile delinquents, within the State or district where such court is holden, the use of which shall be allowed and authorized by the legislature of the State for such purpose. And the expense attendant on the execution of such sentence shall be paid by the United States." Sninmary trials. The preceding explanations apply to trials conducted ac- cording to the course of the common law. A different mode of proceeding in prosecutions for minor offenses is, however, authorized by an act passed June 11, 1864, entitled, "An Act to provide for the summary trial of minor offenses against the laws of the United States."' By the provisions of this statute. District Courts may hold special sessions at any time for the trial of minor offenses. Complaints against any master, officer, or mariner of any vessel belonging in whole or in part to any citizen of the United States, of any offense not capital or otherwise infamous, against any law of the United States made for the protection of persons or property engaged in ' 4 Stat, at L., 739. » 4 Stat, at L., 775. ' 1 Ante, 85. CRIMINAL PROCEEDINGS. igj commerce or navigation, may be tried, in the manner pre- scribed by the act, upon motion of the district-attorney. No indictment is requisite ; but a verified statement of the com- plaint, setting out the oflFense in such manner as clearly to ap- prise the accused of its character, must be presented to the court, and read to the accused, who may plead to or answer the same, or roalte a counter statement. The trial may there- upon proceed in a summary manner, and the case be decided by the court, unless, at the time of pleading, the accused shall demand a jury. The court cannot impose any greater punishments than imprisonment for one year, or fine limited to five hundred dollars, or both. Certain privileges of amend- ment and adjournment are given, and three peremptory chal- lenges may be claimed by the prisoner. CETAPTER XVII. NEW TRIAL. -The power of a cour<" of original jurisdiction to review the proceedings which have been had upon the trial of an issue, set them aside for irregularity or error, and direct the issue to be tried again, bears much analogy to the jurisdiction which is vested in an appeUate tribunal, Nethertheless, as the pro- ceedings continue in the original forum, it seems proper to treat the subject of granting new trials upon motion, in con- nection with the narrative of the other steps in the original conduct of the cause. The power to grant new trials. The power to grant new trials was conferred upon the United States courts, by section 17 of the Judiciary Act of 1789.' The language of the provision is : '* All the said courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law." Under this provision the power has been, in civil ac- tions at law, very frequently exercised. And it has been held that it fully extends to a civil action brought to recover a pecuniary penalty, notwithstanding the verdict was in favor of the defendant." Such verdict is not, like an acquittal upon a criminal charge, conclusive. And it is not determined by the decease of the judge before whom the original trial took place ; but his successor may review the proceedings and gran* a new trial. ° ' 1 Ante, 9. » Life & Fire Ins. Co. of New YorV " United States v. Halberstadt, Qilp. v. Wilson, 8 Pet, 291. 262. NEW TRIAL. 193 Application of the power in criminal cases. It would not be useful to review in detail the discussion which arose in the earlier cases upon the question whether the power to grant new trials extends to criminal cases. It pos- sesses historic rather than practical interest.' The rule is now well established (at least as to the Circuit Courts), that after a verdict of conviction the court may, for cause shown, set it aside and grant a new trial." And this may be done in capital cases, as well as in those of a less highly penal character.' But the power, in criminal cases, must be exercised upon the application of the prisoner, and for his benefit. If, on the first trial, a verdict of acquittal was rendered, a familiar pro- vision of the Constitution protects him from being put in jeopardy a second time. Error, as a ground for a new trial. Ifew trials are grantable " for reasons for which new trials have usually been granted in the courts of law." One of the leading reasons for which courts of law are acciistomed to grant a new trial is, that some error was committed by the judge who presided upon the first trial, in his decisions or in- structions. This has been recognized in many cases as an adequate ground for a new trial in the National courts. Thus, a new trial wUl be granted where incompetent and material evidence has been admitted against the defeated party, not- vidthstanding his timely objection •* or where competent evi- dence has been improperly excluded.' So, if the court errs in the instructions given to the jury," or if the court refuses to instruct the jury upon what is really a question of law, and submits the question to them as a question of fact, such error is ground for a new trial.' But the error complained of must be one which may have caused substantial injury to the defeated party. For, although generally it will be a ground for a new trial if illegal testimony is admitted — or there was any misdirection on the law to the ' See Conhl. Tr.. 5 ed., 641. 429! And see United States v. Pei-cy,, " United States «. Conner, 3 McLean, 9 Wheat., 579 ; United States v. Caiup- 573 ; United States v. Harding, 1 Wall. bell, 4 Crandi, 658. Jr C. Ct, 127; 6 Pa. Law J.. 14; * Tvigg v. Conway, JIem.pst., 638. United States v. Macomb, 5 McLean, ' Buck u. Hermance, 1 Blotch/., 322. 280. . ' Scott V. Lunt, 7 Pet, 596. '= United States v. Keen, 1 McLean, ' Emerson v. Hogg, 2 Blatchf., 1. Vol, 11—13 194 ORIGINAL JURISDICTION. jury — yet if the illegal testimony has not prejudiced the case, ox the objection was merely technical, or the evidence became immaterial, or the verdict can be justified vrithout it, or the rejection was right, though on different grounds, or the incom- petent evidence was not material, or no injustice was done by it, or was cumulative, or not controverted, or the fact waf< otherwise proved, or if the misdirection was on an immaterial point, or did not affect the verdict, and justice appears to have been done, or if the point was frivolous, a new trial will not be ordered.' The mere admission of incompetent testi- mony, or the mere mistake or misdirection of the court in a matter of law, is not, of itself, sufiicient reason for granting a new trial, if, in fact, the verdict ought to be exactly what it has been, upon the whole evidence and law applicable to the case, and the party moving for a new trial has suffered no in- justice or prejudice thereby." And although the evidence complained of appears incompetent, yfet, if it was not objected to when offered on the trial, the error is not ground for order- ing a new trial. ° A new trial will not be granted merely because counsel have been indulged in too great latitude in arguing as to the inferences to be drawn from the evidence.' Irregularities or misconduct affecting' tlie jury. Disqualifications of jurors, which should form grounds of challenge, ought to be so interposed, and not reserved as grounds for moving for a new trial. Thus, it is not ground for setting a verdict aside, to show that one juror was an alien, although the fact was not known to the objecting party when the juror was sworn. The court may, indeed, set aside a verdict after discovery of the positive unfitness of a juror, such as a party could not by ordinary diligence have ascer ' Allen V. Blunt, 2 Woodb. & M., 121, acknowledging the receipt of an appli- 152, 154. cation for a patent, and introduced to " Matter of Marsh, 6 Laif iJep., 67. show plaintiff's invention at the tinae " Eussel V. Union Ins. Co., 1 Wash. of its date, though doubts may be en- C. Ct.', 440 ; Farmers' Loan & Trust tertained of its admissibility, if other Co. of New York v. McKinuey, 6 Mc- evidence is subsequently offered, prov- Lean, 1 ; United States v. Flowery, 1 ing plaintiff's invention earlier than the jSpragtte, 109 ; 8 Law Rep., 2bS. date of such letter. Allen v. Blunt, 2 A new trial will not be granled, be- Woodb. & M., 121, 128. cause of the admission in evidence of a * United States v. Flowery, 1 letter of the commissioner of patents, Sprague, 109 ; 8 Law Rep., 258. NEW TRIAL. 195 tained, and. which there is reason to believe has actaally af- fected the verdict. But the ordinary disqualifications of ju- rors, and objections capable of ascertainment by ordinary care, must be interposed at the time for challenging, and can not be raised after verdict.' But misconduct or irregular 'proceedings upon the part of the jury, such as may by any reasonable probability have afiected the verdict, may justify the court, in the exercise of its discretioii, in awarding another trial.* The impropriety alleged must be satisfactorily proved, in order to lay the foundation for t"he interposition of the court ; but where the irregular conduct is established, it is not necessary that it should certainly appear that it influenced the jury. It is sufficient that the irregularity appears to be of such a character that it might have affected the impartiality of the proceedings.' Upon the other hand, it is a satisfactory answer to the motion to show that the defeated party cannot have been prejudiced in any substantial right by the occurrence alleged. Thus, it is not ground for a new trial that the jury took out with them, through mistake, a deposition which was irrele- vant and immaterial to the issue on which the judgment was given ; except, perhaps, when it was delivered to the jury by the counsel of the party in whose favor the verdict was given.* So, the fact. that some of the jurors have read cuiTent news- papers during the trial, improperly, if in point of fact they read nothing to affect the verdict, is not ground for a new trial, even in criminal cases.' Also, for the jurors, while deliber- ating on their verdict, to take refreshments, particularly ardent spirits, without leave of the court, may be misbehavior in them ; but their so doing will not affect the verdict, unless the refreshments were supplied by the party in whose favor the verdict was given •' or,, where leave was given, unless it is shown that the indulgence was grossly abused, and operated injuriously to the defeated party.' ' Hollingsworth v. Duane, WaU. 0. ' United States v. Gibert, 2 Svmn., Ct., 147. Compare United States v. 19; United States v. Reid, 12 How., Pries, Z Dall.^ 515; Northampton In- 361. sursrenis' Case, Whart. St. Tr., 458, 598. » Harrison v. Rowan, 4 Wash. 0. Ct., ' United States v. Gillies, Pet. U. Ct., 32. 159 ; 3 Wheel. Cr. Cas., 308. ' United States ». Q-ibert, 2 Sumn., ' Jolmson V. Root, 2 Fish., 291. 19. * Lonsdale i;.Brovvn,4 Wash. 0. Ct,148, 196 ORIGINAL JURISDICTIOlSr. Likewise, if before a verdict lias been agreed upon, one of the jury separates from his fellows by mistake, but afterwards rejoins tliem, ,and there is no room for any unfavorable pre- sumption, the court will not, on that ground alone, award a new trial.' In respect to the mode of proving these irregularities, the rule very strictly followed in many of the States, that affida- vits or declarations of the jurors must not be received to im- peach the verdict, cannot be considered established in the Na- tional courts." It has, however, been held that a juror or offi- cer cannot be compelled to testify to his own misconduct.' Verdict against evidence. Akin to the objection that the jury have conducted them- selves improperly, is the complaint that they have obviously erred in their determination of material questions of fact sub- mitted to them. When the verdict is clearly against the evi- dence ; when it is contrary to plain principles of law, as laid down by the court, and to unquestioned facts proved on the trial ; so that it is obvious that the jury either were influenced by passion or prejudice, or fell into a plain mistake, the court will set the verdict aside, and grant a new trial.' But, it is not a sufficient ground for a new trial that the verdict was against the weight of evidence, provided there was evidence on both sides which was contradictory, and it does not clearly appear that the verdict was given by mistake, or any willful abuse of power." ' Bun-ill V. Phillips, 1 Gall., 360. case, the power of the court was recog- ' It, was applied in Hollingsworth v. nized and vindicated, and the principles Duane, Wall. C. Ct, 147. But in governing the exercise of it explained United States i;. Reid, 12 How., 361, by Knowlks, D. J. the Supreme Court refused to lay down " Carr v. Gale, 3 Woodb. AM. 38 • any absolute rule for the exclusion of Fearing v. De Wolf, Id., 185 ; Macy v. the testimony of jurors as to miscon- De Wolf, Id., 193 ; Aiken v. Bemis Id' duct in the jury-room, but examined 348 ;. Wijetmore v. Murdock, Id., 380 : such evidence in the particular case, Davison v. Sealskins, 2 Paine ' 324 • and held it did not) show ground for a Stanley v. Whipfile, 2 McLean 35- new trial. Blauohard's Gi-Ui Stock Tm-iiin<'' Fac- ' Howard v. Cobb, 3 Day. 309. tory v. Jacobs, 2 Hlatchf., 69; stker v. • Wilkinson v. Greely, 1 Curt. 0. 01., The Potomac, 18 How. Pr., 185 • Sliaw 63; Childs u. Somerset & Kennebec R. «. Collier, /d, 238 ; Walker r Smith 1 R. Co., 10 Law Rep. N. &, 561 ; Uni- Wash. C. C't., 202; F(.riiian v. Miller' 5 ted Slates 1', Duval, Gilp., 356, 389; Jl/cieare, 218; Blaagv. Phoenixins Co Rlocum 71. Lurty, Hempst, 431. See 3 Wash. C. Ct.. 58. ' '' also the i ecent case . of Hunt v. Pooke, The court refused to set aside a ver- 1 Ahb. U. S., 556, where, though the diet for defendaiu in a penal action, as relief was denied, on ihe lacts of the being against evidence, in a case turning NEW TRIAL. 197 Excessire dajnages. There is a power in the court, upon a motion for a new trial, to set aside a verdict upon the ground that the damages awarded to the plaintiff are excessive.' The power is, how- ever, exercised, in the N"ational courts, with very great reserve and caution, particularly in actions for wrongs. In these cases, the question of damages is regarded as falling peculiarly within the province of the jury ; and the court will not disturb the award simply because it is unsatisfactory.' To warrant such relief it must appear that the amount which the jury has awarded is very excessive and unreasonable, or plainly ex- orbitant and outrageous.' The circumstances of the case must show that the jury have made some important mistake in the rules of law applicable, or in their mode of computation, or that they have been actuated by passion or prejudice, or some improper feeling.' When, however, this is apparent from a review of the whole case, the injured party may become entitled to a new trial of the issue, and not merely to a remission of the amount deemed excessive. The error, it has been said, may sometimes be ob- viated by allowing the prevailing party to remit the excess, when the court is satisfied that the error has resulted from oversight or mere inadvertence ; yet, when the finding is not only contrary to the evidence, but in direct contravention of the charge of the court, the difficulty cannot, in general, be so remedied. Parties have a right to an impartial trial according to law ; and, when it appears to the court that they have not had it, the verdict must be set aside, and a new trial granted," upon the credibility of witnesses, and to exercise it. Walker v. Smith, 1 Wash. which was- properly submitted to the O. Ct. 202. jury upon that question, merely be- ' Walker v. Smith, 4 Dull, 389 ; 1 cause the court would have regarded Wash,. 0. Ct, 152. their credibih"ty differently from -what ' Allen v. Blunt, 2 Woodb. & M., 121, -the jury have done. 149; Aiken i;. Bemis, 3 /d, 348 ; Whit-. ' The power probably extends, in ex- ney v. Emmett, Baldvi., 303, 325. treme cases, to setting aside a verdict * Thurston v. Martin, 5 Mas., 496 ; for damages which are plainly inade- Alden ii. Dewey, 1 Story C. Ct, 336; quate. We find, however, no reported 3 Law Rep., 383 ; Allen v. Blunt, 2 case in which such power has been as- Woodh. & M., 121, 149; Palmer v. serted, and in the only one in which it Fiske, 2 Curt C. Ct, 14; Stanley v. appears to have been involved, the Whipple, 2 McLean, 35; Stephens v, court, uponthe facts of the case, refused Felt, 2 Blatchf., 37. ' Johnson v. Root, 2 Fish., 291. 198 ORIGINAL JURISDICTION. Surprise, Newly discoTered eridence. The fact that the defeated party was taken by surprise, by some step of his adversary, or other untoward occurrence, upon the trial, may warrant granting a new trial. But to war- rant such relief he must have employed due diligence in re- spect to the- matter involved in the alleged surprise, and there must be no fault imputable to him in respect thereto.' And when a party finds himself surprised by matters oc- curring at the trial, he should ask for a continuance, at the time, on that ground. If he makes no such application, but elects to go on with the cause, he is un'derstoodto waive the surprise. He cannot be permitted to take his chance with a jury, and, if unsuccessful, then to move for a new trial on the ground of surprise." i Upon analogous principles, new trials are granted because the party defeated upon the first trial has since discovered new evidence in support of his case. The power to grant relief on this ground is unquestionable ; though it has not been the subject of much extended discussion in the adjudications. They are more largely occupied in stating the limitations and conditions of the rule. One of these is that new evidence which is merely "cumulative," that is, additional proofs of some fact which was asserted and substantiated by some evi- dence on the former trial, is not enough. It must be evidence of a new fact ; and one of such a character as may materially vary the complexion of the case.' Another is, that evidence operating merely to impeach or contradict a witness does not warrant a new trial.* And a third restriction is, that a new trial will not be granted upon the ground of newly discovered evidence which the party might, by the use of reasonable diligence, have obtained for the first trial," '■Whetmore «. Murdoolc, 3 Woodh. & Aiken v. Bemis, Id., 34S ; Whetmore M., 380; Henckley ■!;. Hendriokson, 5 v. Murdock, Id., 380, Ames w. How- McLean, 170 ; Foote v. Silsby, 1 ard, 9 Sumn., 482. Blalchf., 445 ; Meeker v. Wilson, 1 * Carr v. Gale, 1 Curt. C. Ct, 384 ; Oall, 419, 426; Allen v. Bhint, 2 United States v. Potter, 6 McLean, Woudb. & M., 121 ; Palmer v. Piske, 2 182. Curt. C. Ct., 14. ' Washbnrne v. Gould, 3 Story C. Ct, "Ames V. Howard, 1 Snmn., 482; 122; 1 West. Law J., 4:S5; 7 Law Rep., 3arr V. Gale, 1 Cart. C. Ct., 384. 276; Palmer v. Fiske, 2 Curt. C. Ct., ' United States v. Cornell, 2 Mas., 91 ; 14 ; Prevost v. Gratz, Pet. C. Ct., 364. Macy V. De Wolf, 3 Woodb. & M., 193 ; NEW TRIAL. 199 Tlie motion, aud its effect. Motions for new trial are addressed to tlie sound discretion of tlie court, and are granted or denied, not as matter of strict right, but as tlie substantial justice of tlie case may appear to require.' The party who applies must establish a case for relief, affirmatively. K the judges composing the court before which a motion for a new trial is heard are divided in opinion, the weight of authority is that the motion fails ; no new trial is granted." ' McLanahan u. Universal Ins. Co., 1 How., 279; \ Burr. Pr., 2 ed., 427; Pet. 170; Calbreath v. Gracy, 1 Wash. Gra. Pr., 2 ed., 348; Conkl. Tr., 4 ed., C. Ct., 198 ; Denniston v. MoKeen, 2 417-425. McLean, 253 ; United States v. Martin, ' Lanning v. London, 4 Wash. C. Ct., Id., 256 ; Benedict v. Davi.^, 3 Id., 347. 332 ; Goddard v. Coffin, Daveis, 381. Upon the question whether a motion In one case, however, Harrison v. Eo- for a new trial can be made upon a bill wan, 4 Wash. O. Ct., 32, it was held of exceptions, and, ailer it has been de- that when the judges of the court are nied, a writ of error can be maintained divided in opinion upon the question on such bill, see Brewster v. Gelson, 1 whether the verdict is supported by the Paine, 426 ; Cunningham v. Bell, 5 Mas., evidence, a new trial ought to be 161, 173 ; United States v. Dashiel, 4 granted. Wall, 182 ; United States v. Pearce, 6 CHAPTER XVIII. STATTJTOET EEMEDIES. Befoee closing this division of the volume, relating to pro- ceedings in the exercise of original jurisdiction, some expla- nations are proper upon the more important of the remedies which are given and particularly regulated by acts of Con- gress, and do not come within the description of actions or suits. The remedies of this class, deserving of special men- tion, are — BanTcruptcy ; Extradition ; Habeas Corpus. Bankruptcy. The time has not yet arrived for framing an account of the A.merican practice in bankruptcy, under the Act of 1867, w^hich shall be brief enough to enter within the limits of a work like the present, yet suflaciently full and comprehensive to afford a satisfactory guide to the practitioner. In the first volume a chapter has been given,* exhibiting the nature' and scope of the jurisdiction in bankruptcy, and showing under what circumstances relief may be obtained by a resort to either of the proceedings aiithorized by the act. The previous vol- ume also contains the Bankrupt Act itself,' and the general or- ders in bankruptcy, framed pursuant to its provisions by the Supreme Court, are given at length. Since the publication of the previous volume, two supplementary acts have been passed, which shhould be considered in. connection with the original Act of 1867. The first of these, the act of June 30, 1870, enacts that the jurisdiction conferred upon the Supreme Courts of the Terri- ' 1 Ante, 357. » 1 Ante, 96. See, also, an amendatory act of July 27, 1868, Id., 124. STATUTORY REMEDIES. 201 tones, by the act of 1867, " may be exercised, upon petitions regularly filed in ttat court, by either of the justices- thereof while holding the District Court in the district in which the petitioner or the alleged bankrupt resides, and said several Su- preme Courts shall have the same supervisory jurisdiction over all acts and decisions of each justice thereof as is conferred upon the Circuit Courts of the United States over proceedings in the District Courts of the United States by the second sec- tion of said act.'" And the same statute further provides, that "in case of a vacancy in the office of district judge in any district, or in case any district judge shall, from sickness, absence, or other disa- bility, be unable to act, the circuit judge of the circuit in which such district is included may make, during such disability or vacancy, aU. necessary rules and orders preparatory to the final hearing of all causes in bankruptcy, and cause the same to be entered or issued, as the case may require, by the clerk , of the District Court."" The second of the acts above referred to, declares that the second clause of section 33 of the act of 1867, as amended by section 1 of the act of 1868, "shall not apply to those debts from which the bankrupt seeks a discharge which were con- tracted prior to the first day of January, eighteen hundred and sixty-nine."' And the same statute further provides, that the clause in section 39 of the act of 1867, which now reads " or who, being a banker, merchant, or trader, has fraudulently stopped or suspended and not resumed payment of his commercial paper within a period of fourteen days,", shall be amended to read as follows: " or who, being a banker, broker, merchant, trader, manufacturer, or miner, has fraudulently stopped payment, or who has stopped Or suspended and not resumed payment of his commercial paper within a period of fourteen days."* ' Section 1. 16 Stat, at L., 173. to perform any of the other acts which ' Section 2. 16 Stat, at L., 174. a judge of any court of the United ' Section 1. 16 Stat, at L., 276. Slates is authorized to do by the third * Section 2. 16 Stat, at L., 276. section of an act entitled •' An act to An act approved January 23, 1869, prescribe the mode of obtaining evi- also provides, that " any register in dence in cases of contested elections," bankruptcy or notary pnblic, l-esident -approved February nineteenth, eigli- jn a Congressional district the right to teen hundred and fifty-one." 15 Stai. represent which is contested, is hereby at L., 267. authorized to take the testimony and 202 ORiaiNAL JURISDICTION. The original act and the general orders are intended to constitute, with the "forms" which have been oflBlciallypro mnlgated/ an authoritative guide, designed to be complete, for the proper procedure. Such, however, is the nature of the remedies afforded, and the frequency with which resort to them is had, that a large body of adjudications has rapidly ac- cumulated, too diverse and conflicting to be harmonized in any one brief and simple statement. Time must be allowed, — assuming that the remedy is, this time, to be permanently preserved in our jurisprudence, and not, as in two former ex- periments in introducing it, to be soon abrogated, — ^for the pro- cedure to be assimilated and harmonized in the courts. Meantime, we furnish the original sources of information ; and the reader is referred, for additional knowledge, to the sev- eral publications in which the numerous adjudications under this head have been made the subject of special explanation. The principal of these are the following : The BanTcrupt Law of the United States. By Edward Avery and George M. Hobbs ; which embraces, in its notes, references to English and American statutes and decisions ; BanJcruptcy Practice. By Thorndike Saunders ; contain- ing a digest of decisions under the act of 1867, and the amend- atory act of 1868 ; Law and Practice in Bankruptcy. By 0. F. Bump ; giv- ing notes of decisions under the act ; The BanTcrupt Law of the United States. By Edwin James ; largely illustrated by citations from decisions under the English bankmptcy acts ; and GazzarrC s Treatise on the Bankrupt Law. By Audley W. Gazzam ; which is intended chiefly for business men, and con- tains notes of the latest decisions. Extradition. The cases in which, or the crimes for which, an offender escaping into one of the States of the Union from another State, or from the territory of a foreign government, may be delivered up, upon application of the sovereignty whose laws he is charged with violating, have been defined in a chapter entitled Extradition., in the former volume. The procedure upon such applications is prescribed in outline by two ' See Post, p. 469. STATUTORY EEMEDIES. 203 statutes applicable to domestic and foreign applications, re- spectively. The act und^r wHch. proceedings for the return of an offender from one of the United States to another, are taken, is that of February 12, 1793.' Its provisions do not contem- plate any proceedings in court in the first .instance ; though the regularity and validity of the proceedings, and the liability of the offender to be returned to the State from which he has fled, for trial, may be drawn in question in the courts within the State where the caption isj made." The statute provides that "whenever the executive authority of any State in the Union, or of either of the Territories northwest or south of the river Ohio, shall demand any peJrson as a fugitive from jus- tice, of the executive authority of any such State or Territory to which such person shall have fled, and shall moreover pro- duce the copy of an indictment found, or an affidavit made before a magistrate of any State or Territory as aforesaid, charging the person so demanded, with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged fled, it shall be the duty of the executive authority of the State or Territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive au- thority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory. "Any agent, appointed as aforesaid, who shaU receive the fugitive into his custody, shall be empowered to transport liim or her to the State or Territory from which he or she shall have fled." The manner of proceeding to enforce a treaty stipulation for the return of persons who have fled from foreign coun- tries, to escape triai for crime, is prescribed by the act of • 1 Stat, at L., 302. ff^p.. 57; Re Kaine, 10 N. T. Leg. Obs., • Ikp. Smith, 3 McLean, 121 ; 6 Lap 257 ; 14 Bow., 103. 204 ORIGINAL JURISDICTION". August 12, 1848.' Section 1 of the act declares that whei. such treaty stipulation exists, any of the justices of the Supreme Court ' or judges of the several District Courts, or judges of the State courts, or commissioners authorized so to do by any of the courts of the United States," may, upon com- plaint made under ,oath or affirmation, charging any person found within the limits of any Statej District, or Territory, with having committed within the jurisdiction of any such foreign government any of the crimes enumerated or provided for by any such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such judge or commissioner, to the end that the evidence of criminality may be heard and considered. "If, on such hearing, the evidence be deemed sufficient by him to sustain the charge under the provisions of the proper treaty or convention, it shall be his duty to certify the same, together with a copy of all the testimony taken before him, to the' sec- retary of state, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of said treaty or convention ; and it shall be the duty of the said judge or commissioner to issue his warrant for the commit- mznt of the person so charged to the proper jail, there to re- main until such surrender shall be made." It has been held to be highly proper, if not indispensable, that a formal demand for the surrender of the fugitive should be made upon the executive authorities of the, government, and a mandate of the president obtained, before the judiciary is called upon to act.* The proceedings may, however, per- haps, be sustained, if the requisition is made before the war- rant for the surrender is granted ; the authorities are not agreed that it must have been issued before the examination.' ^■9 Stat, at L., 302. Ait- Gen., 240; Me Kaine, 14 JIow., ' The circuit judges should now be 144. added, in accordance witli subsequent ° A requisition for a fugitive is not legislation. necessary to* a preliminary examination ' Where the watrant of arrest is re- upon which the evidence of criminality turnable before a commissioner for is to be heard and considered but with hearing, it should be one who has been a view only to the surrender after the previously designated by the Circuit ascertainment of the facts showin"' the Court under which he holds his office party charged to be in a condition as commissioner lor that puipose. See which justifies the apprehension and Be Kaine, 14 How,, 144. commitment for trial, according to the *J. Daiichy, 3 Ball, 321 ; * Saltmarsh v. Tuthill, 12 How., 387 : United Slates v. More, 3 Crancli, 159 ; Tturbide v. United States, 22 Id., 290. Ray V Law, Id., 179; Durrosseau v. 'United States v. Noui'se, 6 Pet, •United States, 6 Oraneh, 307. The 470, 495. latter case allows a grant of appellate " Hudgins v. Kemp, 18 How., 530. power to be ascertained from the evi- ' Kelsey v. Forsyth, 21 How., 8o. dent intent of an act, without requiring express words. *218 APPELLATE JUEISDICTION. a cause of equitable nature is properly carried up by appeal, notwithstanding the laws of the territory in the courts of which it originated have abolished the distinction between actions at law and suits in equity, and have required all cases to be removed from an inferior to a higher court by writ of error and not by appeal. Such laws cannot regulate the process of the Supreme Court.' Appearance. Amendment. The principle above explained, which requires a grant of authority from the sovereign pojver, in all cases, as the foun- dation of appellate jurisdiction in the National courts, is not, however, carried so far as to prevent a waiver of defects in the proceedings to invoke such jurisdiction. If jurisdiction to review the decision below is vested by law in the court ap- plied to for such review, it may be competent for the respon- dent, either by a voluntary appearance, or a consent to an amendment, to cure a defect or irregularity in the proceedings taken to obtain the review, and render it proper for the court to exercise its general appellate power, notwithstanding it has not been in all respects properly invoked. Thus it is held that entering a general appearance upon a writ of error or appeal, without giving notice of any motion to dismiss for irregularity in the citation, is a waiver of such irregularity, and an admis- ' si on of due notice." But appearance does not cure a substan- tial defect in the writ, of error (such as not naming a return day for the writ), or an omission to file a transcript of the rec- • ord at the term next succeeding the issuing of the writ or the taking of the appeal.' Upon somewhat similar principles it has been held that a resort to notice by publication of the institution of an appeal, may be aided by the fact that the party to be notified has will- fully withdrawn himself from aictual notice. Although notice ' See Brewster W.Wakefield, 22 ^ow., " Biickino-ham v. McLean, 13 Hoio 118; Reddall u. Biyan, 24: How., 420. 150; Wood v. Lide, 4 Cranch, 18o"; B'lt as to the rule in this respect when Penhallow v. Doane, 3 Ball, 54. ' the object is to review a decision of the The object of a citation on appeal is highest court of a State, seerVerden v. notice; and where, in point ol fact by Coleman, 22 How., 192; Lytle v. Ar- agreement of parties, there is actual kan'ias, Id., 193. and full knowledge by the appellee ot That the jurisdiction of the Supreme the other side's intention to appeal, a Court was not affected by the ordman- citation may be held unneressary. ces of secession, see White v. Cannon, United Slates v. Gomez, 1 Wnll. 690. 6 WuU., 443. • Carroll v. Dorsey, 20 Bow., 204. . GENERAL PRINCIPLES. 31^ :to the defendant is essential to the jurisdiction of all courts, yet, if a party duly served with notice in a subordinate court, after he has appeared and answered to the suit, and secured an erroneous judgment in his favor, voluntarily absents him- ,8elf from the jurisdiction of the appellate tribunal, so as to render it impossible to give him personal notice of an appeal, he cannot impeach the judgment of the appellate court upon the ground that the notice of the appeal was only served by publication, when that mode of service is sufficient in such case by the law of the jurisdiction from which he has with- drawn. Actual notice ought to be given in all cases where it is practicable, even in appellate tribunals ; but whenever per- sonal service has been rendered impossible by the removal of the appellee or defendant in error from the jurisdiction, ser- vice by publication is sufficient to give the appellate tribunal jurisdiction of the subject and the person, provided it appears in the record that personal notice was given in the subordinate court, and that the party there appeared and litigated the merits of the controversy." And, in respect to allowing amendments in appellate courts, while void proceedings cannot be turned into valid ones by amendment, even upon consent, yet when the proceed- ings are stifficient to give jurisdiction, an amendment of irreg- ularities or defects is not beyond the power of the court. Thus a writ of error cannot be amended in substance in the Supreme Court. For that court has no appellate power, on writ of error, over the judgment of the court below, unless the judgment is brought before them according to the act of Congress, And the writ of error is not mere matter of form, but is matter of substance prescribed by law and essential to the appellate ju- risdiction. If it were amended in the Supreme Court, it would be a new writ, made by that court ; and not one issued by the officer appointed by law.' So, if the transcript of the record on an appeal show a want of jurisdiction in the court below, the power of the appellate court to review cannot be sustained by an amendment of the record made in that court." But an appellate court may amend an error apparent on the face of the record, if there be sufficient in the record ' Nations is. Johnson, 24 How., 195. " Montgomery?;. Anderson, 21 How., • Hodge V. Williams, 22 Row., 87. 386 ; Ballance v. Forsyth, U., 389. 230 APPELLATE JUECSDICTIOK to amend by. ' So defects in the pleadings may be amended in the appellate court, by consent of counsel, and this may be done, even after tbe cause in that court has been dismissed, and it may then be reinstated." There is nothing in the nature of an appellate jurisdiction, proceeding according to common law, which forbids the court which has acquired the right to exercise it to grant amendments. And section 32 of the ju- diciary act of 1789, allowing amendments in the National courts, is sufficiently comprehensive to embrace causes of ap- pellate, as well as original jurisdiction." Thus, where a writ of error was regularly tested, and by indorsements it appeared when it was filed below, and when it was filed in the Supreme Court, but the return day was left blank, the Supreme Court held that it might be amended by inserting the proper return day.* What is a "final" judgment. Several of the statutes defining the appellate powers of the National courts restrict them to the review of '■'■ final judg-- ments or decrees." Indeed, this restriction is so common in statutes conferring appeals, that it may be said to be a general feature of appellate jurisdiction, to require a final decision in the court below before allowing a review above.' But the question, what judgments or decrees are "final," haa proved somewhat embarrassing ; nor is it practicable to gen- eralize the numerous decisions upon it into any one rule which wiU guide the practitioner unhesitatingly. A statement of the more instructive decisions in the National courts, upoA the subject, is here given ; though, upon questions undetermined by such adjudication, the practitioner will find it advantage- ous to consult decisions of State courts under Sta,te statutes imposing the same restriction on the exercise of appellate power. ' Sears v. United Stares, 1 Gall., 257. provisions of the judiciary act of 1789. ' Jackson v. Ashton, 10 Pet., 480. Boyle v. Zacharie, 6 Pet, 648. ' Ksnnedy v. Q-eorgia State Bank, 8 For the distinction between a judg- How., 586 ; Anon.. 1 Gall., 22 ; Smith ment which is " final," in the sense of V. Jackson, 1 Pain^, 486. exhausting the powers of the particu- * Mossman v. Higginson, 4 DaU., 12. lar court in which it is rendered, and ' A writ of error only lies from a one which is " definitive," in the sense Jimdl judgment at the common law ; of being above any review or contin- iuid the same rule has been established gency of reversal, — see United States in reference to cases to be brought be- v. The Peggy, 1 Cranch, 103 • Weston fore the Supreme Court by the express v. Charleaton, 2 Ptt, 449. GENERAL PRINCIPLES. 221 It should be observed, in advance, tlxat the spirit of the rule which forbids an appeal or writ of error, before a "final" decision has been reached below, equally disallows an indirect review before such decision is made, as by granting a manda- mus. And the rule has been recognized to this extent by the Supreme Court. That court will not, in the exercise of its or- dinary appellate jurisdiction, take cognizance in any manner of a cause, until a final judgment or decree, in the inferior court, has been made. Though the merits of the cause may have been substantially decided, yet, while anything, though merely formal, remains to be done, the Supreme Court cannot pass upon the subject. For, if from any intermediate stage in the proceedings, an appeal might be taken to the Supreme Court, appeals might be repeated to the great oppression of parties. So, if that court might interpose by way of manda- mus, in the progress of a cause, and order a judgment or de- cree, a writ of error might be brought to such judgment, or an appeal prayed from such decree, and the judgment or decree, though entered in pursuance of the mandamus, might be after- wards reversed. Such a proceeding would, as remarked in one decision of the court, subvert our whole system of juris- prudence. ' In respect to what judgments at law are " final," it is held that a decision sustaining a demurrer to a pleading is not final if it leaves open any further question for litigation. In one case calling for the application of the rule, the defendants below demurred to a part of plaintifls' reply ; and judgment was rendered in their favor on the demurrer. They also moved to strike out another portion, which was granted. There still remained, however, some material allegations in the reply. It was held that error would not lie to review the cause, as there was not a final judgment." In another case presenting a similar question, the defend- ants to an information in the nature of a quo warranto, filed in the District Court against persons exercising corporate franchises, pleaded an act of incoi'poration ; to which the plaintiff replied that this act was repealed ; and the defend- ants rejoined that the appeal was without notice to them, and without any evidence of misuse of the franchise ; to which the ' Life & Fire Ins. Co. of N. T. v. » Holcombe v. McKusiok, 20 Row;, Adams, 9 Pet., 573. 552. 222 APPELLATE JURISDICTION. plaintiff demurred. It was decided that the judgment of the court sustaining the demurrer was not a final judgment which could be reviewed by the Supreme Court, for the parties were not prevented by it from a' further exercise of the franchises. In order to make the decision a final one, the court should have proceeded to adjudge that the plaintiffs in error be excluded from exercising any of them in future.' Neither a judgment of nonsuit," nor a refusal of the court below to grant a nonsuit,' is reviewable on error. A judgment by default, if complete and absolute, is deemed final. But when a judgment is entered leaving the amount un- determined, under a rule of court authorizing the plaintiff in ac- tions on contract to sign judgment against the defendant, when he omits to file an affidavit of defense, such judgment is only in- terlocutory, and becomes final when the appropriate proceed- ings shall be had for ascertaining the sum to be recovered. Hence, if, under such a rule, judgment by confession is entered, it will not be deemed final, unless there are con- curring circumstances which denote the intention of the parties that it shall be final and complete as between them. * A judgment of a Circuit Court, simply reversing a decision of a District Court, is not a final judgment.' So, a decision below granting a new trial, either upon error or motion, is not final ;" but if the judgment brought up is in express terms a judgment affirming a judgment of an inferior court, it is re- viewable.' To be reviewable, the judgment below "should have been formally completed. Where a district judge refused to sign the record of a judgment rendered in a case by his prede- cessor in office, and by the law of the State, and the rule adopted by the District Court, the judgment, without the sig- nature of the j-udge, could not be enforced, it was held not a final judgment, on which a writ of error could issue for its re- versal.' But it is not a conclusive criterion, whether a defini- ' Miners' Bank v. 'United States, 5 Tracy v. Holoomb, 24 How., 426 ; now., 213. Brown v. Union Bank of Florida, 4 ' Evans v. Piiillips, 4 ^Vheat, 73. Id., 465 ; Doswell u. De La Lanza, 20 ' Gelston v. Hoyt, 3 Wheat, 246. Id., 29. * ^Vllitake^ v. Bramson, 2 Paine, 209. ' Sparrow v. Stron. ' United States v. Evans, 5 Crunch, Hollingsworlh, ■ 1 Pet., 165; United 280; Welsh v. Mandeville, 7 Id., 152; States V. Buford, 3 Pet., 12 ; Matheson Wylie v. Cox, 14 Bow., 1 ■ Connor v. V. Grant, 2 Bow., 263 ; Morsell v. Hall, Peugh, 18 Id., 394 ; Dean v. Mason, 2U 13 Id., 212; Jenkins «. Banning, 23 Id., 198. Id., 455. " Woods ii. Young. 4 Crunch. 237 ; Where the amount of salvage to be Barrow v. Hill, 13 How.. 54; Thomp- deoreed in a given case is a matter of son v. Selden, 20 Id., 194; McFaul v. discretion, and a subject upon which Ramsey, Id., 523. different minds would not be likely to ° Henderson v. Moore, 5 Crunch, 11 ; fo]m the same conclusion, the Supreme Marine Ins. Co. of Alexandria v. Court will not reverse the decision of Young, Id., 187 ; Barr v. Giafz 4 the Circuit Court, unless it manifestly Wheat, 213; Blunt v. Sriiith. 7 Id appears that some important error has 248 ; Brown t>. Clarke, 4 Bom.. 4 • been committed. The Sibyl, 4 Wheat. Warner v. Norton, 20 Id., 448 ; Ui'iiteil 98- States vs Gibert, 2 Sumn., 19. GENERAL PRINCIPLES. g31 In the application of this general principle, however, some distinction exists between the practice on writ of error and on appeal. And on the fundamental question whether the decis- ion below was matter of discretion or matter of right, much may depend upon the local law of the State or district. Rules of decision in appellate courts. Some general principles of decision have been recognized in the National courts possessing appellate power, which ap- ply to several methods of review, irrespective of the mode in which the controversy is brought before the superior court. One of these principles is that the matter to be examined in the appellate court is the decision made in the court below, not the reasons assigned for it. If the decision is correct, it will not be reversed because erroneous or insufficient reasons were stated in support of it. The' question is, was the judgment correct ; not as to the ground on which the judgment professes to proceed.' Cases may arise, however, in which a judgment of a court below, though correct when originally rendered, may become questionable in consequence of a change in the law in obedi- ence to which it was rendered. In these cases it is necessary to consider whether the change in legislation affects the rights reaUy in controversy. If those rights were vested under the former law, they may remain unchanged and unaffected by the new one. But if the new law attaches to the interests in question, it may modify the decision in a court of review. For although it is, in general, true that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not ; yet if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes, and positively changes the rule which governed in the first decision of the case, the law must be obeyed, if constitutional ; and, although the judgment below was right- ful when rendered, yet if it cannot be affirmed without violat- ing the law, it must be set aside by the appellate court.' So, if the law, under which a sentence of forfeiture was inflicted, expire, or be absolutely repealed, after an appeal, and before • MeCluny v. Sillimati, 6 Wheat., 15 flow., 451 ; United States u. Buford, 3 598 ; Davis v. Packard, 6 PH., 41 ; Pet, 12 ; Sturgis v. Clougfh, 1 WaU., 269. Corning v. Troy Iron & Nail Factory, " The Peggy, 1 Cranch, 103. 232 APPELLATE JURISDICTION. sentence by the appellate court, the sentence must be re- versed.' The familiar principles upon which courts of justice gener- ally are accustomed to indulge all reasonable presumptions and intendments in aid of a decision brought up for review, are fully recognized in the ^N'ational courts. It is incumbent on the party seeking a review to make out the alleged error clearly and satisfactorily.' The judgment of the court below is presumed to be right, until the contrary be proven ; and a record showing that it may possibly be erroneous, or raising a doubt upon conflicting testimony, is not sufficient to reverse it." Thus, it has been held that where the appellate court in a revenue cause cannot decide whether in point of fact the law invoked by the prosecution has been violated by the defendant, the decree of the court below will be affirmed ; for when a case rests upon a mere question of fact, and especially when that fact is to be ascertained by the uncertain evidence of opinion, the appellate court ought to place much reliance upon the decision of the court below, and not reverse a decree unless it be shown very satisfactorily to be against the weight of evi- dence." And if a judgment of a State court, which is brought before the Supreme Court for review, under section 25 of the Judiciary Act, may be supported on any ground within the exclusive cognizance of the State court, it will_ not be reversed merely because some point, which the Supreme Court can re- examine, was erroneously ruled.' But it is not necessary that an appellant or plaintiff in er- ror should satisfy all the members of the appellate court of the soundness of any one objection to the decree or judgment. For, where, upon a writ of error in the Supreme Court, which was founded upon several objections, there was not a majority of the court agreed in favor of reversal upon any one of the objections, separately considered ; but upon the general question, ought the judgment to br* reversed, . there was a majority for reversal ; some members founding their opinion upon one objection, others upon another, it was held that the judgment should be reversed. ° ' Teaton v. United States, 5 Cranch, f The Potomac, 2 BJacJe, 581. ■281 ; The Eaohel v. United States, 6 Id., * United States v. One hundred and SLi9 ; Fairfax v. Hunter. 7 Id., 603, 632. twelve casks of Sugar, 8 Pet, 277. ^ Ventress v. Smith, 10 Pet, 161 ; ' Brwin v. Lowry, 7 Bmv., 172 • Coffee V, Planters' Bank of Tennessee, Williams v. Oliver, 12 J ' Smith i;. Clark, 12 Sbio., 21. 261; The Virginia v. West, 19 Id. ' Section 22. 1 Ante, 10, 11. 182. ' The San Pedro, 2 Wheat, 132. ' Silsby v. Foote, 20 Hnw., 290. * United States v. Pacheco, 20 Hoio., « Brooks v. Norris, 11 Bow. 204 ' 1 AnU, 121. PEOCBDUEE IN THE SUPREME COUET. 251 How writs of errror are issued. The writ of error falls under the general rule, that all pro- cess of the Supreme Court shall be in the name of the Presi- dent of the United States.' In theory of law, it issues from the Supreme Court to the subordinate court. No formal al- lowance by the Supreme Court is, by the present practice, req- uisite, however, to the validity of the writ ;" it is sufficient to issue it and file it in the office of the clerk of the court whose proceedings are to be reviewed. For the purpose of securing a convenient uniformity in the writs employed in causes coming before the court from various parts of the United States, and to allow of their being issued without an actual resort in each case to the clerk of the Su- preme Court in Washington, the act of May 8, 1792,' required the clerk of the Supreme Court to transmit to the clerks of the Circuit Courts the form of a writ of error, and authorized clerks of the Circuit Courts to issue VTrits of error agreeably to such forms, returnable to the Supreme Court, in the same manner as the clerk of the Supreme Court may issue such writs. The writ should be tested in the name of the chief jiistice and as of the last preceding first day of term of the Supreme 'Court.* The proper return day of a writ of error is now prescribed by Rule No. 33 of the Supreme Court.' If the final judgment was rendered more than thirty days, before the first day of the next term of the Supreme Court, the writ of error and cita- tion, if taken before, must be returnable on the first day of that term, and served before it. If the judgment was ren- dered less than thirty days before that day, the writ and cita- tion may be made returnable on the third Monday of the term, and be served before that day. Should the judgment have been rendered precisely thirty days before the first day of term, neither more nor less, a case not provided for in express terms by the rule, the practitioner will do well to proceed ac- cording to the first branch of the rule, and have the writ made returnable and the service effected before the first day of term. The second branch of the rule is not mandatory, but * Supreme Ct. Rules. No.* 5, 1 Ante, ' Section 9. 1 Ante, 27. 125. ' * Conkl. TV., 5 ed., 657. • Davidson v. Lanier, 4 Wall, 447. ' 1 Ante, 131. 252 APPELLATE JURISDICTION. gives a prit-ilege, suited to cases arising in which there was not time between the rendering of judgment and the first day of terra, for perfecting the proceedings in error. As this privilege is not clearly extended to cases of just thirty days, they may be deemed governed by the first branch of the rule, which expresses the law previously applied to all cases. A writ of error returnable upon a different day from that prescribed therefor by law, is liable to be dismissed therefor, on motion in the Supreme Court.' How appeals are taken. There are some formal differences between the way in which proceedings in error, and on appeal, are instituted. A writ of error is, as already explained, in its form and theory, a com- mission or order issued from the Supreme Court, on the re- quest of the party aggrieved, ,to the inferior court, requiring the latter to make return of their proceedings for the purpose of a review. An appeal, on the other hand, is commenced by an instrument in the nature of a petition addressed by the party aggrieved to the Supreme Court, m which he describes concisely the proceedings whicli occurred below, resulting in the decree of which he complains, and prays that the proceed- ings and decree may be brought before the Supreme Court, and that the latter will grant him specified relief. The employment of this mode of instituting appeals, rests upon the usage and practice of the court, rather than upon any express provisions of law. So far as the mere right of review, unconnected with a stay of execution, is concerned, it is conferred in quite general terms. The form or mode of taking appeal is not definitely prescribed. It may be prayed orally, in the Circuit Court ; and, in such cases, the fact that a usage of the Circuit Court to enter the taking an appeal in an "order book" is not complied with, in a particular case, is not fatal to the appeal." There should be, however, either an application for the allowance of an appeal, in the court be- low, iu open court, or a petition filed and an allowance thereof obtained. A petition for an appeal to the Supreme Court from the Circuit Court, filed in the office of the clerk of the latter merely, unaccompanied by an allowance of the appeal 'by that 'Agricultural Company v. Pierce ° Hudgins v. Kemp, 18 fibw., 530,. County, 6 WaU., 246. PROCEDURE IN THE SUPREME COURT. 253 conrt, does not bring the case iip to the Supreme Court ; and an appeal thus made will be dismissed.' But the allocatur of a judge allowing an appeal is not con- clusive upon the Supreme Court, and does not even imply that the judge himself has settled an opinion concerning the right to appeal. The appellate court is to decide for itself whether the case is or is not within its appellate jurisdiction, as regulated by the Act of Congress." The return. By rule No. 8 of the Supreme Court ' it is directed that the clerk of the court to which any writ of error shall be directed, may make return of the same, by transmitting a true copy of the record, and of all proceedings in the cause, under his hand and seal of the court. The cause will not be heard until a complete record, containing in. itself, without references aliunde, all the papers^ exhibits, depositions, and other pro- ceedings, which are necessary to the hearing in the Supreme Court, shall be filed. In proper cases, original papers may be t ansmitted to the Supreme Court, under the orders of the court below. It was held in an early case ' arising under section 22 of the Judiciary Act of 1789, that the original writ of error awarded, and the original citation subscribed by the judge allowing the writ, must be returned to the Supreme Court. But in a subsequent case " where it appeared, on the bring- ing of a writ of error before the court, that the directions of the Judiciary Act had been literally pursued so far as they pre- scribed the mode of proceeding, and that the existing rule of the court, providing for a return of writs of error by the clerk of the court to which they should be directed, under the hand and seal of the court, had been complied with, the return was held sufficient ; inasmuch as the law does not require the sig- nature of the judge to be added to that of the clerk. ' Barrel! v. Transportation Co., 3 from 3 Wall., 424, seems clearly to re- Wall., 424. qnire an allowance when the appeal ia A recent and valuable treatise on not prayed in open court, but is com- A-merican Admiraliy Procedure states menced by petition. that '' no allowance of the appeal is " Oallan v. May, 2 Black, 541. necessary." But the only authority " 1 AnU, 126. cited for this position (^section 23 of the ' Wilson v. Daniel, 3 Ball., 401. Judiciary Act), is not explicit to this ' Worcester v. Georgia, 5 Pit, 515. e£fcct; and the decision above cited, 254 APPELLATE JURISDICTION. In respect to tlie questions what are necessary parts of the record, and what papers attached to the return may be consid- ered and examined by the Supreme Court, as forming parts of the record, the general course of the common law is followed. The record should comprise the papers which, in a legal sense, exhibit the proceedings had in the court below. It is the duty of- the plaintiff in error to take measures to have these completely furnished, before he moves the cause for argument. If any essential matter is wanting in the return as first made, he may resort to a certiorari for diminution of the record, and procure a more complete return. But before seeking a revision of the law applied to the case in a superior jurisdic- tion, he must take care to raise the questions of law to be re- vised, and put the facts on the record for the information of the appellate tribunal. If he omits to do so in any of the methods known to the practice of such courts, he must abide the consequences of his own 'neglect.' In general, the Supreme Court, in oases at common law, does not consider any paper as part of the record, which is not made so by the pleadings, or by some opinion of the court below referring to it. They cannot know what evidence was given to the jury, unless it is spread on the record in proper legal manner. The unauthorized certificate of the clerk, that any document was read, or any evidence given to the jury, cannot make that document or that evidence a part of the rec- ord, so as to bring it to the cognizance of the court.' Evidence, whether written or oral, and whether given to the court or to the jury, does not become a part of the redord, unless made so by some regular proceeding at the time of the trial and before the rendition of the judgment. A bill of ex- ceptions is the safest method, and oftentimes is the only effec- tual mode by which the evidence adduced below may be brought up for review. But where there is no dispute in re- gard to the facts, and consequently no necessity for any rul- ing of the court in admitting or rejecting evidence, the same ' Compare Parsons v. Armor, 3 Pet, matided ; and the Supreme Court held 413, where the record consisted of the that they -were not at hberty to treat petition, the answer, the whole testi- the case as an appeal in equity becausa mony, as well depositions as documents, the party had not brought up his cause introduced by either party, and the fiat by appeal, but by writ of error of the judge, that Armor, the plain- « Fisher v. Cockerell, 5 Pet.. 248. tiff below, recover the debt as de- PROCEDURE m THE SUPREME COURT. 253 purpose may be safely accomplished by a special verdict, or by an agreed statement of facts. Thus, where the facts are without dispute, and agreed between the parties, a statement of the same may be drawn up; and entered on the record, and submitted directly to the court, for its decision, without the intervention of a jury ; or a general verdict may be taken, sub- ject to the opinion of the court upon the facts so agreed ; and in either case, the aggrieved party may bring error after final judgment, and have the questions of law, arising upon the facts thus spread upon the record, re-examined, as in the case of a special verdict.' But a " case " made with leave to tilrn the same into a bill of exceptions, — that leave not having been exercised, — ^is not regarded as a part of the record, on a writ of error, but merely as a report of the judge who presided at the trial ; and it will be wholly disregarded by the Supreme Court in reviewing the judgment, upon error." So an opinion of the court below, riot given to the jury, and having no influence on the verdict, which states merely the reasoning which conducted the court to its judgment, although presented in the bill of exceptions, forms no part of the record. Nor is it made a part of the record, by a local law of the State, requiring the judges to tile their opinions in writing among the papers in the cause.' And a certificate of the clerk of the court below, that a mo- tion was made for a new trial, and presenting reasons and certain papers filed on which the motion' was founded, from the files of the court, is not a part of the record ; nor do the reasons on the file of the court become a part of the record by such certificate." The citation in error is not deemed a part of the record ; as it forms no part of the proceedings of the court below. Hence, the cause will not be dismissed because the record does not show one, but it may be proved aliunde." The requisites of the return upon an appeal, to the. Supreme Court, are substantially the same as upon a writ of error ; due allowance being made for the difference in the proceedings tc be reviewed. ' Suydam v. Williams, 20 How., 427. ment. Pomeroy v. State Bank of In- If there is question as to the compe- diana, 1 Wall., 592. tency or effect of evidence, or if there ^ lb. are any rulings of the court below upon ' Williams v. Norris, 12 Wheat., 117, evidence to be examined, the case can- ' Reed ii. Marsh, 13 Pc<., 153. not be heard as upon an agreed state- " Inneraity v. Byrne, 5 Mow., 295. 256 APPELLATE JURISDICTIO:^-. In respect to the record, upon appeal, the act of August 6, 1861,' directs that where appeals are taken by both parties a transcript of the record filed by either party may be used on both appeals. Kules 10 and 11 of the Supreme Court make provision for printing the papers included in the return, and for making translations of any of them which may be couched in a foreign language. The citation, and its seryice. The provisions of section 22 of the Judiciary Act of 1789, require that writs of error to the Supreme Court should be prosecuted by a citation to the adverse party, signed by a judge of the Circuit Court, or justice of the Supreme Court ; and that the adverse party shall have at least thirty days notice. The signing and service of a citation, either upon a writ of error or upon an appeal, is (unless waived or cured) necessary to perfect the right of review." The court will not compel the hearing of a cause, unless the citation has been served thirty days before the return day.' Although the writ of error has been duly sued out, yet, if no citation has been served pursu- ant to the Judiciary Act, and there is no appearance or consent to cure the defect, the cause may be dismissed." A general appearance in answer to the writ, without objec- tion to the defect, may, however, cure an irregularity or defect in the citation or mode of service. The object of the citation is to give notice of the removal of the cause to the Supreme Court ; and such notice may be waived by entering a genera] appearance by counsel. Where an appearance is entered, the objection that notice has not been given is a mere techni- cality, and the party availing himself of it should, at the first term he appears, give notice of the motion to dismiss, and that his appearance is entered for that purpose." The citation is, by the directions of the statute, to be signed, either by a judge of the Circuit Court, or a justice of the Su- ' I AnU, 79. How., C93 ; Chaffee v. Hayward 20 ' Hogan V. Ross, 9 Hoio,, 602 ; Gar- Id., 205. See Ante, 218. ' rison v. Cass County, 5 M'all., 823. But the mere presence of ihe respon- ° Welsh V. Mandeville, 5 Cranch, 321. dent's counsel in the court below, at ' Bacon v. Hart, 1 Black, 38. the time of the allowance of an appeal ' Buckingham ■;;. McLean, 13 How., at another term than that of the deeis- 150 ; S. P. McDonough v. Millandon, 3 ion appealed from, and without uotic'^ PROCEDURE IN THE SUPREME COURT. 257 preme Court. A district judge, being a member of the Cir- cuit Court, may. sign tlie citation.' But a citation signed by the clerTc of the Circuit Court only, is insufficient. ' For if the citation is not signed as required by law, the defendant is not bound to appear." In general, the citation is to be addressed to all those who are parties to the judgment or decree to be reviewed ; and if changes by death have taken place since the judgment or de- cree was rendered, the proper proceedings to make the suc- cessors in interest parties, must precede." It admonishes the parties cited to appear in the Supreme Court upon the return of the writ of error or appeal, and show cause against it. It is served, in ordinary cases, by furnishing a copy to the attor- ney, proctor, counsel, &c., of the adverse party, substantially as other papers in the progress of the cause are served.' The original should be filed with the clerk of the court below, to be returned with the other proceedings. In one case ' where an appeal' was, at a former term of the Supreme Court, dis- missed, because the return failed to show the allowance and service of a citation, the court, at a subsequent term, sustained a motion to reinstate the appeal, founded on proof that a cita- tion was in fact duly signed, served, and filed, but had been lost by the burning of the cleik' s office. The court held,, that had the papers remained on file, the proper remedy would have been a certioro,ri for diminution of the record. But as they had been lost or destroyed, the cause might be reinstated on motion. The rules governing the issuing and mode of serving cita- tions, prescribed for writs of error, are made applicable, by the act of March 3, 1803, to appeals. It is, however, held, that in cases where the appeal is prayed and allowed in the Circuit Court, during the open sesslop of the court in the term at of the motion or prayer for allowance, was his law partner, is not snSioient. will not dispense with a citation. Castro His cliaracter and duties do not deTolve V. United States, 3 Wall., 46. on his executor. No.f can the co-uirS ' Shepard v. Wilson, b^How.. 21ft; notice law partnershfps or other private ' United States ■". Hodge, 3 How., arrangements between members of the 534_ biirj the only counsel known a« such, '-McClane v. Boon, 6 IFaK., 244. are th,pse . who appear on the record. ♦ Bacon v. Hart, 1 Black, 38. Ih. But in case of the death of the coun- ' Alviso v. United States, 6 >7oM., sel on record, service upon his personal 457. representative, and also upon one who Vol. II— 17» 258 APPELLATE JURISDICTION wMcli the decree to be reviewed was pronounced, a citation ia not necessary.' The security to obtain a review, merely. By the provisions of the Judiciary Act as amended or ex- plained by an act passed December 12, 1794," a review of a judgment or decree, without a stay of execution, may be ob- tained upon the condition, as respects the security to be given, of securing the payment of "all such costs" only, as upon an affirmance may be adjudged or decreed to the respondent. To obtain a stay of execution pendiag the review, the security must be for "aU damages and costs" Reserving for the present all remark upon the special req- uisites of the security where a supersedeas of execution is desired, and speaking only as to that necessary in all cases, it may be remarked that the strict compliance with the letter of the law is not deemed essential to the jurisdiction of the court, but a substantial and even a defective compliance may be • aided. The mode of taking the security, and the time allowed for perfecting it, are matters resting in the discretion of the court below ; and if the proceedings to procure the review are instituted in due time, a delay or irregularity in perfecting the security may be cured, in a proper case, by allowing a proper bond to be filed nunc pro tunc ; the acceptance of which may relate back to the time when the appeal was prayed.' Hence, where, through accident, no bond, or a defective bond, has been filed, the Supreme Court will not dismiss the appeal, if it is in aU other respects regular, except on failure to comply with an order to give the proper security within such reasona- ble time as it may prescribe.* The security is ordinarily taken in the form of a bond by the party seeking the review, with one or more sureties satis- factory to the judge to whom the citation is submitted for signature. The bond is prepared and submitted, with the names of the proposed sureties, upon the application for the • ■ Eeilly v. Lamar, 2 Cranch, 344 ; Whether the record need show the The San Pedro, 2 Wheat., 132 ; Yeaton taking a proper bond ; or so doing may V. Lenox, 7 Pet, 220. be presumed, in the absence of a state- ' 1 Stat, at L., 404. ment, see Martin v. Hunter, 1 Wheat., ' Probst V. Probst, 2 WaV,., 96; The 304; Boyce v. Grundy, 6 Pet, TiT. Dos Hermanos, 10 Wlieat, 306. * Seymour v. Freer, 5 Wall.^ 822. PROCEDURE IN THE SUPREME COURT. 259 signature to the citation ; which naay be made to the judge at chambers, as well as in open court.'' It is not necessary that all the appellants shall join in the appeal bond. It is sufficient if they all appeal, and the bond be approved by the court as satisfactory and complete secur- ity, by whomsoever it may be executed." K the bond submitted to the judge be not satisfactory to him, and an alteration in its terms becomes necessary, a new execution by the sureties should be obtained. The contract of the sureties, as expressed in the instrument they have deliv- ered, cannot be enlarged by alterations made without their consent.' Notwithstanding the acceptance of a, bond by the justice, on signing a citation, the Supreme Court has a discretion, which may be exercised on motion pending the review, to in- crease or diminish the amount, to require additional sureties, &c., as justice may require.* By act of February 21, 1863, ' no security can be exacted upon any writ of error or appeal issued or brought up to the Supreme Court, either by the United States or by direction of any department of the government thereof ; either to prose- cute the suit or to answer in damages or costs. How to obtain supersedeas of execution. While a simple review may be obtained, in the Supreme Court, by invoking the appellate jurisdiction at any time during five years,, and on the condition of securing the costs adjudged on affirmance, only, yet if the party seeking a review desires also the important privilege of a stay or super- sedeas of execution of the judgment or decree, until the writ of error or appeal has been determined, a much greater promptitude in proceeding is necessary, and a more extensive security is required. In reference to the time of proceeding, the requirement of the Judiciary Act is,' that a writ of error operates as a supersedeas and stay of execution only in cases where the writ is served,, by a copy thereof being lodged for the adverse party in the •Hudgins V.Kemp, 18 How., 530; 'Rubber Co. v. Groodyear, 6 Wall, Mussina v. Cavazos, 20 Id., 280; Foote 153. V. Silsby, 1 Blatchf., 542. " 1 Ante, 81. ' Brookett v. Brockett, 2 How., 238. ' Section 23. 1 Ante 11. • O'Neale v. Long, 4 Granch, 60. 260 APPELLATE JURISDICTION. clerk's office where the record, remains, within ten days, Sun- days exclusive, after rendering the judgment qr passing the decree complained of. The term of ten' days runs from the time when the judgment below was entered,' or the decree settled and signed." When judgment is given in the highest court of a State on appeal or writ of error from an inferior one, and, on affirmance, the record is returned to such inferior court with order to enter judgment there, the time runs from the day when judgment is so entered there." The security necessary to be given to obtain a supersedeas must be for the whole amount of the judgment. It is not to be confined to such damages as the appellate court may ad- judge for the delay. The word "damages," as used in the statute, includes the loss which the defendant in error may sustain by the judgment not being paid." Thus, an appeal does not supersede the execution of a decree of foreclosure by 8ale of mortgaged property, unless a bond to secure the whole amount of the debt is given within ten days after the date of the decree, though the property is in the hands of a receiver. The words of the act, " sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs, if he fail to make his plea good," do not refer to the nature of the claim upon which the original judgment is founded, but they are descriptive of the indemnity which the defendant is entitled to, if the judgment be affirmed. What- ever losses he may sustain by the judgment not being satisfied and paid after the affirmance, these are the damages for which the bond ought to give security. * v This subject is now distinctly regulated by Eule 32 of the Supreme Court." To entitle the party to the privilege of .a supersedeas, he must strictly comply with the requirements of the statute, both as to time of serving his writ, and as to the security to be given. He must bring himself within the letter of the law, or the Supreme Court will not interfere with the execntion of the ' See Hogan v. Hops, 11 How., 294. ' Green v. Van Buskiik. 3 Wall. 448 ' Silsby V. Foote, 20 How.. 290. In * Oatlett v. Bi-odie, 9 Wheai.. 653. this case the parly appealed when the de- 'Stafford v. Union Bank of Louisi- cree was pronounced, and again after it' ana, 16 How., 135. To nearly sann was settled ; and the court held the first effect is Orchard v. Hughes, 1 Wall, appeal sufficient, and dismissed the sec- 73. ond. Compare Carri;. Hoxie, 13 Pet, 460. • 1 Ante. 131. PROCEDURE IN THE SUPREME COURT. 261 judgment below, pending the review.' There is 'no equitable power in the courts to stay execution on the ground of mis take in the appellant's proceedings." Supplying deficiencies iu the record. As the appeal or writ of error is heard upon a record of the proceedings below, which is made up and returned by the clerk of the subordinate court, it may often happen that some- thing material to the appellant' s case may not be apparent by the record as at first returned. Defects in the record must be ascertained and corrected before the hearing. When tlie appeal or writ of error comes on for argument upon the merits, it is liable to be determined upon the record as it then stands. The party seeking a review cannot rely upon introducing, at the hearing, proof of the actual proceedings below, to siipply deficiencies in the record ; but should take the proper proceed- ing in advance to procure a correct return, exhibiting all the proceedings necessary to sustain his claim to a reversal. The remedy appropriate for this purpose is a writ of cer- tiorari, asked from and issued by the Supreme Court, upon allegations that the record of the proceedings below has been diminished by the omission of certain matters, and requiring the clerk, whose duty it is to make the return, to inform the Su| reme Court more fully of the proceedings in question. By Rule 14 of the Supreme Court,' the motion for such a cer- tiorari must be made in writing, and at the first term of the entry of the cause, unless special cause is shown for delay.' The facts on which it is founded must be verified by affidavit, unless they are admitted by the adverse party. Docketing tlie cause. Filing the record. In cases in which the judgment or decree to be reviewed was rendered thirty days before the commencement of the term of the Supreme Court at which the proceeding for re- view is returnable, (or, sixty days, in cases from California, Oregon, Washington, New Mexico, Utah, or Nevada), it is the duty of the plaintiff in error or the appellant, to docket the cause and file the record thereof with the clerk of the Supreme ' Adams v. Law, 1.6 How., 144; Ho- ' 1 Ante, 127. gan V. Ross, 11 /d, 294. ■'See Stearns v. United States^ 4 " Saltmarsh v. Tuthill, 12 Boio., 387. 'Wall., 1. 262 APPELLATE JURISDICTIOK CoTirt, within the first sis days of the term. If, upon the other hand, the judgment or decree below was rendered less than thirty (or sixty) daj's, he is allowed the first thirty days of the term for the performance of the same duty. If he fails to comply with this requirement, the adverse party may take his choice between two courses." First, he may have the case docketed and dismissed ; upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause and certifying that such writ of error or appeal has been duly sued out and allowed. And after a cause has been thus docketed and dismissed on the respondent's motion, the plaintiff in error or appellant cannot docket it and file the record without special leave of the court. 'Or, Second, the defendant in error or appellee may, at his op- tion, docket the cause and file a record with the clerk of the court. After a cause has been duly docketed, and a copy of the record filed with the clerk of the Supreme Court by either party, pursuant to these regulations, it awaits its turn for ar- gument. The a;bove regulations are prescribed by Rule 9 of the Su- preme Court." Dismission' of causes. There are sevei-al grounds upon either of which the practice of the Supreme Court allows a writ of error or an appeal to be dismissed upon a motion for that purpose, without awaiting a call of the cause in its order in the docket. One of these grounds is the failure of the party seekingi re- view, to perform the duty just explained, of filing the record and docketing the cause. In respect to this ground of dis- mission, it is held that the court will not dismiss a cause be- cause the record was not filed within the time required by Rule 9, where it has been duly filed, though after the pre- scribed time, before the motion to dismiss is made.' As long as no motion to dismiss has been made, the piaintifl" in error may file the record and docket the case at any time during the ' He cannot compel the plaintiff in the facts necessary to entitle the re- error to file the record. Boyd v. Scott, spondfent to an order of dismissal may 11 5btti., 292. be shown by tlie production of the rec- " 1 Ante, 126. Whether a certificate oi'd, — see West v. Brashear, 12 Pet., of tne clerk of the court below, to the 101 ; Ami.s v^ Pearle, 15 Id., 211. bringing of the writ of error or appeal, ' Bingham v. Morris, 7 Cranch, 99. is in all ca.ses indispensable, or whether PEOCBDUEE m THE SUPEEME COUET. 3^3 term." And where a motion to dismiss and a motion to docket are made cotemporaneously, the court will allow the motion to docket." To sustain a motion to dismiss, under Eule 9, the certificate of the clerk required, must accurately set forth the title of the cause.' It must name every individual who is a party to the record ; otherwise, on a dismissal, there would be no judgment or decree agaiast those not named. Thus a cer- tificate stating the parties on one side to be "A. B. and others," is not sufficient." Another ground upon which dismissions have been granted in a number of cases, is that of want of jurisdiction in the Supreme Court to review the cause. When such want of ju- risdiction is patent, or can be readily ascertained by an ex- anaihation of the record in advance of an examination of the questions on an argument of the merits, the Supreme Court will entertain a motion to dismiss, without waiting for the time for arguing the case. For, to retain the question until final ar- gument, would put it in the power of every defeated suitor in , a court below to obtain a stay of execution for years, and en- cumber the docket of the Supreme Court upon frivolous pre- tenses.' Thus, a case may be dismissed on motion, for want of jurisdiction, because the matter in dispute is below the amount necessary to give jurisdiction." But an appeal will not be dismissed on motion, on the ground that the court below had no jurisdiction of the cause. The question of ju- risdiction in the court below is a proper one for review in the Supreme Court, and for argument when reached.' ' Irregularity in suing out an appeal or writ of error is not invariably a ground for dismission upon motion. ^Vhere the question of regularity is closely connected with the merits, the court may deny the motion, allowing the objection to bo raised on the argument of the appeal.' So, an appeal is not ' ' Sparrow v. Strong, 3 WaU., 97. ' of the complainants below, and that the ' Owings V. Tiernan, 10 PeC, 24. other complainants had not bSen "made ' HoUiday v. Batson, 4 How^ 645.' and were not parties to the appeal ; • Smith V. Olarkji 12 Sow.^ 21. and it appeared from the record that a • Semple 1). Hagar, '4 Wall, 431. fund had been decreed, by the cpurt • Winston v. United States, . 3 How., below, to be distributed ratably ,711_ ' amongst two classes of creditors, the ' 'Nelson V. Leland, 22 Bow., AS. _ second class including tliose who had ' Day V. Washburn, 23 How., 309, come in after the filing of a creditor's Thus where a motion was made to bill ; and the first class only conceived dismiss' an appeal, upon the ground themselves aggrieved by the decree that the appeal was taken by part only admitting the others to a ratable pro- 264 APPELLATE JURISDICTION. to be dismissed for clerical errors in the record ;' nor because the security given was not sufficient to entitle the party to a su- persedeas. An appeal will lie without a supersedeas, upon giving security for costs." But the objection that the time limited by law for suing out a writ of error had elapsed before it was issued, may be taken by motion to quash or dismiss it. It is not required, in the Supreme Court, that the defendant in error should plead the facts. ° A motion to dismiss a case will not be entertained, founded on the suggestion that there is no error apparent on the face of the record. It is not necessary that the errors complained of should be specified upon the record. If it appears that the judgment is one which the party is entitled to have reviewed, and that it is brought up upon the proper process, all other questions must await the final hearing.* JSTor is it sufficient to urge that the pro- ceedings below are not so set out on the transcript of the record as to enable the court to decide on any question in the case. The plaintiff in error is entitled to be heard, in order that he may show, if he can, that the error of which he com- plains is in the record ; but whether it does so appear or not, is a matter which cannot be inquired into in the form of a motion to dismiss a writ of error.' The omission to prosecute an appeal, if unexplained, may be ground for dismissing it.' Rule 29 of the Supreme Court ' enables attorneys to pro- cure entry of the dismi'ssion of a case, during the vacation of the court. The dismission of a cause is not absolutely final, in all cases. The practice of the court admits a motion to reinstate portion, and, therefore, became the ap- to be dismissed. Anson v. Blue Ridge pellants ; the Supreme Court held that R. R. Co., 23 Hov!.. 1. tl:ey Would, in such a state of thini^s, An appeal in a decree of foreclosure refuse the motion to dismiss, and de- in chancery, will not be dismissed be- termine this, together with all the cause the complainant and appellant,, other points to be decided, when the after his appeal was made, issued exe- case came on for argument. Ih. cution and collected the amount ' Adams ti. Law, IQHno.. 144. awarded him by the decree appealed » Hudgkins v. Kemp, 18 Hoiu., 530. from. Merriam v. Haas, 3 Wcdl, 687. A motion to dismiss an appeal upon ' Brooks v. Norris, ll How., 204. the ground that no appeal-bond had * Heoker v. Fowler. 1 Black, 95. been given, may be defeated by an " Minor v. Tillotson, 1 How., 287 ; 17 offer to give the bond ; and the court Pet., 243, will allow the appellants time to file • The Jonquille, 6 ^yheat., 452 ; the bond; if they comply with the Randolph v. Barbour. Id., 128; Irwia order, the appeal to stand ; otherwise, v. Lowrv, 7 How., 172. ' 1 Ante 130. PROCEDURE IN THE SUPREME COURT. 263 the case, when adequate grounds for doing so can be shown. ■Thus, a dismissal fop failure to file the record, is a "judgment nisi,^' and may be stricken out, subsequently, upon motion by the plaintiff in error, where he explains the delay, and it does not appear that it can have prejudiced the defendant in error.' But after a writ of error has been dismissed and the tferm has closed, the functions of the writ have ceased, and Tt cannot be revived or the cause reinstated upon motion.' If, however, the ground of dismission related merely to the mode of applying for a review, the party may, if the five years are unexpired, sue out a writ of error, or take an appeal anew ; avoiding the defect for which his first proceedings were set aside. Custody of property, pending reTiew. The general rule of appeals in admiralty, that the property involved passes to the custody of the appellate court, which executes its own decree, does not apply to appeals to the Supreme Court. That court does not execute its own decree, but sends its mandate to the Circuit Court, by which the adju- dication made above is carried into actual effect. And pending the appeal, the property or funds involved, and any securities given by the parties that they will abide the final decree, re- main in the Circuit Court. ° That court, notwithstanding the appeal, is bound to take care of the property, and may order its sale, if it be perishable.* So, after an appeal allowed to the Supreme Court, fioni a decree of condemnation in a prize case, the court below may nevertheless order the sale of the prize, and direct the disposition of the proceeds.' In like manner, and upon similar grounds, the property in litigation, in an equity cause, may be sold by order of the Circuit Court, and the proceeds invested, notwithstanding the pendency.of an appeal to the Supreme Court." ' Grwin V. Breedlove, 15 Pet , 284. the property has been sold by order of ' Rice V. Minnesota & Northwestern the court below, it will not direct that R. R. Co., 21 How., 82. the proceeds shall be paid over, but • The Collector, 6 Wheat., 194; Hay- will only make a general order for the ford V, Griffith, 3 Blatchf., 34. restitution of the property condemned. • Jennings v. Carson, 4 Crunch, 2. The Rachel v. United States, 6 Cranch, • The St. Lawrence, 1 Oall, 467. 329. When the Supreme Court reverses a ' Spring v. South Carolina Ins. Co., 6 decision in an admiralty cause, in which Wheat., 519. 266 APPELLATE JURISDICTION. Course and conduct of the hearing. The conduct of the hearing of cases in the Supreme Court is not regulated by statute, but the court is left to prescribe its own practice. In so far as that practice is regulated by any fixed rules peculiar to that court, and variant from the ordia ary course of proceeding in appellate tribunals, those regula- tions are found in the Rules of the court. As these rules have been already stated quite in full, in this work,' and have not been, to any great extent, the subject of examination in the adjudications, it is not necessary to restate them here. Rules of decision. Of course, it is not intended, under this caption, to enter on any general statement of the principles which govern the court in determining the merits of causes ; for this would em- brace almost the whole cii-cle of jurisprudence ; but, only to mention some few rules prescribed by Congress or adopted by the court, and applying particularly to this tribunal, which affect the determination of classes of pases. By section 22 of the Judiciary Act of 1789," there can be no reversal for error in ruling any plea in abatement other than a plea to the jurisdiction of the court, or such plea to a peti- tion or bill m equity as is in the nature of a demurrer, or for any error in fact. By section 23 of the same statute, if the court affirm the judgment or decree below, they shall award the respondent just damages for his delay, and singlS or double costs at their discretion. The mode in which the court wiU exercise the power of awarding damages for delay, is more particularly indicated by Rule 23 of the Supreme Court." It prescribes, that in sim- ple cases of affirmance, the interest shall be calculated and levied from the date of the judgment below, untU the same is paid, at the same rate that similar judgments bear interest in the courts of the State where such judgment is rendered. But if a writ of error shall delay the proceedings on the judg- ment of the inferior court, and shall appear to have been sued out merely for delay, damages shall be awarded at the mte of ten per centum per annum on the amount of the judgiixent ; ' 1 Ante, 125. ' 1 Ante, 10, 11. '1 Ante, 129. PEOCEDURB IN THE SUPREME COURT. 267 calculated from the date of the judgment in tlie court below, until the money is paid. And the same rule applies to de- crees for the payment of money in cases in chancery, unless otherwise ordered. To entitle the party obtaining an affirmance to the extra damages, they should be awarded to him by the terms of the judgment or decree in the Supreme Court. If, upon an af- firmance, no allowance of interest or damages is made, it is equivalent to a denial of any interest or damages ; and the Circuit Court, in carrying into effect the decree of affirmance, cannot enlarge the amount thereby decreed, but is limited to the mere execution of the decree in the terms in which it is expressed.' The allowance of costs is further regulated by Rule 24 of the Supreme Court.' It provides for the three classes of de- cisions, — dismissal, reversal, and affirmance, — as follows. In case of dismissal of suit, except for want cf jurisdiction,' costs are allowed for the defendant in error, or appellee, as the case may be, unless otherwise agreed by the parties. In case of affirmance of any judgment or decree, costs are allowed to the defendant in error, or appellee, as the case may be, unless otherwise ordered by the court. In case of reversal of any judgment or decree, costs are allowed (including costs of transcript of record of court below), for the plaintiff in error, or appellant, as the case may be, unless otherwise ordered by the court. And the clerk is directed to insert the amount of the costs, when allowed, in the process sent to the court below, and annex the biU of items taxed. By section 24 of the Judiciary Act of September 24, 1789, when a judgment or decree is reversed in the Supreme Court, that court shall proceed to render such judgment or pass such ' '.Boyce u. Grundy, 9 Pei., 275, 289. Id., 328; Hemraenway v. Fisher, 2 For instances showing in what cases Id., 255 ; Kilbutne v: State, Savings the court have deemed it fit'and proper Institution, '22 Id., 503; Jenkins v. to award damages for delay, or other- Banning, 23 Id., 455; Sutton /u. Ban- , wise illustrating the . application of the crolt. Id., 320 ; The Douro, 3 Wall., statute under special circumstances, 564. see Jennings v. The Perseverance, 3 "1 Ante, 129. DaU., 336; Brown v. Van Braam, Id., ' In an early case it was held within ■ 344 ; Collon v. Wallace, Id., 302 ; The the power of the court to allow costs Santa. Maria, 10 Wheat., 431 ; McNeil on a dismission for want of jurisdiction. V. Holbrook, 12 Pet., 84; Mitchell v. Winchester v. Jackson, 3-Ciwioh, 515. Harmony, 13 Botv., 115 ; Barrow w. The contrary appears to Imve been held Hill, Id., 54- Perkins v. Pourniquet, 14 iu Montalet v. Murray, 4 id!, 46. ^68 APPELLATE JURISDICTION. decree as tlie court below should have passed ; except where the reversal is m favor of the plaintiff or petitioner in the orig inal suit, and the damages to be assessed, or matter to be de- creed, are uncertain. In these cases they are required to re- mand the cause for a final decision. The practice of the court, in cases at common law, turning upon defects in the pleadings or verdict, is, not to direct either amendments or repleaders, but to reverse the judgment, and remand the cause to the court below, for further proceedings there.' The mandate. The decision of the Supreme Court upon the merits of a case brought before them for review, is communicated to the court below, by an instrument known as the " mandate ;" to be by the latter court carried into effect. The Supreme Court does not execute its own decisions in the exercise of ap- pellate jurisdiction. As respects the Supreme Court, the issuing of the mandate is not an absolutely final and conclusive act. In necessary cases, as when the court are informed they have acted under a mistake of fact, they have power to vacate the judgment and revoke the mandate.'' So they have power to issue a new and fuller mandate to the tribunal below, where the first mandate was incomplete, and remains unexecuted, and the case re- quires no new order or decree.' But, as towards the court below, the mandate of the Su- preme Court is final and conclusive. If uncertain or ambigu- ous in its terms, the court below have an exercise of judgment in determining its meaning ; and may resort to the opinion of the court delivered in support of the judgment or decree, or may take into view the manifest justice and reason of the case, for the purpose of ascertaining what they intended to decide. ' Garland v. Davis, 4 JIow., 131. disposed of. Corning v. Troy Iron & 'Exp. Crenshaw, 15 Pet, 119; Nail Factory, 15 JTow., 451; Waldeii United States v. Gomez, 23 How., 326. v. Bodley, 9 How., 34. In ordinary cases of appeal bring;- ' Sibbald v. United States, 12 Pet, ing in review a mandate, it is well set- 488. tied that nothing is before the court • West v. Brashear, 14 Pet, 51 ; but the proceedings subsequent to the Mitchel v. United States, 15 Jd., 52; mandate. Whatever was formerly be- Story v. Livingston, 13 Jd., 359 ; Rail- fore the court, and was disposed of be- road Company v. Soutter, 2 Wall., 510, fore the decree, is considered as finally PRbOEDURB IN THE SUPREME COURT. 269 Even in these cases, however, the subordinate court should execute the mandate in conformity with the intention of the appellate court, as it appears in their opinion. And in ordin- ary cases, where no difficulty in understanding the language of the mandate arises, its directions must be simply carried out by the subordinate court ; who cannot look elsewhere for authority to change its meaning, nor enter upon new inquiries or proceedings in the cause. Thus, after the merits of the cause have been finally decided in the Supreme Court, and its mandate only recLuires the execution of its decree, the Circuit Court is bound to carry that decree into execution, even though the jurisdiction of that court be not alleged in the pleadings." So the court below cannot, after receiving the mandate of the Supreme Court, entertain a supplemental an- swer, nor receive evidence under it, oflfered with a view to bring the case again before the Supreme Court. The decision of the Supreme Court is final, and the court below has nothing to do but to carry out the directions of the mandate, whatever they may be." N'or can they grant a new trial on affidavits of new facts. The cause does not stand on the same footing that it would have done had the court below entered the proper judgment before the cause was brought up to the Supreme Court. The authority of the court below, after the decision above, extends Only to executing the mandate.' ' Skillern v. May, 6 Crunch, 267; voy, cannot be entertained in the court Exp. Story, 12 Pet, 339. below. Chaires v. United States, 3 ' Hxp. Story, 12 Pel, 339. How., 611. A petition for a rehearing after a de- ° jExp. Dubuque & Pacific R. R., 1 cree of the Supreme Court in which Wall., 69. land is directed to be located by a par- It does not alter such a case that the ticular .<;urvey, for the purpose of pro- law of the State gives a new trial as curing the adoption of a different sur- matter of course in actions such as that in question. lb. CHAPTER IV. PEOOEDUEE 0:R EEEOE TO A STATE COTJET. The scope and limits of the appellate jurisdiction of the Supreme Court to review decisions of the State courts, have already been delineated ; and the two acts of Congress au- thorizing the employment of writs of error as the means of exercising the jurisdiction, have been presented.' The pro- cedure upon such writs requires but little special explanation, as, for .the most part, a writ of error to review a decision of a State court is sued out, prosecuted, and determined in sub- stantially the same manner as is one brought to review a judg- ment of a Circuit Court. No appeal allowed from State courts. One point of difference, which, however, need only be mentioned, is, that the distinction between common law and equity procedure for review, is not preserved, in cases carried up from State courts. Decrees in equity and judgments at law, as well as judgments in civil actions prosecuted under reformed codes, are reviewed in the Supreme Court upon writ of error." Requisites of the record. It is necessary, in these cases, that the record should be so framed as to show, either by express words or necessary legal intendment, that one of the questions which the Supreme Court is, by the statute, authorized to revise, was before the State court, and was decided by it. This fact cannot be deduced ' 1 Ante, 11, 95, 322. • Aldrich v. .Sltna Company, 8'WaU., 491. PROCEDURE ON ERROR TO A STATE COURT. 371 from the argument of counsel, nor from the opinion of the ■court below.' A certificate of the presiding judge of the State court that such matters were draw'n in question, will not aid the jurisdiction.' If such jurisdictional fact does not appear-, the writ must be dismissed for want of jurisdiction ; the case is not a case for affirmance, on the ground that no cause for reversal is shown.' But the plaintiff iii error need not set forth specially the clause of the Constitution of the United States on which he relies. If the pleadings make a case, which necessarily comes within the provisions of the Constitution, it; is sufficient.' And it is not necessary that the writ of error should purport upon its face to be issued upon a final judgment of the highest court of the State ; nor that the writ should show that the court to which it is directed is the highest court in the State in which a decision in the suit could be had. If the writ has issued im- providently, the question is open on a motion to quash it.' • Enforcing the decision. It has been held that if a cause has been remanded from the Supreme to a State court, and the State court decline or refuse to carry into effect the mandate of the Supreme Court, the Supreme Court will proceed to a final decision of the cause, and itself award execution thereon." ' Gibson V. Chouteau, 8 Wall., 314. * Bridge Proprietors v. Hoboketi Co., ' Railroad Co. v. Rook, 4 Wtill, 177. 1 Wall, 116; affirming 13 N. J. Oh. (2 ' Suydam v. Williamson; 20 Hoiu., Bensl), 503, 81. Compare Scott v. 427; Christ Church v. County of Phila- Jones, 5 How., 343. delphia, M., 26 ; Taylor v. Morton, 2 ' Buel v. Van Ness, 8 Wheat, 312. Blade 481. * Martin v. Hunter, 1 Wheat, 304, 35i CHAPTER V. PROOEDUKE UPON OASES OERTIFIED. The origin and extent of the jurisdiction of tlie Supreme Court to determine questions as to which the two judges holding a Circuit Court are disagreed, have been explained in the previous volume.' Bequisites of the certificate. The certificate must, of course, show a question of- disagree- ment presented under circumstances falling within the pro- visions of the act of 1803, by which the permission to certify a question on which the judges of the Circuit Court are dis- agreed, to the Supreme Court for decision, is given. It must show some single question which has arisen, instead of be- traying a purpose to draw the whole cause into the Supreme Court ;" and this question must be a question of law governing the merits of the case, and not a question of fact merely,' or of practice or judicial discretion.* And it must show an actual disagreement between the judges below, not merely a ' 1 Arde^ 338-341. See, also, the act "Webster v. Cooper, 10 Id., 54; Dennis- of April 29, 1802, by which the juris- toun v. Stewart, 18 Id., 565. diction was given, 1 AnU, 36. For an ' Wilson v. Barnnm, 8 How., 258 ; instructive history of the reasons for Dentiistoun v. Stewart, 18 Id., 565. the enactment, see Conkl. Tr., 5 ed., * Wiggins v. Gray, 24 How., 303 ; 703 ; also, United States v. Daniel, 6 United States v. Daniel, 6 Wheat, 542 ; Wheat., bHi. Jones v. Van Zandt, 5 How., 215; " Wayman v. Southard, lOWheat, 1; Smiih v. Va\ighan, 10 Pet, 366; Davis United States v. Bailey, 9 Pet., 267; v. Braden, Id., 286; Packer v. Nixon, Saunders -w. Gould, 4 /ti., 392; "Whiter. Id.. 408; Bank of United States v. Turk, 12 Id., 238; Ne.smith v. Sheldon, Green, 6 Id., 26; Brobst v. Brobst, i 6 How., 41 i Luther v. Borden, 7 Id., 1 ; Wall., 2. fEOCEDUKB UPON CASES CERTIFIED. 373 pro forma reference of tlie question to the Supreme Court.' The certificate cannot be consistently made if the judges are not in fact dviided in opinion." . The certificate must set forth the question upon which the opinion of the Supreme Court is asked, with distinctness and particularity, and in its connection with the part of the case upon which the question arose." It must not only raise a legal question, but must set forth sufficient facts to show the bearing of the question upon the rights of the parties. Ko answer will be given to a question appearing merely abstract.' And the Supreme Court must look to the certificate of the court below alone, for the question which occurred, and the point on which they differed. The omission of a clear state- ment of the question in the certificate cannot be supplied by the causes of demurrer assigned by the defendant, where the judges do not certify that they differed on the points stated, or on either of them.' Nor will the court receive the record of the proceedings below, where the judges in their certificate do not refer to it.' And where the certificate fails to present, in precise form, a Question of law as arising below, consent of counsel will not give the Supreme Court jurisdiction to de- termine the case." Bnles of determination. On a certificate of division of opinion, the court will, in general, only consider the single question upon which the ' United States v. Stone, 14 Pel 524 ; Webster v. Cooper, 10 How., 54 United States v. Chicago, 7 Id., 185 So, where the points on which the two judges were divided are too im- perfectly stated to enable the Supreme Exp. Gordon, 1 Black, 503. Court to pronounce any opinion, they ' Exp. Gordon, 1 Black, 503. cannot award a venire facias de novo. = Sadler v. Hoover, 7 How., 646; Perkins u. Hart, 11 T7Aea«., 237. Dennistoun v. Stewart, 18 Id., 565. A certificate merely stating that the Where the point on which the judges judges are opposed on all the point.i) of the Circuit Court divided in opinioa submitted in a special verdict annexed, was not certified, but the point of dif- is insufficient. United States v. Giles, ference was to be ascertained from the 9 Cranch, 212. whole record, the Supreme Court re- * Havemeyerw. Iowa County, 3 FFnZi, fused to take jurisdiction of the case. 294. Wolfu. Usher, 3Pe*., 269. 'United States v. Briggs, 5 How., And, in another case, the court de- 208. clined to answer a question certified as _" United States v. Wilson, 7 Pet., to the validity of an act of an agent of 150. , w 77 a corporation, there being no statement ' Daniels v. Railroad Oo., 3 WaU., of facts showing an authority or a rat- 250 ; Havemeyer v. Iowa County, Id., ifloation. United States v. City Bank 294 of Columbus, 19 How., 385. 274 APPELLATE JURISDIOTION. judges below were divided in opinion.' They will not ex- press an opinion upon th.e whole case." The certificate brings nothing before the Supreme Court but the questions or points certified. All inquiries respecting any supposed informality in the decree, or irregularities in the proceedings outside the certificate, are out of place. ° If the court is itself equally divided in opinion, no decision can be certified. In an equity case, where this occurred, the proper practice was held to be that the case should be re- manded to the Circuit Court for further proceedings, and that the court below should dismiss the bill, leaving it to the plaintiff to bring up the cause again by an appeal from that decree.* In a case where, after a verdict subject to the opinion of the court, the parties settled the questions by agree- ment, stipulating that judgment should be entered one way or the other, according to the determination of those questions, and the judges, being divided, certified the questions to the Supreme Court, the latter court held that they must consider the cause as if it came up upon opposite bills of exceptions, craving instructions, on which the Circuit Court divided, and that the Supreme Court could only certify an opinion on the points so raised ; while that part of the agreement stated in the record which related to the rendering of judgment on the one side or the other, must have its operation in the court below." ' Ogle V. Lee, 2 Cranch, 33 ; Ward v. ' Ward v. Chamberlain, 2 BlacJe, 430. Chamberlain, 2 Black, 430. * Siliman v. Hudson River Bridge ' Adams v. Jones, 12 Pet., 207. Co., 1 Black, 582. ' Wilcox V. Plummer, 4 Pet., 172. BOOK VI FORMS. [The author is under obligations to Mr. John J. Allen, Assistant United States Attorney for the Eastern District of New York, by whom the forms in the first five chapters of this book have chiefly been selected and arranged ; and who has brought to the task a combination of learning, practical experience, and at- tention, which will render the collection, it is believed, very useful to the practitioner. A very similar acknowledgment is due to Mr. John Malony, of the New York Bar, for assistance upon the re- maining chapters, and for superintendence of the typographical arrangement and correction of the whole collection. In employing these forms, regard must of course be had, in many cases, to difierences in the practice established in different States. This caution applies more especially to common law Jiroceedings^ OHAPTEE I. ACTIONS AT LAW. 1. Title of cause. Circuit \or, District] Court of the United States, For the [Southern] District of [New York].' A. B. Y. Z. In Circuit Court causes it is sometimes customary to add : " In the [Second] , Circuit." 276 FORMS. 2. Caption of order, witii title of cause. At a stated [or, special] Term of the Circuit [or, District] Court of the United States of America, for the District of , in the Circuit,' held at the [place of holding court], in the City of , on , the day of , in the year of our Lord one thousand eight hundred and Present, — The Honorable G. H. [official title, as " District Judge "]. A. B. vs. T. Z. 3. Praecipe. City of , day of , 18 . Sir: Please issue a process out of the Circuit [or, District] Court of the United States for the [naming it] District of ; pursuant to the directions given below. ■Respectfully yours, K. L., Attorney for Plaintiff. To the Clerk of the United States Circuit [or, District] Court, for the [naming it] District. . Plaintiff. [Ifame each plaintiff.] Defendant. [Name each defendamt.] Form of process. [Monition, or, capias, or, &c.] On what brought. [State Trriefly the nature of the cause of action.] Amount of claim or judgment. [State amount elaim^.] Date of praecipe or judgment. I Costs. When issued. [State date when process is to issue.] When returnable. [Name return day of the process.] 4. Teste to Trrlts. [ When the writ is issued in the Gircuit Court.] Witness, the Honorable [nam. ing the Chief Justice of the United States Supreme Cozcrt], Chief Justice of the Supreme Court of the United States, at [state the place of holding thi»§ said writing obligatory, in fact says that after the making of the said yriting obli- gatory, to wit, on [the date], at [the veniie^ aforesaid, the said defendant [here state the breach, and if more than one proceed as follows] and the said plain- tiff , for assigning a further breach of the condition of the said writing obliga- tory, fhrther says that [here state the further breach]. By means of which said several premises the said writing obligatory became forfeited, and the said plaintiff hath sustained damages to a large amount, to wit, to the amount of dollars, and thereby an action hath accrued to the said plaintiff to demand and have, of and from the said defendant , the said sum of dollars, [state the penalty] above demanded [continue as in Form 23 at d]. Yet the said defendant, &o.-. ACTIONS AT LAW. H- 28£ 84. Declaration in trespass, for seizing and detaining a bar^e. [Proceed as in Form 23 to c, and continue] For that the defendant , on the day of , in the year one thousand eight hundred and , -with force and arms, &c., to wit., at , in the County of ' , and State of , seized and tooii a certain barge or •Vessel of the said plaintiff , of great value, to wit, of the value of dollars, and ia which said barge or vessel he, the said plaintiff, then and there intended and was about to carry and convey certain goods and merchandise for certain freight and reward to be therefor paid to him, the said plaintiff, and then and there carried away the said barge or vessel and kept and detained the same from the said plaintiff, for a long space of time, to wit, hitherto, and converted and disposed thereof to his own use, and thereby the said plain- tiff was hindered and prevented from carrying and conveying the said gooda and merchandise as aforesaid, and thereby lost and was deprived of all the profits, benefits, and advantages, which might and would otherwise have arisen and accrued to him therefrom, to wit, at [naming the 'place lefore mentioned] aforesaid. [Here add other counts, and conclude] And other wrongs to the said plaintifl then and there did against the peace of the people of the , and to the damage of the said plaintiff of dollars, [naming a mm mffieient to cover the amount of the damages which it may le probable the jury will give] and therefore he brings his suit, &c. 35. Declaration — ^Infringement of patent, by patentee as plaintiff. [Insert in Form 23 at c] For that whereas heretofore and before the day of , A. D. 18 , and before and at the time of the making of the letters patent, and before the committing of the several grievances herein- after mentioned (a) the said A. B., plaintiff, being then a citizen of the United States, at the City of , was the true, original, and first inventor or discoverer of a certain new and useful invention [descriMng it briefly] and which said invention was not known or used by others, before such invention and dis- covery thereof, as aforesaid, and was not at the time of the application for letters patent therefor as hereinafter mentioned, in public use or on sale with the consent or allowance of the said (b) A. B. [or either of them] as the in- ventor or discoverer thereof, (c) That the said (d) A. B., plaintiff, thereupon afterwards made application, in writing, to the Commissioner of Patents of the United States, for granting of letters patent for said invention and discovery to the plaintiff, and accompanied the same with a written description of the said invention or discovery, and the manner and process of constructing and using the same, in such ftiU, clear, and exact terms, as to enable any person skilled in the art or science to which the said invention or discovery appertains, or with which it is most nearly connected, to construct and use the same, and with a specification of the parts and improvements and combinations which he claimed as his invention, and with drawings and models and written references explain- ing the said invention or discovery,- and explaining the principle and the mode in which he contemplated the application of the principle, by which it might be 286 . FORMS. distinguished from other inventions : which said description was signed by the said (e) A. B., plaintifF, as the inventor, and attested by two witnesses, and filed in the patent-office aforesaid. That the said (f ) A. B., plaintiff, then and there made oath, that he verily believed that he then wan the original and first in- ventor or discoverer of the invention or discovery for which he then solicited a patent, and that he did not know or believe that the same was ever before known or used, and also that he then was a citizen of the United States. And the said (g) A. B., plaintiff, at the same time paid into the treasury of the United States the sum of thirty dollars, and received a receipt therefor, and then and there also duly complied in all other respects with all the necessary conditions and requirements of the statutes of the United States in such case made and provided, prior to granting the letters patent hereinafter mentioned. That on the day of i 18 , letters patent of the United States, bearing date on that day, were issued to the said (h) A. B., the plaintiff, (i) according to law, whereby there was granted to him, his heirs, executors, ad- ministrators, or assigns, for the term of [seventeen] years from the day of , 18 , the full and exclusive right and liberty of making, con- structing, using, and vending to others to be used, the invention or discovery aforesaid, a description whereof was given in the words of the said (k) A. B., plaintiff, in the said schedule annexed to the said letters patent, and was made part of the same, as by reference to said letters patent and schedule annexed, will among other things more fully and at large appear. That the said letters patent were issued in the name of the United States of America, and were sealed with the seal of the patent-oifice of the United States, and were signed by the Secretary of the Interior, and were countersigned by the Com- missioner of Patents, and were numbered , and were issued and delivered to the said (1) A. B., plaintiff, which said letters patent the plaintiff brings here into court. That, thereupon, after issuing the said letters patent as aforesaid, the said plaintiff put the said invention into use. and made and used the said invention, and granted licenses to very many persons to use the same for certain valuable considerations. And the plaintiff further says, that he has, ever since the date of the gaid letters patent, been and now is entitled to all the rights, interests, and privileges, thereby so secured unto him in and to the said invention and discovery, in the said letters patent particularly set forth, and ever since the date-thereof has been entitled to the exclusive use of the said invention and improvement. And the plaintiff further says, that the said invention or discovery so pat- ented, aforesaid, unto him, the said plaintiff, is of very great utility : and that the same has been extensively introduced into public use, and the public have generally acquiesced in his exclusive right to the same ; and he would, but for the wTongftil acts of the said defendant and others acting in concert with him; have made large gains, profits, and advantages, from the manufacture, use, and sale of the said invention ; and that by the said wrongful acts and doings he is now prevented and hindered from so doing. And the plaintiff further says, that the said defendant, well knowing the premises and the rights and privileges secured unto him, the plaintiff, and in order to deprive him of his profits, benefits, and advantages, which might and otherwise would have accrued to him at and elsewhere, and within ACTIONS AT LAW. 287 the said District of , and elsewhere, and without the license or permission of the said plaintiff, the said defendant has, at divers days and times since the day of , 18 , and within the said term of years in said letters patent mentioned, and before the commencement of this suit, to wit : on the day of , 18 , used and caused to he used the said [descriUng the invention or any part used\, eafih mid. all containing the said in- vent] jn, discovery, improvements, and combinations, consisting as in said letters patent and in the schedule thereto annexed set forth, of the method therein de- scribed of [setting forth the same}, the exclusive right to which is secured to the said plaintiff, as hereinbefore set forth, and which said unlawful making, use, and sale by the defendant as aforesaid, is a violation and iniringement of the said plaintiff's exclusive rights and privileges, secured to plaintiff by said let- ters patent as aforesaid, and contrary to the form of the statute of the United States in such case made and provided, whereby the said defendant has derived and received, and is still deriving and receiving from such use great gain and profits, to wit : the sum of dollars. And the plaintiff in like manner avers that the defendant, though requested to desist from such unlawful use and to .pay him such gains and profits as the defendant has actually made, refuses so to do, by means whereof the plaintiff is and has been greatly injured, and is now prevented from putting the invention or discovery into successftil operatibn, and is deprived and prevented from re- ceiving the gains and profits to which he is lawfully entitled, from the exclusive rights and privileges so granted and secured to him as aforesaid, and which he would have derived and acquired, and would now derive and acquire, but for the said wrongful acts of the said defendant, to the damage of the plaintiff of dollars. And by force of the statute aforesaid, an action hath accrued to him to re- cover the said actual damages [and such additional amount, not exceeding in the whole, three times the amount of such actual damages as the court may see fit to order and adjudge], besides costs. Yet the said defendant, though re- quested, has never paid the same or any part thereof, to the plaintiff, but has refused, and yet refuses so to do, and, therefore, the plaintiff brings this suit. K. L., Attorney for Plaintiff. 36. The like J by assignee of patent j— Assignment made previous to issue of patent.' [Insert in Form 35 at a, instead of the said A. B., plaintiff] one C. D. [nam- ing the assignee], [Insert at b, instead of A. B.] 0. D. [Insert at o] That prior to the issuing of the letters patent hereinafter mentioned, to wit : on the day of , 18 , at the City of , the said C. D., by assign- ment duly signed, sealed, and delivered, and entered of record in the patent •ffice of the United States, assigned all of his right, title, and interest, in and to said invention and discovery, to said plaintiff, and requested that the said patent might issue to the said plaintiff as the assignee thereof, as by reference to said assignment will more fully and at large appear. ' "When the assignment was executed the alterations required in the above subsequent to the issue of the patent, Forms will be made without difficulty. 288 FORMS. [Insert at d, 6, f, gr, h, k, 1, instead of A. B., plaintiff] 0. D. [Insert at i] As assignee of the said C. D. 87. Declaration by the first indorser of a promissory note against the maker [Proceed as in Form 23 to c, and contimte] For that, whereas, the said T. Z. on the day of , 18 , at , made his certain note in writ- ing, commonly called a promissory note, his own proper hand being thereunto subscribed, bearing date the day and year last aforesaid, and then and there de- livered the said note to one C. D., who is a citizen of the State of [or. a subject, &c., or, a citizen, &c., and an alien], by which said note he, the said Y. Z., then and there promised to pay, six months after the date thereof, to the said C. I), or order, the sum of , for value received ; and the said C. D., to whom, or to whose order the payment of the said money in the said note specifled, was by the said note, to be made, ailer the making of the said note, and before the payment of the said money in the said note specifled, to wit, on the day of , 18 , aforesaid, at , aforesaid, indorsed the said note, his own proper hand being to such indorsement sub- scribed, by which said indorsement, he, the said C. D., then and there ordered and appointed the said sum of money in the said note specifled, to be paid to the said A. B., and then and there delivered the said note, so indorsed as afore- said, to the said A. B., of which said indorsement so made as aforesaid, the said Y. Z. afterwards, to wit, on the day of > 18 , aforesaid, had notice ; by means whereof, and by force of the statute in such case made and provided, the said defendant then and there became liable to pay to the said plaintiff, the said sum of money in the said note specifled, when he, the said defendant should be thereunto afterwards requested ; and being so liable, he, the said defendant, in consideration thereof, afterwards, to wit, on the day of , 18 , last aforesaid, at , aforesaid, undertook, and then and there faithfully promised the said plaintiff, to pay him the said sum of money in the said promissory note specifled, when he, the said defendant, should be thereunto afterwards requested. Nevertheless, the said defendant, not regarding his said several promises and undertakings, hath not yet pwd the said sum of money, or any part thereof, to the said plaintiff, although often re- quested so to do ; but the said defendant to pay him the same hath hitherto wholly neglected and refused, and still doth neglect and refuse, to the damage of the said plaintiff of dollars, and therefore he brings his suit, &c. K. L., Attorney for Plaintiff. 88. By the indorsee ag'ainst a remote indorser. The form in this case is precisely like Form 37, except that the intermediate indorsements are to be set out ; which, however, may be done without any aver- ment of the citizenship or alienage of the intermediate indorsers ; since it is only necessary in this, as in the preceding case (in addition to showing that the pai- ties to the suit, possess the requisite character), to show that the immediate or last indorser might also, before his indorsement to the plaintiff, have maintained a suit on the note against the defendant. ACTIONS AT LAW. 289 39. Declaration in assumpsit for moneys collected by a United States Marshal. [Proceed as in Form 33 to c. and continue] Trespass on the case upon promises : For that, whereas, heretofore, to wit, on the day of , in the year of our Lord one thousand eight hundred and , the said T. Z., defendant, was, pursuant to the statutes of the United States in such case made and provided, duly appointed and commissioned as Marshal of the United States, for the District of And whereas, the said T. Z., defendant, heretofore, to wit, on the day of , in the year of our Lord one thousand eight hundred and , at ■ , in the District of , was indebted to the said plaintiff in the sum of dollars, lawful money of the United States of America, for so much money by the said defendant, before that time, collected and received on and by virtue of a writ of \naming the wnt], issued out of the Circuit \or, District] Court of the United States, for the District of, , on the day of i 18 , and directed to and received, by the defendant, as Marshal of the United States, for the District of , as aforesaid, at the suit of the said plaintiff against the [goods, chattels, lands, and tenements], of Y. Z., for the [amount indorsed on the writ]. And being so indebted, the said defendant, in consideration thereof, after- wards, to wit, on the same day and year and at the place aforesaid, undertook and then and there faithfully promised the said plaintiff well and truly to pay imto the said plaintiff the sum of dollars, when the said defendant should be thereunto afterwards requested. [Add a count for money had and re- ceived generally, and the other money counts, and conclude as in said Form at d.] Yet the defendant, &c. 40, Declaration in debt, on a recognizance. [Proceed as in Form 33 to c, and continue] For that whereas the said defend- ants heretofore, to wit, in term, in the year of our Lord one thou- sand eight hundred and , at . aforesaid, came into the Circuit [or, District] Court of the United States for the District of , in their proper persons and became pledges and 'bail for one Y. Z., at the suit of the said_plaintiff, in a plea of [here state the plea^ then pending in the said Court, in manner and form following : that is to say, that if it should happen that the said Y. Z. should be convicted at the suit of the said plaintiff in the plea a oresaid, then the said defendants consented and agreed, that the [damages] which should be adjudged to the said plaintiff in that behalf, should be made of their goods and chattels, lands and tenements, and levied to the use of the said plaintiff, if it should happen that the said Y. Z. should not pay to the said plaintifl the said [damages] or render himself on that occasion into the custody of [according to the recognizance], in execution of said judgment as by the record -thereof, still remaining in the said Court, more fully appears. And the said plaintiff says, that afterwards, to wit, in term, in the year jne thousand eight hundred and [the term of which the judgment in the original action was recovered], to wit, at [the place of holding the Court wTiere judgment was rendered], and in the Court aforesaid, the said plaintiff, by the consideration and iudgment of the said Court, recovered in the said plea against Vol. 11—10 ,-^ 290 FORMS. the said T. Z. the sum of dollars [the amount of judgment in th4 original action], which by the said Court was then and there adjudjod to the said plaintiff, for his damages which he had sustained, as well on occasion of the [non-performance of certain promises and undertakings, then lately made by the said Y. Z. to the said plaintiff, or otherwise}, as for his costs and charges by him about his suit in that behalf expended ; whereof the said Y. Z. was con- victed, as by the record and proceedings thereof still remaining in said Court, in flail force and effect, more fully appears. And the said plaintiff in fact, says, that the said Y. Z. has not yet paid to the said plaintiff the said [damages] so adjudged to the said plaintiff as aforesaid, or any part thereof nor rendered himself on that occasion into the custody of [aecording to the facts], in execution of the said judgment, according to the tenor and effect of the said recognizance. And the said plaintiff in fact says, that the said plaintiff has not obtained any execution of the said judgment, nor sued out any execution upon the aforesaid recognizance, which recognizance, with the said judgment, so by the said plain- tiff recovered as aforesaid, is still in full force, strength, and effect, wholly un- Batisfled ; whereby an action hath accrued to the said plaintiff, to demand and have of and ft'om the said defendants, the said sum of money above demanded, according to the tenor and effect of the said recognizanca [ Conclude as in said Form at d.] Yet the said defendants, &c. 41. Declaration for penalties for fraudulent entries of merchandise. {Proceed as in Form 23 to c, and continue] For that whereas afterwards, heretofore, to wit, on or about the day of , 18 , at the City of , the said defendant , [then and there doing business as copartners under the firm name and style of ,] made an entry ]n the Office of the Collector of Customs in and for the port of , . in the District of , of certain goods, wares, and merchandise, which said goods, wares, and merchandise were subject to the payment of cer- tain duties to the United States, and were described in the said entry as follows, to wit : \liere insert a list of the mercliandise, as described in the entry,] imported by in the or vessel called the , whereof is master, from ; and on such entry being made as aforesaid, a cer- tain invoice of the said goods, wares, and merchandise was produced and left with the said Collector by the said defendant , in and by which said invoice, 60 then and there produced and left as aforesaid, the said goods, wares, and merchandise included in the said entry were not, nor was any part thereof, in- voiced according to the actual cost thereof at the place of exportation of said goods, wares, and merchandise ; but on the contrary thereof, the said gcods, wares, and merchandise, and every part thereof, were invoiced in and by the said invoice so produced and left as aforesaid, at a much less price than the actual cost thereof at the place of exportation, with the design on the part of the said defendant to evade some part of the duties due and payable on said goods, wares, and merchandise, contrary to the provisions of the 66th Section of the Act of Congress approved March 2, 1799, entitled " An Act to regulate the collection of duties on imports and tonnage ;" and thereupon the said goods, wares, and merchandise were delivered by the said Collector to the said defend- ant ; and the said goods, wares, and merchandise were then and there of great ACTIONS AT LAW. 391 value, to wit, of the value of dollars. And the said plaintiffs aver, that by reason of the premises and by force of the statute in such case made and provided, the said value of the said goods, wares, and merchandise, to wit, Ihe sum last mentioned, became and was forfeited by the said defendant to the United States. Whereby and by force of the statute fa such case made and provided, an action hath accrued to the said United States of America, to de- mand and have of and jfrom the said defendant the said sum of dollars, so forfeited as last aforesaid, being parcel of the sum above demanded. And whereas also, afterwards, to wit, on or about the day of 18 , at the City of , aforesaid, the said defendant , [then and there doing business as copartners under the firm name and style of ,] made an entry in the office of the said Collector of the Oustoms.of certain goods, wares, and merchandise, which said goods, wares, and merchandise were sub- jeci to the payment of certain ad valorem duties to the United States, and were described in the said entry as follows, to wit: [Tiei'e insert a description of the merchandise as in the entry} imported by in the or ves- sels called the , whei^eof is master, irom ; and that on such entry [or, entries], being made as aforesaid, a certain invoice of the said goods, wares, and merchandise, ' was produced and left with the said collector. And the said collector, afterwards to wit, on the day of , in the year one thousand eight hundred and , caused the said package of goods, wares, and merchandise to be opened, ex- amined, and appraised, according to the provision of the several Acts of Con- gress in such case made and provided; and thereupon said goods, wares, and merchandise were delivered by the said Collector to the said defendants; and that subsequent to such examination, inspection, and appraisement, the said package and the said invoice and each of them were found to have been made up, and the said package and the said invoice and each of them, in fact were made up with intent to evade and defraud the Revenue of the United States, in this, that the goods, wares, and merchandise, contained in the said package , having been procured otherwise than by purchase, the same falsely valued in said invoice and charged therein at a less price than the actual market value or wholesale price of said goods, wares, and mer- chandise, at the period of exportation to the United States in the principal markets of the country from which the same were imported into the United States, thereby intending to defraud the United States, by paying less duty on the said package of goods, wares, and merchandise, than the amount which the same were required by law to pay on the importation thereof into the United States, against the fourth section of the Act of Congress, approved on the twenty-eighth day of May, in the year eighteen hundred and thirty, entitled " An Act for the more effectual collection of the Impost Duties ;" and the said goods, wares, and. merchandise were then and there of great value, to wit, of the value of dollars. And the said plaintiffs aver, that by reason of the pveniises and by force of 'the statute in such'case made and provided, the said value of the said goods, wares, and merchandise, to wit, the sum last mentioned', became and was forfeited by the said defendant to the United States. Where- by and by force of the statute in such case made and provided, an action hath accrued to the said United States of America, to demand and have of andfronj 292 FORMS. the said defendant the said sum of dollars, so forfeited as last afore said, other parcel of the sum above demanded. And whereas, heretofore, to wit, on or about the day of 18 , at the City of aforesaid, the said defendant , [then and there doing business as eopartners under the firm name and stylo of ,) did knowingly made an entry in the OfiSce of the said Collector of the Custonu of certain goods, wares, and merchandise, which said goods, wares, and mer- chandise were subject to the payment of certain duties to the United States, by means of an invoice which did not contain a true statement of all the particulars required by the provisions of Section 1 of the Act of Congress approved March 3rd, 1863, entitled "An Act to prevent and punish frauds upon the Revenue, to provide for the more certain and speedy collection of claims in favor of the Uiiited States, and for other purposes," and by means of other false or fraudulent documents, papers, practices, and appliances contrary to the provisions of the said section, which said goods, wares, and merchandise were described in said entry as follows, to wit : \liere insert a list of tlie merchandise, as described in the entry] 'whioh said goods, wares, and merchandise were then and there of great value, to wit, of the value of dollars. And the said plaintiffs aver, that by reason of the premises and by force of the statute in such case made and provided, the said value of the said goods, wares, and merchandise, to wit, the sum last mentioned, became and was forfeited by the said defendant to the United States. Whereby and by force of the statute in such case made and provided, an action hath accrued to the said United States of America, to de- mand and have of and fi-om the said defendant the said sum of dollars, 80 forfeited as last aforesaid, other parcel of the sum above demanded. [Add other counts, according to the facts, and conclude as in said form 33 at d.] Yet the said defendant, &c. 42. Ifotice to plead. [Titte of the cause, as in Form 1.] The defendant will please take notice that a rule has been entered ir^ this cause with the Clerk of this Court, at his office in the City of , requiring the defendant to plead to the [declaration] filed in this cause, with a copy whereof you are hereby served, within twenty days after service of a copy thereof, and notice of said rule or judgment. Dated , 18 . Yours, &c., K. L., Attorney for Plaintiff. To O. P., Attorney for Defendant. [Or, Y. Z., above named Defendant.] 43. AffldavLt of service of copy of plea and notice to plead. District of C. D., being duly sworn, says, that on the day of i 18 , he personally served on Y. Z., the defendant within named, a copy of the within [dQclaration] and notice of rule to plead as herein indorsed \pr, hereto annexed.'' CD. Sworn to before me, this day of , 18 . ACTIONS AT LAW. 293 44. Notice to declare. ' JTsi of the cause, as in Form 1.] Sir : Please to take notice that the plaintiflf in this cause is hereby required to declare therein within days after the service of this notice ; or that judgment of discontinuance wiU be entered against him. Dated , 18 . Yours, &c., O. P., Attorney for Defendant. [State location ofofflce.1 To K. L., Attorney for Plaintiff 45. Notice of motion for len\e to amend. [7?y law to answer the same, and this he, the said defendant, is ready to verify ; wherefore, for want of a sufficient replication in this behalf, he, the said defendant, prays judgment if the said ' plaintiff ought to have or maintain his' aforesaid action thereof against him, &c. And the said defendant, according to the form of the statute in such case madq and provided, states and shows to the court here, the following causes of demurrer in law to the said replication, that is to say : [Tiere state the causes, and conclude] And also for that the said replication is, in other respects, uncertain, informal, and insufficient, &c. O. P., Attorney for Defendant. 69. Eejoinder to replication— General form. [Title of the cause, as in Form 1.] And the said defendant, as to the said replication of the said plaintiff to the said [second] plea of the said defendant, says that the said plaintiff ought not, by reason of anything by him in that replication alleged, to have or maintain his aforesaid action thereof against him the said defendant, because he says that \liere insert the smijeat matter of the rejoinder, and conclude] And of this he, the said defendant, puts himself upon the country, and the said plaintiff doth the like, &c.]. O. P., Attorney for Defendant 302 FORMS. 70. Note of issue. United States Covirt, For the District of A. B. vs. Y. Z. K. L., Attorney for ■ Actum. O. P., Attorney for Issue joined, . , 18 . 71. Notice of trial. \^Title of the cause, as in Form 1.] Sir: Please to take notice, that the above cause will be brought to trial [and an inquest taken] at the next Circuit [or" District] Court of the United States of America, for the , District of , to be held at the [United States Court Rooms], in the City of , in the said District of , before the Judge of the same Court, on the [first Wednesday], the day of , 18 , next, at o'clock, in the noon of that day. Dated, the day of , in the year one thousand eight hundred and To O. P., Esq., Attorney for Tours, &c., K. L., Attorney for 72. Dedimns potestatem x or commission in a cause. The President of the United States of America. To [naming each commissioner], Greeting : Know ye. That we, in confidence of your prudence and fidelity, have ap- pointed you commissioner and by these presents do give you [or, any two or more of you] full power and authority (a) diligently to examine upon his [or^ their respective] corporal oath [or, affirmation ], before you to be taken, E. F. [and, P. G.] as witness on the part of the plaintiff [or, defendant] m a certain cause now pending undetermined in the Circuit [or, District] Court of the United States of America for the District of , in the Circuit, wherein A. B. is plaintiff and Y. Z. defendant, (b) touching the premises [or, if interrogatories are annexed, on the interrogatories hereunto annexed]. And we do further empower you [or, any two or more of you] to examine on the same behalf, and in like manner, any other person or persons who muy be produced as, witnesses before you ; And we do hereby require you [and any two or more of you], before whom such testimony may be taken, to reduce the same to writing, and to close it up imder your hand and seal , directed to M. N., ACTIONS AT LAW. 303 Clerk, &c. [giving the address in full] ; and that you return the same -when exe- cuted as above directed, annexed to this writ, with the title of the cause in- dorsed on the envelope of the commission, into the said Circuit [or, District] Court, before the Judge [or. Judges] thereof, with all convenient speed. Witness, &c. [Teste as in Form 4.] M. K, Clerk. E. L., Attorney. 73. The like, on a motion or other proceeding. [Insert in Form 72 at a] To take the testimony of E. F. [and F. 6.] to bo used on a motion [or, other proceeding, stating it hriefly'] now pending in the Cir cnit [or, District] Court of the United States of America for the District of , in the . Circuit, wherein A. B. is plaintiff, and T. Z. defendant, and diligently to examine him [or, each of them] upon his [or, theu- respect- ive] oath [or. affirmation ], before you to betaken [and proceed as in said Form at b], touching, &c. 74. InteiTog'atories for the examination of witnesses under a commission. [Title of the cause, as in Form 1.] . Interrogatories to be administered to E. P., of the City of , in . the State of , a witness to be produced, sworn and examined, under and by virtue of the annexed commission, before G. H., the commissioner therein named, in a certain cause depending in the Court, of , for the District of , wherein A. B. is plaintiff and Y. Z. is defendant ; on the part of the said plaintiff [or, defendant]. , First interrogatory. What is your name, age, and occupation, and where do you reside ? Second interrogatory. Do you know the parties, plaintiff and defendant, in the title of these interrogatories named, or either, or which of them ; and how long have you known them, or either, and which of them ? [Proceed with the interrogatories, according to the circumstances of the case.] Lastly. Do you know any other matter or thing touching the matters in question that may tend t.o the benefit or advantage of the said plaintiff [or, de- fendant] ? If so, declare the same fully and at large as if you had been particu- larly interrogated thereto. K. L., Attorney for, &c. ■ 75. Notice of reference. [ Title of the cause, as in Form 1.] In conformity with the order entered in the above entitled cause, you will please to take 'notice, that a reference ordered therein will he proceeded with, before me [a Commissioner duly appointed by the Circuit Court of the United States for the District of , in the Circuit, under and by virtue of the acts of Congress in such case made and provided], at my office at [location of office], in the City of , on the day of , 18 , at o'clock in the noon of that day, at which time and place "304 FORMS. you are hereby notified to attend with the testimony you may have to offer m the matter referred. Dated , the day of , 18 . Yours, &c., To K. L. Cr. H. [United States Commissioner.] 76. Subpoena to testify before a commissionev. The President of the United States of America, to E.* F. Greeting : Tou are hereby commanded, that laying aside all buvd [Seal} ness and excuses, you [and each of you] be and appea.- in your proper persons, (a) before G. H., a commissionw duly appointed and authorized in virtue of a commission from the Circuit, [or, District] Court of the United States, for the District of , , in the Circuit, to examine you as a witness in a cause de- pending undetermined, in the said Circuit [or, District] Court, wherein A. B. is plaintiff, and 0. D. is defendant, on the part of the plaintiff [or, defendant ; if- tipon interrogatories, add, upon interrogatories annexed to the said commission], at [state place of examination], on the day of , at o'clock in the noon, to answer truly all such questions as shall then and there be asked of you [if upon interrogatories, add, upon such interrogatories], (b) and this you [or, any of you], shall by no means omit, under the penalty upon [each and every of] you, of dollars. "Witness, &c. [Teste cts in Form 4t]. M. N., Cleik. 77. Subpoena ticket, to testify before a Commissioner. By virtue of a writ of subpoena, to you directed and herewith bhown, you are commanded and firmly enjoined, that laying aside all business aiid excuses, you be and, appear in your proper person [continue as in Form '/6 at a, before, &c., to b, and conclude] and this you shall by no means omit, under the penalty upon you, of dollars. M. N., Clerk. To E. F. 78. Affidavit to obtain an order for examination of witnesses (de bene [The following is the form of tTie plaintiff ^s affidavit; wher, -lued by the defen- dant the required alterations will ie readily made.] [ Title of the cause, as in Form 1.] District of [naming the district in which the affidavit its sworn], ss : A. B.. being duly sworn, says, that he is the plaintiff in th-j above entitled cause ; that he is advised by his counsel and verily believes that the testimony of E. F., at present of , mariner [or, as the fact may be], is material and necessary for this deponent in the prosecution of such cause ; that the said E. F.' lives at [place of residence ofioitness], more than one hundred miles from ' This allegation should be varied to " is bound on a voyasre to sea ;'' or, " is correspond with the facts, be inseiting about to go out of the district in which iu place of " lives at^ &c.," U.e words, the said cause is pending, and to a ACTIONS AT LAW 805 [place of trial of cause], where the court, at which this deponent expects the said cause will be tried, is to be held. And this deponent further says that, as he is informed and believes, Y. Z., the above named defendant, resides at [place of residence 0/ defendant], about miles distant from [place qf examination of witness], the place where the examination of the said witness is expected to be taken ; and that, as he is also informed and believes, O. P., the attorney of the said T. Z., resides at [place of residence of attorney], about milet from [place of examination of witness], s-s aforesaid. A. B., PlaintifE Sworn to before me this day of , 18 . 79. Order for examination of witness (de bene esse). ( When issued in hehalf of the defendant, the required alterations will ie made with- out difficulty.) [Title of the cause, as in Form 1.] Let E. F., the witness named in the above [or, within] affidavit, be examined de lene esse before me accordingly, at [place of examination], on the day of , 18 , at o'clock in the noon. [If either the defendant or his attorney reside within one hundred miles of tJie place of examination, then add] And let days' notice be given to the said T. Z., defendant [or, to K. L., the attorney of the^aid defendant, as either may he nea/rest], of such exam- ination. G. H. [Title of mixfflstrate.] 80. Notiflcation of examination of witness (de bene esse). [Title of the cause, as in Form 1.] Please to take notice, That E. F. will be examined, de lene esse, on the part of the plaintiff [or, defendant] in the above entitled cause, before me,' at my office, at [location of office], in the City of , on the day of , 18 , at o'clock, in the noon of that day, at which time and place ypu are hereby notified to be present and put interrogatories to the said witness if you shall think fit. Dated, , the day of , A. D. 18 . Yours, &c., G. H. [state official title.] To T. Z., the above named Defendant. [Or, K. L., the Attorney for the above named Defendant.] 81. Subpoena for examination (de bene esse). [Title of the cause, as in Form 1.] To E. F. : Take notice, that you are required to be examined de bene esse on the part of greater distance than one hundred ' The act requires a "notification mile= as this deponent is informed and from the magistrate." It i? therefore, verily believes-" or, "is so ajjed [or, so better that the notice should purport infirm], as to render it probable that he to emanate fiom, and be signud by will not be able to attend as a witness him. at the trial of such cause." Via,, n— 20 806 FORMS. the plaintiff [or, defendant] in the above entitled cause, hefore me [inserting iht official title, as, a commissioner duly appointed hy the Circuit Court,. of the United States for the District of , under and by virtue of the acts of Congress in such case made and provided], at my office at * , in the City of , on the day of , at o'clock, in the noon of that day, at which time and place you are hereby required to be present and testify. Witness my hand and official seal, at , this day of , 18 . G. H. [Title of magistrate.] 82. Caption for depositions (de bene esse). United States of America : District of , State of , County of . f ' Be it Remembered, That on this day of , in the year of our Lord one thousand eight hundred and , I, C H., (a) a Commissioner duly appointed by the Circuit Court of the United States, for the District of , in the Circuit, under and by virtue of the Act of Con- gress entitled " An Act for the more convenient taking of affidavits and bail in civil causes depending in the Courts of the United States," passed February 20th, 1812, and the Act of Congress entitled " An Act^n addition to an Act, en- titled ' An 4ct for the more convenient taking of affidavits and bail in civil causes depending in the Courts of the United States,' " passed March 1, 1817, and the Act entitled ''An Act to establish the judicial Courts of the United States," passed September 34, 1789, (b) did call and cause to be -and personally appear before me, at my office, at [state location of office], in the City of , in the said DistHct of , in the State aforesaid, E. F., to testify and the truth to say, on the part and behalf of the plaintiff [or, defendant], in a certain suit or matter of controversy, now de'pending and undetermined, in the Circuit [or, District] Court of the United States, for the District of , at [state place of holding Court], in the District aforesaid, wherein A. B. is plaintiff a!nd Y. Z. defendant. And the said E. F., being about the age of years, and having been by me first cautioned and sworn to testify the ti'uth, the whole truth, and nothing but the truth, in the matter of controversy aforesaid, I did carefully examine the said E. F., and he did thereupon depose, testify, and say as follows, viz : [Jiert follows the deposition, which must Tie subscribed by the witness.] 83. Tlie like, when taken before a magistrate "or other oiBcei*. [Insert in Form 83 at a] A [state the official title, as, justice^^ &c.], in and for the State and County aforesaid, and duly commissioned and qualified, uuder the laws of the United States, to take depositions for use in the Circuit [or, Dis- trict] Courts of the United States [and proceed as in said Form, at b], did call, &c. IN ACTIONS AT LAW. 307 81. Certificate at close of depositions (de bene esse), wlien notification is served on adverse party or attorney. United States of America, ) . District of . ) ' I, G. H., (a), a Commissioner, duly appointed by the Circuit Court of the United States for the District of , in the Circuit, under and by virtue of 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," passed February 30th, 1812, and the Act of Congress en- titled " An Act in addition to an Act entitled ' An Act for the more conve- nient taking of affidavits and bail in civil causes depending in the courts of the United States,' " passed March 1st, 1817, and the Act entitled "An Act to es- tablish the Judicial Courts of the United States," passed September 24th, 1789, do hereby certify, that the reason for taking the foregoing deposition is, and the fact is, that the testimony of the said witness is material and necessary for the plaintiff [or, defendant], in the cause in the caption of the said depo- sition named, and that the said witness [stating the facts hy reason of tohich the taTcing of the deposition is perniiited by statute, as, lives and did live at the time of taking said deposition, in the City of , County of , and State of , the same being at a greater distance than one hundred miles from the city of , where the court, at which it is expected the said cause will be tried, was appointed by law to be held, to wit, more than miles therefrom]. I further certify, that (b) a notification of the time and place of taking the said deposition , signed by me, was made out and served on A. B. [m; Y. Z.], the adverse party [or, K. L., his attorney], to be present at the taking of the said deposition and to put interrogatories, if he [or, they] might think fit. I further certify, that on the day of , A. D., 18 , I was uttendiei Sit [ place of talcing the deposiiioii], aSoiessbii, hj [naming the parties in attendance'] and the witness [naming each witnessl, who was [or, were] of sound mind and lawflil age, and the witness was [or, were] by me carefully examined and cautioned, and sworn to testify the truth, the whole truth, and nothing but the truth, and the deposition was [or, were] by me reduced to writing, in the presence of the witness and from his [or, their] statements, and after carefully reading the same to the witness he [or, they] subscribed the same in my pres- ence. I have retained the said deposition in my possession, for the purpose of [sealing up and directing the same with this certificate of the reasons aforesaid for taking said deposition with my own hand to] the court for which the same was [or, were] taken. And I do further certify, that I am not of counsel nor attorney for either of the parties in said deposition and caption named, or in any way interested in the event of the said cause named in said caption. In 'testimony" whereof, I have hereunto set my hand and seal this day of . ' , in the year of our Lord one thousand eight hundred and , and of the independence of the United Spates, the a. H. [Official title.'] [Official Seal.'] 808 FORMS. 85. The like, when no notification is served on adverse party. [rmeri in Form 84 at b] No notiflcation of the time and place of taking the eaid deposition signed by me, was made out and served on the adverse party or his attorney, to be present at the taking of the said deposition and to put in- terrogatories, if he or they might think fit. That A. B. [or, Y. Z.], the said ad- verse party, resides and then resided at the city of , in the State of , more than one hundred miles from the said city of , in the State of , the place of caption to the foregoing deposition, being the place where the same was taken : and that K. L., Esquire, the attorney of the said A. B. {or, Y. Z.], in this cause, resides and then resided at the city of , in the State of , more than one hundred miles, and about miles from the city of , the place of caption aforesaid. [ Oon- tinue aa in said Form] I further certify, &c. 86. The like, when taken before a magistrate or other officer. [Insert in Form 84 at a] A [state the official title, as justice, &c.], in and for the State and County aforesaid, and duly commissioned and qualified, under the laws of the United States, to take depositions for use in the Circuit [or, Dis- trict] Courts of the United States [and proceed as in said Form], do hereby cer- tify, &c. 87. Direction on depositions. [The depositions taken must he sealed iip, and indorsed with the title of the cmtse and the name of the officer taking the same, and be by him addressed and transmitted to the Clerk of the court where the action is pending — which may be done as follows ;] O 5« •35 sa - O = «-§ O +5' CO m .3 ^ ■s S o « a*' 3 ■*^ • (U H ^ ro Bo To the Clerk of the Circuit [or. District] Court of the United States, tor the [South- ern] District of [New York]. [New York City.] ACTIONS AT LAW. 3Q9 88. Affidavit to obtain habeas corpus ad testiflcaudnm. ITitU of (he cause, as in Form 1.] District of , gj ; A. B. [or, T. Z.], plaintiff [or, defendant] in the above entitled cause, beiug duly swom, says, that E. F., now a prisoner for debt \pr as the case may be] in the custody of the sheriff of [or other officer as the case may be], is a material witness, for this deponent, at the trial of this cause, without whose tes- timony, as he is advised by his counsel and verily believes, this deponent cannot safely proceed to the trial thereof. A. B. [or, Y. Z.1 Swom to before me this day of 18 , 89. Writ of habeas corpus ad testificandum. The President of the United States of America, to the [naming the officer hav- ing the witness in custody, as, sheriff of, &c]. Greeting : You are hereby commanded that you have the body of E. P., now in prison [or as the case may be] under your custody, as it is said, under safe and secure conduct, before the Circuit [or. District] Court of the United States, for the District of , in the Circuit, to be held before the judge of the said court, at , in the said District, on the day of 18 , at o'clock in the noon of the same day, to testify the truth, according to his knowledge, in a certain cause now depending undetermined in the said Circuit [or, District] Court of the United States, wherein A. B. is plain- tiff, and Y. Z. is defendant, of a plea of , on the part of the [plain- tiff, or, defendant], (c) and immediately after the said E. F. shall then and there Lave given his testimony, that you return him to the said prison [or as the case may be] under safe and secure conduct, and have there then this writ. Witness, &c. [Teste as in Form 4.] 90. Subpoena to testify in a Circuit or District Court. The President of the United States of America, to E. P., Greeting : You are hereby commanded, that laying aside all business and excuses, you [and each of you] be and appear in your proper persons, [Seal of the Court.] (a) before the Circuit Court of the United States, for the District of , in the Circuit, to be held before the Judges of the said Court [or, before the District Court of the United States for the District of , to be held before the Judge of the said Court], (b) at , in the said Dis- trict, on the day of , 18 , at o'clock, in the noon of the same day, to t estify all and singular those things which you know in a certain cause now. depending undetermined in the said Court, wherein A. B. is plaintiff and Y. Z., defendant, of a plea of , on the pai't of the plaintiff [or, defendant], (c) and this you shaU by no means omit, under the penalty upon you [and each of you] of dollars. Witness, &c. [I'este as in Form 4.] K. li., Attorney for . M. N., Clerk. ' This recital of the plea is frequently omitted. 310 , FORMS. 91. Subpoena ticket, for Circuit or District Court. To Mr. , . By virtue of a writ of subpojna to you directed, and herewith shown to you, you are personally to be and appear in your proper person \cmitinue as in Form 90 at a] before the, &c. \as far as the Teste, and conclude] Dated the day of , 18. . By the Court. To E. F. ' M. N., Clerk. 92. Subpoena duces tecum. [Proceed as in Form 90 to c, and continue'] And that you bring with you and then and there produce a certain paper writing {or, book, or, deed, or other in- gtrmnent, &c.] purporting to be \here describe the 'hooTc or instruTnent as pourticu- Iwrly as practicable] now in your custody, and all other deeds, evidences, and writings which you have in your custody or power, concerning the premises , conclude as in said Form] and this, &c. 93. Subpoena ticket duces tecum. The same aa Form 91, inserting in the proper place the " duces tecum " clause given in Form 93. 94. Attachment against witness for disobeying' subpoena. The President of the United States of America, to the Marshal of the [Seal.] District of , Greeting : You are hereby commanded, that you attach E. F., if he may be found in your District, and bring him forthwith [or, on the day of, &c.], personallj before the Judge of the Circuit [or. District] Court of the United States, for the District of , held at [place of holding Court], in tho City of , in the said District, to answer for certain trespasses and contempts ia not obeying our writ of subpoena to him directed, and* on him duiy served, commanding him to appear before the said Circuit [or. District] Court, at , on [as in subpcma], to testify all and singular those things which he knows in a certain cause depending undetermined in the said Court, between A. B., plaintiff, and Y. Z., defendant, on the part of the plaintiff [or, defendant], and you are further commanded to detain him in your custody until he shall be discharged by the said Court. And have you then there this rtrit. Witness, &c. [Teste as in Form 4.] 95. Writ of inquiry. Tbe President of the United States of America, to the Marshal o the United States for the District of , Greeting : Whereas, A. B., lately ia the Circuit [or, District] Court of the United States of America, for the District of , before the judge thereof, at [naming the place of holding the court], in the said District, by bill without our ACTIONS AT LAW. 311 writ impleaded Y. Z., being in custody, &c., for that [hers insert the declaration'], to the damage of the said A. B. of dollars, as he said, and thereupon he brought his suit, &c. And such proceedings were thereupon had, in the said Circuit [or, District] Court, before the judges thereof, that the said A. B. ought to recover against the said Y. Z. his damages by reason of the premises ; (a) but because it is not known to the said court what damages the said A. B. hath sustained by reason of the premises aforesaid ; therefore, you are hereby commanded, that by the oaths of [twelve] good and lawful men of your district, you diligently inquire what damaiges the said A. B. hath sustained, as well by means of the premises aforesaid, as for his costs and charges, by him about his suit in this behalf expended ; and the inquisition which you shall take thereon, do you return to the judge of the said Circuit [or, District] Court at [naming place of holding the eourtj, in the said District, on* the day of , 18 , under your seal and the seals of those by whose oaths you shall take such inquisition, and have you this writ thM:e at the same time. Witness, &c. [Teste as in Form 4.] M. N., Clerk. K. L., Attorney for 96. Notice of execution of ■writ of inquiry. [Title of the cause, as in Form 1.] Sir: Please to take notice, that a writ of inquiry of damages in this cause will be executed before Q. R., Esquire, Marshal of the United State's, for the District of , at [here designate the place], in the City of in said District, on the day of • 18 , between the hours of and , in the noon of that day. Dated ,18 . Yours, &c., K. L., Attorney for Plaintiff. To O. P., Atfomey for Defendant. 97. Subpoena on a writ of inquiry. [Insert in Form 90 at a] Before the Marshal of the United States for the District of , [omit what follows in said Form to (b) and there proceed], at, &c. [and insert at c], in which said cause a writ of inquiry of damages is, ihen and there to be finally executed. [ Conclude as in said Form] And this. «&c. 98. Inquisition on writ of inquiry. An inquisition, taken the day of , in the year one thousand eight himdred and , before me, Q. R., Marshal of the United States for the District of , at the City of , in the said District, by virtue of a certain writ of inquiry of [damages] to me directed, and to this inquisition annexed, to inquire of and concerning certain matters in the said writ contained, by the oaths 6f [naming the jurors], [twelve] good and lawful men of the said District, who being chosen, tried, and sworn, say, S12 FORMS. upon their oaths, that A. B., the plaintiff in the said writ named, has sustained damages by reason of the premises in the said writ contained, to dol- lars, besides the costs and charges by the said plaintiff about this suit in that behalf expended, and for those costs and charges to [six] cents. In witness whereof, as well I, the said Marshal, as the jurors aforesaid, to this inquisition have severally set our hands and seals, the day and year above written. Q. E., U. S. Marshal, [l. s.] Jurors. C. D. [L. s.] E. F. [l. s.] 1 - &c. 99. AdIjnstTnent on verdict. [Title of the cause, as in Form, 1.] In pursuance of an order made in the above entitled cause, on the day of , in the year of our Lord one thousand eight hundred and , "by which, among other things, it was referred to the undersigned to adjust the amount for which judgment shall be entered upon the verdict in this cause, and to report thereon to this Court with all convenient speed, — i, G. H., to whom the matter was referred, do report, that I have been at- tended by the coimsel for the , and have taken and examined the testimony offered in support of the plaintiff's claim, and do find that the plain- tiff is entitled to judgment on said verdict for dollars, and to interest on said sum, from the day of ,18 , to the [date of said verdict], amounting to dollars, in the aggregate amounting to dollars. Dated the day of A. D. 18 . a. H. 109. Notice of taxation of co8ts. [Title of the cause, as in Form 1.] Sir: Please to take notice. That the bills of costs in the above entitled cause will be taxed before the Clerk [or. Judge] of said Court, at [the United States Court Rooms], in the City of , in the said District of , on the day of , A. D. 18 , at o'clock in the noon of that day, as follows, that is to say : Attorney's fees, disbursements, and charges, $ Clerk's and Commissioner's do Marshal's do Dated the day of , A. D. 18 Yours, &c., K. L., Attorney for To O. P., Attorney for ACTIONS AT LAW. 313 101. Taxed bUI of costs. [Title of the tavse, as in Form 1.1 Attorney's fee by statute. $ Disbursements, &c Taking depositions at $3.50 each "Witnesses' fees paid, viz, E. and F., days' attendance at $1.50 each Certified copies papers obtained and served [Add the various other items.^ Clerk's and Commissioner's fees and charges Marshal's fees and charges $ Taxed and adjusted at loo dollars. M. N., Clerk. ' 102. Order for default and reference to a commissioner to ascertain and report the amount due. [Caption, and title of cause, as in Form 2.] The monition issued herein having been returned personally served as to the defendant Y. Z., which return has been filed ; and the declaration having been filed, from which it appears that the said suit is brought against the defendant [here insert briefly the nature of the action, as, upon a bond for the payment of duties], and no plea having been in- terposed by the said defendant, according to the rules and practice of, this Court ; — Now, on motion of K. L., attorney for the plaintiff, it is 'ordered, ad- judged, and decreed that the default of said T. Z., defendant, be and the same is hereby entered, and that the said A. B., plaintiff, do recover herein against the de- fendant Y. Z., the amount of his [debt and damages, or in assumpsit, damages], by reason of .the matters contained in the said declaration. And on like motion, it is further ordered and decreed that it be referred to G. H., United States Commissioner, to ascertain the amount of said [debt and damages], and to report to the Court thereon with all convenient speed. 103. Commissioner's report of amount due, — after default. [Title of the cmise, as in Form 1.] To the Honorable , Judge of the Circuit [or, District] Court of the United States, for the District of In pursuance of a decretal order of reference made and entered in the above entitled cause, by which it was referred to me to ascertain the amount of the plaintiff's debt and damages by reason of the matters contained in the declara- tion herein, and report thereon to the court ; I, Or. H., United States Commis- sioner, to whom the above matter was referred do respectfully report ; — That I have been attended on such reference by K. L., the attorney for the plaintiff, and have taken the proofs produced to me therein, and do find that the said debt amounts to dollars, and the said damages to dollars, mak- S14 FORMS. ing together the sum of dollars, debt and damages, due at the date hereof. All of which is respectfully submitted. Dated , the day of , 18 . G. H., U. ^. Commissioner, 104. Judgment on report of Commissioner, — on default. [ Caption, with Title of the cause, as in Form 2.] On reading and filing the report of Q. H., United States Commissioner, to ■whom it was referred to ascertain the amount of the plaintiff's debt and dam- ages, by reason of the matters contained in the declaration herein, by which it appears that the said debt and damages amount, together, to the sum of dollars. Therefore, on motion of K. L., attorney for the plaintiff, it is ordered and " decreed, that the said report be in all things confirmed, and that the said A. B., plaintiff, recover herein against Y. Z., the defendant, the amount of said debt and damages, together w,ith his costs and charges, amounting to dol- lars, making together the sum of dollars, debt, damages, and costs, for which sum judgment is hereby entered. By the Court, M. N., Clerk. 105. Judgment by default for not appearing; in debt. Circuit [or, District] Court of the' United States, For the District of Pleas before the judge of the Circuit [or, District] Com't of the United States of America, for the District of , in the Cir cuit, at [place of holding the court'] in the City of , of the term of ,18 , to wit, of the day of , in the year of our Lord one thousand eight hundred and Witness, the Honorable , Judge of the said court. M. N., Clerk. District ol ss : Be it remembered, that heretofore, to wit, on the day of 18 , in (a) term (b) of the Circuit [or. District] Court of the United States of America, for the District of , in the Cir cuit, held at [place where court was held at time of N'arr.'], in the city of in the said district, before the judge [or, judges] of the said court, (c) came A. B., by K. L. his attorney, and (d) brought then there into the said court before the judge [or, judges] thereof, his certain declaration against Y. Z. [be- ing in custody, &c.], of a plea of (e) debt, which said declaration follows in these words, that is to say : [insert the declaration]. And now at this day, to wit, on the day of , 18 , in (f ) term , (g) comes the said plaintiff by his attorney aforesaid, and the said defendant although now here solemnly called, comes not, bu ACTIONS AT LAW. 31 5 ■nakes default, whereby the said defendant remains therein undefended, &c., ■wherefore the said plaintiff ought to recover his (h) debt and damages by rea- son of the premises, (k) And hereupon the said plaintiff prays judgment, and his (1) debt and dam- ages by him sustained on occasion of the (m) detaining of the said debt in the said declaration mentioned, to be adjudged to him, &c. And because it is suggested and proved, and manifestly appears to the said court now here, that the said plaintiff hath sustained (n) damages on occasion of the premises to doUars, besides his costs and charges by him about his suit in this behalf expended, (o) ' Therefore, it is considered, that the said plaintiff do recover against the said defendant, his (p) said debt, to dollars, and also dol- lars for his damages which he has sustained, as weU on occasion of the detain- ing of the said debt, as for his costs and charges by him about his suit in this behalf expended, by the said court now here adjudged to the said plaintiff, and with his assent ; which said debt, damages, costs, and charges in the whole amount to dollars. And the said defendant in mercy, &c. Judgment signed this day of , 18 . M. N., Clerk. 106. The like, in assumpsit ; case ; covenant j and trespass. [Proceed as in Form 105 to e, and continue] trespass on the case upon prom- ises [or, as the case may le] ; which said declaration follows in these words, that is to say [insertinff the declaration']. And now at this day, to wit, on the day of , 18 , in (f) term, (g) comes the said plaintiff by his attorney aforesaid, and the said de- fendant although now here solemnly called comes not, but makes default, whereby the said defendant remains therein undefended, &c. ; wherefore the said plaintiff ought to recover his (h) damages by reason of the premises, (k) And hereupon the said plaintiff prays judgment and his (1) damages by him sustained on occasion of the (m) non-performance of the said promises and un- dertakings, in the said declaration mentioned, to be adjudged to him, &c. And because it is suggested and proved, and manifestly appears to the said Court now here, that the said plaintiff hath sustained damages on occasion of the premises to dollars besides his costs and charges by him about his suit in this behalf expended, — Therefore, it is considered, that the said plaintiff do recover against the said defendant his damages by occasion of the premises to dollars, by the Court here assessed, and also dollars for his costs and charges by him about his suit in this behalf expended, by the said Court now here ad- judged to the said plaintiff, and with his assent ; which said damages, costs, and charges in the whole, amount to dollars. And the said defendant in mercy, &c. Judgment signed tliis day of , 18 . M. N., Clerk. ' The portion of the foregoing from k to o is, in some districts, omitted. 316 FORMS. 107. The lite, when suit was commenced by declaration. [Insert in Forms 105 und 106 at k, the following suggestion] And hereupon the said plaintiff suggests to the Court now here, and gives the said Court to under- stand and be informed, that this suit was commenced against the said defend- ant by filing the said declaration in the office of M. N., Esquire, Clerk of said Court ; and that a copy of said declaration, and a notice [or, rule] requiring the defendant to plead thereto [and ■which rule was duly entered according to the rules and practice of this Court], were personally served on the said defendant [proceed as in said Forms at k]. And hereupon, &c. lOS. The like, of the same term, with the declaration. [Insert in Form 105 at a. and f] this same, [and at o, instead o/came,] comes, [and at d, instead o/' brought then there,] brings now here. 109. The like, of a different term. [Insert in Form 105 at b] now last past. 110. The like, when declaration is filed in racatiou. [Insert in Form 105 at a] vacation of term, in the office of M. N., Esquire, Clerk of said Court, A. B., according to the rules and practice of the said Court, filed his certain declaration against Y. Z., &c. 111. Judgment by default for not pleading. [Insert in Forms 105 and 106 at g] (a) comes as well the said plaintiff, by his attorney aforesaid, as the said defendant in his own proper person [or, by M. N., his attorney]. And the said defendant [by his attorney aforesaid] de- fends the wrong and injury, when, &c., and says nothing in bar or preclusion of the said action of the said plaintiff; whereby the said defendant remains therein undefended against the said plaintiff. Wherefore the said plaintiff ought, &c. 112. The like, of a different term, with an imparlance. [Insert in Form 111 at a] And now at this day, that is to say, on the day of , 18 , in this same term of , until which day the said defendant had leave to imparl to the said declaration, and then to answei the same, &c., before the said Judge of the said Court, at [place of holding Court] [continue as in said Form at a], comes, &c. 113. Judgment by default, upon a writ of inquiry j In assumpsit j casej covenant; and trespass. [Proceed as in Form 106, to k, and continue'] (a) But because it is not known to the said court what damages the said A. B. hath sustained by reason of the premises, therefore the Marshal of the District of ig com- manded, that, by the oaths of [twelve] good and lawful men of said district he ACTIONS- AT LAW. 317 diligently inquire what damages the said A. B. hath sustained, as well by rea- son of the (b) premises aforesaid, as for his costs and charges, by him about his suit in this behalf expended ; and that the inquisition which he shall take thereon, he retiwn to the judge [or, judges] of the said Circuit [or, District] Court at IpJace ofholding the couri\, in the said district, on the day of , 18 , under his hand and seal and the seals of those on whose oaths ha shall take such inquisition, and hare then there the writ to him thereupon di- rected ; the same day is given to the said plaintiff, at the same place. At which day, before the judge [or, judges] aforesaid, comes the said plain- tiff, by his attorney aforesaid ; and the Marshal, to wit, Q. E., Esquire, Marshal of the district of , now here returns a certain inquisition in- dented, taken before him at the [place of taking the inquidtion], in the City of , in the said District, on- the day of , in the year of Lord one thousand eight hundred and , by the oaths of [twelve] good and lawful men of the said district, by which it is found that the said (c) plain- tiff hath sustained damages by reason of the premises to dollars over and above his costs and charges by him about his suit in this behalf expended, and for those costs and charges to [six] cents. [ Conclude as in Form 106] There- fore it is considered, &c. 114. Judgment by default, upon a writ of inquiry ; in debt on bond. [Imert in Form 113, at a] And by reason of the aforesaid breaches of the said condition of the said writing obligatory above assigned, together with his costs and charges by him about his suit in this behalf expended [proceed as in mid Form. But because, &c., to b, and he/re insert, instead of the words prem- ises aforesaid] aforesaid breaches of the condition of the said writing obliga- tory above assigned [continue as in said Form, to o, and thence proceed], defen- dant did not [state the finding of the jury], and that the said plaintiff hath sus- tained damages by reason of the aforesaid breaches of the said. condition of the said writing obligatory to dollars, over and above his costs and charges by him about his suit in this behalf expended ; and for those costs and charges to dollars. [Conclude as in Form 106] Therefore it is con- sidered, &c. 113. Judgment record on confession; in debt on bond. [Proceed as in Form 105, to g, and -continue] The said Y. Z., defendant in this action, by O. P., his attorney, comes and defends the wrong and injury, when, &c., and says that he cannot deny the action aforesaid, of the plaintiff; (a) nor but that the said writing obligatory is his deed ; nor but that he owea to the said plaintiff the said sum of dollars, lawful money of the United States of America, in manner and form as the said plaintiff has above thereof complained against him ; and the said defendant freely here in court releases all errors that may intervene in the rendition of the judgment hereupon to b« entered, as well as in the execution thereupoB to be issued. [Conclude as in said Form] Therefore it is considered, &c. 318 FORMS. 116. The like, in assumpsit, case, corenant, and trespass. [Proceed as in Porm 115, to a, and continue] Nor but that he the said de- fendant did undertake and promise, in manner and form as the said plaintiff hath above thereof complained against him ; nor but that the said plaintiff hath sustained damages on occasion of the not performing of the said several prom- ises and undertakings in the said declaration mentioned, to dollars, besides costs. And hereupon the said plaintiff prays judgment, and his damages so ac- knowledged, together with his costs and charges by him about his suit in thia behalf expended, to be adjudged to him, &c. Therefore it is considered, that the said plaintiff do recover against the said defendant his damages aforesaid, to ^ dollars, in form aforesaid ac- knowledged, and also dollars, for his said costs and charges by the said court now here adjudged to the said plaintiff, and with his assent ; which said damages, costs, and charges in the whole, amount to dollars. And the said defendant in mercy, &e. Judgment signed this day of , 18 . M. K, Clerk. 117. Judgment on verdict for plaintilf. [Proceed as in Form 105, to e, and continue'] debt [or, trespass on the case upon promises, or other appropriate plea], which said declaration follows in these words, that is to say [insert the declaration].' And the said Y. Z., defendant in this suit, by O. P., his attorney, comes and defends the wrong and injui-y, when, &c. [Tmtb insert the pleadings to the issue]. Therefore the issue above joined is ordered by the said court to be tried at the term of the said court appointed to be held at the City of , on the day of , iu the year 18 ." (a) And now at this day, to wit, the day of , 18 , being as yet of the said term , before the said Justices at the [United States Oora-t House], in the said City of , came the said A. B., by his attorney aforesaid ; and the said judge, before whom the said issue was tried, has sent hither his record had before him in these words, to wit : — ■ Afterwards, that is to say, on the day and at the place before mentioned, (b) before the judge [or, judges] of the said court came as well the above named plaintiff as the above named defendant, by their respective attorneys aforesaid, and the jurors of the juiy summoned to try the said issue being called also came, who to speak the truth of the matters aforesaid being chosen, tried, and ' When oyer has been demanded and ent, and annexed thereto. Here set forth given, the following suggestion may be the oyer, as, if letters patent, recite them, here inti'oduced. " And it is suggested adding. The schedule leferred to in these to the court, now here, that the said letters patent, and making part of the plaintiff pave oyer in the words and same, is as follows, &c.]. figures following, to wit, [describing the " In some courts, the portion follow- oyer, as, of the letters patent mentioned ing, from a to b, is omitted, and instead in the said declaration and of the sohed- are used the wonls, " at which day and ule referred to in the said letters pat- place last aforesaid," before, &o. ACTIONS AT LAW. 3I9 sworn, say, upon their oath, (c) [here insert the flnding of the jury], in manner and form as the said plaintiff hath above complained against him ; and they assess the damages of the said plaintiff by reason of the premises over and above his costs and charges by him about his suit in this behalf expended, to dollars, and for those costs and charges,, to dollars. Therefore, it is considered, that the said plaintiff do recover against the said defendant, (d) his said damages, costs, and charges by the jurors aforesaid in form aforesaid assessed, and also dollars for his costs and charges by the court here adjudged, of increase to the said plaintiff with his assent, which said damages, costs, and charges, in the whole, amount to dollars. And said defendant in mercy, &c. Judgment signed this day of ,18 118. The like, in assumpsit. M. ]Sr., Clerk [Insert in Form 117 at c] that the said defendant did undertake and promise [and continue as in said Form], in manner, &c. 119. The like, in case. [Insert in Form 117 at o] that the said defendant is guilty of the premises above laid to his charge [and contimie as in said Form], in manner, &c. 120. The like, in trespass. \lnsert in Form ll7 at c] that the said defendant is guilty of the several tres- passes above laid to his charge [and continue as in said Form], in manner, &c. 121. The like, in covenant. [Insert in Form 117 at c] That the above mentioned [indenture, or other in- strument] is the deed of the said defendant, as the said plaintiff hath above in that behalf alleged ; and, as to the breaches by the said plaintiff above assigned, the jurors aforesaid upon their oath aforesaid, say that [the said defendant did not, nor would, &c., setting forth the 'breaches alleged which they find for the plain- tiff], and that the said plaintiff should recover his damages therefor ; and thoy assess the damages of the said plaintiff, by reason of the said breaches above as signed over and above his costs and charges by him about his suit in this be- half expended, to dollars, and for those costs and charges dollars. [Oonclude as in said Form] Therefore, it is considered, &c. 122. The like, in deht. [Insert in Form 117 at c] That the above mentioned writing obligatory is the deed of the said defendant as the said plaintiff hath above in that behalf, alleged; and they assess the damages of the said plaintiff on occasion of the detaining the above debt, over and above his costs and charges by him about his suit in this behalf expended, to dollars, and for those costs and charges to dollars, (a) [ Oonclude as in said Form] Therefore, it ia considered, &c. [inserting at d, the words] his said debt, to dollars, and also. 820 FORMS. 123. The like, in debt on bond. [Fi-oceed as in Farm 123 to a, and adc[] And as to the breaches by the said plaintiff aboye assigned, the jurors aforesaid upon their oath aforesaid say that [the said defendant did not, nor would, &c., setting forth the hreaches alleged which they find for the plaiiitiff], and that the said plaintiff should recover his damages therefor ; and they assess the damages of the said plaintiff by reason of the said breaches above assigned, over and above his costs and charges by him about his suit in this behalf expended, to dollars. IConcliidt as in said Form] Therefore, it is considered, &c. 121. Writ of scire facias, on a judgment. The President of the United States of America to the Marshal of the District of ," Greeting : Whereas, A. B. lately in the Circuit [or, District] Court in and for the Dis- trict of , before the judge thereof, by the judgment of the said Court, recovered against Y. Z., for his damages which he had sustamed, as well by reason of (a) [here state hriefly the nature of the cause of action], as for the costs and charges in and about that suit expended, whereof the said Y. Z. ia convicted, as appears of record; nevertheless, execution of the said judgment yet remains, as we have received information from the said A. B., and we,' will- ing that those things which are just and right should have a due execution, do therefore command you, that by honest and lawful men of your District, you make known to the said Y. Z. that he be and appear before the Judge of the said Circuit [or. District] Court, at [state the place of holding said Court], on the day of , 18 , to show, if he has or knows of any cause why the said A. B. ought not to have execution against him, of the damages aforesaid, according to the force, form, and effect of the said recovery, if he shall think it expedient for him so to do ; and have you there the names of those by whom you shall so make known to him, and this writ. Witness, &c. [Teste as in Form 4.] 125. Scire facias in assumpsit. [Insert in Form 124 at a] the not performing certain promises and under-' takings then lately made by the said Y. Z. to the said A. B. 126. Scire facias in debt. [Inse/rt in Fm-m 134 at a] the detention of a certain debt which the said A. B. in the said court lately recovered against the said Y. Z. ' In general throughout these forms ed., 869. The form " we command the phrase " you are hereby command- you" is, however, often employed ed" has been used in process issued in the in practice. Tlie latter phrase har- name of the Pre.'iident of the United monizes so much better with other States ; substantially for the reasons portions of the writ of scire facias (hat urged by Judge Comkling, ConU. Tr., 5 it is continued in that writ. ' ACTIONS AT LAW. 821 127. Scire facias iii corenaiit. [Insert in Form 124 at a] the breach of a certain covenant made between the said A. B. and the said T. Z. 128. Scire facias in case. [Insert in Form 124 at a] a certain grievance then lately committed by the said Y. Z. to the said A. B. 129. Scire facias in trespass. [Insert in Form 124 at a] a certain trespass then lately committed by the said Y. Z. 130. Notice to plead to scire facias. [Title of the cause, as in Form 1.] Sir: - ■ Please to take notice that the defendant in this cause is hereby required to plead to the writ of scire faaias issued therein, with a copy whereof you are herewith served, within days after service of a copy thereof. Dated , 18 . Yours, &c., K. L., Attpmey for Plaintiff To 0. P., Attorney for Defendant. 131. Writ of fieri facias. The President of the United States of America, to the Marshal of the District of , Greeting : You are hereby commanded, that of the goods and chattels of Y. Z. [naming each defendant for whom the writ is issued, and [Seal of the Court.'] when there is more than one defendant, add. or of the goods and chattels of either of them] in your district, you cause to be made the said sum of dollars, to satisfy a judgment lately rendered in the Circuit [or, District] Court of the United States for the District of , against Y. Z. [naming above defendants], for the damages which A. B. [naming those in whose favor judgment was rendered] had sustained, as well by reason of Ca) [here state briefly the nature of the cause of action, inserting the words of such of the Forms fur scire facias as may be appli- cable] as for the costs and charges in and about that suit expended, whereof the said Y. Z. is convicted, as appears of record, (b) And if sufficient goods and chattels of the said Y. Z. [naming the above defendants] cannot be found within your district, that then you cause the amount of the said judgment to be made of the real estate, lands, and tenements whereof the said Y. Z. [naming the above defendants] were [jointly or severally] seized on the said [stating the date of the judgment] day of , 18 , or at any time afterwards, in whose hands soever the same may be, and have you that money together with this writ, with your doings thereon, before the Judge of the said Circuit [or, District] Court, Vol. 11—21 323 FORMS. B,t the [place of holding court:], on the day of ,18 , to satisfy the judgment so rendered as aforesaid. Witness, &c. [Teite as in Form 4.] K. L., Attorney, &c. 132. Fi. fa. after scire facias by defanlt. M. N., Clerk. {Insert in Form 131 at b] And whereupon it is considered that the said A. B. have his execution against the said T. Z. of the damages [or, debt and dam- 4 ages] aforesaid, according to the force, form, and effect of the said recovery, by e}ie default of the said Y. Z. as also appears to us of record. [ Continue as in mid Form] And if sufficient, &c. 133. Fi. fa. after plea to a scire facias. [Insert in Form 131 at b] And also to satisfy the said A. B. dol- lars, which in the said court were adjudged to the said A. B., for his costs-and charges by him laid out in and about the prosecution of the writ of scire facias issued, for having execution upon the said judgment for the damages [or, debt and damages] aforesaid : And whereupon it was after plea pleaded [or, de- mm'rer joined] therein, considered in the said court that the said A. B. should have his execution against the said Y. Z. of the damages [or, debt and dam- ages] aforesaid, according to the force, form, and effect of the said recovery as also appears to us of record. [ Continue as in said Form] And if sufficient, &c. 134. Direction to Marshal on fieri facias. [Indorsed on the writ] Levy and collect the sum of dollars, with interest from the day of i 18 , until paid, with your fees and poundage. K. L., Attorney for, &c. 135. Writ of capias ad satisfiiciendum. Ths President of the United States of America, to the Marshal of the District of , Greeting : You are hereby commanded, that you take Y. Z. [Seal of the Cyurt] [narnvg each defendant for wlwm the writ is issued], defen- dai,+. , if he [or, they] shall be found in your district, and him [or, them] safely kepp, so that you may have his body [or, their bodies], be- fore the Judge of the Circuit [or. District] Coiurt of the United States of Amer- ica, for the District of , in the Circuit, to be held at [naming tlie place of holding court], in the City of , in the said District, on the day of , 18 , to satisfy a judgment lately ren- dered in the said court against the said Y. Z. [naming tJte above d-fendants] for [stating the amount of the judgment] dollars, for the damages which A. B. [nam- ing those in whose favor judgment was rendered^ had sustained, as well by reason of (a) [here state hriefiy the nature of the cause of action, inserting the words of luoh of the Foi-msfor sci^e facias, 134 to 139, as may ie applicable], as for the cost* ACTIONS AT LAW. 333 Bnd charges in and about that suit expended, whereof the said T. Z. is con- victed as appears of record ; (b) and that you have then there this wiit. Witness, &c. [Teste as in Form, 4]. M. K, Clerk. K. L., Attorney for, &c. 136. Ca. sa. after scire facias by default. [Imert in Form'lZS at b, «Ae words in Form 133, forfi.fa. after sdrefaciai try default.^ 137. Ca. sa. after plea to a scire facias. [Insert in Form 1Z5 at b, the words in Form 13S, for fi. fa. after plea to scire facias.'] 138. Satisfaction piece. Clerk's Office, , 18 . [Title of the cause, as in Form 1.] I, M. N., Clerk of the Circuit [or, District] Court of the United States, for the District of , do certify that the judgment docketed in this court, in the above cause, on the day of , in the sum of dollars, was this day satisfied of record. In testimony whereof, I have hereunto subscribed my name, and affixed the seal of the said Circuit [or, District] Court, this day of , in the year of our Lord one thousand eight hundred and [Seal of tlie Courf] , and of the independence of these United States the M. N., Clerk. 139. Clerk's certificate. United States of America, District of I, M. N., Clerk of the Circuit [or, District] Court of the United States of America, for the District of , in the Circuit, do hereby certify, that the writings annexed to this certificate are true copies of their respective originals, on file and remaining of record in my office. In testimony whereof, I have caused the seal of the said com-t to be hereunto affixed, at the City of , in the District of , this day of , in the year of our Lord one thousand eight hundred and , and of the independence of the said United States, [Seal] the M. N., Clerk. ' 110. Certificate of authority, etc. United States of America, ) District of ( **' I, M. N., Clerk of the Circuit [or, District] Court of the United States 01 America, for the District of , in the Circuit, do 324' FORMS. hereby certify, that I am well acquainted with the handwriting of G. H., whose name is subscribed to the annexed {naming the document'], and that the signa- ture to the same is in his proper handwriting. And I do further certify, that ha was at the time of signing the same [state official title, as, a United States Com- missioner duly appointed by the Circuit Court of the United States of America, for the District of , in the Cu'cuit]. In testimony whereof, thave hereunto subscribed my name, and affixed the seal of the said Circuit [or, District] Court, this day of , in the year of our Lord one thousand eight hundred and , and of [Seal] the independence of these United States, the M. N., Clerk. 141. Venire, for jurors.' The President of the United States cf America, To the Marshal of the District of , Greeting : You are hereby commanded, that you cause to come before the next Circuit [or. District] Coiut of the United States of America, for the District of , to be held at the City of , in the said District of on the day of , next, [twelve] free and lawful men, resident within the District of , above the age of twenty- one, and imder 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 tene- ments, of the value of one hundred and fifty dollars, free of all reprises, debts, demands, or incumbrances whatsoever, by whom the truth of the matter may be better known, and who are in no wise of kin to the plaintifis or defendants, between whom the several issues joined are to be tried, to make a certain jury of the country, between the said plaintiffs and the said defendants, because as well the said several plaintiffs as the said several defendants between whom the matters in controversy are, have put themselves upon that jury ; and have you then and there the names of those jurors, and this writ. Witness, &c. [Teste as in Form 4.] M. N., Clerk. K. L., Attorney. 143. Summons to jurors. Mr. E. P., [New York City.] You are hereby summoned to attend a Circuit [or, District] Court of th« United States, to be held in and for the [Southern] District of [New York], in the [United States Court House], No. [47 Chambers-street, New York City], on the day of j 18 , at [eleven] o'clock in the [fore-]noon of that day, as a [petit] juror. -. , ^ ( Atendance, two dollars per day. Jurors ees. -j jj^yel, five cents per mile when from the country. [$35] fine for Non-Attendance. Q. R., Marshal of the United States, &a ' The Form given is the one gener- by special rules, which require a correa. ally used. In some districts the selec- ponding change in the form of th« tici »ad drawing of jurors is regulated venire. CHAPTER II. SUITS IN EQUITY. 1. Bill of complaint — General form. Circuit Court of tlie United States, For the District of In the Circuit. llntroduction.] • ' To the Judges of the Circuit Court of the United States, for the District of , in the Circuit. (a) A. B., of [ place of residence], and a citizen of the State of brings this, his bill, against (b) T. Z., of [place of residence], and a citizen of the State of [add other defendants with their residences], (c) and tLere- upon your orator complains and says, (d) that, [Here follows a statement of tht complainanfis case.]' (e) [Confederacy clause.]' But now so it is, may it please your Honors, that the said T. Z., combining and confederating with divers persons [or, if there are several defendant's, with 8. T., and U. V., and with divers other persons ; or, the said T. Z., S. T., and U. v., combining and confederating together and with divers persons], at present unknown to your orator, whose names when discovered your orator prays he may be at liberty to insert herein with apt words to charge them as parties defen- dants hereto, and contriving how to wrong and injure your orator in the prem- ises, he the said T. Z. absolutely refuses to comply with such request. (f ) [ Cliarging part] * And the defendant sometimes alleges and pretends that [here set forth tht matters and excuses which form the supposed grounds of defense; and where then ' Supreme Court Equity Eule^ No. omitted. Supreme Court Equity Rule, 20, 1 Ante, 136. No. 21, 1 Ante, 136. " See Supreme Court Equity Rules, * The charging part may be omitted. Nos. 21, 22, 26, 1 Ante, 136. 137. Supreme Court Equity Rule, No. 21, 1 " The confederacy clause may be Ante 136. 826 FORMS. are several matters, say, and at otlier times lie alleges and pretends, &c.], where- as your orator charges the contrary thereof to be the truth, and that [here statt the special matters which meet the supposed defense]. (S) [Jurisdiction clause.'] ' All -which actings, doings, and pretenses, are contrary to equity and good conscience, and tend to manifest wrong and injury of your orator in the premises. In consideration whereof, and forasmuch as your orator can only have ade- quate relief in the premises in this honorable court, where matters of this nature are properly cognizable and relievable ; — (h) [Interrogating part.] ° To the end, therefore, that the said T. Z., defendant, [and the said other parties defendant when discovered,] may, if he [or, they] can, show why your orator should not have the relief hereby prayed, and may upon his [or, their sev- eral and respective] corporal oath , and according to the best and utmost of his [or, their several and respective] knowledge, remembrance, information, and belief, full, 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. 3. Whether, &c. Mtc. (k) [Prayer for Special lieKef.] Here set forth the particular reli^ desired, according to the case made. (m) [Prayer for General Relief] And that your orator may have such further or other relief in the premises as the nature of the circumstances of this case may require, and to this honor- able court shall seem meet. [Oonclnde with the p? -ay er for process, as follows:] (n) [If for u. lurit of ne exeat, say]' And may it please your Honors to grant unto your orator, a writ of ne exeat regno, of the United States of Ainerica, issuing out of and under the seal of this honorable court, to restrain the said defendant Y. Z. from departing out of the jurisdiction of this court. (o) [If for an injtmction, sayY And may it please your Honors to grant un- to your orator the writ of injunction issuing out of and under the seal of this honorable court, or issued by one of your Honors, according to the form of the statute in such case made and provided, directed to the said Y. Z„ defendant, commanding, enjoining, and restraining the said defendant from, &c. [according to the prayer of the bill.] ' The jurisdiction clause may be ment in the bill unless the complainant emitted. Supreme Court Equity Rule, desires to do so", to obtain a discovery. No. 21, 1 Ante, 136. Supreme Court Equity Rule No 03 1 ' Supreme Court Equity Rule, No. Ant", 148. ' 43, I Ante, 139. _ ' The injunction, or ne exeat, or oth- It is not necessary to interrogate a er special oi-der, may be aslced for in defendant particularly upon any state- the prayer for reliefj in which case the SUITS IN EQUITY. 337 (p) [Vfoi' a suhptena, soy]' And may it please your Honors to grant un- to your orator a writ oi suhposna of the United States of America issuing out of and under the seal of this honorable court, directed to the said Y. Z., defend- ant, commanding him, on a day certain, therein to be named, and under a cer- tain penalty, to be and appear in this honorable court, then and there t» answer all and singular the premises, and to stand to perform and abide such farther order, direction, and decree as may be made against him. And your orator, as in duty bound, will ever pray, &c. K. L., Solicitor for Complainant. H. J.," Of Counsel. (r) Affidavit of Complainant. United States of America, District of A. B., being duly sworn, deposeth and saith : That he is the complainant ax the foregoing bill named, and has read the same, and knows the contents thereof. That th6 said bill is true of his own knowledge, except as to those matters which are therein stated to be on his information and belief, and as to those he believes it to be true, (s) A. B. Sworn to before me, this day of , 18 . (t) [Note specifying interrogatories] ' The .defendant [Y. Z.] is required to an- swer the interrogatories in the foregoing bill of complaint, numbered respect- ively 1, 3, 3, &c. 2. The like, by a corporation. [Insert in Form 1 at a, in place of A. B., &c.] The [niate the name of the cor- poration'], a corporation duly created and organized and doing business under the laws of the State of [or, a corporation duly incorporated by the name aforesaid, by the State of ] [continue as in said Form], bring, &c. 3. The like, by the United States. [Tnsert in Form I at a, in place of A. B., &c.] K. L., United States Attorney in and for the District of , on behalf of the United States of America [continue as in said Form], brings, &c. 4. Bill by patentee ; Infringement of patent. [Proceed as in Form 1 to d, and continue] that (a) the said A. B. is a citizen of the United States, and is the true and original inventor or discoverer of a new and useful improvement [or, invention] in [describing the invention], which same need not be repeated in the Supreme Coiu-t Equity Rule, No. 23, 1 prayer for process. Supreme Court Ante, 136. Equity Rule, No. 23, \ Ante, 136. " Supreme Court Equity Rule, No. ' The prayer for subpoena should con- 24, 1 Ante, 137! tain the names of all the defendants ' This note is a part of the bill, and named in the introductory part of the the interrogatories to be answered by bill, and if any are infants, or otherwise each defendant should be particular- under guardianship, state the facf. ly specified. Supreme Court Equiiy ^ Rules, Nos. 41, 42, 1 Ante, 139. 328 FORMS. said improvement [or, invention] wad not known or used by others before the invention and discovery thereof by tki! said A. B. (b) That the said A. B. thereupon afterwards did apply to the Commissioner of Patents of the United States for letters patent for such improvement, and having fiilly and in all re- spects complied with all the requirements of the law in that behalf, and es- pecially having made oath that he verily believed himself to be the true in- ventor or discoverer of the sai^ improvement, and also having paid into the treasury of the United States the sum of thirty dollars, and presented to the Commissioner of Patents of the United States a petition setting forth his desire to obtain an exclusive property in said improvement, and praying that letters patent might, for that purpose, be granted unto him, and having also delivered and filed in said office of the Commissioner of Patents a written description of his said improvement, in such full, clear, and exact terms as to enable any per- son skilled in [the art with which the said improvement is most nearly con- nected], to make and use the same ; which said description was duly signed by the said A. B., and attested by two witnesses ; and thereupon the said Commis- sioner of Patents caused letters patent to be made out in the name of the United States of America, in due form of law in all respects, bearing date the day of , in the year one thousand eight hundred and ' , whereby was granted unto the said A. B., his heirs, administrators, or assigns, for the term of [fourteen] years from the date thereof, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said improvement, which is entitled in said letters patent [title of patent] ; and the said letters patent having been signed by , Secretary of the In- terior of the United States, and countersigned and sealed with the seal of the patent office, by , Coinmissioner of Patents of the United States, and the same having been duly recorded, were issued and delivered unto the said A. B., (c) and by virtue thereof the said A. B. became and was the sole owner of all the rights and privileges granted and secured, or intended to be secured in and by said letters patent, as by reference to said letters patent or a certified copy thereof here in Court to be pi'oduced, will more fully and at large appear [or, to a true copy thereof hereunto annexed, to which for greater certiinty your orator craves leave to refer], (d) And your orator further shows, that he is in the full enjoyment of the rights and interests acquired by him as aforesaid, and that said rights and interests have been and are of great value to your orator, and your orator is entitled to all the damages occasioned by the infringements of the said letters patent, by the manufacture, sale, or use of [setting forth the thing, &c., patented], made in violation of the said reissued letters patent, and is, by law, entitled to sue for, and receive the same to his own use. And your orator further shows unto your Honors, that he believes, and there- fore charges the fact to be, that he, the said A. B., was the original and first in- ventor and discoverer of the improvement in [net forth hriefly the nature of the patent], patented by him as aforesaid, and described and claimed in the said letters patent, as aforesaid, and that the same was not known or used by any other persons before the invention and discovery thereof by him, the said A B. (e) And your orator further shows unto your Honors, thai the defendant herein SUITS IN EQUITY.. 329 is making [or, using, or, selling], {set forth the article.^ or whatever constitutes the infringement'], as described and claimed in the said letters patent, No. and he has reason to believe will continue to make [or, use, or, sell], the same, and refuse to pay to your orator any of the profit ivhich he has made by such unlawful manufacture [or, use, or, sales], or to desist from making [or, using, or, selling] the same in violation and infringement of your orator's rights, secured to him, as aforesaid, and against his consent and allowance. [Here, may he inserted, if desired, the '■'jurisdiction clause" as in Form 1, at g, and the " interrogating part " as in Farm 1 at h. Continue'] And that the said defendant may answer the premises, and that he may be decreed to account with and pay over to your, orator the profits which he has made by such unlaw- ful manufacture [or, use, or, sales]. (f ) And may it please your Honors, the premises considered, to grant unto your orator the writ of injunction issuing out of and under the seal of this hon- orable court, or issued by one of your Honors according to the form of the stat- ute in such case made and provided, perpetually enjoining and restraining the said defendant, his clerks, attorneys, agents, servants, and workmen, from di- rectly or indirectly making [or, using, or, selling] to others any [set forth the thing (fee, patented], described and claimed in the said letters patent. No. [Bere insert the ^' prayer for general relief " as in Form 1, at m. If a pre- liminary injunction is desired, say] And may it please your Honors to grant to your orator a provisional or preliminary injunction issuing out of and under the seal of this honorable court enjoining and restraining the defendant, his attor- neys, clerks, agents, servants, and workmen, to the same purport, tenor, and effect hereinbefore prayed for in regard to said perpetual injunction. [ Conclude with the prayer for subpcena, tfcc, as in Form 1 at p.] [In the affi- damt, Form 1 r, insert, at a] That this deponent verily believes the said A. B. to have been the first and original inventor of the improvements claimed in said letters patent, and that the same had not been in use or described before the in- vention and discovery thereof by said A. B. 5. The like — another form. [Proceed as in Form 4 to e, and continue] And your orator farther shows unto your Honors, that since the said day of ' , 18 , the defendant, well knowing the premises and the rights and privileges secured to your orator, the said A. B., by the said letters patent, but contriving to injure your orator and to deprive him of the profits, benefits, and advantages which might other- wise have accrued to him at the City of , within the District afore- said, has unlawfully and wrongfully made [or, used, or, sold], and is now un- lawfully and wrongfully making [or, using, or, selling] large quantities of [set forth the articles, or whatever constitutes the infringement], produced by the use of the improvement described and claimed in said letters patent, and for the purposes specified in said letters patent, and in violation of the exclusive privi- leges therein and thereby granted to your orator, patentee as aforesaid, and in infringement of said letters patent, and of the claims therein contained ; but what quantity of [the thing patented] produced as heneinbefore referred to, the said defendant has made [or, used, or, sold], or caused to be made [or, used, or, 330 FORMS. sold], your orator does not know and cannot state, but upon informatron and belief your orator avers that he has made [or, used, or, si Jd] large quantities ot the same and is now making [or, using, or, selling] large quantities of the same and that he has derived and received and is still deriving and receiving from such sale great gains and profits, but to what amount your orator is' ignorant and cannot set forth, but your orator believes the same to be the full sum of dollars, and so charges the fact to be, and prays that the de- fendant may be required to make a disclosure of all such gains and profits. And your orator further avers that the defendant continues to make [or, use, or, sell] such [the thing patented] and refuses, though warned and requested, to desist from such use and sale, or to pay to your orator such gains and profits ; by means whereof the defendant has injured and is still greatly injuring yom- ora- tor and has deprived and is still depriving your orator of, and has prevented and is still preventing your orator from receiving the gains and profits from the use of th3 exclusive right to use the invention and improvement claimed in said letters patent, which your orator otherwise and but for the said wrongful acts of the said defendant would have obtained and received. And your orator prays that the said defendant may be compelled, by a de- cree of this court, to accoiftit for and pay over to your orator all such gains and profits as have accrued or arisen to, or been earned or received by the defend- ant, or to which he may be entitled by reason of such unlawful manufacture [and use and sale] by him of such [tJie thing patented] manufactured in accord- ance with the improvements described and claimed in said letters patent, and all such gains and profits as your orator would have received but for the said unlawful acts and doings of the said defendant. [^Contiiiiie as in Form 4 at f], AmJ may it please, &p. 6. The like— another form. [Proceed an in Form 35, Ante, p. 285, for declaration in action at law, for in- fringement of patent; making the alterations necessary to adapt it to the form of a bill in equity.] s 7. The like, by assignee of patent; Asslgrnment made previous to issue of patent.' [Proceed as in Form 4, except wherever the complainant is therein mentioned as the patentee, insert the name of the actual patentee.] [Insert in said Form 4 at b]. That prior to the issuing of the letters patent hereinafter mentioned, to wit : on the day of j 18 , at the City of , the said 0. D., :by assignment duly signed, sealed, and de- livered, and entered of record in the patent office of the United States, assigned all of his right, title, and interest in and to said invention and discovery to said plaintiff, and requested that the said patent might issue tso the said plaintiff aa ' When the assignment was exe- above forms will be mada without cuted subsequent to the issiie of the difficulty, patent, the alterations required in the SUITS IN EQUITY. 33I the assignee thereof, as by reference -to saivl assignment -will more fully and ai large appear. 8. The like, by subsequent purchaser of patent. [Insert in Form 4, ai a, in place of the said A. B.] one C. D. [Make like changes wherever the patentee is referred to, in. said Form, and insert at d]' And yom- orator fiirtber shows unto your Honors, that on the day of , 18 , the said C. D., by his deed of that date duly executed and recorded, for valuable consideration, conveyed to the said A. B. all his right, title, and inter- est in and to the invention and discovery secured by the said letters patent, in and for [the whole United States of America], with the exclusive right and li- cense, therein, to manufacture, use, and vend [set forth the thing patented], dur- ing the unexpired term of said patents and of all extensions and renewals thereof, as by the said deed here in court to be produced, if required, will more fully appear. [ Continue as in said Form at d] And your orator further shows, &c. 9. BUI, for infringement of patent ; where the validity of the patent has been previously determined. [I¥oceed as in Form 4 to d, and insert] And your orator further shows unto your Honors, that on or about the day of , 18 , the complain- ant, A. B., filed his bill of complaint against [names of defendants as in the former 5JB], in the Court of the United States, for the Cii-cuit and District of , setting forth, among other things, the said letters patent No. , of the day of , 18 , and the infringement of the aforesaid letters patent by said defendants, and praying an injunction and accoimt against them. And the said defendants filed their an- swer to the bill of complaint, denying, among other things, the validity of the said letters patent and set up that [some persons, other than the said A. B., were the inventors of the thing patented by him ; and also that the same thing had been known and used by various persons in this country long prior to the date of said A. B.'s patent] ; and issue being joined therein, thq parties proceeded tc take proofs, which were taken at great length and for a long time. And your orator further shows unto your Honors, that the proofs in the said cause being taken, the cause was brought to a final hearing on its merits in the month of j 18 i before Justices and , and was ar- gued before them by the counsel of the respective parties, and was held under advisement by the said justices until the Term, 18 , of said court, when the judgment of the court was pronounced. And the said court decided, among other things, that the said letters patent were valid in law, and that the said A. B. was the original and first in- ventor of the improvements patented as aforesaid, and referred to in said bill of complaint, and by a decree pronounced in said cause, perpetually enjoined the said defendants from making, constructing, using, and vending to others to • When 'Form 9 is used, this state- therein required to be inserted at d, ia ment should follow the averments Form 4. - 332 FORMS. be used, the said improvements, patented as aforesaid, and ordered an account to be taken of the damages due by reason of the infringements already com- mitted by the said defendants, as by reference to the recr rd of the proceedingi in said suit will more fully and at large appear. [ GmiUnue as in mid Form at d] And your orator further shows, &c I 10. BUI for discoyery of assets, in aid of execution. [Proceed as in Form 1 fo d, and continue] that your orator is a creditor of the said defendants and has recovered a judgment against them in a suit or actior in the Court of the United States, for the District of , in the Circuit, of Term, A. D. 18 , for the sum of dollars, which said judgment was recovered on the day of , 18 ; that on the day of , 18 , a writ of Jieri facias was issued thereon against the said defendants which has been duly returned by the marshal "rawZto 6ona." And your orator ftirther showeth, that the said defendants were lately engaged in the city of , in the busi- ness or occupation of , and [hei'e add siicTi other statements respecting the defendants as may ie material]. And your orator further shows that there is reason to believe that the said defendants have personal estate or other property, wherewith the said judgment may be satisfied ; that by reason of the concealment thereof, the complainant is prevented from having execution of his judgment. All which actings and doings are contrary to equity and good conscience, and tend to the manifest wrong and injury of your orator in the premises. To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief 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, lull, 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 required to answer ; that is to say — 1st. "Whether the said defendants, or either of them, are seized or .possessed of any real or personal estate, moneys, household furniture, stocks, bills re- ceivable, or any property or rights, credits, claims, demands, or interests what- ever, or whether any such are held by any one in trust or otherwise for them, the said defendants, or either of them ; and what such property, demands, or interests are, by whom held, and where situated. 2nd. Whether the said defendants were not lately in business, and in what kind of business, and where ; [whether the said defendants failed] ; what moneys, household furniture, stocks, bills receivable, assets, rights, credits, demands, effects, or interests, and property real or personal, the said defendants or eithei of them, held or were entitled to [at the time of such failure], and what appro- priation or disposition has been made thereof [since said failure], and what pro- portions thereof are now held, owned, or claimed by the said defendants, ot either of them, at this time. 3rd. When did the said defendants enter into busLaess, and what kind of business, and what was their capital, and how long did they continue in busi ness [and when did they faU]. SUITS IT EQUITY. 333 4th. Whether at any tune, and when, the said defendants, or either of them, did assign, transfer, or deliver certain property, assets, bills receivable, credits, or claims, and what, to certain persons or person, in trust for some purpose, and if so, particularly what property, to whom was it transferred, and for what pur- pose ; and what has been done with said property transferred as aforesaid. 5th. Whether the said defendants have, or either of them has at any time assigned, transferred, or delivered to his wife, or any member of his family or • to any other person, in trust for them, or feither of them, or for the said defend-, ants, 01 either of them, any moneys, property, real or personal, bills, credits, rights, interests, or demands. If so, where, to whom, and particularly what oredits, property, rights, demands, moneys, interests, or assets, and by whom are the same or the proceeds thereof now held. [Add such further interrogatories as may le material, and eontintie as in said Form 1/rom 'k. to the end, according to the ease.l 11. Bill by assignee of bankrupt for discovery, and to obtain possession of assets. {Proceed as in Form 1 to a, and contimie] A. B. of [residence], assignee in bankruptcy of C. D. a bankrupt, a citizen of the State of , brings this his bill of complaint against Y. Z., of [residence], a citizen of the State of , and thereupon your orator complains and says, that your orator is assignee of the estate and effects of C. D. a bankrupt, according to the force, form, and effect of the statute concerning bankrupts, and was duly appointed such assignee by the Judge of the District Court of the United States, for the District of , on the day of , 18 , in a proceeding in [involuntary] bankruptcy, commenced on the petition of [a creditor of said C. D.]. That the said 0. D. before he became a bankrupt did apply to the said Y. Z. to borrow the sum of dollars, and the said Y. Z. agreed to lend the same to said C. D., and the said C. D. for securing the re-payment thereof with interest, did agree to mortgage to the said Y. Z; the goods and chattels herein- after mentioned, and accordingly did execute and deliver to the said Y. Z. a mortgage bearing date on the day of , 18 , by which, in con- sideration of dollars, and to secure the payment to the said Y. Z. of a iiote for the sum of dollars [on demand] with interest, he did bargain and sell unto the said Y. Z. the [describe the property], as mentioned and de- scribed in the schedule hereto annexed, then situated in [setting forth the place] ; subject to a proviso or condition of redemption on payment of the said sum of doljars with interest, from the day of , 18 , on de- mand, as in and by the said mortgage in the possession of the defendant Y. Z., will more fiilly and at large appear. That thereafter there was paid, as your orator is informed and believes, on account of the sum so as aforesaid secured by said mortgage, the sum of dollars, but what amount precisely is due thereon your orator is unable to state. Your orator further shows unto your Honors, that he, by his attorney, aa he is informed and believes, did, on the day of > 18 , offer to pay to said Y. Z, what amount might be due to him for principal and interest 334 FORMS. on said mortgage, and requested him to reconyey to your orator said goods ami chattels, or to assign to him said mortgage, but that the said Y. Z. refused so to do, and thereupon notified your orator that on the day of > ^8 , next, he would expose to sale at public auction the goods and chattels men- tioned in said mortgage as by said notice, a copy of which is annexed hereto, will more fully appear; that a sale by the said Y. Z. would do irreparable mis- chief to your orator. Your orator well hoped that the said Y, Z. would have received the amount so oifered as aforesaid, and would have reconveyed to him said goods and chat- tels, or assigned to him said mortgage, but now so it is that the said Y. Z. in order to deprive and defeat your orator of redeeming said goods and chattels, does preteiid and give out that the same are not subject to the lien of said mort- gage, but belong to him, the said Y. Z., absolutely, by virtue of a sale thereof to him, under a judgment of foreclosure and sale rendered in the Court of , on the day of , 18 , in an action in said court between E. F., plaintifi", and C. D. and others, defendants, which action was brought to foreclose a mortgage, executed by said C. D. to said E. F., [describe the mortgage], which said mortgage purported to convey to said E. F. the [describe the prop- erty]. Whereas, your orator charges that the said mortgage did not convey or mort- gage said [describe property], to said E. F., or any part thereof; that the same was not filed in the office of the [clerk of the town of , in which town] said C. D. then and ever since resided, and that said 0. D. remained in posses- sion of said [iZescriJs^roperiy], until the day of ,18 And your orator further charges that under the laws of the State of , such mortgage, so far as it purported to mortgage said [describe property], was void as to the creditors of said C. D. And your orator further charges that he, as such assignee aforesaid, is a creditor of the said C. D. And your orator ia unable to ascertain whether any part of the [describe property], mentioned in the schedule annexed hereto, was or was not in said [naming place before mentioned], at the time the said mortgage to said E. F. was executed and delivered to him. In consideration whereof and forasmuch as your orator is altogether remedi- less in the premises by the strict rules of the common law, and cannot hava any discovery or relief in the premises touching the matters aforesaid without the aid of this honorable court, where matters of account or redemption of estate are properly cognizable and relievable ; [insert the '' interrogating ^arf ," as in Form 1 at h, after which say] and that your orator may be at liberty to re- deem the said [goods and chattels], and that the said Y. Z. upon your orator's paying to him what shall appear to be due for principal and interest on said note and mortgage to the said Y. Z., which your orator hereby , ofiers to pay, may thereupon be ordered to re-convey to your orator the [goods and chattels] mentioned in the annexed schedule, free and clear from all incumbrances done by him, or any person by, from, or under him. [ Conclude as in Form 1 from m, according to the case.] 12. Bill by the United States to enforce a lien on real estate for internal revenue taxes. [Proceed as i» Form, 1 to d, and continue] that at some time dnrinf tie SUITS IN EQUITY. 335 period \mentiming it], at a place in the city of , in the district aforesaid, the said Y. Z., together with divers other persons, whose names are to your orator unknown, did engage in and carry on the business of a distiller within the meaning of the internal revenue laws of the United States, at and within a distillery situated on the lot, tract of land, and premises hereinafter mentioned and described, and then and there did manufacture, produce, and distil divers large quantities, that is to say, gallons of distilled spirits, upon which said spirits, internal revenue duties and taxes were by law imposed. That the said lot, tract of land, and premises upon which said distillery was situated, with the buildings thereon, were and are as follows, that is to say [here insert an accurate description of the land, premises, and the various iuildings thereon]. That the said Y. Z., and the said divers other persons to your orat«r unknown, then and there being engaged in and carrying on the business of distiller as aforesaid, manufactured, produced, and distilled, and caused to bi manufactured, produced, and distilled, at and within the said distillery, dis- tilled spirits as follows, that is to say : during the period from the day of ,18 , to the day of 18 , [designating the first month or portion tliereof, for which taxes are due,] gallons of distilled spirits. [Set forth the production of the remaining periods in Mice manner, and continue] That through and by reason of the manufacture, production, and distillation of the said distilled spirits at the distillery aforesaid, there became due and owing to the said United States from the said Y. Z., and the said divers other persons to your orator unknown, then and there being engaged in and carrying on the business of a distiller as aforesaid, for taxes imposed upon the said distilled spirits by and under the provisions of the act of Congress en- titled [" An Act imposing taxes on distilled spirits and tobacco, and for other purposes," approved the 30th day of July, A. D. 1868], and duly assessed there- on according to law, large sums of money, which said sums of money became severally due and owing to the said United States on the days and at the times hereinafter respectively set forth, that is to say, the sum of dollars, on the day of , 18 [set forth the remaining sums due in like manner]. And your orator further says that neither the said several sums of money or any portion or portions thereof, have been paid or secured to the said United States. And your orator further says that the said taxes imposed by law on the distilled spirits manufactured and produced as aforesaid, at the said distillery, then and there became and were and now are a first lien in favor of the United States on the said distillery, used for distilling the same, the stills, vessels, fixtures, and tools therein, and on the lot and tract of land hereinbefore described whereon the said distillery then and there was situated, and on the aforesaid buildings thereon, from the time said spirits were distilled as afore- said. And your orator fiui;her shows, that during the period aforesaid during which the said distilled spirits were manufactured and distilled at the said distillery, and before and after, S. T. who resides at, [place of residence],^ claimed and does now claim to be interested in the lot, ti'act of land, buildings, and premises hereinbefore described, as owner of the same, and of the rents, issues, and profits thereof, and claims an interest and title therein adverse to the said lien of the said United States thereon. [Proceed in like manner, setting forth tht 336 FORMS. other defendants if any, with tlveir respecive interests.'] And your orator further shows, that no proceedings at law or otherwise have been had by 6r on tlie part of the said United States for the recovery of the said taxes or any part thereof Your orator therefore solicits the aid of this honorable court in the premises, to compel the said defendants upon their corporal oaths, true, full, and perfect answers to make to all and singular the statements above set forth. And tha t the said taxes, due the United States as aforesaid, may be decreed to be the first and prior lien, in favor and for the benefit of the United States, upon the lot, tract of land, buildings, and premises hereinbefore described ; and that all and singular the said lot, tract of land, buildings, and premises aforesaid, with the appurtenances, may be sold under the decree of this court, and that out of the money arising fi:om the sale thereof, there may be paid to the said United States the several sums of money due the said United States for taxes as afore- said ; and the interest due thereon, at and after the rate of one per centum per month from the time when the said taxes severally became due as hereinbefore mentioned ; and also a sum of money equal to five per centum of the amount of said taxes, penalty due the said United States for and by reason of the non-pay- ment of the said taxes wlien due ; together with all costs and charges by the said United States in this behalf sustained ; and that the said defendants, and all persons claiming under them subsequent to the commencement of this suit, and all other persons, although not parties to this suit, who have any liens by judgment or decree upon the said lot, tract of land, buildings, and premises, or any liens or claims thereon by or under any such judgment or decree, either as purchasers, incumbrancers, or otherwise, may be barred and foreclosed of all equity of redemption in the said lot, tract of land, buildings, and premises; and that, the said United States may have such further or other relief in the prem- ises as the natui'e of the circumstances of this case may requii-e, and to this hon- orable court shall seem meet. [^Conqlude with prayer for suhpcena, as in Form 1 at p.] 13. Subpoena. The President of the United States of America, To Y. Z., Greeting : You are hereby commanded, that you [and each of you] [Seal of the Court.] personally appear, before the Judges of the Circuit Court of the United States of America, for the Dis- trict of , in the Circuit, in equity, on the [first Monday] in , A. D. 18 , wheresoever the said court shall then, be, to -answer a bill of complaint exhibited against you in the said court by A. B., and to do further and receive what the said court shall consider in that behalf, and this you are not to omit under the penalty on you [and each of you] of two hundred and fifty dollars. Witness the Honorable [Salmon P. Chase], Chiel Justice of the Supreme Court of the United States, at the city of [location of court whence the writ is is- med], on the day of , in the year one thousand eight hundred and , and of the independence of the United States of Americf the M. N., Clerk- E. L., Complainant's Solicitor. SUITS IN EQUITY. 337 The defendants ai-e required to enter appearance in the above cause, in the clerk's office of this court, on or before the [first Monday] of , 18 , or the bill will be taken pro coufi sso against them. M. N., Clerk. K. L., Complainant's Solicitor. Indorsement. 1 hereby depute 8. T. to execute the Tsdthin writ. Dated, , 18 . Q. E., U. S. Marshal. 14. Betnrn of service of subpoena.^ [Indorsed on writ] The within subpoena served on the defendant T. Z., at [place of service], on the day of , 18 , by delivering to and leaving with him a copy thereof, and at the same time showing him this original, with the seal of the court attached. [If any liave not heen found, say] The defendants [naming them] not found within my district after due and diligent search. Dated, , 18 . Q. R, U. 8. Marshal. 13. Order to take bill pro confesso. [Caption, and title of the cause, as in Form 2, Ante, p. 276.] The subpoena issued in the above cause having .been returned, which return has been filed, and it appearing therefrom that the said subpoena was duly served on Y. Z., the defendant herein, and no appearance haying been entered on the part of the said defendant, or plea or answer filed ; therefore, on motion of K. L., solicitor tor complainant, it is ordered and decreed that the bill herein be taken pro oonfesso as to said defendant. 16. Consent to take bill pro confesso. [Title of the cause, as in Form 1, Ante, p. 275.] Whereas, a bill in equity in this cause having been filed in this court, at the term thereof, held on the day of ,18 , a,t [place of holding court], and a subpoena having been duly served on me in this cause as required by law, and I do not desire to defend said action, therfore I hereby consent that said bill be taken, pro confesso, and I hereby admit that I have [insert the admission], as charged in said bill, [and I hereby consent that said injunction may issue in said action, out of said court, as prayed for in said bill, without any further proof being made or given in said action, and the complainants may attach this stipulation and confession to said bill, and the same shall be binding and con- elusive upon this defendant. Y. Z. To K. L., Complainant's Solicitor. • ' When served by another than the Supreme Court Equity Bule, No. 15^ marshal or his deputy, the return 1 Ante, 135. should be in the form of an affidavit. Vol. 11—22 338 FORMS. 17. Order for attachment. [ Caption, and title of the (xmse, as m Form 2, Ante, p. 276.] The subpoena issued in the above cause having been returned, which return has been filed, and it appearing thereirom that the said subpcena Tvas duly served on T. Z., the defendant herein, and no appearance having been entered ■ on the part of the said defendant ; therefore, on motion of K. L., solicitor for the complainants, it is ordered and decreed, that an attachment issue against the said Y. Z. 18. Attachment to compel answer." [Seal.'] The President of the United States of America, to the Marshal of the District of , Greeting : Tou are hereby commanded, that you attach T. Z., if he may be fbund in your district, and bring him forthwith [or, on the day of , &c.J personally before the iudge of the Circuit Court of the United States for the District of , in the Circuit, held at [place of holding court], in the City of , in the said district, to answer for certain con- tempts in not obeying our writ of subpoena to him directed, and on him duly served, commanding him to appear before the said Circuit Court, in Equity, on the [as in sttbposna], to answer a bill of complaint exhibited against him in the said court by A. B., and further to perform and abide such order as our said court shall make in this behalf; and you are further commanded to detain him in your custody until he shall be discharged by the said court. And have you then there this writ. Witness, &c.' [Teste as in Form 4, Ante, p. 276.] .19. Entry of appearance by defendant in person. [Consictt Form 17, Ante, p. 279.] 0. Precept for .appearance. [Title of the cause, as in Form 1, Ante, p. 275.] The clerk of this court will please enter my appearance as solicitor for th« defendant in the above entitled cause. Tours, &c., O. P., Solicitor for Defendant. Dated , 18 . 21. General demurrer to bill ; for want of equity." [Title of the cause, as in Form 1, Ante, p. 375.] The demurrer of Y. Z. to the bill of complaint of A. B., complainant. This defendant [or, these defendants respectively], by protestation, not con- fessing or acknowledging all or any of the matters and things in the said bill of complaint to be true,| in such manner and form as the same are therein and thereby set forth and alleged, (a) doth [or, do] demur thereto, and for cause of demurrer showoth [or, show] that the said complainant hath not by his said bill (b) made such a case as entitles him in a court of equity to any [discovery] or •-Supreme Court Equity Rule, No. 18. ' Supreme Court Equity Rule, No. 32. SUITS IN EQUITY. 339 religf from or against this defendant, (o) touching the matters contained in the said bOI or any of such matters ; (d) [Or thus: And for cause of demurrer saith that it appears by the said com- plainant's own showing by his said bill of complaint, that the said complainants are not entitled to the discovery or relief prayed by their said bill against this defendant.] (e) Wherefore, and for divers other goo.d causes of demurrer ap- pearing in the said bill of complaint, this defendant doth demur to the said bill, tnd to -all the matters and things therein contained, (f ) and humbly prays the judgment of this honorable court, whether he shall be compelled to make any further or other answer to the said bill, and he prays to be hence dismissed with his reasonable costs in this behalf sustained. I certify that in my opinion, the foregoing demurrer of Y. Z., defendant, to the bill of complaint of A. B., complainant, is well founded iu law and proper to be filed in the above cause.' O. P., Solicitor, and of Counsel for Defendant. United States of America, ) District of . j '*' T. Z., being duly sworn, does depose and say, that he has read the foregoing demurrer to the bill of complaint in this suit, and that the same is not inter- posed for the purpose of delaying said suit or any proceedings therein. 22. Demurrer to a bill for au. injunction. [Proceed as in Form 21 to a, and ' contmuej doth demur thereto, and for causes of demurrer showeth that in case the allegations in the said bill con- tained were true as therein set forth, which he does not admit, the said bill con- . tains not any matter of equity whereon to sustain such writ of injunction as is Bought and prayed for in and by the said bill, nor hath he by his said bill [con- tinue as in said Form at b] made such a case, &c. 23. Demurrer to a part of the bill. [Insert in Form 21 at a] as to so much of the bill as seeks that this defend- ant may answer and set forth whether, &c. [or, as seeks any discovery, &c., as the case may be] this defendant [continue as in said Form at a] .doth demur, &c. [At o ?a!/] as to the matters hereinbefore specified, or any of such matters ; Wherefore, and for divers other good causes of demurrer in the said bill con- tained as to so much of the complainant's said bill as before is set forth, this de- fendant' doth demur and prays the judgment of this honorable court whetSier he shall be compelled to make any further or other answer to such part of the said bill as is so demurred unto as aforesaid. [ Conclude with the certificate and cffi- davit, as in Form 21.] 24. Demurrer to part of the bill, with an answer to the residue. [Proceed as in Form 23 to the end, and continue] And this defendant not waiving his said demurrer, but relying thereon and saving and reseiving. untc • 'Supreme Court Equity Rule, No. 31. 340 FORMS. himself all benefit and advantage of exception to the many errors, uncertainties, and other imperfections in the residue of the said bill contained, this defendant for answering saith [continue as in Furm 27 at e]. 25. Demurrer for mnltifarionsuess. [Proceed an in Form 21 to a, and cnniinne'] doth demur to the said bill, and for cause of demurrer showeth that it appears by the said bill that the same is ex- hibited against this defendant and E. S., S. T., and U. V., for several and dis- tinct matters and causes, in many whereof, as appears by the said bill, this de- fendant is not in any manner interested or concerned ; by reason of which dis- tinct matters the said complainant's said bill is drawn out to a considerable length, and this defendant is compelled to take a copy of the whole thereof; and by joining distinct matters together, which do not depend on each other in the said bill, the pleadings, orders, and proceedings will, in the progress of the said suit, be intricate and prolix, and this defendant be put to unnecessary charges in taking copies of the same, although several parts in no way relate to or concern him. [ Conclude as in said Form at e] Wherefore, &c. 20. Plea;— of another hill pending.' [Proceed as in Form 21 to a, and continue'] for plea thereunto saith that heretofore, and before the said complainant exhibited his bill in this honorable court, to wit, on the day of , in the year of our Lord , the said now complainant, together with 0. B. and E. F. iA the said bill named, did exliibit their bill of complaint unto this honorable court against this defendant, and also against S. T. for the same matters, and to the same effect, and for the like relief and purpose as against this defendant, as the now complainant doth by his present bill set forth ; to which said first bill this defendant did put in his answer, and the then complainant thereunto replied, and the said former bill is still depending in this honorable court, and the said cause is yet undeter- mined ; and therefore this defendant doth plead the said former bill, answer, and proceedings, in bar to the said now complainant's said present bill [eoti- Unite as in said Form at f ] and humbly prays, &c. 27. Answer — General form. [Title of tJie cause, as in Form 1, Ante, p. 375.] (a) The answer of Y. Z., defendant [or, one of the defendants], to -the bill of complaint of A. B., complainant, (by This defendant now and at all times hereafter saving and reserving unto himself (o) all benefit and advantage of ex- ception which can or may be had or taken to the many errors, uncertainties, and other imperfections in the said complainant's said bill of complaint contained, for answer thereto, or unto so much and such parts thereof (d) as this defendant 'Supreme Court Equity Rules, Nos. sometimes used, as follows : "Thisde- 31, 32. fendant, reserving to himself all right of " Instead of the portion of the abofre exception to the said bill of complaint, Form frou b to e, a simpler form is for answer thereto saith," &o. SUITS IN EQUITY. 341 is advised is or are material or necessary for him to mate answer mito, this de- fendant for answering, saith.' (e) [Proceed with, the several averments according U the case^ admitting or denying every material allegation in the stating part of th« Kll within the personal hnowledge of the defendant, or stating that he has no in- formation on the subject, and if the defendant has information aside frorrC the hill he must state his lelief. Conclvde] (f) And this defendant denies " (g) all and all manner of milawfiil combination and confederacy wherewith he is by the said bill charged, without this, (h) that there is any other matter, cause, or thing in the said complainant's said bill of complaint contained material or ne- cessary for this defendant to make answer unto and not herein and hereby well and sufficiently answered, confessed, traversed, and avoided or denied, is not true to the knowledge or belief of this defendant, all which matters and things this defendant is ready and willing to aver, maintain, and prove as this honora- ble com-t shall direct, and humbly prays to be hence dismissed with 'his reason- able costs and charges ip this behalf most wrongfully sustained. T. Z., Defendant. O. P., Solicitor for Defendant. [Affidavif] ' United States of America, > District of . ( "■'■ T. Z., being duly sworn, does depose and say,* that he is the defendant named in the foregoing answer subscribed by him ; that he has read the sama and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated oh information and belief, and as to those matters he yerily believes it to be true. A. B. Subscribed and sworn to before me this day of , 18 . 28. Conclusion of answer ; another form. [Insert in Form 27 at f ]. And the said defendant further answering denies that the said complainant is entitled to the relief or any part thereof in the said complaint demanded. And this defendant prays the same advantage of his aforesaid answer as if he had pleaded or demurred to the said bill of com- plaint. And this defendant prays leave to be dismissed, with his reasonable costs and charges in this behalf most wrongfully sustained. T. Z., Defendant. O. P., Solicitor and of Counsel for Defendant. [Add the affidavit as in said Form.] •Supreme Court Equity Eule, No. tion say " that he is the [president] of 3^ the [name of corporation] the corpora- » When the bill does not contain a tion named as defendants in the above " confederacy clause," the words from answer, and that by means of his said e to h may be omitted. office he has acquired and possesses • Supreme Court Equity Eule, No. particular knowledge of the matters 59_ stated in said answer; that he has * When by an officer of a corpora- read," &o. 342 FORMS. 29. Conclusion of answer ; insisting that the remedy sought is at law and not in equity, and claiming the same benefit as if defendant had demurred. llnsert in Form 27 a« f ] And this defendant submits to this honorable court • that all and every the matters in the said complainant's bill mentioned and complained of, are matters which may be tried and determined at law, and with respect to which the said complaioant is not entitled to any relief from a court of equity, and this defendant hopes he shall have the same benefit of this defense as if he had demurred to the said complainant's bill. [ Contimie as in said Ponn at f ] And this defendant denies, &c. 30. Answer; — by several defendants. [ Oommence Form 37 as follows'] The joint and several answers of [naminff the defendants answering], the defendants [or; two or more of the defendants] to the biU of complaint of A. B., complainant. These defendants now and at all times hereafter saving and reserving to themselves and each of them [continue as in said Form at c, all benefit, &c., to d, and proceed] as these defendants are advised is or are material or necessary for them or any of them to make answer unto, they, these defendants, severally answering say [continue as in said Form at e]. 31. Averment of answer, when defendant admits a statement. And this defendant further answering says he hath been informed and be- lieves it to be true, that, &c. [or, this defendant admits, that, &c.] 32. The like, when defendant admits a statement of a written instrnment. [Proceed as in Form 31 to the end, and culd^ but this defendant for greater cer- tainty therein craves leave to refer to the said [descriUng the instrum,ent], when the same shall be produced. 33. The lllie, when defendant believes statement to be true, but quali- fies admission. And this defendant further answering says he believes it to be true that [letters patent of the United States were issued to, &c.], but this defendant does not know the same of his own knowledge, nor can this defendant state as to his belief or otherwise whether or not [a renewal and extension of the said letters patent was granted to the said, &c.]. 34. The like, wlicre defendant is ignorant as to a statement. And this defendant further says he does not know and has never been in- formed save by [unreliable rumor and] the said complainant's said bill, whether [the said C. D. sold and conveyed, &c.], and leaves the complainant to make such proof thereof as he shall be advised is material. [Or, and cannot set forth as to his belief or otherwise whether, &c. Or, but this defendant believes that &c.] ' SUITS IN EQUITY. 343 35. The like, another form. And this defendant further answering says it may be true for anything this defendant knows to the contrary that, &c., but this defendant is an utter stranger to all and every such matters, and cannot form any belief concerning the same. I 36. The like; where several defendants join and are ignorant as to statement. And these defendants further severally say, that they, or any or either of them to the knowledge or belief of the others or either of them, do not know, and have never been informed save by the said complainant's bill, and cannot set forth as to their belief or otherwise, whether, &c. 37. The like ; where a schedule is required to be set forth. And this defendant further says, he hath in the schedule to this his answer annexed or underwritten, and which he prays may be taken as part thereof, set forth according to the best and utmost of his knowledge, remembrance, inform- ation, and belief, a full, true, and particular list or schedule of, &c. [And this defendant is ready and willing to produce and leave the same in the hands of his clerk in court for the usual purposes.] 38. Answer and disclaimer denying any interest in the premises, in the bill mentioned. [Title of the cause, as in Form 1, Ante, p. 275.] Answer and disclaimer of T. Z. to the bill of complaiut of A. B., complain- ant. [Proceed as in Form 27, from b. This defendant, &c., to e, and continue'] that he doth not know that he, this defendant, to his knowledge or belief ever had or did he claim or pretend to have, nor doth he now claim any right, title, or interest of, in, or to the estates and premises situate [describe the premises as in 'the Ml], in the said complainant's bill set forth, or any part thereof, and this defendant- doth disclaim all right, title, and interest to the said estates and premises and every part thereof. [ Continue as in said Form at f ] And this de- fendant denies, &c. 39. Answer to bill for infringement of patent." [Proceed as in Form 27, to e, and continue, inserting such of the following aver- menu as the nature of the case may require.] [1.] That he has been informed and admits it to be true that, upon applica- tion by the complainant, letters patent of the United States were granted and issued to the said A. B. on the day of , 18 , for an alleged improvement [or, invention], in [describing the alleged patent]. And this defen- dant says that he does not know and is not informed, save by said bill of com- ' See section 61, Act of July 8, 1870, 1 AnU, 124 h. 344 FORMS. plaint, Tvhether or not said A. B. did properly make application for said patent and did comply with all the requirements of law and did have said patent is- Bued to him in due form of law, and leaves the complainant to make such proof thereof as he shall be advised is material. [3.] And this defendant further ansvrering says, that he does not know and is not informed save by said bill of complaint whether or not said A. B. sold and conveyed [or, assigned] his right, title, and interest in the said patent and alleged invention, secured by said letters patent, or any interest therein, to the said C. D. [or whether or not such assignment was recorded in the patent- office], and he leaves the complainant to make such proof thereof as he shall be _ advised is material. [3.] And this defendant on information and belief denies that by virtue of any such patent and assignment as mentioned iu said bill of complaint, said complainant became or ever was possessed of or vested with any exclusive right to use [or, make, or, sell], in the [United States] or elsewhere, the alleged inven- tion patented by the said letters patent. [4.] And this defendant further answering says, that he is informed and believes it to be true that for the purpose of deceiving the public, the description and specification of the said invention and discovery, filed by A. B., the paten- tee thereof, in the patent-office, was made to contain less than the whole truth relative to his said invention and discovery [or, more thai is necessary to pro- duce the desired effect intended to be produced by the said invention and dis- covery], in this, that [setting forth the particulars], [5.] And this defendant further answering says, that he is informed and believes it to be true that the description of the alleged invention, as set forth in the specification annexed to said letters patent, is incomplete and ambiguous, and the said specification does not show the method of making and using the said alleged patented invention in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains to make and use the same. [6.] And this defendant further answering denies that the said invfention so patented to the said A. B. is of great or any utility and value, or that l^e same has been introduced into public use, or that the public generally or any portion thereof have acquiesced in and acknowledged the complainant's exclusive right to the same, or any portion thereof. [7.] And this defendant further answering says, that he is informed and be- lieves it to be true that the said invention and discovery was in fact invented and discovered by and the same principle was known to and had been pre- viously combined by another, that is to say, by one C. D., who resides [or, re- sided] at , in the State of , and who, at the time the said patent was obtained by the said 0. D., patentee as aforesaid, was using reasonable dili- gence in adapting and perfecting his, the said C. D.'s, said invention and dis- covery, and that the said A. B., patentee as aforesaid, surreptitiously and un- justly obtained the said patent for the invention and discovery patented in and by the letters patent aforesaid as mentioned in the bill of complaint aforesaid. [8.] And this defendant further answering says, that he is informed and be- lieves it to be true that the said invention and discovery and the same principle and combination [or substantial and material parts thereof], patented in and by SUITS IIT EQUITY. 345 the letters patent mentioned in the bill of complaint aforesaid, (a) wag patented on the day of ,18 , by letters patent granted and issued to one Gr. H., who resides [or, resided] at , iri the State of and prior to the supposed invention and discovery thereof by A. B., the patentea aforesaid. [9.] [Proceed as in 8 to &,, and co'Titinue] was mentioned and described in a printed publication, that is to say, in the [giving the full name or title of the publi- cation, name of author, cfcc], published at [place of publicathri], on the day of , iS , by [naming pnllishers], a publication published, issued, arid publicly circulated and distributed, prior to the supposed invention and dis- covery, by A. B., the patentee aforesaid, of the said alleged invention, discovery, principle, and combination, the said description being on page of said publication, pd in the following wotds [quoting' from the piihlicaticny [10.], And this defendant fm*ther answering says, that he is informed and believes it to be true, that the said A. B., patentee, as aforesaid, was not the original and first inventor and discoverer of the said invention and discovery, or of any material and substantial part of the thing dr of ttie principle and com- bination patented in and by the letters patent mentioned in the said bill of complaint, but that the same thing and the same priiiciple and combination [or, substantially the same], (b) had been previously combined by and invented and discovered by one Gr. H., who resides [or, resided] at , in the State of , and that the same was known to and combined by said G. H. as early as , 18 , and prior to the time when it is alleged in the said bill of complaint the same was invented and discovered by A. B., pat- entee as aforesaid. [11.] [Proceed as in 10 to b, and continue] was known to E. F., who resides [or, resided] at , and' [here insert the name and residences of any oilier per- sons who had prior knowledge of the invention], aa early as the day of , 18 , and prior to the time when it is alleged, in the bill of complaint afore- said, the same was invented and discovered by A. B., patentee as aforesaid. [13.] [Proceed as in 8 to a, and continue] was (c) in public use in the United States at [naming the several places where, and the names and residences of the per- sons at each place by whom the invention was used], as early as the day of ,18 , and had been (d) in such use for more than [two] years be- fore the day of , 18 , the dale of the alleged application of A. B., patentee as aforesaid, for a patent therefor. [13.] [Same as 12, except at is, instead of the words, hi public use, insert] on sale [and at d, instead of the words, in such use, insert] on sale as aforesaid. [14.] [Proceed as in 8 to A, and continue] had been previously invented and discovered by one Gr. H., who rfesideS [or, resided] at , and there- after and before the time when it is alleged in the bill of complaint aforesaid, the same was invented and discovered by A. B., patentee as aforesaid, and as early as the day of j 18 , the same was by the said G. H. abandoned to the public, and was, with the consent and allowance of the said Gr. H., in public use, and used at [naming the several places where, and the names and resi- dences of the persons at each place hy whom the invention was used], ' A reference to the page of the publication is generally sufficient, without quoting from the text. 346 FORMS. [15.] And this defendant further answering, says, that he, does not know and is not informed, save by said bill of complaint, whether or not said A. B. instituted and prosecuted a suit in the United States Circuit Court for the District of , against S. T., or that the judgment of the court was pronounced, or that a decree was entered therein, as stated in said bill of complaint, and he leaves the complainant to make such proof of said several al- legations and statements as he shall be advised is material. [16.] And this defendant further answering, says, that the [naming the thing alleged to be an infringement^, is very different in kind from that described in the said letters patent and in the specification annexed thereto, and is made by a process entirely different from that described in said specification, and that he has not infringed and still does not infl-inge upon the rights and privileges al- leged in said bill to be secured to the complainant by said letters patent. [17.] And this defendant further answering denies that he has ever con- trived to injm-e said complaiuant, or to defraud him of any profits, benefits, and advantages whatever ; and this defendant denies that he has at g,ny time here- tofore manufactured [or, sold, or. used], or is now manufacturing [or, using, or, selling], at , in the District of , or elsewhere \naming the thing patentee^, manufactured in accordance with the descriptiong set forth in the aforesaid letters patent or by the use of any machinery described in said letters patent, and says that he has not in any way infringed and does not in any way infringe said patent. \^Add in like manner such farther avermenta an the nature of the case may require, and conclude as in said Form 27, at f ] And this defendant denies, &c. 40. Exceptions to answer.' [Title of the cause, as in Form, 1, Ante, p. 275.] An exception taken by the said complainant to the insufficient answer of the said defendant to the said complainant's bill of complaint. First. For that the said defendant has not to the best of his knowledge, re- membrance, information, and belief, answered and set forth \here date in what the answer is insufficient, as, the documents by which the modus or composition in the said defendant's answer alleged and insisted upon ismade out]. Second. For that the said defendant hath not, in manner aforesaid, answered and set forth, &c. IPmceed in like manner to set forth the several insufficiencies, and conclude'] In which particular \or, all which particulars] the said complain- ant excepts to the answer of the said defendant as evasive, imperfect, and in- sufficient, and humbly prays that the said defendant may be compelled to put in a ftiU and sufficient answer to the said bill of complaint. K. L., Solicitor for Complainant. 41. Order on exceptions to answer. [ Caption, and title of the cause, as in Form 2, Ante, p. 276.] Exceptions for Insufflciency having been filed to the answer of the said T. Z. on the day of , 18 , and the said Y. Z. not having sub- • Supreme Court Equity Rule, No. 61, 1 Ante, 142. StJITS IN EQUITY. 347 mitted to answer said exceptions, on motion of K. L., solicitor for complainant, it is ordered that said exceptions be set doTni for a hearing on the next rule day, viz: the [first Monday] of , A. D., 18 , before the Honorable G. H., Judge of the said Court, at [ptoce of holding court], in the City of , at o'clock in the noon of that day. ■ 42. Seplication. [Title of the cause, as in Form 1, Ante, p. 275.] The replication of A. B., complainants, to the answer of T. Z., defendants: These repliants, saving and reserving unto themselves now and at all times hereafter, all and all manner of benefit and advantage of exception which may be had or taken to the manifold insufficiencies of the said answer, for replica- tion thereunto, say, that they will aver, maintaiii, and prove, their said bill of complaint to be true, certain, and sufficient in law to be answered unto, and that the said answer of the said defendants is uncertain, untrue, and insufficient to be replied unto by these repliants. Without this, that any other matter or thing whatsoever in the said answer contained, material or efiectual in the law to be replied tmto, and not herein and hereby well and sufficiently replied unto, confessed or avoided, traversed or denied, is true. All which matters and things these repliants are and will be ready to aver, maintain, and prove, as this hon- orable court shall direct, and humbly pray as in and by their said bill they have already prayed. K. L., Complainants' Solicitor. 43. Order to show cause why injunction should not issue, &c. [Caption, and title of the cause, as in Form 2, Ante, p. 276.] Upon reading and filing the bill of complaint herein, with the affidavit of C. D., and on motion of K. L., solicitor for the complainant, it is hereby ordered, that the defendant show cause, if any he has, before the Judge of said Court [or, before me], at [place of holding court], in the City of , in the said District of , on the day of , 18 , at o'clock in the . noon, or as soon thereafter as counsel can be heard, why an injunction should not issue and [insert other relief desii-ed], pursuant to the prayer of said bill, such cause to be shown on the said bill and on the said affidavit of , hereto annexed and to be herewith served. 44. Notice of motion for preliminary ii^jnnction. [Title of the cause, ns in Form 1, Ante, p. 275.] Take notice, that I shall move this court, on the day of , 18 , at o'clock in the noon of that day, or as soon thereafter as counsel can be heard, at the [ place of holding co^^rt], in the City of , that a writ of injvmction issue out of and under the sea^ of said court [here insert the purpose of the injunction, as, commanding and enjoining you, and each of you, your servants, agents, and employees to desist from the further manufacture, use, and sale of the invention and improvement, the letters patent for which are owned by the complainants herein], according to the prayer of the bill in this 348 FORMS. Buit, a true copy whereof, and of the accompanying affidavits, is herewith Served on you. Dated, , 18 . K. L., Solicitor for Complainants. To T. Z., Defendant. A^davit of service of notice. United States of America, ) ^^ . District of . f ' E. F., being duly sworn, deposes and says; that in the City of , he served a notice, of which the above is a true copy, together with a copy of the bill of complaint and accompanying affidavits, hereto annexed, on T. Z., one of the defendants herein named, on the day of , 18 . E. F. Subscribed and sworn to before me, this day of , 18 . 45. Order for preliminary injunction. [ Cajption, and title of the catise, as in Form 2, Ante^ p. 376.] Upon reading and filing notice of motion for an injunction herein and proof of service thereof, with the affidavits of the complainants annexed thereto, and on reading and filing affidavits on behalf of the defendant, and counsel for the respective parties having been heard, and the same having been duly (3onsidered by the court, and it appearing that [here insert the findrng of the court, as, letters patent of the United States were issued, in due form of law, on the day of ,18 , to A. B. for, title of patent, said letters patent being known and distinguished as issue No. , and that the said defendant, Y. Z., has infringed the rights secured by the aforesaid letters patent, by manufacturing, making and selling to others, naming the thing patented, manufactured and made according to the process patented as aforesaid, contrary to the form of the statute in such case made and provided ; Now, therefore, it is hereby ordered, adjudged, and decreed, that an injunc tion be issued pursuant to the prayer of the bill herein, strictly commanding and. enjoining the said defendant, Y. Z., his clerks, attorneys, agents, servants, and workmen, under the pains and penalties which may fall upon them, *id each of them, in case of disobedience, that they forthwith, and until the further order, judgment, and decree of this court \here set forth the purpose of the injunction, as, desist from making, using, and selling any, naming the infringement, and descrih- ing the mode of its manufacture, &e.'\, substantially as described and claimed in the said letters patent. 46. Preliminary ii^unction; iufringement of patent; The President of the United States of America, To Y. Z., and his clerks, attor- neys, agents, servants, and workmen, Greeting : Whereas, it has been represented to us in our Circuit Court of the United States, for the Circuit and District of , , that letters patent of the United States were issued in due form of law on the da,y of ! 18 , to A. B., for \title of patent], said letters patent being known and distinguished as No. , and that you, the said Y. Z., have in- fi-inged the rights secured by the aforesaid letters patent, by manufactm-ing, making, and selling to others {naming tfie infringement], manufactured and made SUITS m EQUITY. 849 according to the process patented as aforesaid, contrary to the form of the stat- ute in such case made and provided. Now, therefore, we do strictly command and enjoin you, the said Y. Z., ^nd your clerks, attorneys, agents, servants, and workmen, under the pains and pen- alties which may fall upon yau, and each of you, in case of disobedience, that ypu forthwith and until the further order, judgment, and decree of this court, Resist from making, manufacturing, and selling in violation of said patent, any [naming the infringement, and describing its mode of manufacture^ &&.\ substan- tially as described and claimed in the said letters patent. Witness the Honorable [Salmon P. Chase], Chief Justice of the Supreme Court of the United States, at the City of , the day of- ,18 . K. L., Solicitor for Complainant. 47. Affldayit to obtain commission for examination of a witness.' [Kfle of the cause, as in Form 1, Ante, p. 375.] District of ' , 8S .• A. B., being duly sworn, says, that he is the complainant in the above en- titled cause ; that he is advised by his counsel and verily believes that the testi- mony of E F., at present of , mariner \or,as the fact mat/ ie], is ma- terial and necessary for this deponent in the prosecution of such cause ; that the said E. F. is bound on a voyage to sea [or, is going out of the country, or, is so aged, or, so infirm, as to render it probable that he will not be able to attend as a witness on the trial of such cause, or, is a single witness to a fact material for this deponent as aforesaid]. A. B., Complainant. Sworn to before me this day of , 18 . 48. Commission to examine witness. [Gonmlt Form 73, Ante, p. 303 / the necessary alterations will be readily made.} 49. Subpoena to testify before a commissioner. [ Conmlt Forms 76 and 77, Ante, p. 304.] 60. Atndavit to obtain an order for examination of witness (de bene esse). [Consult Form 78, Ante, p. 304.] 61. Depositions (de bene esse) 5 — Caption ; — Certificate at close 5 — ^Form of return thereof to the court. [Oon»iilt Forms 83 to 85, Ante, pp. 306 to 308.] 52. Order to open depositions and produce witness for cross-examination. [Caption, and title of the cause, as in Form 2, Ante, p. 276.] Upon reading and filing notice of return of the deposition of E. F., taken oE ' Supreme Court Equity Rule, No. 70, = Supreme Court Equity Kule, No. 68 1 Antei 145. 1 AnU, 144. 350 FORMS. the part of the complainants before G. H., Esq., on the day of 18 , into the office of the clerk of said court,— Ordered that the said deposition be opened and filed of record in said cause by the clerk of this court, subject to the proviso, that within ten days from the entry of this order the complainant produce said E. F. for cross-examination by defendant's counsel, or elect to with di-aw said deposition, or in default thereof said deposition be suppressed, said cross-examination to be had before any United States Commissioner, in {naming place], or {naming place], and upon reasonable notice to defendant. 53. Notice of motion for appointment of special examiner.' \_Title of the cause, as in Form I, Ante, p. 275. Sir :— You will please take notice that at a stated [or, special] term of this court, to be held on the day of , 18 , at [the p^ace of holding court], the complainant in this cause wiU move at o'clock in the noon, or as soon thereafter as counsel can be heard, for an order that Gr. H., Es- qniie, of , be appointed special examiner herein, under the 67th Rule as amended, to take the deposition of E. F., witness on the part of said complainant. Dated, ,18 . Tours, &c., K. L., Solicitor for Complainant. To 0, P., Esq , Solicitor for Defendant. 54. Order appointing^ special examiner. [ Caption, with title of the cause, a.i in Form 2, Ante, p. 276.] Upon reading and filing [notice of motion with admission of service, and on motion of K. L., solicitor for complainants, no one opposing], it is ordered that G. H., Esquire, of , be and he is hereby appointed special examiner herein, under the 67th Rule as amended, to take the deposition of E. F., witness on the part of the complainant in this cause. 55. Notice of oral examination.* [Title of the cause, as in Form 1, Ante, p. 275.] Sir : — You will please take notice that the complainants in the above cause desire the evidence to be adduced therein, to be taken orally, under the 67th Rule of the Supreme Coiu-t, as amended ; and you will further take notice that by an order made in said cause by Gt. H., Esq., one of the examiners of said court, the examination of witnesses on the part of. the said complainant will take place before said examiner, at [place of examination], in the city of , on the day of , 18 , at o'clock, and proceed as the said examiner may direct. Dated, , 18 . Yours, &c., K. L., Solicitor for, &c. . To O. P., Solicitor for, &c. ' Supreme Court Equity Rule, No. 67, as amended, 1 Ante, 143. SUITS m EQUITY. 35J 56. Subpoena to testify befor'e an examiner.' Tlie President of the United States of America, to E. F., Greeting: You are hereby commanded that all business and excuses being ISeal] laid aside, you appear and attend before Q. H., an examiner [or, special examiner], duly appointed by the Circuit Court of the United States, for the District of ," in the Circuit, and authorized to examine you as a witness in a suit in equity depending undeter- mined in the said Circuit Court, wherein A. B. is complainant, and C. D. de- fendant, on the part of the complainant [or, defendant] ; at [place of examina- tion], on the day of , 18 , at o'clock in the noon, to answer truly all such questions as shall then and there be asked of you. (a) And for a failure to attend, you will be deemed guilty of a contempt ol court [and liable to pay all losses and damages sustained thereby to the party aggrieved], and forfeit two hundred and fifty dollars in addition thereto. "Witness, &c. [Teste as in Form 4, Ante, p. 276.] 57. Subpoena duces tecum. [Proceed as in Form 56, to a, and continue.'] And that you bring with you and then and there produce a certain paper [or, book, or other document, &e., describing the same as particularly as practicaile] now^n your custody, and all other deeds, eyidences, and writings, which you have in your custody or power, concerning the premises. [ Conclude as in said Form] And for a feilure to at- tend, &c. 58. Attachment against witness for disobeying snbpoena. [Seal,] The President of the United States of America, to the Marshal of the District of , Greeting : You are hereby commanded, that you attach E. F., if he may be found in your district, and bring him forthwith [ o/,'on the day of, &c.], person- ally before the Judge of the Circuit Court of the United States, for the District of , held at [place of holding court], in the City of in the said district, to answer for certain trespasses and contempts in not obeying our writ of subpcena to him directed, and on him duly served, com- manding him to appear [insert the direction contained in the subpoena] and you are further commanded to detain him in your custody until he shall be discharged by the said com-t. And have you then there this writ. Witness, &c. [Teste as in Form 4, Ante, p. 226.] 59. Interrogatories for examination of Tritnesses ; before an examiner of the Court.' [Title of the came, as in Form 1, Ante, p. 275.] Interrogatories to be exhibited on the part of the said complainant, for the ex amination of witnessess to be produced, sW^om, and examined before G. H., one 'Supreme Court Equity Eule, No. "Supreme Court Equity Rule, No 78, 1 Ante, p. 146. 71, 1 Ante, 145. 353 FORMS. of the examiners of said court, in tlie above entitled cause, now depending and at issue in the Circuit Court of the United States for the District of , in the Circuit. (a) First Merrogatonj : Do you know the parties, complainant and defend- ant, in the title to these interrogatories named, or either [or, siny] and which of them, and how long have you known them respectively, or such [one] of them as you do know ? Declare the truth, and your utmost knowledge, remembrance, and belief herein. [Proceed with the interrogatories, according to the circumstances of the easel] Lastly : D6 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 question in this cause ? If yea, set forth the same fully and at large in your answer. 60. The lite j before a special examiner. [Title of the cause, as in Form 1, Ante, p. 275.] Interrogatories to be-administered to E. F., of [residence], a witness to be produced, sworn, and examined before G. H., a special examiner duly appointed by the said court under the sixty-seventh rule as amended, to take the depo- sition of said witness, in the above entitled cause on the part of the complainant [or, defendant]. [Continue as in said Form at a] First interrogatory, &c. 61. The like} under a commission. [Title of the came, as in in Form 1, Ante, p. 375.] Interrogatories to be administered to E. F., of [residence], a witness to ba produced, sworn, and examined, under and by virtue of the annexed commis- sion, before G. H., the commissioner therein named, in the above entitled causa on the part of the complainant [or, defendant]. [ Continue as in said Form at a] First interrogatory, &c. 62. Order to show cause why the time for taking testimony should not be enlarged." [ Caption, and title of the cause, as in Form 2, Ante^ p. 276.] On reading the afBdavits of C. D. and E. F., and on motion of K. L., solici- tor .for defendant, in the above entitled suit. It is hereby ordered that copies of the same, with a- copy of this order, be served on the solicitor for the complain- ant in the above suit, on or before the day of , 18 , and that the said complainant show cause, if any he have, at [place of holding court], in the City of , on the day of , 18 , at o'clock in the noon, why the time allowed for taking testimony in the said cause should not be enlarged and extended to and including the day of , 18 . ' Supreme Court Equity Eule, No. 69, Ante, 144. SUITS IN EQUITY. 353 63. Order enlarging the time for taking testimony. [Caption, and title of the cause, as in Form 3, Ante, p. 276.] On reading and filing the defendant's order to show cause, and the affidavits of C. D. and E. F. thereto annexed, and after hearing K. L., Esq., for the com- plainant, and O. P., Esq., for the defendant, It is ordered, that the time allowed for taking testimony in the above entitled cause, be enlarged and extended to and including the day of , 18 ; [And that said cause be set down definitely for final hearing upon the pleadings, proofs, and proceedings therein on the day of , 18 .] 64. Examiner's report.' [Ckpfion, and title of the cause, as in Form 1, Ante, p. 375.] Testimony taken, on the part of the defendant, under the 67th Rule of Prac- tice for the Courts of Equity of the United States, (a) by G. H., Examiner, in Equity. ^ [Wednesday, May 10,] 18 . Present-^K. L., Esq., Counsel for Complainants. O. P., Esq., Counsel for Defendants. E. P., produced and sworn as a witness on the part of the qomplainants \or, defendants], deposes and says, I, &c. [here follows the deposition^ which must le taken down in writing Iry the Examiner, in the form of a narrative, or, in special in- stances, ly question and answer, and read to the witness, and signed ly him: in fh4 presence of thepa/rties in attendance]. E, F. Subscribed and sworn to before me this day of , 18 . G. H., (b) Examiner. Certificate at close. I, Gt. H., (o) Examiner, duly appointed by the Circuit Court of the United States for the District of , in the Circuit, (d) do hereby certify that on the day [or, several days] named in the depositions hereto annexed, I was attended at [place of taking the depositions], by the counsel and witness aforesaid ; That the said witness was duly sworn and examined, and the deposition was reduced to writing and read to the witness and by him sub- scribed in my presence ; [If exhibits a/re introduced in evidence, say, And that Ex-' hibits Nos. , were introduced in evidence in said cause during the taking- of said deposition.] Dated, , 18 . G- H., (e) Examiner. 65. Special examiner's repoi-t. [Insert in Form U, ate.] By G. H., special examiner duly appointed by the said court, to take the deposition of E. F., in said cause. [Insert at b, and o, »nd e, the w 18 , from [according to the case, as, infringing th'e said exclusive rights of the said complainant, by the manufacture, use, and sale of the said improvements, pat- ented in said letters patent]. And it is further ordered, adjudged, and decreed, that the complainant, on such accounting, have the right to cause an examination of said defendant, ore tenus, or otherwise, and also the production of the books, vouchers, and docu- ments of said defendant, and that the said defendant attend for such purpose, before said master, from time to time, as said master shall direct. And it is also further ordered, adjudged, and decreed, that a perpetual in- junction be issued in this suit against the said defendant, restraining him, hia agents, clerks, servants, and all claiming or holding under or through him, from making, or selling [or, using], or in any manner disposing of [describe the thing, &c., patented], embracing the invention or improvements described in the said letters patent, pursuant to the prayer of the said bill of complaint. 74. Master's summons.' [Title of the cause, as in Form 1, Ante, p. 275.] In pursuance of the authority contained in a decretal order, made in the above entitled cause, by the Honorable Gr. H., one of the judges of this court» at a stated [m; special] term, held at [■place of holding court], in said district, on the day of , 18 , ,1, G- H., one of the masters of the said court, do hereby summon you, Y. Z., as defendant, to appear before me, the said G. H., at my office, No. Street, in the City of , in said district, on the day of , , 18 , at o'clock in the noon, to attend a hearing before me, the said master, of the matters in reference in the said cause, to be had by virtue of the order of the said court above re- ferred to. And hereof you are not to fail at your peril. G. H., Master in Equity. Dated the day of , 18 . Underwriting. [Expressing the object of the attendance, as] To appear for a personal examination, and to prodijce ^11 books, vouchers, and documents, con- cerning accounts in this suit. G. H., Master in Equity. I direct the above summons to be served previous to the return day thereof; days. G-. H., Master in Equity. • Supreme Court^Equity. Rule, No. 75, 1 Ante, 145. 358 PORMS. 75. Subpoena, and subpoena duces tecum ;— to testify before a master. [ Consult Forms 56 and 57. The necessary/ alterations will ie readily made.'] 76. Interrogatories for examination of witnesses before a master. [Title of the cause, as in Form 1, Ante, p. 275.] Interrogatoriea to be exhibited, on the part of the said complainant, for the examination of witnesses to be produced, sworn, and examined before Q. H., one of the masters of said court, pursuant to the decretal order made and entered in this cause on the day of , 18 . [Continue as in Form 59 a* a] First interrogatory, &c. 77. Master's report.' [Title of the cause, as in Form 1, Ante, p. 275.] To the Honorable , Judges of the said Court : In pursuance of a decretal order inade and entered in this cause, and bearing date on the day of , A. D. 18 , at a stated term of this court held at [place of holding court], in the City of , in the said district, by which it was referred to G. H., of , one of the masters of this court, to take and state an account of [according to the decretal order, as, the use, gains, and profits, by the defendant in the manufacture and sale of , described in the complainant's bill of complaint, and which the complainants would have received but for the infringements and unlawful acts and doings of the said defendants as specified therein]. I, G. H., a master in said court, do respectfully report that I have proceeded to investigate the matters so referred to me, and that, pursuant to a summons duly issued, I have been attended by the parties complainant and defendant, and their respective counsel in the above cause [or, as the fact may be], and that, after taking due proofs, I find and report that [here set forth tlie findirtgs of th« I do, therefore, respectfully report that the said defendant should be decreed to pay the said complainant the sum of dollars, besides costs to be taxed. I respectfully refer to schedules A, B, Ci hereto annexed, as making a part of this my report. All of which is respectfully submitted. Dated, ,18 . G.H., Master. ' 78. Exceptions to master's report. [Tiile of the cause, as in Form 1, Ante, p. 275.] Exceptions taken by the complainant [or, defendant], to the report mad« herein by G. H., one of the masters of this court, to whom this cause was re ferred, by an order of this court made and entered on the day of 18 , which report bears date the day of ,18 . ' Supreme Court Equity Rule, No. 76, 1 Ante, 146. SUITS IN EQUITY. 359 Mrst exception. — For that the said master, in his said report, &c. [sethvi forth the d^eetien], whereas the said master should have, &c. [setting forth wha', it is claimed, ought to have been reported]. Second exception. — ^For that, &c. K. L., Solicitor for, &c. 79. Final decree. [Caption, and title of the cause, as in Form 2, Ante, p. 276.] This cause having came on to he heard upon the report of G. H., Esq., one of the masters of this court, to whom it was referred to ascertain and report [as in the decretal order], which report bears date the day of , 18 , [and also upon exceptions taken to the said report, on the part of said complainant, and also on the part of the said defendants, and upon the equity re- aerved], and the said cause having been argued by counsel, and due deliberation had thereon, — It is ordered, adjudged, and decreed, and this court by virtue of the power and authority therein vested, doth order, adjudge, and decree, that [here set forth the decision of the court]. And it is further ordered, adjudged, and decreed, and this court by virtue of the power and authority therein vested, doth order, adjudge, and decree, that the said defendant pay to the said complainant, the sum of [here set forth the amount to he paid, as specified above]. And it is further ordered, adjudged, and decreed, that the said defendant pay to'the said complainant his costs in this suit, to be taxed, and that the said complainant have execution for such costs, and for the sums above decreed to be paid to said complainant as aforesaid. 80. Perpetual injunction. [Caption, and title of the cause, as in Form 2, Ante, p. 276.] Whereas it has been represented to us in our Circuit Court of the United States for the District of , in the Circuit, on the part of A. B., complainant, that he has lately exhibited his bill of complaint in our said Circuit Court for the District of , against you, the said T. Z. [add the other parties defendant], to be relieved, touching the matters therein complained of; in which bill it is stated, amongst other things, that you are combining and confederating with others to injure the said complain- ant, touching the matters set forth in the said bill, and that your actings and doings in the premises are contrary to equity and good conscience ; We, there- fore, in consideration thereof, and of the particular matters in the said bill set forth, do strictly command and perpetually enjoin you, the said Y. Z., and the persons before mentioned, and each and every of you, under the pains and penalties which may fall upon you and each of you, in case of disobedience, that you do absolutely desist and refrain from [according to the case]. Witness, &c. [Teste as in Form 4, Ante, p. 276.] M. N., Clerk. K. L., Solicitor for Complainant. 860 VO-R^IS. 81. Perpetual iiyunction ;— mfringenient of patent. The President of the United States of America, to T. Z., his clerks, attomeySj agents, servants, and workmen, Greeting : Whereas, it has been represented to us in our Circuit Court of the United States for the Circuit and District of , that letters patent of the United States were issued in due form of law on the day of , 18 , to A. B., for " [imert the title of the paUnt],'^ said letters patent being known and distinguished as Nos. , and that you, the said Y. Z., have inMnged the rights secured by the aforesaid letters patent, by man- ufacturing, making, and selling to others [set forth the thing patented], [the ma- terial of which was manufactured and made according to the process patented as aforesaid], contrary to the form of the statute in such case made and pro- ■xided. Now, therefore, we do strictly command and perpetually enjoin you, the said T. Z., your clerks, attorneys, agents, servants, and workmen, under the pains and penalties which may fall upon you, and each of you, in case of disobedience, that you forthwith and forever desist from making, manufacturing, or selling in violation of said patents, any [set forth the thing patented], [the material of which is] made and manufactured substantially as described and claimed in the said letters patent. Witness, &c. \ Teste as in Form 4, Ante, p. 276.] M. N., Clerk. K. L., Solicitor for Complainant. 82. Notice of motion for attachment for not complying with the decree. [Title of the cause, as in Form 1, Ante, p. 275.] Take notice, that upon the papers filed in this cause, copies of which have heretofore been served upon you, and upon the afiidavits copies of which are herewith served, I shall move this court, on the day of , 18 , at o'clock in the noon of that day, or as soon thereafter as counsel can be heard, at [place of holding court}, in the City of , that an at- tachment issue against you for [hei-e specify the cause of attachment, as, contempt of the injunction granted against you in this suit]. Dated, , 18 . Tours, &c., To K. L., Solicitor for Complainant. Affidavit of service of notice. United States of America, ) District of . ( **• •■ C. D., being duly sworn, deposes and says, that, in the City of he served a notice, of which the above is a true copy, together with a copy of the accompanying affidavits hereto annexed, on T. Z., the defendant herein named, on the day of , 18 . C, D. Subscribed and sworn to before me, this day of , 18 . SUITS IN EQUITY. 361 83. Attachmeat for not complying with the decree.' . [Oonmlt Form 18, Ante, p. 338. The necessary alferaUons will le readily made.] 84. Execntion.* [Consult Form 131, for Fi. Fa., Ante, p. 321.] ' Supreme Court Equity Eule, No. 8, 1 Ante, 134. CHAPTER III. EEMOYAL OF CAUSES. 1. Petttion for remoTal; in a suit by a citizen against an alien.' [Title of the suit, as in the State court.'] To the Honorable, the [naming the court in wMcTi the suit is hrongM, as, Su- preme Court of the State of New York, for the First Judicial District] : The petition of T. Z., of [place of residence'], respectfully shows : — that your petitioner is the defendant in this suit, and that the same was brought by A. B., plaintiff, on or about the day of , 18 , in the [naming the court], to be held in [the County of , in the said Judicial District], and that the said plaintiff is and was at the time of bringing this suit a citizen of the State of , (a) and that your petitioner is and was at the said time of bringing this suit an alien, that is to say, a subject of the' King [or. Emperor, or, citizen of the republic] of (b) And your petitioner further respectfully shows that the said plaintitt claims in the [summons and complaint] in this suit, as [damages] against your petitioner, the sum of dollars, and that the matter in dispute in this suit therefore exceeds the sum of five hundred dollars, exclusive of costs. And your petitioner further respectfully I'epresents that this suit is brought by the said plaintiff against the said defendant demanding [hej-e state the purpose of the suit, ns set forth in the complaint or declaration]. That the said suit is one in which there can be a final determination of the controversy, so far as it concerns your petitioner, without the presence of the other defendandants as parties, in the cause. [ Or, that the said suit has been instituted and prosecuted for the purpose of restraining and enjoining your petitioner from, &c., according to the case.] (c) And your petitioner fmther respectfully represents that this suit has not yet been tried, but that the same is pending for trial in [place of ti-ial], and that your petitioner desires to remove this suit before the trial thereof into the next Circuit Comt of the United States to be held in the District of , in the Circuit, in pursuance of the provisions of law as contained in the Act of Congress approved July twenty-seven, one thousand eight hundred and ' Act of July 27, 1866, 1 Ante, 92. EEMOVAL OF CAUSES. 363 sixty-six, entitled " An Act for the removal of causes in certain cases from State courts ;" (d) And that he is ready and willing to give such good and sufficient surety as this court may direct for Tiis doing all acts and things required to be done by the said provisions of law, upon the removal of a suit into the United States court, and he oflfers herewith his bond executed by S. T. , of the City of , as surety, in the penal sum of dollars, conditioned that your peti- tioner shall enter in the next Circuit Court of the United States to be held in the District of , in the Circuit, on the first day of its session, copies of all process, pleadings, depositions, testimony and other proceedings in this suit, and doing such other appropriate acts as by the said act of Congress approved July twenty-seven, eighteen hundred and sixty-six, are required to be done upon the removal of a -suit into the United States court, as good and sufficient surety according to the said provisions of law, upon the removal of a suit into the United States court. And your petitioner therefore prays that the said bond may be accepted as good and sufficient surety accord- ing to the said provisions of law, and that the said suit may be removed into the next Circuit Court of the United States to be held in the District of , in the Circuit, pursuant to the statute of the United States in such case made and provided, and that no further proceedings may be had therein in this court. And your petitioner will ever pray, &c. Y. Z., Petitioner. K. L., Attorney for Petitioner. State of , County of , ss : Y. Z., the petitioner in the foregoing petition, being duly sworn, deposes and says that he has read the petition subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters therein stated on information and belief, and as to those ma};ters he be- lieves it to be true ; and further saith not. T. Z. Subscribed and sworn to this day of , 18 , before me. 2. Petition for removal ; in a suit by a citizen of one State against a citizen of another Slate. [This form map le used where the suit is Irought to enjoin or restrain the defend- ant or where the mit can le finally determined without the presence of the other de- fendants. Act of July 37. 1866, 1 Ante, 92.] [Proceed as in Form 1 to a, and continue'] and that your petitioner is and was at the time of bringing this suit, a citizen of the State of . [ Continue as in said Form at b] And your petitioner, &c. 3. Bond on the removal of suit in the foregoing cases.' [IWe of the suit, as in the State court.] We, Y. Z., of , in the State of , as principal, and S, X., of , as surety, are held and firmly bound unto A. B., of ' Act of July 27, 1866, 1 Ante, 92. 364 FORMS. in the sum of dollars lawflil money ot the United States of America to be paid to the said A. B., his successors or assigns; for which payment well and truly to be made we hereby bind ouraelves, our heirs, executors, and ad- ministrators firmly by these presents. Sealed with our seals. Dated the day of , 18 . Whereas a suit was brought on or about the day of , one thousand eight hundred and , in the {naming the court], by the said A. B., against the said T. Z., and the same is now pending for trial in [place of trial], and is removable into the Circuit Court of the United States for the District of , in the Circuit, under the Act of Congress ap- proved July twenty-seven, eighteen hundred and sixty-six, entitled " An Act for the removal of causes in certain cases from State Courts ;" (a) And whereas the said Y. Z. (b) has filed his petition in said {naming the State court] for the removal of said suit into the next Circuit Com-t of the United States to be held in the District of . Now therefore the condition of the above obligation is such that if the above bounden Y. Z. or his legal represent- atives shall enter or cause to be entered in the Circuit Court of the United States for the District of , on the first day of its stated session next ensuing after the order of the said [naming the State court] for the removal of said suit into said Circuit Court, copies of all process, pleadings, depositions, testimony, and other proceedings in said suit, and do or cause to be done such other appropriate acts as by the said Act of Congress approved July twenty- seven, eighteen hundred and sixty-six, are required to be done upon the removal of a suit into the United States court,, then the above obligation to be void, otherwise to remain in full force and virtue. Y. Z. [l. s.] S. T. [L. s.] State of , County of , ss : S. T. , the surety in the foregoing obligation named, being duly sworn, de- poses and says that he is a resident of the State of , and a house- holder therein, and is worth the sum of dollars over all his just debts and liabilities and exclusive of property exempt by law from execution. S. T. Subscribed and sworn to before me, this day of ,18. State of , County of , sa : I certify that on this day of , 18 , before me personally ap- peared Y. Z. and S. T., to me known to be the persons described in and who executed the foregoing instrument, and severally acknowledged to me that they executed the same as their own free act and deed for the uses and purposes therein mentioned. Gt. H. [official title.] 4. Affidavit, in a snit by a citizen of one State against a citizen of another State, to be filed In State court before presenting petition for removal. [This Form map ie used where the removal is lased upon fear of prejudice or local influence in the State court. Act of Man-ch 2, 1867, 1 Ante, 122.] [Title: of the suit, as in the State court.] State of , and) County of . | *'" Y. Z., being duly sworn, deposes and says, that he is a citizen of the State ol REMOVAL OF CAUSES. ggg , and resides at , in said State, and is the defendant ic the above entitled action ; that the same was brought on or about the day 18 , in the [name of court, as, Supreme Court of the State of New York for the First Judicial District, to be held in the County of , in said district]. And this deponent further says that he has reason to believe and does believe that from prejudice and local influence he will not be able to obtain justice in said court, and therefore mates this affidavit for the purpose of removing said suit into the Circuit Court of the United States, for the " District of , in the Circuit, in pursuance of the stat- ute of the United States in such case made and provided, and further saith not. Y. Z. Subscribed and sworn to before me, 'this day of ,18 . 5. Petition for reiuoral j in a suit by a citizen of one State against a cit- izen of another State. [This Form may ie used where the removal is iased upon fear of prejudice or heal influence in the State court. Act of Marrch 3, 1867, 1 Ante, 123.] [Proceed as in Form 1, to a, and continue] And that your petitioner is and was at the said time of bringing this suit a citizen of the State of And your petitioner further respectfully shows, that there is and was at the time when this suit was brought a controversy therein between a citizen of the State, of , to wit, the said A. B., plaintiff in the said suit, and a citizen of the State of , to wit your petitioner, the defendant herein ; and further, that the said plaintiff claims, in the [summons and complaint] iu this suit, as [damages] against your petitioner, the sum of dollars, and that the matter in dispute in this suit therefore exceeds the sum of five hundred dollars exclusive of 'costs. [Continue as in said Form ate] And jour peti- . tioner, &c. [Insert in said Form at d] as amended by the Act of Congress approved March second, one thousand eight hundred and sixty-seven, entitled " An Act to amend an Act, entitled ' An Act for the removal of causes in certain cases from State courts,' approved July twenty-seven, eighteen hundred and sixty-six." And your petitioner says that he has made and filed the affidavit required by said amendatory act, whereof a certified copy is hereunto annexed, marked [" A"] which he prays may be taken as part of this petition. [Conclude as in said Form at d] And that he is ready and willing, &c. 6. Bond on the removal of suit, in the last mentioned case. [Insert in Form 3, a.f a] as amended by the Act of Congress, approved March second, one thousand eight hundred and sixty-seven, entitled •' An Act to amend an Act entitled 'An Act for the removal of causes in certain cases from State courts,' approved July twenty-seven, eighteen hundred and sixty- six." And whereas the said Y. Z. has made and filed in the said [naming the State court], the affidavit required by the said amendatory act, and [continue as in said Form at b] has filed his petition, &c. 366 FORMS. 7. Affidavit to obtain order for stay of proceedings in State court, pend- ing application for remoyal of suit. [D'iU of the cause, as in the State court.'] State of ^ \ss County of . ) ' O. P., being duly sworn, says that lie is the attorney for the defendant in the above suit ; that the same vras commenced on or about the day of , 18 , by the service of a summons on the above named defendant ; that at the time the said suit was brought and at the present time, the plaintiif was and is a cit- izen of the State of , and the defendant was and is a citizen of the State of ; that between the said plaintiff and defendant there is a controversy, and the matter in dispute exceeds the sum of five hundred dollars exclusive of costs ; that imtil the day of , 18 , the said de- fendant had not appeared herein, and on the day of > 18 , ho caused his appearance in the said suit, by O. P., his attorney, to be entered with the clerk of {naming the State courti, at [place of entry of appearance] ■ that at the time of entering said appearance, the said defendant caused to be filed with the said clerk a petition for the removal of the above cause from the said court to the United States Circuit Court for the District of , and a bond with good and sufficient surety, according to the statute of the United States in such case made and provided ; that the deponent desires to move, before the term of this court, for an order removing the above suit to the said United States Circuit Court, as aforesaid ; and that the said defendant desires a stay of proceedings herein until the said' motion can be made. O. P. Sworn to before me this day of , 18 . 8. Order staying proceedings in State court, on removal of suit. [Caption rf order, and title nfthe cause, as in State court.] On reading the affidavit of O. P., attorney for the defendant herein, it is hereby ordered that all further proceedings on the part of the plaintiff in this suit be stayed until the [special] term of this court to be held at [place of holding court], in the City of , on the day of , 18 , and until the further order of this court. 9. Notice of motion for stay of proceedings in State court, and removal of suit. [Title of the cause, as in the State court.] Sir : Please to take notice that on the petition of the defendant in this suit and the bond accompanying the same, and on the notice of appearance of the said defendant herein [and on the affidavit of, &c.], copies of which said peti- tion, bond, notice, and affidavit are herewith served, and on all the papers and proceedings in this suit, I shall move this honorable court at a term thereof, to be held at [place of holding court], in the City of oc the day of , 18 , at o'clock in the noon, or as soon REMOVAL OF" CAUSES. 357 thereafter as counsel can be heard, for an order staying all proceedings in this suit in the said [naming the State court'], and removing this suit iiom the said co'urt to the Circuit Court of the United States for the District of , under the provisions of the act of Congress approved the day of , 18 . Dated, , 18 . Tours, &c., O. P., Attorney for Defendant. To K. L., Attorney for Plaintiff. 10. Order for removal of a suit to a United States court. [ Caption of order, and title of the suit, as in the State court] . Upon reading and filing the petition of the above named T. Z., defendant herein, for the removal of this suit into the Circuit Court of the United States for the District of , in the Circuit, in pursuance of the laws of the United States relating to the removal of suits from the State courts, and Upon filing the security offered by said defendants according to the requiremetts of said laws, and on motion of O. P., attorney for the said de- fendant [K. L., the attorney for the plaintiff, consenting], it is hereby ordered that the said security be accepted, and the said suit be removed into the next Circuit Court of the United States to be held in the said District of , and that no further proceedings be had in said suit in this court. Witness the Ho;norable Gr. H. [one of the Justices of the Supreme Court of the State of New York], and the seal thereof, this day of , one thousand eight hundred and M. N., Clerk. 11. Petition for removal of suit for acts done under the revenue laws. Circuit Court of the United States, ( District of , j To the Honorable the Circuit Court of the United States, held in and for the District of , in the Circuit. The petition of Y. Z., of , in the County of , within the said district, respectfully shows: — That your petitioner was at the various times hereinafter named, and is now an officer of the United States, to wit [xtating his official title, as, Collector of Internal Revenue in and for the Fourth Col- lection District of New York.] That your petitioner was, on the day of , A. D. 18 , per- sonally served with a [summons and complaint] issued out of the [naming the State court, as, Supreme Coxirt of the State of New York, held in and for the County of, &c.] wherein A. B. is named as plaintiff, and your petitioner as de- fendant. That said [summons and complaint] were served on your petitioner in the City of , and within said District of ; that by such service a suit and prosecution has been commenced against your petitioner in the said [Su- preme Court of the State of New York], and that the groimds of such suit and prosecution as stated in the [complaint] aforesaid, are that your petitioner did, on or about the day of > 18 , at [here insert a statement of the charges made against the peiiioner, as tet forth in the complaint or declaration.] 368 FORMS. That each and every of the acts done by your petitioner for or on acoounl of which the said suit and prosecution was commenced, was done under the provisions of the revenue [or, internal revenue] laws of the United States, and under color of such laws. [ Or, if the suit was hrought on account of a right or title claimed hy the petitioner, say, that the said suit and prosecution was commenced for and on account of a right, authority, and title set up and claimed by your petitioner under the pro- visions of the revenue, or, internal revenue laws of the United States.] That this petition is made pursuant to the provisions of section , of the Act of Congress entitled " [title of the act authorizing the removal in the case in question^ approved the day of , 18 . Wherefore your petitioner prays that the said suit and prosecution may be removed into the Cu'cuit Court of the United States held in and for the Bistrict of , in the Circuit, pursuant to the statute of the United States in such case made and provided. And your petitioner wiU ever pray, &c. T. Z. Dated , 18 . , Affidavit of Petitioner. District of , County of , ss : T. Z., of the said county and district, being duly sworn, deposes and says, that he is the petitioner named in the foregoing petition, that he has read the same and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters thereia stated on information and belief, ind as to those matters he believes the same to be true. Y. Z. Sworn to before me this day of , 18 . G. H., U. S. Commissioner. Certificate of Counsel. District of , ss : I, O. P., do hereby certify that I reside in the City of , in the said district ; that I am an attorney and counselor at law in the [Supreme Court of the State of New York] and also in the Circuit Court of the United States for the District of ; that as counsel for the above named petitioner, I have examined the proceedings against him, and have carefully inquired into all the matters set forth in the foregoing petition, and that I believe the same to be true. O. P., Counsel for Petitioner. Dated, , 18 . 12. Certiorari for removal of a snlt from a State court. The President of the United States of America, to the [naming the court where the suit was brotight, as, Supreme Court of the State of ISTew York in the First Judicial District], Greeting : Being informed that there is now pending before you a suit and prosecution in which A. B. is plaintiff, and Y. Z. defendant, which suit was commenced in the said [Supreme Court' of the State of New York], against the said Y. Z., for and on account of acts done [or, for and on account of a certain right, authority and title set hp and claimed] by him under the revenue [or, internal revenue] REMOVAL OF CAUSES. 369 laws of the United States ; and that the said suit and prosecution was com- menced by a [summons] issued out of the said court on the day of , 18 , and that said suit has not been tried ; and we being willing for cer- tain reasons that the said suit and prosecution and the records and proceedin*o;3 therein should be certified by the said court and removed into our Circuit Court of the United States, in and for the District of , in the Circuit, do hereby comiLond you that you certify and send the records and proceedings aforesaid with all things concerning the same to the said Circuit Court of the United States, together with this writ, so that you may have the same at [place of holding court], in the City of , in the said district, on the day of , next, in the said Circuit Court to be then and there held, that the said Circuit Court may cause to be further done thereupon what of right and according to the laws of the United States should be done. Witness, &c. [Teste as in Form 4, Ante, p. 2'^Q.] Indorsement. I hereby depute S. T. to execute the within writ. Dated, , 18 . Q. K., U. S. Marshal 13. Betum of marshal on certiorari. [Indorsed on writ.'] I hereby certify that on the day of , 18 , in the City of 1 , the within writ was served personally on L. M., the clerk of the [naming the court to which the writ is directed}, and a duplicate thereof then an 3 there delivered to and left with him [or, that a duplicate of the within writ was left at the clerk's oflSce of the clerk of the naming the court, in the ©ity of on the day of , 18 J. Dated, , 18 . Q. B-, U. S. Marshal. 14. Return of certiorari by the State court. [Title of the suit, as in the State court.] In obedience to the writ of certiorari, annexed hereto, issued by the Circuit Court of the United States for the . District of , on the day of ,18 , the annexed transcript of the record of this court, with copies of all the papers and proceedings in the above suit filed and remaining of rec- ord in this court are hereby certified and sent to the said Circuit Court of the United States, as in the said writ directed. , Witness, &c. [Teste as in the iState court] M. N., Clerk. Vol. II— 24 ... CHAPTER IV. ADMIRALTY. 1. libel in rem 5 General form.' District Court of the United States [Southern] District of [New York] : In Admiralty. To the Honorable H. G., Judge of the District Court of the United States, in and for the [Southern] District of [New York], (a) The libel of A. B. {describing the libelant, as, of the City of , mer- chant], (b) against the [ship] W., whereof U. V. is or lately was master, her tackle, apparel, and furniture [and cargo], (c) and against all persons interven- ing for their interest in the' said vessel (d) in a cause of contract [or, as the case 18 , at twelve o'clock noon of the same day, if the same shall be a day of jurisdiction, otherwise on the next day of jurisdic- tion thereafter, then and there to interpose a claim for the same, and to make their allegations in that behalf. And what you shall have done in the premises, do then and there make return thereof, together with this writ. Witness, the Honorable G. H., Judge of the said Court, at the City of , in the District of , this day o$ , in ADMIRALTY. 373 the year of cnr Lord one thousand eight hundred and , and of our independence the TT T T. . 4^ T -t, , X ' M. N., Clerk. K. L., Proctor for Libelant. ' [Indorsement.'] I hereby depute E. F. to execute the within process. Dated , 18 . Q. R., U. S. Marshal. 8. Beturn of Marshal on attachment and monition. [Indorsed on the lurit.'] In obedience to the within monition, I attached the [ship] "W. therein de- scribed, on the day of , 18 , and have given due notice to all per- sons claiming the same, that this court will, on the day of inst. [if that day should be ^ day of jurisdiction, if not, on the next day of jurisdic- tion thereafter], proceed to the trial and condemnation thereof, should no claim be interposed for the same, (a) Dated, , 18 . Q. R., u. S. Marshal. 9. Attachment in rem^ with citation in personam. District of , ss. The President of the United States of America, to the Marshal of the District of , Greetihg ; Whereas a libel in rem and personam hath been filed in the Dis- [Seal] trict Court of the United States for the District of on the day of , in the year of our Lord one thousand eight hundred and , by A. B., against \accordinij to the Uliel, as, the ship W., and against the freight due for the cargo now or liitely laden thereinj, and against U. V. [master of said ship], for the reasons and causes in the said libel mentioned, and praying the usual process and monition of the said court in that behalf to be made, and that the said [master] and all persons in- terested in the said [ship] or vessel, her tackle, &c., may be cited in general and special, to answer the premises, and. all proceedings being had that the said [ship] or vessel, her tackle, &c., may, for the causes in the said libel mentioned, be condemned and sold to pay the demands of the libelant. . You are therefore hereby commanded, to attach the said [ship] or vessel, her tackle, &c., and to detain the same in your custody, until the further order of the co^rt respecting the same, and to give due notice to all persons claiming the same, or knowing or having anything to say why the same should not be con- demned and sold pursuant to the prayer of the said libel, that they be and ap- pear before the said court, to be held in and for the District of , on the* day of , 18 , at eleven o'clock in the forenoon of the same day, if the same shall be a day of jurisdiction, otherwise on the next day of jurisdiction thereafter, then and there to interpose a claim for the same, and to make their allegations in that behalf. ' And we do hereby further empower, and strictly charge and command you the said marshal, that you cite and ad- 374 FORMS. monish tne said respondent if he shall he found within the jurisdiction of this court, that he be and appear before the said District Court, on the day of ,18 , at the [U. S. court rooms] in the City of , then and there to answer the said libel, and to mate his allegations in that behalf; and have you then there this writ, with your return thereon. Witness, &c. [Teste, aa at the dose of Form 7.] SI. N., Clerk. K. L., Proctor. [Indorsement as in Form 7.] 10. Return of Marshal on attachment and citation. [The same as Form 8, except insert at a] And I have cited the defendant T. Z. within named [and the defendant X. Y. is not found within this district, after due and diligent search]. 11. Citiition in personam. The President of the United States of America, to the Marshal of the District of , Greeting : Whereas a libel has been filed in the District Court of the United [Seal.] States of America, for the District of , on the day of , in the year of our Lord one thousand eight hundred and , by A. B. against Y. Z., in a certain action civil and mari- time for [wages] therein alleged to [be due .to] the said libelant, amounting to dollars, (a) and praying that a citation may issue against the said respondent pm-suant to the rules and practice of this court. • Now, therefore, we do hereby empower, and strictly charge and command you, the said marshal, that you cite and admonish the said respondent, if he shall be found within the jurisdiction of the said court, that he be and appear before the said District Court, on the day of . 18 , at [place of holding court] in the City of , then and there to answer the said libel, and to make his allegations in that behalf; (b) and have you then and there this writ, with yom- retwn thereon, &c. [Teste as at the close of Form 7.] K. L., Proctor. M. N., Clerk. 12. Citation in personam with a clause of foi-eign attachment. [Proceed as in Form 11 toh, and continue] and if the said respondent cannot be found, that you attach his goods and chattels to the amount sued for, and if such property cannot be found, that you attach his credits and effects to the amount sued for, in the hands of D. E., garnishee ; and that you cite and ad- monish the said garnishee that he be and appear before the said District Court at the time and place aforesaid, and there answer on oath a solemn affirmation as to the debts, credits, or effects of the said repondent in his hands, and to sUch interrogatories touching the same as may be propounded by the libelant. [Conclude as in said Form] And have you, &c. ADMIRALTY. 375 13. Warraut of arrest in personam. [Praceed as in Form 11 to a, and continue] and praying that a warrant of ar- rest may issue against the said defendant. Now therefore, we do hereby empower, and strictly charge and command you, the said marshal, that you take and arrest the said defendant if he shall be foimd in your district, and him safely keep, so that you may have his body before the said District Court, on the day of , at {-plane of holding court], in the City of , then and there to answer the said libel, and to make his allegations In that behalf. {Conclude as in said Form at b] And have you, &c. Mark for hail. The marshal wiU hold the defendant to bail ia the sum of dollars. Dated , 18 . M. N., Clerk. ll. Bond to Marshal on. arrest. Know all men by these presents, that we, Y. Z., S. T., and TJ. V., are held and firmly bound unto Qj. R., Marshal of the District of , in the sum of dollars, lawful money of the United States of America, to be paid to the said Q. R., his executors, administrators, or assigns ; to which payment, well and truly to be made, we bind ourselves and each of us, jointly and severally, our and each of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated this day of A. D., 18 . Whereas, a Ubel has been filed in the District Court of the United States, for the District of , on the day of , 18 , by A. B., against the a"bove bounden Y. Z., in a certain action, civil and maritime, for [wages, therein alleged to be due and owing to the said libelant, amounting to dollars]. The condition of this obligation is such, that if the above bounden Y. Z., shall appear in the said suit, before the District Court of the United States for the District of , on the day of , at [place ofMding court], in the City of , and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final de- cree rendered therein, in the said court, or in any appellate court, then the above obligation to be void, otherwise to remain in full force and virtue. Sealed and delivered in the presence of Y. Z. [l. s.] S. T. [L. s.] U. V. [L s.] 15. Bond to the Marshal, under the the Act of 1847. District Court of the United States of America, For the District of Piled the day of , 18 . Know all men by these presents, that we, X. Y., S. T., and T. U., are held and firmly bound unto Q. E., Marshal of the United States, for the District of , in the sum of dollars, to be paid to the said Q. 376 FORMS. E., his executors, administrators, or assigns ; for the payment oi vrhich, well ano truly to be made, we bind ourselves and each of us, our and ea^h of our heirs, executors, and administrators, jointly and severally, iirmly by these presents. Sealed with our seals, and dated the day of- , in the year of our Lord one thousand eight hundred and Whereas, a libel has been filed in the District Court of the United States, for District of , on the day of , in the year of our Lord one thousand eight hundred and , by A. B., libelant, against [the ship or vessel "W., for the sum of dollars, on wbich process of at- tachment has issued, and the said [ship or vessel] is in custody of the Marshal under the said attachment, and the said X Y., has applied for a discharge of said [ship or vessel] from the custody of the Marshal, and has filed a claim claiming the said [ship or vessel] as owner, and has filed a stipulation for the claimant's costs, pursuant to the rules and practice of the said court. Now, therefore, the condition of this obligation is such, that if the above bounden X. Y. shall abide by and perform the decree of this court, then this obligation shall be void, otherwise the same shall be and remain in full force and virtue. Sealed and delivered, and taken and acknowledged, this day of 18 , before me. Justification of sureties. f The same as in Form 6.] Certificate qfapp}'ovat. I approve of the sufficiency of the sureties to the within bond. Dated this day of , 18 . Recorded the day of , 18 . [Signed hy the Judge or the Collector of the Port.] 16. Order entering appearance, on giving bond under the Act of 1847. [ Caption, and title of the cause, as in Form 2, Ante. p. 276.] On filing claim and stipulation for claimant's costs, together with a bond under the act of Congress in double the amount claimed, approved % the dis- trict judge, on motion of O. P., proctor for the claunant, it is ordered, that the appearance of the claimant be and the same is hereby entered, and that a copy of this order be delivered to the marshal. 17. Notice for pnblication. United States of America, District of > ss. Whereas a libel hath been filed in the District Court of the United States of America for the District of , on the day ji in the year of our Lord one thousand eight hundred and ' by A. B. £owner], and B. C. [master of the brig D.], against the [ship] W., her tackle, &c. And whereas the substance of the said libel is, that [insert a brief statement oj the allegations of the libel]. And praying that the said vessel, her tackle, &c. »ay be condenmed and sold to pay' the demands of the libelants. Now there-' ADMIRALTY. 377 fore, in pursuance, of the mcnition under the seal of the said court to me directed and delivered, I do hereby give public notice to all persons claiming the said vessel, her tackle, &c., or in any manner interested therein, that they be and appeal- before the said District Court to be held at the City of in and for the said District of , on the day of 18 , at o'clock of that day (provided the same shall be a day of juris- diction, otherwise on the next day of jurisdiction thereafter), then and there to interpose their claims, and to make their allegations in that behalf Dated this day of , 18 . Q. E., United States Marshal, &c. K. L., Proctor for Libelant. 18. Proclamation on the return of process in rem. [By the crier, in open court.] Hear ye ! hear ye ! A. B., against the ship W., her tackle, apparel and furni- ture [and cargo]. All persons who have anything to say why the [ship W., her ' tackle, apparel and furniture, and cargo] should not be condemned and sold to answer the prayer of the libelants in this cause, come forward and make your allegations in that behalf. 19, Order, on return of process in rem, for a default, and reference to a commissioner. [Caption, and title of the cause, as in Form 2, Ante, p. 27G.] ■ The marshal having returned on the monition issued to him in the above en- titled cause, that in obedience thereto he has attached the said [ship] "W., her tackle, &c. [and cargo], and has given due notice to all persons claiming the same, that the court would, on this day at twelve o'clock noon, proceed to the trial and condemnation thereof, should no claim be interposed therefor, which return has been filed, and the usual proclamation having been made, (a) and no person having appeared or interposed a claim to the said [ship] W., her tackle, &c. [and cargo],— Now, on motion of K. L., proctor for the libelant. Ordered, that the defaults of all persons be and the same are hereby entered herein, and that the said vea- sel, her tackle, &c., be condemned to pay the demands of the libelant. (b) And on like motion, it is further Ordered, that it be referred to a com- missioner of this court'to ascertain and compute the amount due the libelant for [freight, or othef cause], and to report thereon to this court with all conve- nient speed. 20. Order on return of process, where claim is filed. [Caption, and title of the cause, as in Form 2, Ante, p. 276.] The marshal having returned upon the monition in this cause, that he had attached the said [ship, her tackle, &c.], and had given due notice to all per- sons claiming the same, that this court would on this day proceed to the trial and condemnation thereof, should no claim be interposed for the same, and the usual proclamation having been made, and X. Y. having appeared and filed his claim to the said [ship, her tackle, &c.], as owner \or, duly authorized agent of Y. Z., owner], and having been allowed days to file his answer herein, — gyg FORMS. Now, on motion of K. L., proctor for the libelant, Ordered, that default niti of the slid claimant be entered, and that the defaults of all others be entered herein. 21. Order on return of process in personam ; for defanlt and reference to a commissioner. [Caption, and title of the came, as in Form 2, Ante, p. 376.] The process in this cause being returned personally served, the defendant is duly called, and does not appear ; and on motion of K. L., proctor for the libel- ant, the said defendant is pronounced to be in contumacy and default, and the libel is adjudged to be taken, pro confesso, against him, and is referred to G. H., a commissioner to ascertain the amount due to the libelant, and to report the same to the court with all convenient speed. 22. Order for short publication. [ Caption and title of the cause, as in Form 3, Ante, p. 376.] On reading and filing the mandate of the District Judge, and on motion of K. L., proctor for the libelant, it is ordered, that the notice for all persons to appear and intervene for their interest, in the above entitled cause, be published by the marshal, until the day of , 18 . 23. Notice and entry of appearance by proctor. [ Consult Forms 18 and 19, Ante, pp. 379, 380.] 24. Claim. [ Caption and title of the cause, as in Form 3, Ante, p. 376.] And now, X. Y., owner [or, duly authorized agent of T. Z, owner, or as the case may he] of the [ship] W., intervening for the interest of himself [ or, of the the said T. Z.] in the said [ship] W., appears before the honorable court and makes claim to the said [ship] W., &c., as the same are attached \j the mar- shal, under process of this court, at the instance of A. B., and the said Y. Z avers that he [or, the said Y. Z., owner] was in possession of the said [ship] at the time of the attachment thereof, and that the person above named is the true and bona fide owner of the said [ship] and that no other person is the owner thereof; wherefore, he prays to defend accordingly. Y. Z. Sworn to and subscribed this day of , A. D. 18 , before me. Gt. H., U. S. Commissioner. O. P., Proctor for Claimant. 25. Stipulation for costs to be given by the claimant. District Court of the United States, For the District of Filed the day of , 18 . BTIPTJLATION ENTERED INTO PUnSUANT TO THE BULES AND PRACTICE OP THIS COURT. Whereas a libel was filed in this court, on the day of in the year of our Lord one thousand eight hundred and , by A. B., against ADMIRAITY. 379 (a) [the sMp W., her tacMe, apparel and furniture, and cargo], for tlie reasons and causes in the said (b) libel mentioned, and praying that [the same may be condemned and sold (c) to answer the prayer of the libelants]. And whereas, also (d) a claim has been filed in said cause by X. T., and the Baid claimant S. T., surety, (e) the parties hereto, hereby consenting that in case of default or contumacy on the part of the claimant or his surety, a summary decree may be entered against them and each of them, and that execution there- on for the sum of two hundred and fifty dollars may issue against their goods, chattels, and lands, — Now, therefore, we, the undersigned stipulators, submitting ourselves to the jurisdiction of this court, do acknowledge ourselves to be bound unto the said libelant, or whomsoever it may concern, the said A.' B., claimant, as principal, and the said S. T., as surety, jointly and severally, in the sum of two hundred and fifty dollars, lawful money of the United States, conditioned that if the claimant above named shall pay all costs and expenses (f) which shall be awarded against him by the final decree of this court, or upon an appeal, by the appellate court, then this stipulation shall be void, otherwise to remain in full force and effect. X. T. S. T. Taken and acknowledged this day of , 18 , before me, G. H., U. S. Commissioner. Justification of mrety. [The same as in Form 6.] 26. The like j by the defendant. \Insm't in Form 35, at a] T. Z., for the reasons and causes in the said libel mentioned ; and whereas the said Y. Z. has appeared in said suit, and the said T. Z. and S. T. his surety, \continue as in said Form at e] the parties hereto, &c. \mbstitutmg the defendant /br claimant]. 27. The like; by intervener. \Froceed, as in Form 35, substituting intervenor for claimant.] [Insert at d, in place of what follows, to e\. Y. Z. has intervened for his interest, and the said Y. Z. and'S. T. his surety, [Insert at f ] and damages. 28. Affldavit to obtain interlocutory sale. \TiiU of (he cause, as in Form 1, Ante, p. 275.] District of , ». A. B., one of the libelants in this cause, being duly sworn, says, that [insert a irief statement of the facts, as, the ship "W. is now at the wharf in the port oj , subject to large and increasing expense for wharfage, keeper's fees, and other expenses. That she is in a damaged condition, and requires care and repairs. That a large portion of her cargo is perishable, being sugar, and in a wet and damaged condition. That the only claims that have been interposed are of X. Y., for, &c.]. That, in his opinion, the interests of all parties concerned will be promoted by a speedy judicial sale of said [ship, her tackle, apparel, and 380 FORMS. furniture, and cargo], the proceeds of such sale to be brought into court for the benefit of whcm it may concern, subject to the fiirther order of the court. A. B. Sworn to before me this day of , 18 . 29. Notice of motion for interlocutory sale. [Title of the cattle, as in Form 1, Ante, p. 275.] Sir : Tou will please take notice that, on the libel and claim in this cause, and on the aiHdavit of A. B., a copy of which is annexed hereto, a motion will be made before His Honor, H. G., judge of this court, at [place of Jwlding court], in the City of ; on the day of ,18 , at o'clock in the noon of that day, for an order, that the [ship W., and her cargo above mentioned], be sold under the direction of the marshal, and the proceeds brought into court, to abide the event of this suit. Dated, , 18 . Yours, &c., K. L., Proctor for Libelants. To O. P., Prottor for Claimant. 30. Order for interlocutoi-y sale of a ship and cargo. [ Caption, and title of tTie cause, as in form 3, Ante, p. 376.] On reading and filing the affidavit of A. B. [and the consent of O. P., proctor for the claimant], and on motion of K. L., proctor for the libelant. It is ordered, that the ship W., her tackle, apparel, and furniture, and cargo, be sold by the marshal on [six] days' public notice, and that a writ of venditioni exponas issue accordingly ; and it is further ordered, that the marshal bring the proceeds of such sale into this court, and pay the same to the clerk thereof. 81. Order appointing appraiser. [ Caption, and title of the cause, as in Form 3, Ante, p. 376.] On motion of K. L., proctor for the libelant [or, claimant]. It is ordered, that C. D. and E. F. be and they are hereby appointed appraisers, to appraise the value of the above mentioned [ship, her tackle, &c.], p. oceeded against herein. And it is further ordered, that the clerk of this court give notice ot the appointment of said C. D. and E. F. as such appraisers. 32. Notice to appraisers. [Title of the cause, as in Form 1, Ante, p. 375.] Sir : Please to take notice, that you, together with E. F., have been appointed appraisers to appraise the value of [describe the property], proceeded against in the above cause. You will please call at the office of the clerk of the United States District Court, in the City of , at o'clock, A. M., on the instant, and take and subscribe the oath required by law. Dated, , 18 . Yours, &c., To C. D. M. N., Clerk. ADMIRALTY. 33. Appraisers' oath. 381 [nth of the cause as in Form 1, Ante, p. 275.] The undersigned having been appointed appraisers to appraise the value of [descnbe the property], proceeded against in the above cause, do solemnly swear, that we will faithfully appraise the same to the best of our skill and ability. C. D. E. F. Subscribed and sworn to, this day of ,18 , before me, Gr. H., U. S. Commissioner. 34. Notice of appraisement.* [Title of the came, as in Form 1, Ante, p. 275.] The undersigned having been appointed appraisers to appraise [describe the property], do hereby give public notice, that we will proceed to appraise the i&me &t \^p'kbce of appraisement], on the ' day of ,18 , at o'clock, of that day. O. D. Dated, , 18 . E. F. 35. Appraisers' report. [Title of the emise, as in Form 1, Ante, p. 375.] The undersigned having been duly appointed and sworn as appraisers to appraise the value of [describe the property], do report that we have examined and appraised the same, and do find that the same is worth the sum of dollars. Dated, , 18 All which is respectfully submitted. C. D. E. F. 86. Consent to stipulate for property without process. [Me of the cause, as in Form 1, Ante, p. 275.] A libel having been filed in this cause, I hereby consent that no process issue thereon to arrest the said vessel, provided that, in the course of this day, X. T., the owner thereof, file a claim, and with S. T., as surety, enter into the usual stipulation for costs and value, the latter in the sum of dollars, in the same manner as if the said vessel were arrested, and were to be discharged on stipulation. Publication to be waived, and answer to be filed on or before the day of , 18 ; otherwise, default to be entered. Dated, ,.18 . K. L., Proctor for Libelant. 37. The like, in a different form. [Title of the cause, as in Form 1, Ante, p. 275.] A libel having been filed in this cause, and X. T., the owner of said vessel, having, without process, filed his claim to the same, and with S. T., as surety, having entered into the usual stipulations, it is agreed that the said cause shall, in all things, proceed as if the said vessel had been arrested and regularly dis- charged on stipulation. Dated, , 18 . K. L., Proctor for Libelant. O. P., Proctor for Claimant. ' In some districts, this notice must also be served upon the parties. 382 FORMS. 38. Consent that a vessel be discharged on stipulation. [Title of the cause, as in Foi-m 1, Ante, p. 275.] The [ship] W. haviiig been arrested on the process issued in this cause, we consent that, on filing the usual stipulation to be entered into according to the rules of the coui-t, to appear, abide, and perform the decree, in the sum of dollars, and on filing a claim, and on complying with the rules of the court m to the fees of the oflicers of court, the said ship be discharged from custody and arrest. Dated, , 18 . K. L., Proctor for Libelant. 39. Consent; fixing the rnlne wlthont appraisement, and discharging' the property from custody. [Ktle of the cause, as in For^n 1, Ante, p. 275.] I hereby consent that the value of the [ship] W., her tackle, apparel, and furniture, be fixed at dollars, without appraisement, and that, on filing a claim and the necessary stipulations for costs and value, &c., and com- plying vdth the rules of the com-t as to fees, the said [ship] be discharged from custody. Dated, , 18 . K. L., Proctor for Libelant. 40. Stipulation for value. District Court of the United States, For the District of In Admiralty. Filed the day of , 18 . BTIPtTLATrON FOE VAXUB, ENTERED INTO PtmSUANT TO THE EtTLES AND PRACTICE OF THIS COURT. Whereas a (a) libel was filed on the day of , in the year of our Lord one thousand eight hundred and , by A. B., against (b) [the ship W., her tackle, apparel, furniture, and cargo], for the reasons and. causes in the said (c) libel mentioned; and whereas the said (d) [vessel, her tackle, ap- parel, furniture, and cargo], are now in tJie custody of the marshal under the process issued in pursuance of the prayer of said (e) libel: And whereas, a claim to said vessel has been filed by X. Y., and the value thereot has been iixed by consent [or, appraised] at dollars, as appears from said consent [o>; appraisement] now on file in said coui-t ; Now therefore, we, the undersigned stipulators, submitting ourselves to the jurisdiction of this court, do acknowl- edge ourselves to be bound unto the said (f ) libelant, or whomsoever it may concern, the said X. Y., claimant, as principal, and the said S. T. and U. V. as sureties, jointly and severally, in the sum of dollars, lawful money of the United States, hereby consenting and agreeing that a summary decree may be entered against us and each of us, for the above [appraised] value, with interest thereon from this date, and that execution may thereon issue against our goods, chattels, and lands for the payment of the said sum of money, if pay- ment thereof, or any part thereof, shall bo ordered or decreed, (g) Upon con- dition, nevertheless, that if the stipulators undersigned, shall at any time, upon ADMIRALTY. 383 the interlocutory or final order or decree of the Baid District Court or of any appellate court to which the above named suit may proceed, and upon notice of such order or decree, to O. P., Esquire, proctor for the claimant of said (h) [vessel, &c.], abide by and pay the money awarded by the final decree rendered by the court or the appellate court, if any appeal intervene, (k) then this stipu- lation to be void, otherwise to remain in full force and virtue. Taken and acknowledged this day of , 18 , before me, G. H., U. S. Commissioner. JustAJication of sureties. [The same as in Form 6.] 41. Stipnlation for the safe return of a vessel. [Proceed as in Form 40, to g, and coniinue] TJpon condition, nevertheless, that if the said vessel shall safely return from her present intended voyage to the port of , [conclude as in said Form at k] then this stipulation, &c. 42. Notice to the Marshal to discharge. [Title of the cause, as in Forml, Ante, p. 275.] Sir : The above [named vessel, or as the case may Je], having been [bonded] and the costs of the clerk having been paid, you wiH dis- charge the said [vessel, her tackle, &c.], from your custody. Dated, , 18 . Tours, &c., M. N., Clerk. To Q. R., United States Marshal. 43. Exceptions to a Ubel. [Tidie oftlie cattxe, as in Form 1, Ante, p. 275.] The exceptions of T. Z., [defendant], to the libel of A. B., libelant, filed in the above cause : — (a) First exception. For that, [here state in what the libel is insufficient, as, the same does not allege that the libelant has sustained any damages in the matter of the libel]. Second exception. For that, &c. [Proceed in like manner to set forth th« other exceptions, and conclude] In all which particulars the said libel is imper- fect and insufficient, (b) and, therefore, the said [defendant] is not bound to answer the same ; and he prays that the said libel may be dismissed with costs. Dated, , 18 . O. P., Proctor for, &c. 44. Peremptory exception to a libel. [Proceed as in Form 43, to a, and continue] Alleges that [Jtere set foi-th tht maMer in abatement, as, that on day of , last, the said libelant in consideration of dollars, to him paid, released the said defendant from the cause of action set forth in the said libel]. [ Conclude as in said Form, at b] and therefore &c. 384 FORMS. 45. Decree overrnling exceptions to libel. [ Caption^ with title of the cause, as in Form 3, Ante, p. 376.] This cause coming on to be heard on the exceptions filed by the [defendant] tp the libel herein, and having been argued by the advocates for the respective parties, and due deliberation having been had in the premises, it is now ordered, adjudged, and denreed, (a) that the said exceptions to the libel aforesaid bo disallowed and overruled, with costs to be taxed. • 46. Decree on exceptions to libel ;— directing amendment of libel and flU ing of answer thereto. [Proceed as in Form 45, to a, and continue] That an amended libel be filed herein, to which said exceptions shall be deemed applicable, and that the said exceptions be overruled, and that an answer be filed by the [claimant] within days from the date hereof. 47. Answer by claimant. [Title of the cause, as in Form 1, Ante, p. 375.] To the Honorable H. Q., Judge of the District Court of the United States, within and for the District of X. Y., claimant for the [ship] "W., her tackle, apparel, and furniture, inter- vening for his interest therein, for answer to the libel and complaint of A. B., against the said [ship,] her tackle, &c., alleges and proprounds as follows : First. [Sere set forth the first atierrment in the defense relied itpon.} [Proceed with the several averments according to the case, admitting or denyiug each separate article of the libel, and each separate allegation therein, in tlie same order as nunibered ; and in like manner answer each iiiterrogatory if any are con- tained in the libel.'] [Fifth.] That all and singular the premises are true. "Wherefore the claimant prays that this honorable court will be pleased to pronounce against the libel herein, and that the same may be dismissed with costs to these claimants to be taxed. X. Y., Claimant. Sworn to before me this day of , 18 . O. P., Proctor for Claimant. L. M., Advocate. G. H., U. S. Commissioner. 48. Exceptions to an ailswerj— for insufficiency. [Title of the cause, as in Form 1, Ante, p. 375. Exceptions taken by the said libelant to the answer of Y. Z., claimant [or, defendant] in the above cause, to the libel of the said A. B., filed herein. (a) First exception. For that the said [defendant] has not well and suffi- ciently answered and set forth [here state in lolmt the answer is insufficient]. Second exception. For that, &c. [Proceed in like manner to set forth the sev- eral insufficiencies, and conclude] In all which particulars the said answer of the ■aid [defendant] is imperfect, inaufflcient, and evasive, (b) and the libelant there- ADMIRALTY. 335 fore excepts thereto, and prays that the said [defeudant] may be compelled to put in a further and sufficient answer to the said libel. K. L., Proctor for the Libelant. 49. The like ; — for scandal and impertinence. {Proceed as in Form 48, to a, and continue.] First exception. For that the allegations in the said answer, in the words following, to wit : " [Tiere insert the first allegation excepted toy are scandalous and impertinent, and ought to be expunged. Second exception. For that the allegation, &c. [Proceed in like manner to set forth the several allegations to which eoxepticn is taken, and contimiel In all which particulars the said libelant insists that the [defendant's] answer is irrele- vant, impertinent, and scandalous. [ Conclude as in said Form at b] and th\i •libelant therefore, &c. 50. Decree overrnling exceptions to an answer. [Caption, and title of the cause, as in Form 2, Ante, p. 276.] This cause coming on to be heard on exceptions filed by the libelant to the answer of the respondent, and having been argued by the advocates for the re- spective parties, and due deliberation having been had in the premises, it is now ordered and decreed by the court, (a) that the exceptions of the libelant to the answer of the respondent be disallowed and overruled, with costs to be taxed. 51. Final decree overi-uling exceptions to the answer, and dismissing the Ubel. [Proceed as in Form 50, to a, aTid continue] That the exceptions filed by the libelant to the plea of the respondent of [a former trial and decree, upon the subject matter of this suit], be overruled with costs to be taxed, and that the libel of the libelant be decreed barred, and be dismissed, with costs to be taxed, [unless the libelant shall elect to file an amended libel herein, and in that case, that he have leave to file such amended libel within days, on payment of the costs created by such exception to be taxed]. 52. Interrogatories propounded to a party. [Title of the cause, as in Form 1, Antf, p. 375.] Interrogatories propounded to the defendant [or, libelant], which he is re- quired to answer in writing, under oath. First interrogatory. What is your name, age, and occupation, and where do you reside ? [Proceed with the interrogatories, according to the circumstances of the case.] fated, 18 . K. L., Proctor for, &c. [ TFAm the interrogatories are annexed to a pleading, proceed immediately after the jurat and Hgnatures to tlie pleading, as in the above Form, omitting ths title of the cause; thus] Interrogatories propounded, &c. Vol. IL— 25 386 FORMS. 53. Exceptions to interrogatories to a party or garnishee. ' [Titk ofihe cause, as in Form 1, Ante, p. 275.] Exceptions to the interrogatories addressed to the libelant [or, defendant, er, garnishee]. First. The said libelant [or, defendant, or, garnishee], excepts to the [fourth] interrogatory, for the reason that [the answer thereto -will expose him to a prosecution for a penalty, and he is not by law obliged to answer the same]. Second. He excepts to the [seventh] interrogatory, for the reason that [it only inquires in relation to hearsay, and the declarations of third persons, which are not competent evidence]. K. L., Proctor for [Libelant]. 54. Answer by a party to interrogatories. [Title of the raxise, as in Form 1, Ante, p. 275.] Answers of A. B., libelant [or, of X. T., defendant], to the interrogatories propounded to him in this cause. To the first interrogatory, he says, &c. [Answer each interrogatory separately.'] A. B. District of , ss. A. B., the above named respondent, being duly sworn, says, that the forego- ing answers subscribed by him are true. A. B. Sworn to before me this day of , 18 ' . 6. H., U. S. Commissioner. 55. Exceptions to answers of a party or garnishee to interrogatories. [Title of the cause, as in Form 1, Ante, p. 275.] Exceptions to the answers of the libelant [or, defendant, or, garnishee], to the interrogatories addressed to him. First. The defendant [or, libelant, or, garnishee], excepts to the answer to the first interrogatory [here state the ground of exception, as, for the reason that, instead of answering the interrogatory fully, directly, and positively, it answers the same evasively and indirectly, so far as it does answer the same, and omits wholly to answer how long the said defendant was confined in irons in the hold of said ship]. Second. He excepts to the answer to the [fifth] interrogatory, for the reason that [said answer is impertinent and scandalous]. O. P., Proctor for [Defendant]. 56. Order for commission or dedimns potestatem. [ Caption, and title of the cause, as in Form 2, Ante, p. 276.] On reading and filing a consent of the proctors of the several claimants in this cause, and on motion of K. L., proctor for the libelant. Ordered, that a com. mission issue therein to Q. H., of , directing him to examine E. F. upon interrogatories to said commission annexed. 57. Dedimus potestatem j or commission in a cause. [Contidt Form 72, Ante, p. 303.] ADMIRALTY. 337 58. Tlie like 5 on a motion or other proceeding. [Cmmli Form 73, Ante, p. 303.] 69. Interrogatories for tlie examination of Trituesses nuder a commission. [Cmmlt Form 74, Ante, p. 303.] 60. Subpoena, to testify before a commissioner. [Consult Forms 76, 77, Ante, p. 304.] 61. Deposition taken by commissioners specially appointed. {Title of tlie cause, as in Form 1, Ante, p. 375.] Depositions of C. D. and E. F., witnesses produced, sworn, and examined on the day of , and on the day of , in the year of our Lord eighteen hundred and , at [place of examination], in a certain cause n 18 , requiring " the stipulators for value [or, costs] herein to cause the engagement of their stipulation to be performed, or show cause within [four] days, or on the first day of jurisdiction thereafter, why execution should not issue against them, their goods, chattels, and lands, according to their said stipulation ," with an admission [or, affidavit] of ser- vice of a copy of said order on O. P., proctor for the herein, on the day of , and no cause being shpwn. Now, on motion of K. L., proctor for the herein, it is ordered and decreed that a summary judgment be and the same is hereby entered against X. T. and U. V. and S. T., the stipulators for value [or, costs] for the sum of dollars, the amoimt of their said stipulation ; and that the have execution thereon to satisfy this decree. 92. Attachment to compel obedience to an order or decree. The President of the United States of America, to the Marshal of the [Seal.l District of , Greeting: Whereas, in a certain cause, civil and maritime, in the District Court of the United States for the District of . , wherein A. B. is libelant against X. Y. [or, the ship, or, vessel, &c.], the said court did, on the day of , 18 , by a decree made on that day, order and direct that [here set forth the order'] ; and whereas the said X. Y. neglected and refused to obey said decretal order, and thereupon the said court ordered and decreed that an attachment should issue against him to compel him to perform and obey the said decretal order ; you are therefore commanded to attach and arrest the said X. Y., and him safely keep until he obey and perform the said decretal or. der, and [here specify the ya/rticular acts to le done], and to return to the said court what you shall do in the premises, with this writ. Witness, &c. [Teste as at the close of Form 7.] 394 FORMS. 93, Veudltioni exponas. [Proceed as in Fm-m 7, to a, and continue] And praying that the same may ba condemned and sold to answer the prayer of the said libelants ; and whereas the said [ship] and cargo have been attached by the process issued out of th(» said District Court iu pm'suance of the said libel, and are now in custody by ' virtue thereof; and such proceedings have been thereupon had that by the definite \or, interlocutory] sentence and decree of the said court in this cause made and pronounced on the day of , one thousand eight hundred and , the said [ship] her tackle, apparel and furniture, and cargo, were or- dered to be sold by you, the said marshal, after giving [six] days notice of such sale, according to law ; and that you have the moneys arising from such sale, to- gether with this writ, at a District Court of the United States, to be held for the District of . at the City of , on the day of , one thousand eight hundred and , and that you then pay the same to the clerk of the court. Therefore, you the said marshal are hereby commanded to cause the said [ship] W., her tacfele,' apparel, furniture, and cargo, so ordered to be sold, to be sold in manner and form, upon the notice, and at the time and place by law re- quired. And that you have and pay the moneys arising from such sale, pursu- ant to the aforesaid order or decree, and have you also then and there this writ. •Witness, &c. [Teste as at the close of Form 7.] Return of the Marshal on the foregoing. In obedience to the above precept, I have sold the [ship W., her tackle, ap- parel, furniture, and cargo], and such sale amounts to dollars, which sum I have paid to the clerk of this court, as I am above commanded. Dated this day of , 18 . Q. R., U. S. Marshal. 94. Notice of sale by marshal. V. S. MABSHAIi's SALE. ^ By vu'tue of a writ of venditioni exponas to me directed and delivered, 1 will sell at public auction, at [naming place of sale], on the day of , 18 , at o'clock, A. M., the following property : [here describe the property to he sold.] *Q. R.^ XJ. S. Marshal, District of 95. Conveyance of vessel by marshal. To all to whom these presents shall come, Greeting : Know ye, that I, Q. R., Marshal of the United States for the Dis- t"ct of , by virtue of a certain writ of venditioni exponas, issued out of the District Court of the United States for the District of , and to me, the said marshal, directed and delivered; and also for and in consideration of the sum of dollars, lawfril money of the United States of America, to me, the said marshal, in hand paid, before the sealing and delivery of these presents, by E. F., the receipt whereof I do hereby acknowledge, have granted, bargamed, and sold, and by these presents do ADMIRALTY. ggg grant, bargain, and sell unto the said E. F., his executors, administrators, and assigns, the [ship] or Tessel called the "W., together with her tackle, apparel, and furniture. The certificate of the enrollment of which said [ship] or vessel is as follows, to wit : [here insert a copy of the enrollment] To have and to hold the said [ship] or vessel, together with her tackle, ap- parel, and furniture, unto the said E. P., his executors, administrators, and as- signs, to his sole and only proper use, benefit and behoof, for ever, as fully and amply in all respects as I, the said Q. E.. as marshal as aforesaid in virtue of the writ of venditioni exponas as aforesaid, may or ought to grant, bargain and sell the said [ship] or vessel, her tackle, apparel, and furniture. In testimony whereof, I, the said Q. R., Marshal of the United States for the District of , have hereunto set my hand and seal this ^3.y of , in the year of our Lord one thousand eight himdred and Q. R., Marshal of the United States for [l. s.] the District of Sealed and delivered in the presence of B. C. C. D. 96. Execution. The President of the United States of America, to the Marshal of the United States for the District of , Greeting : Whereas, a libel was filed in the District Court of the United [Seal.] States for the District of , on the dav of , 18 , by A. B., libelant, against X. T. and T. Z., re- spondents ; on filing which libel process issued and was executed. And whereas, such proceedings were thereupon had, that a decree was made in the said District Court on the day of , 18 , in favor of the said A. B. against the said X. T. and Y. Z., for the sum of dollars, and costs to be taxed, which costs have been taxed at dollars. Now therefore, we command you, that of the goods and chattels of the said X. Y. and Y. Z., or of the goods and chattels of either of them in your district, you cause to be made the said sum of dollars, and if sufficient goods and chattels of the said X. Y. and Y. Z. cannot be found within' your district, that then you cause the said sum to be made of the lands and tenements whereof the said X. Y. and Y. Z. were jointly or severally seized on the said [naming the date of the decree], or at any time afterwards, in whose hands soever the same may be, and have you that money together with this writ, with your doings thereon, before the said District Court, at the [United States Court Rooms] in the City of , on the [first Wednesday] of next, to render to the said libelant in satisfaction of the said decree. Witness, &c. [Teste as at the close of Form 7.] 396 FORMS. 97. Petition for remnants and surplus. District Court of the United States, For the District of In the matter of the petition of 0. D., of [plac&of residence], sole owner of the [ship] W., for the remnants and surplus of said vessel now remaining in the registry of the court. To the Honorable H. 6., Judge of the District Court of the United States for the District of : The petition of 0. D., petitioner above named, respectfully shows, That the said [ship] was, on the day of , 18 , sold by the marshal of this dis- trict, under process issued out of this court upon the libel of A. B. , for the sum oi dollars, and that said sum has been paid into the registry of this court. That after payment of the decree and all costs in said suit of A. B. against said [ship], there still remains in the registry of this court the sum of dollars, to which your petitioner claims to be entitled. That your petitioner was the sole owner of said vessel at the time of the aforesaid sale by the marshal. That no libels, other than said libel of A. B., were ffled against said vessel previous to such sale [except two, on which the vessel was discharged, the suits having been settled and discontinued] ; that no claimant appeared in said suit by A. B., and that no person except your petitioner has interposed any claim, or as your peti- tioner believes, has any claim to said remnants and surplus. Wherefore, your petitioner prays that this honorable court will make an order, directing tl e clerk of this court to pay over to the petitioner, or his proctor, the amount of such remnants and surplus of the said [ship] W. now remaining in the registry of this court. C. D. Sworn to before me this day of , 18 . G. H., U. S. Commissioner. 98. Order of reference on the petition for remnants and surplus. [ Caption, and title, as in Form 97.] On reading and filing the above petition of C. D. for the remnants and sur- plus of said vessel now remaining in the registry of the court, it is ordered, that it be referred to Gr. H., a commissioner of this court, to take proof of the facts therein stated. 99. Final decree on petition for remnants and surplus. [ Caption amd title, as in Form 97.] On reading and filing the report of G. H., United States Commissioner, to whom it was referred to take proof of the matters stated in the petition in the above matter, by which it appears that the petitioner was at the time of the sale of the said ship W., by the marshal of this district, the sole owner of the said vessel, and is entitled as such owner to the remnants and surplus of said vessel now remaining in the registry of this court, and that no claims have been mad;- ADMIRALTY. 397 to said remnants and surplus, other than by the petitioner, and that there are no liens upon the same, — and that such remnants and surplus amount to the sum of dollars. Now, on motion of K. L,, proctor for the petitioner, it is ordered, that the said report be, and the same is hereby in all things con- firmed; and it is hereby further ordered, adjudged, and decreed that 0. D., the petitioner herein, is entitled to receive from the registry of this court the amount of said remnants and surplus, as claimed in his petition, and that the same be paid to him or his proctors herein, by the clerk of this court. 100. Affldarit to obtain summons for seaman's wages. [Pryiare a Mil of items, in the following manner. "l The ship W., Captain R. S., and owners, To A. B., Dr. To wages as steward from August 4, 1870, to March 14, 1871, at $24 a month , $176.80 CBEDIT. By two months' advance, $48.00 " cash in Liverpool, 18.00 " cash in Halifax, 15.00 " Hospital money, 7 months 1.40 83.40 United States of America, District of Balance due $94.40 [ss. A. B., late mariner on board the [ship] W., being duly sworn, says : That in August, 1870, he shipped on board the [ship] "W., whereof R. 8. was and still is master, then lying in the port of , as [stew3.rd], at the wages of twenty- four dollars a month, to perform a voyage to , and signed the usual shipping articles for said voyage, which are retained by the said master ; that the deponent performed said voyage, and in all respects did his duty as such steward, till the arrival of said vessel in the port of, &c. [ Continue with a state- ment of the f this court show themselves entitled to liens upon said vessel by reason of the collision and fire mentioned in the said petition, and that upon the entering into and filing of such stipulation, the said steamboat, her engine, boiler, tackle, apparel, and fm' niture, should be discharged from all liability for losses and damages, occasioned to all the parties for whose benefit tie said stipulation should be given,, and in Vol. n— 27 418 FORMS and by which said order it was further ordered, that the said libelants and all other persons and parties having liens on the said steamboat, her engine, boiler, tackle, apparel, and furniture, for loss or damage, by reason of such collision and Are, should be, and they were declared to be bound by said order, as by refer- ence to the said petition and order now on file in the office of the clerk of this court will more fully appear. And whereas the said commissioner, in pursuance of said order, has made his report to this court, from which it appears that ft'om the proofs taken by him, he did find the present value of the said steamboat City of Norwich, her tackle, &c., to be the sum of seventy thousand dollars ($70,000), as it appears by his said report now on file in the ofiice of the clerk of this court, which said report has been confirmed. And whereas, the undersigned. The Norwich & New York Transportation Company above named, have filed a claim to said steamboat, &c., as sole owners thereof, on each of the actions already commenced in this court, and as such claimants and owners with their sureties, the parties thereto, have applied to the court for leave to give this stipulation, and to have the same stand in place of the said steamboat, &c., to be enforced in such manner as the court; may from time to time order and direct for the benefit respectively of all parties who have already filed, or may hereafter file, libels in this court against the said steamboat, &c., to establish or enforce any lien or claim upon or against her arising out of the said collision and fire. And the undersigned, the parties hereto, hereby consenting and agreeing, that the said claimants and ovraera, The Norwich & New York Transportation Company, parties hereto, in all cases in which libels may hereafter be filed in this court, against the said steamboat, &c., to enforce liens or claims upon or against the said steamboat, &c., by reason of said collision and fire, upon notice thereof to them or to J. "W. ■C. Leveridge, Esq., their proctor, or to such other proctor as may be substituted in his stead herein, to be given by puljjication or otherwise as the court may direct, will, within the time limited by the court, enter an appearance in such causes, without service of process, which is hereby waived ; and that in default of each appearance, such proceedings^may be had and such decree made in such ■causes respectively as to the court may seem proper, and with the like efiect as if said owners and claimants, and their sureties the parties hereto, had appeared and consented thereto, and the parties hereby further consenting and agreeing that they will, to the extent of the amount of this stipulation, abide by and per- form all orders and decrees of this court made or to be made in any proceeding taken or to be taken in this court, or in any appellate court, to secure the pay- ment of any lien upon the said steamboat, her engine, machinery, and furniture, in place of which this stipulation is substituted, which may have arisen by reason of the collision and fire above referred to, and that in case of default or contumacy on the part of the said owner or claimants, or their sureties, execu- tion or executions not in all to exceed the amount of this stipulation for the value of said steamboat, to wit, seventy thousand dollars, with interest thei'eon from this date, may issue against their goods, chattels, and lands. Now, there- fore, the condition of this stipulation is such that if the stipulators undersigned, shall, upon the final ordei; or decree of the said District Court made and ADMIRALTY. 4ig entered in the above suit, or in any suit or proceeding commenced or which maybe commenced in said court to esta;blish and enforce any lien or claim upon the said steamboat, &c., by reason of the collision and fire in the aforesaid libel and in the said petition mentioned, or upon the final decree of any appellate court, to which any or either of such suits or proceedings may bs carried, and upon notice of such order or decree to the parties hereto, or to either of them. or to J. "W. C. Leveridge, proctor for the claimants of said steamboat, &c., or to such proctor as may be substituted in his stead herein, abide by all interlo- cutory orders and decrees of the court, and pay the money awarded to the re- spective parties in and by all such final decrees rendered by this court or the appellate court (if any appeal intervene) not exceeding in the aggregate the said sum of seventy thousand dollars, with interest thereon from the date hereof, then this stipulation to be void, otherwise to remain in iiill force and virtue. The Norwich & H". T. Trans. Co. by Julius Webb, Genl. Manager. James L. Day^ [l. s.] Albert Clark. [l. s.] E. A. Packer. [l. s.] John Englis. [l. s.] Taken and acknowledged this 38th day ) of March, 1867, before me, J Charles W. Newton, U. S. Commissioner. {Justification of sureties annexed, in the usual form.'] 122. Petjtioii, for permission to file claim, after entry of a decree ag'ainst the vessel. U. S. District Court, Eastern District of New York. George Place & al. The Steamboat " City of Norwich," her engines, <&c. To the Honorable Charles L. Benedict, Judge of the District Court of the United States for the Eastern District of New York : The petition of Horatio N. Slater, Horatio N. Slater, Jr., Lydia E. Slater William S. Slater, and Royal O. Storrs, composing the Slater Woolen Company, merchants, doing business at Webster, in the State of Massachusetts, respectfully 420 FORMS. shows, that on or about the" 17th day of April, 1866, your petitioners shipped, or caused to be shipped, on board the steamboat City of Norwich, then lying at the city of Norwich, goods and merchandise, to be transported therein to the city of New York, and there delivered to your petitioners or their agents. That afterwards, and on the same day, the said steamboat departed from Norwich aforesaid, and in the course of her said voyage to New York a collis- ion occurred between her and the schooner General S. Van Vliet, whereby the said steamboat was set on fire, and ultimately sunk, and the goods and merchan- dise on board thereof belonging to your petitioners became and were by the said collision and fire totally lost, and never were transported and delivered according to the tenns of the said shipment ; and your petitioners believe and aver, that such collision and fire was caused by the negligence of the said steam- boat. That afterwards the above entitled suit was commenced in this court, by libel in rem, upon which process was issued under which the said steamboat was attached by the marshal of this district. That several other libels were and have been filed against the said, steam- boat, in all of which the libelants were owners of cargo on board of the said steamboat, and which had been lost by the same collision and fire above stated. That while the said steamboat was so in custody of the said marshal, the Norwich and New York Transportation Company, as owners and claimants thereof, presented a petition stating that the said steamboat was so in custody, and asking leave to file a stipulation for her entire value, and that such stipula- tion might represent the said steamboat, and that all persons having liens upon her arising from the said collision and fire, might be entitled to share therein as the proceeds of the said steamboat ; and thereupon an order was made to that effect, and ec stipulation was duly filed and is now on the records of this court ; which said several libels, together with the petition, proceedings, order, and stipulation aforesaid, are now remaining of record in the oflBce of the clerk of this court, and to which your petitioners pray leave to refer as a part of this their petition. That afterwards, and in the month of June, 1809, the above entitled action came on for trial iu this court, and the same and each of the other suits then pending against the said steamboat and her proceeds were tried as one suit ; that such proceedings wer4 thereupon had that the said steamboat was adjudged to be liable, and an interlocutory decree was thereupon afterwards made refer- ring the respective cases to a commissioner to compute the damages therein. That the said commissioner has made his report thereon in some of the cases, but not in all, and time has been given to the claimants within which to file exceptionsr as by the record in the said several causes will fully appear, and to which your petitioners pray leave to refer. Your petitioners further show, that they were owners of the aforesaid goods • at the time of their loss aforesaid, and are entitled to recover the value thereoij amounting to the sum of eight thousand eight hundred and seven dollars, or thereabouts besides interest, and to share pro rMa with the libelants in the above entitled action, and with the libelants in the other actions, and with all others in the proceeds of the said steamboat, as represented by the stipulation for value so filed ifl. this court as aforesaid. That the proceeds have not vet ADMIRALTY. 421 been distributed, but the same remain in the registry, or within the power and control of this court. Wherefore your petitioners pray that an order may be made and entered herein, allowing them to come in and prove their claim before the said com- nissiune', and that upon the coming in of his report thereon, an order or decree may be made herein, declaring that they are entitled to share pro rata with all other parties in the aforesaid stipulation, and the proceeds to be realized there- from, and that they may have such further or other order or relief herein as may be according to the course in like cases, and as shall be according to equity and justice. The Slater Woolen Company, Per Edward L. Owen, Proctor. New York, March 4th, 1870. Southern District of New York, ss. Edward L. Owen, being sworn, says, that he is the proctor for the above petitioners; that he has read the said petition and knows the contents thereof, and that the matters therein stated are true to the best of his knowledge, in- formation and belief; that the petitioners are not nor is either of them within this district, nor within one ftundred miles of the place of trial of this action as he has been informed and believes. Edward L. Owen. Sworn to before me this 4th day of March, 1870. A. W. Hall, Notary Public, N. Y. Upon reading and filing the foregoing petition, and upon service of a copy thereof upon the libelants and claimants in the respective causes therein men- tioned, let them respectively show cause before me onthe 9th day of March, inst., at 12 o'clock noon of that day, why the prayers of the said petition should not be granted. Charles L. Benedict. New York, March 4th, 1870. 123. Petition to bond vessel, — for the interest of different claimants. District Court of the United States. For the Eastern District of New York. James A. Q. Beales and James Grilbee, Jr., m. The Barque Vivid, her tackle, apparel, and furniture. To the Honorable Charles LtBenedict, Judge of the District Court of the United States for the Eastern District of New York : The petition of Charles W. Phillips, master of the barque Vivid, respectfully shows to this court. That the said barque is a foreign vessel, and sails under the British flag, and saUs from Liverpool, England, and is of the burden of 430 tons. That on the 422 FORMS. 17th day of May, 1869, the said barque arrived at Ponce Puerto Rico, for the purpose of loading with sugar and molasses under charter to be carried to the port of New-York. That between the said 17th day of May and the 5th day of June, the cargo, consisting of sugar, molasses, and lignum vitse, was loaded upon said vessel ; and on said 4th day of June, the loading of the vessel was com- pleted, and she was ready to proceed upon her voyage to New York. That on the morning of the 5th day of June, at 5 A. M., upon sounding the pump, it was discovered that there were seven feet and six inches of water in the vessel's hold. That by reason thereof, the said cargo was very heavily damaged, and a large portion of the same totally lost. That such loss or damage was in no way occasioned by the design or neglect of your petitioner or the said vessel, or of any person or persons on board of, or connected with said vessel ; That in consequence thereof the said cargo was unloaded, the vessel caulked as directed by the survey held upon her, and the remaining part of said cargo was again loaded and the said vessel proceeded upon her voyage to New York, where she arrived on the 3nd day of August, 1869. That on or about the 12th day of August, 1869, the libel herein was filed to recover |10,000 in gold for damages, which libelaftts say they have sustained by loss and neglect ; and upon the filing of said libel, process was issued out of this court, at the instance of the libelants, under which the said barque was seized by the marshal of said Eastern District, and is now in custody of this court. Thai Alexander Harvey and others have also filed a libel against said vessel to recover the sum of $15,000 in gold for a similar loss and damage, in which process was also issued, and said vessel seized by the said marshal, and is now held by this court. That the libels comprise the only claims that have been made against said vessel. That the amounts claimed in said two libels far exceed the value of said vessel, which is about $3,000 in United States currency, to the best of your peti- tioner's judgment. That the owners of goods on said ship are very numerous, and your petitioner has reason to believe that, in addition to these claims, other claims by owners of other portions of said cargo will be made against said barque, and suits and proceedings instituted to recover the same, which claims, if established, will greatly exceed the value of the said barque and of her freight. Your petitioner therefore prays that said barque, her tackle, apparel, and furniture, may be appraised by appraisers to be appointed by this court. That yonr petitioner be authorized to give a stipulation, to be for the benefit of the libelants in the two libels mentioned herein (in case they shall establish the lia- bility of said barque), and of all other claimants who may by action or otherwiso intervene and prove to be legally entitled to compensation from said barque, snd that upon the due execution of such stipulation the said barque, her tackle, apparel, and furniture, may be discharged from all liability, losses and damages occasioned to all the parties for whose benefit the stipulation is given. Charles "W. PhUUps. ADMIRALTY. 423 124. Notice of luotiou on the foregoing. District Court of the United States, Eastern District of New York. James A. Gr. Beales and James Gilbe, Jr., The Barque Vivid, her tackle, &c. Dear Sir : Please take notice that upon the libel, process, proceedings and annexed pe- tition, with a copy of which you are herewith served, a motion will be made before His Honor Charles L. Benedict, at his chambers in the city of Brooklyn, on the 18th day of September, at 12 o'clock noon of that day, for an order in accordance with the prayer of said petition. , Yours, &c., Euggles & Felt, Proctors for Eespondents. To Wm. D. Booth, Esq., Proctor for Libelants. 125. Stipulation for value, under the foregoing petition. District Court of the United States For the Eastern District of New York. "Whereas a libel was filed in this court on the 13th day of August, 1869, by James A. G. Beales and others, against the barque Vivid, a British vessel, her tackle, apparel, and furniture, for the reasons and causes in the said libel men- tioned, and whereas, on the same day a second libel was also filed against said Barque, by Alexander Harvey and others, for reasons and causes therein men- tioned. And whereas said barque is in the custody of the marshal of this district under the process issued in pursuance of the prayer of said libels. And whereas, upon the petition of the captain of said barque intervening for the owner thereof, an order was made and entered on the 30th day of Sep- tember, 1869, in this cause, whereby it was ordered that the claimant herein be allowed to file a stipulation vrith sufficient sureties according to the course and practice of this court, in the amount of four thousand dollars, the agreed value of said barque, her tackle, apparel, and furniture, and that ajich stipulation be for the benefit of the libelants in two libels herein (in case they shall establish the liability of said barque), and Of Moller and Thebaud, if they intervene and prove themselves entitled ,to compensation for loss or damage, and that upon the entering into and flUng such stipulation the barque Vivid, her tackle, ap- parel, and furniture, be discharged from all liability, losses, and damages oc- casioned to all the parties for whose benefit the said stipulation is given. And whereas the captain of said barque, intervening for the owner, has filed a claim to said barque, and as such with the sureties hereto have applied to the court for leave to give this stipulation and to have the same stand in place of said vessel to be enforced in like manner as this court may flt>m time to 424 FORMS. time 01 der and direct, for the benefit respectively of the parties who have al- ready filed libels in this court, and of MoUer & Thebaud, to establish or en- force any lien or claims upon or against said vessel arising out of the loss and damage set forth in the libels already filed herein, and in the petition of the captain of said vessel asking for leave to file this stipulation. And the parties hereto hereby consenting and agreeing that they will to the extent of the amount of this stipulation abide by and perform all orders and decrees of this court, made or to be made in any proceedings taken or to be taken in this court or in any appellate court (if any appeal may intervene), to secure the payment of any liens upon said vessel, in place of which this stipula- tion is substituted, which may have arisen by reason of the loss and damage aforesaid, and that in case of default or contumacy on the part of the owner or his sureties, execution or executions, not in all to exceed the amount of this stipulation, to wit, four thousand dollars, may issue against their goods, chattels, and Jands. ^ Now, therefore, the condition of this stipulation is such, that if the stipula- tors shall upon the final order and decree of said District Court, made and entered in the above suit, and in any suit or proceeding commenced or which may be commenped in said court by said Moller & Thebaud, to establish and enforce any liens or claims upon the said vessel, by reason of the loss and dam- age in the aforesaid petition mentioned, or upon the final decree of any appeV late court, to which any or either of such suits or proceedings may be carried, and upon notice of such order or decree to the parties hereto, abide by all inter- locutory orders and decrees of the court, and pay the money awarded to the respective parties in and by all such final decrees, rendered by this com't or the appellate com-t, not exceeding in the aggregate the said sum of four thousand dollars, then this stipulation to be void, otherwise to remain in full force and vii'tue. Henry A. Gadsden, [l. s.] Agent of ship. G. H. "Withaus. J;l. b.] Charles L. Wright, [l. e.] Taken and acknowledged before me, Joseph Gutman, Jr., U. 8. Commissioner, Southern District of N. T. United States of America, ) Southern District of New York, j * ' On this 4th day of October, A. D. 1869, before me personally came Henry A. Gadsden, G. H. Withaus, and Charles L. Wright, to me known to be the in- dividuals described in and who executed the within and foregoing bond and severally acknowledged that they executed the same for the uses and pur- poses therein mentioned. Joseph Gutman, Jr., U. 8. Commissioner, S. D. N. Y. ADMIRALTY. 425 126. Order to consolidate causes. At a stated term of the District Court of the United States for the Eastern Dis- trict of New York, held at the United States Court Eooms in the city of Brooklyn, on the 19th day of January, in the year of our Lord one thou- sand eight hundred and seventy-one. Present, The Honorable Charles L. Benedict, District Judge. Alexander Harvey and John Stuart The Barque Vivid, &c. James A. G. Beales and James Gilbee, Junior, The Barque Vivid, &c. The libels in the above entitled suits having been filed to recover damages arising out of the same circumstances, and the causes having been tried to- gether, and the decision of the com-t thereon having been made in favor of the libelants respectively — Now, on motion of William D. Booth, Esq., proctor for the libelants in both cases, — It is ordered that the said causes be and the same hereby are consolidated Into one cause. Chas. L. Benedict. 127. Final decree in favor of different libelants. At a sated term of the District Court of the United States of America for the Eastern District of New York, held at the United States Court Eooms in the City of Brooklyn, on the 11th day of Pebruaiy, A. D. 1871. Present, The Honorable Charles L. Benedict, District Judge. Alexander Harvey and John Stuart The Barque Vivid, her tackle, &c. James A. Gt. Beales and James Qilbee, Jr , vs. The Same. The above ^titled causes, consolidated by order of the court of Januaij 426 FORMS. 19.th, 1871, having been heard upon the pleadings and proofs, and submitted upon the arguments and briefs of the advocates for the respective parties, and it appearing to the court that the claimant of the above named barque upon the seizure thereof appeared and obtained a release of said vessel upon giving a stipulation for the wrhole value of the said vessel, to wit, the sum of four thou- sand dollars, said stipulation to be for the benefit of the libelants in both of the above entitled causes. Now, on motion of William D. Booth, Esq., proctor for libelants, Messrs. Euggles and Felt, proctors for claimants, consenting as to the amount of above, It is ordered, adjudged and decreed, that the said libelants have sustained damages by reason of the matters in the pleadings mentioned as follows, viz ■ the libelants Alexander Harvey and John Stuart, in the sum of twelve thousana five hundred dollars, and the libelants James A. G. Beales and James Qilbee, Jr., in the sum of seven thousand five hundred dollars; and that tha said barque Vivid be condemned therefor. And on like motion, it is further ordered that Henry A, Gadsden, Q-. H. Withaus, and Charles L. Wright, the stipulators for value herein, cause the engagements of their stipulation to be fulfilled, and pay into the registry of the ccurt the amount of their said stipulation, to wit, the sum of four thousand dollars, with interest thereon from the 4th day of October, 1869, the date thereof, amounting to the sum of three hundred and seventy-eight dollars and seventy-eight cents, making in all the sum of four thousand three hundred and seventy-eight dollars and seventy-eight cents. And on like motion, proctors for claimant consenting, it is further ordered that the said proceeds, when paid into the registry of the court, be distributed to the respective libelants herein in proportion to the damages by them sus- tained, to wit, to the libelants Alexander Harvey and John Stuart, the sum of twenty-seven hundred and thirty- six dollars and seventy-four cents, and to tho libelants James A. G. Beales and James Gilbee, Jr., the sum of sixteen hundred and forty-two dollars and four cents. And on like motion, it is further ordered that the libelants Alexander Harvey and John Stuart recover their costs herein taxed at ninety dollars and thirty-five cents, and that a summary judgment for said amount be and the same is hereby entered against H. A. Topham and H. A. Gadsden, stipulators for costs on the part of the claimant in the first of the foregoing causes. And on like motion, it is further ordered that the libel5,nts James A. G.' Beales and James Gilbee, Jr., recover their costs herein, taxed at seventy dol- lars and twenty-five cents, and that a summary judgment for said amount be and the same is hereby entered against H. A. Topham and H. A. Gadsden, stipu- lators for costs on the part of the craimants in the second of the foregoing causes. And on like jnotion, it is turther ordered that, unless an appeal be taken from this decree within the time limited and prescribed by the rules and prac tice of this court, the libelants have execution to enforce satisfaction hereof. Charles L. Benedict. ADMIRALTY. 427 128. Preliminary act, required by the rules, &o., for the High Court of Admiralty of England. Eule 63. In causes of damage, unless the judge shall otherwise order, each proctor shall, before any pleading is given in,' file a document, to be called a preliminary act, forms of which may be obtained in the registry, containing a statement of the following particulars : — (1.) The names of the vessels which came iato collision, and the names if their masters, (3.) The time of the collision. (3.) The place of the collision. (4.) The direction of the wind. (5.) The state of the weather. (6.) The state and force of the tide. (7.) The course and speed of the vessel when the other was first seen. (8.) The lights, if any, carried by her. (9.) The distance and bearing of the other vessel when first seen. (10.) The lights, if any, of the other vessel which were first seen. (11.) Whetlier any lights of the other vessel, other than those first seen, came into view before the collision. (13.) What msasures were taken, and when, to avoid the collision. (13.) The parts of each vessel which first came in contact. Rule 68. The preliminary acts shall be delivered into the registry sealea up, and shall not be opened, save by order of the judge, until the proofs are filed. Rule 64. If both proctors consent, the judge may, if he think fit, order the preliminary acts to be opened and the evidence to be taken thereon, without its being necessary to file any pleadings, 129. Petition for limitation of liability by way of objection to the regis- trar's report. (High Court of Admiralty oS England.) The " Wild Rose." C. and U., solicitors for the Wallasey Local Board, the owners of the said Vessel Wild Rose, say as follows : 1. This cause was brought by the owners of the steamship Contest against the steamship Wild Rose, her tackle, apparel, and furniture, and against the Wallasey Local Board, the owners thfereof, and their bail, intervening, to recover damages which had been occasioned by a collision between the said two vessels, which had occurred on the 16th of September, 1865. 3. On the 18th of April, 1866, the right honorable the judge pronounced that the collision in question in the said cause was occasioned solely by the. fault or default of the master and crew of the vessel Wild Rose, and for the damage proceeded for, condemned the said defendants and their bail therein, and in costs, and referred the said damage to the registrar, assisted by merchants, to report the amount thereof, 3. At the reference which took place on the 4th day of December, 1866, the plaiatifls brought in a claim of damages to the amount of £3,333, 19s. •id.— the aaid claim contained no item' in respect of loss of life or personal i/yory. The 428 FORMS. principal item ef the said claim was £3,000, for the value of the steamtug Cdn« test. The plaintiffs included in the said claim, with the consent of the defend- ants, the claims of the master and crew of the Contest, for their private effects. The defendants gave evidence that the value of the Contest was such that the total amount of damages to be allowed to the plaintiffs would be considerably less than the sum of £1,340, 12s. 9id. hereinafter mentioned. 4. On the said 4th December, the registrar, as appears by the copy of his report annexed hereto and marked " A,'-' found that there was due to the said owners of the said ship Contest, and to the master and crew thereof for the damages pronounced for, the sum of £1,833, 19s. 24., with certain interest thereon, and that each party ought to be left to pay his own costs of the reference. 5. Annexed hereto, and marked " B," is a certified copy of the register of the ship Wild Rose, whereby it appears that her gross tonnage, without deduc- tion on account of engine-room, is 155.08, and that on the said 16th of Septem- ber, 1865, the date of the said collision; the Wallasey Local Board were and still are the owners of the said vessel. 6. The said collision occurred without the actual fault or privity of the said owners, or any of them. 7. £8 per ton of the said gross registered tonnage of the Wild Rose amounts to the sum of £1,340, 13s. Qid. The solicitors for the defendants pray the right honorable the judge not to confirm the report of the registrar, but to pronounce that in accordance with the 54th section of the Merchant Shipping Act Amendment Act, 1863, the defendants are answerable in damages in this cause to the amount of £1,340, 13s. 9id., and no more. Answer to the foregoing petition. S., P., and J., solicitors for the plaintiffs, in ansyer to the petition of the de- fendants, filed the 30th day of December, 1866, say as follows : 1. They admit the facts stated in the several articles of the said petition. 3. They further say that the defendants gave no intimation to the plaintiffs, or any one on their behalf, before or at the time of the said reference, that they intended to claim the benefit of the 54th section of the Merchant Shipping Act Amendment Act, 1863. 3. If any such intimation had been given, the plaintife would at once have limited their claim to the amount mentioned in the said section, and have accepted the same in satisfaction of their claim, and, so far as the plaintiffs were concerned, the proceedings before the registrar and merchants would have been wholly unnecessary ; and if the defendants had afterwards insisted on having the damage assessed by the registrar and merchants, they would have had to pay the plaintiffs' costs of the reference. And the said S., P., and J., hereby humbly submit to the judgment of this honorable court, and further pray that the defendants should be condemned in the costs of the present proceedings, and of the proceedings before the registral and merchants. CHAPTER V. SEIZUEE. 1. Information j — General form ;— under the rerenne laws. Court of the United State For the District of District Court of the United States of America, ) Of Term, in the year one thousand . eight hundred and Before the Honorable H. G., the District Judge- On the day of , in the year one thousand eight hundred and , comes K. L., as the Attorney of the United States for the said District of , in a cause of seizure [on land], under the revenue laws of the United States, and informs the court : — (a) That, on the day of , , in the year one thousand eight hundred and , C. D., collector of customs for the port and collection district of , seized, on land within the said district [or, if on a i)es- eel, state the fact], the prop|rty described as [here insert a list of the articles seked, a7id state the place of seizure], said to heloag to E. F., and now has the same in custody, within such District, as forfeited to the United States, for the following causes : (b) [1.] That, &c. [I^oceed, setting forth in sepa/rate and distinct articles tht seoeral matters relied upon as grounds of forfeiture ; and conclude] (c) And the said Attorney of the United States, on behalf of the United States, saith, that all and singular the premises are true ; and that by reason thereof, and by force of the statutes in such case made and provided, the afore- mentioned property, goods, wares, and merchandise, &c., as hereinbefore set forth, became and arc forfeited to the use of the United States, as in said stat- utes provided. Wherefore, he prays that the usual process and monition of this honorable court 'issue in this behalf; and that all persons interested in the said property, goods, wares, and merchandise, &c., may bo cited and admonished in general and special to answer the premises; and, all due proceedings being had thereon, that, for the causes aforesaid and others appearing, the said property, goods, wares, and merchandise, &c., as before set forth, be condemned by the desfinite sentence and decree of this honorable court, as forfeited to the use of the Uni- 430 FORMS. led States, according to the form of the statutes of the Unitod States in such cases made and provided. K. L., United States District-Attorney for the District of 2. The lite j— under the internal revenue laws. of the United State For the District of District Court of the United States of America, ) Of Term, in the year one thousand eight hundred and Before the Honorable H. G., the District Judge : On the day of , in the year one thousand eight hundred and , comes K. L., as the Attorney of the United States for the said District of , in a cause of seizure on land, under the internal rev- enue laws of the United States, and informs the court : (a) That C. D., [Collector of Internal Revenue for the Collection District of the State of ], heretofore, to wit, on the day of , in the year one thousand eight hundred and , on land, at [t!ie place of seizure], within the District of , and within the jurisdic- tion of the said court, did seize the following described property, consisting of [goods, wares, and merchandise, packages, raw materials, apparatus, boilers, engines, implements, &c.], that is to say, [here insert a list of the articles seized, and state the place of seizure'], said to belong to E. F., and now has the same in his custody, within said District of , as forfeited to the United States for the following causes : (b) [1.] That, &c. [Proceed,, setting forth in separate and distinct articles the teeeral matttrs relied upon as grounds of forfeiture,] [Conclude as in Worm 1, at c] And the said Attorney, &c. 8. Libel of information ; — Gen'ernl form. \ District Court of the United States of America, For the District of Of Tei-m, in the year one thousand eight hundred and To the Honorable H. G., Judge of the District Court of the United States foi the District of : (a) The libel of information of K. L., Attorney of the said United States fof the District of , who prosecutes on behalf of the said United States, and being present here in court in his proper person, in the name and on the behalf of the said United States, against the [ship] W., her tackle, apparel, and furniture, and against all persons intervening for their interest therein, in a cause of forfeiture, alleges and informs as follows : (ij) That 0. D., Collector of the Customs for the District of , heretofore, to wit, on the day of , in the year of our Lord one thousand eight hundred and , at the port of , and within the District of , on waters navigable from the sea by vessels of ten or more tons burden, seized the [ship], or vessel, commonly called a SEIZURE. 431 [-jiri, the W., her tackle, apparel, and furniture, being the property of [some person or persons to said attorney unknown], as forfeited to the United States for the following causes : (o) Mr St. That, &c. [Here set forth, in distinct articles, the matters relied upon as grounds of forsfeiture.] [ Conclude as follows ;] (d) And the said attorney saith. that all and singular the premises are and were true, and within the admiralty and maritime jurisdiction of the United States, and of this honorable court; and that by reason thereof and by force of the statutes of the United States in such case made and provided, the aforemen- tioned and described [ship] or vessel, her tackle, apparel, and furniture, became and are forfeited to the use of the said United States. Wherefore the said attorney prays that the usual process and monition of this honorable court issue in this behalf; and that all persons interested in the beforementioned and described [ship] or vessel, may be cited in general and special to answer the premises, and all due proceedings being had, that the said [ship] or vessel, her tackle, &c., may, for the causes aforesaid, and others appear- ing, be condemned by the definite sentence and decree of this honorable court, as forfeited to the use of the said United States, according to the form of the statute of the said United States in' such case made and provided. K. ,L., United 'States Attorney for the District of 1. Attachment and monition. District of , ss : The President of the United States of America, to the Marshal of the District of - , Greeting : Whereas, an information [or, libel of information, as the case may Je] hath been filed in the [District] Court of the United States for the [Seal.'\ District of , on the day of , in the year of our Lord one thousand eight hundred and , by K. L., Esquire, United States Attorney for the district aforesaid, on behalf of the United States of America, against [naming the vessel, or the goods -proceeded against], as forfeited to the use of the United States, for the reasons and causes in the said information [or, libel of information] mentioned, and praying the usual process and monition of the said court in that behalf to be made, and that all persons interested in the said goods, wares, and merchandise [or, ship W., her tackle, apparel, and furniture, &c., as the case may Je], may be cited in general and special, to answer the premises, and all proceedings being had, that the said goods, wares, and merchandise [or, ship W., her tackle, &c.], may, for the causes in the said information [or, libel of information] mentioned, be con- demned as forfeited to the use of the United States. You are therefore hereby comnjanded, to attach the said goods, wares, and merchandise [or, ship W., her tackle, &c.], and to detain the same in your cus- tody until the further order of the court respecting the same, and to give due notice to aril persons claiming the same, or knowing or having anything to say why the same should not be condemned and sold pursuant to the prayer of the said information [or, libel of information], that they be and appear before the 432 FORMS. said court, to Tbe held in and for the District of , on the day of , 18 , at o'clock in the noon of the same day, if the same shall be a day of jurisdiction, otherwise on the next day of jurisdiction thereafter, then and there to interpose a claim for the same, and to make their allegations in that behalf. And what you shall have done in the premises do you then and there make return thereof, together with this writ. Witness. &c. [Teste as in Form 4, Ante, p. 276. J K. L., V. S. District Attorney. M. N., Clerk. [Indorsement.'] I hereby depute E. F. to execute the within processs. Dated, ' , 18 . Q- R-, U- S. Marshal. 5. Return of marshal on attachment and monition. [Consult Form 8, Ante, p. 373.] 6. Notice for publication. United States of America, ) District . ( ,■ Whereas an information [or, libel of information] has been filed in the [Dis- trict] Court of the United States of America, for the District of , on the , day of , in tJie year of our Lord one thou- sand eight hundred and , by K. L., Esq., United States District-Attorney for the District of , on behalf of the United States against [naming the vessel or tTie goods proceeded against]. And whereas the sub- stance of the said information [or, libel of information] is that C. D., Collector of Internal Revenue for the Collection District of the State of [07; Collector of the Customs for the Port and District of j, has seized the above described property, goods, wares and merchandise [or, vessel, her tackle, &c.], as forfeited to'the use of the United States, by reason of a violation of the Internal Revenue laws of the Uuited States, in such case made and pro- vided [or, of the section of the act of Congress approved on the day of , 1» , entitled " An Act," &c.], and praying that the said prop- erty, goods, wares, and merchandise [or, vessel, her tackle, &c.], may be con- demned as forfeited to the use of the United States. Now, therefore, in pursu- ance of the monition under the seal of the said court to me directed and de- livered, I do hereby give public notice to all persons claiming the said property, goods, wares, and merchandise [or, vessel, her tackle, &c.], Or in any man- ner interested therein, that they be and appear before the said [District] Cour/,, to be held at the city of , in and for the said ■ District of , on the day of , 18 , at o'clock, in the noon of that day (provided the same shall be a day of jurisdiction, other- wise on the next day of jurisdiction thereafter), then and there to interpose their claims, and to make their allegations in that behalf. Dated this day of , 18 . Q. R., United States Marshal, &c. E. L., United States District-Attoi-ney, &c. SEIZURE. 483 7. Proclivmatioii on return of process. [By the crier in open court.] Hear ye ! Hear ye ! The United States against [Ten casks of brandy, and other property, or, the ship W., her tackle, &c.] All persons having any thing to say why the said [ten casks of brandy and other property, or, the ship W., her tackle, &c.] should not be condemned and sold as forfeited to the United States, pursuant to the prayer of the informants herein, come forward and make your allegations in that behalf. 8. Order on return of process^— for a default and sale. [Caption, and title of the cmise, as in Form 3, Ante, p. 376.] The Marshal having returned on the monition issued to him in the above entitled cause that in obedience thereto he has attached [naming the vessel or property attached], and has given due notice to all persona claiming the same that the court would on this day at o'clock in the noon proceed to the trial and condemnation thereof, should no claim be inter- posed therefor, which return has been filed, and the usual proclamation having been made, and no person having appeared or interposed a claim to the said [naming the vessel or property attached'], — Now, on motion of K. L., United States District- Attorney, Ordered, that the defaults of all persons who have not appeared and filed claims to the said prop- erty, goods, wares, and merchandise [or, vessel, her tackle, &c.], be and the same are hereby entered. And on like motion it is farther ordered; adjudged, and decreed by the court, that the said property, goods, wares, and merchan- dise [or, vessel, her tackle, &c.], be and the same hereby are (for the reasons and causes set forth in the information [or, libel of iuformation] herein) condemned as forfeited to the use of the United States. And it is further ordered, that the clerk of this court issue to the Marshal of this District the usual writ of ven- ditioni exponas, commanding him, the said Marshal, to sell the said property, goods, wares, and merchandise [or, vessel, her tackle, &c.], upon giving [six] days' notice of the time and place of such sale, and to pay the proceeds into court, to be disposed of according to law. 9. Order on return of process, where claim is filed. [Consult Form 20, Ante, p. 377.] 10. Notice and entry of appearance by proctor or attorney. [amsutt Forms 18 and 19, Ante, pp. 279, 380.] 11. Claim. [Gmmlt Form, 24, Ante, p. 378.] 12. Stipulation for costs to be given by the claimant. [Oonsiilt Falue of each}, of the value of dollars [and cents,] the same, then and there, being the property, chattels, and personal goods of another, (o) to wit, of the said, the United States, against the peace of the said United States, and against their dignity, and against the form of the statute of the said United States, in such case made and provided; Second Count. And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said Y. Z., heretofore, to wit, on the day of , in the year of our Lord one thousand eight hundred and , at the District of •, and, &c. [proceed as in first count to C, and continue] to wit, of some person or persons to the said jurors unknown, against the peace of the said United States of America, and their dignity, and against the form of the statute of the United States in such case made and pro- vided. [Cmiclude with final count, as in Form 6, at e.] 11. Indictment for counterfeiting the coin. [Proceed as in Form 5 to c, and continue} with force and arms, feloniously did falsely make, forge, and counterfeit, and did cause and procure to be falsely made, forged, and counterfeited, and did willingly aid and assist in falsely making, forging, and counterfeiting, one coin [or otherwise, as, a large number, to wit, two hundred pieces of false, forged, and counterfeited coin], in the resemblance and similitude of the [silver] coin called [a half-dollar], which has been coined at the mint of the United States, [continue as in said Form at d] against the peace, &c. 12. Indictment for passing counterfeit coin. [Proceed as in Form 5 to c, and continue} with force and arms unlawfully and feloniously did pass, utter, and publish, and attempt, to pass, utter, and publish as true, a certain false, forged, and counterfeited coin, in the resemblance and similitude of the silver coin which has been coined at the mint of the United States, called a [half dollar], he, the said Y. Z., then and there knowing the same to be false, forged, and counterfeited, with intent to defraud one C. T>. [oi; a certain person to the jurors aforesaid unknown], [conclude as in said Form at d] against the peace, &c. 13. Indictment for forgery of note issued under authority of act of Congress. [Proceed as in Form 5 to o, and continue} with force and arms, feloniously did pass, utter, publish, and sell, and attempt to pass, utter, publish, and sell, and did have and keep in his possession, with intent to utter, publish, and sell, a cer- .tain false, forged, and counterfeited [treasury] note, which said false, forged, and counterfeited note then and there purported to have been issued under au- VoL. IL— 30 466 FORlvlS. tliority of the act of Congress of the United States entitled " [An Act to provide ways and means for the support of the governmentj," approved on the [third] day of [March], in the year of our Lord one thousand eight Hundred and [sixty three], which said false, forged, and counterfeited [treasury] note is aS follows, that is to say : [Tiere insert a copy of the face of tTie note] on which said false, forged, and counterfeited [treasury] note is indorsed [insert copy oflacJc of note], the said then and there knowing the said false, forged, and counter- feited note to be false, forged, and counterfeited, then and there, with intent to defraud the United States, [concliide as in said Form at d] against the peace, &c. , 14. Demurrer to indictment. [Title of the cmise, as in Form 1, Ante, p. 275.] And the said Y. Z., in his own proper person, cometh into court here, and having heard the said indictment read, says that the said indictment and the matters therein contained, in manner and form, as the same are above stated and set forth, are not sufficient in law, and that the said T. Z. is not bound by the law of the land to answer the same ; and this he is ready to verify. Wherefore, for want of a sufficient indictment in this behalf, the said T. Z prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment specified. 15. Joinder to demurrer. [Title of the cause, as in Form 1, Ante, p. 275.] And K. L., who pro secutes for the United States in this behalf, says that the said indictment and the matters therein contained in manner and form as the same are above stated and set forth, are sufficient in law to compel the said Y. Z. to answer the same ; and the said K. L., who prosectttes as aforesaid, is ready to verify and prove the same, as the court here shall direct and award. Wherefore, inasmuch as the said Y. Z. hath not answered to the said indict- ment, nor hitherto in any manner denied the same, the said K. L., for the said United States, prays judgment that the said Y. Z. may be convicted of the premises in the said iudictment specified. 16. Special plea to indictment. [Title of the cause, as in Form 1, Ante, p. 275.] And the said Y. Z., in his own proper person, comes into court here, and having heard the said indictment read, says that the said United States ought not further to prosecute the said indictment against him, the said Y. Z., because he says [here state the matter of the plea] ; and this he, the'said Y. Z., is ready to verify. Wherefore, he prays judgment, and that by the court here he may be dis- missed and discharged from the said premises in the said indictment above specified. 17. Replication to special plea, [Title of the cause, as in Form 1, Ante, p. 375.] And hereupon K. L., United States District- Attorney in and for the said CRIMINAL PROCEEDINaS. 467 District of , who prosecutes for the said United Statea in this bphalf, says, by reason of £^ny thing in the said plea of the said Y. Z. above pleaded in the bar alleged, the said United States ought not to be pre- cluded from prosecuting the said indictment against the said Y. Z., because he says that [here state the matter of the replication]. And this he, the said K. L., prays may be inquired of by the country [or, if it conclude with a i>erification, say, and this he, the said K. L., is ready to verify. "Wherefore, he prays judgment, and that the said Y. Z. may be convicted of the premises in the said indictment above specified]. 18. Bench warrant. To the Marshal of the United States, for the District of , and to his deputies, or any or either of them. Whereas, at a Circuit [or. District] Court of the United States of America, for the District of , began and held at the city of , within and for the District of , afore- said, on the day of , in the year of our Lord one thousand eight hundred and , the grand jurors in and for the said District of , brought into the said court a true bill of indictment against Y. Z., of [and W. X., of ], for having [describe the of- fense chcurged in the indictment, and continue], as by the said indictment, now re- maining on file and of record in the said court, may more fully appear; to which indictment the said Y. Z. [and W. X.] has [or, have] not yet appeared or pleaded. Now, therefore, you are hereby commanded, in the name of the President of United States of America, to apprehend the said Y. Z. [and W. X.], and bring his body [or, their bodies] before the said court, at [the United States Court Rooms], in the city of , to answer the indictment aforesaid. "Witness, &c. [Teste as in Form 4, Ante, p. 276.] K. L., U. S. Attorney. M. N., Clerk. 19. Keco^nizance ; after indictment. [Proceed as in Form 3, to a, and continue] "Whereas, at the stated term of the Circuit [or. District] Court of the United States for the District of , held on the of i in the year of our Lord one thou- sand eight hundred and , the grand inquest of the United States, within and for the district aforesaid, found a true bill of indictment against the said Y. Z. for having, on the day of , 18 , within the said District of , [here insert description of offense charged in indictment] • And whereas, the said Y. Z. has been brought before the said Circuit [or, District] Court, to; answer the indictment aforesaid, and has plead not guilty thereto. And whereas, the said Circuit [or. District] Court did thereupon order the said Y. Z. to find sufficient bail in the sum of [two thousand] dollars, for appearance at a Circuit [or, District] Court of the United States of America, for the District of , to be holden [at the United States court roomsjn the city of ], on [the first "Wednesday of ], in the year one thousand eight hundred and , to answer the indictmen 468 FORMS. aforesaid; and that in default of finding such bail, the said T. Z. should stand committed for trial. [ Continue as in said Form, at b] Now, therefore, &o. 20. Affidavit to arrest witness. District of , ss. K. L., Attorney of the United States for the District of , being duly sworn, deposes and says : (a) That Y. Z., of , has been arrested, upon a charge of [piracy], and is now under indictment, in the United States Circuit [or. District] Court, held in and for the said District, \or otherwise according to fhe fcKt] for [state ttte facts charged as constituting the offense\ \ that C. D., of , is a competent witness, whose testimony will be material and necessary, upon the trial of the above mentioned criminal cause or proceeding, in which the United States are a party or interested, and that the said C. D. is now within this District, (b) Wherefore, deponent prays that the said C. D. may be compelled to give recognizance, with surety, to appear on the trial of said cause or proceeding, and give his testimony therein, and, for that purpose, that a warrant be issued, to arrest the said C. D., if he be found within this District, and bring his body before your honor ; and in case the said C. D. shall neglect, or refuse to give the said recognizance, that he may be committed, until he shall be removed to court, for the purpose of giving his testimony, or until he shall have given the said recognizance. K. L., United States Attorney. Sworn to before me, this day of , 18 . 21. Warrant to arrest witness. The President of the United States of America, to the Marshal of the United States for the District of , and to his deputies, or any or either of them : Whereas application, pursuant to law, has been made to me, by R. L., Attor- ney of the United States for the District of , and satisfactory proof, under oath, has been furnished me, [continue as in Form 30, at a, to b, and con- clude] Now, therefore, you are hereby commanded, in the name of the President of the United States, to arrest the said Y. Z., if he shall be found within your District, and bring his body forthwith before me, to give recognizance, with surety, to appear upon the trial of said cause or proceeding, and give his testi- mony therein ; and in default of giving such recognizance, to be committed into custody. Given, under my hand and seal, at the city of , this day of , in the year of our Lord eighteen hundred and [Signature.] CHAPTEE VII. BANKEUPTOT.* To the Honorable States, for the 1. Petition by debtor, , Judge of the District Court of the United District of : — of , ill the , and District aforesaid, The Petition of , of the County of , and State of Respectfully Represents : — That he has for months next immediately preceding the filing of this petition, at , within said Judicial District ; that he owes debts exceeding the amount of three hundred dollars, and is unable to pay all of the same in fiill ; that he is willing to surrender all his estate and efiects for the benefit of his Creditors, and desires to obtain the benefit of the Act entitled " An Act to Es- tablish a Uniform System of Bankruptcy throughout the United States," ap- proved March 2, 1887 : * The forms presented in this chap- ter pursue those officially prescribed by the Supreme Court, for the guidance of the practice in Bankruptcy. In order to avoid waste of space, the needless repetition of the caption or title of the proceeding at the head of each paper has been omitted ; and some compres- sion has been employed in the typo- graphical arrangement of the sched- ules ; and one or two alterations have been made to accommodate forms to re- cent enactments. In other respects, it has seemed desirable to follow the method and style of the official Forms, rather than to introduce changes merely for the purpose of harmonizing these pages with the style deemed convenient in those diawn up especially for this work, and given in the preceding chap- ters. It is proper to call the .attention . of the practitioner interfested in this sub- ject to a volume which has appeared since the stereotyping of page 202 ; and which, although in one sense a new edition of one of the works there men- tioned, is so much enlarged, and ex- tended in plan, as to be in fact a new work. It is entitled : The Practice in Bankruptcy, with the Bankrupt Law of the United States as amended, and the Rules and Forms; together with Notes, referring to all de- cisions reported to Dec. 1, 1870, &c. By OELANno F. Bdmp. The first por- tion of the volume is devoted to a systematic account or treatise upon the existing American practice. The sec- ond portion gives the sections of the law, with annotations exhibiting the decisions under them. 470 FORMS. That the Schedule hereto annexed, Marked A, and verified by Your Peti- tioner's oath, contains a full and true statement of all his debts, and (so far as it is possible to ascertain) the names and places of residences of his creditors, and further statements concerning said debts as are required by the provisions of said Act : That the Schedule hereto annexed, Marked B, and verified by Your Peti- tioner's oath, contains an accurate inventory of all his estate, both real and personal, assignable under the provisions of said Act : Wherefore, your Petitioner prays, that he may be adjudged by the Court to be a Bankrupt, within the purview of said Act { and that he may be Decreed to have a Certificate of Discharge from all his Debts provable under the same. , SolieitOT, [or Attorney,] dse. ' Oath, to foregoing Petition. [N. B. — ^If Petitioner is not a citizen, the last clause of this oath should b« omitted.] United States of America. District of , ss : — I, , the Petitioning Debtor mentioned and described in the forego- ing Petition, do hereby make solemn oath \or, affirmation] that the statements contained therein are true according to the best of my knowledge, information, and belief; and I do further make oath [or, aflSrmation] that I am a citizen of the United States of America, and that I wUl bear true feith and allegiance to the same. Petitioner. Subscribed and sworn [- S s ij P 6 ? fe s C3 § « rg ^-S" - g p la & go 03 ill K OJ K O ' tens » a - <0 ' -*J fl fl ^H jS « g ^ 0) rH 03 jj cS S m OQ C -i ^5 M d 2 'S'gg Ah 472 FORMS. El •05 V o ^o § s s 3-° (U JSfo H •ff as t i ■^1 jj a-fl U4 ■*-■ (fl " in •< » i IM u 03 0)'S ■a" 4» ^ ■S-i §8-a .a S S ^1" K a («3 la s • a si ■^3 > 1 •—1 ■-< a 1 8S d ^3 0^ £t3 ■& il - si 1 11 1 1 f ...i •a ■ S ■'S tBT3 3 « a 3 ja 1 1 ii4 §!§■§ 3 w •a » u s ■"O S ^■■a i- om cTJj 1 ■a .S ' a S(-| a|1 "15 2 « ^' •>. •Ms=:il (>,S.-s.3S * ml. B.S- lis ■atmra 2 o'3'T'i " g.i3i-;iJ d P t; k4 kj b4 ~ u (U oU "^ 0. "oar- 1^. I piSJ (Si^ 0( p4iz:!z;2;o P§^^ ■■ •■g^i -it ■'" ^^e£^§ •1 >> £ S ^. ^ re and con whether an xchange, P ther contr; ; contractor and, if so. , 5 13 W 2 5 rt ' ^ TS fl -. 03 ig-S "hen whe ntra fe o P^ a . o -H n o 1 e» m a o ■ iH -M 03 &. o -d d 03 en 03 C3 d 03 2 'tn 03 M tw oi O S 03 .-S !ziO o ii -u O Ph 03 S S3^ iti ^^ GJ tl «A ^ ^ 474 FORMS. §- 83 Si 'e t^ -3 f^ rO ^ ■y p •w -^ 1^ 3 a ^ C5 •I fa ^^ g? H ta 0) " ^-S o.-S w8rs S5 i^ Nature of liahility, whether the same was contracted as copartner or joint contractor, or with any other person ; and, if so, with whom. \ ^ 1 o a o m- si i u oo s 1 Names of Hold- ers as far as known. Reference to ledger or voucher. . BANKRUPTCY. 475 I' P n -s •§ o S ^ g'6 Si— I ■-3*-' » a g m a u o s> " S O "^ .-to ai S c3 «> -u> o is ■S ?.« 3 P >^ .2 03 o ■ 3 2 HIS Ills p3 0^ c3 'd . ^ -S CD o o m J a! *^,Q a •I S O g 5 2-^ 5 C^ S'H'S OD U GQ 03 -25^ 5 g f; rt lit Whether liability was contracted as copartner or joint contractor, or with any other person; and, if so, with whom. « n a < c5 , «©■ * . ti II Ph o Residences of Holders' and Par- ticulars of Notes or Bills. Names of Holds ers. Eeference to ledger or voucher. 476 FORMS. 8 I- H « 5 '-S M H) p ^ fea^ S p 13 er, which his use, of filing iM ^ 1 "*^ ^ § 09 ^ 4^ ^ S .2 o it m C3 w O CO ^•§ ■ 03 "o o e^_, -^ ^ o ^ O ^ a; ''Is 1 BANKRUPTCY. 477 [Petition by Debtor.] SCHEDULE B. Personal Property. a. — Cash in hand S. — Bills of Exchange, Promissory Notes, or Securities of any description, (each to be set out separately) e. — Stock in Trade, in my business of , at , of the value of d. — Household Goods and Furniture, Household Stores, Wearing Apparel, and Ornaments of the Person e. — ^Books, Prints, and Pictures /. — Horses, Cows, Sheep, and other Animals g. — Carriages, and other Vehicles h. — Farming Stock, and Implements of Husbandry i. — Shipping, and Shares in Vessels Jc. — Machinery, Fixtures, and Apparatus used in Business ; with the place where each is situated I. — Goods or Personal Property of any other Description, with the place where each is situated , Petitioner. [Petition by Debtor.] SCHEDULE B. Choses in Action. (3.) a. — Debts due Petitioner on open Account J. — Stocks in Incorporated Companies, and Interest in Joint Stock Companies c. — ^Policies of Insurance d. — Unliquidated Claims of every nature, with their Esti- mated Value , Petitioner. 478 POEMS. [Petition of Debtor.] SCHEDULE B. (4.) Property in Heversion, Remainder, or Eaypectancy, including Property held in Trust for the Petitioner^ or subject to any Power or Bight to Dispose of or to Charge, [N. B.— A Particular Description of Each Interest must be Entered. If all or any of the debt- or's Property has been Conveyed by Deed of Assignment, or otherwise, for the benefit of Credit- ors, the date of such Deed should be stated, the Name and Address of the Person to whom the Property was conveyed, the Amount realized from the Proceeds thereof, and the Disposal of the same, as fer as known to the Petitioner.] General Interest. Particular Description. Supposed value of my interest. Interest in Land. Real Estate and Leasehold Property, with Locality, Dolls. Names, and Descriptions of Parties now Enjoying the same, and the value thereof j also the Natute of my Interest therein, and from Whom and in what Manner it is derived Cents. Personal Property., Personal Property, with Locality, Names, and De^ scriptions oi Persons now Enjoying- the Same : also the" Nature of my Interest therein, and trom Whom, and in what Manner it is derived Property in Money, Stock, Sa.aies, Bonds, Annuities, etc., etc. Rights and Powers., Annuities, Money in Public or other Funds, Shares in Railroad and other Companies, showing in whose names the same are standing, with Names and De- scriptions of persons now Enjoying the Same : also the Nature ot my Interest therein, and from Whom and in what Manner it is derived Rights and Powers, wherein I or any other Person or Persons in Trust for me or for my benefit have any power to Dispose of, Charge, or Exercise.- Amount realized from proceeds of property con- veyed. Property heretofore con- veyed for benefit of creditors. Dolls. Cents. What portion of Debtor's Property has been Con- veyed by Deed of As- signmentj or otherwise, for Benefit of Creditors ; Date of such Depd, Name and Address of Party to whom Conveyed Amount realized therC' from and Disposal of same, so far as known to Petitioner. Description of property of Debtor heretofore con- veyed- for benefit of Creditor bv deed of assign- ment or otherwise ; date of such deed or instru- ment of conveyance, with name and address oi party to whom made ; amount realized from same, and the disposal of such property, so far as known to Petitioner -, PetiUoTier, BANKRUPTCT. 479 [Petition by Debtor.] SCHEDULE B. (5.) A Particular Statement of ihe property claimed as excepted from the Operation of said Act ly the provisions of the 14th Section thereof, giving Each Item of Prop- erty and its Valuation ; and, if any portion of it is Seal Estate, its Location, Deseription, and Present Use. ' ' [N. B. — The property claimed to be Exempt under the Laws of any State ia to be described separately from the rest, and reference given to the Statute of said State creating the Exception.] - Valuation. Dolls. Cents. Property claimed to be Excepted from the operation of said Act, and which may be set apart by the assignee under the 14th Section Property claimed to be Exempt by State laws ; its Valuation ; whether Real or Per- sonal Estate ; its Description and Present Use ; and under what State Law Exemp- tion is claimed [Petition of Debtor.] SCHEDULE B. -, Petitioner. (6.) The foUowTig is a True List of all BooJcs, Papers, Deeds, and Writings relating to "my Trade, Business, Dealings, Estate, and Effects, or any Part thereof, which, at the date of this Petition, a/re in my Possession or under my Custody and Con- trol, or which are in the Possession or Custody of any Person in Trust for me, or .for my Use, Benefit, or Advantage ; and also of All others which home leen hereto- fore at any time in my possession or under mry Custody or Control, amd which are now held ^ the parties whose nam^s are hereinafter set forth, with the reason of their custody of the same : — Books. Deeds. Papers, &c. -, Petitioner, [N. B. — ^Here follows oath to Schedule B, as hereinafter prescribed.] 480 FORMS. Oatlu to Sc?iedule6 A and B. [N. B.— The folio-wing forms of oaths to Schedules A and B of the Petition by Debtor are prescribed, and they are to be annexed to the same, respectively.] Oath to Schedule A. United States of America. District of , ss .• — On this day of , A. D. 18 , before me personally came , the person mentioned in and who subscribed to the foregoing Petition and Sched ule, Marked A, respectively, and who being by me first duly sworn [or, affirmed] did declare the said Schedule to be a statement of all his debts, &c., in accord- ance with the Act of Congress entitled "An Act to Establish a Uniform System of Bankruptcy throughout the United States," approved March 2, 1867. District Judge, [or, Register ; or, U. 8. Commissioner.] Oath to Schedule S. United States of Amekica. District of , ss : — On this day of , A. D. 18 , before me personally came , the person mentioned in and who subscribed to the foregoing, Petition and Sched- ule, Marked B, respectively, and who being by me first duly sworn [or, affirmed] did declare the said Schedule to be a statement of all his estate, both real and personal, in accordance with the Act of Congress entitled " An Act to Establish a Uniform System of Bankruptcy throughout the United States," approved March 2, 1867. District Judge, [or. Register, or, U. 8. Commissioner.']. 2. Copartnership petition. [In case of a copartnership, the foim will be as follows :] To the Honorable Judge of the District Court of the United States for the District of , The Petition of , and , of in the County of , and State of , and District afore- said, respectfully represents : That the said , and copartners transacting business at , in the County of and State of , and in said District, have for the months , [or, That the said and , members of a copartnership composed of themselves, and one , of , in the County of and State of , have for the months] next immediately preceding the filing of this Petition at within said Judicial District ; that the members of said copartnership owe debts ex- ceeding the amount of three hundred dollars, and are unable to BANKRUPTCY. 4gl pay all their debts in full ; tliat tliey are ■willing to surrender all their estate and effects for the benefit of their creditors, and desire to obtain the benefit of the Act entitled " An Act to Establish a Uniform System of Bankruptcy through- out the United States," approved March 3, 1867. That the Schedule hereto annexed, Marked A, and verified by their oaths, contains a Full and True Statement of all the debts of. said Copartnership, and, cs far as possible, the Names and Places of Kesidence of their Creditors, and the further statements concerning such debts required by the provisions of said Act. That the Schedule hereto annexed. Marked B, verified by their oaths, con- tains an accurate Inventory of all the estate of said Copartneidiip as required by the provisions of saiS Act. And said further states, that the Schedule hereto annexed, Marked O, verified by his oath, contains a Full and True Statement of all his Individual debts ; and, as far as possible, the Names and Places of Residence of his Creditors ; and the further Statements concerning such debts required by the provisions of said Act ; and that the Schedule hereto annexed. Marked D, verified by his oath, contains an accurate inventory of all Individual Estate as required by the provision of said Act. And said further states, that the Schedule hereto annexed. Marked B, verified by his oath, contains a Full and True Statement of all his Individual debts, and, as far as possible, the Names and Places of Residence of his Creditors, and the further Statements concemhig such debts required by the provisions of said Act ; and that the Schedule hereto annexed. Marked P, veri- fied by his oath, contains an accurate Inventory of aU his Individual Estate as required by the provisions of said Act. [Similar clauses to le added for Individual Schedules of each Oopan-tner joining in the Petition.] Wherefore, your Petitioners pray, that after due proceedings had, they may be adjudged by a Decree of the Court to be Bankrupts within the purview of said Act ; and upon their compliance with all the requirements of the s%id Act, and all the orders and directions of the Court made in pursuance thereof, they may be severally decreed to have a Certificate of Discharge from all theii- Debts provable under said Act, and otherwise entitled to all benefits thereof. Petitioners. [N. B.— The Form of the Oath to the Petition is to be modified by employing the plural for the singular number, and by the addition of clauses to cover the Schedules of Each Copartner.] 3. Corporation petition. [N. B.— If a Petitiwi in Bankruptcy is filed by a Corporation, an authenticated copy of a Vote or other action of the Stockholders, (or, party or parties entitled to act ia behalf of such Corporation,) authorizing such proceedings should be filed with the Petition, and which, in substance, should be as foUows :] Vol. 11—31 482 FORMS. Statement to (zccompany Petition of Corpofation (In Barikruptey). At a meeting of the Stockholders, \m; of the Board of Directors, or, Trustees, its the case may be,] of the Company, \pr. Association, or, Bank, or, Society,] a Corporation created by , of the State of , held at , in the. County of , and State of , on this day of , A. D. 18 , the Condition of the Affairs of said Corpora- tion having been inquired into, and it being ascertained to the Satisfaction of said meeting that the said Corporation was Insolvent, and that its affairs ought to be wound up, it was Voted \or, Eesolved] by a Majority of the Corporatore \or. Stockholders, or. Directors, or. Trustees] present at such Meeting, (which was duly called and notified for the purpose of taking action upon the subject aforesaid ;) that ' be, and thereby — Authorized, Em- powered, and Required to file a Petition in the District Court of the United States for the District of , within which said Corporation has carried on its business, for the purpose of having the same adjudged Bankrupt ; and that such proceedings be had thereon as are provided by the Act of Congress entitled " An Act to Establish a Uniform System of Bankruptcy throughout the United States,'' approved March 3, 1867. In witness whereof, I have hereunto subscribed my name as President [or, other officer or agent] of said Corporation, and affixed l^Seal of Corporation,'] the Seal of the same this day of A. D. 18 . President [or, otJier officer} of said Corporation. [N. B. — In case of a Corporation, the following changes are to be made in the form of Petition already prescribed, viz : The substitution of the name of the Corporation for that of the Individual Petitioner, and the omission of the Prayer for a Discharge and the following passage substituted : " And tliat like proceedings may "be Tiad in the premises as in said act are provided in re- spect to natural persons^ The language of the Oath to the Corporation Petition may be changed to correspond with the form of the Petition.] 4. Order of reference to register. In the District Court of the United States, For the District of In the Matter of A Petitioner for Adjudication in Bank- ruptcy of himself In Bankeuptot. District of , ss : Whebeas , of the County of , State of and District aforesaid, has, on this day of A. D. 18 at o'clock m., filed in the office of the Clerk of said Court a Petition for Ad- judication in Bankruptcy against himself, according to the provisions of the Act of Congress entitled " An Act to Establish a Unifoiin System of Bankruptcy throughout the United States," approved March 3, 1867. BANKRUPTCY. 483 It is thereupon Ordered, That said Petition be referred to «»ne of the Eegisters in Bankruptcy of this Court, to make Adjudication thereon, and take such other proceedings therein as are required by said Act ; axxd. fur- ther, That the said , shall on or before the day of , . at o'clock m., file with said Eegister a duplicate copy of said Petition and the Schedules thereto annexed, and that he attend before said Register on Baid day, and thenceforth as said Register may direct, to submit to such orders as may be made by said Register, or by this Court relating to his said Bank- ruptcy. And flirther, that until otherwise ordere(? by the Court, the said Register shall act upon the matters arising in this case at his office, at at such times as he shall fix for that purpose. Witness^the Honorable , Judge of the said Coiurt", and seal thereof, at , in said District, on the day of A. D. 18 . [Seal of the Court.'] Cleric of District Court, for said District. 5. Abjudication of bankruptcy upon debtor's petition. In the District Comrt of the United States For the District of In the Matter of by whom a Petition for Adjudication of Bankruptcy was Filed on the day of , A. D. 18 , in said Court. • Lst Baskbuptct.' At , in said District, on the day of , A.*D. 18 . Before , one of the Registers of said Court in Bankruptcy. I, the Undersigned, a Register of said Court in Bankruptcy, upon good proof before me , taken, do find, that the said , has become a Bankrupt within the true intent and Meaning of the Act of Congress Entitled " An Act to Establish a Uniform System of Bankruptcy throughout ' Three different modes of entithng the papers, are proper, in different stages of the proceeding. Observe the following ruies. 1. The petition, whether by a debtor or a creditor, is without a title. 2. The proceedings had upon a debt- or's petition, down to, but not includ- ing the common order (Form 10), finally determining the petitioner's bankruptcy, are entitled so as not to imply any finding upon that fact : as follows. In the Matter of A. B. by whom a petition for adjudication of bank- ruptcy was filed on the day of 18 , in said court 3. The proceedings had upon a credi- 484 FORMS. the United States," approved March 3, 18G7 ; and I do hereby declare and adjudge him a Bankrupt accordingly. Register in Bankruptcy. [X. B. — When a Debtor is declared a Bankrupt upon a Creditor's Petition, the Order should be made by the Court and Entered as an Order of the Court in substantially the form above prescribed.] 6. Warrant to messenger. {Voluntary Bankruptcy.) ' [Title of the proceeding, as in Form 5.] District of , ss .• — To the Marshal of the District of : — Greeting : — Whereas, a Petition for Adjudication of Bankruptcy and for Relief, under the Act of Congress, entitled " An Act to Establish a Uniform System of Bankruptcy throughout the United States," approved March 3, 1867, was, on the day of , 18 , filed by , of , in said District, upon which he hath been found and adjudged a Bankrupt, there being no opposing party thereto : — You are, therefore hereby directed, as Messenger, to publish times in the [Bere name the newspapers in which the notice is to he published.^ (the first publication to be made forthwith,) the following notice, to wit : — This is to give notice : That on the day of , A. D. 18 , a Warrant in Bankruptcy was issued against the Estate of , of , in the County of , and State of , who has been adjudged a Bankrupt, on his own Petition ; that the payment of any Debts and Delivery of any Property belonging to such Bankrupt, to him, or for his use, and the Transfer of any Property by him are forbidden by Law ; that a Meeting of the Creditors of the said Bankrupt, to Prove theu- Debts, and to Choose one or more assignees of his Estate, wiQ be held at a Court of Bankruptcy, to be holden {Here designate the Place, and Building, Boom, or Office where the Court ?« to 6« held] before , Register, on the day of , A. D. 18 , at o'clock M. tor's petition, down to, but not includ- tion of bankruptcy in either voluntary or ing the adjudication of bankruptcy involuntaiy cases, and all subsequent (Form 58), are likewise entitled so as proceedings, assume the fact of bank- not to imply any finding upon the alle- ruptoy, and are alike : as follows. gation of bankruptcy : as follows. In the Matter of A. B. against whom a petition for adjudication of ■, bankruptcy was filed on the day of , A. D. 18 . 4. The titles of the order or adjudioa- In the Matter of A. B. V bankrupt. J 4. The forms prescribed for the Or- der of Reference to Register, in vohin- tary cases (Form 4), and upon demand for jur^ trial (Forma 61 and 62), seem exceptional. BANKRUPTCY. 485 And you are further directed to Serve Written or Printed Notice, forfhwitTi, Either by Mail or personally, [Thoie upon whom personal Service is to le made^ should le designated ly the Courts or Segister,] on all Creditors upon the Sched- ule filed with said Bankrupt's Petition, [or, where names may be given you in addition thereto by the Debtor,] at least ten days before the appointed meeting of said Court, in the following form, to wit : — To Mr. , of , County of , and State of , Credi- tor of , Bankrupt. You are hereby notified, that a Warrant in Bankruptcy has been issued out of the District Court of the United States, for the District of , against the estate of , adjudged a Bankrupt, upon his own Petition : — That the payment of any Debts, and the Delivery, of any Property belonging to said !^ankrupt, to him, or for his use, and the transfer of any Property by him are Forbidden by Law : — That a Meeting of the Creditors of said Bank- rupt, to wit : [Here insert names of the Several Creditors of Bankrupt, with their places of residence and amount of their debts, respectively, in the follow- ing form, e. g : — A. B. , I Boston, Mass | $500] to Prove their Debts and Choose one or more Assignees of his Estate, wiU be held at a Court of Bankruptcy, to be holden on the day of , A. D. 18 , at o'clock, M., at [Here insert the Place^ Building, Boom, or Office, where the Court will le heli\ before , Register. And have you then there this Warrant, with your doings thereon. Witness the Honorable , Judge of the said Court, and the seal thereof, at , in said District, on the ' [Seal of the CouH.'] day of , A. D. 18 . Clerh of District Court, for said District. 7. Eeturn of messenger to accompany warrant. [N. B. — This Return may be Indorsed on the Warrant, or follow the signature of the Clerk.] District of : ««. At , on the day of , A. D. 18 .—By virtue of the within Warrant, I. have caused the notice therein ordered, to be published, by adver- tisement, times, in the Newspapers within mentioned ; the first publica- tion of which was on the day of , A. D; 18 , in [Sere mention Newspaper in which first pvhtieation was had,^ And I also on the day of , A. D. 18 , sent by mail or served personally upon the creditors and others named in said Warrant, a copy of the notice required thereby to be sent to, or served on them :— And all of the said notices were according tc the direc- tions set out in said Warrant. 486 FORMS. FEES. For service of warrant For necessary travel miles, at 5 cents per mile each way For each written notice to creditor named in the sched- ule, 10 cents For actual and necessary expenses in publication of no- tices [N. B. — If there are any other necessary expenses, the same may be inserted in spedfio terms, numbering the sa/me consecutively. n. S. Marshal, as Messenger, District of District of , ss : — , A. D. 18 . Then personally appeared the , and made oath that the above Expenses returned by him, in addition to his fees, were actually and necessarily incurred and paid by him, and that the same are just and reasonable. Before me, , District Judge, [or, Begider in Bankruptcy.'] 8. Register's oath of office. United States of America, District of , ss : I, , having been duly nominated and recommended by the Chief Justice of the Supreme Com-t of the United States, and appointed by the District Judge of the United States for the district of , as a Eegister in Bankruptcy under the act entitled " An Act to establish A Uniform System of Bankruptcy throughout the United States," approved March 3, 1867, do solemnly swear that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid countenance, counsel, or encouragement to persons engaged in armed hostility thereto ; that I have neither sought nor accepted, nor attempted to exercise the functions of any ofBce whatever under any authority or pretended authority in hostility to the United States ; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States hostile or inimical thereto. And I do further swear, that to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic ; that I will bear true faith and alWgiance to the same ; that I take this obligation ii-eely, without any mental reservation or purpose of evasion ; and that I will well and faithfully dis- charge the duties of the office on which I am about to enter ; and also tL-it I will not, during my continuance in office, be directly or indirectly interested in or benefited by, the fees or emoluments arising from any suit or matter pendino BANKRUPTCY. 487 in bankruptcy in either the District or Circuit Court pending in this District. So help me God. Subscribed and to, before me this day of , A. D. 18 . District Judge. 9. Official bond of register. In the District Court of the United States For the District of In Bankktjptct. Know all men by these Presents : -That we [Insert names and reddences in full of landsmen] are held and firmly bound to the United States of America in the sum of dollars, lawful money of the United States, to be paid to the said United States, for the payment of which, well and truly to be made, we bind ourselres and each of us, our and each of our heirs, executors, and ad- ministrators, jointly and severally, firmly by ■^hese presents. Sealed with our seals, and dated this day of , Anno Domini one thousand eight hundred and Whereas the said , having been on the day of A.. D. 18 , appointed by the Honorable , Judge of the Dis- trict Court of the United States for the District of , a Register in Bankruptcy, in and for said District, this Bond is executed pur- suant to the Third Section of the Act of Congress entitled " An Act to Estab- lish a Uniform System of Bankruptcy throughout the United States," approved March 3, 1867, and is conditioned tor the faithful discharge of the duties per- taining to said oflSce of Register in Bankruptcy. In witness whereof we have hereunto set our hands and seals this day of , A. D. one thousand eight hundred and , [l. s.] , [L. s.] Signed, sealed, and filed in the office of the Clerk of said District Court. Attest : , Glerh District of [N. B. — The above Bond to be indorsed with the approval of the Judge of the District Court thus : " I hereby approve the wi1}hin Bond, and declare the sureties thereon to be satisfactory ;" and the usual certificate of the Clerk of the District Court, as to the exact time and date of filing.] 488 FORMS. 10. Couuuon order. In the District Court of the United States, For the District of In the Matter of Bankrupt . In Bakkktjptcy.' At , in said District, on the day of , A. D. 18 , Before Mr. , one of the Registers of said District Court, in Bankruptcy. District of , ss : Upon the application of , of , in the County of , and State of , there being no opposing interest [or, the party, or parties, appearing assenting thereto,] It is Ordered : [Sere insert the order.'] Witness the Honorable , Judg^ of the said Court, and the [Seal of the Court.] seal thereof, at , in said District, on the day of , A. D. 18 , derk of District Court, for said District. 11. Certifled memorandum of first meeting of creditors. [Title of the proceeding, as in Form 10.] At , in said District, on the day of , A. D. 18 . Before Mr. , Register in Bankruptcy. District of , ss : — Memoeaitoum. — This being the day appointed by the Court for the First Meeting of Creditors under the said Bankruptcy, whereof the notice required in that behalf has been duly given, I, the undersigned, Register of the said Court in Bankruptcy, sat at the time and place above mentioned, pursuant to such no- tice, to take the proof of debts and for the choice of assignee under the said Bankruptcy ; and I do hereby certify that the greater part in number and in value of the creditors who have proved their debts were present, or duly repre- sented, and made choice of , of , in the County of and State of , as the Assignee of the said Bankrupt's estate. [Or, Failed to make choice of an Assignee of said Bankrupt's estate, and there being no opposing interest, I appointed , of , in the County of , and State of , as Assignee of the same. Or, Failed to make choice of an Assignee of said Bankrupt's estate, and there being no opposing interest, I further certify to the Court the failure to make ' See note 1, p. 483. BANKRUPTCY. 439 such choice of Assignee, in order that the Court may take action in the premi- ses.] Register in Barikruptey. [N. B.— When the matter of appointment is referred to the Court, the Reg- ister may, if requested, certify the names of the persons proposed at the Credit- ors' meeting, and the votes given for each.] 12. Abstracts of proeeeaings under section 4-Form of memorandum to be returned to Clerk by Register, of Ms action in each case. [TetU of the proceeding, ag in Form 10.] •A-t , in said District, on the day of , A. D. 18 . Before Mr. , Register in Bankruptcy. District of , ss : Memobandtjm. — This day attended the &st meeting of Creditors of , the Bankrupt aforesaid, at said , where choice was made of assignee as appears by the papers herewith returned. [Sere insert particular statement of all that was doTie before the Segister.} » Register in Bankruptey, [N. B. — ^A memorandum of what is done in each case respectively must be returned on separate sheets of paper.] 13. Creditors who have proved their debts at flrst meeting^. [Title of the proceeding, as in Form 10.] At , in said District, on the day of , 18 . Before Mr. , Register in Banhruptcy, . District of , ss: The following is a list of Creditors who have this day proved their debts :— Names of Creditors. Residence. Debts Proved. floUs. Cts. Register in Bamhruptey. 490 FORMS. 14. Form of special letter of attorney. In the Matter of Bankrupt In Bankbtiptct. To Sib : [or, Messrs., or, Gentlemen,] I, [or, we,] hereby authorize you, or any one of you, to attend the Meeting of Creditors in this matter, .advertised or directed to be holden at , on the day of , before , or on . ^ % •I o II o o 0) n ■ IH S ^ CQ » O I (33 03 03 I ^ CL aa m 03 5j_, s '13 as o ' e W 604 forms; 34. Petition of assignee for power to relieve property ft'om lien. [Title of the proceeding, as in Form jlO.] To , , Assignee of the estate of said Bankrupt, respectfully rep- resents that a certain portion of said Bankrupt's estate, to wit : [Sere describe the estate or property and its estimated valtie,'] is subject to a mortgage, [Describe the mortgage,'] or to a concjitionalcontract, [Describing it,] or to a lien, [Describe the origin and nature of the lien,] or, (if the property be pergonal property,) has been pledged and deposited and is subject to a lien for, [Describe the nature of tJie lien,] and that according to the best judgment of your Petitioner it would be for the interest of the Creditors of said estate that said property should be redeemed and discharged from the lien thereon. Wherefore pray that piay be empowered to pay out of the ^sets of said estate in hands the sum pf , being the amount of said Hen in order to redeem said property therefrpm. D&ted this day of , A. D. 18 . [N. B. — If the prayer is for a sale of the property, strike out all after the words '^judgment of your Petitioner,'" and insert " it would be for the interest of the creditors of said estate that said property should be sold subject to such mortgage, lien, or other incumbrance. Wherefore, he prays, that he may be au- thorized to make sale of said property subject to the incumbrance thereon in the manner prescribed by the general order for the" sale of property not in- cumbered."] 35. Assignee's return where there are no assets. [Title of the proceeding, as in Form 10.] At , in said District, on the day of , A. D. 18 . District of , ss: On the day aforesaid, before me comes , of , in the County of , and State of , and makes •, and says, that he, this Deponent, as Assignee [or, one of the Assignees] of the estate and effects of the above named Bankrupt , neither received nor paid any ihoneys on account of the estate. Subscribed apd ^o, at this day of , A. D. 18 Before me, — ^ Ifegist&r in Banhruptcy. BANKEiUPTCT. gOS 86. Assigiiee's notice for settlement of his accounts preparatory to final dividend. I Title of the proceeding, as in Form 10.] At ^ on the day of , A. D. 18 . To , Sir: This is to give you notice that I have filed my final accounts as assignee of the estate of , Bankrupt , in said Oom-t, and that on the day of , next, I shall apply to said -Court for the settlement of my said accounts, and for a discharge from all liability as Assignee of said estate in ac- cordance with the provisions of the twenty-eighth section of the Bankrupt Act ofMauch 3, 1867. Yours, &c., : , Assignee. 37. Affidavit to be made by assignee. [Title of the proceeding, as in Form 10.] District of , sa : — On this day of , A. D. 18 , before me comes of , in the County of , and State of , and makes , and says that he, this Deponent, was, on the day of , A. D. 18 , appointed Assignee of the estate and efiects ol the above-named' Bankrupt, and that as such • he has conducted the settlement of the said estate. That the account hereto annexed containing sheets of Paper, the first sheet whereof is marked with the letter [Reference may here aho he made to any prior account filed by Deponent] is true, and such account contains entries of every sum of money received by Deponent, on account of the estate and effects of the above-named Bankrupt , and that the payments purporting in such account to have been made by Deponent have been so made by him. And he asks to be allowed for said pajrments and for charges of settlement as set forth in said accounts. , Assignee. Sworn to and subscribed at , in said District of , this day of , A. D. 18 . Before me, Register in Banhruptcy. 506 POEMS. o o «0 O o r«? Si ft Si '3 r; s <1 S o hn ^S w CR ■4^ w 03 k s d TS ■^ 4A ffl „ fl 5 to 1 S r^ • or) a e CO C3 J «:i o »* H o o BANKRUPTCY. 607 39. Order of settlement and discharge of assignee. J_Tiile of the proceeding, as in Form 10.] District of , as: — The foregoing account having been presented for allowance, and having been , examined and found correct, it is Ordered, That the same be allowed, and that the said Assignee be discharged according to the provisions of the twenty- eighth Section of the Bankrupt Act of March 3, 1867. District Judge, [or, Begister.'\ 40. Petition for removal of assignee. ,[7Me of the proceeding, as in Form 10.] To the Hon. , Judge of the District Court, for the District of District of , ss : The petition, of , one of the parties interested in the settlement of said Bankrupt's estate, petitioning, respectfully represents, that , heretofore appbiuted Assignee of said Bankrupt's estate, [Here set forth the par- ticular cause or causes for which sv^h removal is requested.'] Wherefore pray that notice may be served upon said Assignee as aforesaid, to show cause, at such time as may be fixed by the Court, why an order should not.be made removing him from said trust. Subscribed and sworn [or, aflSrmed] to, this day of , A. D. 18 , at , in said District. Before me, : j Register in Bankruptcy. 41. Notice of motion for removal. [Title in the proceeding, as in Form 10.] At , on the day of , A. D. 18 . To , Assignee of the estate of , Bankrupt. Tou are hereby notified to appear before this Court, at , on the flay of , A. D. 18 , at o'clock m., to show cause (if any you have) why you should not be removed from your trust as Assignee as aforesaid, according to the prayer of the Petition of , one of the parties inter- ested in said estate, filed in this Court on the day of , A. D. 18 , in which it is alleged, [Here insert the allegation of the Peiiiion.'] Hereof fail not. , Cleric, &c. [N. B.— To be served by the Marshal and return to be made in usual form.] 608 FORMS. 42. Order for meeting of creditors to consider question of remoyal of as- signee and appointment of liis successor. [Tilk of the proceeding, as in Form 10.] At , on the day o^ A. D. 18 . District of , «« ; Whereas , of , has filed his Petition in this Court for the removal of , heretofore appointed Asdgnee of the estate of said , Bankrupt , setting forth, l^Here insert the allegations of the Petition.'] It is Ordered, That the Clerk of this Court give notice to the Creditors of , by letter to be mailed to each within days after the date of this order, that a meeting of said Creditors will be held at , on the day of , A. D. 18 , at o'clock m., at which, Mi\ , one of the Registers of this Court, wiU preside, for the purpose of considering the question of recommending such removal and appointing a successor in said trust , District Judge. [N. B. — If the meeting is called upon an application of a majority in number and value of the Creditors of the Bankrupt, the Form may be varied accordingly. The vote for removal is substantially the same Form as that for the appoint- ment of Assignee in Form Nq. 15, substituting " removal " for " appointment ;" and the Form of vote for choice of new Assignee will be substantially the same as the Form referred to.] 43. Order for removal of assignee. Title of the proceeding, as in Form 10.] At , on the day of , A. D. 18 . District of , as : Whereas , of , did on the day of ' , A. D. 18 ; present his Petition to this Court, stating as therein set forth, and praying that , the Assignee of the estate of said , Bankrupt, might be removed : • Now, therefore, upon reading the said Petition of the said , and the evidence submitted therewith, and upon hearing what was alleged by Mr. , of counsel on behalf of said Petitioner, and by Mr. ^ of counsel for , Assignee as aforesaid, and upon the evidence sub- mitted on behalf of said Assignee, It is Ordered, that the said , be removed from the trust of As- signee of the estate of said Bankrupt, and that the costs of the said Petitioner incidental to said Petition be paid by said , Assignee, [or, out of the estate of the said , subject to prior charges.] Witness the Honorable , Judge of thfi said Court, and the seal thereof, at , in said District, on [Seal of the Court.'] the day of , A. D. 18 . Clerh of District Court, for said DiHtriet. BANERUPTCT. 509 44. rnrther order. [Title of the proceeding, as in Form 10.]' » At , 6n the day of , A. D: 18' . District of , as : — Whereas , heretofore appointed Assignee of the estate of said Bankrupt , has, upon the Petition of ^ and after hearing thereon, been removed from his said trust. It is Ordered, That a meeting of the Creditors of said , be held at , in , in said District, on the day of , A. D. 18 , at which Mr. , one of the Registers of this Court, shall preside, for the choice of a new Assignee of said Estate. Anditisturther Ordered, That the Clerk of this Court give notice to said Creditors of the time, place, and purpose of said meeting by letter to each, to be deposited in the mail within days from the date of this order. Witness the Honorable , Judge of the said Court, and the seal thereof, at , in said District, on [Seal of the Court.'] the day of , A. D. 18 . derhof District Court, for said District. 45. Order tor Bankrupt's examination. [ Title of the proceeding, as in Form- 10.] At , on the day of , A. D. 18 . District of , ss : On the application of , Assignee of said Bankrupt, [yr^ Creditor of said Bankrupt, as the case may be,] it is Ordered, That said Bankrupt at- tend before , one of the Registers in Bankruptcy of this Court, at his office [Describing the place] on the day of , at o'clock m., to submit to the examination required by the twenty-seventh Section of the Bankrupt Act of March 3, 1867, and that a copy of this order be delivered to him the said , forthwith. Witness the Honorable , Judge of the said Court, and the seal thereof, at , in said District, on [Seal of the Court.] the . day of , A. D. 18 . Clerk of District Court, for said District. [N. B.— Where the wife of the Bankrupt is to be examined the like Form may be used, adding after the description of the application, the words " and for good cause shown to this Court, she be required to attend before said court, [or, before , a Register in Bankruptcy."] 510 FORMS. 46. Examination of Bankrupt, or any witness examined relative to tlie Bank- rnptey. [Title of the proceeding, as in Form 10.] At , in said District. on the day of , A. D. 18 Before Mr. , One of the Registers in Banhruptcy of said Court. District of , ss : , of , in the County of , and State of being duly and examined at the time and place above mentioned upon h oath says. [Here insert substance of examination of party.] , Register. 47. Declaration to be made by Bankrupt or Ms vrife. [Title of the proceeding, as in Form 10.[ At / , in said District, on the day of , A. D. 18 . District of , ss : The person declared a Bankrupt under a Petition for Adjudication of Bank- ruptcy, filed on the day of , in the year of our Lord one thousand eight hundred and , do solemnly that I will make tru. Dozier, 6 Sow. 23. ii. 54. Bains v. The James & Catharine, Baldw. 544. i. 194. Baker v. Biddle, Baldw. 394. i. 194, 464, 465 ; ii. 92. V. Draper, 1 Olif. 420. i. 634. ■». The Potomac, 18 Sow. Pr. 185. ii. 196. V. Taylor, 2 Blatehf. 83. i. 397. Balch, Exp., 3 MeLean, 321. ii. 60. Ballance v. Forsyth, 21 Sow. 389. ii. 219. Bank of Alabama s. Dalton, 9 Sow. 522. ii. 5, 6. Bank of Columbia v. Okely, 4 Wheat. 235. ii. 140. Bank of Hamilton v. Dudley, 2 Pet. 492. i. 463. Bank of Silver Creek v. Talcott, 22 Barb. 550. i. 380. Bank of United States v. Green, 6 Pet. 26. i. 340 ; ii. 272. V. Halstead, 10 Wheat. 51. i. 240 ; ii. 156. V. Kurtz, 3 Oraneh 0. Ot. 342. ii. 94. V. McKenzie, 2 Brock. Marsh. 393. ii. 7. Barber ». Barber, 21 Sow. 582. i 466. Barlow ®. United States, 7 Pet. 404. i. 557. Barnard v. Gibson, 7 Sow. 650. ii. 327. Barnes, Ea^., 1 Sprague, 133 ; 9 Law Bep. 314. i. 265. Barnet v. Day, 3 Wash. 0. Ot. 843. ii. 120. Barney v. Baltimore City, 6 Wall 280. i. 250, 305, 306. ■». Globe Bank, 3 Am. Law Beg. K 8. 221. ii. 20. ». Griffin, 2 Oomst. 865 ; 8 IT. T. Leg. Obs. 68 ; 9 Id. 106. i. 379, 381. Bamum ». Hempstead, 7 Paige, 568. i. 379. Barr e. Gratz, 4 Wheat. 213. ii. 230. Barrell v. Transportation Co., 8 Wall 424. ii. 253. Barrett v. Hall, 1 Ma«. 447. i. 502, 512, 518, 520, 530, 532. Barribeau v. Brant, 17 Sow. 43. iL 348. Barrow ». Hill, 13 Sow. 54. ii. 330, 367. V. Reab, 9 Sow. 366. iL 239. Barry, .Kcp. 3 Sow. 65 ; affirming 7 Law TABLE OP CASES. 539 Sep. 874 , 11 mint's Mer. Mhg. 365. i. 479. Barry «. Foyles, 1 Pet. 311. ii. 48. V. Mercein, 5 Sow. 103. i. 816. 335. ' Bartholomew v. Sawyer, 1 Msh. 516 : 41 Hunffs Mer. Magi. 675. i. 510. Bartlett v. Crittenden, 5 McLean, 32 ; 7 West. Law J. 49. i. 388, 389, 893, 405. Bartlette «. Crittenden, 4 McLean, 300 i. 388. Barton «< Forsyth, 5 Wall. 190. ii. 238. Bas». Steele, 3 Wash. G. Ct. 381. i 571. Battin v. Clayton, 8 Whart. Dig. 409. i. 531. ®. Taggart, 17 How. 74. i. 495, 496, 497, 521, 538. Bay State, The, Abb. Adm. 335 ; 6 i\?: r. Leg. Ohs. 198. i. 387. Bayard v. Hoffman, 4 Johns. Oh. 450. i. 879. V. Lombard, 9 How. 530. ii. 347. Bayerque v. Cohen, MeAll. 113. L 464. V. Haley, MeAll. 97. ii. 67. Beale v. Thompson, 8 Oranch, 70. ii 118. ' Bean «. Smallwood, 3 Story 0. Ot. 408. i. 515. 7). Smith, 2 Mas. 252. i. 465, 466. Beardsley v. Torry, 4 Wash. 0. Ot. 386. ii. 38. Bearse v. Three hundred and forty pigs of Copper, 1 Story O. Ot. 314. i. 598. Beaston i). Farmers' Bank of Delaware, 12 Pet. 103. ii. 101. Beatty v. United States, L>ei>, 70 ; Id. 331. i. 557. '. Beaty v. Knowler, 4 Pet. 153. ii. 56. Bedford i>. Hunt, 1 Mas. 303. i. 506, 507, 513. Bee, The, Ware, 333. i. 856. Beebe ®. Russell, 19 How. 383. ii. 324. Beers «. Haughton, 9 Pet. 329. ii. 166, 167. Belcher v. Linn, 34 How. 508. i. 570. BeU V. Daniels, 1 Pish. 372. i. 536. V. Davidson, 3 Wash. 0. Ot. 328. ii. 116. «. Heame, 19 How. 253. i. 333. «. McCuUough, 1 Msh. 380. ii. 145. V. Morrison, 1 Pet. 351. ii. 5, 117. ■». Niinnion, 4 McLean, 539. ii. 116. Bell V. Pomeroy, 4 McLeoi- , 57. ii 92. Bello Corrunes, The, 6 Wheaf.. 153. i. 588. Bellows V. Partridge, 19 Barb. 176 ; 13 JV. Y. Leg. Ohs. 219. i. 37B, 380, 381. Ben, Exp., 1 Oranch 0. Ot. 632. li. 242. Bend v. Hoyt, 13 Pet. 263. i. 563, 566. Benedict ®. Davis, 3 McLean, 347. ii. 199. Benner v Porter, 9 How. 235. i. 278, 280. Bennett «. Butterworth, 11 How. f?69. i. 195, 463. Bermuda, The, 3 Wall. 514. i. 553. Berry v. Riley, 2 Barb. 307. i. 880. Betsey, The, 1 Mas. 354. ii. 84, 85. ■». Duncan, 2 Wash. 0. Ot. 572, L 613. Betsey & Rhoda, The, Daveis, 112. L 634. Bettes V. Dana, 2 Sumn. 383. ii. 70. Biddle, Mop., 3 Mas. 473. i. 333, 33 - 464. Bingham ®. Cabot, 3 Dall. 383 iL 53. V. Morris, 7 Cranch, 99. ii. 263. Binns v. Williams, 4 McLean, 580. u 96. ■». Woodruff, 4:Wash. C. Ct. 48. 3 392. Black, Exp., 1 Banhr. Reg. 81. i. 383. Blagg ». Phoenix Ins. Co., 8 Wash. Ct. 58. ii. 196. Blake v. Sperry, 3 if. T. Leg. Obs. 351 i. 502, 513. Blanchard v. Beers, 3 Blatchf. 411. L ■ 580, 531. V. Haynes, 6 West Law J. 83. i. 486. V. Sprague, 1 Clif. 388. ii. 138. V. , 3 Sumn. 535 ; 3 Story C. Ct. 164. i. 486, 503, 516. , V. Whitney, 3 Blatehf. 307. i. 537. Blanchard's G-un-Stock Turning Fac- toiy V. Jacobs, 3 Blatchf. 69. L 539 ; ii. 196. ,— — «. Warner, 1 Blatchf. 258. i. 486, 515, 538. Bleecker v. Bond, 4. Wash. 0. Ot. 6. ii. 165. Blight «. Fisher, Pet. O. Ct. 41. ii. 81. ». Rochester, 7 Wheat. 585. iL 125. Bliss «. Cottle, 32 Barb. 322. i. 378. Bloomer v. McQuewan, i4:Hoio. 539. i 487, 543. V. Stolley, 5 McLean. 158 : 8 West. Lam J. 158. i. 486, 497, 516, 527. Blunt «. Patten, 3 Paine, 397. i. 395, 540 TABLE OP CASES. Blunt n. Smith, 7 Wheat. 248. ii. 230. Boaler v. Cummines, 1 Am. Law Seg. 654. i. 467. Board of Missions «. McMaster, 4 Am. Law Beg. 526. i. 225. Boardman ». Halliday, 10 Paige, 223. L 379. Bobvshall v. Oppenheimer, 4 Wash. C. di. 388. u. 164. Bogart v. The John Jay, 17 How. 399. i. 631. Bolina, The, 1 Gall. 75. i. 624. Bolivar, The, Ole. 474. i. 634. BoUman, Exp., 4 Craneh, 75. i. 182, 406, 409, 410, 411 ; ii. 181, 214. Bond V. The Cora, 2 Wash. C. Ct. 80 ; affirming 2 Pet. Adm. 361. i. 577. Bondies v. Sherwood, 23 Bow. 314. i. 591. Bonnafee v. Williams, 3 Sow. 574. Boon ». The Hornet, CraJibe, 426. ii. 74. Booth V. Ableman, 16 Wis. 460. i. 239. Boston, The, 1 Gall. 239. i 559. , 1 Sumn. 328. i. 576, 588 ; ii 74, 80, 83, 237. Bottomley v. United States, 1 Story O. Ct. 135. ii. 133. Boudereau v. Montgomery, 4 Wash C. a. 186. ii. 117. Bouysson v. Miller, Bee's Adm. 186. ii. 104. Bowman d. Wathen, 2 McLean, 376. ii. 13. Boyce v. Grundy,' 3 Pet. 210. i. 465, 466 ; ii. 258, 267. Boyd 1. Brown, 3 McLean, 295. i 535. V. McAlpin, 3 McLean, 427. i. 5^4. ». Scott, 11 Bow. 292. ii. 263. ■». Zacharie, 6 Pet. 648. ii. 35, 158, 164, 326, 323. Brackett «. The Hercules, Gilp. 184. i. 607, 638. Bradford ». Jenks, 2 McLean, 130. ii. 19. Bradley, Ej^., 7 Wall. 264. i. 271, 377. Bradstreet, Exip., 7 Pet. 634. iL 55, 109. ,■ ». Huntington, 5 Pet. 402. iL 5. , v. Thomas, 12 Pet. 59. ii. 53. Bray «. The Atlanta, BeSs Adm. 48. i. 604. ®. Hartshorn, 1 Cliff. 538. i. 512. . Breneman, Exip., CraJibe, 456. i. 357. Brevoor ®. The Fair American, 1 Pet. Adm. 87. i. 573, 591. Brewster v. Gelson, 1 Paine, 426. iL 199. Brewster «. "Wakefield, 22 Kno. 118. L 338; iL 218. Bridge Proprietors v. Hoboken Co., 1 Wall. 116. L 333 ; iL 271. Brigham v. Tillinghast, 15 Barb. 618. i. 379. Brissac «. Lawrence, 2 Blatchf. 121. L 570, 571. British Prisoners, Matter of, 1 WoocB). & M. 66. L 473. Brittan ®. Bamaby, 21 Bow. 527. L 637. Brobst v. Brobst, 2 Wall. 96. iL 258, 272. Brockett «. Brockett, 2 Bow. 338. iL 259. v. , 3 Bow. 691. ii. 229. Brodhead, Be, 3 BanJcr. Beg. 93. L' 383. Bronde v. Haven, Gilp. 593. i. 607. Bronson v. Railroad Co., 2 Black, 534. iL 224. V. La Crosse, &c. R E. Co., 2 Wall. 283. iL 72. Brookline, The, 1 Sprague,104: ; 8 Law Bep. 70. L 609. Brooks V. Bicknell, 3 McLean, 260 ; 1 West. Law J. 150. L 510, 518, 530, 527, 530. ■». , 4 McLean, 64 ; 3 West. Law J. 35. L 525. •». , 4 McLean, 70 ; 3 West. Law J. 109. L 533. •». Fiske, 15 Bow. 313. L 533. ■». Norris, 11 Bow. 304. ii. 250, 264. V. Stolley, 3 McLean. 533 ; 2 West. Law J. 396. L 241, 543. 11. The "William Penn, 1 Am. Law Beg. 584. L 587, 589, 590. ♦ Brown v. The Cadmus, 3 Paine, 564. ii. 230. v. Clarke, 4 Bow. 4. ii. 165, 230. ■». Duchesne, 19 Bow. 183 ; affirm- ing 2 Curt. C. Ct. 371. L 487. v. Keene, 8 Pet. 112. ii. 53. ». Lull, 2 8umn. 443. i. 603. B. Noyes, 2 Woodh. & M. 75. iL 19. «. Piatt, 2 Craneh C. Ct. 253. ii 117. V. Swann, 9 Pet. 1. ii. 225. s. , 10 Pet. 497. ii. 92. V. Union Bank of Florida, 4 Bow. 465. ii. 332. ■». United States, 1 Ct. of CI. 377. i. 564, 567. «. , 8 Craneh, 110. i. 546. ». Van Bniam, 3 Ball. 344. iL 267. TABLE OF CASES. 541 Brownell ». Curtis, 10 Paige, 310. i. 379. B. Gordon, MoAll. 307. ii. 44. Bryan v. Eorsyth, 19 How. 334. ii. 139. Bryce ». Dorr, 8 McLean, 583. i. 539. Buchannan v. Alexander, 4 How. 30. ii. 103. , Buck V. Colbath, 3 Wall. 334. i. 335,- 336, 337. ■». Hermance, 1 Blatchf. 398. i. 518, 515, 531 ; ii. 193. Buddngham ». McLean, 13 How. 150. ■ ii. 318, 356. Buckingliouse «. Gregg, 19 Ind. 401. ■ ii. 57. Buddicum v. Kirk, 3 Granch, 893. ii. 113, 114. Buel 1). Van Ness, 8 Wheat, 313. i. 334 ; ii. 371. Buena Vista, The, Z Blatchf . 510. i. 598. Buford, mp., 3 Craneh, 447. ii. 174. ®. Hickman, Sempst. 333. ii. 183. Bullard o. Bell, 1 Mas. 843. ii. 11, 80. Burdick «. Post, 3 BeU. 533. i. 381. Burgess «. Converse, 8 Cwr*. C. Ct. 816. i. 564. Burke «. Gaines, 19 Sow. 388. i. 337. V. Trevitt, 1 Jfas. 96. i. 891, 684, 637. Burr's TriaL See United States v. Burr, infra. Burr V. Cowperthwait, 4 Blatchf. 163. , i. 506. •■». Des Moines Co., 1 FaZZ. 103. i 133. ®. D.uryee, 1 Wall. 531. i. 495, 503. «. Gregory, 3 Past?ie, 436. ii. 68. Burrall b. Jewett, 8 Paigre, 134. i. 519. Burrill «. Phillips, 1 G^flsK. 360. ii. 196. Burton v. Salter, 11 Law Bep. if. & 148. i. 613. Butterworth's Case, 1 WooM. & M. 383. i. 368. Byam ®. Eddy, 3 Blatchf. 531 ; 34 Fl5. 666. i. 543. «. Farr, 1 Curt. C. Ct. 360. i. 548. Byrd ■». Badger, McAll. 443. i. 463. Cabot, The, Alb. Adm. 150. i. 606, 613. Cabrera, Eisp., 1 Wash. C. Ct. 333. L 478. Cadmus, The, v. Mathews, 8 Painei 339. i. 613f 613. Cahoun v. King, 1 Cliff. 598. i. 507. Calbreath v. Gracy, 1 Wash. C. Ct. 198. ii. 199 Oalcote 11. Stanton, 18 How. 343. L 387. Caldwell v. Jackson, 7 Craneh, 876. i. 373. V. United States, 8 How. 366. L 623. Caledonian, The, 4 Whmt. 100. i. 547. Callan v. May, 3 Black, 541. ii. 334, 353. Campbell v. Claudius, Pet. C. Ct. 484. i. 464. v. Emerson, 3 McLean, 30. i. 333 ; ii. 61. V. Gordon, 6 Cramch, 176. iL 135. V. Hadley, 1 Sprague, 470. ii, 167. V. Jordan, Hempst. 534. ii. 19. V. Kirkpatrick, 5 McLean, 175. ii 46. V. McManus, 5 McLean, 106. ii. 161. V. Read, 3 Wall. 198. i. 378 - ». The Uncle Sam, McAll. 77. i. 605 ; ii. 76. V. Woodworth, 33 Barb. 435 ; 34 JSr. Y. 304. i. 379. Canter ». American & Ocean Ins. Co., 3 Pet. 307. ii. 155. Canton, The, 1 Sprague, 437 ; 11 Law Pep. if S. 473. i. 607, 634. Capron «. Van Noorden, 3 Craneh, 136. ii. 53. Carey v. Collier, 56 Wiles Peg. 363. i. 393. ■». The Kitty, Bee's Adm. 854. -i. 607, 609. Carhart v. Austin, 3 Fiih. 543. i. 496. Carneal v. Banks, 10 Wheat. 181. ii. 13. Caroline, The, 1 Brock. Marsh, 384. ii.' 85. V. United States, 7 Crunch, 496. ii. 84. Carpenter ii. The Emma Johnson, 1 Cliff. 633. i. 636. V. Underwood, 19 if T. 530. i. 380, 381. Carr «. Gale, 3 WoocO). & M. 38. ii. 196, 198. ». Hoxie, 13 Pet. 460. ii. 334, 860. ». Rice, 1 Fish. 198. i. 498, 514. Carrigan «. The Charles Pitman, I Wall Jr. C. Ct., 307. ii 337. 542 TABLE QP CASES. Camngton «. Brents, 1 McLean, 167. i. 353 ; ii. 48. ■». Merchants' Ins. Co., 8 Pet. 495. i. 547. Carroll v. Carroll, 16 Eow. 375. i. 339. v. Dorsey, 30 How. 304. ii. 318. e. Peny, 4 McLean, 35. i. 333. ». Watkins, 1 ^J5. K S. 475. ii. 149. Carter v. Bennett, 15 How. 354. i. 380. — 11. The Byzantium, 1 Cliff. 1. i. 634. Carver v. Braintree Mannfg. Co., 3 Story C. Ct. 432. i. 497, 515, 516, 519, 531. V. Hyde, 16 Pet. 513. i 503. Cary v. Curtis, 3 S)«!. 336. i. 563. Case ■». Redfleld, 4 McLean, 536. i. 535 ; ii. 59. Casgo, The, L>aveis, 184 ; 4 Law Sep. 471. i. 637. Castro J}. United States, 3 Wall. 46. ii. 317, 357. Cathcart i). Eobinson, 5 Pet. 364. iL 56. Catherine, The, v. Dickinson, 17 Sow. 170. i. 387. Oatlett «. Brodie, 9 WTieat. 553. ii. 360. Central Bank v. Tayloe, 3 Cranch C. at. 437. ii. 94. Certain Logs of Mahogany, 3 Sumn. 689. i. 635. Chaffee ii. Boston Belting Co., 33 How. 317. i. 536, 534, 543. v. Hayward, 30 Eow. 308. i. 349 ; ii. 99, 356. Chaires «. United States, 3 How. 611. i. 347, ii. 360. Chamberlain «. Chandler, 3 Mas. 343. i. 638. Chance ». Isaacs, 5 Paige, 593. i. 878. Chappel «. The John E. Clay+on, 18 How. Pr. 319. i. 590. Charge to Grand Jury, 4 Blatahf. 518. i. 410. , 3 Curt. C. Ct. 637. i. 445. , 3 Wall. Jr. 0. Ct. 134. i. 409. Charles Carter, The, 4 Ball. 33. ii. 234. Charles Henry, The, 1 Bm. 8. i 577. Chase ». Vasques, 11 Wheat. 503. ii. 338. Chemung Canal Bank «. Judson, 8 N. T. (4 Seld.) 354. i. 348. Cheney v. Arnold, 5 N. Y. 845. ii. 56. Chicago City «. Robbins, 3 Black, 418. i. 238. Child "J. AdamB,-l Fish. 189. i. 405. CMlde Harold, The, Olc. 275. i. 610, 611; ii. 137. Childs v. Somerset & Kennebec R. R. Co., 10 Law Sep. M S. 561. ii. 196. Chirac v. Reinecker, 11 Wheat. 380. ii. 230. Chisholm v. Georgia, 3 Ball. 478. i. 209. Chouteau v. Marguerite, 13 Pet. 507. i. 333. 71. Rice, 1 Minn. 193. L 185. 11. United States, 9 Pet. 147. ii. 124. Christ V. Maxwell, 3 Blatchf. 129. i. 564. Christ Church b. County of Philadel- phia, 20 How. 26. ii. 271. Christmas v. Russell, 5 Wall. 290. ii. 5. Church «. Hubbart, 2 Cranch, 187. i. 638. Chusan, The, 3 Story C. Ct. 455 ; re- versing 1 Sprague, 39. i. 633, 634. Circassian, The, 3 Wall. 135. i. 551, 553. City of Mobile v. Eslava, 16 Pet. 338. i. 333. City of New Orleans «. De Armas, 9 Pet. 334. i. 330. «. Gaines, 23 How. 141. ii. 316. City of Philadelphia «. Collector, 5 Wall. 730. i. 569. Claflin «. Wells, 1 Am. Law Times, 30 ; 6 Int. See. Sec. 181 ; 7 Am. Law Seg. N. S. 163. i. 383. Clapp 11. Utley, 16 How. Pr. 384. i. 381. Clark '0. Fuller, 31 Barb. 138. i. 381. V. Protection Ins. Co., 1 Story 0. Ct. 109. i. 633. ». Rowling, 1 Hill <& D. Supp. 105. i. 379. V. Smith, 13 Pet. 195. i. 332. V. Sohier, 1 Woodb. & M. 868. i. 333, 335, 336. «. United States, 3 Wash. C. Ct. 519. ii. 83, 84. Clarke v. Chase, 11 Law Sep. N. S. 394. ii. 45. «. City of Janesville, 4 Am. Law Seg. 591. ii. 19. V. The Healy, 4 Wash. 0. Ct. 651. i. 587. V. Mathewson, 12 Pet. 164; re- versing 3 Sumn. 263. ii. 69, 79. V. New Jersey Steam Nav. Co., 1 Stpi-y C. Ct. 531. ii. 96. Clayton v. The Harmony, 1 Pet. Adin. 70. i. 595. e. Stone, 2 Paine, 882. 1. 88a 393, 394. TABLE OF CASES. 543 Clearwater v. Meredith, 21 Sow. 489. i. 350. Clement, the, 3 Curt. C. Ct. 363. ii. 76. Clementson v. Williams, 8 Cranch, 73. ii. 5. Cleveland «. Chamberlain, 1 Black, 419. ii. 217. Clifton «. United States, 4 How. 343. ii. 128, Clum «. Brewer, 3 Cw*. C. C*. 506. i. 539 ; ii. 59, 131. Cobb V. Howard, 3 Blatchf. 634; af- firming S. C, 10 N. T. Leg. Obs. 353. i. 638 ; ii. 31. Cocke V. Halsey, 16 Pet. 71. ii. 146. Coffee «. Planters' Bank of Tennesee, 13 How. 183. ii. 333. Coffeen v. Brunton, 4 McLean, 516 ; 7 West. Law J. 59. i. 394. Coffin V. Jenkins, 3 Story O. Ct. 108. i. 612, 613 ; ii. 76, 83. ■». The John Shaw, 1 Cliff. 230. i. 591. ®. Shaw, 11 Law Bep. JV. S. 463 ; affirming 9 Id. 146. i. 608. Cohens v. Virginia, 6 Wheat. 264. i. 199, 217, 316, 338 ; ii. 314. Collector, The, 6 Wheat. 194. ii. 339, 265. ColUna «. Wheeler, 1 Sprague, 188. i. 610. Collomb V. Caldwell, 16 Jf. T. 484. i. 3807 Collumb V. Read, 24 JV. Y. 505. i. 380. CoUon V. Wallace, 3 Ball. 303. ii. 267. Cotton V. United States, 9 Sow. 579. i. 380. Columbian Ins. Co. «. Catlett, 13 Wheat. . 383. i. 637. Commander-in-Chief, The, 1 Wall. 43. ii. 339. Commerce, The, 1 Blatchf. 574. i. 350, 355. Commercial Bank of Cincinnati V. Buckingham, 5 Sow. 317. i. 339, 331. Commercial & Railroad Bank of Vicks- burg V. Slocomb, 14 Pit. 60. i. 250 ; ii. 49. Commissioner of Patents v. Whiteley, 4 Wall. 523. i. 495. Commonwealth Bank v. Griffith, 14 Pet. 56. i. 328. Concord, The, 9 Cranch, 387. i. 559. Cone «. Cotton, 2 Blatchf. 82. ii. 57. _ ■ Congdon v. Goodman, 2 Blacky 574. i. 339. Connor v. Peugh, 18 Sow. 394. ii. 330, 347. Cook V. Litchfield, 5 Sandf. 330. L 334. v. Moffatt, 5 How. 308. i. 303. Cooke «. United States, 3 Wall. 318. i. 337. ■». Woodrow, 5 Cranch, 13. ii. 128. Cooper, Matter of, 23 N. T. 81. i. 271. Corfield v. Coryell, 4 Wash. C. Ct. 371. i. 207. Coringa, The, 2 P. 64. i. 380. Gassies v. Ballon, 6 Pet. 761. ii. 53. Gates D. Johnson, 11 Lou Mep. N. 8. 279. ii. 73. Gayler ». Wilder, 10 Sow. 477. i. 509, 523. Gaylords «. Kelshaw, 1 Wall. 81. ii. 67. Gazelle, The, 1 Sprague, 378. i. ^34. Gelston v. Hoyt, 3 Wlieat. 246. i. 327, 636, 627 ; ii. 83, 85, 222. General C. C. Pinckney, The, Blatdhf. , Pr. Gas. 668 ; reversing Ld. 268. i. 549. General Jackson, The, 1 Sprague, 554 1 7 Law Pep. N. S. 334. i. 634. Genesee Chief, The, ». Fitzhugh, 13 How. 448. i. 206, 352, 355. Gemon ». Boeoaline, 3 Wash. C. Ct. 130. ii. 88. Geyer ». Irwin, 4 Pall. 107. ii. 31. Geyger v. Geyger, 3 Doll. 332. ii. 94. Gibson ii. Chouteau, 8 Wall. 314. ii. 271. V. Gifford, 1 Blatchf. 539. i. 526, 527. Giddings, Bxp., 2 (?aZZ. 56. . i. 612. Gier v. Gregg, 4 McLean, 302. ii. 44. Gifford ». Kollock, 9 Zaw Bep. K S. 31. i. 608. Gill «. Oliver, 11 Sow. 539. i. 388. Gilpins V. Consequa, Pet. 0. Ot. 85 ; sub nom. Gilpin «. Consequa, 3 Wash. C. Ct. 184. ii. 117, 118. Girard v. Ware, Pet. G. Ct. 142. i. 605. Gladding «. Constant, 1 Sprague, 78. i. 597, 614 ; ii. 82. Gloucester Ins. Co. ■». Younger, 2 Curt. C. Ct. 323. i. 388. Goddard i). Coffin, Daveis, 381. ii. 199. Godfrey e. Gilmartin, 2 Blatchf. 340. ii. 235. Gold Hunter, The, Blatchf. & H. 300. i. 636. Golden v. Prince, 3 Wash. C. Ct. 313 ; 5 Am. Law J. (Z JY. S.) 503. i. 358, 358. Goodrich ». Downs, 6 Sill, 488. i. 879. Goodwin v. United States, 3 Wash. C. Ct. 498. ii. 58. Goodyear i). Gary, 4 Blatchf. 271. i. 535 «. Day, 1 S?afcA/. 565. i. 543. D. , 2 Wall. Jr. C. Ct; 283. i. 507. «. Providence Rubber Co., 3 ^'sA. 499. ii. 35. ». The Railroad, 3 TFa??. /r. C. Ct. 356. i. 504, 516, 517, 539, 533, 534. «. Union Rubber Co., 4 Blatcfif. 63. i. 543. Gordon, Exp., 1 .BtocS, 503. i. 317, 340; ii. 373. v. Caldcleugh, 3 Graneh, 368. i. 339. ®. Hobart, 2 Swmn. 401. i. 384, 464 ; ii. 56. ®. Kerr, 1 Wash. G. Gt. 332. i. 203. v. Longest, 16 Pet. 97. ii. 44. 648 TABLE OF CASES. Gordon b. Ogden, 8 Fet. 33. i. 337. Gorham v. Mixter, 5 West. Law J. 525; 1 Am. Law J. K S. 543 ; 19 Bunt's Mer. Mag. 396. i. 581, 532, 533. Gould V. Gould, 3 Story C. Ct. 516. ii. 114. V. Hammond, McAU. 235. i. 570. V. United States, 1 Ct. of CI. 184. i. 592. Grade v. Palmer, 8 WTieat. 699. i. 248 ; 31, 48, 54. Grafton, The, 1 Slatchf. 173. i. 637. Graham, B^., 3 Wash. C. Ct. 456. i. 248, 249. V. Steecten, 4 BUUhf. 50. i. 306. Grand Gulf R E. & Banking Co. v. Marshall, 12 How. 105. i. 328, 332. Grant v. McKee, 1 Pet. 248. i. 337. V. Mason, 1 Law Int. & Bet. 22. L 502, 530. ®. Poillon, 20 How. 162. i. 631. •». Raymond, 6 Fet. 218. i. 497, 516. Gratiot v. United States, 15 Fet. 336. ii. 151. Graves v. Boston Marine Ins. Co., 2 Cranch, 419. i. 465. Gray v. James, Fet. C. Ct. 394. 1. 492, 514, 522, 530, 532, 533, 538; ii. 62. V. ,Fet. C. Ct.ilG. ii. 59. B. Lawrence, 3 Slatchf. 117. i. 564. V. Munroe, 1 McLean, 528. ii. 166. ;:. Russell, 1 Stoiy C. Ct. 11 ; 2 Law Sep. 294. i. 394, 395, 401, 403. Grayson v. Virginia, 3 Dall. 320. i. 465 ; ii. 25. Green v. Sarmiento, Fet. C. 05. 73 ; 3 WasJi. 0. Ct. 17. ii. 148. v. Sisson, 2 Curt. C. Ct. 171. i. 250. V. Van Buskerk, 3 Wall. 448. ii. 260. V. Watkins, 6 Wheat. 260. ii. 348. Greene v. Bateman, 2 Woodb. & M. 359. ii. 154. ». Bishop, 1 Cliff. 186. i. 402, 403. Greenwood v. Rector, Bempst. 708. ii. 103. Gregg a. Forsyth, 24 Smo. 179. ii. 129. Greigg v, Eeade, Crabbe. 64. ii. 235. Grey Jacket, The, 5 Wall. 370. i. 372. Grey r. Clinton Bridge, 7 Jm. Laa Reg. N. S. 149. i. 303. Griffin V. Mai-quardt, 31 N. Y. 121. i. 379, 381. ■». Thompson, 2 Sbw. 244. ii. 162, 163. Grifflng V. Gibb, 2 Blach, 519. ii. 122. Grignon v. Astor, 2 Moic. 319. i. 247. Grimble t. Mason, 7 Am. Law- Eeg. 178. i. 565. Griswold V. Sedgwick, 1 Wend. 137. i. 348. Grover t. Wakeman, 1 Wend. 187. i. 380. Grow V. Ballard 1 Am. Law Times, 111 ; 3 Banhr. Beg. 69. i. 383. Gue t'. Tide Water Canal Co., 24 How. 257. Gustavia, The, Blatchf. & H. 189. ii. 80. Gwin B. Breedlove, 3 How. 29. iL 163. V. , 15 Fet. 384. ii. 265. H. H. B. Foster, The, AU. Adm. 322 ; 6 N. Y. Leg. Obs. 233. i. 272, 588, 591, 593. Hacker v. Stephens, 4 McLean, 535. L 464. Hagan v. Lucas, 10 Pet. 400. i. 237 ; ii. 165, 166. Haggerty r. Palmer, 6 Johns. Ch. 437. i. 379. Hall V. Kellogg, 13 N. Y. (3 jTejvi.), 335. i. 378. •». Warren, 3 McLean, 332. L 570, 636. ®. Wiles, 3 Blatchf. 194. i. 498, 513, 514, 515. Halstead v. Gordon, 34 Barl. 433. i. 379. Hamilton Co. e. Massachusetts, 6 Wall. 633. i. 331. Hand v. The Elvira, Gilp. 60. i. 578, 579, 586, 590. Harden ». Gordon, 3 Ma^. 540. i. 601 ; ii. 127. Harris v. Dennie. 3 Fet. 293. i. 328, 331 ; ii. 102. Harpending v. Reformed Dutch Church, 16-Prf. 455. ii. 56. Harriet, The, 1 Sprague, 33. i. 634. Harris v. Elliott, 10 Pet. 25. i. 339. 11. The Henrietta, 1 Mtrl. 284. i 034. V. Hunt, 6 Biter, 606. i. 379. TABLE OF CASEa 549 darris v. The Kensington, 8 Am. Lwm Beg. 144. i. 634. ». Pratt, 17 jy. Y. 349. i. 379. ■». Wall, 7 H. IT. S. Mail Steamship Co., 3 Blatchf. 382. i. 636. ' Highlander, The, 4 Blatchf. 55. L 634. Hill 1). The Triumph, 2 Nl Y. Leg. Obs. 115. i. 615. Hilliard «. Brevoort, 4 McLean, 34. ii. 55, 109. Hinde ». Vattier, 1 McLean, 110. ii. 12, 14. Hine, The, v. Trevor, 4 H'aZZ. 555. 1. 393, 353, 633.. Hipp 11. Babin,^19 How. 371. i. 465. Hiiiart v. Ballou, 9 Pet. 156. ii. 327. Hitchen ». Wilson, 4 4m. iaic J". (1 N. ■K) 375.* i. 605. Hobart ®. Drogan, 10 Pet. 108. i. 576, 578. Hodge V. Bemis, 2 £»«; ifop. i\7'. (?. 470. ii. 168. «. Williams, 33 How. 87. ii. 319. Hodges, Trial of, HalVs Law Tracts, iii. ii. 183. Hodgson ». Bowerbank, 5 Oranch, 803. ii. 54. V. Millward, 3 Chant's Cases, 818. i. 318; ii. 36. Hogan «. Ross, 9 How. 603. ii. 256. ■ V. , 11 How. 294. ii. 360, 361. Hogg «. Emerson, 6 How. 437. i. 493, 517. 518, 530, 521. V. , 11 How. 587. i. 530. Holcombe v. McKusick, 30 How. 553. ii. 331. Holder Borden, The, 1 Sprague, 144. L 576. HoUen, The, 1 Mas. 481. ii. 384. Holliday v. Batson, 4 How. 645. ii, 363. 650 TABLE OF CASES. HoUingsworth v. Duane, Wall. C. Ct. 147; 4 Doll. 353. ii. 195, 196. Holmes v. Broughton, 10 Wend. 75. ii. 57. 11. Dodge, AU. Adm. 60. ii. 127. . V. Jennison, 14 Pet. 540. i. 473. Hone V. Henriques, 13 Wend. 240. i. 380. Hook v. Linton, 10 Pet. 107. ii. 348. Hooper ». The Sam Slick, 8 Law JRep. N. S. 163; sub mm. The Sam Slick, 1 Sprague, 389; reversed, 3 Curt. C. Ct. 480. i. 638. ■». Scheimer, 23 Mow. 335. i. 464. V. Tuckerman, 3 Sandf. 311. Hope V. The Dido, 3 Paine, 343. i. 578. Hopldns, Matter of, 3 Curt. C. Ct. 567. ii. 166. ». Lee, 6 Wheat. 109. ii. 147. Hoppett, The, v. United States, 7 Cranch, 389. ii. 84. Hotchkiss ». Greenwood, 4 McLean, 456. i. 501. ». , 11 Mow. 248 ; affirming 4 McLean, 456. i. 541. Houghton ». Westervelt, Seld. Notes M. 1, 33. i. 381. House V. The Lexington, 3 N. T. Leg. Obs. 4. i. 636. Houseman v. The North Carolina, 15 Pet. 40. i. 573, 594. Houston V. Moore, 3 Wheat. 433.' i. 335 ; ii. 233. Hovey v. Henry, 3 West. Law J. 153. i. 512,537. V. Stevens, 1 Woodb. & M. 290. i. 509, 512. 11. , 8 Woodh. & M. 17. i. 519, 530 ; ii. 155. Howard v. Cobb, 3 Day, 309. ii. 196. Howe, Matter of, 1 Paige, 135. i. 378. ». Abbott, 3 Story C. Ct. 190. i. 503, 530, 533. 1). Morton, 13 Law Pep. N. S. 70. i. 511, 533. ■». Underwood, 1 Msh. 160. i. 500. Howland v. The Lavinia, 1 Pet. Adm. 133. i. 605. V. Two hundred and ten bar- rels of Oil, 7 Law Rep. 377 ; sub nom. Two hundred and ten barrels of Oil, 1 aprague, 91. i. 589. Hoxie V. Carr, 1 8umn. 173. ii. 70. Hoyt V. Shelden, 1 Black, 518. i. 331. Hubbard ». Hoi-thern E. E. Co., 35 Vt. 715 ; 3 Blatchf. 84 ; 7 Law Pep. N. 8. 208. ii. 13, 38. Hudgins v. Kemp, 18 Mow. 530. ii 317, 253, 259, 264. Hudson, The, Oh. 396. ii. 150. Huff V. Hutchinson, 14 Moid. 586. i. 248 ; ii. 148. Hull of a new Ship, Daveis, 199. ii. 17. Humiston ». Stainthorp, 3 Wall. 106. iL 225. Humphrey, Mxp., 2 Blatchf. 328. ii. 115, 116. Humphries ». United States, Dec. 204. i. 193. Hunt «. Danforth, 3 Curt. C. Ct. 593. i. 405. V. Palao, 4 Mow. 589. i. 321, 327 — r- ». Pooke, 1 AU. U. 8. 556. ii 196. Hunter v. Town of Marlboro, 2 Woodb. & M. 168. ii. 155. Hurst, Exp., 1 Wash. O.- Ct. 186; 4 Doll. 387. ii. 31. ». McNeil, 1 Wash. C. Ct. 70. ii. 116. Hutchinson v. Coombs, Ware, 65. ii. 150. Hyslop V. Clarke, 14 Johns. 458. L 878, 380. lasigi V. Brown, 1 Cwrt. C. Ct. 401. ii 94, 95. Imlay v. Norwich & Worcester E. K. Co., 4 BlaUhf. 237. i. 516. Inbusch V. Farwell, 1 B^ach, 566. i. 250. Independence, The, 2 Ourt. O. Ct. 350 ; 3 Liv. Law Mag. 490 ; 8 Law Pep. N. 8. 151. i. 591. Inglee «. Coolidge, 2 Wheat. 363. i. 330. Inman v. Barnes, 3 Qall. 315. ii. 6. Inneraity «. Byrne, 5 Mow. 395. ii. 355. Insurance Co. ». Eitchie, 5 Wall. 541. i. 304, 569. Irresistible, The, 7 Wheat. 551. i. 633. Irvine ii. Lowry, 14 Pet. 393. ii. 11. V. Marshall, 30 Mow. 558. i 439. Irving V. McLean, 4 Blatchf. 52. ii 57. Isaac Newton, The, Ahl. Adm. 11. ii. 69, 74. Isabella, The, 1 Paine, 1. i. 570. Iselin V. Barney, 5 Blatchf. 185. i. 505. Island City, The, 1 Black, 131. i 585, 588, 589. Ives ». Merchants' Bank of Boston, 12 Mow. 159. ii. 145. TABLE OF CASES. 551 3. B. Lunt, The, 11 K T. Leg. Ols. 137. i. 631. Jackson ». Ashton, 8 Pet. 148. ii. 53, 67, 220. ■». Brownell, 3 Cai. 322. i. 378. - «. Cornell, 1 Sandf. Ch. 348. i. 378. V. Lamphire, 8 Pet. 380. i. 338. ■». The Magnolia, 30 Mow. 296. i. 350, 353. v. Smith, 1 Paine, 453. ii. 109. ». Twentyman, 2 Pe«. 186. ii. 54. Jackson Ins. Co. v. Stewart, 6 Am. Law Beg. JST. 3. 733. ii. 4. Jacobs V. Allen, 18 Barb. 549. i. 379. ■». Baker, 7 Wall 295. i. 515. Jacques ®. Collins, 2 Blatchf. 33. ii. Jacquett ». Hugunon, 2 McLean, 139. ii. 148. James T. Abbott, The, 3 8pr ague, 101. i. 587. James ®. Maine, 36 MunPs Mer. Mag. 826. i. 387. Jameson «. The Regulus, 1 Pet. Adm. 213. i. 598. Jansen «. The Heinrich, CrdMbe, 226. i. 598. Jasper ®. Porter, 3 McLean, 579. ii. 56, 118. Jecker v. Montgomery, 13 IIow. 498. i. 381, 291. Jeijkins ». Banning, 28 How. 455. ii. 230, 267. ■». Eldredge, 1 TFootZJ. eg Jf. 61. ii. 228. Jenks «. Lewis, 3 Mas. 503. i. 338 ; ii. 234, 335. Jennings «. Carson, 4 Cra/nch, 2. ii. 73, 265. V. The Perseverance, 3 Ball. 336. i. 316 ; ii. 267. Jessup V. Hulse, 21 N. Y. 168. i. 379. Jewett ». Cunard, 3 WoodJ). & M. 377. ii. 15. V. Woodward, 1 Edvy. 195. i. 880. John Gilpin, The, Blatchf. Pr. Cas. 661 ; reversing Id. 391. i. 549, 551, 553. — -, Olc. 77. i. 586, 590. John L. Dimmick, The, 9 Am. Lww Beg. 224. i. 610, 611. John Perkins, The, 11 Law Bep. N. S. 87 ; reversing 9 Id. 490. i. 577. John Ray, The, 3 Blatchf. 67. i. 681. John Shaw, The, 1 Ot. of 01. 330. i. John Taylor, The, Nnob. 341. i. 577. John Walls, Jr., The, 1 Sprague, 178; 3 Law Bep. JST. S. 24. i. 633. John Wurts, The, Olc. 462. i. 587. Johnson v. Chambers, 13 Lid. 103. ii. 57. ». The Coriolanus, Orabbe,. 239. i. 608. 11. The Lady WalterstoriT, 1 Pet. Adm. 215. i. 602. 11. Root, 3 Fish. 391. ii. 195, 197. 11. Tompkins, Baldw. 571. ii. 174. V. Twtenty-one Bales, &c., 3 Baine, 601 ; Van Ness, 5 ; 6 Am. Law J. 68 ; 3 WUel. Cr. Cas. 483. i. 348, 415, 549. v. United States, 3 McLean, 89. i. 483. Jollie ». Jaques, 1 Blatchf. 618 ; 9 N. T. Leg. Obs. 10. i. 395, 397. Jones V. Hays, 4 McLean, 521. ii. 5, 56. V. League, 18 How. 76. ii. 55. ■». McMasters, 20 Sow. 8. i. 463. ■». The Massasoit, 7 Law Bep. 522 ; sub nom. The Massasoit, 1 Sprague, 97. i. 604. — — ■ V. Vanzandt, 3 McLean, 611 ; 1 ' West. Law J. 56., ii.' 58. V. Van Zandt, 5 Bow. 215. i. 341 ; ii. 58, 272. Jonquille, The, 6 Wheat. 452. ii. 264. Jose Ferreira Dos Santos, Case of, 3 Broch Marsh. 498. i. 473. Josefa Segmida, the, 10 Wheat. 313. i. 627, 629. Joseph Gorham, Matter of The, 3 N. T. Leg. Obs. 388 ; 7 Law Bep. 135. i. 625. Josephine, The, Abb. Adm. 481. ii. 340. . , 3 Blatchf. 332. i. 579. Judson V. Cope, 1 Msh. 615. i. 511 j ii. 62. n. Gardner, 4 N. T. Leg. Oh. 424. i. 380. v. Moore,, 1 Msh. 544. i. 514. Julia Ann, The, 1 Sprague, 883; 11 Law Bep. N. S. 31. i. 684. Kail D. Wetmore, 6 Wall. 451. ii. 347. Kaine, Bxp., Z Blatchf. 1. i. 365, 464, 481 ; iL 307, 311. , Exp., 14 How. 103. i. 265, 479 ; ii. 203, 304. , Matter of, 10 JV! T. Leg. Obs. 257. i. 365, 301, 479, 483; ii. 303, 307. 552 TABLE OF CASES. Kanouse ®. Martin, 14 Mow. 23. i. 326. ■». , 15 How. 198. ii. 35. Keary v. Farmers & Merchants' Bank of Memphis, 16 Pet. 89. i. 258. Keely v. Garner, 13 Ind. 399. ii. 57. Keen v. The Gloucester, 2 Doll. 36. ii. 83. Keene v. Meade, 3 Pet. 1. ii- 117. ». United States, 5 Oranch, 304. i. 635. V. Wheatley, 9 Am. Law Peg. 83 ; 4 Phil. 157. i. 388, 389, 393, 393, 397, 400, 403, 511. Kellogg «. Slauson, 11 N'. T. (1 Kern.) 302. i. 381. Kellum V. Emerson, 3 Ourt. 0. Ot. 79. i. 631. Kelly «. Smith, 1 Blatchf. 390. ii. 140. Kelsey v. Forsyth, 21 Sow. 85. 1. 258 ; ii. 215, 217. Kendall «. United States, 13 Pet. 534. i. 185, 253, 276, 277. 11. Winsor, 21 How. 833. i. 536. Kennedy «. Georgia State Bank, 8 How. 586. i. 348 ; ii. 148, 220. Kenrick ®. United States, 1 Oall. 368. ii. 58. Kentucky v. Dennison, 34 How. 66. i. 184.309, 316. Keplinger «. De Young, 10 Wheat. 358. i. 529. Kerr ». Watts, 6 Wheat. 550. ii. 12. Ketchum «. Driggs, 6 McLean, 13. ii. 68. V. Farmers' Loan & Trust Co., 4 McLean, 1. ii. 68. Koteltas ii. "Wilson, 36 Barb. 298 ; 23 How. Pr. 59. i. 379. Ketland v. Bissett, 1 Wash. C. Ct. 144. ii. 116. V. The Cassius, 2 Ball. 365. i. 183, 626. Kilbourne v. State Savings Institution, 33 How. 508. ii. 267. King ». Tuscumbia R. R. Co., 7 Pa. Law J. 166. i. 251. King of Spain «. Oliver, 2 Wash. C. Ct. 439. i. 241 ; ii. 48. Kittle ». Merriam, 2 Curt. C. Ct. 475. i. 530. Kittredge v. Claremont Bank, 1 Woodh. & M. 244. ii. 93. Knapp V. Banks, 2 How. 78. i. 337. Eneass v. Schuylkill Bank, 4 Wash. C. Ct. 9. i. 503, 518, 518, 519; ii. 63. Knight V. Gavit, Mir. Pat.-Off. 133. i. 502, 530. Knox «. Devens, 5 Mas. 380. i. 561. «. The Ninetta, Crable, 534. i. 636. Kjaox «. Summers, 3 Cranoh, 496. ii 48. Kohne «. Insurance Co. of North Amer- ica, 1 Wash. 0. Ct. 158. i. 560. Konig «. Bayard, 3 Paine, 251. ii. 161. Kramme i>. The New England, Newb. 481. ii. 76. Kriesler v. Morton, 1 Curt. G. Ct. 413. i. 564. Ladd v. Tudor, 3 Woodh. & M. 325. ii. ii. 35. Lafayette Ins. Co. ■». French, 18 How. 404. ii. 53. Lagrange ». Chouteau, 4 Pet. 387. i. 338. Lang ». Holbrook, Orabbe, 179. i. 614. Langdon v. De Groot, 1 Paine, 303. i. 514, 531. Lannon v. Clark, 4 McLean, 18. i. 464. Lanning ®. London, 4 Wash. C. Ct. 332. i. 341 ; ii. 199. V. Dolph, 5 Wash. 0. Ct. 634. ii. 55. Lansing «. Woodworth, 1 Sand/. Ch. 43. i. 379. Lanusse ». Barker, 8 Wheat. 101. ii. 216. Larch, The, 3 Curt. O. Ct. 437. i. 631. Lathrop b. Stuart, 5 McLean, 167. ii. 134. Latta V. Shawk, 1 Fish. 465. i. 516. Lavalette v. United States, 1 Ct. of CI. {NoU S H) 149. i. 261. Lawler ». Walker, 14 How. 149. i. 333. Lawrence v. Allen, 7 How. 785. i. 557. V. Bowman, McAU. 419. i. 258. ■ V. Caswell, 13 How. 488. i. 560, 564. Lea V. The Alexander, 2 Paine, 466. i. 572, 578, 579. B. American Atlantic, &c. Canal Co., 3 Abb. Pr. m S. 1. ii. 57. V. Kelly, 15 Pet. 318. ii. 327. Leavitt v. Cowles, 2 McLean. 491. ii. 53. Lee V. Watson, 1 Wall 337. i. 336. Leger v. Bonaffe, 3 Barb. 475. i. 378. Leitch V. Hollister, 4 N. T. (4 Comst.) 311. i. 379, 380. Lennig v. Maxwell, 3 Blatchf. 125. i. 557. Lenox v. Winisimmet Co., 1 Sprague, 160; 1 Lam Rep. N. 8. 180. L 387. TABLE OP CASES. 553 Lentill-fifa «. Moffat, 1 Edw. Oli. 451. i. 380. Leonidas, The, Ole. 12. i. 636. Le Rov V. Orowninshield, 3 Mas. 151. ii. 5. 1). Tatliam, 14 How. 156. i. 503, 513. V. , 23 Row. 183. i. 280, 530. Lessieur v. Price, 13 How. 59. i. 326. Le Tigrc, Case of, 8 Wash. G. Ct. 567. i. 579. Levy ». Fitzpatrick, 15 Pet. 167. i. 248. ■». McCartee, 6 Pet. 102. i. 196. Lewis B. The Elizabeth, Ware, 41. i. 604. Life & Fire Lis. Co. v. Adams, 9 Pet. 573. ii. 221. «. Wilson, 8 Pet. 391. i. 388 ; ii. 193, 332. Lilla, The, 2 Sprague, 177 ; 15 Lam Sep. W. S. 81. i. 550. LUlie V. Redfield, 4 Blatchf. 41. i. 564. Line Alio. Tower, 2 McLean, 473. ii. 148. Lindsey v. Miller, 6 Pet. 666. ii. 7. Liaton ». Stanton, 12 How. 433. i. 337. Litchfield v. White, 7 If. T. (3 Sdd.) 438. i. 379. Liter ». Green, 3 Wheat. 306. ii. 330. Little Ann, The, 1 Paine, 40. i. 635. Little V. Gould, 2 Blatchf. 165. i. 394. T. , 2 BUtehf. 363. i. 394. V. HaU, 18 How. 165. i. 888, 394. Liverpool Hero, The, 2 Qall. 184. i. 556. Livingston ». Story, 11 Pef. 351. ii. 55. ■». Van Ingen, 1 Paine, 45 ; 4 fibZZ's 4ot. Zflsio ^ 56. i. 341. Locke «. United States, 7 Oranch, 339. ii. 83, 85, 136. Logan ®. Patrick, 5 Cranch, 388. i. 248. Logs of Mahogany, 3 Siimn. 589. i. 325. Lombard «. Bayard, 1 WaK. Jr. C. Ct. 196. ii. 148, 149. Lonsdale «. Brown, 4 TFasA. C. C*. 148. ii. 195. Lord V. Veazie, 8 How. 351. ii. 316, 347. Loring «. Downer, i!fflJ.ZZ. 360. i. 463. Lorman r. Clarke, 3 McLean, 568. i 233, 464. Lowell «. Lewis, 1 Mas. 183. i. 503, 506, 513, 515, 531. Lucas V .The Thomas Swann, 6 McLean, 383; 1 Newb. 158; 3 Am. Law Beg. 659. i. 387. Luther ». Borden, 7 fioM. 1. i. 339 ; ii. 273. V. The Meritt Hunt, 1 Newb. 4. ii. 117. Lyell ». Goodwin , 4 McLean, 29. ii. 81. ®. Lapeer Coimty, 6 McLean, 446. i. 217; ii.l22. Lyman ii. Brown, 3 Curt. C. Ct. 559. ii. 60. Lyons v. Platner, 11 N. T. Leg. Obi. 87. i. 881. Lytle ®. Arkansas, 33 How. 193. i. 338 ; ii. 318. M. Maas V. Goodman, 2 Hilt. 375. i. 878. McBride v. Hoey, 11 Pet. 167. i. 338. McCargo v. Chapman, 30 How. 555. McClane v. Boon, 6 Wall. 244. ii. 248, 357. McClelland v. Eemsen, 36 Ba/rb. 632 ; 14 Abb. Pr. 331 ; 33 How. Pr. 175. i. 380. McClung V. Silliman, 6 Wheat. 598. i. 223, 339 ; ii. 331. McCluny «. Silliman, 3 Pet. 370. ii. 5. McClurg V. Engsland, 1 How. 303 ; 17 Pet. 228. i. 486, 487, 518, 538. McCoUum V. Eager, 3 How. 61. i. 338, 463 ; ii. 337. McCormick v. Ives, Abb. Adm. 418. i. 853. 11. Manny, 6 McLean, 539 ; 4 Am. Law Reg. 377. i. 515, 533. V. Seymour, 3 Blatchf ^0. i. 500, 515. «. , 8 Blatchf. 309 ; affirmed 19 How. 96. i. 514. V. SuUivant, 10 Wheat. 192. i. 348 ; ii. 148. ». Talcott, 20 How. 402. i. 582, 534. McCoul ». Lekamp, 3 Wheat. 111. ii. 70. McCracken «. Hayward, 3 How. 608. i. 357. McDermott v. The S. G. Owens, 1 Wall. Jr. C. Ct. 370. ii. 155. McDonough ®. Millaudon, 8 How. 693. ii. 256. McElmoyle ». Cohen, 13 Pet. 313. iL 5. McFarlandi). Gwin, 3 How. 717. ii 163. McFaul V. Ramsey, 30 How. 533. \ 464 ; u. 230. 554 TABLE OF CASES. Carlton, Abb. Adm. 570. McGinnis ii. 335. ». The Grand Turk, 4 West. Law Month. 80. i. 608, 634 ». The Pontiac, 1 Newb. 130 ; 5 McLean, 359. i. 352, 577, 589. Mclver v. Bagan, 3 Wheat. 35. ii. 6. Maoker ii. Thomas, 7 Wheat. 530. ii. 349. Mackie v. Cairns, 5 Gow. 547. i. 380. McKim 13. Voorhies, 7 Cranch, 379. i. 333 ;ii. 166. McKinlay ». Morriah, 31 Sow. 343. ii. 76. McKinney ». Carrol, 13 Pet. 66. ii. 248. McLanahan j'. Universal Ins. Co., 1 Pet. 170. ii. 199. McLean «. Bank of Lafayette, 3 McLean, 185 ; 1 West. Law J. 15. i. 358. McLelland' v. United States, 1 Gall. 237. ii. 234. McLeod V. Duncan, 5 McLean, 343. ii. 44. McMenomv v. Ferrers, 3 Johns. 71. i. 378. «. Roosevelt, 3 Johns. Ch. 446. i. 378. McMicken i). Peria, 18 Bow. 507. ii. 339. 11. , 20 How. 133. ii. 334. 11. "Webb, 11 Pet. 25. ii. 18. McMillan D. McNeill, 4 What. 209. i. 358. McNeil D. Holbrook, 13 Pet. 84. i. 335 ; ii. 56, 367. McNulty V. Batty, 10 How. 73. i. 380, 316; ii. 317. Macomber v. Clarke, 3 Cranch C. Ct. 347. ii. 94. 1). Thonjpson, 1 Sumn. 384. i. 614 ; ii. 80. Macy V. De Wolf, 3 Woodb. & M. 193. i. 634; ii. 196,198. Magic Euffle Co. ■». Douglas, 3 Fish. 330. i. 501. Magniac «. Thompson, 15 How. 381. ii. 169. Magruder o. United States, Deo. 21. i. 357. Maguire «. Card, 31 How. 348. i. 354. V. Commonwealth, 38 Wall. 383. i. 327. Maillard ». Lawrence, 1 BJatchf. 504 ; %Law Rep. JST. 8. 354; affirmed 16 How. 351. i. 558. Majestic, The, 13 W. T. Leg. Obs. 100. i. 637. Major Barbour, The, BJMchf. Pr. Cos. 167. i. 552. Mallett «. Dexter, 1 Curt. C. Ct. 178 i 335 Mallow V. Hinde, 13 Wlieat. 193. iL 13. MandeviUe ii. Riddle, 1 Crarich, 390. ii. 17. V. Eiggs, 3 Pet. 483. ii. 15. V. Wilson, 5 Oranch, 15. ii. 230. Maney ». Porter, 4 How. 55. i. 833. Mankin v. Chandler, 3 Brock. Mairsh. 135. ii. 105. Mann ®. Whitbeck, 17 Barb. 388. i. 379. Manro v. Almeida, 10 Wheat. 473. ii. 51, 73, 104. Many ». Jagger, 1 Blatchf. 372. L 507,513, 315, 538; ii. 63. V. Sizer, 1 Msh. 17. i. 514. Marbury v. Madison, 1 Cranch, 137. i. 9, 316, 317. Margaret, The, 9 '^VTieat. 421. ii. 75. Maria, The, Blatchf. & H. 331. i. 603. Marianna Flora, The, 11 Wheat. 1 ; affirming 3 Mas. 116. i. 548; ii. 237. Marine Bank v. Fulton Bank, 2 Wall. 252. ii. 239. Marine Ins. Co. of Alexandria v. Hodg- son, 6 Cranch, 306. ii. 330. ». Young, 5 Cranch, 187. ii, 230. Marine & Fire Ins. Bank of Georgia «. Jauncey, 1 Barb. 486. i. 378. Mariners v. The Kensington, 1 Pet Adm. 339. i. 615. Marriott v. Brune, 9 How. 619. i. 560, 564. Mars, The, 1 Oall. 193. i. 633. Marsh, Matter of, 6 Law Bep. 67. ii. 194. Marshall v. Bazin, 7 N. T. Leg. Obs. 343. i. 638. V. Redfleld, 4 Blatchf. 331. 1. 556. -i -v. Stratton Audley, M8. i. 581. Martha, The, Blatchf. & H. 151. i 606 ; ii. 74, 155. Martha Anne, The, Olc. 18. i. 415. Martin, Matter of, 5 Blatchf. 303. L 366, 483. , Matter of, 3 Paine, 348. ii. 140. V. Hunter, 1 W/ieat. 304. i. 325, 328, 334; ii. 358, 571. V. Kanouse, 1 Blatchf. 149. ii 44. V. Walker, Abb. Adm. 679. ii, 76. Mary, The, 1 Gall. 206. i. 559. , 2 Paim, 180. i. 634. TABLE OF CASES. 565 Alary, The, Ware, 454 ; 1 Law Hep. ST. i. 610. Mary Ann, The, Aii. Adm. 370. i. 614. , 8 Wheat. 380. ii. 84, 85. Mary Clinton, The, Blatchf. Pr. Cas. 556. i. 550. Mary Jane, The, Blatchf. & H. 390. ii. 82. Mary Paulina, The, 1 Sprague, 45. i. 610. Mason ®. The Blaireau, 3 Oranch, 340. i. 856, 580, 588, 589, 615. Mason v. Cane, 34 Hwiffs Mer. ^lag. 717. i. 564. v. Haile, 13 Wheat. 370. ii. 166. Massachusetts v. Rhode Island, 13 Pet. 755. ii. 50. Massasoit, The, 1 Sprague, 97 ; sub nom. Jones v. The Massasoit, 7 Law Sep. 533. i. 604. Massie v. Watts, 6 Granch, 148. i. 351. Massingill c. Downs, 7 How. 760. ii. 149. Matem v. Gibbs, 1 Sprague, 158. i. 603. Matheson v. Branch Bank of Mobile, 7 How. 360. i. 831. ■». Grant, 3 How. 363. ii. 330. Matthews ■». Lyall, 6 McLean, 13. ii. 44. «. Offley, 3 Sumn. 115, ii. 10. 4). Skates, 1 Fish. 603. i. 500. V. Zane, 7 Wheat. 164. i. 834. Maxwell «. Griswold, 10 How. 343. i. 566. a. Newbold, 18 How. 511. i. 330. Mayberry v. Thompson, 5 How. 131. ii. 323. May V. Carbery, 3 Cranch C. Ct. 336. ii 94. Mayer ». Toulkrod, 4 Wash. G. Ct. 349. i. 464, 466. Mayshew v. Terry, 1 Sprague, 584. i. 602, 609. Meacham ». Steams, 9 Paige, 398. i. 381. Mead «. Phillips, 1 Bandf. Ch. 83. i. 378. Mechanics' Bank of Alexandria v. Lynn, 1 Pet. 376. ii. 93. . V. Seton, 1 Pet. 399. ii. 13, 13 ; ii. 119. Medberry i). Ohio, 34 How. 413. i. 338, 333. Meeker v. Wilson^ 1 Gall. 419. ii. 198. Melius V. Silsbee, 4 Mas. 108. i. 536, 537. Menard ». Aspasia, 5 Pet. 505. i. 339. Mentor, The, 4 Jfas. 84. i. 614. Meredith «. United States, 13 Pet. 486. i. 556, 560. Mermo, The, 9 Wheat. 391. i. 635 ; ii. 48, 84. Meniam ». Hass, 8 Wall. 687. Merrill «. Dawson, Hempst. 563. ii. 56, 117. Merrimac, The, 1 Ben. 301. i. 577. , Blatchf. Pr. Gas. 584. i. 546. Mesnero. Suffolk Bank, \Law Sy>. 349. i. 575, 577, 579, 594. Metropolitan Washing Machine, &c. Co. V. Earle, 3 i^A. 303. i. 535. Metzger, Matter of, 5 How. 176. i.' 473, 479, 483 ; ii. 307. Mewster v. Spaulding, 6 McLean, 34. ii. 56, 133. Mezes v. Greer, McAll. 401. i. 463; ii. 10. . Michaelson v. Denison, 3 Bay, 294. ii. 54. Miles i>. Caldwell, 2 Wall. 35. i. 234. Miller v. Kelly, Ahi. Adm. 564. i. 576. V. Nicholls, 4 Wheat. 311. i. 330. 331. Millett ®. Snowden, 1 West. La.w J. 240. i. 402. Milligan, M^., 4 Wall. 3. i. 482. Millingar v. Hartupee, 6 Wall. 258. L 329. Mills «. Argall, 6 Paige, 577. i. 379. V. Brown, 16 Pet. 535. i. 183, 331, 333 ; ii. 315. 11. Levy, 3 JSdw. 183. i. 880. Miners' Bank v. United States, 5 How. 313. ii. 333. Minnesota v. Bachelder, 1 Wall. 109. i. 331. Minor i>. Tillotson, 1 How. 387; 17 P«f..243. ii. 364. V. , 3 Hoio. 393. Minter v. Crommelin, 18 How. 87. ii. 133. , Mississippi v. Johnson, 4 Wall. 475, 500. i. 188. Missouri's Cargo, 1 Sprague, 360; 8 Law Hep. If. S. 88. i. 589. Mitchel «. United States, 13 Pet. 488. ii. 268. Mitchell V. Bunch, 2 Paige, 606. i. 334. V. Harmony, 13 How. 115. ii 367. Moan «. Wilmarth, 3 Woodb. & M. 399. ii. 166. Moffitt v. Garr, 1 BlacTc, 378. i. 497. Moke V. Barney, 5 Blatchf. 374. i. 564. Mollan ». Torrance, 9 Whmt. 537. ii. 19, 53. 556 TABLE OF CASES. Monroe v. Douglas, 5 iVi F. 147 ; af- firming 3 Sandf. Oh. 136. ii. 57. Montalet v. MuiTay, 4 Cranch, 46. ii. 54, 267. . Monteitlm. Kirkpatrick, 3 Blatchf. 279. i. 636. Montford v. Hunt, 8 Wash. C. Ct. 38. ii. 148. Montgomery v. Anderson, 21 Sow. 886. ii. 219, 228, 339. , Tlie, V. The Betsey, 1 Qall. 416. 11338. V. Hernandez, 13 Wheat. 139. i. 337, 333. V. The T. P. Leathers, Mwi. 421. i. 574, 575, 576, 577, 587, 589, 590. Moodie v. The Harriet, 5«e's Adm. 138. i. 595. Moody ». Fiske, 2 Mas. 112. i. 512, 532, 534. Moore v. Dunlop, 1 Cranch 0. Ct. 180. ii. 243. n. The Fashion, Newb. 49 ; «mJ mm,. The Fashion, 8 Law Sep. JT. S. 50 ; snii nom. Moore «. Newbury, 6 McLean, i72. i. 633, 634. v. Illinois, 14 Mow. 13. i. 430. V. Nelson, 3 McLean, 388. ii. 117. s. Newbury, 6 McLean, 472 ; sub nom. The Fashion, 8 Lmw Hep. If. 8. 50 ; sui nom. Moore «. The Fashion, Jfewh. 49. i. 683, 634. Mordecai v. Lindsay, 19 Sow. 199. ii. 315. Morewood ■», Enequist, 33 Soio. 491. i. 635, 636. Morning Light, The, 3 Wall 550. i. 885. Morris v. Huntington, 1 Paine, 348. i. 536. Morrison v. Bennet, 1 McLean, 330. i ii. 12. Morton i>. New York Eye Infirmary, 5 Blatchf. 116 ; 2 Am. Law Beg. M 8. 673 ; 2 Msh. 33p. i. 505. Mosell ». Hall, 13 How. 312. ii. 230. Moses Taylor, The, 4 Wall. 411. i. 353, 632, 638. Moslem, The, Olc. 874. ii. 155. Moss V. Riddle, 5 Cranch, 351. ii. 280. Mossman ». Higginson, 4 Ball. 12. ii. 320. Motte V. Bennett, 2 Fish. 642. ii. 91. Mountz V. Hodgson, 4 Cranch, 324. ii. 323 Moxey, The, Abb. Adm. 73. i. 385, 386. Mulhouse, The, 13 Law Sep. N. 8. 276. i. 574, 579, 588. Murphy v. Bell, 8 Bow. Pr. 468. 1. 381. Murray v. The Charming Betsy, 2 Cramch, 64. i. 574, 596. V. Hoboken Land & Improvement Co., 18 How. 373. i. 198. ». Lazarus, 1 Paine, 572. i. 634. ®. Riggs, 15 Johns. 571. i. 378, 380. Mussina b. Oavazos, 20 How. 280. ii. 239, 249, 259. N. Nail V. The Illinois, 6 McLean, 418. ii'. 238. Nancy, The. 1 Gall. 67. ii. 84. Napoleon, The, Blatchf. Pr. Cas. 357. i. 551. , Olc. 208. i. 137. Narrangansett, The, 1 Blatchf. 311. L 589; ii. 237. Nations ». Johnson, 24 Sow. 195. ii. 319. Natterstrom e. The Hazard, Bee^sAdm, 441 ; 2 Am. Law J. 859. i. 609. Nautilus, The, Ware, 2 ed. 529. L 386. Navarro, The, Olc. 127. ii. 74. Nayade, The, 1 Mwb. 366. i. 551, 553. Neilson v. Lagow, 13 How. 98. i. 333. Nelson v. Carman, 5 Blatchf. 511. i. 569. 1). Cutter, 3 McLean, 336 ; 1 West. Law J. 357. i. 483. 1). Leland, 32 How. 48. i. 850 ; ii. 268. Nereide, The, 1 WJieat. 171. i. 559. Nesmith v. Calvert, 1 Woodb. & M. 34. i. 848 ; ii. 67, 68. «. Sheldon, 6 How. 41. i. 339 ; ii. 272. Nestor, The, 1 8umn. 73. i. 633. Neves v. Scott, 13 How. 268. i.464. New England, The, 8 Sumn. 495 ; 3 Law Hep. 71. u. 238, 238, 289. New England Screw Co. ». Bliven, 3 BUtchf. 240. ii. 104. New Jersey «. New York, 3 Pet. 461. ii. 50. v. , 5 Pet. 388. ii. 50. New Jersey Steam Nav. Co. «. Mer- chants' Bank, 6 How. 344. i. 391, 850, 636. New World, The, v. King, 16 Sow, 469. ii. 135. New York Coast Wrecking Co. »-. The Morning Star, M8. i. 580, 583. TABLE OF CASES. 551 New York Submarine Wrecking Co. «. The J. F. Farlan, MS. i. 581, 583. ( TTew York & Erie R. R. Co.b. Shepard, 5 McLean, 455. ii. 53. Newell V. Nixon, 4 Wall 572. ii. 339. Nichols V. McEwen, 31 • Barb. 65. i. 381. V. , 17 N. T. 33. i. 379. «. United States, 7 Wall. 133. i. 568. Nicholson v Leavitt, 3 Seld. 510 ; 6 Id.^n. i. 381. Nicoll 11. Mumford, 4 Johns. Ch. 533. i. 878. NicoUs «. Rodgers, 3 Paine, 437. ii. 5. Niphon's Crew, The, 3 Law Bep. N. S. 266. i. 608. Nones v. Edsall, 1 Wall. Jr. 0. Ct. 189. ii. 31. Noonan v. Lee, 2 Blach, 499. i. 233, 464. Norcross «. Greely, 1 Curt. 0. Ct. 114; 5 Law Sep. iV. 8. 149. i. 564. Norris' Case, 3 Banhr. Beg. 514. ii. 344. North America, The, 3 N. T. Leg. Obs. 67. i. 386. Northampton Insurgents' Case, Wha/rt. St. Tr. 458. i. 410 ; ii. 195. Northern Indiana R. R. Co. v. Michi- gan Central R. R. Co., 15 Mow. 233. ii. 13. ■». , 5 McLean, 444. ii. 13. Norton «. Rich, 3 Mas. 448. " ii. 338. O. Ocean Ins. Co. v. PoUeys, 18 Pet. 157. i. 331, 333. Odiorne ». Winkley, 3 Gall. 51. i. 515, 538, 530. Ogden V. Blackledge, 3 CrancJi, 373. ii. 4. «. Maxwell, 3 Blatchf. 319. i. 565, 570, 571. V. Peters. 31 N. T. 28. i. 379. V. Saunders, 13 Wheat. 213. i. 358. Ogilvie V. Knox Ins. Co., 3 Black, 539. ii. 226. V. , 18 How. 577. i. 340. Ogle V. Lee, 2 Cranch, 33. i. 339 ; ii. 374. Ohio & Mississippi R. R. Co. ». Wheeler, 1 Blaoh, 296. i. 314. Olcott V. Hawkins, 2 Am. Law J. N. S. 321. i. 530, 533. Olive Chamberlain, The, 1 Svrague, 9 i. 614. Oliver Jordan, The, 2 Curt. 0. Ct. 414. i. 229. Oliver v. Alexander, 6 Pet. 143. i. 601 ; ii. 286. Oliver Lee & Co.'s Bank v. Talcott, 19 N. T. 146. i. 880. Olmstead n. Herrick, 1 E. D. Smith, 810. i. 379. Olney «. Arnold, 3 Ball. 808. i. 826. One hundred and ninety-four Shawls, All. AdriL^VH ; OiV. T.Leg. Ols. 368. 'i. 356. One thousand nine hundred and sixty bags of Coffee, 8 Cranch, 398. i. 633. O'Neale v. Long, 4 Cranch, 60. ii. 359. Orchard v. Hughes, 1 Wall. 78. ii. 224, 260. Oregon, The, v. Rocca, 18 Sow. 570. ii. 228. O'Reilly v. Morse, 15 Edw. 63. i. 496, 497,498, 500, 503, 511, 515, 518, 584. Orleans, The, D., Phcebus, 11 Pet. 175. i. 280, 681, 633. Orne «. Townsend, 4 Mas. 541. i. 613, 614 ; ii. 74, 80, 137. Osborn v. Bank of United States, 9 Wheat.'73S. i. 187, 200, 201, 305, 316 ; ii. 47. Osborne ». Moss, 7 Johns. 161. i. 379. Owings ». Hull, 9 Pet. 707. ii. 66. i>. Kincannon, 7 Pet. 395. ii. 249. ■». Norwood, 5 Cranch, 344. i. 199. V. Tieman, 10 Pet. 24. ii. 263. Pacific, The, 1 Blatchf. 569. i. 638. Packard v. The Louisa, 2 Woodl. & M, 48; 9 Law Bep. 441. i. 634. Packer v. Nixon, 10 Pet. 408. i. 340 ; ii. 272. Page V. Ferry, 1 Fish. 298. i. 492. 13. Hubbard; 1 Sprague, 335. i. 634. -V. Sheffield, 2 Curt. C. Ct. 377; affirming 1 Sprague, 285 ; 8 Law Bep. N. S. 99. i. 603. Palmer ii. Allen, 7 Cranch, 550. i. 464. v. Fiske, 3 CuH. C. Ct. 14. ii. 197, 198. V. Priest, 1 Sprague, 513. i. 634. Palmyra, The, 10 Wheat. 503. ii. 338. , 12 Whmt. 1. i. 620; ii. 84, 8.'5 Paragon, The, Ware, 322. i. 636. Parish V. Ellis, 16 Pet. 451. i. 195. 558 TABLE OF CASES. Park «. Little, 3 Wash 0. Ct. 196. i. 521, 533. Parker ». The Calliope, 3 Pet. Adm. 373. i. 615. V. Haworth, 4 McLean, 370. i. 530, 533, 533 ; ii. 58, 59, 63. V. Hotchkiss, 1 Wall. Jr. C. Ct. 369. ii. 39. V. Hulme, 7 West. Law J. 417 ; 1 Msh. 44, i. 403, 503, 506, 509, 531, 538. V. Stiles, 5 McLean, 44 ; 7 West. Law J. 168. i. 493, 509, 511, 517, 518,531,530, 533; ii. 131. !). The Whitaker, 8 Law Sep. JV. 8. 497; The Whitaker, 1 Bprague, 383. i. 587, 591. . V. Winnipiseogee Lake Cotton & Woolen Co., 3 Blaci, 545. i. 465. Parkhui'st «. Kinsman, 1 Blatohf. 488 ; 8 N. T. Leg. Ois. 146. i. 507, 533, 536. V. , 2 BlatcTif. 73 ; 8 i\r. T. Leg. Oils. 73. ii. 71. Parmlee v. The Charles Mears, Mwb. 197. ii. 74. Parsons v. Armor, 8 Pet. 413. ii. 254. V. Bedford, 3 Pet. 433. i. 195 ; ii. 139. «. Hunter, 3 Sumn. 419. ii. 84. - — 11. Lyman, 33 Conn. 566. i. 331. Patapsco Ins. Co. v. Southgate, 5 Pet. 604. ii. 115, 117, 118, 136. Patchin v. The A. D. Patchin, 3 Law Sep. N. 8. 31. ii. 31. Patriot, The, 1 Brock. Marsh. 407. i. 559. Patterson v. Gaines, 6 How. 550. ii. 5. v. United States, 3 Wheat. 331. ii. 48. V. Winn, 5 Pet. 333. ii. 56. Paul Boggs, The, 1 8prague, 369. i. 634. Payne v. Mills, 30 How. 219. ii. 347. Peale v. Phipps, 14 How. 368. i. 228. Pease v. Peck, 18 How. 595. i. 339. Peck V. Jenness, 7 How. 613. i. 338. Peisch i>. Ware, 4 Granch, 347. i. 558, 633, 633. Penhallow v. Doane, 3 Doll. 54. ii. 318. Penn ». Klyne, Pet. C. Ct. 446. ii. 165. Pennington v. Gibson, 16 How. 65. ii. 56. Pennock «. Dialogue, 3 Pet. 1 ; affirm- ing 4 Wash. C. Ct. 638. i. 487, 501, 513, 536. Penno v. Klyne, Pet. 0. Ct. 497, note. i.464. Pennsylvania «. Wheeling Bridge, 13 HotD. 518. i. 210, 465, People's Flurry Co. v. Beers, 30 How. 393. i. 631. Pepper v. Dunlap, 5 How. 51. i. 335 ii. 335. Perkins v. Pourniquet, 6 How. 306. ii, 335, 339. 1). , 14 How. 338. ii. 367. V. Hart, 11 Wlieat. 337. ii. 273. Permoli v. First Municipality, 3 ifota 589. L 339. Perots V. United States, Pet. C. Ot. 256. i. 560. Perry -». Langlsy, 1 Am. Law Times, 34 ; 1 Banhr. Beg. 155 ; 7 Am. Lait Beg. N. 8. 429. i. 383. Peterhoff, The, 5 Wall. 28. i. 553. Peterson t>. Wooden, 3 McLean, 348. ii. 59. Pettibone ». Derringer, 4 Wash. -C. Ct. 215. i. 516; ii. 115, 117, 130. Pettingill v. Dinsmore, Davies, 208; 3iV. r. Leg. Obs. 119; 6 Law Bep. 255. ii. 73, 74, 76. Peyroux e. Howard, 7 Pet. 834. i. 855, 638. Phebe, The, Ware, 363. i. 636. Phelps ». Brown, 1 Msh. 479. i. 509. «. Comstock, 4 McLean, 353. i. 535 ; ii. 59. Philadelphia, The, OU. 316. i. 613, 618. Philadelphia & Trenton E. R. Co. ■», Stimson, 14 Pet. 448. i. 496 ; ii. 58, 63, 133, 124, 131, 143. Phillips t. Combstock, 4 McLean, 535. ii. 62. V. McCall, 4 Wash. C. Ct. 141. i. 577. ' «. Page, 24 How. 164. i. 515, 520 ; ii. 62. ». Preston, 11 How. 394. ii. 348. V. The Thomas Scattergood, Qilp. 1. i. 599. 1]. United States, 33 Hunt's Mer. Mag. 456. i. 587. Phinney v. Phinney, 17 How. Pr. 197. ii. 57. Piatt ». Oliver, 2 McLean, 267. ii. 12. 15. Picquet v. Swan, 5 Mas. 35. ii. 54, 98 99. Piehl v. Balchen, Ole. 24. ii. 127. Pierce ». West, 3 Wash. C. Ct. 354. ii. 110. Pierpont ». Fowle, 3 WoodJ). & M. 23. i. 399, 465 ; ii. 91. Pierson i>. Eagle Screw Co., 3 Story C Ct. 403. i. 537, 538, 539. TABLE OF CASES. 559 Piquignot v. Pennsylvania R. R. Co., 16 Jfow. 104. ii. 53. Pitman v. Hooper, 3 8umn. 50. i. 607. Pitts «. Hall, 3 Blatchf. 339. i. 500, 536, 537, 538. V. , 3 BUtchf. 301. i. 536, 539. V. Wemple, 3 Fish, 10. i. 514. V. -, 6 McLean, 558. i. 514, 533, 533. • ®. Whitman, 3 Story G. Gt. 609. i. 513, 517 ; ii. 59. Planck V. Schermerhom, 3 Barb. Gh. 644. i. 379. Ploughboy, The, 1 Gall. 41. i. 633. Pollard «. Dwight. 4 Granch, 431. i. 348 ; ii. 48. Polly & Nancy, The, 1 Am. Law J. 483. i. 633. Pomeroy v. Manin, 3 Paine, 476. i. 463 ; ii. 35. ». New York & N. H. R. R. Co., 4 BUtchf. 131. ii. 38. ■». State Bank of Indiana, 1 Wall. 593. ii. 355. Ponsot ®. Maxwell, 4 Blatchf. 43. L 564. Pool 0. Welsh, Gilp. 193. i. 613. Poppenhusen ». Palke, 3 Fish, 181. i. 538. '0. New York Gutta Percha Comb Co., 3 Fish. 63. i. 539. Porter ■». Foley, 34 Hcuo. 415. i. 338, 333. ». United States, 3 Paine, 313. i. 361, 385 ; ii. 337. ■». Williams, 5 SeW. 143 ; 13 Bow. Pr. 107. i. 381. Post ». Jones, 19 How. 150. i. 590. Postmaster-General v. Early, 13 Wheat. 186. i. 304. Potomac, The, 3 Black, 581. ii. 339, 333. Potter ». Holland, 1 Fish. 337; 4 BZatcV- 306. i. 495, 523. Poultney ». City of Lafayette, 13 Pet. 473. ii. 36. Poydras ®. Treasurer of Louisiana, 18 How. 193. i. 330. Pratt «. Fitzhugh, 1 Blaik, 271. i. 335. Prentice v. Zane, 8 How. 470. ii. 229._ Preston v. Bracken, 10 How. 81. i. 380. Prevost ». Gratz, Pet. 0. Gt. 364. ii. 198. Price V. Morris, 5 McLean, 4. ii. 118. Price Current s. Stone, 1 Law Int. & Bea. 69. i. 894. Prince V. United States, 3 Gall. 304. i. 560. Princeton, Be, 1 Am. Law Times, 135. i. 383. Prouty ». Ruggles, 16 Pet. 336 ; affirm- ing 1 8tory 0. Gt. 568. i. 533, 533. PuUiam ». Christian, 6 How. 309. ii. 336. «. Osborne, 17 How. 471. i. 338, 339 ; ii. 165. Pulte 11. Derby, 5 McLean, 338. i. 389, 400. Q. Quantity of Iron, A, 14 Law Bep. N. 8. ■ 546. i. 586. E. Rachel, The, v. United States, 6 Oranch, 329. i. 633 ; ii. 333, 265. Raft of Spars, A, Abb. Adm. 485. i. 573. Railroad Co. v. Lindsay, 4 Wall. 650. ii. 229. V. Rocji, 4 Wall. 177. i. 333; ii. 371. v. Souttee, 3 Wall. 440. ii. 334, 268. Rainer v. Haynes, Hempat. 689. ii, 117. Randall, Exp., 16 Pittsb. Leg. J. 814. i. 383. Randolph v. Barbour, 6 Wheat. 452. ii. 364. V. Donaldson, 9 Craneh, 76. ii 169. Rankin v. Florida, &c. R. R. Co., 1 Banhr. Beg. 196. i.. 383. V. Hoyt, 4 How. 337. ii. 134. Ransom «. Mayor of New York, 1 Fish. 252. i. 493. Rathbone «. Orr, 5 McLean, 131. i. 523. Rays. Law, 3 Gi'anch,V7^. i. 316; ii. 217, 334. Raymond v. The Ellen Stewart, 5 Mo- Lean, 369. i. 353, 634. Rebecca, The, Ware, 188. i. 036. Reddall v. Bryan, 24 How. 430. i. 335, 329, ^838 ; ii. 318. Reed v. Carusi, 8 Law Bep. 410. i. 396. i). Clarke, 3 McLean, 480. ii. 5. ». Cutter, 1 Story G. Gt. 590. L ■ 499, 503, 506, 507, 510. ■». Hussey, Blatchf. & H. 525. ii. 104. 560 TABLE OF CASES. Eeed v. Marsh, 13 Pet. 153. i. 333 ; ii. 355. «. Robinson, 4 Lciw Bep. 343. i. 506, 507. V. Sands. 37 Barb. 185. i. 378. Reeside v. United States, Dev. 99. ii. 9. Reeyes v. The Constitution, Oilp. 579. i. 386. Eeilly v. Lamar, 3 Cramch, 344. ii. 358. Reimer v. Schell, 4 Blatchf. 338. i. 565. Resler v. Shehee, 1 Cranch, 110. ii. 330. Reutgen v. Kanowrs, 1 Wash. 0. Gt. 168. i. 533, 538, 533, 534. Rheimer v. Maxwell, 3 Blatchf. 134. i. 557. Rhoades v. Selin, 4 Wash. 0. Ct. 715. ii. 115, 117. Rliode Island v. Massachusetts, 13 Pet. 657. i. 183, 186, 309, 316. V. , 14 Pet. 310. i. 464. Rice V. Minnesota & Northwestern R. R. Co., 21 How. 83. ii. 365. Rich «. Lambert, 13 How. 347. ii. 349. ». Lippincott, 3 Fish.'l. i. 500. • «. , 36 Jour. Fr. Inst. 3 8. 13. i. 537. Richardson ». Golden, 3 Wash. O. Ct. 109. ii. 117. Riggs ». The John Richards, Newi. 73. i. 637. ». Johnson County, 6 Wall. 166. i. 333, 336, 354, 356. Rising Sun, The, M'are, 378. i. 588. Ritchie «. Mauro, 3 Pet. 343. i. 335. Rival, The, 1 Spragv^, 138 ; 9 Law Bep. 38 ; 4 West. Law J. 89. i. 387. Roach v. Chapman, 33 How. 139. i. 631. — — ». Hulings, 5 Cranch C. Ct. 637. ii. 66. Roanoke, The, 3 Blatchf. 390. ii. 164. Roarer, The, 1 Blatchf. 1. ii. 339. Robbins v. Davis, 1 Blatchf. 338. ii. 93. Robert Fulton, The, 1 Paine, 630. i. 339. Robert Morris, The, 1 Wall. Jr. C. Ct. 33. i. 353. Roberts v. Myers, 13 Law Rep. N. S. 396. i. 393, 400. v. Pillow, Hempst. 633 ; affirmed 13 How. 493. ii. 5. V. Ward, 4 McLean, 565. i. 518, 631. Robinson v: Bank of Attica, 31 K 7. 406. i. 378. «. Campbell, 3 Wheat. 313. i, 463,464. 1). Dauchy, 3 Barh. 30. ii. 56. Robson V. The Huntress, 3 Wall. Jr. C. Ct. 59. i. 579. Rogers e. City of Cincinnati, 5 McLean, 337. i. 90. V. CrommeUn, 1 Cranch, 536. ii. 48. «.' De Forest, 7 Paige, 373. i. 381. ■». Linn,- 3 McLean, 136. ii. 13, 54. Roosevelt v. Maxwell, 3 Blatchf. 391. • i. 557, 558. V. Meyer, 1 Wall. 513. i. 330. Root ». Ball, 4 McLean, 177. i. 530, 533,538; ii. 63. Rose ». Himely, 4 Cranch, 341. i. 638. Rosenfleld, Be, 3 Banhr. Beg. 49. L 383. Ross V. Barland, 1 Pet. 655. i. 464 ; ii. 134. V. Duval, 13 Pet. 45. i. 357 ; ii. 67. V. Reed, 1 Wheat. 483. ii. 133. 11. Triplett, 3 Wheat. 600. i. 339. Rowan v. Runnels, 5 How. 135. i. 339. Rowe v. The Brig, 1 Mas. 373. i. 575, 589. Rubber Co. v. Goodyear, 6 Wall. 153. ii. 359. Ruckman u. Cowell, 1 K T. (1 Comst.) 505. i. 348. Ruggles V. Bucknor, 1 Paine, 358. ii. 118.' Russel V. Union Lis. Co. 1 Wash. 0. Ct, 440. ii. 194. Russell 11. Ashley, Hempst. 546. ii. 115, 136. v. Barney, 6 McLean, 577. ii. 6. ». Beebe, Hempst. 704. ii. 133. V. Clark, 7 Cranch, 69. ii. 13. ■». McL'ellan, 3 Woodb. & M. 157. i. 358; ii. 95. Ryan v. Bindley, 1 Wall. 66. ii. 138. «. Goodwin, 3 Sumn. 514 ; 3 Law Bep. 330. i. 517, 538, 541. V. Thomas, 4 Wall. 603. i. 337. S. Sackett v. Davis, 3 McLean, 101. it 54. Sadler v. Hoover, 7 How. 646. ii. 278 TABLE OF CASES. 561 Sadler «. Majcwell, 3 Blatchf. 134. i. 563. Saddler ». Hudson, 3 Curt. C. Ct. 7. ii. 99. St. Lawrence, The, 1 Oall. 467. i. 549. St. Jago de Cuba, The, 9 Wheat. 409. i. 638. St. Lawrence, The, 1 Elaek, 533. i. 333, 346, 634 ; ii. 156. , 1 Gall. 467. ii. 365. Saltmarsh v. Tuthill, 13 How. 387. ii. 317, 361, Sam Slick, The, 1 Sprague, 389; siib nam. Hooper ». The Sam Slick, 8 Law Sep. JST. S. 163; reversed, 3 Curt, a Ct. 480. i. 633 ; ii. 6. Sampson v. Welch, 34 Sow. 307. ii. 315. Samuel, The. 1 Wheat. 9. ii. 119. San Pedro, The, 3 Wheat. 133. i. 338 ; ii. 347, 350, 358. Sanders ». Logan, 9 Am. Law Beg. 475. ii. 90. Sangster v. Miller, 5 Blatchf. 343. i. 515. Santa Maria, The, 10 Wheat. 431. ii. 339, 367. Santissima Trinidad, The, 1 Broeh. Marsh. 478 ; affirmed 7 Wheat. 383. i. 547. Sarah, The, 8 Wheat. 391. i. 390, 393 ; ii. 74. Sarah Ann, The, 3 Sumn. 306. ii. 83, 337. Sarah Jane, The, Blatchf. & H. 401. i. 603. Saratoga, The, 3 Q-all. 164 ; & Am. Law J. 13. i. 599, 603, 604. Sargeant v. Lamed, 3 Curt. G. Ct. ^40. i. 538, 531. Sargent v. Seagrare, 3 Curt. C. Ct. 553. i. 538. Satterlee v. Matthewson, 3 Pet. 380. i. 338, 331. Saunders, The, 3 Qall. 310. i. 553. V. Gould, 4 Pet. 393. i. 339 ; ii. 373. Savage ». O'Neil, 43 Ban%. 374. ii. 57. Sawin «. Guild, 1 Gall. 485. i. 534, 538; ii. 161. Sayles v. Chicago, &c. R. E. Co., 3 Mih. 533. i. 536. Schick, Exp., 6 Int. Bei). Bee. 183. i. 383. Schieffelin v. Hawkins, 14 Abb. Pr. 113. i. 378. Schlesinger ». United States, 1 Ct. of CI. 16. i. 563, 567. Schlussel «. Willett, 84 Barb. 615 ; 18 Vol. n— 36 All. 380. Pv. 397: 33 How. Pr. 15. i. Schuchardt v. Lawrence, 3 Blatchf. 397. i. 560. Schufeldt V. Abernethy, 3 Duer, 533 ; 13 K T. Leg. Obs. 173. i. 381. Schultz V. The Nancy, Bee's Adm. 139. i. 593. Scioto, The, Daveis, 359. i. 386. Scott V. Jones, 5 How. 343. i. 378, 339 ; ii. 371. 1). Lunt, 6 Pet. 349. i. 337. V. •— -, 7 Pet. 596. ii. 56, 193. v. Russell, All. Adm. 358. i. 614. -D. The Young America, Newl. 101. i. 353, 353. i>. , Newl. 107. i. 357. Scudder «. Hudson, 3 Curt. C. Ct. 7. ii. 98. Sea Flower, The, 1 Blatchf. 361. i. 633. Sears v. United States, 1 Gall. 357. ii. 58, 330. Sedgwick ». Place, 1 Am. Law Times, 97 ; 1 Bmhr. Beg. 304. i. 383. Sbgep V. Thomas, 3 Blatchf. 11. ii. 90, 91 ; ii. 48, 49. Semple v. Hagar, 4 Wall. 431. ii. 363. Sergeant «. Biddle, 4 Wheat. 508. ii. 112. Seymour v. Freer, 5 Wall. 833. ii. 358. V. McCormick, 19 How. 96 ; af- firming 3 Blatchf. 309. i. 499. ShaflFer v. Scudday, 19 Hoto. 16. i. 337. Shankland «. Corporation of Wash- ington, 5 Pet. 390. ii. 315, 316. Shankwiker v. Reading, 4 McLean, 340. ii. 118. Shapley a. Eangeley. 1 Woodi. db M. 313. i. 465. Shaw V. Collier, 18 How. Pr. 338. ii. 196. V. Cooper, 7 Pet. 393. i. 497, 536. V. Thompson, Qle. 144. ii. 155. Shelby v. Bacon, 10 How. 56. i. 235. Sheldon v. Dodge, 4 Den. 317. i. 380. «. Sill, 8 How. 441. i. 183, 185. .Sheppard v. Graves, 14 How: 505. ii. 55, 136. V. Taylor, 5 Pet. 675. i. 603, 605, 634. ■».• Wilson, 5 How. 310. ii. 357. Sherill v. Hopkins, 1 Coio. 103. ii. 57. Sherman v. Clark, 3 McLean, 91. ii. 55 Shields «. Barrow, 17 How. 130. i. 350. V. Thomas, 18 How. 353. ii. 49. 562 TABLE OF CASES. Shirley v. Titus, 1 Sumn. 447. i. 338 ; ii. 385. Shrew v. Jones, 3 McLean, 78. ii. 161. Shurman v. Marley, 39 Ind. 458. ii. 57. Sibbald ». United States, 13 Pet. 488. ii. 368. Sickels u. Mitchell, 3 BUtchf. 548. i. 538. Sickles ®. Borden, 8 Blatchf. 535. i. 503, 531. ' ». Evans, 3 Fish. 417. i.*496. Sidle, Be, 3 ^asmifcr. ijej/-. 77. i. 383. Silliman v. Hudson River Bridge Co., 1 Blaah, 583. i. 340 ; ii. 374. Silsby V. Foote, 14 How. 318 ; affirm- ing 1 Blatchf. 445. i. 499, 533 ; ii. 63, 330. V. , 30 Bow. 390. ii. 350, 360. - — - ». , 30 How. 878 ; modifying •% BUtchf. 360. i. 499, 503. Silver Spring, The, 1 8prague, 551 ; 7 Law Rep. N. 8. 364. i. 639. Simpson ». United States, 9 How. 578. i. 380. ». Wilson, 4 How. 709. i. 516. Sims v. Jackson, 1 Wash. C. Ct. 414. i. 608. Singer v. Walmsley, 1 Fish. 558. i. 498. Singstrom v. The Hazard, 3 Pet. Adrni. 384. i. 605. -Six hundred and fifty-one Chests of Tea V. United States, 1 Paine, 499. i. 633. Skillern ». May, 6 Craneh, 367. ii. 369. Skolfield V. Potter, Daveis, 393 ■,1N.Y. Leg. Ols. 338 ; 3 Law Bep. N. S. 115 ; 7 West. Law J. 346. i. 608. Slocomb V. Lurty, Hempst. 431. ii. 196. Slocum 9. Mayberry, 3 Wheat. 1. i. 636. V. Pomery, 6 Craneh. 331. ii. 339. Sloo «. Law, 4 Blatchf. 368. ii. 47. Smith, Exp., 3 McLean, 131 ; 6 Law- Bep. 57. i. 473, 479, 483 ; ii. 303. Smith 1). Burnham, 3 Sumn. 613. ii, 35 ■«. Clapp. 15 Pet. 135. ii. 339. ■». Clark, 13 How. 31. ii. 350, 363. . V. Cockrill, 6 M''all. 756. ii. 33, 159. B. Ely, 15 How. 137. ii. 63. 2). Higgins, 1 Fish. 537. i. 531. «. Hon«y, 3 Pe«. 469. i. 337. Smith i>. Howard, 30 How. Pr. 131. i, 380. V. Hunter, 7 Hoie. 788. i. 330. i>. Jackson, 1 Paine, 486. ii. 55, 109 ; ii. 330. ». Kernochen, 7 How. 198. ii. 55, ■ ». McCann, 34 How. 398. i. 463 ; ii. l8l. v. Mclver, 9 Wheat. 533. i. 465. V. Maryland, 6 Craneh, 386. i. 334. «. Mercer, 5 Pa. Law J. 539. L 499. 1). Miln, All. Adm. 373. ii. 105. «. Muncie National Bank, 39 Lnd. 158. ii. 157. i>. Pearce, 3 McLean, 176. i. 497 515, 538, 530, 533. V. Plympton, 4 West. Law J, 49. i. 489, 495. 11. The Stewart, Cralle, 318. L, 607. V. Swormstedt, 16 How. 388. ii, 14. ' V. Trabue, 9 Pet. 4. ii. 333. V. United States, 1 Qall. 361. ii. 58. • V. , 5 Pet. 391. ii. 138, 333. V. Vaughan, 10 Pet. 366. i. 340 ; ii. 373. Smyth V. Strader, 13 How. 337. ii. 349. Snell V. The Independence, Oilp. 140 i. 613, 614. Snow V. Carruth. 1 Sprague, 834 ; 9 Law Bep. N. 8. 198. ii. 150. V. Wope, 3 Ourt. O. Ct. 801; affirming S. C., siib nom. Wope «. He- nlenway, 1 Bpjrague, 300 ; 8 Law Bep. N. a. 390. i. 603. Society for the Propagation of the Gospel V. Town of Hartland, 3 Paine, 536. ii. 13. ■ V. Wheeler, 3 Oall. 105. ii. 5. Southwick », Postmaster-General, 3 Pet. 443. i. 319. Southworth ®. Sheldon, 7 How. Pr. 414. i. 381. Sparkman v. Higgins, 1 Blatchf. 305 ; 5N. Y. Leg. Ohs. 133; 6 Pa. Lam J. 344. i. 501, 538. Sparrow ii. Strong, 3 Wall. 97. L 336 ; ii. 333, 363. ■». , 4 Wall. 584. i. 335. Spaulding ». Strong, 36 Barb. 810. i. 381. Spear v. Ward ell, 1 iV: F. (1 Oomat.) 144. i. 378. Spencer v. Lapsley, 30 How. 364. ii 45. TABLE, OP CASES. 563 SpofTord V. Ritteu, 4 McLean, 253. ii. 109. Spooner v. McConnell, 1 McLeam.. 337. ii. 90. Sprague v. Kain, Bee's Adm. 184. i. 614. V. Litherberry, 4 McLean, 442. li. 124. Spring V. Gray, 6 Pet. 151. i. 635. V. South Carolina Ins. Co., 6 H'^ai. 519. ii. 265. Springbok, The, 5 Wall. 1 ; affirming Blatehf. Pr. Cos. 434. i. 553. Springer ti. Foster, 1 8iory O. Ct. 601. ii. 103. Spurr V. Pearson, 1 Mas. 104. i. 615. Stafford ». Union Bank of Louisiana, 16 How. 135. ii. 260. Stainback v. Rae, 14 How. 532. i. 385. Stanley v. Whipple, 3 McLean, 35. i. 497, 515; ii. 196, 197. Star, The, 3 Wheat. 78. i. 595. Stark V. Chesapeake Ins. Co., 7 Cranch, 420. ii. 125. Starr v. Peck, 1 HUl, 270. ii. 57. Stearns «. Barrett, 1 Mas. 153. ii. 230. ». United States, 4 Wall. 1. ii. 261. Stein V. Bowman, 13 Pet. 209. ii. 130. 11. Goddard, McAll. 83. ii. 59. Stephens v. Cady, 14 How. 528. i. 393, 400 ; ii. 161. v. Felt, 3 Blatehf. 37. ii. 197. Stern v. Fisher, 33 Barb. 198. i. 379, 381. Stettinius v. United States, 5 Cranch O. Ct. 573. ii. 184. Stevens ». Gladding, 17 How. 447. i. 400 ; ii. 161. * «. The S. W. Downs, Newl. 458. i. 588. Stewart v. Drasha, 4 McLean, 563. ii. 93. Stillman ». The Buckeye State, Newb. 111. i. 633. V. White Rock Manuf. Co., 3 Woodb. & M. 538. i. 253. Stimpson v. Baltimore & Susquehanna R R. Co., 10 How. 339. i. 532. . V. Brooks, Z Blatehf. 456. ii. 111. V. Mad River R. R. Co., 6 Mc- Lean, 603. i. 538. ' V. Rogers, 4 BUtehf. 333. i. 533. V. Westchester R. R. Co., 4 How. 380. i. 496, 531, 52&; ii. 134. Stone V. Sprague, 1 Story C. Ct. 270. i. 503. Storm ». Davenport, 1 Sandf. Ch. 135. i. 379. Story, Mep., 13 Pet. 389. ii. 269. Story V. Livingston, 13 Pet. 359. ii. 12 13, 65, 268. V. Holcombe, 4 McLean, 306 ; 5 West. Law J. 145. i. 402, 403. Stout «. Wood, 1 BUtchf. 71. ii. 57. Stowe «. Thomas, 3 Wall. Jr. 0. Ct. 547 ; 3 Am. Law Beg. 339. i. 389, 393, 404. Strader v. Baldwin, 9 How. 261. i. 327. Stratton ». Babbage, 3 Liv. Law Uag. 586 ; 8 Law Bep. N. 8. 94. i. 609. V. Jarvis, 8 Pet. 4. ii. 235. Strawbridge v. Curtiss, 3 Cranch, 267. ii. 53. Strachen v. Clybum, 8 McLean, 174. i. 283, 464. Stringer v. Young, 3 Pet 321. ii. 58. Strong V. Skinner, 4 Barb. 546. i. 379. ». Stevens, 4 Duer, 668. i. 234. Strother v. Lucas, 13 Pet. 410. ii. 133, 134, Stuart t>, Laird, 1 Cranch, 399. ii. 45. Sturgesi. Crowninshield, 4 Wheat. 132. i. 357, 358. — — V. United States, Deo. 232 ; 4 Am. Law Beg. 835. i. 560. Sturgis «. Clough, 1 Wall. 369. ii. 381. «. The Joseph Johnson, 19 How. . Pr. 329. i. 588. Sturtevant v. The George Mcholaus Newb. 449. i. 576. Suffolk County v. Hayden, 3 Wall. 315. i. 538. Sullivan v. Fulton Steamboat Co., 6 Wlieat. 450. ii. 58. V. Ingraham, Bee's Adm. 183. 1. 615. V. Redfleld, 1 Paine, 441. i. 517. Sunbeam, The, BlaUhf. Pr. Cos. 316. i. 553. Surgett ». Lapice, 8 How. 48. i. 338. Susan, The, 1 Sprague, 499 ; 13 Law Rep. N. S. 531. i. 577, 587, 590. Sutherland, Exp., 1 BanTc. Beg. 140. i. 888. Sutton V. Bancroft, 38 How. 830. ii. 267. Suydam «. Ewing, 3 Blatehf. 359. ii. 18, 45. 1). Williamson, 30 How. 427. ii. 255, 271. Swaim ». The Franklin, Crabbe^ 310. ii. 228. Swallow, The, Olc. 4. i. 612. Swan V. Scholfield„ 3 Cranch O. Ct. 140. ii. 17. Swanston «. Morton, 1 Curt. 0. Ct, 294. i. 568, 564. 664 TABLE OF CASES. Swartwout v. Gihon, 3 Hoio. 110. i. 563. Swett V. Black, 1 Spragtie, 574. ii. 31. Swift V. Tyson, 16 Pet. 1. i. 337. Sybil, The, 4 Wheat. 98. ii. 83. 330. Taber v. Jenny, 1 Sprague, 315 ; 9 Law Rep. N. S. 37. ■ ii. 83. Talbot «. Seeman, 1 Cranch, 1. i. 574, 595, 596. ■». Wakeman, 19 How. Pr. 39. ii. 74. Tappan v. United States, 3 Mas. 393. i. 556. Tatham «. Le Koy, 3 Blatchf. 474. i. 538, 530. V. Loring, 5 N. Y. Leg. Obs. 307. i. 539. «. Lowber, 3 Blatchf. 49. i. 539. Tayloe v. Riggs, 1 Pet. 591. ii. 138. V. Thompson, 5 Pet. 358. ii. 161, 168, 169. Taylor «. Carpenter, 3 Wbodb. & M. 1. i. 341. V. Carryl, 20 Mow. 583. i. 334, 235, 238 ; ii. 103. V. Morton, 3 Blaclc, 481. ii. 371. V. , 3 Curt. G. Ct. 454. i.' 303. ■». The Royal Saxon, 1 Wall. Jr. 0. Ct. 311. i. 339, 631, 634. 1). Savage, 1 How. 383. ii. 348. V. Stevens, 7 How. Pr. 415. i. 380. 1). United States, 3 How. 197. i. 639. Teese ». Huntingdon, 23 How. 3. ii. 63. 1). Phelps, McAll. 17. i. 348, 521 ; ii. 54, 55, 68. «. , McAll. 48. i. 493, 500, 507, 531. Thirty hogsheads of Sugar v. Boyle, 9 Cranch, 191. i- 550. Thomas v. Lane, 3 Sumn. 1. ii. 74, 249. 11. Weeks, 3 Paine, 92. i. 500. Thomas and Henry, The, v. United States, 1 Brack. Marsh, 367. ii. 130. Thomas Gibbons, The, 8 Cranch, 421. i. 548. Thompson ®. Cook, 2 McLean, 123. ii. 53. V. Faussat, 1 Pet. G. Ct. 183. i. 698. Thompson v. Haight, 1 U. S. Law J, 575. i. 536. ». Maxwell, 2 Blatchf. 385. i, 564. «. Phillips, 1 Baldw. 346. i. 335, 463. ». Railroad Co., 6 Wall. 134. i. 463. V. Selden, 30 How. 194. ii. 94, 330. ». Voss, 1 Cranch C. Ct. 108. u. 343. Throop «. Hatch, 3 Abb. Pr. 33. ii. 57. Thurston ». Martin, 5 Mas. 496. ii# 197. Tiernan «. Jackson, 5 Pet. 580. ii. 17. Tillinghast, Exp., 4 Pet. 108. i. 370. Titus ». Scantling, 3 Blatchf. 373. ii. 57. • 1). , 4 Blatchf. 89. ii. 57. Tobin ». Walkinshaw, McAll. 36. i. 350 ; ii. 13, 68. Toland v. Sprague, 13 Pet. 300. i. 330 ; ii. 37, 98, 99. Tome «. Dubois, 6 Wall. 548. i. 573. Tompkins «. Gage, 5 Blatchf. 36§. i. 519. Tooker v. Thompson, 3 M<^Lean, 93. ii. 116, 117. Town «. The Western Metropolis, 38 How. Pr. 283. ii. 75. Town of Pawlet v. Clark, 9 Cranch, 292. ii. 56. Towne e. Smith, 1 Woodb. & M. 115. ii. 20. Townsend v. Jemison, 9 How. 407. ii. 5. Tracy ».. Holcombe, 24 How. 436. i. 335; ii. 323. V. Swartwout, 10 Pet. 80. i. 570, 571. •». Torrey, 3 Blatchf. 375. i. 515. Treadwell «. Bladen, 4 Wash. C. Ct. 703. i. 530,536; ii. 63. ». Joseph, 1 8umn. 399. ii. 74, 75. Trecartin v. The Rochambeau, 16 Laio Bep. N.8. 564. i. 618. Trial of the Officers and Crew of the Savannah, i. 415 ; ii. 180, 183. Tribune, The, 3 Sumn. 144. i. 635. Trigg V. Conway, Hempst. 538. ii. 198. Trimble ». Trimble, 3 Ind. 76. ii. 57. Triumph, The, 1 Sprague, 438 ; 11 Lav Bep. m S. 613. i. 577. Tuckerraan «. Bigelow, 11 Law Bep. Sf. 8. 308. ii. 12. Tunstall «. Worthington, Hempst. 662, ii. 53. TABLE OP CASES. 565 Turner v. American Baptist Miss. Union, 5 McLean, 344. i. 203. ■». Bank of Korth America, 4 Dall. 8. ii. S3. V. The Black Warrior, McAll 181. i. 533 ; ii. 80. V. Enville, 4 Dall. 7. ii. 53. V. Fcndall, 1 Granch, 117. ii. 160. Turrill v. Micliigan, &c. E. E. Co., 1 Wall. 491. i. 516, 530. Tuttle V. Truax, 1 Bankr. Beg. 169. i. 383. Two Catherines, The, 3 Mas. 319. i. 577. Two hundred chests of Tep, 9 Wheat. ■ 430. i. 557, 558 ; ii. 85. Two hundred and ten barrels of Oil, 1 Sprague, 91 ; sub nom. Howland v. Two hundred and ten Barrels of Oil, 7 Law iSep. 377. i. 589. Tyson «. Pryor, 1 Gall. 133. i. 575, 589. U. TJdall v. The Ohio, 17 Sow. 17. ii. 109. Ulary v. The "Washington, Orabbe, 304. i. 613. Union «. Jansen, 3 Paine, 377. i. 613. Union Bank of Louisiana ®. Staflford, 13 How. 337. ii. 13. Union Bank of Tennessee v. Jolly, 18 Hoio. 503. i. 333. Union Ins. Co. v. United States, 6 Wall. 759. i. 306 Union Manufg. Co. ii. Lounsbury, 3 Fish. 389. i. 501. Union Steamship Co. «. New York & Virginia Steamship Co., 34 Eow. 307. i. 386. Union Sugar Eeflnery v. Matthiessen, 3 Fish. 600. i. 504. Union Towboat Co. v. The Delphos, Newb. 412. i. 584. United Statss, Exp., 1 Gall. 338. i. 386; ii. 46. «. Abom, 3 Mas. 136. i. 561. v. The Actiye, 3 Car. Law Bepos. 193; 5 Am. Law , i. 410 ; ii. 183. V. Harding, 1 Wall. Jr. C. Ct. 13'. 6 Pa. Law J. 14. ii. 193. ». Hart, PeJ. 0. Ct. 390; ZWheel Cr. Cas. 304. i. 438. V. Harvey, 8 Law Rep. 77. i. 438. V. Haskell, 4 Wash. C. Ct. 463 ; 2 Wheel. Cr. Cas. 101. i. 419 ; ii. 184. ». Hathaway, 3 J/rts. 334. i. 556; ii. 11. V. Hawkins, 10 Pet. 125. ii. 150. ('. Haynes, 2 McLean, 155. i. 338 ; ii. 234, 235, 238. V. Hayward, 2 Gall. 485. ii. 85. V. The Helen, 6 Cranch, 303. i. 622. ». Hewson, T Law Rep. 361. ii. 183. «. Hill, 1 Brock. Marsh. 156. ii, 189. V. Hilliard, 3 McLean, 334. ii, 133. — - V. Hoar, 3 Mas. 311. ii. 7. ». Hodge, 3 Soio. 534. ii. 357. ■». Hodges, 3 Wheel. Cr. Cos. 417, i. 409 ; ii. 183. J). Holliday, 3 Wall. 407. i. 307 V. Holmes, 5 WJieat. 413. i. 416. «. Hooe, 3 Cranch, 78. ii. 154. TABLE OF CASES. 567 tinited States v. Howard, 3 Wash. C. Ot. 340. i. 419. 8. Howland, 2 Oramli G. Ot. 508. i. 5.56. ». •, 4 Wheat. 108. i. 463. V. Hoxie, 1 Paine, 365. i. 410. D. Hudson, 7 Cranch, 32. i. 184, 406. 8. Hughes, 11 Mow. 553. ii. 10. ■ ». Hutchiags, 3 Wheel. Or. Gas. 543. i. 418. ■». Insurgents, 3 J)a?Z. 513. i. 303. s. Irwin, 5 McLean, 178. i. 406, 453. V. Johns, 1 Wash. C. Ct. 368 ; 4 i)asZZ. 413. i. 421, 483; ii.- 179. V. Jones, 8 P««. 375. ii. 182. ■». , 8 Pet. 387. ii. 133. V. , 3 Wash. C. Gt. 209. i. 414, 418. 419. V. Keen, 1 McLean, 439. ii. 193. V. Keene, 5 Mas. 453. i. 436. T. King, 5 McLean, 308. ii. 179. ■». Kirby, 7 Wall. 483. i. 438. V. Knight, 14 Pet. 301. ii. 169. V. Kolmstamni, 5 Elatchf. 222. i. 433. v. Lancaster, 2 McLean, 431. i. 406. v. - — , 5 Wheat. 434. i. 301. ». Larkin, 18 Row. 557. ii. 229. V. Laub, 12 Pet. 1. ii. 138. «. The Lawrence, 7 if. K Zejr. 06«. 174. i. 341. «. Lent, 1 Paine, 417. ii. 131, 153. B. libby, 1 Woodh. & M. 221. i. 406. V. Lindsey, 1 Gall. 365. i. 560. ®. The Little Charles, 1 BrocTc. Marsh. 380. ii. 73, 83, 84. r>. Lowry, 3 Wash. G. CT. 169 ; svb nom. United States v. Lowrey, 1 Am. Law J. 333. i. 445. «>. Lukins, 3 Wash. G. Ct. 335. 1.444. •». Lunt, 1 Sprague, 311 ; 8 Law B^p. N. 8. 633. ii. 179. ~ ' . «. Lyman, 1 Mas. 483. i. 556, 560 ; ii. 11, 83. • — - ®. Lynch, 2 N. T. Leg. Obs. 51. ii. 183. ■ ■». L^cn, Whart. St. Tr. 333. ii. 184. . ^. McAvoy, 18 How. Pr. 380. ii. 178. V. McLemore, 4 How. 286. i. 807. ■ • «. Macomb, 5 McLean, 286. ii. 193. United States v. Madden, 1 Cranch G. Gt. 45. ii. 177. ». Magill, 1 Wash. G. Gt. 463. L 414. ®. The Malek Adhel, 2 Sow. 210. i. 619, 623 ; ii. 155. V. Mann, 3 Srock. Marsh. 9. ii. 152. -D. , 1 Gall. 3. ii. 83. V. , 1 Gall. 177. i. 293. V. Marigold, 9 Bow. 560. i. 448. «. The Margaret Yates, 33 Vt. 663. i. 622. 8. Marselis, 2 Blatchf. 108. i. V. Martin, 2 McLean, 253. ii. 199. v. The Matilda, 4 SaM's .4m. Law J. 487. i. 548. ». Mayo, 1 (Tart. G. Gt. 433. ii. 48. v. Mills, 7 P««. 138. ii. 178. ■». Mitchell, Baldw. 366. i. 447. • ®. Montgomery, 3 i)aZZ. 335. L 268. w. More, 3 Grand,, 159. i. 316, 386 ; ii. 217. V. Morris, 2 Am. Law Beg. 348. i. 232. V. , 1 Gurt. G. Ct. 23. ii. 181, 183. V. Morrow, 4 Wash. G. Gt. 733. . i. 448. ». Mundel, 6 Call, 245. i. 445. «. Murdock, 2 Cranch C. Gt. 486. i. 561. V. The Neurea, 19 Sow. 92. ii. 84, 85. •». New Bedford Bridge, 1 Woodb. & M. 401. i. 183, 406. V. Nickerson, 17 Sow. 204. ii. 178. 8. Nourse, 6 Pet. 470. i. 183 ; iL 217, 244. ». O'Sullivan, 9 N. T. Leg. Obs. 257. ii. 178. 0. One case of Hair Pencils, 1 Paine. 400. ii. 119. ». One hundred and twelve casks of Sugar, 8 Pef. 277. i. 557; ii. 232. ■». An Open Boat and Lading, 5 Mas. 120. i. 559. ®. Ortega, 11 Wheat. 469. i. 206. V. Pacheco, 20 Sow. 261. ii. 250. ■». Palmer, 3 Wheat. 610. i. 414, 418. ■». PafTott, MeAU. 271. i. 464; ii. 13. «. , McAll. 447. ii 464 ; ii. 112. 568 TABLE OF CASES. United States i>. Parsons, 2 Blatchf. 104. i. 441. . v. The Paryntha Davis, 1 Cliff. 533. ii. 84, 85. •». Patterson, CHlp. 44. ii. 133. V. Paul, 6 Pet. 141. i. 431. . V. Pearce, 6 How. 279. ii. 199. ■». , 2 McLean, 14. i 440, 441. ».. The Peggy, 1 Cranch, 108. i. 303 ; ii. 122, 220. ». Percy, 9 WTieat. 579. ii. 193. V. Peters, 5 Cranch, 115. i. 281. ■ ■». Peterson, 1 Woodb. & M. 305. ii. 189. V. Phelps, 8 Pet. 700. ii. 140, 179. «. Pirates. 5 Wheat. 184. i. 415, 416, 418. «. Pond, 2 (?wri. (7. Ct. 265. i. 440 ; iL 178. V. Potter, 6 McLean, 182. ii. 198. V. Price, 2 Wash. C. Ct. 256. ii. 118. V. Eamsay, Eempst. 481. i. 406. ». Eathbone, 2 Paine, 578. ii. 140, 143. ■». Reid, 13 How. 180. ii. 173, 195, 196. . • «. Richie, 17 Bow. 535. i. 194. t). Ringgold, 8 Pet. 150. ii. 150. V. Robertson, 5 Pet. 641. ii. 100. ». Robeson, 9 Pet. 319. ii. 150, 153. ■ V. Robinson, 4 Mas. 307. i. 415. V. Rosenburgh, 7 Wall. 580. i. 453. v. Rundlett, 3 Curt. C. Ct. 41. ii. 175. V. Sander, 6 McLean, 598. i. 441. l>. Sarchet, mip. 378. i. 558. V. Sawyer, 1 Gall 86. i. 304. V. Schoyer, 3 Blatchf. 59. ii. 180. B. Scroggins, Hempat. 478. i. 435. ». Seaman, 17 Row. 225. i. 377. v. Shackford, 5 Mas. 445. i. 559. ». Shackleford, 18 Bow. 588. ii. 141. — - V. Shepard, 1 All. U. S. 431. ii. 177. V. Shine, Baldw. 510. ii. 184. i>. Shoemaker, 2 McLean, 114. ii. 189. B. Slacum, 1 Cranch C, Ct. 485. ii. 3. V. Smith, 5 Am. Law Beg. 268. i. 208. 11. , 4 Day, 121. ii. 117. t). , 2 Mas. 143. «. , 3 Wash. C. Ct. 78, note. L415, United States v. Smith, 5 Wheat. 158 i. 414, 418. , ■». Southmayd, 6 Bow. 637. i. 560. V. Staats, 8 Bow. 41. i. 451 ; iL 178, 179. V. Stevenson, 1 AVb. U. S. 495. ii. 23, 96. «. Stockwell, 4 CraTich C. Ct. 671. ii. 183. V. Stone, 14 Pet. 534. i. 840; ii. 373. • «. Stowell, 3 Curt. C. Ct. 153 ; 8 Law Rep. N. 8. 76. i. 366 ; ii. 141, 180, 189. «. Tanner, 6 McLean, 138. i. 389, 440. i>. Terrel, Bempst. 411. i. 406, V. Thompson, 6 McLean, 56. ii. 177, 179. 4). Three hundred and fifty chests of Tea, 12 Wheat. 486. i. 291, 627. V. Three parcels of Embroidery, 9 Law Sep. JT. S. 140. ii. 85. 11. Three Railroad Cars, 1 All. U. 8. 196. ii. 179. V. Tinklepaugh, 3 Blatchf. 425. i. 445 ; ii. 180. V. Travers, 2 Wheel. Cr. Cas. 490. i. 429. V. Tully, 1 Gall 247. i. 419. ^ V. Turner, 2 Wheel Cr. Cas. 615. i. 617. D. Twenty-five cases of Cloth, Cralle, 356. i. 557 ; ii. 126. «. Twenty-eight Packages, Oilp. 306. i. 557 ; ii. 92, 95. ». Two hundred and eighty-two bales of Cotton, Blatchf. Pi: Cas. 802. i. 549. 11. Vanranst, 3 Ball 146. i. 423. s. Villato, 2 Ball 370. i. 410., V. Vowell, 5 Cranch, 368. i. 560. V. Warner, 4 McLean, 463 ; 6 West. Law J. 255. ii. 179. V. "Watkins, 8 Cranch, C. Ct. 441. i. 429. V. -Watson, MS8. ii. 185. • V. White, 5 Gi-anch C. Ct. 88. ii. 3. ®. Wilcox, 4 Blatchf. 885. i. 443. V. Wilder, 3 Sumn. 808 ; 1 Law Bep. 189. i. 607. V. Wilkins, 6 Wheat. 135. ii. 150. V. Williams, 4 McLean, 567 ; 5 Id, 183. i. 308 ; ii. 153. 11. Wilson, Baldw. 78. ii. 178, 183. TABLE OF CASES. 569 United Statts o. "Wilson, 3 BUtchf. 485. i. 207, 406, 415. V. , 7 Pet. 150. ii. 123, 273. - — - V. Wiltberger, 5 Wheat. 76. i. 348, 410, 415, 416. V. Wonson, 1 Gall. 5. i. 236, 303, 338 ; ii. 234, 236. V. Wood, 2 Wheel. Cr. Cos. 325. ii. 177. V. WoodrufiJ 4 McLean, 105. ii. 141. V. Worms, 4 BUtchf. 332. ii. 175. n. Worrall, 2 Ball. 384. i. 406. V. Yale Todd, 13 How. 52 nots. i. 191. V. Yates, 6 Bow. 605. ii. 49, 50. Urtetiqui ®. D'Arbel, 9 Pet. 692. ii. 130. Vaccari v. Maxwell, 3 Blatchf. 368. i. 564. Yallette «. Whitewater Valley Canal Co., 4 McLean, 192 ; 5 West. Law J. 80. ii. 12, 68. Van Aemam,'.Efep.. 3 Blatchf, 160. i. 148; ii. 207. Vance e. Campbell, 1 BlacJs, 427. i. 533; ii. 63, 138. Vandewater v. Mills, 19 Sow. 83. i. 631. Van Dine b. WiUett, 34 Sow. Pr. 306 ; 38 Barb. 319. i. 379. Van Heusen v. Radcliff, 17 N. Y. 580. i. 378, 379. Van Ness ». Pacard, 3 Pet. 137. ii. 56. Van Nest v. Yoe, 1 Sancif. C?A. 4 ; 3 N. r. Leg. Obs. 70. i. 380. Van Orden, Matter of, 3 Blatchf. 166 ; 12 N. T. Leg. Obs. 161. i. 354, 265, 366; ii. 88. Van Reimsdyk ». Kane, 1 Qall. 371. ii. 13. Van Rossum v. Walker, J 1 Barb. 337. i. 380, 381. Vattier v. Hinde, 7 Pet. 353. i. 464 ; ii. 13, 13, 70, 119. Venable «. Bank of United States, 3 Pet. 107. ii. 13. Ventress v. Smith, 10 Pet. 161. ii. 233 Venus', The, 8 Cralich, 353. i. 549. Verden ». Coleman, 18 Sow. 86. i. 336 ; ii. 218. V. , 33 Saw. 193. i. 338. Veremaitre, Matter of, 9 J/i F. Leg. Obs. 137; 3 Law Bep. N. 8. 608. i. ' 483 ; ii. 307. Victory, The, Blatchf. & S. 443. ii, 155 — -, 6 Wall. 383. i. 331. Virden v. The Caroline, 6 Am. Law Beg. 323. i. 590. Virgin, The, 8 Pet. 538. ii. 239. Virginia, The, «. West, 19 Sow. 182. ii. 250. Volunteer, The, 1 Sumn. 551. i. 635. Voorhees v. Bank of United States, 10 Pet. 449. ii. 124. Vose V. Allen, 3 Blatchf. 289. i. 637. •». Philbrook, 3 Story C. Ct. 335. ii. 14. Voyageur de la Mer, The, 1 Sprague, 373; 10 Law Bep. N. S. 331. ii. 95. W. Wabash & Erie Canal v. Beers, 1 Black, 54. ii. 337. Wadleigh «. Veazie, 3 Sumn. 165. i. 325 ; ii. 60. % Wagner v. The Juanita, 1' Newb. 353. i. 550. Waite «. The Antelope, Bee''s Adm. 233. i. 595. Walden v. Bodley, 9 Sow. 34. ii. 268. «. Craig, 14 Pet. 147. ii. 110. «. , 9 Wheat. 576. iL 109, 230. Waldo, The, Daveis, 161 ; 4 Law Bep. 382. i. 637. Walker v. Smith, 1 Wash. C. Ct. 402 ; 4 Ball. 339. ii. 196, 197. V. Taylor, 5 Sow. 64. i. 328, 329 ■». Villavaso, 6 Wall. 124. i. 330. Wallace v. Clark, 3 WoocOi. & M. 359. i. 358. V. McConneU, 13 Pet. 136. i. 332 ; ii. 61, 103. Wallen v. Williams, 7 Cranch, 278. iL 164. Walsh V. Durkin, 12 Johns. 99. i. 234. i>. The H. M. Wright, Newb. 494. i. 636. V. Rogers, 13 Sow. 383. ii. 114. V. United States, 3 Woodb. & M. 341. ii. 83. Walton ®. The Neptune, 1 Pet. Adm. 143. i. 608 ; ii. 609. Walworth v. Kneeland, 15 Sow. 348. i. 329. 570 TABLE OF CASES. Warburton ». AJken, 1 McLean, 460. ii. 146. Ward V. Arrodondo, 1 Paine, 410. ii. 13, 38. ' V. Chamberlain, 3 Slach, 430. i. 339 ; ii. 149, 274. 1). , 21 Sow. 573. ii. 83. V. Gregory, 7 Pet. 683. i. 338. • V. The M. Dousman, 6 McLean, 381 ; Mirb. 236. i. 387. V. Peck, 18 Sow. 367. i. 631. V. Thompson, 22 Sow. 330. i. 631. V. Tingley, 4 Sandf. Oh. 476. i. 379. Warder «. La Belle Creole, 1 Pet. Adm. 31. i. 575, 580. Ware v. United States, 4 Wall. 617. ii. 153. Wai-ing r. Clarke, 5 Hoio. 441. i. 308, 348, 350. Warner ■o. Daniels, 1 Woodb. & M. 90. i. 341. «. Fowler, 4 Blatchf. 811. ii. 36. V. Norton, 30 Sow. 448. ii. 330. Warren ». Emerson, 1 Curt. 0. Ct. 339. i. 466. V. Penn, 38 Barl. 333. i. 378. Warren Manutg. Co. J). Etna Ins. Co., 3 Paine, 501. ii. 148. Washburn v. Gould, 3 Stm-y C. Ct. 133; 1 West. Law J. 465; 7 Law Pep. 376. i. 507, 520, 521, 524, 533 ; ii. 198. Washington, The, 7 Law Pep. If. S. 497. i. 026. Waterman «. Thompson, 2 Mah. 461. i. 501. Watkins, Exp., 3 Pet. 193. i. 347,483. , Mvp., 7 Pet. 568. i. 484. . . V. I-Iolman, 16 Pet. 35. i. 253, 463 ; iL "139. Watson «. Bladen, 4 Wash. C. Ct. 580. i. 501. • 1). Sutherland, 5 Wall. 74. i. 465. 1). Tarpley, 18 Sow. 517. i. 380, 283, 338. Watts V. Waddle, 6 Pet. 389 ; IMcLean, 300. i. 252. Wave, The. 1 Blatchf. & S. 335 ; 7 N. T. Ifeg. Obs. 97. i. 573, 579. 11. Hyer, 3 Paine, 131. i. 573, 579. Wayman v. Southard, 10 W7ieat. 1. i. 336, 240, 889, 463 ; ii. 156, 158, 163, 273. Wayne v. Holmes, 2 Fish. 30, i. 514. Webb p. Powers, 3 Wuodb. cB M. 497 ; 10 Law Sep. 153. i. 403, 403; ii. 69. Webster ®. Cooper, 10 Sow. 54. i. 339, 340 ; ii. 375, 373. 0. Eeid, 11 Sow. 437. i. 837. Weed D. Kellogg, 6 McLean, 44. ii 119. ('. Catheriua Maria, 3 Pet. Adm 434. i. 573, 589, 604. Welch, Mvp., 2 Baidr. Rcj. 9. i. 383. v. Mandoville, 1 M'lu-at. 233. ii. 17. Welsh V. Mandeville, 7 Oraneh, 153. ii. 230, 356. Wesley v. Biays, 4 Am. Law <7i (1 JVi -S.) 375. i. 605. West B. Aurora City, 6 Wall. 139. ii. 85. B. Brashear, 13 Pet. 101. ii. 303, 368. II. Eandall, 3 Mas. 181. ii. 13, 15. V. Smith, 8 Sow. 403. ii. 239. V. The Uncle Sam, McAll. 105. ii. 74. Wescot V. Bradford. 4 Wash. 0. Ci. 492. i. 838 ; ii. 234, 235. Western Insurgents' Case, Whart. St. Tr. 103, 183. i. 410. Weston V. City Council of Charleston, 3 Pet. 449. i. 326, 333. V. Train, 3 CuH. C. Ot. 49. i. 688. Wetmore ». United States, 10 Pet. 647. ii. 134. Wheatley ». Hotchkiss, 1 Spraqiic, 325 ; 6 Law Sep. iV. . Peters, 8 Pet. 591. i. 888, 889, 894, 897, 399 ; ii. 56. Whetmore v. Murdock, 3 Woodb. db M. 380. ii. 196, 198. Whitaker, .The, 1 Spragve, 383; aul nom. Parker ». The Whitaker, 8 Late Sep. N. 8. 497. i. 587, 591. V. Bramson, 3 Paine, 309. ii. 232, White «. Allen, 2 Fish. 440. i. 501. «. Cannon, 6 Wall 448. ii. 318. ». Gibbes, 30 Sow. 541. ii. 69. 11. Knapp, 47 Barb. 549. ii. 57. - 11. Turk, 12 Pet. 338. i. 389 ; ii. 272. «. Whitman, 1 Curt. C. Ct. 494 ii. 60. .V. Wright, 33 Sow. 19. ii. 230. Whitely v. Swayne, 7 Wall. 685. i, 507. Whiting V. Bank of the United States 18 Pet. 6. ii. 234. TABLE OF CASES. 671 Wliitney r. Emmett, Baldw. 303. i. 503, 513, 515, 518, 531, 528, 536 : ii. 197. c. , 6 Sow. 487. i. 517. • V. Krows, 11 Barb. 198. i. 379, 381. Whittemore v. Cutter, 1 Gcdl 439. i. 538. ■ V. , 1 Gatt. 478. i. 503, 536. Whitton V. The Commerce, 1 Pet. Adm. 160. i 613. "Wickliffe v. Owings, 17 How. 47. ii. 68. Wiggins V. Gray, 24 How. 303. 1 340 ; . ii. 273. Wilbur V. Beecher, 3 Blatehf. 133. L 513. Wilcox V. Jackson, 13 Pet. 498. ii 134. ■». Hummer, 4 Pet. 172. ii. 374. Wilder c. Gayler, 1 Blotch/. 597. ii 62. ■!!. McCormick, 3 Blatehf. 81. i. 490; ii. 59. B. Winne, 6 Cow. 384. i. 378. Wilkes r. Dinsman, 7 How. 89. ii. 133, 134. «. Ferris, 5 Johns. 335. i 878. Wilkinson v. Greely, 1 Curt. G. Ct. 63. ii. 196. V. Tale, 6 McLean, 16. i. 333. WiUard «. Dorr, 3 Mm. 91; Id. 161. i. 605. William Jarvis, The, 1 Spragvs, 483. i. 606. , William Martia, The, 1 Bpraffue, 564. L609. Williams o. Bank of the United States, 11 Wheat. 414. iL 349. V. Benedict, 8 How. 107. i. 338 ; ii. 149. ■p. Brown, 4 Johns. Ok. 683. 1 378 B. The Jenny Lind, Neaeb. 443. L 573 594. v. Norris, 13 TT/ieo*. 117. i. 327; ii. 355. V. Oliver, 13 Hma. 111. L 334; iL 233. V. Suffolk Ins. Co., 3 Sitmn. 370 ; 1 LaiB Bep. 153; 13 Pe«. 415. L 595. Williamson v. The Alphonso, 1 Curt. G. Ct. 376. i. 577. V. Berry, 8 5"om!. 495. i. 183. Willson ®. Black Bird Creek Marsh Co., 3 Pet. 245. i. 331. Wilson, Mep., 6 Cranch, 53. i 478. ». Bamum, 1 WaU. Jr. C. Ct. 343 ; 3 .P%A. 635. iL 59, 131. Wilson s. Bamum, 8 Saw. 358. L 340 ; ii. 373. ■». Blodget, 4 McLean, 363. ii. 88. V. City Bank, 3 Sumn. 423. iL 54. •». Clark, 11 /»;d Slates or brought into said courts by appeal, writ of error, or removal from any State court, wherein a State is a party, br where the execution of the revenue laws of any State may be enjoined or stayed by judicial order or process, it shall be the duty of any court in which such cause may be pending, on suifiicient reason shown, to give such cause the preference and priority over all other civil causes pending in such court between private parties. And the State, or the party claiming under the laws of the State, the execution of whose revenue laws is en- joined or suspended, shall have a right to have such cause heard at any time after such cause is docketed in such court, in preference to any other civil cause pend- ing in such court between private parties. 124/ STATUTES OF PRACTICAL UTILITY ACT OF JULY 1, 1870. . FoRTT-FiEST Congress, Session IL, Ch. 186, 16 iSfat. at L., 179. An Act in Relation to Circuit Courts. Place of holding Circuit Courts. Nothing in the " Act to amend the ju- dicial system of the United States,'' approved April ten, eighteen hundred and sixty-nine,' shall be construed to require a Circuit Court to be held in any ju- dicial district in which a Circuit Court was not required to be held by previously existing law. ACT OF JULY 8, 1870. FoRTT-FiEST Congress, Session IL, Ch. 230, 16 Stat, at L., 198. An Act to Revise, Consolidate, and Amend the Statutes Relating to Patents and Copyrights. Office. §§ 1-20. [Relate to the organization of the patent-ofEce, and the powers and duties of the commissioner an i various subordinate officers therein.] Patents. §§ 21-54. [Define the cases and manner in which patents may be issued, and regulate the proceedings in the patent-office relative to caveabs, pat- ents, appeals, re-issues, disclaimers, &c.] Jurisdiction of patent causes. § 55. All actions, salts, controversies, and cases arising under the patent laws of the United States, shall be originally cog- Bizabla, as well in equity as at law, by the Circuit Courts of the United States, or any District Court having the powers and jurisdiction of a Circuit Court, or by the Supreme Court of the District of Columbia, or of any Territory ; and the court Bhall have power, upon bill in equity filed by any party aggrieved, to grant in- junctions according to the course and principles of courts of equity, to preve^jt the violation of any right, secured by patent, on such terms as the court may deem reasonable ; and upon a decree being rendered in any such case for an infringe- ment, the claimant [complainant] shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby, and the court shall assess the same, or cause the same to be assessed under its direction, and the court shall have the same powers to increase the same in its discretion that are given by this act to increase the damages found by verdicts in actions upon the case ; but all actions shall be brought during the term for which the letters patent shall be granted or extended, or within six years after the expiration thereof Error or appeal. § 56.* A writ of error or appeal to the Supreme [*207] Court of the United States shall lie from all judgments and decrees of any Circuit Court, or of any District Court exercising the jurisdiction of s Circuit Court, or of the Supreme .Court of the District of Co] imbia, or of any ' Ante, 1246. AFFECTING COURTS AND PROCEDURE. 124^ IVrritory, in any action, suit, controversy, or case, at law or in equity, toucliing patent rights, in the same manner and under the same circumstances as in othei judgments and decrees of such Circuit Courts, wilhout regard to the sum or valua in controversy. Evidence. § 57. Written or printed copies of any records, booljs, papers, or di-awings belonging to the patent-office, and of letters patent under the signature of the commissioner or acting commissioner, with the seal of office affixed, shall be competent evidence in all cases wherein the originals could be evidence, and any person making application therefor, and paying the fee required by law, shall have certified copies thereof. And copies of the specifications and drawings of foreign letters patent, certified in like manner, shall be prima facie evidence of the fact of the granting of such foreign letters patent, and of the date and contents thereof. Remedy for interference. § 58. Whenever there shall be interfering pat- ents, any person interested in any one of such interfering patents, or in the work- jog of the invention claimed under either of such patents, may have relief against the interfering patentee, and all parties interested under him, by suit in equity hgainst the owners of the interfering patent; and the court having cognizance thereof, as hereinbefore provided, on notice to adverse parties, and other due pro- ceedings had according to the course <)f equity, may adjudge and declare either of tl»e patents void in whole or in part, or inoperative or invalid in any particular par*' 'if the United States according to the interest of the parties in the patent or tho mvention patented. But no such judgment or adjudication shall affect the rights of any person except the parties to the suit, and those deriving title under them subsequent to the rendition of such judgment. Damages. § 59. Damages for the infringement of any patent may be re- covered by action on the case in any Circuit Court of the United States, or District Court exercising the jurisdiction of a Circuit Court, or in the Supreme Court of the District of Columbia, or of any Territory, in' the name of the party interested, either as patentee, assignee, or grantee. And whenever in any such action a verdict shall be rendered for the plaintiff, the court may enter judgment thereon for any sum above tha'amount found by the verdict as the actual dam- ages sustained, according to the circumstances of the case, not exceeding three times the amount of such verdict, together with the costs. Remedy wliere specification is too broad. § 60. Whenever, through inadven- ence accident, or mistake, and without any willful default, or intent to defraud or mis- lead the public, a patentee shall have (in his specification) claimed to be the original or first inventor or discoverer of any material or substantial part of the thing pat- ented of which he was not the original or first inventor or discoverer as aforesaid, every such patentee, his executors, administrators, and assigns whether of the whole or any sectional interest in the patent, may maintain a suit at law or in equity, for the infringement of any part thereof, which was bona fide his own, provided it shall be a material and substantial part of the thing patented, and be definitely distin- guishable from the parts so olairaeti without right as aforesaid, notwithstanding the specifications may embrace more than that of which the patentee was tlia original or first inventor or discoverer. But in every such case in which a judg- ment or decree shall be rendered for the plaintiff, no costs shall be recovered un- ices the proper disclaimer has been entered at the patent-office before the com« 124h STATUTES OF PEACTICAL UTILITY mencement of the suit ; nor sl^all he be entitled to the benefits of this section if he shall have unreasonably neglected or delayed to enter said disclaimer. Plea and notice in actions for inMngements. § 61. In any action for in- fringement the defendant may plead the general issue, and having given notice in writing to the plaintiflf or his attorney thirty days before, may prove on trial any one or more of the following special matters : First. That for the purpose of deceiving the public, the description and spe- cification filed by the patentee in the patent-office was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect ; or Second. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same ; or Third. Tha;t it had ' been patented or described in some printed publication, prior to his supposed invention or discovery thereof; or Fourth. That he was not the original and first inventor or discoverer of any aaaterial and substantial part of the thing patented; or Fifth. That it had been in public use or on sale in this country, for more than two years before his application for a patent, or had been abandoned to the public. , And in notices as to proof of previous invention, knowledge, or use of the thing patented, the defendant shall state the names of patentees and the dates of th«ir patents, and when granted, and the names and residences of the persons al- leged to have invented or to have had the prior knowledge of the thing patented, and where and by whom it had been used ; and if any. one or more of the .special matters alleged shall be found lor the defendant, judgment shall be rendered for him with costs. And the like defenses may be pleaded in any suit in equity for relief against an alleged infringement ; and proofs of the same may be given upon like notice in the answer of the defendant, and with the like effect. Invention described abroad. § 62. "Whenever it shall appear that the patentee, at the time of making his application for the patent, believed himself to be the original and first inventor or discoverer of the thing patented, the same shall not be held to be void on account of the invention or discovery, or any part thereof, having been known or used in a foreign country, before his invention or discovery thereof, if it had not been patented or described in a printed publi- eation. Extensions. §§ 63-67. [Authorize extensions of patents to be granted.] Fees. §§ 68-70. [Prescribe fees in the patent-office, and how they shall be applied.] Designs. §§ 71-76. [Authorize patents for designs.] Trademarl£S. §§ 77, 78. [Authorize and regulat~e the registry of trade- marks.] Remedy for infringement of tradeniarlis. § 79. Any person or corporation who shall reproduce, counterfeit, copy, or imjtate any such recorded trademark, and affix the same to goods of substantially the same descriptive properties and qualities as those referred to in the registration, shall be liable to an action in> th« case for damages for such wrongful use of said trademark, at the suit of the owner thereof, in any court of competent jurisdiction in the United States, and AFFECTING COURTS AND PROCEDURE. 124i the party aggrieved shall also have his remedy according to the course of equity to enjoin the wrongful use of his trademark apd to recover compensaiion therefor in any court having jurisdiction over the person guilty of suoh wrongful use. [Cer- tain insufScient trademarks disallowed.] Eyidence. § 80. The time of the receipt of any trademark at the patent- office for registration shall be noted and recorded, and copies of the trademaik and of the date of the receipt thereof, and of the statement filed therewith, undel the seal of the patent-office, certified by the uommis.sioner, shall be evidence in any suit in which such trademark shall be brought in controversy; Regulations. | 81. [Commissioner may prescribe rules and forms relative to trademarks.] False representations. § 82. [Gives an action for damages to any person injured by a registry or entry relative to a trademark procured by false repre- sentations, &c.] Former remedies preserved. § 83. Nothing in this act shall prevent, lessen, impeach, or avoid any remedy at law or in equity, which any party ag- grieved by any wrongful use of any trademark might have had if this act had uot Deen passed. Injurions articles. Fraudulent trademarks. § 84. [Forbids action for in- fringement of any trademark which is used or claimed in any unlawful business, or upon any article which is injurious in itself, or upon any trademark which has oeen fraudulently obtained, or formed and used with the design of deceiving the public] Copyrights. §§ 85-103. [Transfer the supervision of matters connected with copyrights to the librarian of Congress; and prescribe the mode of obtaining and transferring copyrights and extensions of copyrights ; and their effect ; and pre- scribe certain penalties, forfeitures, and actions for damages for infringements of copyright, or for any unauthorized publication of manuscripts.] Limitation of actions. § 104. No action shall be maintained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced ■within two years after the cause of action has arisen. Plea. § 105. In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence. Jurisdiction. Injunctions. § 106. All actions, suits, controversies, and cases arising under the copyright laws of the United States shall be originally cognizable, as well as in equity as at law, whether civil or penal in their nature, by the Circuit Courts of the United States, or any District Court having the juris- diction of a Circuit Court, or in the Supreme Court of the District of Columbia, or any Territory. And the court shall have power, upon bill in equity, filed by any party aggrieved, to grant injunctions to prevent the violation of any right se- cured by said law, according to the course and principles of courts of equity, on such term's as the court may deem reasonable. Error or appeal. § 107. A writ of error or appeal to the Supreme Court of the United States shall lie from all judgments and decrees of any court in any action, suit, controversy, or case touching copyrights in the same manner and under the same circumstances as in other judgments and decrees of such courta without regard to the sum or value in controversy. 134y STATUTES OF PRACTICAL UTILITY Costs. § 108. In all recoveries under the copyright laws, either for damages( forfeitures, or penalties, full costs shall be allowed thereon. Records, &c. §§ 109, 110. [Provide for the custody of books, publicatioas, &c., transmitted >mder the copyright laws.] Repeal. § 111. [Repeals former laws relative to patents and copyrights;' Provided, " That the repeal hereby enacted shall not affect, impair, or take away any right existing under any of said laws ; but all actions and causes of action both in law and in equity, which have arisen under any of said lawss, may be com- menced and prosecuted, and if already commenced may be prosecuted to fina. judgment and execution, in the same manner as though this act had not been passed, excepting that the remedial provisions of this act shall be applicable to all suits and proceedings hereafter commenced;" and "That all offenses which are defined and punishable under any of said acts, and all penalties and forfeitures created thereby, and incurred before this act takes effect, may be prose- cuted, sued for, and recovered, and such oSenses punished according to the pro- visions of said acts, which are continued in force for such purpose."] ACT or JULY 14, 1870. * FoETT-PiRST Congress, Session II., Ch. 254, 16 Stat, at L., 254, An Act to Amend the Naturalization Laws, and to Punish Crimes against the Same, and for other Purposes. Pnnlsliinent of offenses. §§1-3. [Define and prescribe punishment for va- rious offenses against the naturalization laws, or affecting their administration.] Jurisdiction. § 4. The provisions of this act shall apply to all proceedings had or taken, or attempted to be had or taken, before any court in which any pro- ceedings for naturalization shall be commenced, had, or taken, or attexpted to be commenced; and the courts of the United States shall have jurisdiction of all offenses under the provisions of this act in or before whatsoever court or tribunal the same shall have been committed. Purity of elections. §§ 5, 6. [Authorize measures to enforce regularity and good order at elections.] Africans. § 7. The "naturalization laws are hereby extended to aliens of African nativity, and to persons of African descent. ' It has been urged that this repealing limited to the provisions of former laws section repeals not only those portions which relate to patents and copyrights; of the acts designated -yvhich relate to and such has been the decision of the patents and copyrights, but also other Supreme Court of the District of Co- portions which are found in many of lumbia in a recent, but unreported, the acts relating to such subjects as the case. No question, however, is made organization of the Interior Department; but that the patent and copyright see- the powers of "acting" officers in the va- tions of the former acts are repealed, ae rious departments ; the punishment for stated in the text ; and this is all that embezzlement of public moneys, &c. is important to the purposes of this The better opinion is, that the effect of work, the repeal is not so extensive, but iu A.FFECTING COURTS AND PEOCEDUEE. 124* ACT OF JXJIT 15, 1870. FoRTT-FiRsi CoKORESs, SESSION II., Ch. 298, 16 Stat, at L., 363. An Act to Provide for the Compensation of Grand and Petit Jurors in the Circuit and District Courts of the United States, and for other Purposes. Fees of jurors. § 1. Hereafter the grand and petit jurors in the severa. Circuit and District Courts of the Tmited States shall each receive for his services the sum of three dollars per day for each day's actual attendance at court, and for the time necessarily occupied in going to and returning from the same ; and the sum of five cents per mile for the distance necessarily traveled from their residence in going to and returning from said court by the shortest practicable route. ChaUenges. § 2. No person shall be summoned as a juror in any Circuit or District Court more than once in two years, and it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he had been sum- moned and attended said court as a juror at any term of said court held withiu two years prior to the time of such challenge. BepeaUng elanse. § 3. [Eepeals act of March 3, 1849, conoerniiig the selec- tion of jurors ; and act of March 19, 1842, relative to the judiciary.] INDEX. Abandonment — of patent, i. 535. of vessel or property at sea, i. 576. of seizure, i. 629. effect of death of party,- i. 15, 128 ; ii. 69. of formal defect, i. 16. of Territory becoming State, i. 279. plea to jm-isdiction, ii. 55. effect of marriage of party, ii. 70. Abridgement — when infringement of copyright, i. 402. of judge, i. 6, 37, 367. 385, 387. of defendant, i. 56, 154, 249. of bankrupt, i. 161. of person accused of crime, ii. 175. punishment of, i. 18, 437. none in treason, i. 410. Accident — inevitable or inscrutable, as cause of collision, i. 385, 387. Account — reference to take, i. 145. form of rendering, i. 146. Accounts-^ of marshal, i. 26, 74. of delinquent officers, suit to settle, i. 80,43; iL 151. of clerk, i. 74. of assignee in bankruptcy, i. 109, 110, 163 ; ii. 506. of treasury department, evidence of, ii. 133. Achnowledgment — of bail, taken by commissioners, i. 264. Action — splitting, i. 41. consolidation, i. 71. ■where brought, i. 78. time of comnibncing, ii. 1, Action — continued — local and transitory, distinguished, i. 251. against delinquent officers, i. 30, 43 ; ii. 151. on marshal's bond, i. 89 ; ii. 3, 146. against officers for military arresta, &c., i. 83, 91, 318 ; ii. 36. of revenue, i. 570. by assignee, i. 7, 306 ; ii. 16, 54. by or against assignee in bankruptcy, i. 96, 103, 103. against bankrupt, stayed, i. 105, 371. for office, i. 134«. for removal from office, i. 124A for infringement of trademarks, i. 134 A. under copyright laws, i. 43, 55, 134«, 400. for infringement of patent, i. 43, 55 134/, 493, 496, 507, 510,' 515,548; ii. 145. for seamen's wages, i. 151, 264, 606 ; ii. 137. amicable -action, nature of, ii. 316. under revenue laws, i. 51, 304, 555 ; ii. 35. for duties, by United States, i. 555. for excess of duties, against collec- tor, i. 561. relative to internal revenue taxes, i. 568. for penalties, i. 7, 293, 569. parties to, ii. 8. See Cause of Action. Adjournment — of courts generally, i. 6. of Supreme Court, i. 130. of Circuit Courts, i. 57. of District Courts, i. 60. of hearing of reference, i. 146. of trial, generally, i. 15 ; ii. 140. of minor offenses, i. 85. of examination of person accused, ii. 174. See Continuance; Postponement. 5S2 INDEX. Administrator — how brought in on death of party, i. 15, 137. See Bxecutor. Admiralty — jurisdiction, generally, L 3, 7, 172, 306, 347. its extent, i. 63, 173, 306, 391, 353, 573, 631. ■what cases are within, i. 306, 289, 348. as affected by locality, i. 348. by subject-matter, i. 355, 206. , by character of parties, i. 355. of salvage cases, i. 572. of seamen, i. 597. over inland waters, i. 63, 306, 291, 353. evidence in, i. 14, 137 ; ii. 76, 120. appeals in, i. 10. 37, 127, 155, 303, 318;ii. 227, 333,339,254. rules of practice and pleading in, i. 149 ; ii. 73. process in, i. 149, 150 ; ii. 36, 104. when suits in rem may be brought, i. 151. when suits in personam may be brought, i. 151. distinction between petitory and possessory suits, i. 631. parties in, i. 11, 21, default in, ii. 51. effect of variance, ii. 76. inspection of writings, not allowed in, ii. 95. attachment in, ii. 104. costs, i. 153,'153, 155;ii.l55. forms of proceedings, ii. 370, 534. Admission — ■ of truth of plea by failure to reply, i, 138. Affidavit — clerks may take, i. 27, 367. commissioners may take, i. 41, 364. for removal of cause, i. 133 ; ii. 863. of service of process, i. 135. Affirmance — judgment on, ii. 366. costs, ii. 267. Affirmation — courts may administer, i. 10. allowed in lien of oath, i. 148. See Oath. Affreightment — nature of the contract, i. 685. jurisdiction of questions upon, i. 636. rules of interpretation, i. 637. Agent — of importer not liable fbr duties^ i. 561. may interpose claim in admiralty; ii. 78. Aliens — jurisdiction of suits by or against, i. 2, 7, 9, 175. 293, 304. removal of suits against, i. 8, 92 ; ii. 34, 38. natm-alization of, 1, 34, 38, 46, 134j, 368. habeas corpus for, i. 61, 479. rights as inventors, i. 539. averment of alienage in pleading, ii. 54. See Foreign State. Allowances — to assignee in bankruptcy, i. 110. Ambassadors — jurisdiction of cases affecting, i. 2, 9, 173, 305. no process to issue against, i. 31, 461. violence to, punishable, i. 460. Amendment — • of defects in proceedings generally, i. 16,85, 142; ii. 107. of petition, schedule, &c., of bank- rupt, i. 109, 159, 161, 166. of pleadings in equity, i. 137, 140, 142. of decrees, i. 147. of pleadings in admiralty, i. 153. of specifications on application for patent, i. 134^, 434, of writ of error, ii, 319. distinction between defects of form and of substance,' ii. 108. when to be made, ii. 108. within discretion of courts, ii. 109. practice as to making, ii. 109. on appeal, ii. 219. Answer — In equity. requisites, i. 139. how verified, i. 142. amendment, i. 142. exceptions to, i. 143. form, ii. 340. In admiralty, requisites, i, 158, 156 ; ii. 80. exceptions to, i. 158 ; ii. 81. how verified, i, 153 ; ii, 81, form, ii, 384, 410. to interrogatories, i. 139, 153 ; ii. 98, 886. in seizure, ii. 436. INDEX. 683 Appeal — different modes of exercising appel- late jurisdiction, ii. 313. consent does not give jm-isdiction, i. 183 ; ii. 214. dependent upon statute, iL 217. parties, ii. 347. appearance on, i. 128; ii. 318. notice of, ii. 318. amendments on, ii. 319. what judgment or decree may be appealed from as " final," i. 325 ; ii. 220, 233. how appeal is taken, ii. 253. what questions are reviewed, iL ' 238. rules of decision on, ii. 231, 266. as dependent on value, i. 334. distinguished from writ of error, i. 337 ; ii. 213. proceedings upon habeas corpus are in the nature of, i. 483 ; ii. 214. evidence on, i. 15, 38, 127, 156; a 340. judgment on reversal, i. 11 ; ii. 343. time for taking, i. 121 ; ii. 250. district judge may hear, i. 133. security required, i. 131 ; ii. 239. record on, i. 73, 79, 133, 157. stay of execution, i. 37 ; ii. 164. execution postponed in capital cases, i. 124a. what objections may be taken on, ii 228. discretion of court below sustained, ii. 230. effect of change of statute, ii. 331. death of party pending re- view, ii. 247. no appeal from State courts, ii 270. by United States, ii. 259. in admiralty, i 10, 37, 155, 156, 157, 303, 318; iL 333, 239, 534. in patent and copyright cases, i. 48, 5^, 79, 124/, 134i. in proceedings against delinquent . officer, i. 44. in proceedings on habeas corpus, i. 61, 94, 133 ; iL 310. in prosecutions against officers for acts during the rebellion, i. 83. • in proceedings under civil rights bill,, i. 90. in bankruptcy, i. 98, 99, 107, 164 ; ii. 527. from Court of Claims,!. 132. 193, 276. in questions not judicial, i. 192. Appeal — continued — From District to Circuit Court, in general, i. 7, 37, 303 ; ii. 233, 239. in admiralty, i. 10, 303; ii. 233, 534. in habeas corpus proceedings, i. 61, 304 ; ii. 345. from decision upon injunction ugainst treasury warrant, i. 44 ; ii. 343. in bankruptcy, i. 98, 107, 304 ; ii. 537. limited by amount, ii. 334. time for taking, iL 338. how perfected, iL 338. ' mandamus to compel allowance of, ii. 239. hearing, L 133 ; ii. 336, 240. procedure, generally, ii. 340. judgment, ii. 243. From Circuit Court to Supremo Court, in general, i. 9, 11, 37, 317 ; ii. 246. in patent cases, i. 43, 79, 124/, 317. in habeas corpus proceedings, i. 61, 94, 133. in copyright cases, i. 43, 79, 124i, 317. under civil rights bill, i. 90, 813. in bankruptcy, L 99, 318 ; ii. 244 . procedure, ii. 253. form of process, ii. 257, 536. return, ii. 255. record, ii. 256. security on, ii. 358. dismissal, ii. 263. From DistiLct Court to Supreme Court, in admiralty, i. 37, 318.. from Court of Claims t6 Supreme Court, i. 376, 319. from Territorial Courts to Supreme Court, L 320. from Courts of District of Columbia to Supreme Court, i. 337, 321. Appearance — effect of appearance, i. 131, 348, 371 ; ii. 81, 48, 2"18. waiver of objections by, in general, ii. 49. time of, in equity, L 135. when required, i. 141. in banlcruptcy, L 158. right to appear by attorney, L 17j iL 47. of corporation, ii. 47. withdrawal of, ii. 50. failure to appear, L 128 ; ii. 50, 584 INDEX. A2'>penran ce — con tinued — form of entry of, ii. 379, 533. on appeal, i. 138 ; ii. 318. Appellint — right to open and close, i. 139. when entitled to costs, i. 139. Appellee — when entitled to costs, i. 139. Application — of creditor to contest discharge of bankrupt, i. 113. for submission of controversy in bankruptcy, i. 103, 163. Appraisal — on executions, i. 39; ii. 161. Ai'hitration — submission of controversy in bank- ruptcy, i. 103, 163. settlement of salvage claims by, i. 594. Arguments — rules of Supreme Court as to, i. 138. in courts of equity, i. 138. on objection for defeat of parties, i. 141. Arrest — privilege from, of members of Con- gress, i. 1 ; ii. 31. of ambassadors, &c., i. 31, 461 ; ii. 31. of mail carrier, i. 438. in civil action, i. 7 ; ii. 30. in criminal proceeding, i. 16, 63 ; ii. 174. of deserting seamen, i. 33, 34, 49, 364, 617 ; ii. 308. in several districts, i. 33. by bail, i. 63. of witness, 59, 64;ii. 468. when bankrupt is protected from, i. 109, 117, 158. under act to enforce right to vote, i. in suits in admiralty, i. 149, 150, 151 ; ii. 37, 81, 76. how made, ii. 33. locality, i. 7, 353. of mail carrier, i. 438. when satisfaction of judgment, ii. 169. of judgment, in criminal cases, ii. 183. during rebellion, actions for, i. 83, 91, 318 ; ii. 36. Arson — punishment, i. 436. burning vessel, i. 431. Article — separate, necessary in libel, ii. 75. in information, ii. 86. Assaults — form of suits for, in admiralty, i. 151 punishment of, i. 435. indictment for, ii. 179, 464. Assessment — of damages on default, i. 13 ; ll. 50. of bankrupt, care of, i. 103. right to sue, i. 7, 306 ; ii. 16, 54. title of, ii. 16, 30. in bankruptcy, who may be, i. 104. suits against, i. 96, 103. suits by, i. 103. appointment, i. 100, ' 160, 365, 368; U. 490. powers and duties, i. 101, 109 163, 365. change of, i. 103. report, i. 109 ; ii. 505. accounts, i. 109, 110, 163 ; ii. 505. of copyright, may sue for infringe ment, i. 399. of patent, may sue for inffingement, i. 54, 134<7. may surrender for reissue, i. 494, 495. title of, i. 533. right to extension or renewal, i. 535. right to continue use of thing patented, i. 535. Assignment — effect on right of action, i. 7, 306 ; ii. 16, 54. under bankrupt law, i. 100, 365 ; ii. 493. by insolvent, i. 377. to hinder creditors, i. 377. preferring creditor, i. 378. for benefit of creditors, i. 383. of copyright, i. 399. of patent, i. 494, 495, 499, 533. Assistance {Writ of) — when to issue, i. 134. Attachment — effect of removal of cause, i. 8, 83, 93, 133,134; ii. 45, 103. dissolution of, i. 65, 149 ; ii. 99. dissolution by proceedings in bank- ruptcy, i. 101. at common law, ii. 95, 381. in admiralty, i. 149, 154; ii. 104, 373. fi-onl State court, i. 333, 338 ; ii. 103. State practice as to, how far adopted, ii. 96. of debts of corporation, ii. 100. INDEX. 585 Attachment — continued — against property held by the United States, ii. 101. of imported goods subject to pay- ment of duties, ii. 101. of salaries of government employees, ii. 103. not to issue against non-resident, ii. 105. against witness for non-attendance, i. 84, 146. 310. against party for disobedience, i. 134, 135, 147 ; ii. 393. to compel answer, ii. 338. for costs, i. 137, 373. Attorney General — appointment, i. 7. duties, i. 17, 373. Attorneys — liable for unnecessary costs, i. 43, 373. compensation, i. 70, 373. in proceedings in bankruptcy, i. 107, 158. admission to Supreme Court, i. 135, 369. oath. i. 135. 370. judges may not be, i. 359. power of courts to punish, i. 371. death of. i. 371. _ partnerships of, i. 371. appearance bj, i. 17; ii. 47. Auction — sales of bankrupt's property to be by, i. 163. Authentication — of records, &c., i. 33, 88, 65, 124a, 124fir. in extradition proceedings, ii. 305. B. Bail — excessive, forbidden, i. 3. on removal of cause, i. 8, 53, 83, 93, 93, 133, 134. in action at law, ii. 30. . in criminal proceedings, i. 16, 28, 63, 64 ; ii. 174, 459, 468. who may take, i. 16, 37, 28, 41, 51, 363, 267. I discharged on subsequent arrest of defendant, i. 33. in admiralty, i. 51, 149, 156 ; ii. 31. arrest by, i. 63. reducing, i. 150 ; ii. 32. commissioners to take, i. 59, 363, 264. Bail — continued — summary protest against, i. 149 ; ii, 33 form of bond,'ii. 278, 459, 468. See Seawrity ; Stipulation. Congress may make uniform law, L 1, 356. the bankrupt law, i. 96, 124 ; ii. 301. general orders in, i. 99, 158. discharge of bainkrupt, i. Ill, 134, 163. appeals in, i. 98, 99, 107, 164, 304, 307. 318 : ii. 344, 527. forms, i. 165 ; ii. 469. extent of jurisdiction, i. 338, 294, 307, 359. attorneys and counselors in, i. 270. States may pass bankrupt laws, i. 357. distinguished from insolvency, i. 359. voluntary and involuntary,' distin guished, i. 362. procedure in, i. 365 ; ii. 63, 200, 469. proof of debts, i. 104, 869; ii. 494. what property is exempt, i. 101, 366 ; ii. 493. effect of fraud by bankrupt, i. Ill, 112, 113, 119, 375. effect upon assignment for benefit of creditors, i. 383. practice in, i. 98, 124, 158, 165, 365 ; ii. 200. Belligerents — neutrality towards, how maintained, i. 458. Benefit of clergy — not allowed, i. 21. punishment, i. 427. BUI in equity — when taken pro confesso, i. 133, 135 ; ii. 51. form of, i. 136, 187, 139 ; ii. 65, 335. amendment, i. 137. parties to, i. 140. for interference of patents, i. 54, 124^-. for infringement of patent, i. 43, 55, 124/, 306, 543. for violation of copyright, i. 43, 55, 124i, 306, 401. must aver jurisdictional facts, ii. 67. Mil of exchange — right of assignee to sue, i. 7 ; ii. 19. Bill of lading — nature of the contract, i. 636. jurisdiction of questions upon, i. 636.. Bill of revivor — when proper, i. 142, 305 ; ii. 69. 686 INDEX. Sill of retnvor — continued — requisites, i. 143. effect, ii. 69. Bill of sale — of vessel, by marshal, ii. 394. Blockade — what is violation of, i. 551. Bona fide purchaser — may set up defense by answer, i. 139. Bond— of clerk, i. 6. of marshal, i. 13, 13, 39; ii. 3, 146. on appeal, i. 99; ii. 358, 534. on writ of error, ii. 539. of assignee in bankruptcy, i. 101, 104; ii. 493. of register in banlrruptcy, ii. 487. - of indemnity to marshal, i. 160. on removal of cause from State court, ii. 362, 365. of non-resident party for costs, ii. 380. ' given by bail, in action at law, ii. 378. [ to marshal, on arrest in admiralty, ii. 375. how pleaded, i. 31. See Security ; Stipulation ; UndertaKng. Bottomry "bond — ■ jurisdiction of questions upon, i. 638. form of suits, i. 151. form of libel on, ii. 407. answer to libel on, ii. 410. Bribery — punishment, i. 30, 431. of officers generally, i. 431. of judge, i. 443. Briefs — rules of Supreme Court as to, i. 138. Burden of proof — in action for property by white against Indian, ii. 135. of negligence by owners of steam- boat, ii. 135. of frauds upon the revenue, ii. 135. of jurisdictional facts, ii. 136. m suits tor seamen's wages, i. 603, 606; ii. 137. 0. Calendar — ' of Supreme Court, i. 126, 130. See JDoeJcet. Capias ad respondmiAUjm — when issued, ii. 24. form, ii. 277. Capias ad satisfadimdwm — when issued, i. 36. form, ii. 333. Captures — jurisdiction of, i. 390. authority to make, i. 546. grounds of, i. 548. salvage for recapture, i. 565. Cargo — subject to salvage, i. 573. embezzlement of, by seamen, i. 615, not forfeited with vessel, i. 633. lien upon, for freight, i. 636. consignee may claim, ii. 78. Carriers — removal of suits for loss during re- bellion, ii. 40. Case — action on the, for infi-ingement of patent, i. 134$'; ii. 59. for violation of copyright, ii. 59. Cases certified — on division of opinion in Circuit Court, i. 86, 338 ; ii. 314. on disability of district judge, i. 386., Cause of action — for collision, i. 385. when it survives, ii. 69. See Action. Certiorari — courts may issue, i. 353 ; ii. 88. to State court for removal of cause, i. 53 ; ii. 368. for diminution of record, on appeal, i. 137; ii. 354, 361. Challenge — to jurors, qllowed accused, i. 31, 407. cause of, i. 80, 261. tried by the court without triers, L 407 ; ii. 141. Charter-party — nature of contract, i. 634. jurisdiction of questions upon, i. 635. Children — of naturalized citizens, i. 36, 38. Circuit Courts — organization, i. 6, 38, 36, 37, 1346, 344, 299. adjournment, i. 6, 57, 302. jurisdiction, generally, i. 7, 243, 303. in patent and copyright cases, i. 43, 134/, 1244, 306. under revenue laws, i. 51, 304. under civil rights bill, i. 88. in bankruptcy, i. 96. under act enforcing right to vote, i. 124c, 124«. INDEX. 587 Circuit Courts- jmisdiction — contin- ued — at common law, i 7, 304. in equity, i. 7, 304, 307. of suits by United States, i. 304. ■when dependent on character of parties, i. 305. amount, i. 10, 37 ; ii. 234. in admiralty, i. 306. under civil rights bill, i. 88, 307. in bankruptcy, i. 96, 362, 307, 360. criminal, i. 7, 307. on appeal, generally, i. 7, 10, 37, 303; ii. 233. in habeas corpus cases, i. 61; ii. 245. in bankruptcy, i. 98, 107. in admiralty, ii. 233, 236. on wi'it of error, in general, i. 7, 10, 303 ; ii. 233. in bankruptcy, i. 98, 107. removal of cases to, for interest of district judge, i. 37, 45, 286; ii. 45. from another Circuit Court, i. 57 ; ii. 46. stay of execution, i. 10. costs in, i. 10. may appoint commissioners, i. 41. may appoint clerks, i. 56. always open in equity, i. 60, 133, 301. may remit indictments to District Court, i. 63, 262 ; ii. 181. time and place of holding, i. 124/", 301. rules of, i. 138, 148, 149, 156. may issue mandamus, i. 303. powers on appeal, ii. 239. District Courts as, i. 294. review of decisions, i. 11, 37, 317; ii. 246, 535. Citation — on writ of error or appeal, requisites, i. 11,12, 95,131; ii.356. service of, ii. 356. form, ii. 256, 530, 536. in admiralty, form, ii. 373. to creditor on discharge of poor debtor, i. 80, 45. Citizens — jurisdiction, when dependent on citizenship, i. 2, 4, 7, 174, 309, 304. removal of causes, on account of citizenship, i. 8, 93; ii. 34, 38. naturalization, i. 34, 38, 46, 134_;. who are citizens, i 88, 311 ; ii 130. Citizens — continued — rights of, i. 88, 124i, 124^. change of domicil, i. 211. right to vote secured, i. 124 to irregularity, generally, ii. 147. Wan- — levying, defined, i. 408. jurisdiction of captures, i. 545. authority to make captures, i. 546. right to resist capture, i. 548. pr«w — continued — what property is liable to capture, i. 548. what is violation of blockade, \. 551. what is contraband, i. 553. effect on statutes of limitations, i. 84; ii.4. See Neutrality ; Mebellion. Warrant — constitutional restriction, i. 3 ; ii. 174. ■to arrest witness, i. 64, 108; ii. 468. against estate of bankrupt, i. 100, • 117 ; 484, 519. of arrest in admiralty, i. 149, 150; ii. 37, 375. in criminal proceedings, i. 16 ; ii. 173, 458, 467. who may issue, ii. 173. of attachment, ii. 381. of restitution in seizure, iL 437. WitTxess — defendant not compelled to testify, i. 3, 139, 153. juror not compelled to testify to his own misconduct, ii. 196. recognizance of, i. 16, 56, 64. attendance, generally, i. 38 ; ii. 135. on' commission, i. 47, 84, 146. before examiner, i. 144. master, i. 146. fees, i. 64, 69, 75, 84 ; u. 188. in contested election cases, i. 68. competency, i. 81, 375 ; ii. 136. in bankruptcy, i. 98, 108, 160, 363; ii. 510. testimony not to be used against, i. 133. in Court of Claims, i. 375. protected from service of process, if. 29. arrest of, in criminal cases, i. 59, 65 ; ii. 468. when deposition may be taken, i. 14, 45,364; ii. 111. Writ of inquiry — , when issued, ii. 50. forms of proceedings on, ii. 310. ' Writs — generally, power to issue, i. 9, 353. amendment of, i. 16. form, teste, &c., i. 35, 48, 59, 254. service of, i. 13, 124(!, 125, 134. issued from court of equity, i. 134. loss of, ii. 30. See Process; and thetitlesoi the various writs. I