QJnrnpU 2Iaiu ^rlyonl IGibtarg Cornell University Library KF 8754.B78 A manual of the practice in the Circuit 3 1924 020 106 153 Cornell University Library The original of this 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/cu31 9240201 061 53 MANUAL PRACTICE IN THE CIRCUIT COURTS U]:>^ITED STATES, WITH KULES AND FORMS SPECIALLY ADAPTED TO THE PRACTICE AND PROCEEDINGS IN THE SECOND CIRCUIT. COMPILED AND AREANGED By AUGUSTUS A. mYCE, CLERK OF U. S. COTJET. ALBANY: Weare C. Little & Co., Law Publishers and Booksellers. 1869. Entered according to act of Coogress in the year Eighteen'Handred and Sixty-nine Bt AUGUSTUS A. BOYCE, in the Clerk's Office of the District Court in and for Northern District of New York C. VAN BENTHUYSEN & SONS, ) Fbixtnrs, Stkheottpeks and Binbsee. J TO THE I HONORABLE SAMUEL NELSOx\, A JUSTICE OF THE SUPKSMB COURT OP THB tlCXTBD STATES, WHOSE JUDICIAL LABORS FOR NEARLY HALF A CENTURY IN THE 'ourts of the State of Nfe-w Yorlc and of the "United States. ,1 BAYE CONTBIBUTBD SO LAKGELT TO PRESERTE TEE INTEGRITY OF, AND .SgeH lustre upon, tiie Juclsjprutrence ot tjie State anD Katfon ■. AS WELL AS TO DBSEKVB AND COMMAND THE ADMIRATION, RESPECT AND AFFECTION , - THE BAR, •ST) THE CONFIDENCE OF THE PUBLIC, FOR HIS LEARNING, INTEOEITY, COUETEST, AND IMPARTIALITY AS A JUDGE, THIS VOLUME AS A TKIBUTS 07 BESABD AND SBATITCDB, BY THE AUTHOR. PREFACE. The increasing business in the Federal Courts seems to require a ready guide to the student and practitioner, in the courts of the United States. The State Code of Procedure, in New York, has abrogated the distinction between Law and Equity, which distinction is still maintained in the Federal Courts, where the practice conforms generally to that existing before the adoption of the present Code of Procedure. To avoid prolixity, it has been deemed a,dvisable, ' in some instances, to omit extensive extracts from numerous Statutes, Treatises and Reports, and I have undertaken to analize and digest them into as narrow a compass, as would indicate their import. These efforts are now submitted in confidence that ttey will be found accurate in all material respects. At the suggestion of two prominent Counselors of Albany, this work was undertaken in January last, and to their kind cooperation I acknowledge myself ' .ndebted. Now, after three months of interrupted labor, in view of the demand for some useful and Preface. pei'spicuous book, which may supply practical infor- mation and aid to the lawyer, without pretending to furnish authorities or text, found in more elaborate Treatises and Digests already published, this " lijan- ual" is respectfully submitted to the profession. A. A. BOYCE. Utica, May 1st, 1869. CONTENTS. CHAPTER I. Of the Judicial Powbk op the United States. CHAPTEE II. Op the Okganization, Opficbbs and Jurisdiction op the Cibcuit Courts op the United States. Sec. 1. Organization op Circuit Courts. Sec. 2. Judges and Officers of Circuit .Courts. Sec. 3. Original Jurisdiction of Circuit Courts. Sec. 4. Appellate Jurisdiction op Circuit Courts. Sec. 5. Concurrent Jurisdiction op Circuit Courts. PEACTICE OF THE CIRGUIT COURTS, CHAPTER III. Sec. ,1. In Cases in Equity. Sec. 2. Incidental Proceedings in Equity. CHAPTER IV. Sec. 1. In Suits at Law. Sec. 2. Incidental Regulations therein. Sec. 3. Suits removed prom State Courts. ' ' Sec. 4. Suits brought prom District Courts. 1st. By Writ of Error. 2d. By Appeal. CHAPTER V. Sec. 1. In Criminal Cases. Sec. 2. Proceedings in Commissionbrs' Courts. Sec. 3. Criminal Proceedings. 1st. By Habeas Cprpus. 2d, By Certiorari. Contents. CHAPTER VI. On Writs of Bbeob, Appeals and Cbetipicates to United States Supreme Court. Sec. 1. Writs op Error to State Courts. Sec. 2. Writs of Error to Circuit Courts. Sec. 3. Appeals prom Circuit Courts in Equity and in Admiralty Cases. Sec. 4. Certificates of Division in Opinion from Circuit Courts. CHAPTER Vn. Summary of the Organization, Officers and Powers op District- OodIrts. 1. Organization and Officers. 2. General Jurisdiction. 3. Admiralty. 4. Customs Eevenub. 5. Internal Revenue. 6. Bankruptcy. 7. Copyright. .. 8. Naturalization. CHAPTER I. OF THE JUDICIAL POWER OF THE UNITED STATES. As preliminary to a correct understanding of the practice of, the Circuit Court of the United States, it is well to ascertain its relation to, and its arrange- ment in the judicial system, of which it bears a part. Article III, Section 1 of the Constitution of the United States, provides that "the judicial power of the. United States sha*ll be invested in one Suprelne Court, and in such inferior courts as Congress may, from time to time, ordain and establish. The judges, both of the Supreme and of the inferior courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services, a compensa- tion, which shall not be diminished during their con- tinuance in office." Section II, further provides: 1st. TIjat "the judi- cial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambas- sadors, other public ministers, and consuls; to all cases of admiralty and- maratime jurisdiction'; to controversies to which the United States shall be a . party ; to. controversies between two or more States, between a State and citizens of another State, be- tween citizens of different States, between citizens of the same State, claiming lands under grants of 10 Of THE Judicial Power [Chap. 1. diiFerent States and between a State, or the citizens thereof and foreign States, citizens or subjects." 2nd. That " in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." 3rd. That " thd trial of all crimes, except iii cases of impeachment, shall hh by jury ; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Under " Amendments to the Constitution," it i§ further provided, as follows : Article IV. " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue, but upon pro- bable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article "V". "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in thp militia, when in actual service, in time of war or public danger ; nor shall any person be subject for the same offence to, be twice put in jeopardy qf life Chap. 1.] of the United States. H or limb; nor shall be compelled, in any criminal case, to be witness against himself; nor be deprived of life, liberty or property, without due process of law; nor shall private property be. taken for public use without just compensation." Article VI. "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by. law, and to be informed of the nature and cause of the accusation; to be confronted with th^ witnesses against him ; to have compulsory process for obtaining witnesses in his favor ; and to have the assistance of counsel for his defence." Article VII. "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." Article VIII. "Excessive bail shall not be required,, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Article XI. "The judicial power of the United States shall not bd construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State." The foregoing are all the Constitutional provision^ regulating and defining the judicial powers or judi- cial department of the United States. Before pro- 12 Of Judicial Powers OF United States. [Chat.I. ceeding to speak of the practice of the court, it also becomes important to explain its organization and jurisdiction, as established by laws enacted pursuant to the Constitution. Chap. II.] Organization of, Circuit Courts. 13 CHAPTER II. of circuit courts of the united states. Section 1. Of the Oeganization of Circuit Courts. The judicial system of the United States con- sists of 1st. The Supreme Court. 2d. The Circuit Courts. 3d. The District Courts. 4th. The Territorial Courts. '5th. The Courts of District of Columbia. 6th. The Court of Claims. We shall here only speak in detail of the Circuit Courts as classified and composed of judicial districts, as follows: The First Circuit consists of the following districts, viz: Maine, New Hampshire, Massachusetts and Rhode Island. The Second Circuit consists of the following dis- tricts, viz: Vermont, Connecticut and three districts in New York. The Third Circuit consists of the following districts, viz : ' New Jersey, two in Pennsylvania and Delaware. , The Fourth Circuit consists of the following districts, viz : Maryland, West Virginia, Virginia, North Carolina and South Carolina. 14 ' Organization AND Officers [Chap. 2. The Fifth Circuit consists of the follpwing district?, viz : Georgia, Florida, Alabama, Mississippi, Louisiana and Texas. The Sixth Circuit consists of the following districts, viz : Two in Ohio, two in Michigan, Kentucky and Tennessee. The Seventh Circuit consists of the following dis- tricts, viz : Indiana, two in Illinois and Wisconsin, The Eighth Circuit consists of the following dis- tricts, viz : Iowa, Missouri, Kansas and Arkansas. The Ninth Circuit consists of the follpwing districts, viz : California, Oregon and Nevada. The recently admitted State of Nebraska has, as yet, only a District Court with Circuit Court powers, and is not brought into the Circuit Court system by name. Section 2. Of the Judges and Officeks of CiRCun COUKTS. , The Judges of this Court are appointed by the President, by and with'the advice and consent of the Senate. As the Constitution provides that the Judgea of both the Supreme and inferior Courts shall hold their offices during good behavior, and that their compensation shall not be diminished during their continuance in office, their official tenure is practically Sec. 2.] - of Cirovit Covrts. 15 for life, with a present salary to the Supreme Court Associate Justices of $6,000 per annum, and to the newly created Circuit Judge an annual salary of $5,000. (See appendix I.) In addition to the oath or affirmation to support the Constitution of the United States, the Judges are required, before they-proceed to execute the duties of their offices, to. take an oath or affirmation that they will administer justice without respect to per- sons and do equal right to the poor and rich, and that they will faithfully and impartially discharge \ and perform all the duties incumbent upon them as such Judges, according to the best of their abilities and understanding, agreeably to the Constitution and laws of the United States, The late act of Congress amending the judicial system, which is to take effect on the first day of December, 1869, [see appendix I,] will, as appears, change the organization and increase the judicial force of theUnited States. The second section of this act provides for the appointment, in each of the nine judicial circuits, of a Circuit Judge, who shall possess the same power and jurisdiction in his circuit as the Justice of the Supreme Court allotted to said circuit; that the Circuit Courts in each circuit sh£|.ll be held by the Justice of the Supreme Court, or by the Circuit Judge, or by the District Judge sitting alone, or by the Justice of the Supreme Court and Circuit Judge sitting together, when the Justice shall preside ; or iji the absence of either of them by the other (who shall preside), and the District Judge. IQ Of the Judges and Officers of [Chap. 2. This section further provides, that, under the direction of the presiding Justice or Judge, causes may be heard and tried by each of the Judges holding any such court, sitting apart. Under this provision a new arrangement will probably be made for hearing of equity cases and also trial of cases at common law, at the same session, or continuing the term by adjournment of the Circuit Court, according to the attendance of Judges, and also the rights of suitors and the convenience of counsel. Under the existing authority of law, whenever a Justice shall deem it advisable from proof made before him, he may order a District Judge from any adjoining district to hold any Circuit Court, and this has been frequently done as a mutual accommodation to the bar and suitors, in many districts like that including New York city, where a pressure of cases accumulate beyond the control of the resident Judge or Judges. This practice has, however, now grown into disuse since the recent change cutting off all allowance to Judges for such service, or any expenses whatever beyond their actual stated salary. Provi- sions in an act passed March 3d, 1863, authorize an Associate Jdstice of any circuit to request another to hold the court, whenever, from " disability, absence or accumulation of business," it becomes necessary.' And the Judge of any circuit may order a civil cause, which has been certified, into his circuit, to be certi- fied back into the court whence it came. Where there is a vacancy in office of any Circuit Judge, the Chief Justice may make the requests herein referred to. Sec. 2.] Circuit Courts. 17 The Justice of the Supreme Court, previous to the act of April 10th, 1869, was required by law to attend one term of the Circuit Court within each district of his circuit in each year, at which term writs of error and appeals from the District Court, questions of law, and cases at law and in equity of peculiar interest or difficulty shall have the pre- cedence. Hereafter, uijder Section 4 of the act of 1869, the justice is required to attend but one such term during every period of two years. The Justice • or the District Judge have no seperate commission as Judges of the Circuit Court. It is required that at least two Circuit Courts shall be held annually, in eafth district. ' The Clerk, by section 3 of the act of 1869, is to be appointed by the Circuit Judge of the circuit ; but it is therein provided, that the present clerks of said court shall continue in office till other appointments be made in their place, or they be otherwise removed. This officer under an early act, as amended March 3d, 1863, is required to give an approved bond, with sureties, in a sum to be fixed by the court, and be subject to renew the same conditioned for the faith- ful discharge of his official duties; a copy of which bond shall be entered on the "journal" of the court, and shall be deposited for safe keeping as the court may direct. The Crier is appointed by the court, or judges jointly concurring as a usual practice, but like the clerk, is removable at the pleasure of the power appointing him. The Marshal — This highly responsible " officer of 2 "1;8 Of THE Judges AND Officers OF [Chap. 2. the court is commissioned by the President, by and with the advice and consent of the Senate, for the term of four years, but is removable by the appoint ing power, and is required before entering upon the duties of his office to execute a bond, with two com- petent sureties to be approved by the Judge of the District Court in the sum of $20,000, for the faith- fjul performance of his official duties by himself and also by his several deputies. These deputies are removable from office by the Judges of the Circuit or District Court at their pleasure. The Marshal's' bond is to be recorded in the office of the clerk of either the Circuit or District Court, and a certified copy is competent evidence in any court, for breach of which a suit may be. instituted by and in the name of any party aggrieved, if suit is brought within six years after the right thereto shall accrue. The following oath is required to be taken by the Marshal before the District Judge, and also by each, of his deputies before a competent officer, to wit : " I do solemnly swear (or affirm), that I will faith- fully execute, all lawful precepts directed to the Marshal of the district of under the authority of the United States, and true returns make, and in all things well and truly, and without malice or par- tiality, perform the duties of Marshal (or Marshal's deputy as the case may be), of the district of during my continuance in said office, and to take only my legal fees. The powers and duties of this officer, it cannot be necessary to here specify in detail, but it may be considered that they are similar to those of 'a State sheriff, yet not so identical as Sec. 2.] Circuit Courts. 19 under an early act of Congress they were declared to be. Pursuant to recommendations of Congress, the laws of the State of New York provide for the receiving and safe keeping in their jails, of prisoners committed under the authorities of the United States, and where this is done, the responsibility of the Marshal ceases with the delivery of a prisoner to the keeper of a jail or prison, as these are not officers regarded in law as deputies of the Marshal. The District Attorney is to be "a meet person, skilled in the law," and is appointed by the Presi- dent, by and with the advice and consent of the Senate, for a term of four years, and is removable by the appointing power. This officer is under a general supervision of the Solicitor of the treasury ai^d of the Attorney General of the United States. His specfic and usual duties are, by himself and assistants, to attend examinations in criminal cases or pending complaints before commissioners, to pre- pare and prosecute indictments found for various' offences, and especially to conduct all suits, pro- ceedings and trials, in civil causes, arising upon defaulted recognizances and government bonds, and 'to. sue out informations under the Internal Revenue and other acts of Congress. Attorneys are admitted to the different degrees of practice in the court as the rule prescribes, on motion in open court during term; or before the clerk, on production of due proof authorizing the applicant to practice in the Supreme Court of the State, during vacation. On signing the roll, they each take' the 20 Of THE Judges AND Officers OF [Cahp. 2. following oath : " I do solemnly swear (or aflSrm), that I will well and truly demean myself, as an attorney, solicitor, proctor, counselor and advocate ' of this court, uprightly and according to law, J^nd that I will support the Constitution of the United States, so help me God." Thereupon a license to practice is issued by the clerk of the court under seal. As the Circuit and District Courts have each a clerk and seal, so they have a separate roll, conse- quently an admission or license in one court is not authority to practice in the other. To what extent either court would recognize the acts or proceedings of an attorney admitted to another branch of the United States or of the State courts, before formal objection taken, does not seem to have been settled by formal adjudication. The fees of the foregoing officers of courts are regulated aud limited- by the act of February, 1853, to be found at large in Appendix I. The maximum allowance therein provided to Marshal and District Attorney for all fees and emoluments per annum is $6,000 to each of these officers,' and to -the Clerk the maximum sum is $3,500 per annum. Sec. S.] ■ Circuit Courts. 21 Section 3. Okiginal Jukisdicxion of Circuit.Courts. The judicial power of the United States, as we have seen, is, by the Constitution, vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and estab- lish. {Const. U. S., Art. 3, § 1.) Circuit Courts of the United States have been ordained and established .by Congress as courts inferior to the Supreme Court. But the Circuit Courts of the United States are not to be deemed " inferior courts " in the technical sense of that term. The courts of the United States are all of limited jurisdiction; and their proceedings must show upon their face, facts giving them juris- diction over the parties, arid subject matter. {Kempe's Lessees vs. Kennedy, 5 Crunch., 185; Kennedy vs. Geor- gia State' Bank, 8 How. Rep., 586.) This renders it necessary to set forth upon the record of a Circuit Cburt the facts or circumstances which give jurisdic- tion, either expressly or in such a manner as to ren- der them certain by legal intendment. (Kennedy vs. Georgia State Bank (supra); McCormik vs. Sullivant, 10 Wheat., 192.) The Circuit Courts of the United States possess no powers, and can exercise no jurisdiction, except such as both the Constitution of the United States and the acts of Congress concur in conferring upon them. It is not sufficient that the case ialls within the scope of the judicial powers of the United States, aa declared in the Constitution, unless jurisdiction has also beeh conferred by some act of Congress ; nor is it sufficient to show that Congress has conferred the jurisdiction, unless the case is also embraced in, or 22" Jurisdiction OF ■ [Chap. 2, belongs to one of the classes, or description of cases, enumerated in the Constitution. (See Conkling's Trea- tise, p. 121.) Keeping these principles in view, the practitioner will carefully ascertain what jurisdiction both, the Constitution and the acts of Congress have concurrently conferred upon the Circuit Courts. By the act of Congress (Sept. 24, 1789, § 11,) it is provided " That the Circuit Courts of the United States shall have original cognizance, concurrent, with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State. And shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts of the crimes and offenses cognizable therein." (1 Stat. U. S. at Large, Chap. 20, §ll,i?. 78.) The same section further provides, " That no per- son shall be arrested in one district for trial in another, in any civil suit before a Circuit or District Court." {Supra. See also, ex parte Peter Graham, 3 Wash. C. C. R., 456.) And no civil suit shall be brought before either of said courts against an inhab- itant 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 Sec. 3.] » Circuit Courts. 23 time of serving the writ ; nor shall any District or Circuit Court 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 said contents, if no assignment had been made, except in case of foreign bills of exchange." {See also Bean vs. Smith, 2 Mass. C. C. R., 252 ) Under the act of Congress of March 3, 1815 {Zd U. S. Stat, at Large, p. 244), the Circuit Courts have jurisdiction of cases in which an ofl&cer of the United States shall sue, as such ofl&cer, under the authority of an act of Congress. {Postmaster Gen. vs. Early et. al., 12 Wheat., 136.) Under the provisions of this act it is not necessary to confer jurisdiction that the sum sued for shall amount to one hundred dollars. By the provisions of the act of Congress of March 2d, 1833 (4 U. S. Stat at Large, p. 632; Brightly Dig., p. 128), the jurisdiction of the Circuit Courts is extended to all cases, in law or equity, arising under the revenue laws of ihe United States for which no other provisions were then made by law. It also gave jurisdiction to hear and determine actions brought by persons who had received any injury to his person or property for or on account of any act done under any law of the United States for the protection of the rfevenae or the collection of duties on imports ; the action to be brought in the district where the party doing the injury resided or might be found. The jurisdiction in cases of this character does not depend upon citizenship or amount in con- troversy. (4 TJ. S. Stat'.' at Large, p. 632; Brightly Dig., p. 128.) 24 JvRismcrioN of [Chap. 2. The Circuit Court has jurisdiction ^of actions brought by the possessor or assignee of debentures against an indorser thereon, without respect to the character of the party or the amount in controversy. {Chap. 22, § 80, 1 U. S. Stat, at Large, p.6S9.) Also_ in suits by and against a bank of the United States. (3 U. S. Stat, at Large, Chap. 44, k 7, p. 266.) Prior to the act of February 15, 1819, patentees and authors were placed upon the same footing as suitors in general, suing in the Circuit Courts, their right to sue depending upon citizenship and the amount in controversy. But by the act of February 15, 1819 (3 Slat, at Large, p. 481), original cognizance, as well in equity as at law, of all actions, suits, con- troversies and causes arising under any law of the United States, granting or confirming to authors and inventors the exclusive right to their respective writings, inventions and discoveries, was conferred upon the Circuit Courts; and upon any bill in equity filed by any party aggrieved in such cases, the court had authority to grant injunctions according to the course and principles of Courts of Equity, to prevent the violation of the rights of any authors or invent- ors, secured to them by any laws of the United States, on such terms and conditions as the court should deem fit and reasonable. {Ibid, and p. 482.) This act (Feb. 15, 1819), in its provisions, has, been greatly enlarged by the act of February 3, 1831 (4 Stat, at Large, p. 436), but its jurisdictional provisions have been incorporated in the last men- tioned act; that is, the act of 1819, so far as it gave cognizance to the courts of the United States in Sec. 3.] Circuit Goubts. 25 ; cases of copyrights, still remains in force, and is the only law conferring equitable jurisdiction on these courts in such cases. {Stephens vs. Gladding, 17 How., 455 ) The ninth section of the act of 1831, protects manuscripts only. But the equity jurisdiction of the court as to copyrights, does not extend to the adjudication of. forfeitures; a decree cannot, be entered for penalties incurred for' violation of a copyright. {Idem.) By the act of 1836, § 17 (5 Stat, at Large, p. 117), it is provided that all actions, suits, controversies and cases arising under any law of the United States granting or confirming to inventors the exclusive right to their inventions and discoveries, shall be originally cognizable, as well in equity as at law, by the Circuit Courts of thje United States, or any District Court having the power and jurisdiction of a Circuit Court; which courts shall have power, upon a bill in equity filed by any party aggrieved in any such case, to grant injunctions according to the course and principles of Courts of Equity to prevent the violation of the rights of any inventor as secured to him by any law of the United States, on such terms and conditions as said courts may deem reasonable. It is held that, under this section, the Circuit Courts of the United States have exclusive jurisdic- tion of all actions arising under the patent laws. (3 N. Y., 14; 40 Maine, 434.) The equity jurisdiction of this court, under this provision, is the same as the equity jurisdiction in England. (1 Blatch., 486.) As to subject matter, the jurisdiction does not extend 26 JURTSDICTION OF [ChAP. 2. to a bill in equity filed for the specific performance of a contract respecting patents. (1 Wood §• Min., 37; 3 McLean, 525; 2 Paine, 426.) Jurisdiction in patent cases does not depend upon the citizenship of the party or the amount in litigation (1 Blatch., 486); but the defendant must be a resident of the district in which the suit is brought, or he must be found therein. {Idem., also 631 and 541; 20 How., 56.) By the act of August 8, 1846, Circuit Courts have full power, authority and jurisdiction upon the appli- cation of consuls, vice-consuls or commercial agents named in the, act, requiring the assistance of the court, to carry into effect the award, arbitration or decree of any such consul, vice-consul or commer- cial agent, according to the true intention and meaning of the same; and for such pui:pose have authority to issue all proper remedial process, mesne and final, to carry into full effect such award, arbitra- tion or decree, and to enforce obedience thereto by imprisonment, &c. (9 Stat, at Large, p. 78.) By the 12th section of the judicial act of 1789 (1 Stat, at Large, p. 79), it is provided, that if a suit 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 or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, and the defendant shall, at the time of entering his appearance in such State court, file a petition for the removal of the cause for trial into the next Circuit Court to be holden in the district where the suit is pending, &c., and offer good Sec. 3.] Circuit Courts. 27 and sufficient surety for his entering in such court, on the first day of its next session, copies of said process against him, aiid also for his there appearing and entering special bail in the case, if special bail was originally requisite therein, it shall be the duty of the State court to accept the surety and proceed no further in the cause, &c.; and the said copies being entered, as aforesaid, in such court of the United States, the cause shall then proceed in the same manner as if brought there by original process ; and in cases where original process in the State court is by attachment, the goods or estate so attached shall be held to answer the final judgment, in the same manner as by the laws of the State they could have been holden. By the same section it is provided, that if in any action commenced in a State court, the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive ,of costs, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, shall state to the court, and make affidavit if it is required, that he claims and shall rely upon a right or title to the land under grant from a State other than that in which the suit is pending, and produce the original grant, or an exemplification of it, except when the loss of public records shall put it out of his power, and shall move that the adverse party inform the court whether he claims a right or title to the land under a grant from the State in which the suit is pending, and the said adverse 28 Jurisdiction OF [Chap. 2. party shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trials and if he informs that he does claim under such grant, the party claiming under the grant first mentioned, may then, on motion, remove the cause for trial to the next Circuit Court to be holden in such district, &c., and, being defendant, shall do it under the same regulations as in the case beforementioned of the removal of a cause by an alien, &c. Either party removing such cause to the Circuit Court will not be allowed to plead or„give evidence of any other title than that by him stated and alleged. The right of parties to remove from State courts to the 'Circuit Courts of -the United States, certain actions commenced therein, has, by the act of March 2, 1833, been extended to cases in which any ofl&cer of the United States, or other person, is sued in a State court 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 authority, or right or title, set up or claimed by such officer or other person under any such law of the United States. (4 Stat, at Large, p. 632 to 635; see infra. Chap. 4, § 3.) In the latter class of cases, the petition lor removal is presented to the Circuit -Court. By the act of March 3, 1863 (12 Stat, at Large, p. 756), provision for removal from the State courts, by the defendant, to thef Circuit Courts of the United States, those cases in which any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, Seo. 3.] Cii^cmT Courts. 29 civil or military, or against any other person for any arrest or imprisonment made, or other trespasses done or committed, or any act omitted to be done at any time (during the present rebellion), by virtue or tinder color of any authority derived from or exer- cised by or under the President of the United States, or any act of Congress, after final judgment rendered by the State court in criminal prosecutions, except in cases of acquittal, either party may remove the case to the Circuit Court, and the Circuit Court shall proceed upon the same as if no trial had been had in the State court-. Having stated in most general terms the original jurisdiction of the Circuit Courts of the United States, this section on jurisdiction will be closed by a classification of the subjects conferring juris- diction upon the Circuit Courts : FiEST. OF GENERAL JURISDICTION. It is to be observed that the Circuit Courts derive jurisdiction under acts of Congress, and not immedi- ately from the Constitution. (Turner vs. JBank of North America, 4 Dal., 10 ; Brainard vs. Williams, 4 McLean, 122; Moffatt vs. Soley, 2 Paine, 103.) _That the entire judicial poorer of the United States, con- templated by the Constitution, has not been con- ferred upon the Circuit Courts. (2 Paine, supra.) Nor have the Circuit Courts revisory power over the District Courts, other than that given by statute. (1 Paine, 453.) They have no jurisdiction of a suit commenced by a State against a citizen of the same or of another State. (4 W. C. C, 199.) But they 30 JVSISDICTION OF [ChAP. 2. « have the same power to grant relief under the State laws as under those of the United States, when the proper parties are before them, (6 McLean, 395.) Nor can the Circuit Court issue a certiorari or other compulsory process, to remove a cause from the District Court before final judgment therein; and if it do so, the District Court may refuse obedience to the process; or, the record being reinoved, either party may move for Si procedendo, or pursue the cause in the District Court the same as if it had not been removed. But the other party entering an appear- ance in the Circuit Court and pleading to the issue, cannot, after verdict, object on the ground of irregu- larity. (2 Wheat., 221.) Second. OF THE CHARACTER OF THE PARTIES ESSENTIAL TO JURISDICTION. 1. Aliens. In all suits of a civil nature at common law or in equity, where the matter in dispute exceeds five hundred dollars, exclusive of costs, and an alien is a party, the suit may be commenced in the Circuit Court. (1 Stat, at Large, p. 78, Chap. 20, k H-) Or when the suit has been commenced in the State courts it may be removed to the Circuit Cdurt. (§ 12 of above Act.) An alien may sue in the Circuit Court, though a resident of the same State with the other party. (7 Pet., 413; Buld., 205.) But to entitle an alien to sue in the Circuit Court, it must appear that the other party is a citizen. (2 Pet., 136; 4 Dal., 12; 5 Mass., 35; 3 Sum., 422.) Where both parties are aliens the Federal Courts have no jurisdiction. (4 Crunch., 46.) Sec. 3.] Circuit Covets. 31 A foreign subject, who has made application for citizenship by making his declaration of intention, and not actually naturalized, is to be deemed an alien within the statute conferring jurisdiction on the Circuit Courts. (3 Wall Jr. C. C.) 2. Citizens of Different States. The Circuit Courts of the United States have jurisdiction in cases when the matter in dispute or controversy exceeds, exclusive of costs, the sum of five hundred dollars, and is between a citizen" of the State where the suit is brought and a citizen of another State. (1 Stat, at Large, p. 78, Chap. 20, § 11.) To constitute citizenship of a State so as to confer jurisdiction, &c., the plaintiff must have a domicile in the State (5 Mass., 70; 1 Pame,/594; 4 McLean, 574); that is, he must have a residence therein; as, where a man and his wife resided on a plantation which he owned and cultivated two years, and noth- ing was shown to the contrary, it was held to be sufficient evidence of citizenship to support the juris- diction. (6 How., 163; 3 Wal. C. C, 546; 4 do., 514, 609.) To deprive an American citizen of the right, of suing in the Circuit Courts on the ground that he is not a citizen of any particular State, the evidence should be very strong that he is a mere wanderer. (1 Paine, 580; 1 Pet., 476.) A native of the United, States residing abroad, who has taken the oath of allegiance to a foreign government, is not to be deemed a citizen of any particular State, so as to be entitled to sue in the Federal Courts. (2 Blatch. C. C, 162.) A citizen of a territory, or of the District 32 Jurisdiction of [Chap. 2. of Columbia, is not comj^etent' to sue as a citizen of a State. (2 Crancli., 445; Pet. C. C, 45; 1 Wheat, 91.) The Circuit Court has no jurisdiction of suits, between citizens of different States, unless one of the parties' is a citizen of the State in which the suit is brought, (i Mass., 520; 2 Paine, 103; 1 Blatch., 565; 4 Mass., 435.) If the interest of the parties be joint, each of the plaintiffs must be competent to sue each . of the defendants, to sustain jurisdiction in the Federal Courts. (3 Crunch., 267.) If an essential portion of the defendants reside in another State, so that process cannot be served on them, and they will not voluntarily appear, jurisdiction will not be conferred. (17 How.,, 424.) But if the principal party in the suit, by his citizenship, confer jurisdic- tion so that the suit may be maintained against him alone, the fact that other parties are citizens of the same State with the plaintiff, will not oust the court of jurisdiction. (^Wood.^ Min., 34.) A tenant in common may maintain ejectment for his portion of the land, though his co-tenant be incompetent, by reason of citizenship, to sue therein. (1 Wood C. C, 429.) When the plaintiff and defendants are citi- zens of the same State, the court still has jurisdiction if the plaintiff be only a nominal party for the use of an alien, or of a citizen of another State. (5 Cranch., 303 ; 14 Pet., 293.) But joining an alien with a citi- zen will not affect the jurisdiction, if the alien be not a material party. (3 Blatch. C. C, 245.) Seo. 4.] Circuit Courts. 33 3. coepobations. The cfipacity of a corporation to sue or be sued, in the Federal Courts, depends on the citizenship of the several members. (5 Crunch., 61 ; 1 Pet, 238 ; 14 do., 60; S Sum., 423.) A corporation created by and doing business in a State, is to be deemed an inhabi- tant of such State, capable of being treated as a citizen for the purposes of jurisdiction. (2 How., 497; 5 McLean, 455; 16 How., 314.) Two corporations, deriving their power from district sovereignties, cannot unite in a suit against a citizen of one of the sovereignties.- (1 Blatch., 286.) Where it is created hj two different States, it is deemed to be a citizen of the State in which its directors meet and do busi- ness. (4 McLean, 548.) 4. Tebeitoeial Jurisdiction. Jurisdiction is limited to the district in which, or for which, it sits. (12 Pet,r 300, and see §11 of act of Sept. 24, 1789; 1 Stat, fit Large, p. 78.) But this court has jurisdiction in equity to enjoin proceed- ings upon a judgment at law between the same par- ties, though the subpana be served out of the district. (5 CrancL, 288; 4 Mass., 349.) A Circuit Court of the State in which an act is done, resulting in conse- quential damages to real property lying in another State adjoining, has jurisdiction of a suit' for such injury. (1 Wall. J. C. C, 275.) Section 4, Appellate Jurisdiction of Ciecuit Couets. The Circuit Courts have revisory power over the District Courts by appeal and by writ of error : 34 Jurisdiction of [Chap. 4. BY APPEAL. An appeal is a civil process by which the entire case, both as to the facts and the law, is subjected to review and re-trial. By the 2d section of the act of 'March 3, 1803, chapter 40, appeals are allowed from all final judgments or decrees in any of the District Courts, where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars. (2 Stat, at Large, p. 244.) Alid the Circuit Courts have appellate jurisdiction of appeals from the final • decrees of the District Courts in cases of admiralty and maritime jurisdiction. , (1 Gall., 5; also same, 227.) BY WRIT OF ERKOR. This writ is a common law process, and brings up only questions of law 'for revision. By the provis- ions of the statute (Sept. 24, 1789), the final decrees and judgments of the District Courts in civil actions, when the matter in' dispute ex.ceeds the sum or value of fifty dollars, exclusive of costs, may be re-exam- ined by the Circuit Court holden in the same district. (1 Stat, at Large, p. 84.) Section 5. Concurrent Jurisdiction of Circuit Courts. The Circuit Courts have concurrent jurisdiction with the State courts of all ' suits of a civil nature, either in law or equity, when the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners ; or where an alien is a party ; or when the suit is between a citizen of the State in which a suit is brought and a citizen of another State ; also, when an officer of the United' States is plaintiff. Sec. 5.} ' Circuit Coxmrs. 35 suing under authority of an act of Congress. A bona fide conveyance of land to a citizen of another State will sustain the jurisdiction, though the grantor was induced to convey by the belief that his title would be held good in a Federal Court, but bad in a State court (1 Pe^., 620; 7 flbtf;., 198; 18 Horn., 76; 2 Sum., 252) ; but it is otherwise if the assignment be merely colorable. (7 Hm., 198; 18 do., 76; 4 McLean, 226/2 Dal,, 381; 4l do., 330.) In respect to aliens, it must not only appear that an alien is a party, but it must also appear that the other party is a citizen. (4 Dal., . 12; 2 PeL, 136; 5 Mass., 35; 3 'Sum., 422.) The court has not jurisdiction where both parties are aliens. (4 Cranch ,46.) . 36 Circuit CovHT Pbactige. [Chap. 3. PRACTICE OF THE CIRCUIT COURT. CHAPTER III. Section 1. Suits in Equity. Having heretofore considered the question of jurisdiction of this coitrt, we now enter' upon the course of proceedings connected with its practice. The Equity branch is not, strictly first in order, but as it seems to be more important in the amoiints involved, as it is more intricate in practice than in cases at law for trial by jury, we will endeavor to arrange and classify the observations and instruc- tions to be given, substantially in the order set forth in the ]*ules prescribed by the Supreme Court of the United States for all Federal Courts sitting in Equity, and which rules, as contained in the appendix, if carefully read and understood, will render the prac- tice quite as satisfactory, if not preferable to cases at law, which have to be determined by a jury. The determination of cases in Equity is reposed in the learning and stability of a judiciary, authorized by the Constitution and laws of the United States, , which is above influence from temporary or extrane- ous causes. Decisions here are not vague and unsteady, as experience has shown they almost necessarily are when subjected to the crucible of popular will under an elective system of Judges ; and especially are the examination and determination of issues in a . 1.] In EqmTY. 37 Court of Equity, free from the danger of disagree- ments, such as frequently result from^ long and' expensive jury trials. The practice in Equity is based on that of the High Court of Chancery in England, and as followed in the State of New York in our oM Court of Chancei'y, until the practice of the State Courts was abrogated by the Code of Procedure in 1848, As preliminary to the commencement of suits it should be*borne in mind that the Circuit Courts, as Courts of Equity are strictly, always open for that purpose. (Rule I,) The clerk's office is expressly required to be open on the first' Monday of every month, to enter orders' and take formal proceedings specifically set forth by rule ; but practically it is open every week day for all exparte steps in a cause, grantable " of course '" and applied for by direction of solicitors therein, (ilulell.) , ^ The Circuit Judge, whether the Associate Justice- of the Supreme Court, or the District Judge who ha» co-ordinate power, and more usually is regarded as "present," by the statement in the captions of orders entered and certified at the office of the clerk,, is empowered to grant interlocutory orders, rules and proceedings at any time in vacation as well as iu term, with or without notice as he or they may deemi proper, where their nature and character is such that they cannot properly be allowed by the clerk alone. (Rule III.) These entries of orders and proceedings, as made by the clerk in the order book, either " special " or 38 Circuit Court Practice. [Chap.,3, " of course," are to be regarded as sufficient for all purposes of notice, unless otherwise provided for ; that is to say, the parties and their solicitors, after the proper entry of an appearance therefor, are to seek information at the clerk's office of interlocutory or incidental proceedings in each case, (Rule IV.) Practically, the clerk in every order entered of this kind, sends or gives a certified , copy to the solicitor in the suit, and after the entry of the defendant's appearance a like copy is usually fur- nished to his solicitor, unless some express direction is given to the contrary. It may be well and proper to here state, that as the rules of court do not require the service of a copy of any pleadings on the opposite party or solicitor, unless the same is made necess,ary on account 6f some motion or application to the court itself, but only to file the same for entry in the docket or order book, it is usual for the clerk at his office to fiirnish a certified copy of the plead- ings to the opposite side immediately after their receipt to file. And' the same custom prevails as to other papers filed by either side where it appears, dr ; it is supposed or known that no copy of the same has been furnished or served. As oftentimes "the judge of the court resides away ' from the location of the clerk's office, and personal a.pplication would be inconvenient, if not impractica- ble, the clerk has been vested expressly with authority to entertain and despatch a large class and amount of the current business of his office in equity suits. These proceedings will appear in the detail of each separate step, to be hereafter enumerated Sec. 1.]. In EquiTY. 39 and explained, in the progress of a suit or suits, and therefore it will .be unnecessary to specify them here. (Rule V.)' But there is a variety of motions which the rules of the coiirt require should be made to the judge, and whether made on the fixed day, (the first Monday of each month,) or any other, according to the residence and convenience of both the, judge himself and tha^ of the counsel appearing therein, it is evident that the hearing of all such motions and the disposition to be made of them, must depend upon a variety of circumstances in each particular case. The Commencement of a Suit. The bill of complaint being prepared and signed by the plaintifi", and verified before a U. S. Judge, com- missioner, or a notary public under his ofl&cial Seal, (a Master in Chancery and a State Judge are, in addition to take oaths to Answers,) it is also to be subscribed by some solicitor and counselor of the court, and for greater convenience the same should be folioed. Jhe rules do not expressly require bills to be signed by parties as well as solicitors, (who can now also be " of counsel "on the bill ,) but ordinarily the verification by the party is necessary, and this is the safest practice in order to enforce a sworn answer to it from the defendant. As process of subpoena, to appear and answer, cannot be issued -by the clerk in an equity suit until the bill is actually filed, this may " be regarded as the legal commence- ment of the suit,. The writ of attachment and writ of sequestration or of assistance, provided for in 40 Circuit GovRT Practice. fCHAP. 3. certain cases, are each of them a process seldom called for, or used in the beginning of any suit, or during its progress, or after its final determination. (RuleVII.) The clerk at his office files the bill and enters an order for a subpcena, which is issued with the rec^uisite number of certified copies for each defen- dant and given to the solicitor. The subpcena is made returnable on the first Monday of the next month after its issue, providing twenty days intervene ; and, if not, then on the first Monday of the month next followingi It is tested in the name of the ^hief Justice of tbe Supreme Court of the United States, as is all process of the Circuit Court, of the date of its actual issue and of the place where the clerk's office is located, after being signed and sealed by the clerk, is subscribed in the solicitors name by the clerk, for convenience ; as the solicitor often directs the process to be at once delivered to the marshal for service. It is usually issued jointly against all defendants, but may be separately, except as against husband and wife, when it must be joint. The marshal of the district, or one of his deputies, or some person specially appointed by the court therefor, must, by the rule, serve the subpcena. Yet in practice the deputy marshals as well as the marshal often delegate this authority, as applied for on behalf of the solicitor, thus appointing a special deputy to do a special ^act in his or their name ; and the service, of a subpoena by a due admission of its receipt, signed by the party or parties defendant on the original, is regarded as good service and as proper . l.| In Equity. 41 practice under many circumstances. (Rules XII, XV.) The mode of service required is by delivering a copy of the subpoena to the defendant personally, or where suit is against husband and wife, to him alone ; or in lieu of personal service the copy may be left with some adult person, inmate of , the residence of defendant, at his abode. A service by leaving a copy at the place of business of defendant, would not seem to be good service, and yet, when an unmarried or transient person, the latter mode, when personal service cannot conveniently be made, would seem most likely to reach th,e party. In personal service it has been usual to state in the certificate or aflfidavit of return that the original, under seal, was shown to the party wheh the copy was delivered ; but this is not required by the rule. If service in one of the above modes cannot be made before the appearance day named in the subpoena, then a second or alias process issues, and after that if necessary a plurius one. When served it is to be filed in the clerk's office with the proper proof of service ; the suit must be docketed, if not already done, as is usually the case now as soon as the bill is filed and subpoena issued as above recited. (Rules XIII, XIV.) On or before the appearance day mentioned in the subpoena, the defendant, by a solicitor, files a praecipe or request with the clerk, when an order is entered and a formal appearance of the defendant entered in the suit ; and if the defendant has not been before served with a copy of bill, in pursuance of plaintiff's motion for a preliminary injunction, such copy is 42 Circuit Court Practice. [Chap. 3. obtained at the clerk's office. But sometimes the defendant fails tp enter any appearance, or having, through his solicitor, entered one witl^in the required time, he fails to file any answer or any pliea or demurrer, where such last proceedings are in points of law proper to be put in. In these cases of non- appearance by the rule day named in the subpoena, or of failure to file an answer, plea or demurrer, * before the next succeeding rule day, the plantifi' is entitled to have an order entered by the clerk taking ^ the bill as confessed ; which, thereupon, entitles the plaintiff to a decree at the ensuing term of the court, if the nature of the case admit of it. But when an answer is essential to the relief asked by plaintiff, process of attachment may issue to compel one, and to comply with the' order of the court in respect to any penalty.. At the next ensuing term a decree may be asked for, notice of it having been given, (if- a solicitor has appeared for defendant) of eight days before the day in term for hearing. The decree asked for is generally for a reference to a master of the court, to "ascertain and report the amount of money or pecuniary liability of defendant due to the plaintiff, according to the claim and circumstances alleged in the bill, and also a prayer for the restraih- ' ing process of the court, which we will now consider. Injunctions. The delicate yet highly important power, vested in Equity Courts, to grant, the writ of ilnjunction, has safeguards thrown around it. Notice is always to be given for its application, and in the first instance Seo. 1.] iNEquiTY. 43 it is a preliminary process, and is usually stated on tte writ to have 'been "allowed by special- order of the court ;" and it expires at the liexti term of the court unless renewed or continued. As the granting 'of this writ may be attended with great injury to a defendant, it is allowed or not, according to all the circumstances in each particular •case, and its allowance or refusal rests in a large degree in the discretion of the court._, In framing aibill it is addressed as follows: "To the Judges of the Circuit Court of the United States for the ' District of , A. B, of , and a citizen of the State of , brings this his bill against C. D. of , and a citizen of the State of ' , and thereupon your orator complains ^nd says that," etc., etc. By this preliminary statement it will be under- /Stood that the ;^laintiff niay or may not be a resident of the district, while the defendant, or some one where there are several persons, all of whom cannot be properly joined' for reasons stated, mu^t be a resi- dent or residents therein as alleged. '. After narrating the grounds for claiming relief in a Court of Equity, the plaintiff recites that he has not a plain and adequate remedy at law, (although this averment may by an amended rule be unneces- sary, like other features as used in the charging part of bills under the old chancery practice), and there- fore, he prays that the writ of Injunction issue to restrain the defendant and his subordinates, such as attorneys, agents and workmen, from the unlawful act's complained of. The bill is not only verified, 44 CiRCViT CouMT Practice. [Chap. 3. but where an Injunction is prayed for, it is usually supported and fortified in its charging or material ' parts by one or several afiidavits, annexed and duly sworn to by persons most competent to know and state the facts set forth ; as without such corrobora- ting proof the plaintiff's allegations would be neutral- ized by the defendant's opposing oath. Notice of at least eight days is given, wi,th the copy of the bill and any affidavits, by the plaintiff's solicitor having each served personally on the defendant, and where, as is often the case, time is highly important, in order to arrest the proceedings complained of, the motion is for the earliest practicable day when a judge will hear it at chambers. Usually, if to be contested, and a term of court is near at hand, the motion is defer- red to some day in term. On the argument, if it • shall appear to the judge or court that the granting of the writ will result in serious damage to the defendant's business, the decision may be that the defendant file with the clerk a sworn account quar- terly, or at other periods, showing his specific^gains and profits, or such a statement as the case -may require. At other times the issues between the par- ties may be such that the plaintiff must give his bond, with ample surety, to indemnify the opposite party for any damages resulting from a failure to ultimately recover his claim, and meanwhile injuring the defend- ant to an amount, to be thereafter determined while the suit is pending, and before a final decree. The perpetual Injunction is ordered and issued upon a final decree, after a hearing on the pleadings and proofs in the cause, and is invariably made at a stated Sec. 1.] In Equity. 45 term of the court ; but if the case is one requiring a reference to a master to fix, after examination and computation, on an amount due the plaintiff (which is often necessary in patent suits, where no appear- ance or no answer has been put in), then and in all such cases the perpetual Injunction may be delayed accordingly. / In connection with Injunctions is another writ, known as ne exeat, not obsolete, but seldom prayed for or issued; as such process is not needed except when the defendant has been temporarily sojourning in the district, and is about goi,ng abroaTd to remain permanently, without leaving property in the dis- trict subject to the decree which may be rendered in the suit. Since t^te more recent simplification of the elabo- rate frame-work of Equity pleadings, borrowed from the English chancery system, the old practice of excepting for " scandal and impertinence " is seldom resorted to; yet, whenever the bill or answer violates the rules or practice in this respect, either party may file exceptions before the succeeding rule day, and have the questions raised argued^ before a master, or otherwise, as the court may direct. Amended oe Supplemental and Cross Bills. These are more frequently necessary in Patent suits, than in cases where the grounds of action are well known and unchangeable at the outset. All formal amendments are by rule a matter of course, and material amendments are allowed also, of course, on payment of proper costs and furnishing complete 46 Circuit Court Practice. [Chap. 3. and corrected copies to opposite side, if done before answer, plea or demurrer ; or, if after this, the Court allows amendments with or without costs, (aow of small or no amount for any interlocutory services in a cause). After replication, amendments are alloc- able only on terms in the discretion of the Court.^ A Supplemental Bill requires a new subpoena, but under the same docket of the suit ; as for instance, when a new or re-issued Letters Patent, issued since the filing of the original bill, requires to be set out, to fully assert the plaintiff's claims. This should be on notice and by leave, strictly on a rule day, yet practically as the judge ; may order ; unless in this proceeding, as in a variety of detail 'in the progress of a suit, the solicitors shall stipulate and agree in writing to what is asked, in order to expedite pro- ceedings as equity may require; then filing such stipulations with the clerk, from time to time, as necessary to thp entry of the proper chamber orders of record in the cause. Cross Bills are occasionally put in where the defendant seeks some discovery from the plaintiff in reference to the^ merits in issue, but in this proceeding the defendant must first answer the original bill before the cross bill need be anwered. Answers. In place of an Answer, a defendant occasionally interposes a demurrer on legal grounds, and more rarely a plea is J)ut in by way of defense. These require a counsellor's certificate and affidavit of the party ; but such pleadings do not seem, from the Seo. 1.] iNEquiTT. ' 47 guards thrown around their use, to be looked upon with favor. The disuse of these, like that of most of the class of special pleadings and proceedings in use under the early Chancery practice, would be the natural result of the abolition of any taxable fees for " costs " named in the equity rules. No allow- ance for various services is now recoverable, as for- merly, when our State Chancery practice regulated the amount for each specific service necessary in a cause. / The answer in a cause, after being properly signed and verified by the party, is to be signed by his "solicitor," (who may also be "of counsel" theretd.) Previously, or at the same time, the solicitor should have duly entered his appearance for the defendant as hereinbefore set forth, upon a prsecipe'filed on or before the rule day at the clerk's office. Here, usually, the plaintifi"'s solicitor seeks for his certified copy of the answer, or " takes it out," as the language is, used in the rule. As an amended rule has annulled the numerous specific interrogatories before used in the " searching" parts of bills, so the defendant, unless ■ the bill is drawn to obtain a " discovery," may answer generally, and is only to answer inter- rogatories, if any, as shall be specifically numbered at the close of the bill. The matter • set forth as defense, in an answer, must be substantially a full defense, like a plea in bar, and should for safety answer in consecutive order every material allegation in the bill. But if. afly part of the bill admits of a demurrer to its interrogating part, then declining to answer this part shall be allowed to the defendant, 48 Circuit Court Practice. ' [Chap. 3. however he shall have answered other demurrable parts of it. And whenever a bill is amended after answer, a new answer must necessarily follow to gave a default. As the plaintiff in framing his bill, in cases where numerous parties may or not be .joined, and in suits concerning certain real estate interests devised, and. in suits to execute trusts by wills, must strictly comply with the special rules on these subjects ; so the defendant must suggest any " want of parties '' in his answer, in which case the same is " set down for argument " on this ground : otherwise the bill if found defective in this respect at the hearing may be dismissed. Nominal parties are not necessarily to answer a bill, but may or may not, according to the exigency of each case, and this is permitted by a standing rule of court. In some instances the plaintiff, in lieu of taking issue at once, by replication to the answer, deter- mines that the same is evasive or insufficient, in which event he files exceptions to it. The practice in these questions involves close and interesting distinctioi;is, often similar to a " negative pregnant " in pleadings at law. If thfe defendant is in doubt, he usually answers over — otherwise the exceptions may be argued before a judge of the court, in vacation or term, as mutually convenient in like interlocutory proceedings. If exceptions are allowed as well taken, ' the defendant must cover the points by a fuller answer-^otherwise the same is matter con- fessed; or else compulsory process, if plaintiff so elects, may issue to force a full answer from defend- Sec. 1.] In Equitt. 49 ant. Thereupon the cause is deemed at issue by the plaintiff filing a general or formal replication. Unlike actions at law,. this is always in equity the end of the pleadings, and if not duly put in the suit may be dismissed. It will thus be understood that about three months must generally, be consumed, from filing of the bill- before any cause is at issue and ready for proofs, where the time for each step is taken as allowed for rule days, and no delay is- -allowed, or any interruption by amendments, exceptions and like proceedings. Then the parties have three months within which to take their proofs or testi- niony. This is to be done by commission issued, and interrogatories and cross-interrogatories propounded in writing, Commissioners under. LXVIIth equity rule to be named as well by the clerk, (under rule Vllth of Circuit Court in Northern District, N. Y.) as by the court. But the almost invariable usage is now to take all testimony orally, before a standing or a special examiner, appointed by the court, or pursuant to stipulation, as the solicitors in practice may agree to name. After notice fixed for it, the examination proceeds substantially after the com- mon law mode in court, or under a reference, from day to day, as convenient and necessary; except that these being quasi depositions are to be signed by the witnesses. The' examiner, it is understood, cannot shut out respectful questions, whether pertinent or not, as all these must be submitted to the court, with his own statement or notings as to any special matters, subject to the opinion and decision of the 4 50 CiRbuiT Court Pmactice. [Chap. 3. court thereon. The. witnesses must attend and tes- tify, or such delinquency is reported to the court, for compulsory process; and the depositions are (unlike those taken de bene esse, under act of Con- gress) to be returned open or Unsealed and filed with the clerk in season for hearing. Yet it "Would seem that a provision of the rule requiring " publication " of testimony so taken within the three months, to be ordered by the judge, reriders it incompetent for the clerk to publish or copy ^uch testimony without consent of parties, or order of the court or judge. Testimony de bene esse may be ordered and com- mission issued by clerk, in case the plaintiff makes proof, after his bill is filed, that a witness is aged or infirm, or is goin^ abroad, or the only witness of a fact ; but this is- to be on notice to adverse party, and under directipn of the judge, as to whom the com- missioner shall be. This is a class of proof seldom attempted or offered, however. The cause having been brought on at term and argued, after due notice, upon the pleadings and proofs, or ex-parte as the case may be, it is oftentimes necessary to have an accounting before a master of the court ; either, a ^ standing master of the court or else one appointed pro hac vice, '&s shall be proper according to the mag- nitude and peculiarities of the particular case. An interlocutory decree is made accordingly. Refbeence to and Report by a Mastek! These proceedings are sometimes dilatory and expensive in patent suits. The master having issued his summons, requiring the defendant to. Sec. 1.] In Equitt. 51 appear and produce all necessary books, vouchers and papers agreeable to the exigency of the order, at a fixed time and place, first proceeds to examine the defendant on oath, in presence of counsel and parties. The former practice of putting^in "charges and sur-charges" seems now to be abandoned After oral proof, and written abstracts and statements as to the amount in controversy from witnesses, it is now understood as settled that the plaintiff may be sworn and testify in his own behalf in equity, as he doubt- less can in cases at law, since the establishment of the New York Code. The same course of proceed- ing prevails before a master as before an examiner in substance, and if he proceeds with all " reason- able diligence and the least practicable delay" it will seldom happen that^ an " order to speed the proceedings" need be taken under the directory rule in this respect. If the reference could be prosecuted like a trial at law, the onerous, dilatory and expen- sive examples we have seen in noted cases on the equity side of the court would cease to reflect upon the propriety of this class of proceedings. The master having control of the proceedings is authorized to allow mqre ample time and latitude to exhaust the merits involved, than a court or judge thereof would ordinarily do; yet, when the question of his compensation comes up, whether on a prelimi- nary application for an advance pro rata from the parties before report, or for total compensation on the filing of his final report, the court will look into his claim and allow or disallow the items as charged by the master, as justice may require, unless the 52 Circuit Court Practice. [Chap. 3. rate and amount has been .previously fixed. Wit- nesses may be subpoenaed, and are to be paid as if attending in court, and in case of refusal to appear are to be attached by order of the court or judge. The kind of proof and mode of taking it, whether viva voce or by written interrogatories, are vested in the master's discretion. Exceptions to Mastek's Report. The report being filed, it frequently happens, i'n cases involving detail of accounts, and figures to a large amount, that each party is dissatisfied with the conclusions of the mast el-, and thereupon they file exceptions within the month allowed. As the court, by a standing rule, is empowered to fix the costs on allowing or overruling exceptions, frivolous ones are not liable to be put in. These . exceptions, often numerous and intricate in the questions involved, are brought in and argued elabo- rately by the counsel, as upon their decision depends the efiect or provisions of the decree to be pro- nounced thereon., Decrees. These are rendered in term, and after their entry in the clerk's office and being duly certified, as all orders entered during the pendency of a suit usually are, for solicitors of the respective parties, decrees are afterwards enrolled, with the pleadings, proofs and -taxed costs annexed. Then execution issues if so directed in the decretal order, as is usually the case. In the decree itself, neither the pleadings or any proofs are incorporated or recited, in hac verba, Sec. 2.] In Equity. .53 but the determination of the court is set forth-^in clear yet concise language. Sec. II. Incidental Proceedings in Equity. , From the foregoing analysis and commentary; upon the equity rules as prescribed for Circuit Courts, it will be seen that the practice under them is more certain, simple and satisfactory to the practitioner, than that governing suits at law. In the learned and very elaborate " treatise " of the Honorable Alfred Conkling, "on United States Circuit and District Courts," no separate chapter seems to be devoted to the equity branch of practice. This work when originally prepared, found the equity practice very limited in the New York districts, whereas, at the present period, it embraces a large proportion of the most important business in the Circuit Court. In the three volumes of " Blatchford's " very useful and instructive " Reports " of cases determined in the second circuit, already published, and a fourth volume of which he will, amidst unceasing labors on the bench as Judge of the Southern District, soon publish, it will be found that most of the interesting questions there discussed, under the review of Mr. Justice Nelson, have been equity cases. These are daily assuming an increased importance in the Federal Courts. It has seemed singular, considering the uncer- tainty of verdicts in jury trials, especially in patent and other suits involving the danger of disagreement 74 Circuit Court Practice. [Chap. 4 and so much of intricacy in points of law and fact, that' practitioners, or parties in court, have not* oftener availed themselves of the provisions of a late act passed March 3, 1863, which are as fpUows: That issues of fact, in civil cases in any Circuit Court of the United States, may be tried and deter- mined by the court without the intervention 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 must 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 excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error, or upon appeal, provided 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 sufl&ciency of the facts found to support the judg- ment. Evidence and rules regarding it. The act of Congress passed 6th July, 1862, declares that " the laws of the State in which the court shall be held shall be the riiles of decision as to the com- petency of witnesses in the courts of the United States in trials at common law, in equity and adini-- ralty." The act of 2d July, 1864, provides that " in the courts of the United States there shall be no exclu- sion on account of color, nor in civil actions, because he is a party to or interested 'in the issue tried." Sec. 2.] At Law. 75 Under these and similar changes of the rules of evidence which formerly prevailed in the courts of the United States, the practice is now for the plain- tiff to be sworn and testify- in his own behalf in patent suits as to the invention in controversy, as well as to all questions and in all cases of trial at law. In the Legislature of the State of New York, at the past session in 1869, a bill was passed, (see Appen- dix I,) enacting that in criminal cases the party charged may hereafter be sworn and testify in his own behalf. It remains to be seen how such a radi- cal, if not dangerous change, in the rules of evidence, may be regarded by the Federal Courts of this State. Notice of a similar bill was given at the late session of Congress, but the same has not yet been enacted as a law. Under the 34th section of the judiciary act of 1789 a State statute, allowing interested par- ties to be witnesses, is applicable to trials at common law in the courts of the United States, but not to suits in equity or criminal cases. ' It is proper here to notice the following enactment by Congress, approved February 25th, 1868, " that no answer or other pleading of any party, and no discovery or evidence obtained by means of any judicial proceedirig from any party or witness, in this or any foreign country, shall be given in evi- 'dence, or in any manner used against such party or witness, or his property or estate, in any court of the United States, ot- in any proceeding by or before any officer of the United States in respect to any crime, or for the enforcement of any penalty or for- feiture by reason of any act or omission of such party 76 CiRcviT CousT Practice. [Chap. 4. or witness, but provided he. shall be liable for any perjury in so testifying." Record Eyidence. The act of May 26th, 1790, provides that "the records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed^ if there be a seal, together with a certificate of the judge, chief jiistice or presiding magistrate, as the case 'may be, that the said ' attestation is in due form; and the said records and judicial proceedings, authenticated as aforesaid, shall have full faith and credit given them aS'Well in the^ courts of the United States as in the courts of the State. A subsequent act of March 27th, 18^4, contains similar provisions for authenticating o|fice books of public offices, under the signature and official seal of the keeper thereof, certified by the presiding judicial officer where said office is kept, that the same is in "due form," and such certificate to be further authenticated by its clerk stating officially that the judge-is duly qualified. In practice there, are three ways, or kinds, of veri- fying written or documentary evidence, viz : Ist. A Certificate, under the signature of the clerk* of the court, and either with or without his official seal. 2d. An Exemplification, which is a formal and attested certificate after fully inspecting the files and records of the office of the clerk, and given Sec. 2.] ^ At Law. Y7 under his hand and official seal, which should strictly hQ attested by the judge's signature, as well as that of the clerk ; but this cannot always well be done when the clerk and judge reside apart. 3d. An Authentication, which is still more formal in language, and which must have the signature and seal of clerk, the concurring certificate of the judge that same is in " due form," and the clerk's certificate of the judge's qualification in manner above specified. The mode of proving Legislative acts of States, of Pepartment office papers and records or proceedings of the National government, need not be given at length, as it is here sufficient to state that when certified properly under the signature and official seal of the custodian thereof, they are by acts of 1823, 1846, 1849, declared to be competent evidence equally with the originals. Transcripts of balances due the Post-Office or Treasury Departments, are the- sole evidences upon which judgment is entered against delinquents for default in accounting with the government ; but in suits on sealed instruments, if the defendant verifies his defence, and the cpurt see fit so to order, it may require the original bond or paper to be produced, by or in behalf of the United States, under act of 179t. The act' of May 31st, 1854, regulates the use of 'seals to be put on " instruments," as follows : " In all cases where a seal is necessary by law to any commission, process or other instrument, provided for by the laws of Congress, it shall be lawful to affix the proper seal by making an impression there^ with directly on the paper, to which ?uch seal is 78 Circuit Court Practice. [Chap, 4. necessary, which shall be as valid as if made on wast or other adhesive substance." Section 3. Suits Removed from State Courts. Under the early provisions of the judiciary act of 1789, there were a limited number of cases which could be removed from the State into Federal Courts, (in all of which the matter in dispute must exceed the sum of $500,) to wit : where a citizen 9f the State sued, 1st, an alien ; 2d, a citizen of another State; 3d, a citizen of the same State, concerning the title of land claimed by grant from another State than that under which plaintiff claims, under grant of the State where suit is pending. In these two first classes the defendant alone applies to remove the suit, and i|; must be asked for at the time of entering his appearance in the State Court, by then filing his petition therefor, and also then offering good and sufiicient security to be accepted of by the State Court, when it shall proceed no further in the cause. This filing of the petition and offering of the bond, as well as the entry of the appearance, should all be done during the term of the State Court. In cases of joint defendants either one can ask for such removal, and it may be granted successively on compliance with the requisites above specified, as to each, and those not applying niust have the case continued in and disposed of by the State Court. Due or reasonable notice should be given to plain- tiff or his attorney of this application for removai, by service of a copy of the pa'perp duly verified. Sec. 3.] At Law. 79 The security which the petitiouer offers in the State Court is conditioned that he will, on the first day of the next term of the Federal Court (which may be either the Circuit or the District Court, according to the exigencies of the suit), enter or file therein copies ' of the process against him, and appear therein, and give special bail if bail was originally required; which security the State Court is to judge of and approve as to amount and surety. As the bail in the State Court are discharged on allowance of the petition, the security ought to cover the plaintiff's demand and probable costs incurred ; the bond being delivered to or held for the benefit of the plaintiff, if the condi- tion is not complied with. At the session of the Federal Court, the papers being read and filed, the order of removal is entered, and tie "cause is en- tered and docketed therein." Special bail is renewed as in the State Court. Concerning the third class of suits proper for removal, viz., " where the title to lands is con- cerned," either party may apply at any time before trial for removal if the opposite party claims under grant from a different State. If the defendant ap- plies, he must do it under similar regulations to those set forth in the first and second classes ; that is to say, he must give the bond conditioned, for filing the process and entering his appearance, and giving or renewing any special bail, on the first day of the Circuit Court then next ensuing. In order to protect revenue officers, subsequent legislation by act of Congress in 1833, confers a right of removal in any case where a suit or prose-; 8 CiEcviT Co VRT Pea ctics. [Chap. 4. cution shall be commenced in a C9urt of any State, against any officer of the Uuiited 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 any such law of the United States, and it shall be lawful for the defendant in such suit or prosecution at any time before trial, upon a peti- tion to the Circuit Court of the United States in and for the , district in which the defendant shall have been served with process, setting forth the matter of said suit or prosecution and verifying the said petition by affidavit, together with a certificate signed by an attorney or counsellor-at-iaw of some court of record of the State in which such suit shall have been commenced, or of the United States, setting , forth that, as counsellor for the petitioner, he has examined the proceedings against him, and has care- fully inquired into all the matters set forth in the petition, and that he believes the same to be true ; which petition, affidavit and certificate shall be pre- sented to the said Circuit Court, if in session, and if not, to the clerk thereof at his office, and shall be filed in said office, and the cause shall thereupon be entered on the docket of said court, and shall there- after be proceeded in as a cause originally com- menced in that court ; and it shall be the duty of the clerk of said court, if the suit were commenced in the court below by summons, to issue a writ of certiorari to the State Court, requiring said court to Bend to the said Circuit Court the record and pro- S:ec. 3.] At Law. 81 ceedings in said cause; or if it were commenced by, capias, he shall issue a writof Aaieas corpus cum causa, a duplicate of which said writ shall be delivered to the clerk of the State Court, or left at his office by the marshal of the district, or his deputy, or some person duly authorized thereto, and thereupon it shall be the duty of said State Court to stay all further proceedings in such cause ; and the said suit or prosecution, upon the delivery of such process or leaving the same as afpresaid, shall be deemed and taken to be moved to the said Circuit Coijrt, and any further proceedings, trial or judgment therein, in the State Court, shall be wholly, null and void. And if the defendant in any such suit be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas cdrpus cum causa, to take the body of the defendant into his custody, to be dealt with in the said cause according to ihe rules of law a,nd the order of the Gircuit Court or any judge thereof in vacation. And all attachments made and all bail and other security given upon such suit" or prosecution, shall be and continue in like force and effect, as if the ^same suit or prosecution had proceeded to final judgment and execution in the State Court. And if upon the removal of any Such suit or prosecution, it shall be made to appear to the said Circuit Court that no copy of the record and propeedings therein in the State Court can be obtained, it shall be lawful for said Circuit Court to allow and require the plaintiff to plead de novo, and to file a declaration of his cause c»f action, and the parties may thereupon proceed as 6 82 CiucuiT Court Pbagtioh. [Chap. 4. in actions originally brought in said Circuit Court, and on failure of so proceeding, judgment of non pros" may be rendered against the plaintiff with costs for the defendant. This minute aiid carefully worded statute was passed oyer thirty -five years ago. It has doubtless been often invoked to protect the Federal officers connected with the public revenue from annoying suits, c_onsequent upon the discharge of their duties. Another section provides that if the clerk of such State Courts shall (improperly,) refuse to furnish certified copifes of the record and proceedings in the suit, the Court of the United States requiring-the same, may allow the record and proceedin'gs to be supplied by affidavit or otherwise, with'full force and effect to judgment final. The next enactment by Congress, July 13, 18G6, on the subject of the removal of suits from the courts of a State to the Circuit Court, of the United States, grew out of the necessity for the protection of officers acting by authority of the internal revenue acts, and differs from those enunciated, among other particu- lars, in this. The first seem to be confined exclu- sively to civil suits, whereas this last provides that, " in any case civil or criminal where suit or prosecu- tion shall be commenced," &c., against any internal revenue officer, &c., " it shall be lawful for the defendant in such suit or prosecution at any time before trial, upon a petition to the Circuit Court of the United States," &c., to remove said suit or prosecution, &c.; following the identical language of the former act to the words "with costs to the Sec. 3.] At Law. 83 defendant," to the close of the section. Then the acl^ of 1866, by two provisos, continues to say : 1st. The act of 1833 shall not be so construed as to apply to cases arising under the act of 1866 or any of its amendatory acts. 2d. That if any internal revenue officers or those acting under their authority shall receive any injury to his person or property for any official acts 'for collection of taxes, he may maintain suit in the Circuit Court therefor. And all property taken officially by them shall be irrepleviable, as being in the custody of the law. Also, if any person shall dispossess or rescue property so taken or detained, or aid in so doing, he shall be deemed to be guiltjr of a misdemeanor. These last provisions have no especial reference to the proceedings on removal of suits, but they are parts of the same act. The act of 1866 was amended in 1867 in one particular, which' practically may sometimes be invoked for a different purpose than for the relief contemplated in the amendment, which is : where a . suit is 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 $500, 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 prejudice or local influence he will not be able to obtain justice in such State Court, may* at .any time before the final hearing, or the trial of the suit, file a petition in such State 84 Circuit Court Practice. [Chap. 4. Court for the removal of the suit into the next Circuit Court of the United States, to be held in the district where the suit is pending,'and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of all process, pleadings, depositions, testimony and other proceedings in said suit, and doing such other appropriate acts as, by the act to which this act is amendatory, are required to be done upon the removal of a suit into the United States Court ; and it shall thereupon be the duty of the State Court to accept the surety and -to proceed no further in the suit j and the said copies being en- tered as aforesaid in such court of the United States, the suit shall then proceed in the same manner as if it had been brought there by original process. The foregoing are all the provisions enacted by Congress that we find on the subject of removing cases or suits from the State Courts to the Courts of the United States, except one approved July 27, 1866, as to aliens, etc., defendants; and that of July 27th, 1868, noticed at the close of this section three. After removal the proceedings are consonant with, and according to, those in suits originally commenced in a Circuit or District Court of the United States ; and inasmuch as the New York C9de of Procedure is not recognized as a guide for either pleadings, practice or proceedings in the Federal Courts, it follows that the pleadings should be (if already filed in State Courts) here filed de novo, and proceed to trial and judgment according to the practice of th'e United States Courts. If the record and proceed- ings returned from the State Court contain a com- Sec. 3.] At Law. gS plaint, giving the cause of action as drawn under the Code, so materially diflfering from a declaration in form if not -in substance, that a special plea could not he framed properly thereto, it is understood to be the practice to disregard it as a basis of the suit, and to require the plaintiff to declare anew, or to file a declaration and enter a rule to plead, equally as " when no copy of the record and proceedings in the State Court can be obtained." If after removal of any case it shall appear to the Court of the United States that they have not juris- diction, the same may be remanded back to the State Court. , An act of Congress, " approved July 27th, 1868," authorizes all suits in State Courts brought against corporations (other than banking corporations,) or members thereof, when organized under the United States law, to be removed to the proper Circuit or District Court, upon a petition duly verified, stating a defence arising under the Constitution or laws of the United States, and following out the ;require- ments in detail of the act of July 27th, 1866, here- inbefore referred to. It was under this latter act that the noted case of Fisk vs. The Union Pacific Rail- road Co., was in April last decided by Judge Blatch- ford in a brief but able opinion to have been properly removed into and to be then pending in the Circuit Court of the United States from the Supreme Court of New York State. This is believed to be the first case removed under this statute. 86 Circuit Court Practice. [Chap. 4. Section 4. Suits by Writ of Error, and by Appeal, FROM District Court. First. The first class of cases are. those where the common law process^ of writ of' errpr removes a case from the court below, for re-examination on the law alone. It is brought up after judgment entered in. the District Court, by allowance of the writ by the district judge on a petition, bond and citation there- for, in form similar to cases carried from the Circuit to the Supreme Court of the United States, as will be more fully ^escribed in a subsequent chapter. The case must be one where the matter in dispute exceeds the sum or value of $50, exclusive of costs. It brings up in review the points of law by a bill of exceptions annexed to the judgment record, made and filed in the District Court, both of which are certified as a return from the clerk's office of the District Court. The original writ of error, with the allocatur indorsed, and certified copy of the record and original bill of exceptions, as signed by the dis- trict judge, make up the return to the Circuit Court. It is also considered proper to bring error in a case where there is only a record certified up, which contains a, statement of facts agreed on, without a jury j and the court upon this has declared the law of the case as embodied in the statement and incorporated in and made a part of the record. This writ also- lies to re-examine a judgip^ent given upon a special verdict. All parties below must join in suing it out, and it must be decided on points taken in matters of sub- 'SiiC.'4.] ■ At Law. 87 stance and upon the whole record. The evidence is examined to prove its competency in respect to points of law. It has been understood to be the practice in writs of error, as it is on appeals from the District Court to the Circuit Court, for the clerk to furnish each party with a certified copy of the return, for use on the argument thereof, which is to be brought on upon eight days notice before the first day of term. If the writ of error, with the return, is "interposed," (by which is understood, filed with the clerk above,) twenty days before the -next stated session of the Circuit Court, it may be noticed for hearing by either party at such session, otherwise at the one next ensuing. ' ^ The practice of assigning errors, or prayer for reversal, by the . plaintiff in error, and putting in a joinder in error thereto by the defendant in error, should be adhered to in all cases, as it is required by the judiciary actj in this class of cases equally as in cases taken from the Circuit to the Supreme Court of the United States. As it is provided that " no District Judge shall give a vote in any case of appeal or error from his own decision, but may assign the reasons of such, his decision," it follows that the argunaent must be had before the Associate Justice of the Supreme Court, sitting as Circuit Judge, or hereafter the newly appointed Circuit Judge, at such term or time and place as he may direct. As these writs of error are by no means as usual as are cases on appeal, we refer to that class of causes 88 Circuit Court Practice. [Chap. 4. for a fuller statement of the steps taken in the Circuit Court, during the progress thereof down to the final determination of the case. Second. The second class are appeals which bring into the Circuit Court both the law and the facts, for review and determination upon the decree of the District Court. At first only final decrees rendered in the District Court in cases in admiralty and maritime jurisdiction, and "where the matter in dispute exceeded the sum or value of $300, exclusive of costs, could be appealed. Subsequently all final judgments and decrees involv- ing an amount over $50, were made appealable, but it is held that the amount only is reduced, and that these appfeals are confined to admiralty cases, involving an amount exceeding fifty dollars, exclusive of costs. Such may now be brought into the Circuit Couijt after decree pronounced. In admiralty, an appeial to be effectual, must be taken in open court, and be entered' before the adjournment for the term, of the District Court, unless a different time is specially allowed therefor, or prescribed by general rules. If a decree of an interlocutory character has the effect . of a final decree, it may be appealed from, or the appeal may be delayed until final decree is entered. The matter in dispute must exceed $50, as to the party appealing, and the appeal must be taken to the next Circuit Court. The proceedings, subsequent to a final decree, are not appealable; bjit an appeal may be sustained in part, and be dismissed as to the residue if it contains too much. Sec. 4.] At Law. 89 The petition of appeal is presented to the district judge, and if a proper case is indorsed with his allo- catur. At the same time is presented to him a bond duly acknowledged, and with a,ffidavit of justification by the sureties of the appellant or appellants, con- ditioned that the appeal shall be duly prosecuted with effect, and that the appellants shall pay all costs (and damages and expenseg,- if the same have been awarded against them), which bond must be approved in form, and as to sufficiency of sureties at the same time, as preliminary to allowing appeal and issuing citation, signed by the district judge in the usual form, directed to the appellee. An act of Congress in 1863, and as amended July 27th, 1868, exempts the United States from giving security on appeals, in admiralty, or in equity, as also on writs of error in cases at law brought up to the Circuit Court: The clerk of the District Court prepares and cer- tifies a transmiss up to the Circuit Court, containing (if the appellant be claimant in the suit a copy of stipulation ifor costs, warrant of arrest and bond on release of vessel, unless the same continues in the custody of the marshal) a copy of the libel, answer and all proofs taken in the District Court, including any depositions de bene esse, or by commission, and also a copy of the notes taken by the judge, or under his direction, by the clerk of the District. Court, of the. evidence of the witnesses examined orally, together with copy of any order of reference, testimony on reference and report of referee, and of the final decree in the case ; also an index of all such papers at the close of such transmiss. gQ CiRcviT Court Practice. [Chap. 4. The clerk, of the Circuit Court files the transmiss and, dockets the appeal, as a cause pending to be heard and determined by and- before the' Associate Justice or the circuit judge, whenever the calendar of appeal cases can be brought on for argument. By an order (which has been -regarded as having the force of a standing rule of court) the presiding judge of the New York districts, Mr. Justice Nelson, has decided that " the proctors in the Circuit Court in admiralty appeals must each procure from the clerk of the Circuit Court a certified copy of the -Apostles,' which includes all the papers . returned from the District Court." This insures the corres- pondence of the folios in the copies of the counsel with those in the copy of the court, which is indis- pensable. As by rule eight days' notice of hearing on appeal is to be given, by service thereof on the opposite party, or on his proctor (which last is the proper, practice), and as it is in the option of the appellee whether he will notice the appeal for hearing at the next, or at the next subsequent stated session of the Circuit Court (if the appeal is taken less than twenty- days before the next session), it is not always prae-. ticable \o get the three set of "Apostles" duly pre- pared and certified for the advocates and court within the period of twenty days ; yet, if the appeal is inter" posed at least twenty days prior to the next stated session of the circuit, if may always be noticed for hearing at such session by either party. After argument (the substantive parts of pleadings and the proofs only being read to the court) by the Sec. 4.] Ar Law. 91 - — ■ - ■ '-• ■— — '■ I ■- ■ advocates in the order of hearing in the court below, and after due deliberation had therein, it is ordered, adjudged and decreed either that the said decree of the district court be affirmed, or that it be reversed, and the clerk of the Circuit Court forthwith enters a formal order to that effect, and transmits to each pro6tor a certified copy thereof. , Thereupon the costs are made up and tax^d in the Circuit Court, upon due notice, including in the bill the amount of costs taxable in the District Court, as well as Circuit Court, in the case, and the final decree is enrolled and execution issued for the amount, depending on the party in whose favor the decree is rendered. If reversed the judgment or decree of the Circuit Court shall be such as the Dis- trict Court should have rendered. If, however, the case is duly appealed to the Supreme Court of the United States, the proceed- ings will be treated of in a subsequent chapter. 92 Circuit Court Practice. [Chap. 5. CHAPTER V. Section 1. In Ceimina'l Cases. The jurisdiction of the court having been dis- cussed in a former chapter, it is now in order to treat of the different steps which pertain to the criminal practice of the court. This will be done by taking it up in the ordinary course of its proceed- ings, rather than by commenting on the abstract powers, vested in the judiciary or judicial magis- trates of the United States. As it is with courts in session, and proceedings preparatory to their session, that practice is now established and fixed as a rule of procedure, so it seems to be advisable at the outset to spqak of the criminal business transacted in me- thodical order, preparatory to and at the sessions of court. Previous to any session of court, when a grand jury is to be summoned, the judge must, either in his own discretion or after notification by'th^ dis- trict attorney, order a vmire therefor. This power is however vested and occasionally exercised, from emergencies arising in the term, to order a grand jury forthwith to be summoned. Thereupon the clerk of the court prepares a notice of the time and place for drawing a panel of twenty-four grand , jurors and of thirty-six petit jurors, duly signed and' sealed, (said drawing is to be done at least twenty Skc. l.J In ORTMOfAL Gases. 93 days previous to the proposed session of the court), and such notice should be posted at least six days previous thereta on the outer door of the building where the session of the court is to be held, desig- nating a day at least fourteen days previous to the term, and at the office of the clerk of the county in which the court is to be held, for the drawing of the jury. A duplicate copy of this notice is prepare^' and published in the daily or weekly newspaper of the city or village where the court is to be held, and for the same period of time as is provided for select- ing jurors in State Courts. A triplicate notice is also prepared, for proof to be affixed to it, showing the posting for filing with the clerk of court, and subsequently proof of the publishing is also to be furnished and filed. By usage and comity of the - State authorities, in each county where the courts of the United States are held, the county clerk has furnished facilities and aided the United States clerk and marshal or his deputy in discharge of their duties in respect to the drawing and certifying the names of jurors ; and inasmuch as the clerk of the Federal Court often resides away from such county, and cannot conve- niently attend to certify the drawing, which is to , be done by the marshal or deputy, in ordinary priac- ' tice the county clerk of the county in which the court is to be held makes out and certifies the list of jurors, giving names, residence and occupation as they may appear on the ballots drawn out of the jury box, and then delivers the same to the officer, to the end that they be-duly siimihoned. Each juror 94 Circuit Court Practice. [Chap. 5, should be summoned at least six days prior to term of the court, and return thereof made at the opening of the court at which they are required to attend. The question of irregularity in the drawing and summoning of the grand jury in this court, and the oaths administered to witnesses before them, was very elaborately discussed and argued in the year 1852, at the October session in Albany, before both the judges of this district, in the well known case of the United States vs. Enoch Reed, , indicted (as were also a large number of other persons) for a riot or "rescue" of the slave Jerry from a deputy mar- shal at Syracuse. After a full consideration of the questions raised, by affidavits on motion to quash the indictments, it was held that the acts of Congress in this regard were only directory, and that as the forms adopted fbr and regulating similar proceed- ings in the State Court had been substantially com- plied with, and no such irregularity or misconduct shown as tended to. infringe upon any substantial rights, the .motions should be and were all over- ruled, and the trials were ordered to proceed. The qualifications and exemptions of jurors, drawn to serve in the United States Courts, are similar in all respects to the regulations in the State Courts of record. The act of Congress of July 20th, 1840, provides as follows : that jurors to serve in the Courts of the United States in each State, respectively, shall have the like qualifications and be entitled to the like exemptions, as jurors of the highest court of law of such State now have and are entitled to, and shall hereafter from time to time have and be entitled Sec^. 1.] In CRiiiiNAL Gases. 95' to ; atid shall be designated by ballot, lot or other- wise, according to the mode of forming such juries now practiced and hereafter to be practiced in such courts, so far as such mode may be practicable by the Courts of tne United States or the officers thereof." If after discharge of jurors, upon excuses verified before the court or from non-attendance of the panel, a sufficient numbeflbr organizing the grand jury (which must not exceed twenty-three or be under sixteen in number), shall not attend, the court by order entered and certified directs the marshal to either forthwith, or for a day named, summon " from the body of the district and not from the bystanders," the requisite addition to complete the panel ; and when the same are returned and the whole number sworn, according to the formal and solemn oath first administered to the foreman, selected by the court, the grand jury retire for their deliberations, after a charge from, the judge. Oaths to witnesses appearing before the grand jury are now administered by the foreman, in presence of the District Attorney of the United States, who is properly present at their examination, but not when they vote as to the finding of any bill of indictment. ' A similar course prevails as to filling up the panel of petit jurors, in case additional jurors or talesmen are needed, on the first or subsequent days of the term. The fees of jurors are $2 per day for attendance in court and five cents per mile travel to and -from court, computed from their residence. The fees of witnesses are $1.50 per day for attend- ance in court *' or before any officer pursuant to law." 96 Circuit Court Practice. [Chap. 5. This applies to a large class of judicial proceedings in law and in equity, as well as to strictly criminal cases. The travel fee is the same as that allowed jurors. Witnesses from a distance detained over Sunday ^re entitled to pay for that day ; jurors are also in practice entitled to their per diem for Sunday when remaining at the place where the court is held, and their residence is at a distance, on account of which travel fees would amount to the sum of $2. These fees are paid by the marshal, on order of the court, "in cases where the United States are ' parties." In other cases the witnesses' fees are pay- able by individual suitors. If jurors' fees were intended to be paid by suitors, when serving oh a panel in a suit between private parties, yet as the criminal business or "cases of the United States" nominally continue from day to day during the whole term of the court, all jurors' fees are in fact paid by the marshal of the district. "When a witness is detainee! in prison, for want of security for his appearance, he is entitled to a compensation of one dollar per day over and above his subsistence. This occurs when, after testifying before any competent officer or court, the importance and materiality of his evidence is such, that from the transient residence or suspicious character of tbe witness, it appears evident that be may not appear or be found when a subpoena is issued, and in default of suitable surety for his appearance, the public interests require his commitment until the next term of the court. After the grand jury have finished their labors and passed upon the ex parte, but strictly legal, evidence Sec. 1.] In Criminal Gases. 97 before them, and a vote of concurrence by at least twelve of their body in tHe finding of a " true bill," they come into court and present an indictment endorsed with the foreman's name, as prepared lly the district attorney. s , Process foe. Aerest and Subposnas. The party indicted, if a prisoner in custody or appearing pursuant to his recognizance, is arraigned and pleads " guilty " or " not guilty " ; but if the party defendant is at large, a capias or bench war- , rant issues to the marshal for thp arrest of the accused, on motion of the district attorney, return- able forthwith or at some fixed day in the then or ensuing term of the court. '^ Preparatory to a trial, in criminal cases, it may sometimes happen, ,that after arraignment on the indictment, a defendant states that he is without counsel, and is unable or destitute of the means necessary to employ and pay counsel in his behalf. In all such cases it is the practice, as it is the duty of the court, to name competent counsel in court to advise with the defendant and direct his defence, and thereafter a plea is entered, and such defendant is entitled to the "compulsory process" of the court, , or subpoena, for his witnesses. Again, a defendant, either in vacation or at term, who shall makQ affidavit that he has witnesses mate- rial to l^is defence and cannot safely go to trial with- out them, and states, what he expects to prove' by each, that they are within the district or within one hundred miles "of the place of trial, and that he has 7 98 Circuit Court Practice. LChap. 5. not means and is unable to pay their fees,' may, if the court in term or a judge in vacation deems it proper, have an order requiring such witnesses to be subpoenaed by the marshal, at the expense of the United States, if found within such (limits. The provisions of this act do not require naming the witnesses, but it is the better practice to do so. All other witnesses subpoenaed for defendants in criminal cases are to be paid, as in civil cases, by the party. A subpoena in a criminal case being properly issued, "to attend in behalf of the United States," may be served by the marshall or deputy in any part of the Union; and the witness must attend before payment of fees, payment being made at the court in criminal, and nat before as in civil cases. In the case of an indictment tried at the June term, 1858, in the Northern District of New York, in the case of the United States vs. Poler, Mr. Justice Nel- son presiding, an attachment was ordered against a witness subpoenaed and residing an the State of Michigan for failure to attend. In a written opinion on file he says : "The power to, issue an attachment for defaulting witnesses is incident ta the power to serve a subpoena, in criminal cases, beyond the limits of the district and in, any other district of the Union (I Stat, at large, p. 335, § 6) ; and our pj-actice has been uniform to issue the attachment to an officer of the court, and not to an officer in the district or State in which the witness may be. The subpoena is also issued to such officer. This seems to be indis- pensably necessary in order to ensure the execution Sec. 1.] In Criminal Gases.' 99 of process. The officer in the foreign district cannot be made responsible to the court issuing the precept, and if he could it would be impracticable or attended with great delay and expense. I have always re- garded the court, under the 6th section above referred to, as possessing jurisdiction for the purpose of issu- ing and enforcing the execution of a writ of subpoena in criminal cases throughout the Union ; and that it is competent to send its own officer for this purpose into any part of it ; and that this is the only reason- able and practicable mode of carrying into effect the power thus conferred." The district attorney, previous to any term of the court as may be necessary, according to his view of their materiality, orders the clerk to issue subpoenas in behalf of the United States, for witnesses to be brought before the grand jury, and also in cases for trial upon an indictment before a petit jury. Challenges. A challenge to an individual grand juror seems to be allowable, but precisely when or who may inter- pose it seems not settled by the practice; yet if allowed any deficiency of a full panel is made up by additional names from the body of the district,- as hereinbefore stated. In cases of treason or of a capital ofience, on trials at bar, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On a trial for any other offence in which the right of peremptory challenge now exists, the defendant shall be entitled to ten and the United States to two per- loo CiRCviT Court PRACTICE. [Chap. 5. emptory challenges. All challenges,- whether to the array or the panel or to individual jurors for cause or favor, must be tried by the court without the aid of triers. In casp of, defendants jointly indicted, each one has his separate and full number of challenges. At the last session of Congress a bill passed the House, (but as it was not reported favorably upon in the ■ Senate it has yet failed to become a law), providing that in capital cases the United States and defendant each should be entitled to twenty peremptory chal- lenges; where the punishment is imprisonment of not less than five years, to ten peremptory chal- lenges, and in all other cases to five peremptory ' challenges; and when two or more persons are on_ trial together they shall join in their peremptory "- challenges. This same bill also provided that all capital offences, and others where the punishment by imprisonment was for not less than five years, should be ranked as felonies ; all others as misdemeanors ; unless otherwise expressly p^vided. A nolle prosequi is entered in any criminal case in the' discretion of the district attorney, after indict- ment pending, whatever might be the opinion of the court if the case should be stated and advice asked ; as this is regarded as a power and privilege vested in the, sound discretion of the prosecuting officer of the Government. Yet as a matter of courtesy and greater caution in the discharge of a duty oftentimes delicate as well as important, this proceeding is only resorted to with the knowledge and approval of the court, upon motion of the district attorney. Sec. 1.]' In Criminal Cases. lOl Trials. The defendant having been arraigned, and plead to the indictment, if^prepared by attendance of coun- ' sel and witnesses, is at the same or a subsequent -term brought to a trial, as v the Constitution guaran- tees to every person accused of crime "a speedy and public trial." , If this is not done at an early day, in the discretion of the court, he is entitled to at least a discharge on his own recognizance, to appear at a future term if required. The question of a separate trial, to any one among defendants jointly indicted, is one resting in the sound discretion of the court; but in practice it is not usually granted in order to avoid expense and delay, as in these cases the court instructs the jury to disregard and not apply the evidence, unless as it bears upon each and every defendant. If a defendant moves, as he may before trial, to quash an indictment, it is at once argued upon the points of law involved, in the allegations made in the indictment, applying the provisions of law to the offence charged. If the motion is granted the defendant is discharged, as " no person is to be twice put in jeopardy for the same offence." Whenever there are several charges against* the same person or persons for one and the same act, , or for two or more connected' acts, or of the same criminal class, all should be joined in one indict- ment in distinct counts, otherwise the indictments may, on motion, be consolidated in one. The district attorney may also at any term move the court to remit any indictment pending, from the 102 Circuit CoustPeactice. [Chap. 5. Circuit to the District Court, if it has cognizance of the oflEence, or from the District to the Circuit Court in all cases, which order of remittitur, when granted, carries with it all recognizances, processes' and pro- ceedings therein. > Trials in criminal cases are conducted like those in civil cases, in matters of form relating to testi- mony on either side. When closed and submitted to the jury the court instructs them on the law, but leaves to the jury to determine the facts -of the 'case,^ according to the rules of law, as laid down by the judge holding the court. As no bill of exceptions is allowed in criminal cases, and, therefoi;e, no writ of error can be taken out to review the judgment of a Circuit Court, it is only where the court has been held by the Iwo judges thereof that the case can be reviewed on questions of law, and that is on a certificate of divi- sion in opinion, certified to the Supreme Court of the United States. After a case is submitted to the jury, and they have duly retired under charge of a sworn officer to -consider their verdict, they may, and often do, come into court for instructions, to be given in the pres- ence of the defendant, who must always be present at the rendering of any verdict. In a criminal case it is not allowable, as in a civil case, that the jury seal up their verdict and separate, so as to render it on the coming in of the court on the following day. When the jury report a disagreement after a pro- tracted consultation, depending on the importance of the case or length of time it has occupied, it is Sec. 1.] In (Jriminal Gases. 103 usual to discharge the jury; but this rests in the sound discretion, of the court, as dbes the informal discharge of the defendant, on his own recognizance or otherwise, after a .second or third trial and dis- agreement of a jury. If acquitted, a record of the proceedings, as a vindi- cation of the defendant froni the accusation made, should be made up, signed and filed in the clerk's office as the highest evidence of his innocence of the imputed crime. A record of conviction is fatal to him, and that of acquittal is his vindication in all places. It is the usual course, after trial of all offences for the higher grades of crime, whe^ the jury retire for a verdict, and sometimes as soon as a trial is com- menced, to order the accused into the Custody of the marshal, 'for the purpose of preventing any possible escape, if found guilty. Recognizances taken on preliminary examinations are, on the motion of the district attorney, increased in amount, if on investigation of the case in court before the grand jury, or at the trial, it is found they are inadequate in amount, so as to hazard the ultimate appearance of any defendant for trial or sentence. In all criminal cases a party admitted to bail may in vacation or term be surrendered by his bail, and delivered to the marshal, or his deputy, to be taken before any judge or other officer having power to , commit for such offence ; and at the request of such bail the officer may re-commit the party arrested to the custody of the marshal, and endorse on the recognizance, or- a certified copy thereof, the dis- 104 Circuit CoxntT Practicj!. [Chap. 5. charge>nd exoneretur of such bail, the accused in the meantime standing committed untiL duly discharged. So, also, on due proof to any magistrate authorized to commit on criminal charges against the laws of the United States, that a person admitted to bail on such charge is about to abscond, and that his present bail is insufficient, it shall be lawful for him to require the party to give better security^ or in default to be committed to prison. Such order for arrest may be endorsed on the former commitment, or a new com- mitment may be issued therefor, setting forth the cause thereof. Pi;isoners under indictment, or persons in custody, at request of the district attorney and by order of the court, without any fee to the officers, are to be brought into court and remanded without any formal writ. Sentences. After verdict rendered by the jury of guilty, and recorded, the prisoner is usually reraanded for sen- tence, and when subsequently arraigned is inquired of "by the court if he has any word to say why the sentence of the law should not be then pronounced. Thereafter the judgment of the court is pronounced according to the penalties of the law, after proper admonition. Among other statutory enactments, it is provided that in every case where 'any criminal convicted of any offence against the United States shall be sen- tenced to imprisonment and confinement to hard labor, it shall be lawful for the court to order the same to be executed in any State prison or peniten- Sec. 1.] , In Gbiuinal Gases. IQS tiary in the district. It has therefore grown to be the practice to order United States prisoners to be confined in one of our safe and exceedingly well con- ducted County penitenti£|,ries in most of the cases of sentence occurring of late years, (Act March 3d, 1825.) A similar provision to the above authorizes the court to order a sentence of younger prisoners, after conviction, to be executed by confinement for the required term in any house of correction, or house of reformation for juvenile delinquents, within the State or district. (Ibid.) , Such convicts, after sentence aiid imprisonment, are to be subject to the same discipline and like con- trol as Staie convicts confined under a judgment of a Stalte Court; and whenever jails of any State are not allowed to be used for the confinement of United States convicts, the marshal is, under the direction of the judge of the district, to make suitable provi- sion therefor. (Act June 30th, 1834.) All prisoners who have been or who shall here- after be convicted of any oflfence against United States laws, 'and confined in any State prison or penitentiary, on a proper certificate of good conduct, therein, shall have at the rate of one month per year abated from sentence. (Act March 2d, 1867.) By act of February 20th, 1863, where, in a crimi- nal case, there shall be two kinds of punishment ordered, one pecuniary and the other corporal, the President may pardon or remit either kind without impairing the validity of the other. In -criminal cases where a sentence imposes a fine 106 Circuit Court Pbactice. [Chap. 5. or penalty, whether alone or with other punish- ment, the same shall be deemed a judgment debt, and (unless pardoned or remitted by the President) may be collected on execution in the common form of law. (Act February 20, 1863.) Section 2. Proceedings before Commissioners. . In connection with the criminal practice in the Circuit Courts of the United States, in order to a full understanding thereof, we now^ refer to the powers and duties of a , Commissioner. The office of Commissioner of the Circuit Court was first instituted over fifty years since, for the purpose of convenience in taking of acknowledg- ments of bail and affidavits. By a series of en- actments extending down from that period, their powers have been from time to time enlarged, authorizing these officers to take depositions in all civil cases, both in law and equity, and especially to exercise the powers of an examining, and a committing magistrate, in criminal proceedings. For certain spe- cified cases and purposes they have concurrent juris- diction with the judges of the court. They are properly, or usually, appointed by the associate Jus- tice and the district^ Judge sitting jointly, or concur- ring therein, at A. stated or adjourned session of the Circuit Court ; although it would seem that, as either may hold the circuit, an appointment by either, solely, when holding a term, would be valid., ' The power of commissioners to order arrest, im- prisonment or bail for any crime or oflfence against Sec. 2.] Proceedings beiobe Commissioners. 107 the United States, being commensurate with the power residing for the same purpose in any judge of the United States, gives importance to this office. At the present time, owing to questions arising under the Internal Revenue laws, a large increase of business has been thrown upon these officers, and during the last six' years the exercise of their juris- diction has involved a variety of questions, of great difficulty in law and affecting important interests in the transaction of all kinds of business. After an order of the court appointing a commis- sioner, an oath to support the Constitution and to fully perform the duties of said office is required to' be taken before a judge of the court, some other commissioner or a notary public (under his official seal), and afterHhis oath is filed with the clerk the appointee is authorized to act. GOMPLAINT, WaEPANT AND SuBPffiNA. No warrant of arrest can issue except on oath- Some party must make complaint on oath before a , warrant can be issued. This condition is answered * by a written affidavit presented to the commis- sioner, setting, forth the time, the place and the particulars of the alleged offence, with reasonable certainty. Thereupon a warrant an^d subpoena issue to the marshal or a deputy, who, after making arrest, usually at once- subpoenas two or more witnesses to prove the charge. Upon being brought before the commissioner the party is informed" of his right to counsel, and also of his privilege to make a volun- tary statement, or to call witnesses subpoenaed in his behalf. jQg CiBcuiT Court Practice. [Chap. 5, Examination and Recognizances. When a case cannot at once be examined, it is usual to recognize the defendant,, with proper surety and at his own expense, to appear on the next or a subseqixent day for hearing of the evideilce and deci- sion thereon. When an examination is had witnesses are produced, on the part of the United States, to a number sufficient to make out Bi prima facie case — in other words, sufficient to si^bmit it for examination before the next grand jury . of the district ; other- wise the defendant is entitled to be discharged. If the commissioner decide to hold the defendant to answer the charge made against him, he fixes the amount of bail, and if furnished the recognizance is executed and acknowledged by the defendant and his surety, unless the importance of the case re- quires two sureties, and if they justify (usually in twice the amount fixed upon), the defendant ' is set at liberty. If circumstances of economy as well as convenience, to both the government ^nd the de- fendant, make it advisable, the recognizance may, by consent, be conditioned for the appearance of the accused at a term of court nearest his residence, and witnesses, in place of being for the next stated terra. After a recognizance is takein, if the surety becomes apprehensive that his principal will not appear and answer pursujant to his engagement, and desires to surrender the accused and be himself released from responsibility, he may, on application to the com- missioner, or the clerk, if the recognizance has been filed in his office, order a copy of the recognizance made and certified, for delivery to the marshal or deputy Sec. 2.] Proceedings BEFORE Commissioners. 109 marshal, with a request of the surety for tlie sur- render of the accused in exoneration of bail, when it is the duty of the officer to ar^-est and keep in custody the accused, and produce him at the term to which he was originally recognized to appear. Pay Orders and Commitments. Witnesses subpoenaed in behalf of* the United States, and who attend, whether testifying in the case before the commissioner or not, are sworn and examined as to their attendance and travel to and from their residence before the commissioner. Their fees are at the same rate as for attending a term of the Circuit Court. The commissioner usually signs his order, annexing a tabular statement of the amounts of fees in duplicate, each of which is receipt- ed by the witness on payment by the marshal ; and these duplicate orders being certified as copies of the original on the commissioner's minutes of proof in the case, are handed to the deputy marshal as the vouchers upon which he draws upon the marshal to refund what has been thus advanced. If more than four witnesses are ordered paid in any one case, it is usual for the commissioner to certify that " each and every of them was material and necessary," which, in practice, is regarded as a sufficient voucher for the district attorney to certify as required by law. (Act, 1856.) A preliminary commitment, or an order in the nature of a mittimus, is sometimes required to be issued by the commissioner upon the arraignment of a party .where the case for good reasons cannot be 11Q CiRGViT Court Practice. [Ghap. 5. examined at once, and where the party cannot give the amouDt of bail fixed by the commissioner. This mittimus, or a copy of it, is left with the jailor until the party is called for and brought up for full and final examin,ation before the commissioner on an order to that effect issued to the deputy marshal. Thereafter an examination is had as before stated, and if held for examination before the grand jury in default of giving the required security for his future appearance, the defendant is ordered to be finally committed to the jail of the county where the next term of court is appointed to be held; A copy of this final commitment should be lodged with the jailor, and return made by the deputy on the origi- nal for the use of the marshal. The amount of bail required should be endorsed on each, so that on inquiry it will readily be known at what sum the required secvirity has been fixed by the commis- sioner, in any future proceedings before the court itself, where it is the practice to continue the secu- rity in the same sum after indictment found if oflfered. The accounts of commissioners, for services charged the United States in criminal proceedings, are to be examined and certified by the district judge on proper verification of the items in detail, when, the same should be forwarded to the First . Auditor of the Treasury, who audits and refers the account to the First Comptroller, and thereafter a treasury draft is issued to the comtnissioner in payment. The attendance of the district attorney before com- missioners in ordinary criminal examinations is not practicable, even if advisable, owing to' the -distance Sec. 2.] ProceedinSs before Commissioners. Ill' usually from the place of hearing and his otherwise oflBcial engagements at his residence, or at a term of the court. More frequently he attends by his assist- ant. But experienced commissioners generally have but little difficulty in deciding correctly upon the cases of almost daily occurrence brouglxt before them, under the multifarious penal provisions for misde- meanors, growing out of the Internal Revenue acts of Congress, and which now occupy a large share of the business before commissioners. The able and distinguished lawyer who, as the late District Attor- ney of the city and county of New York, for nearly twenty years superintended its criminal practice, during the last year stated in court that he " was opposed to the theory of private counsel being em- ployed by complainants before magistrates, unless in cases where exist concurrent civil remedies. A magistrate's court should have "testimony too clear to need explanation from or pressing by a prosecut- ing lawyer." So with most cases before a commis- sioner ; they are of a character to require but two or three witnesses, and no argument from counsel ; as in most of them, which are for non-payment of, special. taxes under the Internal Revenue acts, the defendant avails himself of the practice to give a cognovit, or confession, d«ly acknowledged, as the foundation of an indictment, thus saving the Gov- ernment the expense of witnesses, and mitigating his fine at court ia a proportionate degree. v Civil Peoceedings. Commissioners are the proper and usually the most convenient officers for taking affidavits in civil 112 Circuit Court Pbactice. [Chap. 5. suits or proceedings. In cases requiring special bail, as hereinafter referred to, in actions under the Internal Revenue acts, or for obligors in bonds in admiralty or seizure cases, also in equity and law cases, and proceedings heretofore discussed, it is expected they are more familiar with the routine of business than other officers, except it may be the clerks of courts. Especially is it their province to take testimony to be read in equity cases, and depo- sitions de bene esse and otherwise, in suits at law, pending in the courts ' of the United States. The nature and extent of these proceedings will b? bet- ter understood by consulting the various precedents in use, as contained in the Appendix to this volume. , An act of Congress passed in 1866 authorizes com- missioners of Circuit Courts to exercise all the pow- ei^s that any justice of the peace may exercise tinder "an act regulating seamen in the merchant service." • This is a provision unimportant to those officers not residing in cities or localities connected wit'h marine affairs. An act of Congress, approved 16th of September, 1850, authorizes any nbtary public to take oaths or affirmations or acknowledgments, in like manner as justices of the peace, when certified under the hand and official seal of such notai;y. In the Northern District of New York, justices of the peace are held to be incompetent to take oaths and acknowledg- ments in criminal proceedings ; and inasmuch as the seal and signature of a notary shall not, by the act of September 16th, 1850, itself be deemed sufficient in a trial for perjury charged in such oaths, it is Sec. 3.] Habeas Gobpus and Certiorari. 113 safer in all cases to apply to commissioners of the court, in civil as in criminal cases, for baths to be taken and certified. The 2d Section of the act of July 29, 1854, authorizes notaries ^public "to take depositions and to do such other acts in relation to evidence to be used in the Courts of the United States, as commissioners may do." Among other incidents to the criminal practice in, or connected with, Circuit Courts, should be noticed the, following proceedings. These may be brought on either during a regular session of the court, or before a judge in vacation. Section 3. Ceiminal Proceedings by Weits of Habeas Corpus and Ceetioraei. First. The writ of habeas corpus ad subjiciendum is properly issued by the Courts of the United States or a judge thereof, to inquire into the cause of imprisonment of a6y party committed under the laws of the United States. A petition duly verified, and also endorsed by the certificate of a counsellor of the court concurring in its propriety, is presented to the circuit or district judge to whom it is addressed, setting forth th^ alleged detention of the prisoner, and the grounds upon which his discharge is asked for. Whereupon the writ issues, addressed to the marshal or his deputy, and the jailer having the party in custody, who, on bringing up the prisoner makes return, showing the authority and cause of commitment. (Fourteenth section of Judi- ciary Act of 1789.) When on a proper application such writ is issued 8 114 CiBCUiT Court Pbactich. [Chap. 5. by a competent State judicial officer, and on due return it appears that the prisoner is held in custody by competent authority of the United States, by' virtue of process duly issued by its judicial officer, it then beconaes the imperative duty of the State officer to proceed no further therein : and, in such case, if the marshal having a prisoner in charge and after making^ such return should still be directed by a State Court or judge to bring up his prisoner, such order should be disobeyed, as the United States pro- cess is paramount and binding upon him- until annulled or superseded by its own tribunal. If need- ful, any such further State interference with the prisoner is to be resisted by the marshal with all the force he can command, as necessary to retain the actual custody of the prisoner, ' (21 How. 506.') Without referring to acts of Congress passed during our late civil war, either authorizing or denying the issue of this writ, upon grounds pecu- liar to that period as a matter of then public necessity, this period was the occasion of some very able arid interesting opinions upon this branch of jurrspiru- dence, as pronounced by the Circuit Judge, and also by the District Judge of the Northern District of New York. It is not the purpose here to enumerate specific cases, showing the practice in this or any other special proceeding, before the court or its judges, but we cannot refrain fro;m hfere quoting from the opinion of District Judge Hall, in the matter of Judson D. Benedict for discharge on habeas corpus, rendered in 1862.' In a very elaborate and exhaustive opinion upon an ex parte application, Seo. 3.]- Habeas Corpus AND Gertiorabt. 115 he says: "The prisoner is, therefore, in any view which I have been able to take of this case, entitled to the benefits of the writ of habeas corpus and to be discharged, unless some reason for detaining him beybnd that set out in his petition be shown. But other reasons besides those set forth in his petition, or in any warrant or order of commitment under which he niay now be held, may be shown. The District Attorney of the United States will have notice' of the allowance of the habeas corpus, and if on it^ return, or at any time, he or the Marshal of the United States or his deputy, or any other citizen, can show that the petitioner has been guilty of any offence against the laws of the United States,^ or has in any way subjected himself to local arrest and imprisonment, it will be my duty (a duty which I certainly shall not hesitate to perform) to commit him to prison by a proper and suificient order pr warrant." A proviso in the Judiciary Apt prohibits the issue of a habeas corpus to prisoners in jail, unless where they are in custody unde» or by color of the authority of the United States or are committed for trial before some court of the same or are necessary to be brought into court to testify. In all these habeas corpus cases it seems to be a question of sufficiency of evidence, upon, the retur,n. of the process and proofs made there-under, whether the prisoner shall be discharged or shall be remanded into custody. In cm7 case? this writ has been denied as "not being a proper remedy" to relieve the party; but 116 CiBCUiT Court Pbaqticje. [Chap. 5. again after elaborate argument Chief Justice Mar- shall sustained the application for it and ordered it to issue. 3ut since the abolition of imprisonment for debt^ in the State of New York, the exercise of such power is not liable to be called for as it was in former years. Second. The writ of certiorari is one auxiliary oftentimes to that of a habeas corpus, as this last directs the production of the body of the prisonei? with cause of his commitment, so the first required the production of the record evidence upon which the commitment or mittimus is founded. The Judi- ciary Act does not name a certiorari other than by providing for it as one of the " other writs," in the following language : " That all the before mentioned courts of the United States 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 juris- dictions, and agreeable to the principles and usages of law. This writ of certiorari makes effective that of the habeas corpus, by furnishing the Court of review with the. record eyidence in detail, and, therefdre, under the practice of both the English and our own Federal, as well as State Courts, these writs issue in connection with each other. For a very elaborate and learned opinion upon the character and province, of the writ of certiorari, we are indebted to one given by Judge Shipman, pre- siding in the Southern District of New York, " In the matter of Robert M. Martin, brought before the Circuit Court on writ, of habeas corpus," February, 1866. (See numerous authorities there cited.) Sec. 3.] Habeas Corpus and Geetiorari. W^ When a commissioner of the ,Circuit Court has committed a prisoner, as alleged, improperly, or irregularly, and a justice of the Supreme Court, or a judge of the District Court, on proper application issues the writ of certiorari, the return thereto brings up all the proceedings had before the commissioner, as these are not final. If the commissioner has ordered a commitment upon insufficient or incom- petent evidence, shown by his record of the exami- nation returned, or has fixed the bail in an e?;cessive amount, it is the duty of the judge to review the proceedings. This power of review, -however, is subject to restrictions. In a case under the " Ex- tradition treaty," the court cannot review the merits of the decision made by the commissioner either on the law or facts, providihg he has jurisdiction and has acted on legal evidence. (3d. Blatchford, p. 160.) The courts of the United States do not sit in these proceedings to determine that a committing magis- trate, such as is a United States commissioner, has erred in his construction of the law or evidence, but to decide only whether the prisoner stood charged before the commissioner with a criminal ofience subjecting him to imprisonment, and whether the commissioner possessed competent authority to inquire into and adjudge upon the complaint. The Judiciary Act requires the court, in fixing bail in certain cases, " to regard the nature and cir- cumstances of the offence, and of the evidence and the usages of law." Therefore, to pass upon the evidence, the court must have it produced, and , be able to compel its production when not voluntarily 118 CiscuiT Court Pbaotice, [Chap. 5. and promptly forthcoming. As a commissioner acts as a committing magistrate of limited powers, if the court appointing him updertakes to examine and review his proceedings and determination it is then unimportant whether the commitment be regular in point of form or not, for the court having gone into an examination of the evidence upon which the com- mitment was grounded, will proceed to do that which the commissioner ought to have done. Third. Among other late provisions regulating the practice in criminal cases is the following (section 69, in act of Congress, approved July 13th, 1869)j to wit: " Whenever a writ of error shall be issued for the revision of any judgment or decree in any criminal proceeding, whepe is drawn in question the construe-, tion of any statute of the United States in a court of any State, as is provided in the twenty-fifth section of the Judiciary Act of 1789, the defendant, if charged with, an offence bailable by the laws of such State, shall not be relieved from custody until a final judg- ment upon such writ, or until a bond with suflicient surety, in a reasonable sum, as ordered and approved By the State Court, shall be given, and if the offenbe is not so bailable until a final judgment upon the writ of error." I Also : " Writs of error in criminal cases shall have precedence upon the dockets of the Supreme Court of all cases to which the government of the United States is not a party, excepting only such cases as the court at their discretion may decide' to be of public importance." Sec. 1.] WftiTS OF Emror AND Appeals. HQ PRACTICE OF THE CIRCUIT COURT. CHAPTER VI. on'writs of error and on appeals, also on certifi- cates of disagreement to the supreme court of the united states. Section 1. Writs op Error to State Court. The cases in which such writs may be used are detailed in the Judiciary Act of 1789. Writs to State Courts are growing more frequent than for- merly, and still are not as numerous as those brought upon cases originating in the Federal Courts. They may be sued but either from the Supreme. Court of the United States, or from the Circuit Court of the United States, by virtue of the ninth section of the act of May 8, 1792. The form of this writ, like all others issued from national courts, runs in the name of the Pesident, as devised by the Judges of the Supreme Court of the United States, for use by all , Circuit Court clerks ; where this writ is usually applied for, as more conveniently obtained than from the clerk of the Supreme Court. It may issue from the ofl&ce of a clerk of a Circuit Court of the United States, as well to remove records of State Courts, as of'Courts of the United States. It is addressed to the judges of the highest court of the State in which the decision to be reviewed was had, yet if the record of that highest court has been remitted to a subordi- nate court, the writ may be directed to it, giving due 120 Circuit Court Practice. . [Cbap. 6. statement of the proceedings. It is always to be tested in term, and usually of the first day in the then present term ; or if issued in vacation, of the preceding term, ^nd is to be made returnable on the first day of the next ensuing term. This fixed return day for all cases coming up on error, gives uniformity and certainty to the proceedings, and now as the national Courts have annually more cases than can be disposed of at their session of four or five months, from December to April or May, all writs issued during their term are necessarily made return- able the first Monday of December, at the close of that year. The allowance of this writ may be made and the citation, issued at the same time, may be signed by the Chief Justice, or presiding Jud'ge or •Chancellor of the court rendering or passing the judgment or decree complained of, or by a Justice of the Supreme Court of the United States. A pjetition should be drawn up and signed by the party or his attorney, addressed to the judge or jus- tice applied to, showing that a proper case exists for such writ. The petition must describe the suit in the State Court, show that the judgment or decree complained of was rendered by the highest court in which a decision could be had, and that the judg- ment or decree is final, in contradistinction to- inter- locutory; also that there was drawn in question some one or more of the matters described in the 25th section of the Judiciary act, that the decision of such highest court was adverse to the right, title, or exemption thus claiined by the petitioner, and that it so appears of record. Sec. 1.] Writs ofErbor amd Appeals. 121 If the petitioner desires to have the writ of error operate as a supersedeas, and stay the execution of the judgment or decree, he must lodge a copy of the writ for the adverse party, in the clerk's office where the record remains, within ten days, Sundays excepted, after the entry of the judgment or decree. He must consequently apply for and obtain the allowance of the writ within ten days; and as the judge, when the writ is applied for, and the citation signed within ten days, is required by law to take sufficient security that the plaintiff shall prosecute his writ to effect and answer all damages and costs, the peti- tioner must be prepared, on the presentation of his petition, to give security accordingly. This is given by a bond with surety, or sureties in a sufficient amount to cover the entire amount of damages, interest and costs involved in the writ of error, and the judge who signs the citation passes on the suffi- ciency of the security. But the security to be required and taken on the signing of a citation on any writ of error which sha trict Courts, ai^d the time and place of holding all regular terms, will be found in the subjoined Appen- dix No.. IT, 2. Jurisdiction is regulated in general by these divisions,, viz: 1st, In regard to the subject; 2d, In regard to the person; 3d, In regard to the place. The Judiciary Act of 1789 conferred criminal juris- diction on District Courts as follows : " They shall have exclusively of the courts of the several States cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, where a fine not exceeding $100, or a term of imprisonment not exceeding gix months, is to be inflicted." The act of 1842 extended this Chap. 7.] " JubisdictioN: 135 criminal jurisdiction as follows : " The District Courts of the United States shall have concurrent jurisdiction with the Circuit Courts of all crimes and offences against the United States, the punishment of which is not capital." The Judiciary Act of 1789 conferred civil juris- diction on District Courts as follows : " They shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade d the United States, when the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; saving to- suitors in all cases the right of a common law reme^ dy, where the common law is competent to give it ;, and shall have exclusive original cognizance of all seizures on land, or other waters than as aforesaid,, , made, and of all suits' for penalties and forfeitures incurred under the laws of the United States ; and shall also have cognizance concurrent with the courts of the several States, or the Circuit Courts^ as the case may be, of all causes where an alien sue& for a tort only in violation of the law of nations or a treaty of the United States ; and shall also have cognizance concurrent, as last mentioned, of all suits at common law where the United States sue, and the matter in dispute- amounts, exclusive of costs,, to the sum or value of two hundred dollars .... and the trial of issues of fact in the District Courts in all causes, except civil causes of admiralty and maritime jurisdiction, shall be b^ jury." 136 District GovRTS. . [Chap. 7. The foregoing provisions eriibrace the subjects of crimes, admiralty, maritime and prize cases, seizures and forfeitures. The party or person subject to the jurisdiction, must be one served with process, or appearing voluntarily, within the district. But an officer of the United States may sue, as such, for a debt or claim less than $100 in District Court. The locality which must determine the jurisdic- tion, is the residence of the defendant and not that of the plaintiff. Civil process can be served only in the district where the party defendant is an "inha- bitant or in which he shall be found," as stated at large .under the practice regulating " suits at law " in the Circuit Court. ■ As to jurisdiction in admi- ralty and seizure cases, where and at what^ time it is acquired, it is not our purpose here to discuss. 3.. In Admirmtt Proceedings. Proceedings in admiralty are founded on the civil law. The practice is confined to a very limited por- tion of the different districts in the Second Circuit. Except at New York city in the Southern, Brooklyn in the Eastern, and a few co:pamercial towns and cities, bo);dering upon our chain of inland lakes and rivers, in the other Districts, the practice is un- known to the profession; being uncalled for as an ordinary branch of office business, and being so peculiar that no cursory view would avail the stu- dent or aid the practitioner, we shall not enter upon its examination, ^ The able work of Judge Conkling upon " Admir- .Chap. 7.] Custom^ Revenue. 137 alty " is still a standard authority, sufficient to serve as a guide in ordinary cases. To this we may add, as books of reference upon admiralty practice in the District Courts in the Second Circuit, the following, viz : " Reports," by Blatchford and Rowland, by Edward R. Olcott, by Abbott Brothers; and also " Prize Cases," by Samuel Blatchford. 4. In Customs' Revenue Pkoceedings. The laws for enforciijg the payment of duties on im- ports and exports are very numerous, extending from the origin of the Government to the present period, by statutes conferring upon the District court jurisdic- tion for their violation, by civil and criminal pro- ceedings. Outside of the Southern and Eastern' Districts the prosecution for such offences is limited to a few frontier towns, as observed heretofore in regard to causes in Admiralty. Suits for forfeiture, or indictments for smuggling, are less common in Customs' cases, and the practice more unknown to the majority of practitioners in the Second Circuit, than are similar proceedings under Internal Revenue acts ; and we shall therefore . content ourselves by a reference to the " Forms " of proceeding to b'e found in " Appendix No. Ill," as a guide to the ordinary steps taken in this class of practice in District Courts, showing the powers and jurisdiction therein. 5. In Internal Revenue Proceedings. The Internal Revenue laws are voluminous and complex. Commencing with the session of Congress 138 District Courts. [Chap. 7. in 1862, this branch of the law has been annually extended, modified or repealed, until the provisions are less settled and understood than is desirable to the community, or even advantageous to the legal profession. , Since the original " Act to provide Internal Revenue to support the Government and to pay interest on the public debt," approved July 1st, 1862, the following additional or amendatory acts upon the same subject have been passed by Con- gress : Act of March 3d, 1863 ; Act of June 30th, 1864; Act of March 3d, 1865; Act of March 10th,* 1866; Act of July 13th, 1866; Act of July 27th,- 1866 (No. 2); Acts of March 2d, 1866, March, 1867, July, 1868. The prosecution of offences against the laws regu- lating Internal Revenue, devolves chiefly on the officers of the District Courts, after complaints made by or through the collectors, assessors and other subordinate Revenue officers. The proceedings are in the nature of a civil suit for forfeiture, or a criminal prosecution for the penalty. We shall not enter upon the examination of these proceedings of a civil character, for obvious reasons, further than to say in reference to Intbbnal Revende Seizures. These suits are commenced by the filing of an "Information." The subsequent proceedings are the same as in Customs' seizures, except a certain share of the net proceeds, as allowed by the rules or the regulations of the Treasury Department, is Chap. 7.] ^ Internal Revenue. 139 retained in court until the stated session succeeding the one at which the order fbr distribution is entered to await the claims of informers. In criminal cases the claims of informers are, in the Northern District of New York; materially abridged by a standing order or rule established at the last March term of the court, and which is as follows : " It is ordered that within ten days from the entry of this order, the cleirk of this court pay over to the proper officer or depository of the United States as required by law, all sums of money in his hands ot in the registry of the court, which have been paid to him as fines imposed as punishment of a party or person convicted of any criminal offense, under the laws of the United States relating to their internal revenue, unless such moneys as were paid as fines in cases where, by the particular section of the Act of Congress under which such punishment was inflicted, it expressly provides for the payment of a moiety, or other portion of such fine to an informer ; and that when such funds or fines are in deposit, the proper check therefor shall be drawn to enable the clerk to comply with this order." The practice in criminal cases is similar to that described as prevailing in the Circuit Court. ' By reference to the mode and rules regulating the presentment and trial of indictments there, it will be at once seen what is the routine in the District Court as well as in the Circuit. 6. In- Bankruptcy Proceedings. Since the origin of our government, only three 140 District Courts. [Chap. 7. Bankruptcy acts have been passed by Congress, viz : one in 1800 ; one in 1841, and one in 1867. These were under the eighth section of article I of the Cons.titution, which delares :," Congress shall have power to establish an uniform rule of naturalization and uniform laws on the subject of bankruptcies throughout the United States." By acts of Congress, original jurisdiction in Bank- ruptcy has been exclusively vested in the District Courts of the United States. 1st. G^hat established by the law of 1800, which was based on a con- solidation of the English statutes, was enacted April 4th, 1800, and was repealed December 19th, 1803. 2d, That established by the act of August 19th, 1841,- was in many respects different from the former act, and was repealed March 3d, 1843. The first act, therefore, it will be seen, continued for less than four years, and the second act for less than two years before its repeal. As the present "Act to establish a uniform system of Bankruptcy throughout the United States," ap- proved March 2d, 1867, has now been in existence the average period, or nearly so, of these two former acts, it might be regarded as probable that Congress would at an early day repeal this also. But it is evident that this last act has been passed in a more considerate manner, as to its provisions, and is more satisfactory in, its ^influence upon the business of the country than either of the preceding acts were. The act of 1867 may, therefore, be regarded, as having now become a permanent and fixed law of the land. Chap. 7.] BANKRVPTcr Proceedings. 141 It is impossible to here analyze the principles regulating the various proceedings involved in Bank- ruptcy cases. Already irom two to three thousand of voluntary and involuntary applications under the act have been instituted in the Northern ' District of New York. These may continue in a limited degree, dependent upon the com:piercial or specula- tive character of the business of our people, as long as the law remains on the statute book. It was unavoidable, at first, that the importunity ' of debtors, and the impatience or opposition of credi- tors, should induce these proceedings to be taken at many disadvantages to all concerned, which time and experience ihave now remedied'; as in the press and urgency of these applications, for a voluntary .discharge by the debtor,,a(nd involuntary surrender, by the creditor, less regard has been had to expense, or less effort at a compromise, than there would have been but for a fear that this, like former iacts, would be repealed. The labor thrown upon the District judges by this class of business has been very burthensome, and perplexing pftentimes in some of the districts, espe- cially when, as in the Districts of New York State, the amount of rfegular judicial duty had previously to the bankrupt law been quite enough} but these proceed- ings do not seem to have materially interfered with or prevented the disposal of other business promptly, either in term or vacation. Such forms or rules in bankruptcy as seemed advisable to noV publish are given in their appro- priate place in the Appendix II and III. 142 District Courts. ' [Chap. 7. 7. Copyright. The Law and Peaoticb pertaining to it. The Constitution of the United States confers on Congress the "power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their writings and discoveries." The " right of copy " signifies " the sole right of printing, publishing and selling his literary composi- tion or book." The act of 1831 provides that " any citizen of the United States who shall be the author of any book, map, chart or manual composition, or who shall in- vent, design, &c., any print or engraving, and the executors, administrators or legal assigns of such person shall have the sole right of printing, reprint- ' ing, publishing and vending such book, map, &c., in whole or in part, for the term of twenty-eight years from the time of recording the title." Atjthobship. To constitute a person an author under section 1 of above act, he must by his own intellectual labor applied to the material of his composition produce an arrangement or compilation new in itself. Obiginalitt. A work may be the subject of a copyright if the plan, arrangement and combination of its materials are new, though the materials may be drawn from many sources, if they are for the first time brought together in hew form. • , ' Chap. 7.] SECURwa Goptrigbt. 143 Seodbing Copthight. Section 4 of said act deelarea that no person is entitled to this copyright unless, before publication, he deposit ' a printed copy of the title of the book, &c., in the clerk's, office of the District Court of the district where the author or proprietor shall reside. The clerk is required to record it forthwith. , DiiLiVERT OP A Copt. ' The author or proprietor of any book, &c., shall, within three months from publication, cause to be delivered a copy of it to the clerk of the District ; and the clerk shall annually l^ransmit a list of all copyrights to the Secretary of State, to be preserved in his office. Publication of Entry. ' In copies of every edition of book, &c., published, on the title page or page next following, shall be printed " Entered according to act of Congress in the year , by A. B., in the clerk's office of the District Court of ." • The act of 1846 required a copy of book, &c., to be deposited iia. the Smithsonian Institijtion within three months; and the act of 1865 requires a similar copy to be deposited in the library of Congress within one month from time of publication, the same to be transmitted by mail free, if"" copyright matter" is plainly written or printed on outside of package. The subject of renewal^ assignments and licenses of copyrights, and also what constitutes an infringment, and remedy therefor, are matters' too complicated to be here discussed. ' 144 District Courts. [Chap. 7. 8. Naturalization. • ' The -power over this subject is yested by the Con- stitution in Congress. Formerly the Courts of the United States entertained a considerable share of the cases of naturalization ; but for various reasons the State Courts, under the power conferred upon them by Congress, have appropriated almost the entire of this class of judicial proceedings. For detailed information as to the different steps required to be taken in court or before the officers thereof to institute and to perfedt naturalization, we would refer the reader to acts of Congress passed April 14th, 1802; March 26th, 1804; March 13th, 1813 ; March 22d, 1816 ; May 23d, 1824 ; June 26th, 1848 ; July 17th, 1862. These several acts speak of the courts having jurisdiction, the proofs to be pro-- duced, and the periods of time requisite for aliens of different age to originate and complete the right of citizenship. It was thought quite probable that the late Con- gress would take action conferring the exclusive power over this subject upon the Courts of the United States. The District Courts alone, it was said, or in connection with the Circuit Courts, at regular or special sessions, if exclusively empowered so to do, might, under 'suitable legislation, be able'^to superin- tend most if not all this vast and increasing business, in a way to ensure the pure and faithful discharge of this important constitutional franchise. If entrusted to Federal officers alone, the vast extent of this business in many districts, it would' seem, might seriously interfere with the time required by the Chap, 7.] Naturalization. 145 courts for ordinary and indispensable judicial labor. It is not probable that the States would be satis- fied with any material surrender, of the exer^jise by their of&cers and courts in this behalf, in favor of Federal authority, and therefore, the change pro- posed has been abandoned, for the present period, at least: 10 ■ :AI>FEI>^IDIX I. An Act Passed Fbbbuart 26, 1853, to Eegulatb the Fees and Costs TO BE Allowed Clkkks, Marshals and AttobNets of the Circuit and District Courts op the United 'States, and fob Other Purposes. An Act op August 16, 1859, to Amend the Acts Regulating the Fees, Costs and otheb Judicial Expenses op the Govebnment in the States, Tebbitoribs and District op Columbia, and fob Other Purposes. An Act to Amend the Judicial System. An Act op New York State Legislature, Passed Mat 6, 1869, in Kela- TiON TO Evidence in Criminal Prosecutions, and in all Pro- ceedings IN THE Nature op Criminal Proceedings. Analy;sis of the Internal Revenue Acts op Congress, passed from - 1864 TO 1869 INCLUSIVE, specifying the Offences And Penalties THBBBIN named, IN A BrIEP AND TABULAR FORM, FOR MORE CON- VENIENT Reference. AN ACT To Eegulate the Fees and Costs to be Allowed Cleeks, Marshals and Attorneys op the Ciecdit and Dis- TEioT Courts of the United States, and foe Othbh PuEPOSESi I ; Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in lieu of the compensatioa now allowed by law to attorneys, solicitors and proc- tors in tbe United States Courts, to United States district attorneys, clerks of the district and circuit courts, marshals, witnesses, jurors,, commissioners and printers in the several States, the following and, no other compensation shall be taxed and allowed. • But this Act 148 Appendix I. shall not be construed to prohibit attorneys, solicitors and proctors from charging to and receiving from their clients, other than the Government, such reasonable compensation for their services, in addition to the taxable costs, as may be in acicordance with general usage in their respective States, or may be agreed upon between the jiarties. Fees op Attokjstets, Solioitoks and Pkoctobs. In a trial before a jury, in eiyil and criminal causes, or before re- ferees, or on a final hearing in equity or admiralty, a docket fee of " twenty dollars : Provided^ That in cases in admiralty and maritime jurisdiction, where the libellant shall recover less than fifty dollars, the docket fed of his proctor shall be but ten dollars. In .cases at law, where judgment is rendered without a jury, ten dollars, and five dollars where a cause is discontinued. For scire facias and other proceedings on recognizances, five dollars. For each deposition taken and admitted as evidence in the cause, two dollars and fifty cents. A compensation of five dollars shall be allowed for the services rendered in cases removed from a district to a circuit court by writ of error or appeal, ' > For examination by a district attorney, before a judge or commis- sioner, of a person or persons charged with crime, five dollars per day for the time necessarily employed. For each day of his necessary attendance in a court of the United States, on the business of the United States, wben the same shall be held at the place of his abode, five dollars, and the like sum for his attendance for each day of the term when the said court shall be held elsewhere. For traveling from the place of his abode to the place of holdjng any court of the United States in his district, and to the place of any examination before a judge or commissioner, of a person or persons charged with crime, ten cents per mile for going and ten cents for returning. When an indictment for crime shall be tried before a jury, and a conviction is had, in addition to the attorney's fees allowed by this act, the district attorney may be allowed a counsel fee in proportion to the importance and' difficulty of the cause, not exceeding thirty dollars. Fee Bill. 149 In every case where a district attorney has, during the last six years, prosecuted or defended a suit in which the United States was concerned, in a district where the, law allows no taxable attorney's fees, and for which he has received no compensation, except his per diem and annual salary, he shall be paid for his services according to the provisions of this Act. For the services of counsel, rendered at the request of the head of a department, such sum as may be stipulated or agreed on. Whenever there are, or shall be,*several charges against any per- son or persons for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crin;es or offences which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts ; and if two or more indictments shall be -found in such cases, the court may order them consolidated. Whenever two or more things, belonging to the same person or persons, are or shall be seized for an alleged violation of the reve- nue laws, the whole shall be included in one suit ; and if not so " included, and separate actions are prosecuted, the court may con- solidate them. , Whenever two or more indictments, suits or proceedings, are or shall be prosecuted,""which should be joined, the district attorney prosecuting them, shall be paid but one bill of costs for all of them ; and if any attorney, proctor, or other person admitted to manage or conduct causes in any court of the United States, or of the Territo- ries thereof, shall appear to have multiplied the proceedings in any cause before such court, so as to increase costs unreasonably and vexatiously, such person may be required, by order of the court, to satisfy any excess of costs so increased. Whenever two or more charges are or shall be made, or two or more indictments shall be found against a person, only one writ or warrant shall "be necessary to arrest and commit him for trial ; and it shall be sufficient to state in the writ the name or general charac- ter of the offences, or to refer to them only in very general terms. Only one writ or warrant shall be necessary to remove a prisoner from one district to another ; a copy of which may be delivered to the sheriff or jailer from whose custody the prisoner may be taken, and another copy thereof to the sheriff or jailer to whose' custody he may 150 'Appendix I. be committed, and the original ,writ, with the marshal's return thereon, shall be returned to the clerk of the district to which he may be removed. Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant or mittimus, a copy thereof shall be delivered to the sheriff or jailer as his authority to hold the prisoner, and the original writ, warrant, or mittimus, shall be returned to the proper court or officer, with the officer's return thereon. Clebks' Fees. For issuing and entering every , process, commission, summons, capias, execution, warrant, attachment, or other writ, except a writ of venire, summons, or subpoena for a witness, one dollar. For filing and entering every declaration, plea, or other paper, ten cents. , For administering every oath or affirmation to a witness, or other person, except a juror, ten cents. For entering any return, rule, order, continuance, judgment, de- cree or recognizance, drawing any bond, or making s^ny record', cer- tificate, return or report, for each folio, fifteen cents ; and for a copy of any such entry or record, or of any paper on file, not exceeding one folio, ten cents ; and for each additional folio, ten cents. For making dockets and indexes, and for all other services on the trial or argument of a cause, where issue is joined and teptimon^ given, including venire and taxing costs, three dollars. For making dockets and indexes, and for all other services in a cause where issue is joined and no testimony given, including taxing costs, two dollars. For making dockets and indexes, and for taxing costs" and other services, in a cause which is dismissed, discontinued, or a judgment or decree is made or rendered therein without issue, one dollar. In equity and admiralty causes, only the process, pleadings, and decree, and such orders and memorandums as may be necessary to show the jurisdiction of the court and regularity of the proceed- ings, shall' be entered upon the final record ; and in case of an appeal, copies of the proofs an^ of such entries and papers on file as may be necessary on hearing of the appeal, may be certified up to the appel- late court. For affixing a seal of the court to any instrument when required, twenty cents. For issuing a writ of subpoena, twenty-five cents. Fee Bill. 151 For every search for any particular mortgage, judgment, or other lien, fifteen cents. For traveling from the office of the clerk, where he is required by law to reside, to the plaqe of holding any court required to be held by law, five cents per mile for going and five for returning, and five dollars per day for his attendance on any such court or courts while actually in session. For searching the records of the court for judgments, decrees,;and other instruments constituting a general lien upon real estate, and certifying the result of such search, fifteen cents for each person against whom such search is required to be made. For receiving, keeping and paying out money, in pursuance of the requirements of any statute or order of court, one per cent on the amount so received, kept and paid. In cases removed by writ of error or appeal, the clerk's fees for making dockets and taxing costs, shall be but one dollar, and the clerks of the district and circuit courts respectively, ex-officio, shall be, and hereby are, authorized and empowered to administer oaths, take acknowledgments, take and certjfy affidavits and depositions in the same manner as commissioners, and shall be entitled to the same fees and compensation therefor. Marshals' Fees. For service of any warrant, attachment, summons, capias, or other writ, (except execution, venire, or a summons or subpcena for a wit- ness,) two dollars for each person on whom such service may be made : Provided, That on petition setting forth the facts on oath, the court may allow such fair compensation for the keeping of personal property attached and held on mesne process, as shall, on examination, hefowndto be reasonable. For serving a writ of subpcena on a witness fifty cents ; and no further compensation shall be allowed for any copy, summons, or notice for witness. For travel in going only.to serve any process, warrant, attachment, or other writ, including writs of subpoena in civil and yriminal cases, six cents per mile, to be cpmputed from the plac6 of service to the court or place where the writ or process is returned ; and if more than one person is served therewith, the travel shall be, computei^ from the court to the place of service which shall be the most re- mote, adding thereto the extra travel which shall be necessary to 152 Aj-pendixI. serve it on the others : Provided, That when more than two writs of anjf kind in behalf of the same party or parties, to be served on the same person or persons, or part of the same persons, are or might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs ; and to save unnecessary expense, it shall be the duty of the clerk to insert the names of as many witnesses in a cause, in each subpoena, as convenience in serving the same will permit. And in all cases where mileage is allowed to the marshal by this act, Jt shall be at his option to receive the same, or his actual traveling expenses, to be proved on his oath to the satis- faction of the court. For each bail bond, fifty cents. For summoning appraisers, each fifty cents. For every commitment or discharge of a prisoner, fifty cents. .For every proclamation in admiralty, thirty centsl For sales of vessels or other property, under process in admiralty, Of under the order of a court of admiralty, a.nd for receiving and paying the money, for any sum under five hundred dollars, two and one-half per centum ; for any larger sum, one and one-quarter per centum upon the excess. For serving an attachment in rem, or a libel in admiralty, two dollars ; and the necessary expenses of keeping boats, vessels, or other property attached or libelled in admiralty, not exceeding two dollars and fifty Cents per day ; and in case the debt or claim shall be settled by the parties without a sale of the property, the marshal shall ie entitled to a commission of one per cent on the first five hundred dollars of the claim or decree, and one-half of one per cent on the excess over fivehundred dollars : Provided, That in case the value of the property shall be less th,an the claim, then and in such case, such commission shall be allowed only on the appraised value thereof; For serving a writ of possession, partition, execution, or any final process, the same mileage as is herein allowed for the service of any > other writ ; and for making the service, seizing or levying on pro- perty, advertising and disposing of the same by sale, set-off, or other- wise, according to law, receiving and paying over the money, the same fees and poundage as are or shall be allowed for similar servi- ces to the sheriffs of the several States,, respectively, in which the service may be rendered. Fem Bill. 153 For serving venires and summoning every twelve men as grand or petit jurors, four dollars, or thirty-three and one-third cents each ; and in those States where jurors, by the law of the State, are drawn by constables, or other dfficersof corporate towns or places, by lot, the marshal shall receive for the use of the officers employed in drawing and summoning the jurors and returning each venire, two dollars, and for his own trouble, in distributing the venires, two dollars for each jury : Provided, That in no case shall the fees for distributing and serving venires, and drawing and summoning jurors by township officers, including mileage charge- able by the marshal 'for such service, at any court, exceed fifty dollars. For traveling from his residence to the place of holding court, to attend a term thereof, ten cents per mile for going only, and five dollars per day for attending the circuit and district courts when they are both in session, or for attending either of said courts when but one is in session, and for bringing in and committing pris*- oners and witnesses during the term. For executing a deed prepared by a party or his attorney, one dollar. For drawing and executing a deed, five dollars. For transporting criminals, ten cents per mile for himself,- each necessary guard, and each prisoner. For copies of writs or papers furnished at the request of any party, ten cents per folio. For holding a court of inquiry or other proceeding before a jury, including the summoning of a jury, five dollars. -The marshal of the district of Sonth Carolina, shall hereafter be entitled to receive a salary of two hundred dollars per annum. The respective courts of the United States shall appoint criers for their courts, to be allowed the sum of two dollars per day j and the marshals are hereby authorized to appoint such a number of persons, not exceeding five, as thfe judges of ^their respective courts shall de- termine, to attend upon the grand and other juries, and* for other necessary purposes, who shall be allowed for their services, the sum of two dollars per day, to be paid by and included in the accounts of the marshal, out of any money of the United States in his hands ; the compensation to be given only for actual attendance ; and when both courts are in session at the same time to be paid but for attendance on one court. 154 Appendix I. For expenses while employed in endeavoring to arrest under pro- cess any person charged with or convicted of a crime, the sum s^ctual- ly expended, not to exceed two dollars per day, in addition to his compensation for service and travel. For disbursing money to jurors and witnesses, and for other ex- penses, two per centum. For attending examinations befor a commissioner, and bringing in guarding, and returning prisoners charged with crime, and witnesses, two dollars per day, and the same for each deputy necessarily attend- ing, not exceeding two. Sec. ,2. And, he it further enacted, That there shall be paid to the marshal his fees for services rendered for the United States, for summoning jurors and witnesses in behalf of the United- States, and in behalf of any prisoner to be tried for a capital offence; for the main- tenance of prisoners of the United States, confined in jail for any criminal offence ; for the commitment or discharge of such prisoners ; for the expenses necessarily incurred for fuel, lights, and other' con- tingencies that may accrue in holding the courts within the district, and providing the books necessary to record the proceedings thereof : Provided, That the m^arshal shall not incur an expense of more than twenty dollars in any one year for furniture, or fifty dollars for rent of building and making improvements thereon, without first submit- ting a statement and estimates to the Secretary of the Interior, and getting his instructions in the premises. Sec. 3. And be it further enacted, That every district attorney, clerk of a district court, clerk of a circuit court, and marshal of the United States, shall, until otherwise directed by law, upon the first day of January and July in each year, commencing with the first day of July next, or within thirty days from and after the days specified, make to the Secretary of the Interior, in such form ^s he shall prescribe, a return in writing, embracing all the fees and emo- luments of their respective offices, of every name and character, dis- tinguishing the fees and emoluments received or payable under the bankrupt act, from those received or payable for any other service ; and in the case of a mai'shal, further distinguishing the fees and emoluments received or payable for services by himself personally rendered from those received or payable for services rendered by a deputy 5 and also distinguishing the fees and emoluments so received or payable fop servipes rendered by each deputy, by name, and Feb Bill. "[55 the proportion of such fees and emoluments which, by the terms of his service, each deputy is to receive ; and also embracing all the necessary office expenses of such officer, together with the vouchers for the payment of the same for the half year ending on the said first day of January or July, as the case may be ; which return shall be in all oases, verified by the oath of the officer making the same. And no district attorney shall be allowed by the said Secretary of the Interior to retain'of the fees and emoluments of his said office, for his own personal compensation, over and above his necessary office expenses, the necessary clerk hire included, to be audited and allowed by the proper accounting officers of the Treasury, a sum ex- ceeding six thousand dollars per year, and at and after that rate for such time as he shall hold the office ; and no clerk of a district court, or clerk of a circuit court, shall be allowed by the said Secre- tary to retain of the fees and emoluments of his said office, or, in case both of the said clerkships shall be held by the same person, of the said office's, for his own personal compensation, over and above the necessary expenses of his office, and necessary clerk hire includ- ed; also to be audited and allowed by the proper accounting ofiicers of the Treasury, a sum exceeding three thousand five hundred dol- lars per year for any such district clerk, or circuit clerk, or at and after that rate for such time as he shall hold the office : Provided, That when the compensation of any clerk shall be less than five hundred dollars per annum, the difference, ascertained and allowed by the proper accounting officer of the Treasury, shall be paid to him therefrom, and no marshal shall be allowed by the said Secretary to retain of the fees and emoluments of his office, for , his own personal compensation, over and above a proper allowance to his deputies, which shall in no case exceed three-fourths of the fees and emoluments received as payable for the services rendered by the deputy to whom the allowance is made, and may be reduced below that ''rate by the said Secretary of the Interior whenever the return shall show, that rate of allowance to be unreasonable, and over and above the necessary office expenses of the said marshals, the ileces- sary clerk hire included, also to be audited and allowed by the pro- per accounting officers of the Treasury, a sum exceeding six thou- sand dollars per year, or at and after that rate for such time as he shall hold the office ; and every such officer shall, with each such return made by him, pay into the Treasury of Ihe United States, ot 156 Appendix I. deposit to the credit of the Treasury thereof, as he may be directed by the Secretary of the Interior, any surplus of the fees and emolu- ments of his ofi£ce, which his half yearly, return so made as afore- said shall show to exist over and above the compensation and allow- ances herein before authorized to be retained and paid by him. And in every case where the return of any such officer shall show that a surplus may exist, the said Secretary of the Interior shall cause such returns to be carefully examined, and the accounts of disbursements to be regularly audited by the proper officers of his Department,- and an account to be opened with such officer in proper books to be provided for that purpose, and the allowances for personal com- pensation for each calendar year shall be made from the fees and emoluments of that year, and not otherwise : And provided further, That nothing in any existing law of Gongresa authorizing the pay- ment of a per diem compbnsation to a district attorney, clerk of a district court, or clerk of a circuit'court, or marshal, or deputy mar- shal, for attendance upon the district or circuit courts during their sittings, shall be so construed as to authorize any such payment to any one of .those officers for attendance upon either of those courts while sitting for the transaction of business under the bankrupt law merely, or for any portion of the time fqr which either of the said courts may be held open or in session by the authority conferred in that law ; and no such charge in an account 6f any officer shall be certified as payable, or shall be allowed and paid out of the money herein before appropriated for defraying the expenses of the courts of the United States. And no per diem or 'other allowance shall be made to any such officer for attendance at rule days of the circuit or district courts ; and when the circuit and district courts sit at the same time, no greater per diem or other allow- ance- shall be made to any such officer than for an attendance on one court. The two last provisos of paragraph one hundred and sixty-seven of the Civil and Diplomatic Appropriation act, approved May the eighteenth, one thousand eight hundred and forty-two, which require clerks to certify accounts^ and confine the marshals, clerks and dis- trict attorneys of the northern and southern districts of New York to the fees allowed by the State law to clerks, attorneys, counsel- ors and sheriffs, for similar services in the State courts, are hereby repealed. Fee Bill. 157 Commissioners' Fees. For administering an oath, ten cents ; taking an acknowledgment, twenty-five cents. For hearing and deciding on criminal charges, five dollars per day for the time necessarily employed. For attending to a reference in a litigated matter in a civil cause at \a.M„ in equity, or in admiralty in pursuance of aff order of Court, three dollars per day. For taking and certifying depositions to file, twenty cents for each folio of one hundred words, and ten cents per folio for each copy of the same furnished to a party on request. For issuing any warrant, or writ, or an^ oth'er service, the same compensation as is allowed to clerks for like services. For issuing any warrant under the tenth article of the treaty of the ninth of August, eighteen hundred and forty-two, between the United States and the Queen of the United Kingdom of Great Britain and Ireland, against any person charged with any of the crimes or offences set forth in said article, two dollars; and the same sum for any warrant issued under the provisions of the con- vention for the surrender of criminals, between the United States and the King of the French, concluded at Washington on the ninth of November, eighteen hundred and forty-three ; and for hearing and deciding upon the ease of. any person charged with any offence or crime, and arrested under the provisions of^said treaty or con- vention, five dollars per day for the time necessarily employed. "Witnesses' Fees. For each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents per mile for travel- ing from his place of residence to said place of trial or hearing, and five cents per mile for returning. When a witness is subpoenaed in more than one cause between the same parties in different suits at the same court, but one travel fee and one per diem compensation shall be allowed fpr attendance, to be taxed in the first case disposed of, and "per diem" only in the other causes, to be taxed from that time in each case, in the order in which they may be disposed of. When a witness is detained in prison for want of security for his appearance, he shall be entitled to a compensation of one dollar per day over and above his subsistence. 158 Appendix I. When a clerk or other officer of the United States shall be sent away from his place of business as a witness for the -Government, either witt or without papers or books, his salary shall continue; his necessary expenses, stated in items and sworn to, in going, returning and attendance on the court, shall be audited and paid, but no mileage nor other compensation shall in any case be allowed. There shall be paid to such seaman or other person as has been or shall be sent to the United States from any foreign port, station, sea, or ocean by any United States minister, charg6 d'afiFairs, consul, commander or captain, to give testinlony in any criminal case which has been or may be depending in any court of the United States", such compensation as the court, which had or shall have cognizance of the crime, shall adjudge to be right and proper, not to exceed one dollar for each day the said seaman or person has been or shall be necessarily on th^ voyage, and arriving at the place, of examination or trial, exclusive of sustenance and transportation; the court to take into consideration in fixing said compensation, the condition of said seaman or witness ; whether his voyage has been broken up to his injur;^' by his being sent to the United States or not. If said seaman or person ha^ been or shall be transported in an armed vessel of the United States, no charge for sustenance or transportation shall be made ; if in any other vessel, the court may adjudge what compensation shall be paid to the captain of said ves- sel, and the same shall be paid accordingly : Provided, That in no case shall transportation and subsistence be allowed at a rate exceed- ing fifty cents per diem. JuKOBs' Febs. For actual attendance at' any court or courts, two dollars per day during such attendance. For traveling ffom their residence to said court or courts, five cents per mile for going, and tlje same for returning. Pbintbes' Febs. For publishing any statute, notice or order required by law, or the lawful order of any court, department, bureau or other person, in any newspaper, forty cents per folio for the first insertion, aind twenty cents per folio for' each subsequent insertion. That the' compensation herein provided shall include the furnishing lawful evidence, under oath, of publication, to be made and furnished by the printer or publisher making such publication. F,eeBill. 159 The term folio in this act shall mean one hundred words, count- ing each figure as a wqrd. When there are over fifty ahd under one hundred words, they shall be counted as one folio, but not when there are less, except when the whole statute, notice or order con- tains less than fifty words. , , The bill of fees of clerk, marshal and attorneys, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trial in cases where by law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clejrk of the court, and be included in and form a portion of a judgment or decree against the losing party. Such taxed bills shall b^ filed with the papers in the cause. In eases where the United States are parties, the marshal shall,, on the order of the court, to be entered' in its minutes, pay to the jurors and witnesses ^11 such fees as they may appear by su'eh order to'be entitled to, which sums shall be allowed him at the Treasury in his accounts. < The fees of the marshals, clerks, commissioners and district attor- neys, in cases where the United States are liable to pay the same, shall be paid on settling their accounts at the treasury, such accounts to be made out and verified by the party under oath, and forwarded to the First Auditor of the Treasury. In prize cases, where there is a condemnation and sale, the costs, so far as they are payable, and can be paid out of the proceeds of sale, shall be paid on the order of the court upon the filing of the taxed bills, making them a portion of the record in the case. No district attorney, marshal or clerk, or their deputies, shall receive any other or greater compensation for any services rendered by him than is provided in this act ; and all acts and parts of acts, allowing to either of them any other or greater fees than is herein provided, are hereby repealed, and to receive any other or greater compensation is hereby declared to be a misdemeanor ; and if any officer herein before mentioned, or his deputy, shall, by reason or color of his office, wilfully ?ind corruptly demand and receive any other or greater fees than those allowed in this act, he shall, on conviction thereof in any court of the United States, forfeit and pay a fine not exceeding five hundred dollars, and be imprisoned not exceeding six months at the discretion of the court before whom the conviction shall be had. 160 Appendix I. But this shall not be construed to prohibit the payment of any salary authorized by statute : Provided, That in the State of Cali- fornia and the Territory of Oregon, officers, jurors, and witnesses shall be allowed, for the term of two years, double the fpes and compensation allowed by this act, and the same fees allowed by this act, with fifty per cent added thereto, for two years thereafter. That before any,bill of costs shall be taxed by any judge or other officer, or allowed by any officer of the Treasury, in favor of clerks, marshals, commissioners, or district attorneys, the party claiming such bill ?halt prove by his own oath, or some other person having a knowledge of the facts, to be attached to such bill and filed there- with, that the services charged therein have been actually and necessarily performed as therein stated. That witnesses who are required to attend any term of the court on the part of the United Stateg, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court-w.ithout leave of the court or district attorney, under which it shall be their duty to appear before the grand jury or petit jury, or both, as they shall be required by the court or district attorney. No writ shall be necessary to bring into court" any prisoner or person in custody, or for remanding him from the court into custody; but the same shall be done on the order of the court or district attorney, for which no fee shall be charged by the clerk or marshal. Sec. 4. And he it further enacted. That if any person shall falsely" take an oath or affirmation in relation to any matter authorized by this act, such person shall be deemed guilty of perjury, and upo conviction thereof, shall suffer the pains and penalties in that case provided. Sec. 5. ArvA be it further enacted. That all laws and regulations heretofore made, which are incompatible with the provisions of this act, are hereby repealed and abrogated : Provided, nevertheless. That this act shall not be construed to repeal or modify any clause or provision of an act approved the eignteenth September, eighteen hundred and fifty, entitled " An act to amend and supplementary to the act entitled 'An act respecting fugitives from justice, and per- sons escaping from the service of their masters,' approved February twelfth, seventeen hundred and ninetyrthree." Sec. 6. And be it further enacted. That the act approved Septem- ber twenty-eighth, eighteen hundred and fifty, entitled "An act to Act Regulating Fees. 161 provide for extending the laws and judicial system of the United States to the State of California," be so amended as to confer on the district court of the State of California jurisdiction in all criminal cases as fully and completely as is conferred by law upon the district or circuit court of the State of New York. Approved February 26, 1853. AN ACT To Amend the Acts Eegulating the Fees, Costs, and Other Judicial Expenses of the Government in THE States, Teeritoeies, and Disteict or Columbia, AND foe Other Pueposes. Be it enacted by the Senate arid House of Representatives of the United States of America in Congress assembled. That here- after, before the accounts of the United' States marshals, district attorneys, and clerkb, are presented to the accounting officers of the' Treasury Department for settlement, they shall be examined anii certified to by the District Judge of the United States in the district in which the officers presenting the accounts officiate,, whether in the States or Territories, and the same shall be sub- ject to revision upon their merits by said accounting officers, as in case of other public accounts : Provided, however. That no accounts of fees or costs paid to any witness or juror, upon the order of any judge or commissioner, shall be so re-examined as to charge any marshal for an erroneous taxation of such fees or costs. Sec. 2. And be it further enacted, That the accounts of the Com-, missioners of the United States Circuit Courts shall be examined and certified to by the District Judge of the district in which they are appointed, previous to their presentation to, or revision by, the accouiiting officers of the Treasury Department. Sec. 3. And be it further, enacted^ That in no case shall the fees of more than four witnesses be taxed against the United States in the examination of criminal cases before the Commissioners of the United States Circuit Courts, unless their materiality and import- ance shall first be approved and certified to by the United States District Attorney for the district in which the examination shall take place, subject to revision, as in other cases. , 11 l62 Appendix I. Sec. 4. ATid he it furtheT enacted, That in all these oases before mentioned an appeal shall lie from the dcQision of the accounting officers to the Secretary of the Interior. Sec. 5. And he it further enacted, That the Judges of the Supreme Court in each of the Territories, or a majority of them, shall, when assembled at their respective seats of government, fix and appoint the several times and places of holding the several courts in their respective districts, and limit the duration of the terms thereof: Provided, That the said courts shall not be held at more/ than three places in' any, one Territory: And provided, further, That the judge or judges holding such courts shall adjourn the same, without day, at any time before the expiration of such terms, whenever in his or their opinion the further continuance thereof is not neqessary. Sec. 6. And he it further enacted, That all costs and fees for service^ rendered by the clerks f)f the several cx)urts in the J)istriot of Columbia, chargeable to others than the United States, shall be payable immediately after the services are performed, and shall be collected by such rules and regulations, not incompatible with law, as may be prescribed by the courts in which such services are rendered, but shall in no case be paid by the United States. Sec. 7. And be it further enacted. That the several Circuit and ' District Courts of the United States, the Bistrict Courts of the Territories, and the Criminal Court of the District of Columbia,; shall have the power to discharge the grand juries of the respective courts whenever they shall be of opinion that the public interests will not be subserved by a further continuance of the session of, said grand jury. Sec. 8. And be it further enacted, That no officer of the United States courts, including the bailiffs, guards, or deputies of the United States marshals, whether in the States, Territories, or District of Columbia, shall be entitled to witness fees, either before a court or commissioners where he is officiating. Sec. 9. And be it further enacted. That the United States shall hereafter be liable to the justices and constables of the county of Washington, in the District of Columbia, for their fees and services in cases of felony only ; and so much of the fifteenth section of the act of May seventeenth, eighteen hundred and forty-eight, entitled " An act to continue, alter, and amend the charter of the city of Act-Requlating Fees. 163 Washington," as provided otterwise, is hereby repealed ; said fees shall be paid by the United States marshal, upon the approval of the Judge of the Criminal Court of the District of Columbia, subject to the revision by the accounting officers of the treasury, and to appeal to the Secretary of the Interior. Sec. 10. And he it further enacted, That it shall be the duty of each of the Judges of the Supreme Court of the respective Territories of the United States to designate and appoint one person as clerk of ithe district over which he presides, where one is not already appointed, and to designate and retain but one such clerk where more than one is already appointed,^ and only such district clerks shall be entitled to a compensation from the United States-, except for fees taxable to the United States. Sec. 11. And be it further enacted, That so much of the third section of the act of February twenty-six, eighteen hundred and fifty-three, entitled "An act to regulate the fees and costs to be allowed to clerks, rearshals, and attorneys of the Circuit and District Courts of the United States, and for other purposes," as requires " that when the compensation of any clerk shall be less than five hundred dollars per annum, the difference ascertained' and allowed by the proper a,ccounting officers of the treasury shall be paid to him therefrom," is hereby repealed. Sec. 12. And be it further enacted, That all accounts of the United States district attorneys for services rendered in cases instituted in the United States or State courts, when the United States is a party in interest, but not of record; or in cases instituted against the officers of the United States or their deputies or duly appointed agents, for acts committed or omitted or suffered by them, in the lawful discharge of their duties, shall be audited and allowed as in other cases, assimilating the fees, as near as may-- be, to those provided by said act of February twenty-six, eighteen hundred and fifty-three, for like or similar services. Sec. 13. And he it further enacted, That no marshal or deputy marshal, of any of the courts of the United States, shall hold or exercise the duties of commissioner of any of said courts, nor receive compensation therefor. Sec. 14. And he it further enacted. That whenever, from any cause, it may be impossible for the district attorney to attend at court, it shall be his duty to see that a meet and proper person. 164 Appendix I. learned in the law, residing as near the place where the court is held as possible, does attend to such business as may appertain to the duties of his office, and in all such cases the fees and charges to be paid shall be only 'such as the district attorney would have been authorized by law to charge had he personally attended' and per- formed the service : Provided, however, That before any such substitution is sanctioned, or payment made, the necessity thereof shall be shown to the satisfaction of the Secretary of the Interior, Sec. 15. ArM be it further enacted, That all provisions of law inconsistent with this act are hereby repealed. Approved August 16, 1856. AN ACT To Amend the Judicial System of the United States. Be it enacted by the Senate and House of JRepresentatives of the United States of America in Congress assembled. That the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum, and for the purposes of this act there shall be appointed an additional associate justice of said court. Sec. 2. And be it further enacted, That for each of the nine exist- ing judicial circuits, there shall be appointed a circuit judge, who shall reside in his circuit, and shall possess the same power and jurisdiction therein as the Justice of the Supreme Court allotted to the circuit. The Circuit Courts in each circuit shall be held by the Justice of the Supreme Court allotted to the circuit, or by the Circuit Judge of the circuit, or by the District Judge of the district sitting alone, or by the Justice of the Supreme Court and Circuit Judge sitting together, in frhich case the Justice of the Supreme , Court shall preside ; or, in the absence of either of them, by the other (who shall preside), and the District Judge j and such courts may be held at the same time in the different districts of the same circuits ; and cases may be heard and ti-ied by each of the judges holding any such court, sitting apart, by direction of the presiding ' justice or judge, who shall designate the business to be done by each. The Circuit Judges shall each receive an annual salary of $5,000. Amending Jvdiciar r. 1 (J 5 Sec. S. And be it further enacted, That nothing in this act shall affect the powers of the Justices of the Supreme Court as Judge of the Circuit Court, except in the appointment of clerks of the Cir- cuit Courts, who, in each circuit shall be appointed by the Circuit Judge of that circuit, and the clerks of the District Courts shall be appointed by the judges, thereof, respectively : Provided^ That the present clerks of said court shall continue in office till other appointments be made in their place or they be otherwise removed. Sec. 4. And be it further enacted, That it shall be the duty of the Chief Justice and of each Justice of the Supreme Court to attend at least one term of the Circuit Court in each district of his circuit during every period of two years. Sec. 5. And be it further enacted. That any jud^e of any court of the United States, who having held his commission as such at . least ten years, shall, after having attained the age of seventy years, design his office, shall thereafter, during the residue ,of his natural life, receive the same salary which was by law payable to him at the time of his resignation. Sec. 6. And be it further enacted. That this act shall take effect on the first Monday of December, eighteen hundred and. sixty-nine. Approved April 10, 1869. AN ACT. In Relation to Evidence in Ceiminal Peosectjtions, asd m ALL Peoceedings in the >iatuee of Criminal f Peoceedings. / The People of the State of New York^ represented in Senate and Assembly, do enact as follows : , Sec. 1. In the trial of all indictments, complaints and other proceedings -against persons charged with the commission of crimes or offenses, and in all procfeedings in the nature of criminal pro- ceedings in any and all courts, and before any and all officers ~and persons acting judicially, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness ; but the neglect or refusal of any such person to testify shall not create any presumption against him. Sec. 2. This act shall take effect immediately. Passed May 6th, 1869. 166 m g^ hH T/) & •^ 58 3 h^ < ri ^ $23 ■5 !5 ^ ^^" el O M 9 o 03 _ Appendix^ I. a CS o ® ■» S o at « ce o oo oo--ao-»g— ' ja _; .a « ^0000 a 00000 2 .00000 ™vO .<*i»>««v , O kfl r-i M Cfl 10 ffl^OOOOO o ■Ss o-"---*- o 5bj-*^00000 O ■VgjoOOOOO n ,w^ja .^ ift 1-1 .- ^ 10 *:j ■5 "2 s 9 O l-i a " f^< •a •a tug touitf 5'^ o 'O *« a * a . a as 5 5 o • o o-fi « s> a I 3 Cm O a a ^' I s » 0) o o S .S'S'. S " " tM 3 _ S MS o la"* "-■a®-*. aa).-j5 .SCaeso^a^:^ e> S— '3 A o^tS chorz 2 s^-S-^rsS E" a 3 a -^s -g ^ B -a <« " o o o ".2 2 ffg-S t> a a.S'O " o 83 <3r3 o3 S'™ -*3 '"^ .Tj ^ d ^ ^ .a DD ^ D] ,^ ^ a •.> O CO CO r^ CO CO 00 00 t-t- eO CO CO 00 ±>^ £•!: a a s a - * - - d c3 •9 " I^SS>^ M ^ — — — a 5BBBBSS ■< gl-sH»l-sh?l-jl-» Analysis Revenue Acts. 167 t 2 c _6 "S I Si M I K 5 ■"» ^ja "^.a' o o -^ a - t> o S i 1 ^S 53 >■<§ ^S ^g '*><§«§ ^ <§S DO t» BB O ^ h g 4> « a » i^gi^ O OQ Hrt°' M 3 » s s .2 ,2 ,2 a SmS = e: mm d H a M M •r' ta a •§1 ■2- = tnS CO « M S o CO % CO CO SS' 3 3S s s CO «o «o ■*eO QDrH rH CD CO iH • CO 1-t CO CO 1H 00 s f-l • • i 1H • • coco CO CO CO s CO CO 1^ CO coco coco coao Sco "3 "3 "3 9 . 9 3 "3 Is s s a as s a s "3 "sa sa 168 Appendix I. DQ DQ M M, <» C > .5 K S ^ = 2 2 .ooSJ a p» >^ • m "» g 'S « 1 !■ o 9 2 o o — IQ H EH ©oatcoa 03 cQ 'S- 2 m o ®. a a, s a 5 OQ o CO o m sgasas EH tZi OQ &S^% o o o rt __._, LO o ^ o o ■ o o o o o o o o o o o a a ^f4 M»-*^2 ^* i- o e oa}L,a o w 0( p. ftp. 5 g p. o. >> P^ K P»>'3 m ►> Jj c a cava a a u q w o a o Pi b P> a .Sfa Mq" a s Mq a •09g m 0S Ms ,KI P< 1° *1 S "^ O 9 +- P4 o S ■^ a- P," a ^ .22a5 •M49 » M 'ill I !S » feO- . oa to a . : a . s • a O V. 49 » tC I P« '^ SO" p. s " o s o _ ■» ; s 4900a!4 n49^49'aL4 ,tQ ' H_WB8™fl3 M tecs?'© ■o'ag'i " o Mo J o| o S uj V .t3 jj -»a & Lj CO •^ ■•^ e3 (« a a a ■al .|i,o 'S, q ""IS o h P 0} .a'g.o ■ a P £4 , * = a.«"i g O sji « => M " "< o 60^ o J2 a a o I <" bo a ci I'lS-Sfe'a'i o ») 2 S £ 2 g 00 00 CO CO 00 00 00 00 00 (O to CO CO CO 00 go 00 CO OT 00 00 CO CO ,00 oo a 9 i-s "Ss. i-shi 00 CO CO CO 00 CO 's'S 3 "5 Analysis Revenue Acts. 169 99 BQ 5 -S 5 ' •s e . a . a . p ,a S a s a s 3 .s g..a g..H ?. « m OQ ca GU . o E S t ■" a !». o o t^ I « o t o O >i ■« *> *» rt ,^ , • ■ ^ ■ aj DQ S »>►.§£ a 1>> P .2 l»» o .2 Ota ^ oQ a ° e "^ a = o P « bo P3 « Q, a u g p P-. p p p tri h 9 9 p.p.ai <-» 1-9 Sfa a a £"0 PS PS p P e .a 5i 8 tH 111 ■a,^ • ft -43 u 'p n * "3 rf2 CJ ^ •So 3 -a 9 1 1 ^- a « p d »H .£3 d m e3 0} V 9 ^ ^ *« 1 (^ e3 •s n3 p 5 a •< yiJH O* s ^ m Fl P ^I^PENDIX II. Containing a List op the Judges and Officers of the Cihcuit and dlstbict couets of the united states in th^ second ClECUITS. The Times and Places op Holding each op the said Coubts. The Rules op the Supbeme Coubt and Rules op, Practice fob the Circuit and Disteict Courts op the United States in Equity AND Admibaltt Cases. Obdee in Repeesnce to Appeals pbom Coubt op Claims and Geneeal Oedebs in Bankruptcy. Rules op the .Circuit and District Courts foe the Noetheen Disteict op New York. Rules op the Cieouit Court foe the Southben District op Ne^ YOEK. Rules of the Ciecuit Coubt fob the Eastben District op New Yoek. Rules op the Ciecuit and Disteict Oouets foe the Disteict op Connecticut. Rules of the Ciecuit and Distbict Couets fob the District op Veemont. OFFICERS AND TERMS OF COURTS IN THE SECOND CIRCUIT. Circuit Court for the Northern District of New York : Samuel Nelson, Justice , Cooperstown, N. Y. AuGUSTTTs A. BoTCE, Clerk Utica, N. Y. Albany Third Tuesday of January (adjourned term.) jjtica Third Tuesday of March (adjourned term.) Canandaigua Third Tuesday of June (stated term.) Albany... Second Tuesday of October (stated term.) The adjimrrvei terms are for civil business only. 172 Appendix II. District Court for the Northern District of New York: Nathan K. Hall, Judge Buffalo, N. Y. Wm. Dorsheimer, District Attorney. ^Buffalo, N. Y. Isaac F. Quinsy, Marshal Rochester, N. Y Millard P. Fillmore, Clerk. Buffalo, N. Y. Albany Third Tuesday of January, Utipa Third Tuesday of March. Rochester ^ Second Tuesday of May. Buffalo Third Tuesday of August. > Auburn , Third Tuesday of November. Circuit Court for the Southern District of New York : Samuel Nelson, Justice Cooperstown, N. Y. Kenneth G. White, Clerk New York city. t Last Mondsiy of February. New York city , . ^ First Monday of j5pril. ( Third Monday of October. District Court for the Southern District of New York : Samuel Blatchpord, Judge. New York city. George "P. Belts, Clerk New York city. ' Francis C. Barlow, Marshal New York city. Edwards Pierrepont, District Attorney. . . New York city. - New York city. First Tuesday of each month. * Circuit Court for the Eastern District of New York : . Samuel Nelson, Justice Cooperstown, N. Y. Charles W. Newton, Clerk Brooklyn, N. Y. Brooklyn First Wednesday of each month. District, Court for the. Eastern District of New York : Charles L. Benedict, Judge Brooklyn, N. Y. Samuel T. Jones, Clerk. Brooklyn, N. Y. Benjamin P. Tract, District Attorney Brooklyn, N. Y. Francis L. Dallon, Marshal. Brooklyn, N. Y. Brooklyn , First Wednesda,y of each month. List of ufficehs. 173 Circuit Court for the District of Vonnecticut : Samuel Nelson, Justice Cooperstown, N. Y. LoREN P. Waldo, Clerk Hartford, Conn. New Haven Fourth Tuesday of April. Hartford Fourth Tuesday of September. District Court for the District of Connecticut : William D. Shipman, Judge Hartford, Conn. HiEAM WiLLEY, District Attorney New London, Conn. Petee R. Caell, Marshal New Haven, Conn. LoREN P. Waldo, Clerk Hartford, Conn. New Haven Fourth Tuesday of February.' Hartford Fourth Tuesday of May. New Haven Fourth Tuesday of August. Hartford.- Fourth Tuesday of November. Circuit Court for the District of Verrrumt : Samuel Nelson, Justice Cooperstown, N. Y. B. B. Smallet, Clerk Burlington, Vt. Burlington Fourth Tuesday of February. Windsor Fourth Tuesday of July. Rutland , , The Third of October. District Court for the District of .Vermont : David A. Smalley, Judge. Burlington, Vt. B. B. Smalley, Clerk Burlington, Vt. Benjamin F. Fipield, District Attorney. . . . Montpelier, Vt. H. H. Heney, Marshal Chester, Vt. N. B. Flanigan, Deputy Marshal Burlington, Vt. E. A. Smalley, Deputy Marshal Burlington, Vt. Burlington Fourth Tuesday of February. Windsor Monday after Fourth Tuesday of July. Rutland The Sixth of October. In case the days set forth for holding the terms at Rutland occur on a Sunday, the usual rule applies, that is, by Act April 29, 1802, it is to be the next day thereafter. 174 AppBNaix II. COMMISSIONERS Of the Ciecuit Coijet of the United States xs and for THE NOETHEIOT DISTRICT OF NeW YoRK. NAME. Residence. When appointed. Hilton, E.J Dickey, John , Boyce, Augustus A Myers, C. G . Lansing, Robert Ainsworth, Laban H. • . . Beach, Wm. A Bowen, Dennis Hall, Charles S Holbrook, Edwin M Woods, James L Murray, John T Storrs, Wm. C Beach, Miles HoweU, Thomas M Kuger, Wm. C Nichols, Asher P Averill, James Sherman, George H Gorham, Geo Tappan, Charles Clark, James L Ketchum, Leander S Frothingham, W Dusinberre, Geo. B Van Hoevenburgh,, T. S. Beck with, Geo. M. Lamport, John T . . i . . . . Soper, H. U Buck, John L. Corey, John A Perry, Albertus Hees, Abraham Dodd,HenryS Payne, A. T Parker, jr. Amasa J Marshall, O.H Sylvester, N. B RejTiolds, Charles W. . . . Arbuckle, Daniel T Piper, Charles H Putnam, James Albany Watertown TJtica Ogdensburgh . . . . 'Watertown Watertown Troy Buffalo Binghamton Ogdensburgh Elmira. Lockport Rochester Troy Canandaigua . . . . Syracuse Buffalo Champlain Saratoga Springs. Buffalo Potsdam Rochester Clyde :... Albany Geneva Albany Plattsburgh Troy Batavia... Lockport Saratoga Springs . Oswego Canajoharie Argyle Corning Albany Buffalo Troy Albany Delhi , Niagara Falls..., . Buffalo November, 1845 June, July, June, July, July, July, October, 1849 1849 1850 1850 1851 1853 1854 December, 1856 Juiy> June, July, July, July, July, July, ' July, October, June, October, October, July, 1857 1858 1858 1858 1858 1858 1858 1858 1860 1860 1860 1861 1861 November, 1861 June, July, June, October, October, 1862 1862 1863 1863 1863 November, 1863 October, 1864 October, October, October, October, October, January, July, October, March, March, June, 1867 1864 1864 1864 1865 1866 1866 1866 1867 1867 1867 BisT OF Commissioners. 176 NAME. Besidenoe. When appointed. Miller, Josiah T , Seneca Falls October, 1867 Mason, William N Norwich ■..•■•.■>.■■■. October, 1867 Fitzgerald, H. D Buffalo .-,.•,. October, 1867 Skinner, 2d, John B Attica' ................ October. 1867 Clark, Lucius P Morrisville ........•>.. October, 1867 Livingston, Robert W Noxon, jr. B. Davis Elizabethtown ......... October, 1867 SvracusG ............. October 1867 Hasbrouck, jr. Louis Os^densbiirorh .......... October, 1867 Adams, Charles S October, 1867 Parker, Charles E October, 1867 Barnes, Augustus F Bath October, 1867 Weed, Smith M Platt'sburgh November, 1867 Brennan, W. D Malone February, 1868 February, 1868 March, 1868 Senedict, Saiinuel T • Schenectady. Filhnore, Millard P Buffalo • March 1868 Grettv. Alfred B.'. March, 1868 Couch, John N Cortland. October 1868 Circuit Court Commissioners, Southern District of New York: Kenneth G. White New York city. Richard B. Stilwell New York city. George F. Betts New York city. John A. Osborne New York city. James B. Metcalf , New York city. j; Buchanan Henry New York city. Owen New York city. Joseph Gutman, jr J New York city. John A. Shields New York city. Circuit Court Masters and Examiners, Southern District of New York: Kenneth G. White New York city. Richard E. Stilwell New York city. George F. Betts New York city. John A. Osborne New York city. Joseph Gutman, jr New York city. John A. Shields New York city. Circuit Court Commissioners, Eastern District of New York : Charles W. Nevrton Brooklyn, N. Y. Samuel T. Jones • Brooklyn, N. Y. Circuit Cou/rt Masters and Examiners, Eastern District of New York : Charles W. Newton Brooklyn, N. Y. Samuel T. Jones Brooklyn, N. J. ' 1*JQ Appendix IL RULES " Of the Supreme Court of the United States. 1, CLEEK. The clerk of this court shall reside and keep the office at the seat of the National Government, and he shall not practice either as an attorney or counsellor in this court or any other court while he shall continue to be clerk of this court. The clerk shall not permit any original record or paper to be taken from the court room, or from the office, without an order from the .court. 2. ATTORNEYS. It shall be requisite to the admission of attorneys and counselors to practice in this court, that they shall have been such for thrde years past in the Supreme Courts of the States to which they respectively belong, and that their private and professional character shall appear to be fair. They shall respectively take the following oath or affirmation, viz : I, , do solemnly swear (or affirm, as the case may be); that I will demean myself, as an attorney and counsel'or of this court, uprightly, and according to law; and that I will support the Con- stitution of the United States. 3. PRACTICE. This court consider the practice of, the courts of King's Bench, and of Chancery, in England, as affording outlines for the practice of this court j and they will, from time to time, make such altera- tions therein as circumstances may render necessary . 4. BILL OP EXCEPTIONS. Hereafter the Judges of the Circuit and District Courts shall not allow any bill of exceptions, which shall contain the charge of the Supreme Court R ules. ^ 7 7 court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts ; and such matters of law, and those only, shall be inserted in the bill of exceptions, and allowed by the court. 5. PROCESS. All process of this court shall be in the name of the President , of the United States. When process at common law, or in ^equity, shall issue against a State, the same shall be served on the governor, or chief executive magistrate, and attorney .general, of such State. Process of subpoena, issuing out of this cou'rt, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process ; and if the defendant, on such service of the subpoena, shall not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte. MOTIONS. All motions hereafter made to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 7. LAW LIBRAET. . 1. During the session of the court, any gentleman of the bar having a cause on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at any one time three)' from the library, he being thereby responsible for the due return of the same within a reasonable time, or when required by the clerk. And it shall be the duty of the clerk to >- keep, in, a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be responsible for, and forfeit and pay twice the value thereof; as also one dollar per day for each day's detention beyond the limited time. 12 178 Appendix II. CONFERENCE R missal of the suit ; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. TESTIMONY — HOW TAKEN. 67. After the cause is at issue, commission to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's office, ten days' notice thereof be- ing given to the adverse party to file cross-interrogatories before the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases the commissioner or commissioners shall be named by the court, or by a judge thereof. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the part,ies or their agents, without filing any interrogatories. Decembee Teem, 1854. Ordered, That the sixty-seventh rule governijig equity practice be so amended as to allow the presiding judge of any court exereis>- ^Equitt Rules. 209 img jurisdiction, either in term tiiaie or vacation, to vest in the clerk, of said court general power to name commissioners to take testimony, in like manner that the court or judge thereof can now do bj the said sixty-sevenlii rule. ' Decembee Tekm, 1861. , Ordered, That the last paragraph ia the sixty-seventh , rule in equity be repealed, and the rule be amended as follows: Either, party may give aotiee to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examin- ers of the court, or before an examiner to be specially appointed by the court, the eiaminer to be furnished with a copy of the bill and answer, if any ; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-exattiinaitiori, and re-examination, and- which shall be conducted as near as may be in the mode now used in common law courts. The depositions taken upon such oral examination shall be taken down in writing by the examiner in the form of narrative, unless he determines the 'examination shall be by question and answer in special instances ; and, when pompleted, shall be read over to the witness and ^igned by him in the presence of the parties or counsel, or such of them as may attend; provided, if the witness shall refuse to sign ' the said deposition, then the examiner shall sign the same; and the examiner may, upon all ex- aminations, state any speeia^ matters to the eourt as he shall think fit; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions ; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelavant depositions, or parts of them, as may be just. The compulsory attendance of witnesses, in case of refusal to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examina- tion before an examiner of said court on written interrogatories. • Notice shall be given, by the respective counsel or solicitors, to the opposite counsel or solicitors or parties, of the time and place 14 210 Appendix IL of the examination, for sticli reasonable time as tlie examiner may ' fix by order in each cause. When the examination of witnesses before the examiner is con- cluded, the original deposition, authenticated by, the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in the thirtieth section of act of Congress September 24, 1789. Testimony may be taken on commission in the usual way by writ> ten interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation^ for special reasons satisfae> tory to the coart or judge. 68. Testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of Congress. But in such case, if no notice is given to the adverse party of the lime and p3ace of taking the deposition, he shall, upon motion and afiSdavit of the fact, be entitled to a cross-examination of the witness either under a com- mission or by a new deposition taken under the aetff of Congress, if a court or a judge thereof shall, under all the circumstances^ deem it reasonable. 69. Three months, and no more, shall be allowed for ,the taking of testimony af^er the cause is at issue, unless the court or a judge thereof' shall, upon special cause shown by either party, enlarge the time ; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions, Containing the testimony, into the clerk's office, publication thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the cir- cumstances. But, by consent of the parties, publication of the testimony may at any time pass in the clerk's office, such consent being in writing, and a oopy thereof entered in the order books, of indorsed upon the deposition or testimony. TESTIMONY DE BENS ESSE. 70. After any bill filed, and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's, witnesses are I^uiTT Rules. 211 aged or infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shaH, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commissioners, as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse upon giving due notice to the adverse party of the time and place of taking his testimony. FORM OF THE LAST INTEEROGATORT. '71. The last interrogatory in the written inteirrogatories to take testi- mony now eomrmonly in use shall in the future 'be altered, and stated in substance, thus: "Do you know, or can you set forth, any other iuatter or thing which may be a benefit or advantage to the parties at issue in this cause, or ej:ther 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." CROSS-BILI/. 72. Where a defendant in equity files a cross-bill fot discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto, before the original plaintiff shall be compellable to answer the cross-bill. The answer of the Qriginal plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used. REFERENCE TO AND PROCEEDINGS BEFORE MASTERS. 73. Svery decree for an account of the personal estate of a testator or intestate shall contain a direction to the master, to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate, are outstanding or undisposed of, unless the court s'hall otherwise direct. 74. Whenever any reference of any matter is made to a master to ;amine and report thereon, the party at whose instance, or for 212 Appendix II. whose benefit, the reference is made, shall cause the same to be pre- sented to the master for a hearing on or. before the next rule day succeeding the time when the reference was made ; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. , rs. Upon every such reference it shall be the duty of the master, as soon as he reasonably can after the same is brought before-him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties or their solicitors ; and if either party shall fail to appear at the time and place appointed, the mas- ter shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and| proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment ; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings, and to make his report, and. to certify to the court or judge the reasons for any delay. ' 76. In the reports made by the master to the court no part of any state of facts, charge, affidavit, deposition, examination, or answer brought in or used before them shall be stated or recited. "But such state of facts, charge affidavit, deposition, exaniination, or answer shall be identified, specified, and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination, or answer were' so brought in or used. , 11. The master shall regulate all the proceedings in every hearing before him, upon every such reference ; and he shall have full authority to examine the parties in the cause upon oath, touching all 'matters contained in the reference ; and also to require the pro- duction of all books, papers, wri.tings, vouchers, and other dbcu- ments applicable thereto ; and also to examine on oath, viv4 voce, all witnesses produced by the parties before him, and to order the Equity Rules. 213 examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office,, or by deposition, according to the acts of Congress, or otherwise, as hereinafter pro- vided ; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other actsi and direct all other inquiries and proceedings' in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. 78. Witnesses who live within the district may, upon due notice to the opppsite party, be summoned to appear before the commissioner . appointed to take testimony, or before a master or examiner ap- pointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court ; and if any witness shall refuse to appear, or to give evi- dence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give' testimony in the court. But noth- ing herein contained shall prevent the examination of witnesses vivd. voce when produced in open court, if the court shall in its dis- cretion deem it advisable. 79. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties. who shall not be satisfied with the accounts so brought in shall he- at liberty to examine the accounting party viv4 voce, or ' upon interrogatories in the master's office, or by deposition, as the master shall direct. i 80. All affidavits, depositions, and documents which have been pre- viously made, read, or used in the court, upon any proceeding in any cause or matter, may be used bpfore the master. 214 Appenvix II. 81. The master shall he at liberty to examine any creditor or other person coming in to claim before him, either upon written interroga- tories or vivi voce, or in both modes, as the nature of the'case may appear to him to require. The evidence upon such examination shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. 88. The Circuit Courts may appoint standing masters in Chancery in their respective districts, both the judges concurring in the appoint- ment ; and they may also appoint a master pro hac vice in any par- ticular case. The compensation to be allowed to every master in Chancery for his services in any particular. case shall be fixed by the Circuit Court in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The mas- ter shall not retain his report as security for his compensation; but, when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. EXCEPTIONS TO REPORT OP' MASTER. 83. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file exceptions thereto ; and if no exceptions are within that period filed by either party, the report shall stand confirmed on the next ri^le day after the month is expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in session ; or, if not, then at the next sitting of the court which shall be held thereafter by adjournment or otherwise. 84. And in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other Equitf Bulbs. 215 party, and for every exception allowed shall be entitled to costs — the costs to be fixed in each case by the court, by a standing rule of the Circuit Court. DEGREES. 85. Clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or a judge thereof^ upon petition, without the form or expense of a rehearing. 86. 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 iii the decree or order ; but the decree and order shall begin, in sub- stance, as follows : " This cause came on to be heard (or to be further heard, as 4he case, may be) at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged, «nd decreed as follows, viz : [Here insert the decree or order.] GUARDIANS AND PROCHEIN AMIS. 87. Guardians'ad litem to defend a suit may be appointed by the cour|, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami ; subject, however, to such orders as the court may direct for the protection of infants and « practice, pro- ceedings, and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, in th«ir discretion, and from time to time alter and amend the same, 90. In all cases where the rules prescribed by this court or by the Circuit Court do' not applyjthe practice of the. Circuit Court shalj be regulated by the present practice of the High Court of Chancery in England, so far as the same' may reasonably be applied consist- ently with;the locar citcnmsitances and local convenience of the dis-, trict where the court is' held, not as positive rules, but as furnishing just analogies to regulate the practice. ' , ,91. Whenever, under these rules, an oath is or may be required to be ,ta]ien,'the party, may, !if conscientiously scrupulous of taking an oath, in lieu thereof, make soleinii affirmation to ;the truth of the facts, stated by him. ' ' ' ■, ' 9S. ■*,- These rules shall take eflFecf aiid be, of force in ^11 the Circuit Courts of the United States from and -after the first day of August next; but they may be previously adopted by any Circuit Court in its discretion ; and when and as soon as 'these rules shall so take effect and be of force,' the 'rules of 'practice forthe Circuit- Courtb in equity suit's promulgated arid prescribed by this court' in March, 1822, shall henceforth cease arid be ;of no' further' force or effect. And the clerk of .this court is directed to have these rules- printed, and to transmit a printed copy "thereof, duly certified, to the clerks of the several courts of the 'United States, arid to each of the judges thereof. ' ■ ' , . , • ■ . . ■ ; , , ,^ . Decembee Teem, 1850. 93. OrtZereei, That the fortieth rule ;heretpfpre, addpted .and , promul- gated by this court as one of the rules_of practice in suits in. equity in the Circuit Courts be, and. the same is hereby.: repealed, a^d ' annulled. And it shall not hefeaifter be necessary to interrogate.a AmiiRALTT Rules. 217 ; defendant specially, and particularly upon any statement in the bill, unless the complainant desires to do so, to obtain a discovery. December Term, 1863. 94. Ordered, That in suits in equity for the foreclosure of mortgages in the Circuit Courts of the United States, or, in any court of the Territories hp^ving jurisdiction of the same, adecree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the 8th rule of this court regulating the equity practice, where the decree is solely for the payment of money. RULES OF PRACTICE For the Courts of thb^ United States, IN ADMIRALTY AND MARITIME JURISDICTION, ON THE IN- STANCE SIDE OF THE COURT, IN PURSUANCE OF THE ACT OF THE TWENTY-SECOND OF AUGUST, 1844, CHAP. iSs. December Term, 1844. 1. No mesne process shall issue from the district courts in any civil cause of admiralty and maritime jurisdiction until the libel, or libel of information, shall be filed in the clerk's office from which such process is to issue. All process shall be served by the marshal, or by his deputy, or, where he or they are interested, by some discreet . and disinterested person appointed by the court. a. . ' , ' In suits in personam the mesn^ process may be by a simple war- rant of arrest of the person of the defendant in the nature of a capias,- or by a warrant of arrest of the person of the defendant, with a clause therein that if tie cannot be found, to attach his goods -and chattels to the amount sued for; or if slioh property cannot be found,- to attach his credits and effe(;ts to the amotint sued for in the - tands of the garnishees named therein ; or by a simple monition, in 218 Appendix IL the nature of a summons to appear and answer to the suit, as the libellant shall, in his libel or information, pray for or elect. 3. In all suits in personam where a simple warrant of arrest issues and is executed the marshal may take bail, with sufficient sureties, from the party arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, injterlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in atiyvappellate court. A^d upon such bond or stipulation summary process of execution may and shall be issued against the principal and sureties by the court to which such process is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. 4. In all suits in personam -frhere goods and chattels, or credits and effects, are attached tinder such warrant authorizing the same, the attachment ma,y be dissolved by order of the court to which the eame warrant is returnable upon the defendant, whose property is BO attached, giving a bond or stipulation, with sufficient sureties, to abide by all orders, interlocutory or final, of the court, and ,pay the amount awarded by the final decree rendered in/the court to which the process is returnable, or in any apjiellate court; and upon such bond or stipulation summary process of execution shall and may be issued against the principal and sureties by the court to which such Warrant is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. 6. Bonds, or stipulations in admiralty suits, may be given and taken in open court, or at chambers, or before any commissioner of the court who is authorized by the court to take affidavits or bail and depositions in cases pending before the court. e. In all suits in personam where bail is taken the court may, upon motion, for due cause shown, reduce the amount of the sum con- tained in the bond or stipulation therefor ; and in all cases where a bond or stipulation is taken as bail, or upon dissolving an attach- , Admiraltt Rules. 219 ment of property as aforesaid, if either of the sureties shall become insolvent pending the suit, new sureties may be required by the order of the court to be given, upon motion and due proof thereof. 7. In suits in personam no warrant of arrest, either of the person or property of the defendant, shall issue for a sum exceeding five hundred dollars, unless by the special order of the court, upon aflS- davit or other proper proof, showing the propriety thereof. 8. In all suits in rem against a ship, her tackle, Sails, apparel, fur- niture, boats, or other appurtenances, if such tackle, sails, apparel, furniture,^ boats, or other appurtenances are in the possession or custody of any third person, the court may, after a due monition to such third person, and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the custody of the marshal or other proper officer, if, upon the hearing, the same is required by law and justice. 9. In all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods, or other thing to be arrested ; and the marshal shall thereupon arrest and take the ship, goods, or other thing into his possession for safe custody, and shall cause pub- lic notice thereof, and of the time assigned for the return of such process and the hearing of the cause, to be given in such newspaper within the district as the district court shall order ; and if there is no newspaper published therein, then in such other public places in the district as' the court shall direct. ' 10. In all oases where any goods or oth^r things are arrested, if the same are perishable, or are liable to deterioration, decay, or injury by being detained in custody pending the suit, the court may, upon the application of either party, in its discretion, order the same or so much thereof to l&e sold as shall be perishable or liable to depre- ciation, decay, or injury ; and the proceeds, or so much therepf as shall be a full security to satisfy in decree, to be brought into court 220 Appendix 11. ■to abide the event of the suit ; or the court may, upon the applica- tion of the claimant, order a delivery thereof to him, upon a due appraisement to be had under its direction, either upon' the claim- ant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, in such sum as the court ^hall direct, to abide by and pay the money awarded by the final decree rendered by the court or Ifhe appellate court, if any appeal intervenes, as the one or the other course shall be ordered by the court. ' 11. In like manner, where any ship shall be, arrested, the same may, upon the application of the claimant, be delivered to him, upon a due appraisement to be had, under the direction of the court,, upon the claimant's depositing in .court so much money as the court shall order,' or upon his giving a stipulation, with sureties as aforesaid ; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party, upon due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court, or otherwise disposed of, as it may deem most for the benefit of all concerned. 12. In, all suits by material men for supplies or repairs, or other neces- saries, for a foreign ship, or for a ship in a foreign port, the libel- lant may proceed against the ship and freight in rem, or against the master or the owner alone in personam. And the like proceeding in rem shall apply to cases of domestic ships, where; by the local ' law, a lien is given to material men for supplies, repairs, or other necessaries.* 13. In all suits for mariners' wages the libellant may proceed, against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone in personam. ' ■ 14. In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, or against the owner alone, or the master alone, ,in pisrsonam. ' , •Vide post, pag} 92, Rule 12, eubstitntod for the above. ADMIBALTr BVLES. 221 15. In all suits for damage by collision the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone, ip personam. 16. I In all suits for an assault or beating o6 the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only. 17. In all suits against the ship or freight founded upon a mere mari- time hypothecation, either express or implied, of the master, for moneys taken up in a foreign port ,for supplies or repairs, or other necessaries for the voyage, without any claim of marine interest, the libellant may proceed either in rem or against the master or the owner aloue in personam. . . - 18. In all suits on bottomry bonds, properly so called, the suit shall be in rem only against the property hypothecated, or the proceeds of the property, in whosesoever hands the same may be found, unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has subtracted the' pr6perty, or unless the owner has, by h^s own misconduct or wrong, lost or subtracted the property, in which latter cases the suit may be in personam against the wrong-doer. 19. In all suits for salvage the suit may be in rem against the property saved, or the proceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service has been performed. 80. In all petitory and possessory suits between part owners or adverse proprietors, or by the owners of a ship, or the majority thereof, against the master of a ship for the ascertainment of the title and .delivery of the possession, or for the possession only, or by one or more part owners against the others to obtain security for the return of the ship from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession 222 Appendix IL of the ship for any voyage, upon giving security for the safe return thereof, the process shall be by an arrest of the ship, and by a monition to the adverse party or parties to appear and make answer to the suit. 21. In all cases of a final decree for -the payment of money the libel- lant shall have a writ of execution, in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the gooda and chattels, lands and tenements, or other real estate of the defendant or stipulators. S2. All informations and libels of information upon seizures for any breach 'of the revenue^ or navigation, or other laws of the United States, shall state the place of seizure, whether it be on land, ot on the high seas, or on navigable waters within the admiralty and mari- time jurisdiction of the United States, and the district within which the property is brought;^ and where it then is. The information or libel of information shall also propound in distinct articles the mat- ters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may req[uire, and shall con- clude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause at the return day of the process why the forfeiture should not be decreed. 23. All libels in instance causes, civil or maritime, shall state the nature of the cause ; as, for example, that it is a cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be ; and if the libel be in rem, that the property is within the district ; and if in personam, the names and occupations and places of residence of- the parties. The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article ; and it shall conclude with a prayer of due process to enforce his rights in rem, or in personam (as the case may require), and for such relief Admibaltt Rules. 223 and redress as the court is competent to give in the premises. And the libellant may further require the defendant to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof. 24. In all informations and libels, in causes of admiralty and mari- time jurisdiction, amendments, in matters of "forms ™siy l^e made at any time, on motion, to the court as of course. And new counts may be filed, and amendments, in matters of substance, may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose. And where any defect of form is set-down by the defendant upon special exceptions and is allowed, the court may, in granting leave to amend, impose terms upon the libellant. 25. In all cases of libels in personam the court may, in its discretion, upon the appearance of the defendant, where- no bail has been taken and no attachment of property has been made to answer the exigency of the suit, require the defendant tO give a stipulation, with sureties in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adju- dication thereof, or by any interlocutory order, in the progress,of the suit. 26. In suits in rem the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whosfe behalf the claim is made, is the true and bona fide owner, and that no other person is the owner thereof. And where the claim is put in by an agent or consignee, he shall also make oath that he is duly authorized thereto by the Owner j or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner. And upon putting in such claim, the, claimant shall file a stipulation, with sureties in such sum as the court shall direct, for the payment of all costs and expenses which shall be awarded against him by the final decree of the court, or, upon an appeal, by the appellate court. 2T. In all libels in causes of civil and maritime jurisdiction, whether in rem or in personam, the answer of the defendant to the allegationa 224 AppiuDix II. in the libel shall be on oath or solemn ' affirmation ; and the answer shall be full and explicit and distinct to each ' separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like' manner each" interrogatory: propounded at^the close of the libel.* 28. , - . • The libellant may except to the sufficiency, or fullness, or distinct- ness, 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 defend,- ant forthwith, within such time as the court shall direct, to answer, the same, and may further order the defendant to pay such costs aa the court shall adjudge reasonable, f , If the defendant shall omit or refuse to make due answer to the libel upon the re^turn day of the process, or other day assigned by , the court, the court shall pronounce him to be in contumacy and default ; and thereupon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceeed to hear the cause ex parte and adjudge therein as to law and justice shall appertain. But the court niay, in its discretion, set aside the default, and, upon . the application of the defendant, admit him to make answer to the libel at any time before the final hearing and decree, upon his pay- ment of all the costs of the suit up to the time of granting leave therefor. 30. In all cases where the defendant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court n^ay, by attachment, compel the de^ fendant to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against the defendant to the full pui;port and effect of the article to which it purports to answer, and as if no answer had been put in thereto. 31. The defendant may object, by his answer, to answer any allegation or interrogatory contained in the libel, which will expose him, to any *Vide post, 19th Biile, p^^ge S8. In Avmiraltt. 22 5 proseeution_ or panishment for a crime, or for any penalty or any forfeiture of' his property for any penal- offence. 32. The defendant fehall have a right to require the personal answer of the libellant upon oath or solemn affirmation to any interroga- tories which he may, at the close of Lis answer, propound to the libellant touelhing any matters charged in the libel, or touching any matter of defence set up in the answer, subject to the like exception as to matters which shall expose the libellant to any prosecution, or punishment, or forfeiture, as is-provided in the 31st rule. . In default of due answer by the libellant to such interrogatories, the court may adjudge the libellant to be in default and dismiss the libel, or may compel his answer in the premises by attachment, or take the sub- ject matter of the interrogitory pro confesso in favor of the defend- ant, as the court," in its discretion, shall deem most fit to promote public justice. 33. Where either the libellant or the defendant is out of the country, ' or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discretion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant when pd as soon as it may be prae- . tieable. 34. If any third person shall intervene in any cause of admiralty and maritime jurisdiction in rem for his own interest, and he is entitled, accordiilg to the course of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable alle- gations, to which, if admitted by the court, the other party or par- ties in the suit may be required, by order of the court, to make due answer; and such further proceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervener shall be required, upon filing his allega- tions, to give a stipulation, with suretiesj to abide by the final decree rendered in the cause, and to pay all such costs and expenses and 4aniages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. 15 226 Appendix II. 3h. Stipulations in admiralty and maritime suits may be taken in open court, or by the proper judge at chambers, or, under his order, by any commissioner of the court who is a standiBg commissioner of the court, and is now by law authorized to take affidavits of bail, and also depositions in civil causes pending in the courts of the United States. 36. Exceptions may be taken to any libel, allegation, or ansvier, for surplusage, irrelevancy, iippertinence, or scandal ; and if, upon reference to a master,* the exception shall be reported- to be so cbjefctionable, and allowed by the court, the matter shall be, ex- punged, at the cost and expense of the party in whose libel or answer the same is found> ar. In cases of foreign attachment, the garnishee shall be required to answer on oath or solemn affirmation as to the debts, credits, or effects of the defendant in his. hands, and to such interrogatories toudbing the same as may be propounded by the libellant ; and if he shall refuse or neglect so to do, the court mi^y award compulsory process in personam Against him. If he admits any debts, credits, or effects^ the same shall be held in hia hands, liable to answer the exigency of the suit. '38. In cases of mariners' wages, ar bottomry, or salvage, &t other proceedings in rem, where freight or other proceeds of property are attached to or are bound by the suit, which are in the hands or pos- session of any person, the court may, upon due application, by peti- tion of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the Suit ; and if no sufficient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit ; and upon failure of the party to comply with the order, may award an attach- ment, or other compulsive pu)eess, to compel obedience thereto. 39. If, in any admii^Ity suit, the libellant shall not appear and prose- ; cute his suit, according to the coarse and orders of the court, he shall In^dmi^altt. 227 be deemed in default and contumacy, and the court may, upon the application of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs. 40. The court may, in its discretion, upon the motion of the defend- ant and the payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing 'thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premi- ses as the court may direct. 41. All sales of property under any decree in admiralty shall be made by the marshal or his deputy, or other proper officer assigned by the court, where the marshal is a party in interest, in pursuance of the orders of the court ; and the proceeds thereof, when sold; shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law. 42. , All moneys paid into the registry of the court shall be deposited in some bank designated by the court, and shall be so deposited in the name of the court, and shall not be drawn out except by a check or checks, signed by a judge of the court, and countersigned by the clerk, stating on whdse account and for whose use it is drawn, and in what suit and out of what fund in particular it is paid. The clerk shall keep a regular book, containing a memorandum and copy of all the checks so drawn and the date thereof. 43. Any person haying an interest in any proceeds in the registry of the court shall have a right, by petition and summary preceding, to intervene pro interesse suo for a delivery thereof to him ; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree therein according to law and justice. And if such petition or claim shall be deserted, or, upon a hearing, be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party. 228 Appendix IL 44. In cases where the court shall deem it expedient or necessary for the purposes of justice, the court may refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by the court to hear the parties and make report therein. And such commissioner or commissioners shall have and possess all the powers in the premises which are usually given to or exercised by masters in Chancery in references to them, including the power to administer oaths to and examine the parties and witnesses touching the premises. 4S. All appeals from the District to the Circuit Court must be made whil^ the court is sitting, or within such other period as shall be designated by the District Court by its general rules, or by an order specially made in the particular suit. 46. In all cases not provided for by the foregoing rules the District and Circuit Courts are to regulate the practice of the said courts, respectively, in such manner as they shall deem most expedient for the due administration of justice in suits in admiralty. 47. Th'ese rules shall be in force in all the Circuit and District Courts of the United States from and after the first day of September next. It is ordered by the court that the foregoing rules be, and they are adopted and promulgated as rules for the regulation and govern- ment of the practiofe of the Circuit Courts and District Courts of the United States in suits in admiralty on the instance side of the courts ; and that the reporter of the court do cause the same to be published in the next volume of his reports, and that he do cause such additional copies thereof to be published as he may deem expedient for the due information of the bar and bench in the respective districts and circuits. 1845, March 5. December Term, 1850. Ordered, That the following supplemental rules be added to the rules heretofore adopted by this court for regulating proceedings in admiralty : In a dmiraltt. 229 48. In all suits in personam where a simple warrai^t of arrest issues and is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the State where an arrest is made upon similat or arialogous process issuing from the State courts. And imprisonment for debt, on process issuing out of the Admiralty Court, is abolished in all cases where, by the laws of the State in which the court is held, imprisonment for debt has been, or shall be hereafter, abolished, upon similar or analogous process issuing from a State court. 49. The twenty-seventh rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclusive of costs, unless the District Court shall be of opinion that the proceedings prescribed by that rule are necessary for the purposes of justice in the case before the court. All rules and parts of rules heretofore adopted inconsistent with this order, are hereby repealed and annulled. It is further ordered that these rules be published in the next volume of the Keports of the Becisions of this court, and that the clerk cause them to be forthwith printed and transmitted to the several District Courts. 1851, Ja7iuary 9. Decembee Teem, 1851. 50. Ordered, That further proof taken in a Circuit Court upon an admiralty appeal shall be by deposition, taken before some commis- sioner appointed by a Circuit Court, pursuant to the acts of Congress in that behalf, or before some officer authorized to take depositions by the thirtieth section of the act of Congress of the 24th of Sep- tembBr, 1789, upon an oral examination and cross-examination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a cojnmission to issue to take such deposition upon written interrogatories and cross-inter- rogatories. When such deposition shall be taken by oral examina- tion, a notification from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall b'6 pending, 230 Appendix II. to the adverse party to be present at the taking of the same, and to put interrogatories, if he think fit, shall be served on the adverse party, or his attorney, allowing time for their attendance after being notified not less than twenty-four hours, and in addition thereto one day, Sundays exclusive, for every twenty miles travel : Provided, That the court in which such appeal may be pending^ or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required. 61. Ordered, That' when oral evidence shall be taken down by the clerk of the District Court, pursuant to the abovementioned section of the act of Congress, and shall be transmitted to the Circuit Court, the same may b.e used in evidence on the appeal, saving to each party the right to take the depositibns of the same witnesses, or either of them, if he should so elect. Decembee Teem, 1854. Ordered, That the following supplemental rules be ^dded to the rules heretofore adopted by this court for regulating proceedings in»' admiralty : 52. When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libellant, and no replication, general or special, shall be allowed. But within such time after the answer is filed as shall be fixed by the District Court, either by general rule or by special order, the libellant may amend his libel so as to con- fess and avoid, or explain, or add to the new matters set forth in the answer ; and within such time as may be fixed, in like manner, the defendant shall answer such amendments. 53. The clerks of the District Courts shall make up the records to be transmitted to the Circuit Courts on appeals,, so that the' same shall contain the following : ' 1. The style of the court. 2. The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place. 3. If bail was taken, or property was attached or arrested, the process of arrest or attachment and the service thereof, all bail and In Admiralty. 231 stipulations, and, if any sale has been made, the orders, warrants, and reports relating thereto. 4. The libel, with exhibits annexed thereto. 5. The pleadings of the defendant, with the exhibits annexed thereto. 6. The testimony on the part of the libellant, and any exhibits not annexed to the libel. 7. The testimony on the part of the defendant, and any exhibits not annexed to his pleadings. 8. Any order of the court to which exception was made. 9. Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not excepted to, only the fact that a reference was made, and so much of the report as shows what results were arrived at by the assessor, are to be stated. 10. The final decree. 11. The prayer for an appeal, and the action of the District Court thereon ; and no reasons of appeal shall be filed or inserted in the transcript. The following shall be omitted : 1. The continuances. 2. All motions, rules and orders no^ excepted to which are merely preparatory for trial. 3. The commissions to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some excep- ' tion to a deposition in the District Court was founded on some one or more of these ; in which case so much of either of them as may be involved in the exception shall be set out. In all other cases it shall be sufficient to give the name of the witness, and to copy the interrogatories and answers, and to state the name of the commis- sioner, and the place where and the date when the deposition was sworn to ; and ih copying all depositions taken on interrogatories, the answer shall be inserted immediately following the question. The clerk of the District Court shall page the copy of the recprd thus made up, and shall make an index thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the District Court in the cause named at the beginning/ of the copy made up pursuant to this rule ; and no other certificate of the record shall be needful or inserted. 232 Appendix II. Decembek Teem, 1868. 54. 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 libel shall 'give security in the usual amount and form to respond in damages as claimed in said cross libel, ^ unless the court, on cause ^hown shall otherwise direct, and all pro- ceedings upon the original libel shall be stayed until such security shall be given. Decembek Teem, 18^8, A&tEND£S EULE-^ee Ante. 12. Ordered, That the 12th rule of practice prescribed by thia court at December term, 1844, in causes of admiralty and maritime juris- diction, be and the same is hereby repealed, and the following rule of practice k substituted in its place : " In all suits by material men for supplies or repairs; or other necefesavies for a foreign ship, or for a ship in a foreign port, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the K£e proceeding in p&rsonaM, but not in rem, shall apply to cases^of d upon the other petitions may be stayed until an adjudication is made ypon the petition first heard ; and the court which makes the first adjudication of bankruptcy shall retain jurisdiction over all proceed- therein until the same shall be closed. In case two or more petitions for adjudication of bankruptcy shall be filed in different districts by different members of jthe same copartnership foe an adjudication of the bankruptcy of said copartnership, the court in which the petition is first filed having jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shall be closed; and if such petitions shall be filed in the same district, action shall be first had upon the one first filed. e IT. CONCERNING REDEMPTIONS OF PROPERTY AND COMPOUNDING CLAIMS. Whenever it may be deemed for the benefit of the estate of a bankrupt to redeem and discharge any mortgage, or other pledge or deposit, ov lien upon any property, real or personal, or to relieve said property from any conditional contract, and to tender perform* ance of the conditions thereof, or to compound any debts or other 240 ' Appendix II. claims or securities due dr belonging to the estate of the bankrupt^ the assignee, or the bankrupt, or any creditor who has proved his debt, may file his petition therefor in the office of the clerk of the District Court; and thereupon the court shall appoint a suitable time and place for the hearing thereof, notice of which shall be given in some newspaper, to be desigqated by the court, at least ten days before the hearing, so that all creditors and other persons interested may appear and show cause, if any they have, why an order should not be passed by the court upon the petition authorizing such act on the part of the assignee. 18. PEOCEEDINGS IN CASE OF COPARTNERSHIPS. In case one or more members of a copartnership 'refuse to join in a petition to have the firm declared bankrupt, the parties refusing shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the part- nership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against ; and he shall have the right to appear at the time fixed by the court for the hearing of the petition, and' to make proof, if he can, that the copartnership is not insole vent, or has not committed an act of bankruptcy, and to take all other defences which any debtor proceeded against is entitled to take by the provisions of the act ; and in case an adjudication of ba\ik- ruptey is made updn the petition, such copartner shall be required to furnish to the marshal, as messenger, a schedule of his deJDts and an inventory of his property in the skme manner as is required by the act in cases of debtors against whom adjudication of bankruptcy shall be made.- 19. DUTIES OF ASSIGNEES. The assignee shall, immediately on entering upon his duties, pre- pare a complete inventory of all the property of the bankrupt that comes into his possession ; and all sales of the same shall be by public auction, unless otherwise ordered by the court. Every assignee shall keep full, exact, and regular books of account of all receipts, payments, and expenditures of money by him, and shall make report to the court, within twenty days, after receiving tb* In Bankr upTcr. 2 4 1 deed of assignment, of the articles set off to the bankrupt by him, according to the provisions of the fourteenth section of the act, with the estimated value of each article, atid any creditor may take ex- ceptions to the determination of the assignee within twenty days after the filing of the report. 20. COMPOSITION WITH CREDITOES (ARBITEATION). Whenever an assignee shall make application to the court for ' authority to submit a controversy arising in the settlement of demands against the bankrupt's estate, or of debts due to it, the determination of arbitrators, or for authority to compound and set- tle such controversy by agreement with the other party, the subject matter of the controversy and the reasons why the assignee thinks it proper and most for the interest of the creditors that it should be settled by arbitration or otherwise, shall be set forth clearly and distinctly in the application ; and the court, upon examination of the same, may immediately proceed to take testimony and make an order thereon, or may direct the assignee to give notice of the appli- cation, either by publication or by mail, or both, to the creditors who have proved their claims to appear and show cause, on a day to be named in the order and notice, why the application should not be granted, and may make such order thereon as may be just and proper. ai. DISPOSAL OF PROPERTY BY ASSIGNEE. In making sales of personal property the assignee shall give at least ten days' notice of the time and place df the sale, and of the articles to be sold, by advertiaisment in one or more newspapers, to be designated by the court or by a register, and by posted handbills or otherwise, as he may think best for the interest of the estate, or as the court may order ; and he shall give like notice of the sale of any real estate at least twenty days before such sale. Upon his application to the couct, and for good cause s'hown, the assignee may be authoriaed to sell any specified portion of the bankrupt's estate at private sale. The court, by order in special cases, may dispense with newspaper and handbill advertisements. In making sale of the franchise of a corporation, it may be offered in fractional parts, or 16 , 242 Appendix 11. in certain numbers &f shares, corresponding to the nnmber of shares in the bankrupt corporation. And i,n making sale of the real estate of a bankrupt, the assignee shall, unless otherwise ordered by the Court, offer the same in lots or fyarfcels, if it exists in separate parcels, in such manner as may be for the interest of the creditors of the- estate. . 22, PERISHABLE PROPERTY. In all cases where good? or other airtides come into possession of the inessenger or assignee which are perishable, or liable to deteri- oration in value, the court may, upon application, in its discretion, order the same to be sold, and the propeeds. deposited in court. 23. SERVICE OF NOTICE. The notice provided by the 18th section of the act shall be served by the marshal or his deputy, and notices to the creditors of the time and place of meeting provided by the section shall be given through the mail by letter, signed by the clerk of the courts Every envelope containing a notice sent, by the clerk or messenger shall have printed on it a direction to the postmaster at the place t» which it is sent to return the same within ten days unless caEed for. 24. OPPOSITION TO DISCHARGE* A creditor opposing the application of a bankrupt for discharge shall enter his appearance in opposition thereto on the day when the creditors are required to show causCi and shall file his specification of the grounds of his opposition, in writing,, within te^ days there- after, unless the time shall be enlarged by order of the District Court in the casp, and the court shall thereupon make an order as to the entry of said case for trial on the docket of the District Court, and the time within which the same shall be heard and (lecided. 25. SECOND AND THIRD MEETING OF CREDITORS. Whenever any bankrupt shall apply for his discharge, within three months from the date of hia being adjudged a bankrupt, under tha provisions of the 29th section of the act, the court may direct that Zat Bankr vptot. 243 the second and third meetings of creditors of said bankrupt required by the 27th and 28th sections of said act shall be had on the day which may be fixed in the order of notice for the creditors to appear and show cause why a discharge should not be granted such bank- rupt ; and the notices of such meeting shall be sufficient if it be added to the notice to show cause, tjiat the second and thiyd meet- ings of said creditors shall be had before the regi'ster upon the same day that cause may be shown against- the discharge, or upon some previous days or day. 26. APPEALS. Appeals in equity from the District to the Circuit Court, and from the Circuit to the Supreme Court of 'the United States, shall be regulated by the rules governing appeals in equity in the courts of the United States. Any supposed creditor who takes an appeal to the Circuit Court from the decision of the District Court rejecting his claim, in whole or in part, according to the provisions of the 8th section of the act, shall give -notice of his intention to enter the appeal within ten days from the entry of the final decision of the District' Court upon his claim ; and he shall file his appeal in the clerk's office of the Circuit^Court within ten days thereafter, setting forth a statement in writing of his claim in the manner prescribed by said section ; and the assignee shall plead or answer thereto in like manner within ten days after the statement shall be filed. Every issue thereon shall be made up in tl\e court, and the cause placed upon the .docket thereof, and shall be heard and decided in the same manner .as. other actions at law. 27. IMPRISONED DEBTOE. If at the time of preferring his petition the debtor shall be impris- oned, the court, upon his appKcation, may order him to be produced • upon habeas corpijs by the jailor, or any officer in whose custody he may be, before the register, for the purpose of testifying in any mat- ter relating to his bankruptcy ; and if committed after the filing of his petition upon process in any civil action founded upon a claim provable in bankruptcy, the court may, upon like application, dis- charge him from such imprisonment. ^If the petitioner,' during the 244 Appendix IL pendency of the" proceedings in bankruptcy, be arrested or imprisoned upon process in any civil action, the District Court, upon his appli- cation, may issue a writ of habeas cor'pus to bring him before the court to ascertain whether such process has been issued for the col- lection of any claim provable in bankruptcy, and if so provable, he ghall be discharged ; if not, he shall be remanded to the custody in which he may, lawfully be. Before granting the order for discharge, the court shall cause notice to be served upon the creditor, or his attorney, so as to give him an opportunity of appearing and being heard before the granting of the order. 28. DEPOSIT AND PAYMENT OP MONEYS. The District Court in each district shall designate certain national banks, if' there are any within the judicial district, or if there be none, then some other safe depository, in which all moneys' received by assignees or paid into court in the course of any proceedings in . bankruptcy shall be deposited ; and every assignee and the clerk of said court .shall deposit all sums received by them, severally, on account of any bankrupt's estate, in one designated depository ; and every clerk and assignee shall make a report to the court of the funds received by him, and of deposits made by him, on the first Monday of every month. No moneys so deposited shall be' drawn from such depository unless upon a check, or warrant, signed by the clerk of the court or by an assignee, and countersigned by the judge of the court, or one of the registers designated for that purpose, stating the date, the sum, and the account for which it is drawn ; and an entry of the substance of such check or warrant, with the date thereof, the sum drawn for, and the account for which it is drawn, shall be forthwith made in a book kept for that purpose by the assignee or the clerk ; and all checks and drafts shall be entered in the order of time in which they are drawn, and shall be numbered in the case of each estate. A copy of this rule shall be furnished to the depository so designated, and also the name of any register authorized to countersign said checks. 29. PREPAYMENT OR SECURITY OP FEES. The fees of the register, marshal and clerk shall be paid or secured In Bankruptcy. 245 in all cases- before they shall be compelled to perfornj the duties required of them by the parties requiring such service ; and in the case of witnesses, their fees shall be tendered or paid at the time of the service of the summons or subpoena, and shall include their trav- eling expenses to and from the place at which they may be summoned to attend. The court may order the whole, or such portion of the fees and costs in each case to be paid out of the fund in court in such case as shall seem just. 30. AS TO FEES AND COSTS. To the clerk of the court.-^'EoT each notice required to be sent by mail when signed by the clerk, ten c^nt^ ; the postage to be prepaid by the party required to give such notice. ' To the clerk and register. — For every copy of any paper in pro- ceedings in bankruptcy, twenty-five cents for certifying the same, and in addition thereto, ten cents for each folio of 100 words. To the register. — For every order made where notice is required to be given, and for certifying copy^of the same tS the clerk, one dollar. For every certificate of question to be certified to the district judge, under the 4th and 6th sections of the act, one dollar. For every proof of debt, twenty-five cents ; and where testimony is taken, the fees prescribed by law may be added. In cases where the debtor has no means', and makes proof, to the satisfactiob of the court, that he is unable to pay the costs prescribed by the act and these orders, the judge in his discretion may direct that the- fees and costs therein shall not exceed the sum required by the act to be deposited with the clerk. \ 31. COSTS IN CONTESTED ADJUDICATIONS. In cases of involuntary bankruptcy, where the debtor resists an adjudication, and the court, after hearing, shall adjudge the debtor a bankrupt, the petitioning creditor shall recover, to be paid out of the fund, the same costs that are allowed by law to a party recover- ing in a suit in equity; and in case the petition shall be dismissed, the debtor may recover like costs froffl the petitioner. 246 Appendix ^. 32. AS TO rOKMS AND SCHEDVLES. ^ The sfeveral forms specified in the schedules annexed to these orders for the several purposes therein stated, shall be observed and . used with such alterations as may be necessary to suit the ^circum- Btances of ahy particular case. In all cases where, by the provfsions of the act, a special order is required to be made in any proceeding, or in any case instituted under the act in a District Court of the United States,, such order shall be framed by the court to suit the circumstances of the particular case ; and the forms hereby prescribed shall be followed, as nearly as may be, and so far as the same are applicable to the circumstances requiring such- special order. In proceedings in equity instituted for the purpose of carrying into effect the provisions of the act, or for enforcing the rights and* remedies given by it, the rules of equity practice established by the Supreme Court of the United States shall be followed as nearly as may be. In proceedings at law, instituted for the same purpose, the rules of the Circuit Court regulating the practice and procedure in cases, at law shall be followed as neayly as may be. , 33. OMISSIONS AND AMENDMENTS. Whenever a debtor shall omit to state in the schedules annexed to his petition any of the facts required to be stated concerning his debts or his property, he shall state, either in its appropriate place in the schedules or in a separate affidavit to be filed with the petition, the reason for the omission, with such particularity as will enable the court to determine whether to admit the schedules as sjifficient, or to require the debtor to make further efforts to complete the same according to the requirements of the law ; and in making any appli- cation for amendment to the schedules the debtor shall state under oath the substance of the matters proposed to be included in the amendment, and the reasons why the same had not been incorporated in his schedules as originally filed, or as previously amended. In like nianner, he may correct any statement made during the course of his examination. i Circuit EuLES. 24*^ CIECUIT COURT RULES FOR NORTHERN , DISTRICT OF NEW YORK. 1. At October Term, 1841. Attorneys and counsellors of the Supreme Court and solicitors and counsellors of the Court of Chancery of the State of New Tori, may, on motipn in open court, or on presentation of their licenses to the clerk in vacation, be admitted of course to the same degrees in this court ; and attorneys and solicitors of 'the said courts may also, in like manner, be admitted as counsellors of the said courts, and proctors may be admitted as advocates on the admiralty side of this court. 2. All persons who had been admitted and were entitled to practice as attorneys, counsellors, solicitors, proctors or advocates, in the District Court of the United States for the Northern District of New York, on the third day of March, eighteen hundred and thirty- seven, shall be entitled to practice in the like capacity in this court. 3. Grand and petit jurors, to serve at the sessions of the court re- quired by law to be held At Albany,/ shall be taken alternately from the counties of Albany and Hensselaer ; and those to serve at the session required to be held at Canandaigua shall be taken from the county of Ontario ; and they shall be drawn, summoned and returned in the manner prescribed by the rules of the District Court for the . Northern District of New York, for the drawing, summoning and returning of jurors to serve therein. ' 4. Obsolete, as act of March 24, 1860, abolished subdivisions of dis- trict for trial of issues, as provided for by this rule. 5. In cases not provided for by the rules of this court, the rules of the District Court for the Northern District of New York, so far as 248 Appendix II. the same are in their nature applicable, are to be considered as rules of this court. 6. All general rules of practice heretofore made, are abrogated. 7. At June Term, 1855. ' Ordered, That the clerk of this court be and is hereby vested with general power to name commissioners, in commissions to be issued to take' testimony, in like manner that the court or judge thereof, can now do by the 67th equity rule prescribed by the Supreni6 Court of the United States. 8. At June Term, 1858. It is hereby ordered that the rule formerly adopted by the District Court of this District, while having Circuit Court powers, and which afterwards became and was made a rule of this court under which "the first judges of the county courts and the clerks of the several counties in this district were made or appointed commissioners, and authorized to discharge certain duties conferred by acts of Congress upon commissioners appointed by the Circuit Courts of the United States, shall be and the same is hereby repealed, annulled and vacated, and that such officers and persons shall no longer be ez- efficio commissioners under the said acts of Congress by appointment of this court, or of the said District Comt, whilst exei'cising the powers and authority of a Circuit Court. 9. ^ At June Term, 1864. When a fine or penalty is paid into court, and the whole thereof shall belong to the United States, or one-half thereof shall belong to the Government, and the other half thereof to any other party, the clerk shall as soon thereafter as practicable, unless a stated term of the court shall then be in session, and then as soon as practicable after the end of such term, pay to the proper depository the amount thereof belonging to the United States; and any person claiming' any portion of such fine or penalty, as the discoverer or informer, or prosecutor of the offender, incurring such fine or penalty, shall, on or before the first day of the next stated term of the court, file CmcviT Rules. 249 with the clerk of the court his aflSdavit, and such other papers as he may think proper, showing his right to a moiety of such fine or penalty ; which affidavit and papers shall be presented to the court by the clerk on the second day of such term. 10. In cases under the act "to provide Internal Revenue," &c., the person so claiming shall file with such affidavit and papers, the writ- ten consent of the Collector of Internal Revenue for the district, in which such fine or penalty was incurred, that a moiety shall be paid to such claimant, or shall show by affidavit that a copy of such affi- davit and papers had been served on such Collector at least eight days before the commencement of such term. 11. At October Term, 1864. , The cases and points, and all other papers furnished to the court in calendar causes, other than causes for trial before a Jury, except the papers sent' up from the District Court on appeals in admiralty cases, shall b_e-printed on white writing paper, with a margin on the outer edge of the leaf not less than two inches wide. The printed page exclusive of any marginal note or reference, shall be seven inches long, and three and a half inches wide. The folios, number- ing from the commencement to the end of the papers, shall be printed on the outer margin of the printed page. But the court or either judge thereof, may, before the papers are printed, and at least ten days beforethe time for which the cause is noticed, or is to be noticed for hearing, by written order, dispense with the printing of papers as aforesaid, a copy of which order shall be served on the attorneys of the parties to the suit interested in such hearing, at least ten days before the day appointed for such hearing. 12. No cause shall be noticed for trial before the jury, or for hearing, upon pleadings and proofs, or upon a case or bill of exception?, at the adjourned term in January, in the city of Albany, without leave of the court therefor, granted at the previous stated term. But all causes may be noticed for trial or hearing at the adjourned Circuit, to be held on the third Tuesday in March, in the city of TJtica, the same as at the stated term. 250 Appendix II. 13. At March Term, 1868. In order to assimilate the practice of this court to the practice of the State courts in respect to the noticing of causes for trial, and to allow either party to give notice of, and bring on the trial of a cause : It is hereby ordered that the following be added to the general rule of this court, adopted in October Term, 1841 (which provides that "In cases not provided for by the rules of this court, the rules of the District Court for the Northern, District of New York, so far as the same are in their nature applicable, are to be considered as Rules of this Court)," the following, viz : And a party defendant or claim- , an{), as well as the opposite party, may notice any issue of fact for trial and bring on the trial thereof in pursuance of such notice. 14. The following order, made by the presiding judge, has bepn regarded as having all the force of a standing rule of court, and is as follows : The proctors in the Circuit Court in admiralty appeals must each procure from the clerk of the Circuit Court a certified copy of the apostles, which includes all the papers returned from the District Court, and that the appellant must also procure a certified copy for the court. Additional Eules Regulating Appeals from the District COUKT. At June Term, 1848. 15. The traJnscript to be setit to this coiyrt, on appeal thereto from a sentence or decree of the District Court, may be certified by the clerk of the latter court, under his hand and the seal of the court. 16. Eight day's notice of hearing on appeal shall in all cases be given by the service thereof on the adverse party, or on his proctor. 17. When an appeal from a decree of the District Court is interposed twenty days before the next stated session of this court, it may be noticed for hearing at such session by either party. District Rules. 251 18. When an appeal from a .decree from the District Court is inter- posed less than twenty days before the next stated session of this • court, the appellee may, at his option, notice the cause for hearing at such session, on the first or other day thereof; or have the cause continued until the next stated session. 19. Transcripts of the depositions- taken in any cause in the District Court, according to law — whether de bene esse under the acts of Con- gress, or on commission and read at the hearing of the cause in that court, may be transmitted to this court on appeal, and read by either party as evidence at the hearing of the cause in this court. 20. , A copy of the notes taken by the judge, or under his direction by the clerk of the District Court, of the evidence of witnesses examined orally therein, shall be certified and , transmitted to this court on appeal, along with the transcript of the record and , other proceed- ings in the cause, and shall be admitted to prove the evidence given by such witnesses ; but nothing herein contained shall be construed to abridge the right of the parties to re-examine siich witnesses in this court, if they shall see fit to do so. RULES Of the Disteict Court of the United States foe the NoRTHEEN District of New York. 1. The clerk of this cburt shall reside and keep his office at Utica, until otherwise ordered by the court. .Procters of any Circuit or District Court of the United States, attorneys of the Supreme Court and solicitors of the Court of Chan- eery, of the State of New York, may, on motion in open court, or on presentation of their licenses to the clerk in vacation, be admit- ted attorneys and proctors of this court ; and counsellors and advo- cates of any Circuit or District Court, and counsellors of tte said Supreme Court and Court of Chancery, may, in like manner, be 252 Appendix II. admitted counsellors and advocates of this court, of course, on tak- ing the oath or affirmation prescribed by the third rule of this court. 3. All persons admitted to practice in this court sl^all, in open court, take either an oath or affirmation of the tenor following, viz : I, , do solemnly swear (or affirm a» the case may be) that I will demean myself as attorney (or counsellor, solicitor, proc- tor or advocate, as the case may be) of this court, uprightly and according to law, and that I will support the Constitution of the United States. 4. Every attorney, proctor and solicitor of this court, who does not reside in Utica, shall have an agent residing there. But if -such attorney, proctor, solicitor, has an agent in the Supreme Court of the State residing there, he shall be considered the agent of such attorney, proctor, or solicitor in this court. The appointment of agents in this court shall be in writing, signed by the principal, and' filed in the office of the clerk, who shall keep a catalogue of the appointments filed, with the names of th^ attorneys alphabetically arranged ; and no person shall be agent unless he is an attorney of this court or of the Suprepie Court of the State. 5. When the attorneys, proctors, or solicitors of the adverse parties do not reside within forty miles of each other, service inay be made on the agent. 6. If the attorney, proctor, or solicitor, not resident in Utica, has no agent there, either in the Supreme Court of the State or in this court, service of all papers and notices may be made as to him by affixing the same in a conspicuous place in the office of the clerk of this court. , 7. When the service is on the agent, or is made by affixing the notice or paper in the clerk's office, it must be double the time of service required where tbeservice is on the attorney, proctor or solicitor, 8. All notices shall be in writing, and shall be served on the attorney, proctor or solicitor in the cause, or his agent, or by affixing in the clerk's office, and not on the party ; but wherp a party is alsd an District B vles. 253 attorney, proctor or solicitor of this court, shall prosecute or defend in person ; all notices and other papers shall be served on him ih like manner, except where the proceeding is by bill, in which case the bill shall be personally served ; and where the object is- to bring a party into contempt for disobeying any rule or order of court, the service shall be personsfl, unless otherwise ordered by the court. 9. Notices and papers may be served on an attorney, solicitor or proctor during his absenpe frofn his office, by leaving the same with his clerk in such office, or with a person having charge thereof; or where no person is to be found in the office, by leaving the same between the hours of six in the morning and nine in the evening, in some suitable and conspicuous place in such office ; or if the office be not open, so as to admit of service therein, then by leaving the same at the residence of the attorney, solicitor or proctor, with some person of suitable age and discretion, 10. Where the party, other than an attorney, solicitor or proctor of this court, prosecutes or defends in person, the service of notices and papers may be on such party personally, or by putting the same into the post office, directed to him or her at his place /6f residence, and no service of notices or papers in the ordinary proceedings in a cause shall be necessary, to be made on a defendant, who has not appeared therein, except where the defendant is returned imprisoned for want of bail, in which case a copy of the declaration and notice of the rule to plead shall be delivered to him, or to the sheriff or jailer, in whose custody he may be, and where an exception is entered to bail, and no notice of retainer of attorney to defend is given, notice of such exception shall be .delivered to the sheriff or one of his deputies. 11. Actions brought for therecovery of any debt, or for damages only, may be commenced either: 1st, by the issuing and service of a capias ad respondendum against persons not privileged from arrest ; 2d, by summons against corporations ; or 3d, by filing in the office of the clerk of this court a declaration ; entering a rule in the book of common rules kept by such clerk, requiring the defendant to plead to such declaration, according to the practice of the court; and serv- 254 Appendix II. ing a copy of such declaration and notice of such'rule personally on the defendant ; which last mode of commencing an action may be adopted Against any person whether privileged from arrest or not. 12. Upon due proof of the service of a declaration personally upon all the defendants in the cause, their appearance shall be entered by the clerk in the same manner as if they had indorsed their appear- ance on a capias ; and their default may be entered for not plead- ing, and the same proceedings may be had against them, in all respects, as if they had appeared. ,13. ^ ; All process if issued in term time, may be tested en any day, in that term, and made returnable on any day in the same term, or in the next term j and if issued in vacation, may be tested on any day, in the preceding term, and be made returnable on any day in the next term ; and the term shall include every day from the com- mencement thereof until the final adjournment of the court, not- withstanding intermediate adjournment. And in case any stated term shall not be held, process may be tested on the day fixed by law for the coiamencement of such term. 14. ' Upon the service of a capias ad respondendum which does not ' require tne defendant to be held to bail, he may indorse his appear- ance on such writ, or, if he refuse to do so, the officer may return the writ personally served ; and, in either case, it shall be the duty of the clerk upon the return of the writ, to enter tlie appearance tjf the defendant upon whom the same was served; and probeedings may thereupon be had against such defendant as if he had actually appeared. ' 15. When the capias has been served on the real party intended, the plaintiff before or after its return, may amend, of course, any error in the name of the party inserted in the process, giving the defend- ant notice of such amendment. 16. The court will not entertain a motion to set aside the process or District R ulbs. 255 proceedings in a cause on the ground of th^ misnomer of the party arrested, but will leave him to his remedy by a plea in abatement. 17. No person shall be held to bail on a capias ad respondendum, unless the true cause of action be particularly expressed therein. 18. The defendant' may be held to bail in the cases and in the manner and subject to the exceptions prescribed by the laws of this State ; and bail may be put in, and the bail piece filed before the return day of the writ, for the purpose of surrendering the principal. 19. In suits brought against persons accountable for public money, for the recovery thereof in which the defendant is held to bail, it < shall be the duty of theofficer making the arrest to exact a bail bond conditioned for the appearance of the defendant on the return day of the writ, and ujiless it shall be made to appear .that the plaintiff is not entitled by law to judgment at the return term, special bail shall be put in, and the bail, if excepted to, shall justify within two days after the return day of the writ, and before the adjournment of the court at the return term ; otherwise the plaintiff may sue out process upon the bail bond, returnable on any day in the ensuing vacation, and upon the return of such process, served, may proceed to judgment and execution as of the preceding term unless the defendant shall interpose a valid plea, verified by affidavit ; and judgment may also be entered in the principal suit in the same man- ner as if specfal bail had been put in and perfected. But, if within the time herein allowed for pitting in and perfecting special bail, the defendant shall by making the oath or affirmation prescribed by law, entitle himself to a continuance until the next term, he shall have the same time allowed, as is allowed in other cases after thd return day of the writ, to put in and perfect such bail. 36. In suits upon bonds for the payment of duties, and in suits brought against persons accountable for public money, for the recovery there- of, the declaration may be filed on the day upon which the writ is returnable and returned, and the district attorney may thereupon 256 Appendix II. move in open court for judgment, and bo plea being interposed may have final judgment entered instanter. 21. "When in suits upon bonds for the payment of duties, and in suits brought against persona accountable for public money, for the re- covery thereof, the defendant interposes a plea, the district; attorney may have the cause placed on the calendar, at the same term, with- out further notice ; and may bnug the same to trial when called, unless the court shall continue the cause over at the instance of the defendant. 22. In suits in which the United States are, plaintiffs, or in which they are interested though not plaintiffs, if the bail to the arrest become special bail, the assignment of the bail bond and the acceptance thereof by the plaintiff's attorney, shall not preclude him from excepting to the sufficiency of , such special bail; and the marshal shall still be responsible for good bail, notwithstanding such assign- ment and acceptance of the bail bond. 23. No plea shall be received in any suit instituted in thi^ coui't upon a bond executed to the United States for the payment of duties, or, in any suit instituted upon a bail bond taken in consequence of such' suit, unless such plea shall be accompanied by an affidavit of the truth of the matters in the plea contained. 24. The time for putting in special bail and giving notice thereof, shall be twenty days from the day on which the process shall be returnable ; the time for exception and notice thereof, twenty days from the day of notice of bail ; the time of justification, eight days from the day of notice of exception ; and notice of justification shall be given four days before the day of justification. Bail may justify in open court, or before the judge at Chambers, or before the clerk, with the right of appeal in the last case to the court or judge at Cl^ambers. 25. The following shall be the terms on which proceedings shall be stayed in suits on bail bonds : D.I8TRIC1 Rules. £57 1. Putting in and perfecting bail above, and paying the costs of ike suit on the bail bond, and of the motion for relief. 2. Pleading issuably, and consenting to place the cause on the calendar, and to , proceed to trial at the same term ; or in case of refusal so to plead and consent, the entry of a judgment on the bail bond to stand as security. 26. Common rules (or rules of course ■Without special cause shown} and rules by consent may be entered/in the proper book in the clerk's office in term or m vacation ; the day of entering the same being moted thereia ; and the party may enter such rule as he may conceive himself entitled to, of course, but at his periL The defendant having perfected . his appearance, may at any time tjiereafter take a rule against the plaintiff to declare in twenty days after service of notice of the rule, ox that judgment of discontinu-: ance be entered agaanet him. 38- The rule to plead, to answer, or to join in demurrer, shall be a rule of twenty days ; but the plaintiff shall not be held to accept a, plea in abatement ' after four days from the day of service of th6 notice of the rule to plead, and. a oopy of the declaration, and the rule to join the detuarrer to such pLea, shall be a rule of fotir days only- Where there shall have been judgment of respondeas ouster, on a demurrer to a plea in abatement, and the plaintiff shall h^ive served the defendant with a notice of such judgment the defendant shall plead within four days from the day of service of such notice, or his (default in not pleading may be entered. ' 30. The party tn whose favor a default has been entered, may on any day afterwards in term, have a rule entered for such judgment as is to be rendered by law, by reason of such default. In all actions £Ouuding in damages, after judgment for the plaintiff by default or on demurrer, the damages shall be assessed on a writ of inquiry, or by the elerk, as the case may be. 17 258 Appendix II. 31. Fourteen days' notice of trial aad six days' notice of couatermand shall be given ib all cases. Tbe like notice of assessihent and of inquiry (where such notices are necessary) shall also be, given, and may be given at any time after default entered, and for any day in term ; but no notice of assessment ^r of inquiry shall be required^ except when the defendant shall have appeared by attorney, or shall have given notice of his intention to appear and defend the action. 32. Rules for final jndgroent, nnless cause to the contrary be shown, shall become absolute upon the expiration of four days ia term, after the entry thereof, or if tl^ere shall not be so many days remaining in term, ihen upon t^e expiiration of the term. 33. • Where notice of retainer shall be received before the defendant's default in not pleading has been entered, a copy of the declaration and notice of the rule to plead (unless they shaH have been served on the defendant personally) shall be served on the attorney retained, and the rule to plead shall be from the time of such service, and tha service of all other pleadings, papersi and notices, to be made after notice of retainer, shall be on the attorney retained. i 34. If the plaintiff shall make default in declaring, then the defend-. ant, or if either party shall make defauilt in answering, then the oppo- site party may have the default entered in the book of common rules ; bat where the previous service of a notice ©f a rule, copy of a plead- ing, or of any other matter, shall be reqi^isite, the default shall not be entered, nnless an affidavit of such service shall be filed ; neither shall it be entered, jmtil special bail, if reqiuired, is pwt in, and if excepted to, has justified. 35. .' • The defendant's default being duly enteired, tii© plaintiff shall nolt be bound afterwards to accept a plea nnless the defeadant, as soon as he shall know that the 'default has been entered, shall file an affi- davit of merits and serve a copy, pay or tender the amount of the costs of default, plead issuably, and consent to go toi trial at tha next term. DisTBicT Rules. 259 36. The plaintiff may at any time before the default for not replying shall be entered if the plea shall be a special plea, or a plea in abatement or within 20 days after service of a copy of the plea, if it shall be the general issue, amend his declaration. After plea either party may, before default for iiot answering shall be entered, amend the pleading to be answ'ered, and where there shall be a demurrer to a declaration or other pleading, sueh pleading may be amended at any time before' the default for not joining in demurrer shall be entered. The respective parties may amend under this rule, of course, and without costs, but shall not be entitled so, to amend more than once. This rule shall be construed to allow amendments to be made, by adding new counts or pleas, but not so as to allow of any amendment to a plea in abatement. 37. In order to amend, a rule for that purpose shall be entered in clerk's office, which however need not specify the amendments ; but a copy of the amended pleading shall be filed ; and the rule to plead; or answer, if notice thereof shall have been given, shall be from the day of the service of a copy of the pleading as amended and on file. 38. If the defendant shall plead the general issue, the cause shall be at issue^ unless the plaintiff shall within twenty days thereafter, amend his declaration ; and if either party shall, in pleading in any degree after the plea, tender an issue to the country, and' if the opposite, party shall not demur to the pleading within twenty days after service of a copy thereof, the cause shall in each of these cases be deemed at issue. 39. Applications made by a party in pursuance of the fifteenth section of the judicial act, to require the opposite party to produce books and writings, must be made upon petition, verified by affidavit set- ting forth plainly the facts and circumstances upon which the appli- cation is founded ; and in such petition, or in the affidavit thereunto Bubjoined, it must be stated that the books or writings, the produc- tion whereof is soughT;, are not in the possession or under the control 260 Appendix II. of the petitioner, and that he is advised by his counsel, and verily believes that the production of the books or writings mentioned in such petition is necessary to enable him safely to proceed in the prosecution or defence (as the -case may be) of his suit. 40. The petition may be presented to the judge of this court in vaca- tion as well as to the court in term ; and the order to be made thereon shall be that the party against whom the application is made,, shall produce the books or writings mentioned in the petition, or show cause on the day and at the place to be therein specified, why the prayer of such petition should not be granted. 41. Such order shall also specify the manner iii which such books or writings shall te produced, and may require the party either to pro- duce and deposit the same with the clerk of this court, or to deliver to the petitioner or his attorhey copies thereof verified by oath. 42. A copy of such petition', together with a copy of the order made thereon, shall be served upon the attorney of the party against whom the order is directed, a reasonable time to be prescribed in the order before the day therein prescribed for showing cause. 43. Commissions to take the examination of witnesses resident with- out the district, may issue by order of the court in term, or of the judge thereof in vacation, in the manner and subject to the regula- tions, so fair as- the same are applicable, mutatis mutandis^ prescribe)! by the Revised Statutes of this State. 44. Such commissions may ajso be issued by consent. But the agree-i ment for that purpose shall be in writing, and filed in the clerk's office; and the clerk shall, in such case, make an indorsement 'upon the commission, under his signature, in the following form : Allowed by consent of parties. 45. When a cause is noticed for trial, a notice thereof, with a note of the issue and of the pleadiqgs, and the attorney's names shall be District R ules. 261 delivered to the^clerk, on or before the Thursday preceding term ; the clerk shall, as early as the following day, have the calendar of causes to be tried niade up, arranging them according to the dates of their issues ; and no cause shall be put upon the calendar with- out tie special order of the court, unless the note of issue shall be furnished, as is hereby required. 46; , Eor the purpose of summoning and returning jurors to serve upon trials of issues in this court at the terms thereof appointed by law, or which may be appointed by the special order of the judge thereof, (to be held in the village of Utica,) the clerk of this court together with the marshal, or his deputy, resident in Utica, shall, at least fourteen days previous to every such term, repair to the office of the clerk of the county of Oneida, where the clerk of this court, in presence ai^d with the assistance of the said clerk of the county of Oneida, an'd of the marshal or his said deputy, shall proceed to draw out of the box kept in the said office, containing the names of the Jurors of the said county, thirty-six slips of paper ; and .the clerk of this court shall immediately thereafter make out and 'Certify, under his hand, a list of the jurors sd drawn as aforesaid, with their respec- tive additions and places' of abode, and deliver the same to the said marshal, or his said deputy, who shall summon the persons named in such list to serve as jurors. And for the purpose of summoning and returning jurors to serve upon the trial of issues" in this cpurt, at the terms thereof appointed by law, or which may be appointed by the special order of the judge thereof, to be held in the city of Albany, the marshal or his deputy, resident in the said city, shall at least fourteen days previous to every such term, repair, alter- nately, from term to term, to the office of the clerk of the city and county of Albany, and to the office of the clerk of the county of Kensselaer, where, in the presence and with the assistance of such clerk, the marshal or his said deputy, shall proceed to draw put of the box kept in the said office, containing the names of the jurors of such county, thirty-six slips of paperj and shall immediately thereafter make out a list of the jurors so drawn as aforesaid, with their respective additions and places of abode, and shall request such clerk to certify the same, under his hand, and, in case of his refusal so to do, shall certify the same under his own hand, and thereupon proceed to summon the persons named in such list to serve 262 Appendix IL as jurors ; and in like manner shall jurors, to serve at the terms of the court appointed by law, or. by special, order, to be held at other places, be drawn, summoned and returned by the marshal or one of his deputies, and in these cases the jurors shall be taken from the counties respectively in which the term of the court at which they are' to serve is to be held. At least six days' notice of the drawing of every juror shall be given by the clerk of this court, by affixing such notice upon the outer door of the house where the court for which such jury is to be drawn is toT)e hel(f. The jurors to serve at any court shall be summoned at least six days previous to the sitting thereof; by giving personal notice to each person, or by leaving a written notice at his place of residence, with some person of proper alge. The inarshal' or his deputy by whom the jurors are summoned, shall return the list of jurors to the court at the opening thereof, specifying those who were summoned, and the manner in which each person was notified. It. shall be the duty of the marshal or his deputy having posses- sion of the same to furnish ~any person applying therefor and paying therefor a fee of twenty-five cents, a copy of the list of jurors drawn to attend any court. 47. Whenever it sball be intended to move to set aside a non-suit or verdict, except for irregularity, a case shall be prepared by the party intending to make the motion, and a copy thereof sha,Il be served within four days after the trial on the ^.opposite party, who may, within four days thereafter prepare aonendments thereto, and serve a copy on the party who prepared the case, who may then, within, four days thereafter, serve the opposite party with a notice to appear, within a convenient time, before the judge, to have the case and amendments settled. The judge shall thereupon correct and settle the case, as he shall deem to consist with the truth of the facts. The time for settling the case must be specified in the notice, and shall be not less than four, nor more than twenty days after service of such notice. 48. If the party omit to make a case within the time above limited, he shall be deemed to have waived his right thereto ; and when a case is made and the parties shall omit, within the sevei^al timea District} Rules. 263 above limited, the one party to propose amendments, and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as proposed. If judgment has been rendered upon a verdict, the party intending to move for a new trial shall give four day's notice in writing to the opposite party, of any motion to stay execution thereon, and also of the petition intended to be filed pursuant to the 18th Section of the act of Sep- tember 24th, 1789, unless a shorter time be allowed by the court or the judges. ' 49. General verdicts may be taken subject to the opinion of the court on a case to be made by the party in whose favor the verdict is taken, containing all the evidence given at the trial, the case to be prepared and settled in the manner prescribed in the foregoing rules. 50, In cases of exceptions taken, demurter to evidence or special verdict, the party shall not be required to prepare at the trial his bill of exceptions, demurrer, statement of evidence or special case, or to put in form the special verdict, but shall merely reduce such exceptions to writing, or make a minute of the demurrer to the evi- dence, and of the facts found specially by the jury, as the case may happen to be, and deliver it to the judge, or the judge will himself note the points, as he may direct ; and the bill, demurrer or special verdict, shall afterwards be drawn up, amended and settled within such times and under the same regulations as are made with respect to cases. 51. A bill of exceptions may, before judgment, be used instead of, a case on motion for a new trial, and notice of such motion, together with an order to stay proceedings, and a copy of such bill of excep- tions shall operate to stay all further proceedings until the decision- of the court; Provided, that proceedings shall not be longer stayed than if a case had been made. 53. All questions for argument and all motions shall be brought before Jie court on motion for tljat purpose, and if the opposite party shall not appear to oppose, the party making the motion shall be entitled 264 ■ Appendix IL to the rule or judgment moved for, on proof of due aerrice of the notice and papers required to be served by him. 53. Enumerated motions are motions in arrest of judgment ; to bring on to be argued questions arising on special verdict, case reserved at the trial, ca^e agreed between the parties without trial; demurrer to evid,ence or pleadings; and all motions to set aside non-suit, ver- dict or inquisition, for other cause than irregularity only. - 54. Enumerated motions shall be noticed for the first day in term, by a notice of at least eight days, and may be noticed and brought on by either party. When such notice is given by the party whose , 4uty it is to furnish the case, demurrer, books or other papers on which the motion is founded, such notice shall be accompanied with copies of such papers. 55. Enumerated motions set down for argument shall be placed on the calendar after the causes noticed for trial, and the same rules rela- tive to the furnishing of the clerk with notes of issue, 4;c., and to the making up of the calendar in cases of issues of fact, shall be' applicable to them also. The date of the issue shall be, in cases of motion in arrest of judgment, of special verdict, case reserved lit the trial, motion to set aside verdict or non-suit, bill of exceptions, or demurrer to evidence, the da!y of which the trial took place ; and in case of demurrer -to pleadings, the day on which the joinder in demurrer was received. 56. The party bringing on the argument, 'shall, at the opening thereof, furnish the judge with a copy of the case, demurrer to evidence, special verdict, or, where the motion is for a mew trial upon newly ■ discovered evidence, ■pith copies of the afiBdavits and other papers, if any, on which the motion is founded or opposed ; or if the motion be an arrest of judgment, with copies of the pleadings, or so much thereof as may be necessary. A note of the points or questions intended to be raised by each of the respective parties, shall also at the same time be furnished to the judge, and to the opposite party. District Rules. 265 57. Whenever an order to stay proceedings shall be granted to enable the party to make a special motion, service of such order with copies of the affidavits upon which it is granted, and notice of the motion shall operate as a stay of proceedings until the further order of the court. But if the party 'shall neglect to bring on the motion to be heard during the term according to his notice, the proceedings shall not be ^ longer stayed, and he shall be liable to pay the CQsts of attendii^g to resist the motion. 58. No private agreement or consent between the parties or their attorneys in respect to the proceedings in a cause shall be binding, unless the same shall be reduced to the form of a rule by consent, and entered accordingly in the book of -common rules, or unless the evidence thereof sha,ll be in writing, subscribed by the party or his attorney, against whom the same shall be alleged. 59. Non-enumerated motions shall be rfbticed for the first day of term, by'a notice of at, least eight days, accompanied with copies of the affidavits and papers on which the same shall be made ; and notice shall not be for a later day in term, unless sufficient cause be shown in the affidavits served," for not giving notice for the first day. 60. < When a party shall before motion, ofier to comply fully with the terms of the, order which it is 'the practice of the court upon motion in like ca^es to make, and shall also pay the costs, if any, on the same being thereupon taxed and demanded, he shall be entitled to costs from the opposite party, if the motion shall be afterwards made. 61. In all cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party whose duty it shall be to comply therewith, shall have twenty days for that purpose*, unless otherwise directed in the order. And where, by the terms of any order, an act is directed to be done imtanier, it shall be understood to require such act to be performed within twenty-four hours. 266 Appendix IL 62. Whenever the plaintiff shall have neglected to bring his cause to trial, according to the practice of the court, he may, if he have not before stipulated, tender a stipulation and offer to pay the costs to which the defendant is entitled, up to that time ; and if the defend- ant shall afterwards move for judgment sis in case of non-suit, he shall pay costs to the plaintiff, except where the plaintiff shall, after demand, have refused to pay the costs as taxed. 63. When on motion for judgment, as in case of non-suit, the plaintiff shall be permitted to stipulate, he shall within twenty days there- after, tender a stipulation to the defendant, and shall pay the costs ordered to be paid thereon ; bnd if the stipulation be not tendered, and the costs paid within that time, the defendant, on filing an affi- davit of such omission of tender and non-payment, may, after the expiration of twenty days, enter judgment as in case of non-suit as of the preceding term. 64. The provisions contained in title 2, of chapter 10, of part 3, of the Revised Statutes of this State, relative to security 'for costs, shall be taken and held to_be rules of this court. 65. To effect a surrender of bail, the bail or principal shall produce to the judge two certified copies of the bail piece, on one of which the judge will indorse a committitur, and on the bther an order that the plaintiff show cause befprfe him on such day as he may desigi nate, why the bail should not be exonerated. 60. On dute proof of the service of such order on the plaintiff or his attorney, and on proof by the certificate of the marshal or his deputy, to whose custody the defendant has been committed in virtue of such committitur, acknowledged before the judge by such officer, or proved by the oath of a subscribing witness thereto, if no sufficient cause to the contrary be shown, the judge will indorse an order on the second certified copy of the bail piece, that an exoneratur ^e entered. If the plaintiff or his attorney upon whom the rule to show cause is served resides at the time of service more than one hundred miles District Rules. 267 from the place at which cause is to be shown, such ' rule shall be served eight days before the time specified therein for showing cause j in other cases four days sh'all he sufficient. 67. Such certified copy shall be filed, and the clerk shall , indorse thereon an exoneratur, and shall also enter in the register of bail the discharge of the bail. , ' 68. Whenever a bail bond shall be tajsen on the arrest of a defendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of the bail in the same manner and with the like effect as in the case of special bail, except that true copies of the bail bond, proved to be such by the affidavit, of the marshal or his deputy, or of a subscribing witness, shall be used instead of cer- tified copies of the bail piece. 69. In case a defendant who has procured special bail in a suit in this court, shair be afterwards arrested in any other district and commitr ted to a jail, the use whereof has been ceded to the United States for the custody of prisoners, he may be surrendered^ at the request of his bail, and in pursuance of the act of Congress in such case made''and provided, in the manner provided in the foregoing rules for ordinary cases. ^ • ■ 70. . , All moneys paid into court which any collector of customs is entitled by law to receive, shall, after deducting the costs, be paid ■ over to him by the clerk, upon an order to be entered of course ioi that purpose. - ' - 71. All moneys paid into court which are required by law to be deposited in a branch bank of the United States, shall forthwith be deposited by' the clerk in the Oneida bank, in the city of Utica, to the credit of the court,: ' 72,. All checks for money so deposited to be drawn out of the bank, shall be signed by the clerk, as clerk, and such check shall be writ- tep on the same pstper which contains the order of the judge for that purpose. 73. A book shall be kept by the clerk, in which he shall enter a full 268 Appendix 11. and particular account, under the title of each cause depending in the court, of all moneys paid into court in such cause, and of the payment thereof j and such book shall at all topics be open to the inspection and examination of the judge of this court, the attorney of the United States, and the marshal of the district ; and any par- ticular account may also, upon request, be inspected by any person interested therein. 74. All process issued by this court shall be of like form and effect with process issued in like cases by the Supreme Court of this State, unless otherwise directed by rule. ' , 75. > '■ The marshal, his deputies, and all other persons concerned in the service of any process of this court, are respectively prohibited from becoming bail in any suit defending in this court, unless for the pur- pose of surrendering the defendant, in which case the surrender shall be made within fourteen days after special bail shall have been put in. , 76. The bond required by law to be executed by the clerk of this court for the faithful performance of his duties as such, shall be recorded in his office, and immediately thereafter deposited (in the branch hank of the United States, ia, the village of JJtica,) subject to be delivered upon the order of the judge, to such person as shall be designated in such order ; and the marshal's bond shall be recorded and filed in the clerk's office. ' 77. •'■ In causes wherein the marshal of the district, or his deputy is a party in interest, all process shall be directed and delivered to the sheriff or under sheriff of the county of Oneida, for the time being, who is hereby appointed ex officio, in pursuance of, the act of Con- gress in such case, made an^ provided, to serve and execute such process. 78. The clerk of this court, the first judges of eact of the counties in this district, the recorder of the city of Albany, and the clerk of each of the said counties, except of the county of Oneida, for the time being, shall ex officio, be commissioners to take affidavits and acknowledgment of bail in civil causes depending in this court. The District Rules. 269 officers aforesaid are hereby appointed such commissioners, pursuant to the provisions of the acts of Congress authorizing the appoint- ment thereof, and all orders heretofore made for the appointment of such commissioners ^hall be annulled after the first day of June next. 79. The clerk may tax and certify bills of costs and sign judgment records. 80. ' On an indictment found by the grand jury the district attorney may forthwith sue out a capias under the seal of the court for ithe arrest of the person indicted. 81. Where default is made by any party or witness bound by recog- nizance in any criminal proceedipg, the clerk^hall immediately issue a scire facias thereon. 83. Where a fine is imposed by the court on any person for any cause, and the party is not thereupon committed, and such fine is not dis- charged previously to the close of the term, the clerk shall issue to the marshal a warrant of execution commanding him to levy and make such fine of the goods and chattels, or in default thereof, of the lands and tenements of the party. 83. In all cases not provided for by the rules of this court, or by law, the practice of the Supreme Court of this State as prescribed by the Revised Statutes of this State, and by 'the rules of the said court, shall regulate the practice of this court, so far as the same may be applicable. 84. Persons summoned to serve as jurors in this court will be discharged or excused from serving therein, whenever by the law of this State it would be the duty of the courts of the State to discharge or excuse Buch persons from serving therein. 85. , Obsolete. Any issue of fact which, according tp the act of Congress of July 7', 1838, entitled " An act to increase and regulate the terms of the Circuitaud District Courts for the northern district of the State of 270 Appendix II. New York," would be triable at a term of the court required* by aw to be held in any one of the divisions of the said district into which it is divided by the said act, may be tried at a term of the court required to be held in any other of the said divisions of the said district provided the adverse parties or their attorneys, by a stipulation in writing signed by them and filed in the clerk's office, shall enter into an agreement to such effect. DELIVERY OF PROPEETT UNDER SEIZURE — PENDENTE LITE. 86. 1. Applications for the delivery to the claimant of property seized as forfeited under any law of the United States, may be made at any time after the service of the monition and warrant of arrest. 2. At least four days' notice of the application shall be given to the district attorney and the collector of the collection district in which the seizure was made, accompanied by the service on each of them of a copy of the petition for delivery ; unless the application be made in open court, when the district attorney and the collector are present, in which case no previous notice shall be necessary. 3. Unless a claim duly verified shall have already been interposed by the applicant, he shall show at the time of his application, by his own oath or other evidence, that he is lawfully entitled to appear as claimant in the case. 4. The appraisers shall be sworn, faithfully and fairly to appraise the property in question, and make a true report of the value there- of, according to the best of their understanding without uijnecessary delay. 5. Reasonable notice of the time and place appointed by the appraisers to make the appraisement shall be given to the district attorney, the collector and the claimant. 6. For the purpose of ascertaining the value of the property to be appraised, the appraisers may examine such persons on oath, and receive such affidavits taken before one ,of the commissioners of this court, (who are hereby authorized to take such affidavits), as they may think proper. 7. On the return of theappraisement to the court, or to the judge in vacation, accompanied by a certificate from the collector and naval officer (if there be one), that the duties on the property seized, if any be chargeable thereon, have been paid; and on satisfactory evidenco DiSTSivT Rules. ' 2*1 \ that the expenses of the appTai8em4nt have heen paid by the claim- ant ; and on the execution by the claimant of a bond, in conformity with the statutes of the United States in such case made and pro^ vided, before- the court, the judge, or the clerk, an order will be granted for the, delivery of the property to the claimant. 8. The appraisers shall severally be entitled to be paid for their services in making an appraisement, three dollars a day for each day necessarily spent in the performance of such services. 9. But whenever, in any case, the value of the property seized shall be agreed upon between the collector and district attorney in behalf of the United States and the claimant, and a certificate in writing, expressive of such agreement shall be signed by them, and filed in the clerk's office, such valuation (in cdnformity with the practice of the court heretofore) shall have the same validity and effect as if it had been made and reported by appraisers duly appointed for that purpose. SALE OF PERISHABLE PROPERTY. 87. 1. Application for the 'sale of perishable property seized as for- feited under any law of the United States, may be made either by the district attorney in behalf of the United States, or by the claim- ant, at any time aftpr the service of the monition and warrant of arrest. 2. At least four days' notice of the application, when made by the claimant, shall be, given to the district attorney, and to the col- lector within whose collection district the seizure was made, accom- panied by the service of a copy of the petition for the decree or order of sale ; and a like notice shall be given to the claimant if there be one, or to his proctor or attorney, when the applicatipn is made by the district attorney. But when the application is made in open court, and the proctor or attorney of the opposite party is present, no previous notice shall be necessary. 3. When the application is made by the claimant before a claim duly verified shall have been already interposed, he shall be required to show at the time of his application, by his own oath or other evi- dence, that he is lawfully entitled to appear as claimant in the case. ' 4. The place of sale, and the length of the notice of sale to be given by the marshal (which unless otherwise specially directed, 272 Appendix II. shall be given in the manner prescribed by the 90th section of the Collection act of March 2, 1799, in cases of condemnation), will be determined by the' court or the judge, in each case, according to its nature and eircumstaiices and prescribed in the order of sale. 5. When the application for an order of sale is resisted by the opposite party, and the , propriety of such order appears doubtful, surveyors will be appointjd, preliminarily, to examine and report as to the condition of the property. KEMISSION OF PINES, PENALTIES, FORPEITUEES AND DISABILITIES. 88, '' Preparatory to the presentation of a petition for the remission or mitigation of any fine, penalty, forfeiture or disability," a copyof such petition, together with ^ notice of the time and' place of pre- senting the same, shall be served on the attorney of the United States, and another cdpy with the ' like notice on the person or per^ sons claiming the fine, penalty or forfeitui?e, ten days before the time of preferring the petition. 89. The petition, in addition to the other circumstances of the case, shall state whether any, and what suit, has been instituted, and what proceedings have been had for the recovery of the fine, penalty or forfeiture, up to the time of preferring the petition. 90. The clerk under the direction of the judge, shall prepare a state- ment of the facts relative to the case which appear upon the inquiry, and forthwith transmit the same, together with the petition, to the secretary of the treasury, ,91. The fees of the clerk shall be paid by the petitioner before the transmission of the petition and statement to the secretary of the treasury ; and where there are several petitioners or distinct claim- ants, not being partners, or several cases or importations embraced in ,one petition, the, clerk shall be entitled to the same fees as if a distinct petition had been presented in each case. District Rules. ' 273 92. [This rule prescribed the fees of the marshal for the custody of vessels and other property under seizure in behalf of the United States, and it is therefore supposed to have been superseded by the act of February 26, 1853, ch. 80, which see ante. The terms of the act do not embrace land seizures, these not being of admiralty jurisdiction ; but the courts will doubtless deem it most discreet, at least, to apply its provisions to such seizures as well as to seizures on navigable waters.] 93. The clerk is authorized to enter satisfaction of record of any judg- ment rendered in this court in behalf of the United States, on filing an acknowledgment of satisfaction of the same, duly made by the district attorney. ' 94. [This rule prescribing the fees of practitioners and the clerk, has been superseded with respect to suits at law and in admiralty, and it is presumed also with respect to suits in equity, by the act of February 26, 1853, eh. 80, which see ante.] DC?" The following additional rules made in 1860, and subsequently, in some respects modified, relate, it will be seen, exclusively to suits in admiralty, and do not, therefore, come within the scope of this work. But on account of their importance, and for the purpose of making the body of rules to which they belong complete, we append. them. 1. In order to prevent the commencement of suits upon small demands, and the consequent accumulation ot costs altogether dis- proportionate to the sum demanded, the clerk will issue no process for seamen's wages, when the sum sworn to be due to a sole libellant is less than ten dollars, or to several joint libellants is less than fifteen dollars, or for any other demand, when the amount sworn to be due is less than twenty dollars, except when specially ordered by the court, or the judge thereof, or such judge shall be absent from his place of residence. When the amount recovered shall be less than the sums above named, no costs will, in ordinary cases, be decreed to the libellant, unless it shall be shown upon the hearing that such libellants could not have had a complete and perfect remedy in a court of a justice of the pea«e. 18 274 Appendix II. In suits for seamen's wages, the clerk shall insert in the warrant of arrest and monition, after the words " in a cause of subtraction of wages civil and maritime," the words " and also to answer tmto all other persons having demands against the said vessel, for wages earned on board thereof, who may choose to make themselves 'parties to the libel of the said (naming the libellant or libellants), by way of amendment or supplement, without further process or citation." , And all mariners having claims against such vessels, may, thereupon, so long as the vessel remains in custody, or any proceeds thereof remain in the registry, make themselves parties to such libel or suit, by a petition and proper allegations, by way of amendment or supplement to such original libel, and may have a decree for the payment of their demands as though they were named as parties to the original libel, and no new warrant of arrest or monition shall be issued in favor of any seaman, who, in respect- to the d^^S'^d on which he seeks Such process, is entitled to make himself a party to proceedings already commenced ; and no costs shall be allowed to any such seaman who shall without sufficient excuse, fail to apply to make himself a party to such suit on the return day of such process, or the first court day thereafter. And in order to allow snob seaman to make such application, no final order of reference in any case for seamen's wages shall be made until the next court day after the return day of the process issued thereon. 3. No warant of arrest shall issue on behalf of a seaman for wages on bQard a British or Canadian vessel, where it shall appear that such seaman shipped and was' discharged in Canada or elsewhere, out of the United Sta,tes, or in favor of any subject of Great Britain against any British vessel, until the written consent thereto of the British consul, or an order of the judge therefor, shall have been filed. 4. AH decrees for seamen's wages shall direct the amount decreed for such wages to be paid to the libellant in person ; and all checks or orders for the payment of 'such wages shall be drawn payable to the order of the seaman to whom such wages shall have been decreed. District Rules. 275 5* No allowance for the expenses of keeping any ship, or vessel, or other property,, beyond the sum of fifty cents per day, or fifteen dollars in the aggregate, shall be allowed to the marshal, except upon the affidavit of the ship-keeper or other custodian, stating his employment and service, and the amount he has been actually paid thereof, and that such payment was received for such service only, and was received wholly for his own benefit, and not for the benefit, of any 'officer of the court ; and, also, that there is no understanding or intention that the whole, or any part thereof, shall be paid, or in any way disposed of, or allowed to the marshal or his deputy, or for his or their benefit, and a copy of such affidavit shall be served with the copy of bill of fees or statement of allowance claimed. 6. In collision causes, unless the libel and answer shall respectively state or admit, either positively or upon information and belief, and as fully and accurately as practicable : 1. The names of the vessels which came into collision, and of their respective masters. 2. The time of the collision, and whether in the night or day time. 3. The name of the officer or person in charge of the deck of the vessel of the party. 4. The place of the collision. • 5. The general course or direction of the vessel of the party, and her direction at the time of the coUisibn. 6. The state of the weather, and, if in the night, the character of the night in respect to darkness, rain, &c. 7. The course and speed of the parties vessel, and when the other was first seen. 8. The lights, if any, carried by her, and their ppsition. 9. The bearing and apparent distance of the other vessel when the vessel itself was first seen. 10. The lights, if any, of the other vessel which were first seen, and their Jjearing, and their estimated" apparent distance at that time. '' 11. Whether any lights of the other vessel other than, those first Been came into view before the collision, and the particulars thereof. 276 Appendix II. ^. '^ _j 12. The names of the person or persons, if any, stationed ana actitag as lookout on the vessel of the party at the time the other vessel or her light was first seen. 13. What measures were taken, and wheuj to avoid the collision, and, particularly, whether any and what change of helm or sails was made for that purpose. 14. The parts of each vessel which first came into contact, and the manner in which they struck. 15. The character and extent of the injury, if any, to the party's vessel. The opposite party may, on showing to the satisfaction of the court, by affidavit or otherwise, that a more full and specific state- ment of the circumstances of the collision mentioned in such libel or answer, in respect to some one or more of the particulars above men- tioned, is necessary to the proper preparation of an answer to such libel, or the proper preparation, on his part, for the final hearing of such cause, or will materially reduce the expenses of procuring testimony for such hearing, may, on motion (due notice of such motion, with copies of affidavits and papers, other than the files of the court, on which such motion is to be made, having been first served on the opposite proctor at least four days before the day for which such motion is noticed) obtain a special order of the court for the amend- ment of such, libel or answer, in regard to such particulars, within such time, and upon such conditions,, and with such consequences, in case of a non-compliance with su«h order as the court shall pre- scribe. And an order staying proceedings on any defective libel, or striking out any defective answer may be made, on a further notice of motion for that purpose, in case any amendment ordered by the court is' not made and filed as required by such order, unless ^ some satisfectory cause for the non-compliance with such order shall be shown; ■ Since the adoption of« the foregoing rules, as published in Judge Conkling's Treatise, the following notes are necessary to a correct understanding thereof, as referred to by him at the end of each, respectively, to wit : KuLE 1. — ^By an order made at the January term, 1853, the clerk is required to keep his office at the city of Buffalo, where it is now kept. " District R ules. 277 , : Rule 4 and 6. — Since tie removal of the clerk's office to Buffalo, -this rule, it is presumed, is held- applicable to that city. Etjle 46. — Since the date of this rule, the clerk having, by successive orders, been required to remove his office, first to the city of Auburn, and next to the city of Buffalo, the provisions contained in the first paragraph have been modified accordingly. At present, therefore, it is at the clerk's office of Erie county that the presence of the clerk is required when jurors are to be drawn. Rule 71.: — By a subsequent order the bank in the city of Buf- falo is substituted for that mentioned in the above rule. Rule '78. — This rule is rendered obsolete in the. Circuit Court by the adoption of rule 8, therein as herein before given, and is pre- sumed to be obsolete also in the District Court, so far as county clerks and first judges of counties are named therein, these officers being no longer ex officio commissioners of the court. Rule 84. — This rule is superseded by the act of Congress, July 20, 1840, chap. 40, prescribing a rule of practice exactly of the same import, for all the courts of the United States. EXPLANATORY NOTE. The following observations relative to the rules of the national . courts in New York may be useful in this place. They were framed before the late radical re-organization of, the State judiciary and the adoption of a new system of procedure ; and with slight exceptions, were in accordance with the antecedent practice of the former Supreme Court of the State. The new State code of practice has not been- adopted by the national courts, and their practice remains unaltered. By one of the rules of the Circuit Court of the southern district, it is declared, that "in cases not provided for, etc., the rules of the District Court of the southern district of New York, for the time being, whether now in force or subsequently adopted, so fai« as the same are applicable, are to be considered as rules for this court;" and by a rule of the District Court, it is declared that '^in ' all cases not provided for by the rules of this court, the rules of the Circuit Court, so far as the same may be applicable,' shall regulate the practice of this court ; and when there is no rule of the Circuit Court to apply, then the rules of the Supreme Court of this State, now in force so far as the same may be applicable, sjball govern," except, therefore, in the few instances in which the rules of the two 278 Appendix II. courts conflict, they are reciprocal in their operation so far as they are applicable. Hence, the reference in the text to a rule of the Circuit Court as evidence of the practice in both courts. And with_ respect to the latter cause of the above cited rule of the District Court, adopting, in cases not expressly provided for, the practice of the Supreme Court of this State — that also, it will be perceived, is to be regarded as equally the rule of the Circuit Court. It is of some importance, therefore, to observe that these rules are under- stood to have been declared in 1838. The rules of the District Court of the northern district underwent a general revision in 1831. Some of them have since been altered, and fiew rules have been added. They are conformable, as will be seen, in almost all respects with the practice of the Supreme Court of the State, before the adoption of the present Code of Procedure; many of ,the most important innovations of later years having been specially adopted by rule -.(though in a few instances with son^e modification), and a general rule having been made adopting the existing practice of the Supreme Court of the State as regulated by the Revised Statutes and the rules of that court ; see Appendix, Rule 83. Alid in the Circuit Court in this district a rule has been made declaring that " in oases not provided for by the rules of this court, the rules of the District Court for the northern district of New York, so far as the same are in their nature applicable, are to be considered as rules of this court ;" see Appendix, Rule 5, C. C. N. D. N. Y. These rules, therefore, taken in connection with the provisions of the judicial act adopting the laws of the States as rules of decision in the national, courts (the two Codes,, together, covering as they dp the whole field of litigation in suits at common law), have greatly sim- plified the proceedings of the courts of this district; and will, to a great extent, preclude the question (sometimes an embarrassing one), whether the point {in judgment) does or does not fall within the action of the State laws. Sec Conkling's Treatise. AcDinoNAL District Codet Rules. ADJOTJaNED August Teem, 1867, ) , Tuesday, September 2ith, 1867. \ Order Amending Rule 2i\.st. In order to assimilate the peactice of this court to the practice of e State Courts, in respect to the noticing of causes for trial, and District R ules. 279 to allow either party to give notice of and bring on the trial of a cause, it is hereby ordered that Eule 31st of the General Rules of this court be, and the same is hereby amended by inserting between the first and second sentences thereof the following words, viz : A party defendant or claimant, as well as the opposite party, may notice any issue of fact for trial, and bring on the trial thereof in pursuance of such notice. November Term, 1867, ) Tuesday, November 2&tk, 1867. ) It is hereby ordered that the following be and the same is hereby adopted as one of the general rules of this court : In all cases of seizure, where a bond shall have been executed and the property seized returned, in pursuance of the provisions of sec- tion forty-eight of the act of June thirtieth, eighteen hundred and sixty-four, entitled " An act to provide internal revenue to support' the government to pay interest on the public debt and for other purposes," and acts amendatory thereof, before the filing of the information against the same, the information shall state the fact of the execution of such bond and the return of said property, and shall set forth, in an appropriate form of pleading, the substance, terms and conditions of such bond, and the names and residence of the parties' executing the same. , Upon the filing of such an information the clerk shall insert, in the process issued thereon to the marshal, a condensed and brief general statement of the allegation so made in respect to such bond, includ- ing the names and residences of the parties executing the same, as stated in such information, and shall also insert a command to the marshal that he summon and give notice to the persons named as the parties executing such bond, to appear at the return day of said process, to answer the allegations of the information dnd to show cause, if any they have, why such bond should not be enforced against them, which summons and notice shall be served by leaving a. copy of such process with each of such parties, if he can be found within the district, and if not, by leaving the same at the usual place • of abode of such party, with some person of suitable age and discretion residing there, at least ten days previous to the day when such pro- cess shall be returnable ; and such service of such summons and notice or the publication thereof, as hereinafter provided, shall be 280 Appendix II. sufficient notice of the pendency of the proceedings in court against the property so seized^ and upon such bond. In case the marshal shall be unable, for any reason, to effect a personal service of such process and summons upon such parties, or either of them, or to serve the same at their usual place of abode as above provided, the same shall be served by publishing a copy thereof, three times, at least ten days previous to the day when such process shall be returnable, in each of the newspapers designated by "the general rules of this court for the publication of notices in bank- ruptcy required to be published within the county where such seizure -was made. In case any such bond shall be taken and property returned, after any information shall be filed against such property, but before the said property shall be seized or arrested by the marshal, under the process of the court, such allegations in respect to such bond and return may be made by way of supplemental information, or informa- tion in the nature of a 'supplemental information, upon which like statements and commands may he inserted in the proper procbss to be issued to the marshal in such suit, and like service thereof shall be made and like proceedings shall be'had thereon. The parties named in any information as having executed any such bond may appear and answer such information,, and may defend the suit in which such process shall have been issued, and may con- test, the alleged forfeiture and their liability under such bond. March Term, 1868. ) Friday, March 20th, 1868. ) The District Attorney having presented to this court certain regu- lations adopted in the Office of Internal Eevenue at Washington, and approv/ed by the Secretary of the Treasury, as follows : 8.) Teeasukt Department, Office of Internal' Revenue, Washington, February 26th, 1868. Information having been, from time to time, received at this office to the effect that distillation of spirits has been allowed in distilleries which were at the time in custody of the United States marshal, through the connivance of the person or persons employed by the marshal as keeper, it is hereby ordered that in all cases where a District R ulss. 281 marshal takes possession of a distillery by virtue of a process issued for violation of the internal revenue laws, he shall immediately cause the head of the still to be taken off, or the machinery to be discon- nected in such manner as to render it impossible for distillation to be carried on. The expenses arising out of compliance with this order should be returned by the marshal as a part of his disburse- ments in the cause. It is further ordered that whenever any premises are held'in custody by the marshal, under process issued for violation of the internal revenue laws, admission to such premises shall, at all times, be permitted for any internal revenue officer who would be entitled to admission were the same not in custody of the ma.rshal. E. A. KOLLINS, Approved, Commissioner, H. McCULLOCH, Secretary of the Treasury. As well as a letter from the Commissioner of Internal Eevenue, from which it appears that such commissioner desires that such regulations be adopted, as rules of the court, it is now, on considera- tion thereof, ordered that the marshal be allowed, as part of the proper expenses in the case, the necessary expenses incurred under such regulations for the purpose of rendering it impossible for the process of distillation to be carried on in or by any still which is in his official custody, under the process of this court, and which he- may find it necessary to leave in charge of any custodian appointed for that purpose, or without having any such custodian in charge, and that a copy of this order be certified and delivered to the marshal as evi- dence that, in the opinion of the court, he shall, in the cases above referred to, carry out such regulations, unless, from the peculiar cir- cumstances of the case, it should be manifestly impracticable or improper to do so. January Term, 1869. ) Wednesday, January 2Qth, 1869. j Order Amending Rule No. 23. It is hereby ordered that the general rule of this court, which is published in'Conkling's Treatise as No. 23 of the rules regulating proceedings in civil cases iat common law, shall be and the same ia hereby amended, by adding at the end thereof the following, viz : 282 Appendix II. In seizure cases the defendant, or claimant, instead of specially traversing any or all of the allegations of the information may plead, in substance, " that the goods, articles and property in the said information mentioned did not, nor did any, or either of them, or any part thereof, become forfeited, in manner and form, as in the said information, in that behalf alleged,'' or may otherwise directly and expressly deny, in similar general terms, the forfeiture alleged, which shall be deemed a good plea of the general issue to such information, and shall put in issue all the allegations thereof. When, in any such seizure case, the defendant or claimant shall, in his plea, make any affirmative allegation, or allegations of matters of fact, by way of defense or answer to the information therein, the same shall be considered as denied, by the District Attorhey and the United States, and no replication, either general or special, shall be required or allowed. Within twenty days after such plea shall be filed and served, the United States may amend the informa- tion, as of course, and may add new allegations for the purpose of avoiding, explaining or adding to the new matter alleged in such plea. And the defendant or claimant shall have twenty days, after the filing and service of such amended information, to file and serve his plea to the same. BANKRUPTCY RULES. (as amended by HON. N. K. HALL.) District Court of the United States— Northern District or New York. 1. The act of Cong^'ess, entitled "An act to establish a uniform system of Bankruptcy throughout the United States," approved March 2d, 1867, the general orders in bankruptcy adopted by the justices of the Supreme Court, and the following rules, shall, until otherwise ordered, be rules of practice in bankruptcy in this court, in respect to all matters and proceedings therein provided for. In cases not provided for, either by said bankrupt act, general orders or rules-, the practice of this coujt sh'all be subject to the Banks uptct R ules. 283 special order of the District Court or judge, and Will be made to conform, as near as may be,Tbo the practice of the District Court in other cases of similar character, or to the practice established by the rules in bankruptcy adopted in the southern district of New York. Whenever any special order hereafter made by the District Court, in any particular case, shall conflict with these rules, the. direction, of such special order shall be followed in such case. ' a. Except during the absence or inability of ,the district judge, the District Court will be open for 'the transaction of business as a court of bankruptcy, at the United States Court room in the city of Buf- falo, on every Tuesday and Friday, from 10 o'clock A. M., until 1 o'clock p. M., unless the business before it shall sooner be disposed of. Except at the stated sessions of the court, no case or matter in bankruptcy, will, under ordinary circumstances, be taken up on Mon- days, Wednesdays, Thursdays or Saturdays, or on other days after the hour last named, or after the judge shall have disposed of all the business before him and left the court room for the day. At such stated sessipns, all other business will have preference, except during the first half hour after the opening of the court in the morning of each day, and except, also, that trials by jury in bankruptcy oases, may be moved in their order with other trials by jury in civil cases. 3. All papers used in court or filed in proceedings in bankruptcy, whether- prepared' by parties to the proceedings or their attorneys, or by any register in bankruptcy, or other officer of the court, or by any assignee in bankruptcy, shall be written in a fair and legible hand, or else properly pointed, upon paper substantially of the size and width of that called legal cap or foolscap, and folded in the form and size in which law papers written on foolscap paper are usually folded. ' Every such paper containing more than three folios, shall have the folios therein duly marked and numbered ; and the folios of all copies thereof sh^U be marked and numbered in the same manner, so as to admit of easy reference. Papers not requiring full sheets of foolscap, majr be written or 284 -^ FFENDIX 11. printed on half or quarter sheets ; and notices not requiring to be filed may be on smaller portions thereof. 8 -AH papers to be filed ishall be prepared with a white margin of at least one inch wide along the head of each and every half or quarter sheet thereof, in order that they may be properly and securely fast- ened together at such head, to constitute the final record in the case, and also with a white margin at least one inch wide on the left hand side thereof. No paper not prepared in compliance with this rule, and also in compliance with the general orders in bankruptcy, shall be filed by the clerk without the special order of* the court or judge ; and no attorney not admitted in the District Court shall be allowed to prac- tice therein in cases of bankruptcy. 4. Every register in bankruptcy, or other officer of the court before administering the proper oaths in verification of any petition, sched- ule, inventory, deposition, affidavit or other paper, shall see that the different sheets or pieces of paper of which it is composed, and those to which it refers as annexed, are properly fastened together, in such manner as to give reasonable security against the separation, loss or change of any part thereof. 5. Before any petition under the 11th section of the bankrupt act shall be presented to the court or judge, or be filed with the clerk, the petitioner shall obtain from a register in bankruptcy a certificate substantially in the form following, to wit : " I do hereby certify that I have carefully examined tlie armexed or within petition, and the schedule and inventory thereto annexed, and also the verification thereof, and that the same are proper inform, and sufficient in substance to authorize an adjudication in bankruptcy, and the issuing of a warrant under the Wth section of the bankrupt act, " Given at this day. of 186 . "A. B. " Register in bankruptcy." Which certificate shall be endorsed on or annexed to such petition by the register. Before making such certificate, the register will care- fully examine every part of the petition, schedule and inventory, to ascertain whether the petitioner has fully complied with every require- ment of the bankrupt act, and pf the general orders and rules of Banes uptot B ules. 2 8 5 court applicable tljiereto-; and particularly that they are substantially in the form prescribed by such general orders ; that all the blanks of both such schedule and inventory are properly filled, and filled by using the word " none " where that is proper ; that both the real and personal property of the petitioner, and the place where each part of the same is situated, are set forth in detail and sufficiently described, and that the incumbrances thereon are stated ; or that it is stated that there is no incumbrance thereon. He will also ascer- tain that the petitioner has fully set forth in his schedule, in respect to every debt stated therein, all the particulars required by the 11th section of the bankrupt act. And the registers are specially enjoined to refuse such certificate, and to decline making any order of adjudication in bankruptcy upon any petition, until every requisite of the bankrupt act and of the general orders are fully and strictly complied with. 6. Before any petition under the 39th section of the bankrupt act shall be presented to the court or judge, the petitioner shall procure the certificate of a register in bankruptcy, to be endorsed on or annexed to such petition, substantially in the following form, viz : " I certify that I have carefully examined the annexed or vdthin petition, aud the verification thereof, and that the same are in proper form, and sufficient in substance to authorize an adjudication in bank- ruptcy, and the issuing of a warrant under the B9th section of the bankrupt act. " Given at this day of 186 ." 1. All petitions filed under the 11th or 39th sections of the bankrupt act shall be numbered consecutively, and the clerk shall enter the case under its proper title in his docket, giving to such case a full page thereof. He shall place its number at the head of the outside filing of said petition, which nutaber shall thereafter be the designa- ting number of such case until finally disposed of. Every other paper, proceeding or notice, in such case or matter, shall be marked by the clerk, register, messenger, or other officer or party preparing it, with such designating number at the head of the outside filing, or, if there be no outside filing, on or near the upper left hand corner. 286 Appendix II. 8. In case of the absence of the district judge from the city of Buf- ■ falo, or whenever he shall be unable to attetd to business by reason of sickness or other cause, petitions in cases of voluntary bank- ruptcy may be filed with the clerk, and the usual order for, the refer- ence thereof to a register designated in the order, may be entered upon the direction of Joseph L. Fairchild, Esq., one of the regis- ' ters in bankruptcy, who is hereby designated and authorised to sit in chambers at Buffalo for that purpose. And in case of the like absence of the judge at the time appointed for showing cause, or for - any hearing or proceeding in any matter of bankruptpy, or if any such matter, for want of time or other cause, shall not be acted on at the time appointed therefor, the same shajl be continued, without^ special order for that purpose, to the next sitting of the court there- after, at which time the like proceedings may be had thereon as if the day of such subsequent sitting had been originally appointed for such proceedings. 9. The clerk shall prepare and number" envelopes of uniform size, as nearly as practicable, in which to keep separately the papers filed in each case, while the same is in progress. The designating number and the title of the case shall be endorsed upon the envelope. 10. A copy of every other order of the court made at the time of making an order referring the petition of a debtor to a register in bankruptcy, and which contains any ;lirections in regard to the con- tents of the warrant to be issued thereon, the publication or service of notices, or in regard to the action of the register on such petition, shall be attached by the clerk to the certified copy of such order of reference furnished to the register. 11. In cases of voluntary bankruptcy, the register to whom the debt- or s petition, under the 11th section of the bankrupt act shall be referred, shall proceed to consider such petition at , the time and place fixed in the order of reference for his first action thereon, and shall then act on s^oh petition and shall make the order of adjudi- cation of bankruptcy, or other proper order thereon, on the same Banertptct R ules. 2 8 T day, or on some day to which the hearing on such petition may then be adjourned. On such hearing any creditor of the petitioner who has proved, his debt, or who shall prove the same on such hearing, may oppose the prayer of said petition for adjudication, of bank- ruptcy, by filing with the register an answer or objections thereto as hereinafter provided. 12. The warrant issued to the marshal, as messenger, under the 11th section of the bankrupt act, shall designate the creditors (if any) on whom personal service is to be made ; and notice shall be served by mail upon all creditors not so designated. No creditor shall be designated as one on whom personal service is to be made, except for special reasons of an imperative or very important charficter. 13. The 11th section of the Bankrupt Act expressly requiring that the warrant to be issued under that section, shall be issued and signed by the judge or register authorized to grant the same, -there will be added to the form of said warrant as prescribed by the Gen- eral Orders in Bankruptcy, immediately under the signature and official designation of the Clerk of the District Court and as a part of such warrant, when granted and issued by a register, the follow- ing words, or the substance thereof: " Given- under the hand and seal of the undersigned, a register in bankruptcy for the said judi- cial district, by whom this warrant is granted, signed and issued, in pursuance of the 11th section of the Act of Congress above referred to, on the day last above mentioned." Whenever such warrant shall be issued by the Judge of the District Court, the same .addi- tion shall be made, except that the words " District Judge of the United States," shall be substituted for the words " a Kegi^ter in Bankruptcy." 14. When the prooecdftig is instituted by or on behalf of the bankrupt, a duplicate copy of his petition, schedule and inventory, as required by the 11th section of the bankrupt act, shall be left with the regis- ter to whom his petition is referred, at or before the time fixed in the order of reference for the first"attendanoe of the petitioner before Buoh register. Such copy shall be certified by the clerk or a register in bank- ruptcy to be a true copy, or shall be verified as such by the affidavit 288 APPENDIX IT, of the petitioner or of his attorney duly sworn or affirmed to before a register in batokruptcy, a commissioner appointed by the Circuit Court, or a notary public; la either case the petitioner must, at his peril, ascertain that such copy is strictly correct. 15. A party appearing to show cause against or oppose the prayer of a petition under the 11th or 39th sections of the bankrupt act, shall file a brief statement, in writing, of the grounds of his opposition or objeotions thereto, if such o'bjeetions relate solely to questions of law or practice in respect to the regularity or sufficiency of the petition. If his opposition to such petition is founded upon a denial of any statement of fact contained in such petition, or upon the alleged existence of other facts not stated therein, he shall, by an answer to suohi petition, set forth in writing, in distinct and separate articles, and, according to his best knowledge, information and belief, his denial of each material allegation so denied by him, and each allega- tion of new matter, so that distinct and separate issues may be readily framed thereon ; and be shall annex thereto his affidavit that he has read said answer so signed by him, or heard the same read,, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and that as to those matters he believes it to be true. 16. The court, at its own instance, or on motion of either party, will ' refer to a register, commissioner, or referee, designated or appointed for the purpose, for examination and -report, such matters arising in proceedings in bankruptcy, as, under the provisions of the bankrupt act, may properly be so referred. 17. Exceptions may be filed to the report of a register, referee or commissioner, upon any matter referred to him, within eight days after the filing of such report; and exceptions to the admission or- rejection of evidence may be filed within four days after the return of proofs is filed, and either party may then apply for an order fixing a time for the hearing upon such exceptions. 18. When a trial by jury is to be tad, no formal pleadings shall ba. Bankr uptct R vles. 289 necessary to present the issue, but the order for such trial shall contain the issues made by the petition, answer, and other papers presenting the issues to be tried. 19. Causes cannot be noticed for proof, nor witnesses be called and sworn, in open court, (except in trials before a jury) without the previous special allowance of the court, on adequate cause shown. 20. When proofs are to be made out of court, and the case is ready therefor, either party may apply for an order to take the same ; and the name and residence of the register, or other officer or person before whom such proofs are to be taken, shall be stated in the order. 21. A copy of the order shall be delivered to the person before whom tbe testimony is to be taken by the party for whom it is entered, and all parties interested shall thereafter for themselves ascertain and take notice of the time and place of taking the same, which time and place shall be fixed by the person before whoni it is to be taken, in such manner that such parties may have a reasonable time to prepare therefor. 22. Air returns and reports from registers in bankruptcy or other officers of the court, or referees, shall be directed to the clerk of the court at Buffalo, N. Y-, and shall be sent free of postage or other charges; and in case of unreasonable delay on the part of the regis- ter or other officer or referee in making a return or report in any case, an order will be granted requiring him to make such return or report, or show cause on a day specified why he has not done so. 23. Letters to the register, clerk or marshal requiring an answer, ^should be accompanied by envelopes, 'properly addressed, and with the proper postage stamps affixed, in which to enclose the reply and whatever 'else may be required, and no' register or officer of the court will be required to answer any such letter unless this be done, and his fees in addition are enclosed. Whenever any receipt is desired from any such officer, it must be prepared and presented by the party desiring it and with the proper revenue stamp thereon. 19 290 Appendix 11. 84. In every certificate made by a register stating any case, point, or matter for the opinion of the district judge under the 4th or 6th section of the bankrupt act, according to form No. 50 established by the general orders in bankruptcy, the facts agreed upon by the parties to the controversy shall be (Clearly and fully stated with reasonable certainty of time and place ; and this shall be followed by a brief statement of the claim made, or position assumed, by each of the parties to the controversy. The register shall then add thereto such proposed order, adjudication, or (Jecision as- in his judgment ought to be made, and which shall be in suoh form thjit the district juage may^ signify his approval thereof by his signature. The register shall then afford to each of the opposing parties or their attorneys a reasonable opportunity to consent, in writing, to the register's decision thereon. The court will, on the approval and confirmation of sueh decision of the register, make suoh order for costs, against any party declining to assent thereto, as may be deemed proper. . In case all parties to such controversy shall assent to Such adjudication or decision of the register, he shall file the same and , proceed with the case upon the basis thereof, as though such controversy had not arisen. 25. It shall be the duty of the assignee, as soon as practicable after his Appointment shall be complete, to take intojhis possession all the estate, real and personaJ, of every name and nature, of the bankrupt, with the exbeptions mentioned in the bankrupt act ; and also all-the deeds and books of aocount, papers and writings of the bankrupt, pertaining, thereto ; and for this purpose the assignee shall make diligent inquiry into the affairs and transactions of the bai^krupt.. Every assignee shall, under section 27 of the bankrupt act, pro- duce and file with his account, proper vouchers for all payments made hy him, except payments of one dollar or less, and except items in regard to which the court shall for reasonable cause, and by special- order, dispense with vouchers. The items so excepted piay be allowed to a reasonable extent, upon the positive oath of the assignee, that the amounts charged therein were actually aud necessarily paid. Bankruptcy Rules, 291 26. In cases of voluntary bankruptcy when the assignee or any credi- tor shall, after the adjudication of bankruptcy, have good reason to suspect that the bankrupt has property or any right of property which he has not set forth in his inventory, or that he has made any fraudulent or void disposition of his property, or any part thereof; or that he has not given and has not used due diligence to ascertain and give the full names and the residences of his creditors, or the amount of his debts, as required by the bankrupt act ; or that he has not given a full and accurate inventory of, his estate, real and personal, describing the same and where it is situated as required by the said act ; or that he has done, suffered or omitted any other act or thing which may bar his right to a discharge, such assignee or eteditor, upon application to the cpurt, or the register acting in the case, stating briefly and under oath the grounds of his suspicion, may, on due cause shown by affidavit, apply for an order for the examination of the bankrupt on oath or affirmation. And if, upon due service on the bankrupt of a copy of any such order and notice of the time and place appointed for such examination, the bankrupt shall &il to appear and fully to submit himself to such examination, and to subscribe his deposition, application may forthwith be made to the court, upon an affidavit stating the facts of the case, for com- pulsory process against 'such bankrupt. On any such examination the bankrupt may be examined upon oath in respect to all the mat- ters above mentioned, and also in respect to all due to him or to any person for his use j all rights of property, ohoses in action, rights in equity, interests in patents, patent rights or copy rights ; and all rights in action for any property or estate, rdal or personal, or the unlawful taking, detention, or injury thereof, or arising upon contract. 27. In cases of involuntary bankruptcy, it shall be the duty of the assignee, as soon as practicable after he shall be' appointed and quali- fied, to apply to the bankrupt for a full and true account of all his property and rights of property, and of all the deeds and books of account, papers and writings of the bankrupt'pertaining thereto, as required by the bankrupt act ; , and if the bankrupt shall refuse to give such account, or if the assignee or any creditor of the bank- rupt shall have good reason to suspect that he has practiced any 292 . Appendix IL concealmeat in giving sucli account, such assignee or creditor may, on application to the court, and due cause shown Iby affidavit, have an order for the examination of such bankrupt, and, if necessary, for compulsory process against him, as provided in the last preced- ing rule. 38. Every bankrupt shall at all times be bound to attend the assignee upon the requirement of the register acting in his case, and on reason- able notice in writing for that purpose, to be served personally or left at his usual place of abode, in order to assist in making out the accounts of the said bankrupt's estate and effects, and to attend any court to be examined in any suit or proceeding respecting the same, for which he shall be entitled to receive from the assignee a reason- able compensation out of the estate. SO. If, in any case, the assignee or any creditor of the bankrupt shall have good reason to believe that any of the property, interests, fights, credits, or equities of the 'bankrupt, or any assurance or evidence thereof, and of which he has not given a satisfactory account, is iu the possession, under the control, or within the knowledge of any other person, or that any other person is indebted to said bankrupt in a sum not stated, or larger than that stated in the inventory of the bankrupt, such assignee or creditor, upon application to the court, and due cause shown by affidavit, may have an order for the examin- ation of any such person, and, if necessary, for compulsory process against him, as provided in the preceding rule,s. When an order for the examination of any bankrupt or other per- son shall be mades any creditor, or the bankrupt himself, at the time and place appointed for such examiuation, or at any other time to which such examination may be continued or adjourned, may, at his own expense, produce witnesses touching the subject matter of such examination, and shall be entitled jto the ordinary process of subpoena, to be issued by the clerk or register, requiring the attend- ance of such witnesses, which- subpoena the witnesses shall be bound to obey, provided their legal fees are paid or tendered- on the servifce of such subpoena. Baneeuptot Rules. 293 . , 30. All motions and applications of whioh notice shall, be required, shall, unless otherwise provided for by law, the general orders, or these .rules, or by special order, be noticed for some Tuesday or Wednesday, at 10 o'clock, A. m., and the notice shall be accompanied by a copy of the affidavits or other papers on which the motion or application is to be niade, except in cases where a reference to such papers and a statement that the same will be used on making a special motion, is sufficient under the general practice of the court. AH rules, notices and orders, when not otherwise provided for, shall be rules, orders or notices of eight days when served personally, and one-half that time^ in addition when served by mail. When the object is to bring a party into contempt for disobeying ' any process, or any rule or order of the court or of a register, the service shall be personal, unless otherwise ordered by the court. 31. Affidavits of the publication of notices in a newspaper, shall show that the same were published in the regular edition and issue of such newspaper, and shall state the day or days on which the sam,e were / published. Such affidavits must be sworn or affirmed before a reg- ister in bankruptcy, the clerk of the court, a commissioner appointed by the Circuit Court of the United States, or a notary public, and shall be substantially in the following form : Northern District of New YoRKf, ) County of ) A. B. of in said coufity, being duly sworn, doth depose and say that he is (the printer, the publisher, or foreman in the office, as the case may be), of the k public newspaper published in said county, and that the notice of which the anjmxed is a printed copy cut from said newspaper, was printed and published in the regular edition (md issue of said news- paper on the following days, viz: On the and days of 186 : {or on the and days of and on the days of 186 .) Subscribed and sworn before me, this day of 186 . The notice of the appointment of the assignee of a bankrupt, required to be givicn by him under the provisions of the 14th section of the bankrupt act, shall be published once a week for three sue- 294 Appendix II. cessive weeks, in each of the newspapers in which the notice of the first meeting of the creditors of such bankrupt was directed to be published. And notices to creditors to appear and show cause why a discharge should not be granted l^o a bankrupt, shall be published twice a week for three successive weeks, in the same newspapers, unless the District Court shall otherwise direct. Notices to creditors of dividends, notice that an assignee will apply for a' settlement of his accounts and for a discharge from all his liability as assignee, and notices of meetings, required by the 17th, 27th and 28th sections of the bankrupt act, and notices of sale by an assignee, required to be given under the 21st general order, shall be published twice in the same newspaper; the last publication of such notices of sale to be made at least the number of days before the sale required by such general order. 33. All notices served or sent by mail by the marshal or messenger, the clerk, or an assignee in bankruptcy, shall, when practicable, be so prepared, directed and folded, that the direction, postage stamp and postmark shall be upon the notice itself, and not on an envelope or other piece of paper. Whenever any notice sent by mail by the marshal, or- a messenger, in pursuance of a warrant issued under section 11 or section 42 of the bankrupt act, shall be returned to him by reason of its non-delivery, he shall preserve the same in his office in separate bundles, so arranged that they may be referred to by parties interested iji their examination. Whenever any notice sent by the clerk, by mail, under any of the provisions of said act, or the general orders in bankruptcy, shall be so returned, the same shall be filed by the clerk with the papers in the cause. 34, The list of debts provided for by section 23 of the bankrupt act, shall be made and certified by the register to whom the original petition in the case was referred, unless another register shall have been specially designated for that duty by the District CourJ. The register shall place thereon all debts which iave been duly proved and which have not been disallowed by the court, unless it shall be otherwise specially ordered by the District Court. Bankbuptot Rxtles. 295 39. Applications, under section 34 of the bankrupt act, to set aside and annul tlie discharge granted to any bankrupt, shall clearly set forth in separate and distinct articles, and with reasonable certainty of time and place, according to the best knowledge, information and belief of the applicant, all the material facts and alkgations on which the application is based. The bankrupt shall admit or deny, or otherwise answer the sevei'al allegations of such application, in distinct articles, in like manner ; and such application and answer shall severally be verified by affidavit substantially" in the form prescribed by Rule 15. ; 36. The fifty dollars required to be deposited as security for registers' fees, shall, until otherwise ordered, be deposited with' the clerk according to General Order No. 30. The provisional disposition and ultimate disbursement of the same will be regulated by rules hereafter to be promulgated, or by special order. 37. In pursuance of the 28th general order in bankruptcy, the follow- ing national banks are hereby designated as those in which' all' mo'neys received by assignees ill bankruptcy, or paid into court in the course of any proceedings in bankruptcy shall' be deposited, viz : 1. The Albany City National Bank at Albany ; in all cases in which the bankrupt at the time of the filing of the first petition therein i^esided in either of the counties of Albany, Rensselaer, Washington, Warren, Essex, Clinton, St. Lawrence, Franklin, Pul- ton, Hamilton, Montgomery, Saratoga, Schenectady, Schoharie, Delaware, Otsego and Chenango. 2. The First National Bank of Utica, at Utiea ; in all cases in. which the bankrupt at the time of the filing of the first petition therein resided in either of the counties of Oneida, Jefferson, Madi- son, Lewis and Herkimer. 3. The Syracuse National Bank at Syracuse ;. in all cases in which the bankrupt at the time of the filing of the first petition therein resided in either of the counties of Onondaga, Oswego, Cortland, Cayuga, Wayne and Seneca. 4. The Flour City National Bank at Rochester ; in all cases in which the bankrupt at the time of the filing of ^ the first petition therein resided in either of the counties of Monroe,. Orleans, Ontario, Livingston and Yates. 296 Appendix II. 5. The Chemung Canal National Bank of Elmira, at Elmira ; in all cases in which the bankrupt at the time of the filing of the first petition therein resided in either of the counties of Chemung, Steu- ben, Allegany, Tioga, Tompkins, Broome and Schuyler. 6. The First National Bank of Buffalo, at Buffalo ; in all cases in which the bankrupt at the time of the filing of the first petition therein resided in either of the counties of Erie, Chautauqua, Ni- agara, Cattaraugus, Genesee and Wyoming. Deposits made in said banks by any assignee in bankruptcy under said 28th general order, shall be made to his credit as svxh assignee in the particular case in which such moneys have been received; and a separate account shall be kept in f aeh case according to its proper designating number and title. Checks- drawn by assignees in bank- ' ruptcj for moneys deposited by them in such deposit banks, shall contain the number and title of the case in which they are drawn ; shall be signed by the assignee as such ; and shall state " the date, the sum and the account for which it is drawn," and shall be coun- tersigned by the register in bankruptcy having charge of or acting as such in the case in which said checks are drawn. When such checks are drawn for the payment of dividends declared, they shall be made payable to the order of the persons entitled to such dividends, unless the register acting in the case shall, by reason of the small amount of separate dividends, authorize the drawing of a check payable to the order of the assignee for the aggregate of several of such dividends, or shall for some other reason authorize the making of such check payable to the order of some other person, or to bearer. The designation of banks of deposit hereby made, is upon the condition that the said First National Bank of Buffalo and the Flour City National Bank severally agree to allow and credit to the assignee, in each account, separately, whenever such account is about to be closed, interest at the rate of Jive per cent per annum on the daily balance of such account, and^shall file with the clerk of this court, whenever required, a satisfactory bond, executed by one or more persons, as a further security' for the safe keeping and pro- per repayment of such deposit, — such bond to be approved by the judge of this court ; and that each of the other banks designated shall credit in like manner /oMr and a half -per cent interest on such daily balances, and file a similar bond whenever s;ich bond shall be _ required. BaNKBUPTCY BuIjES. 297 The clerk will certify a copy of this rule, and transmit the same, by mail or otherwise, to each of said banks, and will also certify to each bank the name of the register in bankruptcy appointed for the district to which each of the counties named in designating such bank belongs ; and whenever the register of any other district shall be designated to act in any case where the bankrupt at the time of the filing of the first petition therein resided in either of the said counties, the clerk will, on the application of the assignee appoii)te,d in such case, certify to the prbper deposit bank the name of the register authorized under^the rule to countersign checks in such case. 38. Is amended so as to read as follows : The following newspapers are hereby designated as those in which notices required to be published in cases of bankruptcy are to be inserted, except in cases where, for special reasons, other directions shall be given by the district court, viz : When the alleged banki^upt resides in the county of Albany Albany Evening Journal,'and the Albany Argus. Allegany Angelica Reporter, and the Cuba True Patriot. Broome Binghamton Daily Republican, and the Binghamton Democrat. Cayuga Auburn Daily Advertiser, and the Northern Christian Advocate. Cattaraugus Cattaraugus Republican, and the Cattaraugus Union. Chautauqua Jamestown Journal, and the Mayville Sentmel. Chenango Telegraph and Chronicle, and the Chenlingo Union. Chemung Elmira Daily Advertiser, a,nd the Elmira Daily Gazette. Clinton Plattsburgh Sentinel, and the Plattsburgh Republican. Cortland Gazette and Banner, and the Cortland County Democrat. Delaware Delaware Republican, and the Delaware Gazette.. Erie * Buffalo Commercial Advertiser, and the Buffalo Daily Courier. 298 Appendix IL Essex Essex Covinty Bepublican, and the Elizabethtown Post. Franklin Malone Palladiuih, and the Franklin Gazette. , Fulton and Hamilton Johnstown Independent, and the Fulton County Democrat,. Genesee Batavia Advocate, and the Spirit of the Times. , Herkimer Journal a»d Courier, and the Herkimer County Democrat. Jefferson '. Northern New York Journal, and the Watertown Re-Union. Lewis ' Journal and Republican, and the Lewis County Democrat. Livingston Western New York Advertiser, and the Union and the Constitution. Madison Republican, and the ' Oneida Observer. Monroe , '. Rochester Daily Union and Advertiser, and the Rochester Daily Democrat. Montgomery Montgomery County RepubUcan, and the Montgomery Democrat. Niagara Lockport Uniouj and the Lockport Journal. Ontario Ontario Repository and Messenger, and the Geneva Courier. Oneida Utica Morning Herald, and the Utica Daily Observer. Oswego Oswego Commercl Advertiser & Times, and the "^ Oswego Palladium. Onondaga , Syracuse Daily Standard, and the ^ Syracuse Daily Courier and Union. Otsego , Otsego Republican, and the Freemen's Journal. Orleans Orleans American, and the Orleans Republican. Rensselaer Troy Daily Times, and the Troy Daily PresS^. Schoharie "S^choharie Republican, and the Schoharie Union. Schenectady Schenectady Daily Union, and the Evening Star. Saratoga ^ Saratogian, and the Saratoga Sentinel. Bankruptcy Rules. 299 St. Lawrence ., Courier and Freeman, and the Ogdensburgh Advance Seneca Seneca County Courier, and the Seneca Observer. Steuben Canisteo Valley Times, and the Steuben Farmers' Advocate. Schuyler . , Havana Journal, and the Watkins Independent, or in the Schuyler County Democrat. Tioga Oswego Times, and the Oswego Gazette. Tompkins . .- Ithaca Journal, and the ' Ithaca Democrat. Washington ;..... Salem Press, and the Sandy Hill Herald. Warren Glen's Falls Messenger, and the Glen's Falls Republican. Wayne Lyons Weekly Republican, and the Wayne Democratic Press. i Wyoming New Yorker, and the ' Democrat. Yates Penn Yan Express, and the Penn Yan Democrat. The warrants issued by registers directing notices of the first meeting of creditors shall direct the publication of such notices in the two designated papers of the county in which the bankrupt so resides, unless the register shall, for 'special reasons relating to the residence of the bankrupt or his creditors, deem it more suitable, in lieu thereof, to publish the same in the newspapers designated in an adjoining county, in which case the register may direct such publi- cation in such adjoining county. Such warrants shall, unless other- wise .specially ordered, direct th^t such notices shalj. be published twice in each of the two selected papers. In any case, where the circumstances require it, such publication may be made in other papers by the special order of the court or judge. Due proof of the publication of such notices shall be furnished to the marshal, officer or party directing and paying for such publica- tion, and such proof shall be filed with the papers oi* proceedings to which they particularly relate. The fees of printers for making such publication and furnishing 300 Appendix IL the proof thereof are those prescribed by the act of Congress of the 26th of February, 1853, viz : forty cents per folio for the first inser- tion, and twenty cents per folio for each subsequent insertion ; but, as these rates are not considered remunerative, and publishers have declined to publish bankrupt notices at such rates, messengers and assignees are authorized, in cases where publishers decline to pub- lish such notices for the fees prescribed by act of Congress, to allow and pay, if necessary, the fees allowed by the laws of the State for the like- publication of similar notices in legal proceedings under the laws of the State. Notwithstanding the provisions of this rule, the court, in cases where, by accident or inadvertence, and without intention to disre- gard the rule or omit |;he prescribed notices, a different but substan- tially equivalent publication has been made, will exercise its dis- cretion in waiving any technical irregularity, and acting upon a notice published in good faith, and giving proper information to all parties interested, although not published in strict conformity to this rule. The following additional rules have been adopted : 39. Whenever a petition, under section ll of the bankrupt act, shall/ be referred to a register in bankruptcy, and whenever, in a case of involuntary bankruptcy, an order shall be made upon an adjudica- tion in bankruptcy referring such case to a register, the clerk shall advance to such register, on account of his fees, chargeable to the petitioner, the sum of twenty-five dollars out of the fifty dollars deposited with the clerk under section 47 of the bankrupt act. Whenever a detailed statement of his fees so chargeable shall be made and filed by the register, showing that the aggregate amount of the same exceeds the aggregate of the advances made on account thereof, the clerk, if requested by the register, shall make further reasonable advances to him on account of such fees.until'the amount so deposited and all interest received by the clerk thereon shall be exhausted ; and whenever the aggregate of the. fees of the register, chargeable to such petitioner, shall equal or exceed the said sum of fifty dollars, all such fees in exbess thereof, and all subsequenffees of such register, so chargeable to such pe'titioner, shall be paid or secured as _provided for by General Order No. 29. Bankrvptct Rules. 301 Within forty days after the proceedings in a case referred to a register, as aforesaid, shall be finally closed, such register shall make, under oath, and file with the clerk, a detailed statement of his fees charged or chargeable to or against the petitioner in such case, and of the sums advanced or paid to him by the clerk, or by or on behalf of the petitioner, on account thereof ; and he shall within ten days thereafter pay over to the clerk, so much of the moneys- so advanced as is not required for the payment thereof. Such statement shall be made in and relate to such case only, and shall be so prepared, as a separate paper, that it may be made a part of the record in such ease ; and it is recommended to registers to make and file, within tl^e first tea days of every calendar month, the statements above required, in all cases olc sed during the preceding month. Whenever it shall satisfactorily appear from any such statement that there is a balance due to said register for fees so chargeaJJle as aforesaid, the clerk shall, on demand, pay such balance, or so much thereof as the residue of the fifty dollars so deposited by the peti- tioner, and the interest received by the clerk thereon, will pay of the same. 40. When in a case of voluntary bankruptcy the petitioner owes debts as a partner, and desires to obtain a discharge, which shall, in form, be a discharge from his debts as such partner, as well as in his indi- vidual capacity, he shall, in his petition, and in the proper schedule thereto annexed, or in proper amendments thereto, state the name or names of his partner or partners, and also the firm name of such copartnership, and whether the copartnership still subsists ; and shall designate the debts owing by him as a member of such copartnership as partnership debts. He shall also in like manner set forth in his inventory, the joint property, rights, credits and estate (if any) of such copartnership, and the location, situation, &c., thereof, as required by the bankrupt act. 41. In order to save^unnecessary expense and labor, the registers will, when practicable, include in a single certificate copies of the memo- randa of all their proceedings in the same case, upon the same day,, which are required to be forwarded to the clerk, under the provisions of the bankrupt act anii of the general orders ; and they will send 302 Appendix II. no certified copy of memorandum, or of docket' entry, other than .those required by the said act or orders. m. ■ There shall be added to the adjudication of bankruptcy, in an involuntary bankruptcy case, as in form No. 58, an order referring the case to one of the registers in bankruptcy, to take such proceed- ings therein as may be necessary. 43. The notice in writing "of the aeceptahce of the trust, which is required to be given by an assignee in bankruptcy, may be given to the register "having charge of the case, who will transmit' the same to the clerk of the court, with the other papers in the case, as re- quired by the 7th general order. 44. Every assignee in bankruptcy, if required by the register having the case in charge, shall give a bond, with a sarety or sureties, as provided for in the 13th section of the bankrupt act j the form and penalty of such bond, and the sufiSciency of the surety or sureties therein, to" be approved by such regist6r. It shall be the duty of the registers to require such bond, upon the request in writing of any creditor who has proved his claim, or whenever it shall otherwise appear to be proper to do so. 45.. In order to guard against the loss or destruction of the evidence of an assignment, every assignee, on receiving an assignment of an estate in bankruptcy, in which the assets are sufficient to justify the expenditure, shall send or deliver such assignment to the clerk of the court, who shall m^ke a true copy thereof, and certify the same under his hand and the seal of the court, and send or deliver said certified copy to such assignee ; and the original assignment shall then be placed and kept on file with the other papers in the case. 46. Whenever it shall appear by the inventory of the bankrupt or otherwise, that he has real or personal property, or choses or rights in action, or any other legal or equitable interests, beyond the limita Bankruptct Rules. 303 of the United States, or debts due to him from any person residing abroad, the register having his case in charge may, and, on the request of the assignee shall, require the bankrupt to execute and acknowledge in due and proper form, a full assignment thereof, and of all his other property, real and personal, equitable interests, chores in action, and rights df action of every name, nature and kind what- • soever, and wherever the same may be situated. And if the bank- rupt shall neglect or refuse to execute such assignment, he may, on due application to the court, be compelled to do so by process of attachment or other proper proceeding. 47. It shall be the duty of pvery assignee within fifteen days after receiving an assignment of the estate of any bankrupt, to set apart from the property of such bankrupt such part thereof as is specially excepted by section 14 of the bankrupt act; and also such other articles and necessaries as shall be designated by such assignee (having reference to the family cojiditibn and circumstances of the bankrupt), as being proper to be set apart for the use of the bank- rupt, as provided for by said 14th siection. And such assignee, within five days thereafter, shall file with the clerk of the court a full re- port of his 'decisions and doings in this respect,, and of the articles set off to the bankrupt by him, with the estimated value of each article, as required by the 19th general order ; and in which he shall also state whether there remains any property or other assets, or valuable thing for the benefit of the creditors of the bankrupt. The bankrupt, or any creditor who has proved his debts, may except to the said report or any part thereof, by stating each of his objections thereto in pfoper form, and in a separate article, and filing the same with the clerk of the court within twenty days after^the filing of such' report ; and if not so excepted to, the report shall stand con- firmed. If so excepted to the effect thereof, and of the designation and the setting apart aforesaid, shall be suspended until the order of the court upon such exception shall modify or confirm the said report. For his miscellaneous services, for which no other fee is proyided, and for designating and setting apart fsuch property, and making and filing his report thereof, , within the time, and in the man- ner above prescribed,' the assignee shall be entitled to a fe'9 of 304 Arpendtx II. five dollars ; and for travel (when absolutely necessary for the pur- pose of designating and setting apart such property) six cents per mile for each mile going|and returning ; he shall also be allowed ten cents per folio for each 'folio of one hundred words contained in such report. Such fees shall be paid by the bankrupt unless assets suffi- cient to pay the same remain in the hands of the assignee. 48. Whenever, by reason of the sickness, necessary absence or other disalility of the register in bankruptcy having any case or matter in charge, he shall be unable to hear the same, or to proceed therein at the time and place appointed therefor, the same may be adjourned by him by a written notice and order stating such adjournment, and the time and place to which it is made, and posting the same on the outer door of the office or room in which such hearing or proceeding was intended to be had. 49. The oath required by the 29th section of the bankrupt" act to be taken and subscribed by ^ bankrupt before his discharge can bfe granted, shall follow the language of such section as near as may be, and shall be substantially in the following form, viz : No. DiSTBiCT Court of the United States, For the Northern District of New York. In the.mattbb op A. B. A Bankrupt. NoHTHEEN District of New Yoek, ss.: In Bankruptcy. i A. B., the petitioner above named being duly sworn, deposes and says, that he has not willfully sworn falsely in his affidavit annexed to his petition, schedule or inventory, filed in this case, or upon any examination in the course of the proceedings in bankruptcy, in relation to any material fact concerning his estate or his debts, or in any other material fact ; that he has not concealed any part of his estate or effects, or any books or writ- ings relating thereto ; that he has not been guilty of any fraud or negligence in the care, custody or delivery to the assignee of the property belonging to him at the time of the presentation of his petition and inventory, except- ing such property as he is permitted to retain under the provisions of the bankrupt act passed by Congress, approved March 2, 1867, and entitled Bankruptcy Rules. 305 " An Act to Establish a Uniform System of Bankruptcy throughout the United States : " that he has not caused, permitted or suffered any loss, waste or destruction thereof; that he did not within four months before the commencement of such proceedings, procure his lands, goods, money or chattels, or any part thereof, to be attached, sequestered or seized on execution ; that since the passage of the said act he has not destroyed, mutilated, altered or felsified any of his books, documents, papers, writ- ings or securities ; that he has not made or been privy to the making of any false 'or fraudulent entry in any book of account or other document, with intent to defraud his creditors; that he has not removed or caused to be removed any part of his property from this district with intent to defraud his creditors ; that he has not given any fraudulent preference contrary to the provisions of the said act, or made any* fraudulent payment, gift, trans- fer, conveyance or assignment of any part of his property, or lost any part thereof in gaming; that he has not admitted a false or fictitious debt against his estate ; that he has not had knowledge that any person has proved a false or fictitious debt against his estate, without having disclosed the same to his assignee within one month after such knowledge ; that he has not, whilst being a merchant or tradesman, failed, subsequently to the passage of this act, to keep proper books of accoxmt ; that he has not, nor has any person in his behalf procured the assent of any creditor to the discharge, or influenced the action of any creditor, at any stage of the proceedings, by any pecuniary consideration or obUgation; that he has not, in contMnplation of becoming bankrupt, made any pledge, payment, trans- fer, assignment or conveyance of any part of his property, directly or indi- rectly, absolutely or conditionally, for the purpose of preferring any cred- itor or person having a claim against him, or who was or might be under liahiUty for him, or for thei purpose of preventing the property coining into the hands of the assignee, or of being distributed under said bankrupt act in satisfaction of his debts ; that he has not been convicted of any misde- meanor under said act, or been guilty of aijy fraud whatever, contrary to the true intent thereof; and that he has not done; suffered, or been privy to any act, matter or thing, specified in the said bankrupt act, as a ground for withholding a discharge, or as invaUdating a discharge if granted A. B. Subscribed and sworn before me by the above "i named A. B., at in the State of > this day oi 186 . 5 50. A creditor opposing the discharge of a bankrupt, shall set forth, succinctly and clearly, in separate articles, as his specification of the grounds of his opposition, each of his objections to such discharge, with the grounds thereof, if such objections raise only questions- of law or practice, in respect to the substance, form, sufficiency, regu- larity or effect of the petition, schedule or inventory of the bank- rupt, or of the proceedings had thereon. If his opposition to a dis- charge, is founded upon a denial of any statement contained in such petition, schedule or inventory, or upon the alleged existence of any fact not stated therein, or not conclusively appearing upon the records 20 306 . Appendix 11. of the court, he shall set forth in writingj- in distinct and separate articles, each of such objections, and the facts on which it is based, according to his best knowledge, information and belief,' and, with requisite certainty of time and place ; and shall also set forth in like manner, and in clear and express terms, his denial of each material statement controverted by him, so that distinct and separate issues may be readily framed thereOn ; and such allegations and denials shall be verified by affidavit as provided for in rule 15. The bankrupt, if he desires to deny any of such new allegations, or to avoid the effect thereof by. the allegation of new matter, shall make and verify his denial's and allegations in the manner above pro- vided ; and such new allegations maly in like manner be denied or avoided by the opposing creditor. 51. Whenever it shall become necessary to adjourn the first meeting of creditors under the 12th section of the bankrupt act, and to give a new notice, as provided foi^ in that section, it shall not be neces- sary to serve such new notice upon creditors who were duly and prqperly served with the notice of meeting required by the warraiit issued under the 11th or the 42d sections of the act, or to publish notices of the adjourned meeting, if the notices directed by such warrant were duly published as required by such warrant. It shall be sufSoient, in case such notices were not so published, to publish such new notices twice in each of the newspapers designated in such warrant. If proper notices were not served upon any, creditor, it shall be sufficient to serve the new notice personally, or by mail, as may be directed by the register, on such creditors as were not prop- erly served with the notices directed by the warrant. The said new notices so to be published and served shall severally contain sub- stantially the same statements as were contained in the notices directed by the warrant, except that they shall state the meeting to be held to.be "an adjourned meeting," ai)d that it will be held in pursuance of the 12th section of the bankrupt act. This may be done by inserting in place qf the "a" before the word "meeting" in said notices, the words "in pursuance of the 12th section of the bankrupt act, an adjourned." Such new notices must be served and such publication of new notices completed at least twelve days before the day fixed for the holding pf such adjourned meeting. Bankruptcy Rules. 307 52. Witnesses or persons subpoenaed or ■ summoned to attend before the court, or before a register, shall be paid or tendered their fees for their necessary travel and for one day's attendance, at the rate allowed by act of Congress, or no proceedings to compel obedience to such subpoena, or summons can be taken against them. 53. Every assignee shall be allowed fifty cents for drawing a notice of dividend, or a notice of the meetings of creditors required to be given or published under the 17th section of the bankrupt act, or a notice of his application for a settlement of his a'ccounts and for a discharge of hjs liability as assignee, and the like sumi for a copy thereof for publication and attending to the publication ^hereof, ifl each of the newspapers in which he is required to publish the same. He shall also be allowed the same sum for a single copy of such written notice of a dividend, which he shall post in his office or place of business. And he shall not be required to give any other written liotice of a dividend under said ITth section ; — the register being required, by the 27th section of the act, to " forward by mail to every creditor a statement of 'the dividend to which he is entitled." The notice of dividends to be posted as aforesaid, shall be addressed substantially as follows :^— " To each and every creditor of A B ■ — , a bankrupt." 54. Nothing in these jrules contained shall require any register, mar- shal, messenger, clerk or assignee to render any service or make any disbursements, unless the feee therefor or the amount of such dis- bursement's shall have been previously advanced or secured to him. 55. All applications for the calling of a second or a third meeting of creditors, made after the expiration of three months from the date of the adjudication in bankruptcy in the case in which such applica- tion shall be made, shall be made to the register in bankruptcy to whom such case shall stand referred, and by the assignee in bank- ruptcy as required by thfe 27th and 28th sections of the bankrupt act ; ai)xl hereafter no order for the second and third meetings of creditors shall be Inade by the District Court unless the application 308 Appendix 11. for the discharge of the bankrupt shall be made within three months from the time the applicant was adjudged a bankrupt. Such order, when made by a register, shall be signed by the register making the same, and the signature and the seal of the clerk shall not be required to be affixed thereto. 56. Whenever the fees of the register in bankruptcy, to whom any case has been referred, shall have been duly taxed by the clerk, after service of eight days' notice of such taxation, with a copy of the bill of such fees, upon the attorney of the bankrupt, or upon the bank- rupt himself if ie conduct the proceedings in person, and on the assignee pf such bankrupt, and no proof of the s'eryioe of a proper notice of a motion for a retaxation, or of an appeal from such tax- ation shall have been filed with the clerk within six days after the filing of such taxed bill ; or, whenever a detailed bill or account of such fees shall be filed with the clerk accompanied by an agreement in writing thereto annexed, signed by such bankrupt, or his attorney, the assignee of such bankrupt, and the register presenting such bill, by which the amount of such register's fees shall be fixed and, agreed upon, the clerk shall be and he hereby is authorized and directed, without any special or further order, to pajt to such register the amount due him for such fees (after deducting the advances and payments already made on account thereof), or so much thereof as can be paid by the moneys deposited with the clerk as security for such fees and the interest that has accrued thereon, on being fur- nished by such register with his proper receipt. or voucher therefor, as a payment or part payment of such fees. Provided, nevertheless, that no moneys shall be paid in any ca^, under the prdvisions of this rule, unless the register entitled to the same shall have filed in the clerk's office the papers in such case, which he is required to file with the clerk by the 7th General Order in bankruptcy ; and provided, further, that no moneys shall be so paid without the taxation of the register's bill of fees in any case, when any creditor who has proved his debt shall have filed with the, clerk a notice that he requires the fees of such register to be duly, taxed. 57. It shall be the duty of the register in bankruptcy, to whom any eases in bankruptcy shall have been referred, to require proper Bankrvptct Rules. 309 security from the assignee or assignees therein, whenever the amount of assets likely to come to the hands of the assignees or any other cause may render such requirement necessary or proper ; to exercise a general supervision over the acts and doings of such assignees in order to secure a proper execution of their duties, and the prompt and proper deposit or disposition of all moneys or other assets which may come to their hands as such assignees j to ascertain, by suitable inquiries from time to time, whether security or additional security should be required of any assignee, or any deposit bank, and the amount thereof, and to report the same whenever necessary, to the district judge for his action; to require all assignees to take proper measures for the declaration and payment of proper ^dividends to creditors, an J for the passing and final settlement of their accounts before such registers in due time and form ; to see that all suitable and proper action is had and returns made and filed, by the different ofiScers of the court and assignees in such cases ; and,_ generally, to take all such action in each case referred to them as may be within their power, and shall appear to be necessary to promote the interests and secure the just rights of creditors, or to secure the filing, at the proper time, of all the process, pag^grs, and proceedings in such case, which ought to be placed upon the files of the court. 58. Jlvery creditor appearing to show cause against the discharge of a bankrupt, shall furnish to the clerk a notice or statement in writ- ing, signed by him or by his attorney, that he appears in opposition to- such discharge, and desires that his appearance for that purpose may be entered ; and the filing of such notice or statement at the time fixed for showing cause, shall be a sufficient entry of such appearance. 59. The First National Bank of the city of Buffalo is, in pursuance of general order No. 28, in bankruptcy, designated as a depository in which all moneys which have been, or shall hereafter be paid into court, in the course of any proceedings in bankruptcy, shall be de- posited ; the clerk of this court shall so deposit any such moneys which have been, or shall hereafter be received by him. But this rule shall not apply to the case of moneys deposited by assignees under existing rules. 310 Appendix II. EULES Op the Ciecuit Couet' of 'the United States foe the SOUTHEEN DiSTEICT OF NbW YoEK. The following rules, numbered from Ijio 136, both inclusive, were adopted on the 28th of April, 1838, and went into effect on the first Monday of August, 1838. The other rules were adopted at the dates affixed to them respectively. Common Law Rules. 1. Suits relating to the title or possession of land (including all real actwris), are to be the same in form, in this court, and to be con- ducted by like processes, as are now used in the. Supreme Court of ■ the State of New York. ^ ' a. Other actions at law shall be commenced by capias ad respoTiden- dum, or summons, in which shall be expressed the true cause of action ; except that bills of privilege may bfe filed, according to the usual course of the court, at the election ,6f the plaintiff. 3. Writs and process must be signed and sealed by the clerk, and have the name of the attorney At whose instance they issue, endorsed upon them. Usually, they are to bear test the day they are issued, and may be returnable the same day, or any day thereafter, (Sundays ex- cepted,) in term, or vacation; but alias a.nd: pluries writs maybe tested on, the return dsty of the next preceding process; and writs of execution, attachments for contempt of court, or non-payment of costs, writs of error, mandamus or inhibition, and writsiof recogniz- ance of bail in civil causes, must be returnable in term. When bail is to be charged, the capias ad satisfaciendum shall be placed in the marslial's office at least six days before the return day thereof. R ULES—SO VTHERN DiSTBIOT. 3 ^ 4. The defendant may be held to bail, of course, in actions of debt, covenant and assumpsit, where the suit is on an obligation or agree- ment to pay money, and t^e writ expresses the cause of action and the true amount due ; bail may be taken to double the amount stated in the writ, provided,, however, that the addition to such amount shall not, in any case, exceed one thousand dollars. In all other cases, (except when regulated by statute,) bail shall not be exacted without an order of a judge endoi'sed upon the writ. ■ ^* If the writ is issued for a sum greater than is justly due, the plaintiff shall pay all costs incurred. in proceedings to obtain a miti- gation of bail. 6. Eules that the marshal return process, or bring in the body, shall be rules of ten days, " or that he show cause, at the expiration of that time, before one of the judges at chambers, why an attachment should not issue against him ;" and, in default of sufficient cause shown, an attachment may be ordered, and such attachment may be ^ proceeded upon, before either of the judges, and the marshal be committed or discharged upon his order ; all ^he proceedings shall be filed, and a rule of court be entered upon the final order of the judge, in conformity thereto. 7. In bailable suits, ■ the defendant shall appear, and put in bail to the action, and give due notice thereof, within ten days after the return day 'of the procefes served upon him ; or, if the suit was removed to this court from a State court, within ten days after filing a copy of the process .in this court. 8. The plaintiff shall except to bail and give notice thereof, within four days after notice that the same has been put in, and, in default thereof, such bail shall be deemed perfected. 9, Within four days after notice of exception,^ the bail shall justify or new bail be put in and perfected ; and, if bail justify at any time 312 Appendix II. subsequently, such subsequent justification shall not affect any pro- ceedings on the bail bond, or against the officer, which may have been instituted, unless upon the special order of a judge, and on such terms as he shall impose. 10. Bail may justify before the clerk, or one of the commissioners to take afiBdavits, &c., appointed by .this court, with a right of appeal to one of the judges at chambers, and thence to the court. 11. ' The service of a declaration before bail shall be put in, orthe acceptance of a plea before the time of exception to bail shall have expired, shall not be construed te be a waiver of bail, or of justifica- tion. la. ' ^ If bail to the- officer beconles spbcial bail, and the plaintiff except thereto, he may nevertheless take an assignment of the bail bond, if bail to the action is not duly perfected. 13. The following shall be terms on which proceedings in the suit on the bail bond shall be stayed, or the attachment against the officer set aside : ' 1st. Putting in and perfecting bail above, and paying the costs of the suit on the bail bond, or of the attachment and proceedings thereon and of the motion, unless a full compliance with j)hese terms shall iiave been previously offered j 2d. Consenting to pl^ce the cause in the same condition of pro- gress as if bail had been duly put in and perfected'. And" if, by the default in putting in bail, a trial shall have been lost, then the suit on the bail bond, or proceedings on attachment, shall stand as security, with such leave to proceed thereon, as the judge may allow. N 14. The appearance of the defendant endorsed on the capias shall be a sufficient appearance; where special bail is not required. 19. All rules, which, by the practice of this court, either party is entitled to enter without special application to the court, may be 1 RvLES— Southern District. 3^3 : ■■ i : ; entered as well in vacation as iii term, and shall have the like effect as if entered in term. 16. The defendant having perfected his appearance, may, at any time thereafter, take a rule against the plaintiff, "to declare within twenty days after service of notide of the rule, or he non-prossed." 17. The rule to plead, answer, or join in demurrer, shall be a rule of twenty days after service of a notice of the rule, and of a copy of the pleading to be answered ; except the rule to join in demurrer to a plea in abatement, which shall be a rule of four days only. 18, In suits commenced by scire facias, the service of the writ shall be personal on the party to be summoned, except in proceedings for the revival of a judgment, or continuance of other liens. 19. 1 A scire facias upon recognizance, or to revive a judgment, or con- tinue any other' lien, shall be served by personal summons of the defendant, or, if he cannot be found, by le^rving a copy at his resi- dence or usual place of business ; and the marshal shall return the manner of service. If the defendant has no known residence or place of business within the district, the plaintiff may proceed as heretofore, by two writs of scire facias. But the return of "nihil'' by the marshal shall also state the reason for not making the service as above directed. SO. Upon the return of " scire feci" to a scire facias, or "nihil " to an alias scire facias, the rule ^hall be, that the defendant appear and plead in twenty days, or judgment ; l)ut notice of the rule to appear need not be served ; nor notice of the rule to plead, unless the defendant appear^ »!• When there shall have been a judgment of respotideas ouster, on demurrer to a plea in abatement, the plaintiff having served the - defendant with a notice of the judgment, may, after four days from the day of service of such notice, cause the default of the defendant in not pleading to be entered. 314 -4 PPENDIX 11. ,22. After default entered, the party shall not be bound to accept a ideclaratioji, pleading, or answer of course, upless the opposite party shall file an affidavit of merits, and serve a copy, pay or offer to pay the costs of the default, and consent to place the cause in the same condition as if the pleading had been duly filed and served. 23. : The party in whose favor a default has been entered, may, at any day after, enter a rule for such judgment as is to be rendered by law by reason of the default; and, in all actions sounding in dam* ages, after judgrdent for the plaintiff by default, or on demurrer, the damages shall be assessed on writ of inquiry ; the damages on notes, bills, or specialities fot the payment of money, shall be assessed by the clerk. ,24. The caption of declarations and all subsequent pleadings may be of the return day of the writ, and need not be stated as of any term of the court. All_ pleadings must ba signed by an attorney of ths Court. ' 25. ' , No prder to show cause of action, mitigate bail, or for a bill of particulars, will be allowed, except upon affidavit showing probable cause therefor ; nor unless' the order to show tsau'se is applied for within four days after the arrest ; and for particulars, within four days after the pleading upder which it is demanded, is filed and served. 26. In actions founded upon contract, the defendant, if he shall appear and plead the, general issue, shall annex to his plea, and file there- with, an affidavit that he has a good and substantial defence upon the merits, as he is advised by his counsel and verily believes, together with a certificate of counsel that he so advised the party ; otherwise, such plea may be treated as^a nullity. 27. Special pleas or demurrers to pleadings- shall be accompanied by a certificate of a counsellor of this-pourt, that in his opinion, the special plea or demurrer is' well founded; otherwise, the plea or demurrer may be treated as a nullity. ' Rules— Southern District. 35^5 28. If a plea in abatement is not serYed within ten days from the day of service of a notice of the rule to plead and copy of the declaration, the plaintiff shall not be held to receive the same without a special order of the court or a judge. 29. The plaintiff may, at any time before default for not replying shall be entered, if the plea shall be a special plea in abatement, or within twenty days after service of a copy of the plea, if it shall be the general issue, amend the declaration ; and the rule to plead, which may have been taken against the defendant, shall then be deemed to be from the day of the service of a copy of the amended declara- tion; and, in like manner, where there shall be a demurrer to a declaration or other pleading, not being a plea in abatement, the party against whom the demurrer shall be taken, at'any time bef6re default for not joining in demurrer is entered, may amend the plead- ing demurred to ; and, in the§e cases, the respective parties may amend of course, and without costs^ but shall not be entitled so to amend more than once. Nor shall any amendment be made without first entering in the book of common rules, a rule for'the amendment, and either amending the pleading on file in a distinct manner, show- ing the amendment, or filing a copy of the amended pleading. 30. If the defendant shall plead the general issue, and if the plaintiff shall not, within twenty days after service of a copy of the plea, amend the declaration, or, if either party shall, in pleading, in any degree after the plea, tender an issue to the country, and if the opposite party shall not demur to such pleading within twenty days after service with a copy thereof, the cause shall, in, each of these cases, be deemed to be at issue at the end of such twenty d^ys. 31. All notices shall be in writing ; and, unless the party to be served therewith be an attorney of this court, residing in the city of New York, or shall have employed an attorney of this court, it shall be sufficient service upon him to put up anynotice, declaration, or other pleading or paper, in a conspicuous place in the clerk's office ; or the same may be given to the party. But, if notice of a retainer shall be 316 Appendix II. received after a copy of a declaration and notice of rule to plead shall have been put up in the clerk's office, and before the defendant's default has been entered, a copy of the declaration and a notice of the rule to plead, stating the time when the declaration and notice, were put up in the clerk's office, shall be served on the defendant's attorney; and the time of pleading, in such case, shall be, from the day of serving in the clerk's office, deducting the time that may have elapsed between the receipt of the notice of retainer and such service on the defendant's attorney. 3». After notice of retainer, all notices, pleadings and papers shall be served on the attorney ; provided, however, that where a defendant is returned in custody, and remains in jail, and has retained no attorney, a copy of the declaration and notice of rule to plead, shall be delivered to such prisojier, or to the officer or keeper of the jail in whose custody he is ; and, provided further, that where the object is to bring a party into contempt for disobeying any rule or order of court, the service shall be oil him personally, unless other- wise especially ordered by the court. 33. When an attorney of this court, who does not reside in the city of New York, has no agent in this court, but has one in the Supreme Court of the State, residing in this city, he shall be considered the agent of such attorney in this court ; and, if there is no such agent, service of all nbtices and papers directed to the attorney, by affixing the same in a conspicuous place in the clerk's office, shall be sufficient. 34. Service on an attorney's agent shall be as valid, in all cases, as if made on the attorney himself. The appointment of agents in- this court shall be in writing, signed :by the attorney and filed with the clerk, who shall keep a catalogue of the same, with the attorneys' names alphabetically arranged. , 35. Notices of trial, argument, hearing, or motion, are to be for the first day of term ; if, however, sufficient cause is shown therefor, an order may be obtained from the court or • a judge, permitting such notice to be given for any other day of term, including times to which the court may stand adjourned. E ULES—^SO UTHERN DISTRICT. 3^7 36. Notices of justification of bail, notices of motions, argument, or hearing, shall be served at least four days before the time of such justification, hearing, &c., and eight days when the same shall be served pursuant to tl^e 31st and 34th rules of this court. Nptices ' of trial shall be at least eight days. 37. The day on which any rule shall be entered, or order, notice, pleading, or paper served, shall be - excluded, in the computation of the time for complying with the exigency of such rule, order, notice, pleading, or paper ; and the day on which compliance therewith is required, shall be included'; except where it shall fall on a Sunday, in which ease the party shall have the next day to comply therewith. 38. The attorney of either party may give notice of argument of issues in law, or on writs of error or cases made, and set them down for hearing, and either party shall be at liberty to bring them on when called upon his notice, and if the other party does not appear, he may take such judgment or order as he is entitled to thereupon, by default. 39. Motions in arrest of judgment ; to set aside nonsuit, verdict or inquisition, otherwise than for irregularity only ; to withdraw plead- ings from the files, or alter the minutes of court ; to quash indict- ments ; for a new trial ; - in relation to writs of error, mandamus or certiorari ; to stay proceedings beyond a stated term ; or for the judgment of the court on issues of law or case made ; or for the relief of special bail after they are fixed at law, must' be^made before the court in term. 40. All other motions may be made before either of the judges out of court. 41. Commissions to take testimony may be taken out by either party after suit brought. Four days' notice shall be given in writing to the opposite party, or his attorney, of the intention to sue out a commission, together 318 Appendix II. with the names of 'the commissioner or commissioners, witness or witnesses when known, and residence and occupation of commission- ers and, witnesses when known, and of the facts expected to be proved. 43. At the expiration of the four days, a rule may be entered of course, in the common rules, ordering such commission, unless pro- ceedings are previously stayed by a judge, or unless the attorney of the opposite party file a written consent to admit on the trial, that the witness named will swear to the facts stated. 44. All commissions must be issued under the seal of the court, and signed by the clerk, with the name of the attorney moving it sub- scribed thereto. They may be directed to one commissioner or three ; but no costs shall be taxed for the services of more than one commissioner, unless both parties unite in requiring a greater num- ber; 45. After a commission is actually issued, an^d in a train for execution, proceedings may be stayed in the cause by a judge, on proper cause shown, a reasonable time for the execution and retuijn thereof. 46. A commission may be moved for before the court, or a judge out of court (under special circumstances to be allowed by the court or judge), and the proceedings in such case are to be, conformable to the rules of this court and the district court applicable thereto. ,47. A commission may be executed by a majority of the commission- ers named therein, df more than one, and shall be accompanied by written or printed instructions, directing the manner of its executiou and return. 48. • , The interrogatories for the direct and cross-examination shall be annexed to the commission, and in case j;he parties disagree respect- ing them, be presented to a judge for his allowance at one time ; a copy of the direct interrogatories, with a notice of the time of pre- senting the same fcjr allowance, shall- be served eight days before such time, and copies of cross-interrogatories four days after such service. E ULES^SO UTEERK DISTRICT. 319 49. Witnesses not named ia tlie commission may be examined by the commissioners, and if the depositions are objected to on trial, the court will decide upon the sufl&ciency of the excuse for not naming them ; all objections to the depositions for this cause shall, however, be deemed waived, unless notice in writing be given thereof to the opposite party -vyithin four days^after the commission is opened. 50. Commissions executed within the United States may be returned by m£»l, addressed to the clerk, and having the title of the cause marked upon the envelope ; and those executed out of the United States, may be returned in like form, by the usual mode of trans- mitting letters between such places and the city of New York. 51. Motion for judgment, that the suit be dismissed for not going to trial, may be made after the discharge of the jury, in -^he same term for which notice of trial was given, or at the next term ; and the plaintiff shall not be permitted to stipulate to try the cause at the next term unless upon sufficient excuse, to be approved by the court, for not having proceeded to trial ; and if the costs ordered to be paid on permission to stipulate, be not paid within twenty d?iys after such permission, the defendant may, after demand and service of a certified copy of the order to pay costs, and of the taxed bill, on filing an affidavit of such demand and service, and of non-payment, enter judgment that th« suit be dismissed, in the same manner as if no permission had been given. 52. Each judge shall be furnished at the argument with a copy of the case, bill of exceptions, demurrer to evidence, demurrer book, or special verdlict ; or, on motion for a new trial upon newly discovered evidence, with copies of the affidavits or papers whereon the motion is founded or opposed ; or, if the motion be in arrest of judgment, with copies of the, pleadings, or so, much thereof as may Be neces- sary, together with the points intended to be made by the respective parties. And copies of the affidavits and papers on which such motions are founded, shall be served on the opposite party four days befpre the day for which the motion is noticed. ' 320 Appendix IL 53. If, the plaintiff, at the commencement ox' the action, l?e, or, pend- ing the same, become a non-resident of this State, or if, on demand in writing by the defendant's attorney, notice of his residence shall not be given, the defendant may, upon proof of either such (jause, enter a rule of course, that the plaintiff give security for costs, witk- in ten days after service of notice thereof, or be non-prossed. 54. The security shall be a bond to the opposite party, filed in the clerk's office, duly executed by some sufficient person residing within the district, in the penalty of one hundred dollars (unless a larger penalty shall be directed by the court or a judge), with a condition, that, if the plaintiff shall discontinue his action, or it be dismissed or non-prossed, or if judgment shall pass against him therein, he shall pay all such costs as shall be adjudged or awarded against him in such action. The sufficiency of the security may be excepted to ; and, thereupon, such security shall justify before the clerk, within the respective periods, and in like manner, as is the practice with respect to special bail. And, on failure of giving such security, 6i in default of such justification, and on due proof of the service of notice of such rules, and of any sucb default, a judgment of Tum- j)ros may be entered.. 55. When a cause is noticed for trial or argument for the first day of the term, a notice thereof, with a note of the issue and of the plead- ings, and the attorneys' names, shall be delivered to the clferk on or before the Thursday next preceding the term. And the clerk shall, as early as the following day, have the calendar of causes to be tried, made up, arranging them according to the dates of their issues. And no cause shall be put upon the calendar, without the special order ' of the court, unless the note' of issue shall be furnished as is hereby required. 56. Where an action is pending in this court, and either party dies befpre final judgment, and the cause of action survives, the legal representatives of the deceased party may, on presenting letters tes- tamentary, or of administration, in open court, be admitted volun- tarily to come in and prosecute or defend such suit, as party thereto j R ULES—SO UTHERN DISTRICT. 321 the letters testamentary, or of administration, remaining deposited ia court during such term, to the end that any legal objection to the right of such representative to appear, may be taken. 57. The order admitting such party, unless assented to by the opposite party, shall be nisi, in the first instance, and become absolute if sufficient cause be not shown against it, within four days after notice thereof. 58. If such representative be appointed more than ten days before a stated term, an order may be entered nisi, in the common rules, authorizing him to prosecute or defend, and shall become absolute, if not vacated or suspended by order of a judge or the court, within ten days after service of a copy thereof on the attorney of the opposite party. 59. When such rule is entered out of court, the letters testamentary, or of administration, shall at the same time be deposited with the clerk, and so remain until the succeeding term, or until the rule becomes absolute, or is vacated, as before provided. 60. The clerk shall, fifteen days before a stated term (and as many days before a special, sessions, or adjourned term, as circumstances will permit, where fifteen days do not intervene), issue to the marshal a. venire, requiring him to summon twenty-four grand jurors, and thirty-six petit jurors. If the state of public business requires a greater number of petit jurors, a mandate shall be obtained from one of the judges, and be indorsed on the Venire, directing the addi- tion?.! number of jurors to be summoned, which shall then be re- garded as part of such venire. 61. All jurors residing out of the city of New York shall be summoned at least six days, and petit jurors residing within the city, four days, before the return day of the venire. 62. The venire shall specify the qualification of jurors : "Free and law- ful men, resident within the Southern District of New York, above the • 21 322 -4 PPMNOIX II. age of twenty-one, and under the age of sixty years,, each of whoiB shall have in his own name or. right, or in trust for him or his wife, a freehold in lands, messuages and tenements (or a personal estate, if resident within the city of New York), of the value of one hun- dred and fifty dollars, free of all reprises, debts, demands or incum- brances whatsoever." 63. The marshal shall annex to the return of every venire, a panel of jurors summoned, designating their names, residence and occupation, and at the request of any party indicted, or having a civil cause on the calendar for trial, the elerk shall furpish him with a copy of the panel. 64. Inquests in causes may be taken, out of their order on the calen- dar, at the opening of the court, on any day after the first day in term, provided the intention is expressed in the notice of trial, and a sufficient affidavit of merits be not filed, and a copy thereof served ; and when an inquest is regularly taken, the same shall not be set aside except on payment of the costs thereof, a;nd of opposing the motion. 65. Rules for final judgment shall be absolute from the time of entry, unless conditional in their terms ; and the party obtaining the same is entitled to proceed thereon instanter. 66. Proceedings upon judgments may be stayed, by motion to the court, or by order of a judge ; and a ease agreed or settled, or a bill of exceptions signed, will, per se, stay proceedings thereon. 67. Whenever it shall be intended to move to set aside a verdict,, except for irregularity, a case may be prepared by the party intend- ing the motion, and a copy thereof served on the opposite party, before judgment is rendered and entered upon such verdict, who may, within four days thereafter, proposei amendments thereto, and serve a copy on the party who prepared the case, and, if the parties cannot agree together in regard to such amendments, then, withia-. four days thereafter, either party may give the other notice to appear. Rules — Southern District. 323 within a convenient time, and not more than four days after service of such notice, before the judge vrho tried the cause, to have the case and amendments settled ; and the judge shall thereupon correct and settle the same, as he shall deem to consist with the truth of the facts ; but, if the parties shall omit, within the several times above limited, unless the same shall be enlarged by a jjidge, the one to propose am,endments, and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as prepared; and, if the party omit to make ^, case within the time above limited, unless the time shall be enlarged as .aforesaid, he shall be deemed to have waived his right thereto. 68. If judgment has been rendered upon a verdict, the party intend- ing to move for a new trial shall give four days' notice in writing to the opposite party, of any motion to stay execution thereon, and also of the petition intended to be filed pursuant to 18th section of the act of Septcrnber 24, 1789, unless a shorter time be allowed by the court or a judge. 69. Where exceptions to the opinions of the court are taken by either party on the trial of a cause, or there is a demurrer to evidence interposed, or a special verdict found, the party shall not be required to prepare his bill of exceptions at the trial, or his demurrer or state- ment of the evidence, or to put in form the special verdict, but shall merely reduce such exceptions to writing, or make a minute of the •demurrer to the evidence, and of the facts found specially by the jury, as the case may happen to be, and deliver it to the court ; or the court will themselves, at the request of either party, note the point, and the bill of exceptions, demurrer to evidence, and, special .verdict, shall afterwards be drawn up, amended and settled, within such times, and under the same rules and regulations, as are observed with respect to cases, 70. The same rules and regulations shall apply to cases made upon verdicts taken subject to the opinion of the court, and it shall be the duty of the party in whose favor such verdict shall be taken, to make and prepare the case. Where a caSe shall be made, with leave 324 Appendix 11. to turn the same into a special verdict, or bill of exceptions, the party shall not be at liberty to do either at his election, but the court may, if they think proper, prescribe the one which he shall adopt. 71. When a bill of exceptions shall be taken on the trial, the same may, before judgment, be used instead of a case,|]ou motion for a new trial, and notice of such motion, together with service of a copy of such bill of exceptions, shall operate to stay all further proceedings, until the decision of the court, p:i^ovided that proceedings shall not be longer stayed than if a case had been regularly made. 72. In cases of division of opinion between the judges on points of law, the court, at the instance of either party, will forthwith note such points in writing. 73. Either party may, within four days thereafter, serve on the other a statement, or certificate in writing, of such points, and also of facta in the case upon which the points arose, and, if no amendments are ■ proposed thereto within two days, such statement shall be filed and shall be engrossed by the clerk, and be certified to the Supreme Court, under the seal of this Court. 74. In cage of disagreement between the parties, the statement or cer- tificate shall be submitted to the court, and be settled by the judges as in the matter of a case, or bill of exceptions. 75. The like practice shall be pursued, in certifying a division of opinion in proceedings on indictments. 76. The placita of judgment records shall be of the day when issue was joined, or the default was entered, and need not be stated as of any term of the court. 77. Continuance by vice comes non misit breve, or curia advisari vult, are abolished in this court, and, instead thereof, an entry shall be Rules— Southern District. 325 made that the cause was duly continued until the time when the trial, judgment, or other act of the court therein, requiring an entry on the record, was had. 78. In the sale of real estate under execution issuing from this court, the marshal shall conform his proceedings to the direcUons of the law of this State, now in force, in relation to the sale of real estate on execution, and, in addition to the certificate filed with the clerk of the county where the lands sold are situated, shall file a copy thereof with the clerk of this court. 79. Bedemption of lands sold undpr execution out of this court, may be made in the same manner, and with like effect, and by the same persons, as prescribed by the^laws of this State now in force. And the sales by the marshal shall be made subject to such redemption. 80. On suing out a writ of error to the District Court, and before the clerk seals the same, the plaintiff in error, (other than the United States,) shall file security, with two or more sureties, to be approved by one of the judges of the court, (in the sum of five hundred dollars when the writ of error does not operate as a supersedeas,) condi- tioned to prosecute , his writ of error to effect, and answer all damages and costs awarded against him. 81. The clerk shall forthwith make return to a writ of error, by trans- mitting a certified copy of the record and ^all proceedings in the cause, (including the bill of exceptions, when one has been signed by the judge and filed by the party,) under the seal of the court. 82. The plaintiff in error shall assign error within two days of the term, in which the writ is returned, first following the return thereof, and the defendant shall join issue, within two days after the assign- ment, unless in either case, the court, by special order, shall enlarge the time. 83. No further order on the defendant in error to appear and join in 326 Appendix 11. error, need be given, than the citation required by statute, provided that the same is served twenty days previous to the return of the writ of error. 84. If the plaintiff in error fails to appear and file his assignment of errors, within two days after the return of the writ of error, the defendant may have a rule of course, for judgilient of non pros. But, if there are not two days remaining in term after the return of the writ of error, the plaintiff will be entitled to the two first days of the succeeding term. 85. The plaintiff in error may, by affidavit, show and prove the value of the matter in dispute, in order to sustain the jurisdictio of the court, and a suggestion shall thereupon be entered on the record. 86. No certiorari for diminution shall issue, without the affidavit of the party, showing reasonable cause for alleging diminution, and in what such diminution consists ; nor shall it be allowed after issue in error joined, without special order. * 87. In every cause in which the defendant in error fails to appear, the plaintiff in error may proceed ex parte. 88. When a bond with sureties is approved by the judge and filed, the clerk may seal a writ of error, without mandate or allowance by the judge. 89. A judge's order, staying proceedings, accompanied "with service of notice of motion, and copies of proofs to be used thereon, shall stand in force until revoked or modified by one of the judges, or until the order of the court theifton., But, if the party obtaining such order shall not proceed thereon at the next term, the opposite party may enter an order of course, vacating such stay of proceedings, and for his costs in consequence thereof. 90. No agreement, or consent, between the parties or their attorneys, RVLES—SO UTBEBN DISTRICT. S2*7 — . — ^ — ' — -; . ),, — in respect to the proceedings in court, shall be binding unless reduced to writing, and signed by the party against whom it shall be alleged or suggested. 91. When a suit shall be commenced for a non-resident, and jilso when, at any time pending the action, the plaintiff shall remove out of the district, and the attorney shall thereafter ptoceed in such sflit, without security for costs being given, he shall, in either case, be deemed to have become security for costs to an amount not exceed- ing one hundred dollars. Provided, that this rule shall not apply where one of several plaintiffs reside within the district. 92. ' Upon payment of money into court, except with a plea of tender, the plaintiff, if he accept thereof in full of the debt or damages claimed, shall serve the defendant with a bill of costs, and give two , days' notice of taxa,tion; and unless the defendant pays the costs within two days after the same shall be taxed, the plaintiff may take out the money and proceed in the cause, and shall be entitled to judgment for the amount so taken out of court ; but execution shall be endorsed " to levy the costs of suit." And, where money is paid into court, the amount shall not be struck out of the declar- ation or verdict, but the plaintiff shall deduct the same from his execution. 93. Attorneys and counsellors of the Supreme Court, and solicitors and counsellors of the Court of Chancery of this State, may, on pre- sentation of their licenses to the clerk, and his report of theii de- gree, have an order of course entered in open court, in term time, or in the common rules, in vacation, admitting them to the game standing in this court ; and attorneys and solicitors of the said courts may also be admitted as proctors, and counsellors of the said courts may be admitted as advocates, on the admiralty side of this cotirt ; all such officers first taking and subscribing the oaths of office "pre- scribed by the Constitution and laws of the United States. 94. The clerk may tax or certify bills of costs and sign judgment records. In case of the absence of the clerk from the "city, or his 328 Appendix II. inability to transact business, his deputy or chief clerk is authorized to sign judgments, and tax or certify all bills of costs in this court, other than those of the clerk. 95. No costs shall hereafter be taxed by either party as against the other, on motion made pursuant to the 40th rule of this court, ex- cept for disbursements actually incurred, unless upon proceedings taken under the 5th rule of this court. 96. The costs of parties, except as otherwise regulated by law, shall be allowed according to the rates, for the time being, in the Supreme Court of this State ; and for taking depositions under the act of Congress, or under commissions, the same charges, and no othfr, shall be taxed, as if the depositions had been drawn and engrossed by the attorneys ; and no other charges or expenses incurred ip taking such depositions, or executing or returning commissions, shall be taxed by one party against the other. 97. Appeals from taxation of costs may be made ingtanter to a judge out of court, but no costs shall be allowed to either party on such appeal. 98. No notice (except to settle a case or bill of exceptions), can be given for proceedings before a judge out of the city of New York, without an order first obtained for that purpose, or an affidavit show- ing both judges absent from the city. 99. Causes will be called in their place on the calendar, and no motion will be entertained to set them down for a particular day, and if not moved for trial when called, the party entitled to bring them on will be regarded in default, unless the entire calendar is called again. 100. Where two counsel on each side, either in fiivil or criminal causes, sum up to the jury, or argue to the court, the arguments shall be heard alternately, and not from both counsel consecutively on the same side. E ULES—SO UTMERN DISTRICT. 329 101. The clerk of thia court, and in case of his sickness or inability to transact business, or absence from the city, his deputy or chief clerk, being of the degree of attorney or counsellor of this court (and whose appointment shall have been duly filed in the clerk's ofBce), may take the acknowledgment of satisfaction of judgment entered in this court. ' loa. In cases not provided for by the rules of this court, the rules of the District Court of the Southern District of New York, for the time being, whether now in force, or subsequently adopted, so far as the same are applicable, are to be considered as rules for this court. 103. The sheriff and under sheriff of the city and county of New York, are appointed to serve process issued out of this court, in all causes in which the marshal of the Southern District of New York or his deputy, is a party. 104. The clerk of this court, and his chief clerk or deputy, the general deputy of the marshal of the Southern District of New York (the said chief clerk or deputy of the clerk and general deputy of the marshal, being designated by appointments duly filed in the clerk's office), and the clerk of each of the counties within the Southern District of New York (other than the city and county of New York), for the time being, shall ex-officio, be commissioners to take afBdavits and acknowledgment of bail, in civil causes depending in the courts of the United States, pursuant to the provisions of the acts of Con- gress in that behalf; and all orders heretofore made for the appoint- ment of such commissioners are hereby annulled. EQUITY ETJLES. 105. No motion for an injunction (except to stay waste) shall be heard, unless a copy of the bill and of the depositions to be offered in its support, shall be served on the adverse party, or his attorney, at least four days before motion made. 330 Appendix IL 106. The defendant may show cause against the allowance of an injunc- tion, either by plea, answer, or demurrer to the bill, or by parol exception to its legal sufficiency, or by deposition, disproving the equity on which the motion is founded. 107. Suppletory, or supporting proofs, may, at the discretion of the court or judge be offered, by the complainant, to rebut the cause shown by the defendant ; but the reception of such' additional proofs is not to permit the introduction of further proofs in opposition thereto, by the defendant,' previous to the final hearing upon the merits^ 108. If a general commission is not issuedj pursuant to the 25th rule of the Supreme Court, within ten days after replication filed, either party may give notice of the examination of witnesses before the standing examiner of this court ; and three months from the time of the replication shall be allowed the parties for taking their depo- sitions before the examiner. 109. When no proceedings are taken by either party within thirty days after replication, for the examination of witnesses out of court, either party may set the cause down for hearing upon the pleadings. 110. Whenever it is intended to offer oral proof in open court, the parly proposing it shall give due notice to th« opposite party of the names of the witnesses, the matters to which they are to be examined, and of the reasons upon which he will move for an examination. 111. All special motions, in reference to matters of practice, may be made in open court, or before a judge at chambers. 112. No rule or order need be entered for the publication of testimony; but, so soon as the commissioner or examiner shall have completed the testimony offered, the party taking it shall cause the deposition to be filed in the clerk's office, and forthwith give notice thereof to Rules — Southern District. ggl the adverse party. Either party may thereupon enter a rule, of course, that the clerk open the commission or deposition, and file the same. , "3. Within four days after the clerk shall have prepared copies of the depositions (provided the same were applied for in two days after the notice of the filing thereof), the adverse party may give notice of exception, before a judge at chambers, to the proofs or any part of them, on account of any irregularity in taking the depositions, or executing the commissions^ and, if no such notice of exception is given, all objections to the form, or manner, in which the proofs were taken, shall be deemed waived. 114. When a motion for rehearing is made during the term at which a decree has been rendered, the enrolling or recording of such decree shall be suspended, until the final disposition of such motion by the court. 115. A master, or examiner, in taking proofs, or in matters of reference, shall pot, without the written consent of all parties, or the authori- zation of one of the judges, adjourn proceedings pending before him, for a longer time than ten days. KULES ON APPEALS. ' 116. An appeal can be taken from no other than final decrees. 117. A decree shall be deemed final, when in a state for execution with- out further action of the court below. 118. Every appeal to the Circuit Court, in a cause of admiralty and maritime jurisdiction, shall be in writing, signed by the party, or his proetor, and delivered to the clerk of the District Court from the decree of which the appeal shall be made ; and it shall be returned to the court, with the necessary documents and proceedings, within twenty days, and by the first day of the next term after the delivery thereof to the clerk, unless a longer time is allowed by the judge. 332 Appendix II. 119. ■ The appeal shall briefly state the prayers, or allegations, of the parties to the suit, in the District Court, the proceedings in that court, and the decree', with the time of rendering the same. It shall also state whether it is intended, on the appeal, to make new alle- gations, to pray different relief, or to seek a new decision on the facts, and the appellants shall be concluded in this behalf by the appeal filed. ISO. A copy of the appeal shall, at the same time, be served on the proctor of the appellees in the court below. And an affidavit of the due service of such copy shall be filed with the appeal. And no process, or order, shall be necessary to bring the appellees into this court. 121. If, in the appeal, it shall not be intended to make new allegations, to pray different relief, nor to seek a new decision of the facts, then the pleadings, evidence, and decree, in the District Court, with the stipulations in the cause, and the clerk's account of the funds in court, in the cause, if any, shall be certified to this court With the appeal. But, in all cases, the statement of facts agreed between the parties,- or settled by the judge of the District Court, and on file, according to the practice of that court, may be certified in the place of the evidence at large. 122. If it shall be intended to seek dhly a new decision of the facts, then the pleadings of the parties, with the stipulations in the cause, and the clerk's account of the funds in court, if any, and the exhibits and depositions in the cause, shall be certified to this court with the appeal. But the proofs need not be certified, unless specially required by the appellant or ordered by this court. 123. If it shall be intended to make new allegations, or to seek' new relief, then the return to the petition of appeal shall only contain copies of the process issued upon the libel, and of the return thereof, the account of the clerk of the funds in court,' in the cause, the depo< sitions and exhibits, and the stipulations in the cause. R ULES—SO UTHERN DISTRICT. 333 124. The appellant shall cause the notice of appeal, and an affidavit of the service of a copy thereof, with the documents required to be returned with the appeal, to be filed in this court within four days after the return is completed by the clerk, otherwise the appeal shall not be received and shall be deemed deserted ; and a certificate in this behalf shall be made to the court from which the appeal is made, which may proceed to execution of its decree. 125. This court shall be deemed possessed of the cause from the time of filing the appeal, with the documents required to be returned therewith, in this court. 126. If the appellee does not enter his appearance within the two first days in term succeeding the filing the appeal and proceedings, and affidavit of service of notice thereof on him, the appellant may pro- ceed ex parte in the cause, and have such decree as the nature of the case may demand. 127. No answer, or issue, need be given to the appeal. Each party may notice the cause for hearing, for the term to which the appeal is made (if made in term time), or, if made in vacation, for the term next succeeding,- 128. A writ of inhibition will be awarded, at the instance of the appel- lant, when circumstances require, to stay proceedings in the court below, notice of such application having been previously given, 129. A Tnandamm may, in like manner, be obtained, to compel a return of the appeal, when unreasonably delayed by the clerk, or court, below. 130. If the appellee shall have any cause to show why new allegations, or proofs, should not be offered, or new relief prayed, on the appeal, he shall give four days' notice thereof, and serve a copy of the affi- davit containing the cause intended to be shown ; and such cause shall be shown within the two first days of the term ; otherwise, the appeal shall be allowed according to its terms. 334 Appekdix II. 131. If new allegations are to be made, or different relief prayed, in this court, then the libellant in the District- Coiirt shall exhibit in this court a libel, on oath, within ten daySi to which the adyerse party shall, in twenty days, answer on oath, subject, in each case, to the extension of those periods, by order of either of the judges of this court ; and, on a default in this behalf, the court will, on mption, without notice, make such order for finally disposing of the cause, on the default of the party, as the nature of the case may require. 132. After the libel and answer, whether newly filed in this court, or certified from the District Court, shall be filed in this courtj the cause shall be proceeded in to a hearing, as in other cases. But, where interrogatories have been answered in the District Court, or written testimony taken, the same may be used in this court. 133. The appellee may move this court to have the decree made in the District Court carried into effect, subject to the judgment of this court, or of the Supreme Court on appeal, upon giving his own stipulation to abide and rperform the decree of such courts ; and this court will make such order, unless the appellant shall give .security, by the stipulation of himself and competent sureties, for paymentiof all damages and costs, on the appeal in this court, and in the Supreme Court, in such sums as this court shall direct. 134. In cases where an appeal shall lie from the decree of this court, the final decree shall not. be executed until ten days shall have elapsed from the pronouncing, or filing, of the decision of the court. 135. When appeal shall be made from the decree of this court, the a,ppellant shall, within four days from the pronouncing or filing of such decision, unless further time is allowed by the judge, make and serve on the adverse party, a statement of the testimony on the trial, excepting such evidence as was in writing, which shall be properly referred to therein. The party on whom the same shall be served shall, in four days after such service, propose amendments thereto, Rules— Southern District. 335 or the statement shall be deemed acquiesced in, and the statement and amendments, unless acquiesced in, shall be submitted by the appellant to the judge in four days afterwards for settlement ; and the same, when settled, shall be engrossed by the clerk, and, with the written evidence, shall be deemed the proofs on which the decree is made, and shall operate as a stay of further proceedings in this court. 136. In all cases, in civil causes of admiralty and maritime jurisdiction, not expressly provided for by the foregoing rules of this court, the rules of practice of the District Court for the Southern District of New York, being in force at the time, and whether established before or after these rules, (not being inconsistent with these rules,) are adopted, and are to be received as rules of practice in this court. March 4th, 1840. In all cases in which persons convicted of offenses against the statutes of the United States shall be sentenced to imprisoBment, and the sentence shall not also specify that the party be kept at hard labor, it shall be the duty of the marshal to cause such party to be imprisoned in any one of the prisons within the city and county of New York which he may select for the purpose. The following rules, numbered from 137 to 143, both inclusive, were adopted on the 11th of November, 1840. 137. Hereafter, jurors to serve in this court shall be designated by ballot, according to the method of forming grand and petit juries now practiced in the highest court of law of this State, except that the panels shall be certified to the marshal by the clerk of this court, or his deputy, if present at the drawing, and except further, that it shall not be necessary for either judge of this court, or any judge of a State court, or justice of the peace, to be present at the drawing,, or for any notice thereof to be published. 138. The jurors shall be drawn from the ballot-boxes kept by the clerk of the city and county of New York, in all oases except as is pro- vided for and directed by rule 140. In case of default or defect of 336 Appendix II. jurors at term, or the discharge of a panel, and the summoning a new one in its place, the venire may be made returnable forthwith, or at any convenient day in term, and, in either such case, the drawing shall be at the time directed by the court or either of the judges. 139. In case a sufficient number of grand jurors shall not appear on the return of the venire, or, after appearing, shall be excused by the court, or absent themselves, so that there shall be in attendance less than sixteen grand jurors duly qualified, the court may, by order, direct the marshal forthwith to summon the number of persons necessary to complete such grand jury. 140. The court, or either of the judges, may, from time to time, by order to the clerk, (to be by him endorsed on the venire,) direct the whole or any part of the jurors required to serve at any term, or portion of a term, to be returned from such parts of the district, besides the city and county of New York, as the court or judge may designate, so as shall be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of the district with jury service. 141i In executing venires issued pursuant to rule 140, the clerk assist- ing in drawing shall insert upon the panels, and certify, the names of qualified jurors residing in the following places only in the counties hereafter named, (and shall omit the names of jurors drawn from the box who reside elsewhere,) to wit: in Stuyvesant and Hudson, in Columbia county ; in Athens and Catskill, in Greene county; in Saugerties and Kingston, in Ulster county; in Pough- keepsie and Fishkill, in Dutchess county ; in Newburgh and New Windsor, in Orange county ; in Castleton, in Biohmond county ; in Brooklyn, Williamsburgh and Platbush, in Kings county ; and in Flushing and Jamaica, in Queens county. 142. The clerks of the several counties within the district in which venires are to be executed, are empowered to draw jurors and certify panels for this court, in the same manner practised for the highest Rules—Southern District.. 337 court of law of the State^ when the clerk of this court or his deputy is not present at the drawing. 143. In (iase the clerk of the city and county of New York, or any county in this district, shall refuse to draw jurors for this court, or shall not permit the officers of this court to use the hoxes provided and kept in his office for drawing juries to serve in the State court, the marshal shall immediately thereupon procure copies of the lists of jurors qualified to serve in the highest court of law of the State, prepared, from time to time, pursuant to the law of the State, in the different wards of the city of New York, 'and in the o'ther places designated in rule 141, and file the same with the clerk of this court, verified by the official certificate of the officers ■vf'ith whom the same are filed or deposited, or by that of the officers required by the l^w of the State to prepare and authenticate them, or,, if such proof is refused or ca;nnot be obtained, then by affidavit ; and the clerk shall thereupon prepare proper boxes and ballots, conformably to the prac- tice in the State courts, and the drawing of jurors from such boxes shall be made and conducted thereafter by the marshal and clerk, according to the mode now practiced under the law of the State, except that & publication of any previous notice thereof, or the at- tendance thereat of either of the judges of this court, or any other magistrate, shall not be necessary. 1 March 12th, 1841. The clerk of this court, and also the clerk of 'the District Court of the United States for the Southern District of Nfew York, and the chief clerk or deputy of each of said clerks (the said chief clerk or deputy being designated by appointment duly filed in the office of the said clerks respectively), for the time being, shall ex officio, be ' commissioners to take affidavits and acknowledgments of bail, in civil causes depending in the courts of the United States, pursuant to the provisions of the acts of Congress in thart behalf; and the said clerks and deputies are also hereby respectively authorized and empowered to take bail within the Southern District of New York, pursuant to the act of Congress of March 2d, 1793. 22 ' ~ ' ■ 338 Appendix IL Apkil 17th, 1845. So much of standing rule 99 of this court, as prohibits motions to set down causes placed on the calendar for a particular day, and also so much of standing rule 104, as designates and appoints the general deputy of the marshal of the Southern District of New York ex officio, a commissioner to take affidavits and acknowledgments of bail, in civil causes depending in the courts of the United States, be, and the same are, hereby abrogated and repealed, but no other por- tion of the said rules are to be affected by this orders Masters and examiners in chancery, designated and appointed by this court to act as such-, oil the equity side thereof, shall, ex officio, be commissioners to take affidavits and acknowledgments of bail, in civil causes depending in the courts of the United States, and to take bail within the Southern District of New York, pursuant to the provisions of the sftveral acts of Congress in that behalf ; and every such master in chancery for the time being, is hereby designa- ted and appointed ex, officio commissioner as aforesaid. , This rule or order is not to affect the rule or order of the court in thi^ behalf, entered March 12th, 1841. June 28th, 1845. In place of the provisions of rule 96 of this court, for the taxa- tion of costs of parties, the costs of parties (their attorneys, solici- tors and counsel), shall be allowed and taxed conformably to the regulation and aippointment of costs mad^ in the last proviso but one to section one, No. 167, of the act of Congress approved May • ISth, 1842, entitled "An act making appropriations for the civil and diplomatic expenses of Government for the year 1842." For services rendered pursuant to the course of practice of this court, for which no fees are appointed specially by acts of Congress, or of the State of New York, in force, there shall be allowed, on taxation, the same rates of compensation as by the usages qr adju- dications of this court, or the Supreme Court of the United States, were allowed therefor at the time of the passage of the act of May 18th, 1842, aforesaid. In all cases of taxation ot costs, fees shall be allowed, as having been appointed by the laws of the State, only according to the rates allowed for like services, in similar cases, in the highest courts of law or equity^, of original jurisdiction of the State of New York.' Rules— Southern District. 339 Septbmbee 2cl, 1845. On appeals, no paper proceedings shall be read in this court, un- less they be papers duly sent up by the court below, and on file in this court, or original papers on the files of this court, or copies of saeh papers duly certified by the clerk of this court. May 8th, 1846." Hereafter, on motions for an injunction, because of the infringe- ment of a patent right, the complainant shall not be permitted to give evidence to rebut the cause shown by the defendant against the allowance thereof, other than to a denial that the defendant uses the discovery or invention claimed by Jhe complainant, or to a claim by the defendant that he acts under an assignment or license from the patentee ; and, on motions for injunctions to stay waste, only to a defense set up justifying the waste ; and in neither case shall such fiuppletory or supporting proofe be received unless the court, or one of the judges, on satisfactory cause shown, shall by order previously made, allow the same to be given ; and so much x)f rule 107, of the standing rules in equity oif this court, adopted 4-pril 28th, 1838, as may be inconsistent herewith, is repealed. Motions for injunctions shall be brought on by the complainant on the day named in the notice, if the court is then in session, and ia default thereof, the defendant may move that, the notice be dis- charged for the termi, with costs, unless further time is given, or the hearing is delayed by order of the court. April 1st, 1850. No aetion, real or personal, shall abate by the death, marriage or other disability of either party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage or other disability of a party, the court, on motion, may allow the cause tc be continued by or against the successor in interest, on the usual notice to the party interested, or such other notice as may be directed by the court. October lO-th, 1850, The as well in the district court as on appeal in the appellate court, in case he shall fail to support his claim. 18. If the costs ordered pr decreed to be paid by any libellant or claimant be not paid within ten days after such order or decree, and no appeal intervene in the principal cause, the court will direct execution immediately to issue of course against all the parties to the stipulation. 19. The plaintiff shall have a right in suits in admiralty and maritime jurisdiction, to require the personal answer of the defendant on oath to interrogations to be filed by him in court, touching the allegations contained in the libel, or other matter or thing by him suggested or filed, which shall be relevant to the suit. And in like manner, the defendant shall in like suits (except when the United States are plaintiffs) have a right to require the personal answer of the plaintiff on oath to interrogations filed iti court -touching any matter of de- fense or exception, or other .allegation by him filed, which shall be -relevant to the suit. But either party may object to answering any interrogatory, the answer to which will expose him to a penalty, for- feiture, or punishment for a crime. SO. If either party be decreed to give a personal answer, and refuse or neglect so to do, such party shall be deemed in default and con- 352 Appendix II. tumacy, and if the party be plaintiff, the suit shall be dismissed ; if defendant, the allegations in the libel shall be taken pro confesso, and the court will thereupon hear the case and adjudge the same ex parte. But if the other party prefer, he may proceed by attachment - to compel such answer. 21. If in admiralty and maritime suits, the plaintiff do not appear to prosecute his suit, or neglect to comply with the orders of the court, he shall be deemed in contumacy, and to have deserted his suit, and the defendant shall be dismissed with costs at the discretion of the court. And if in like causes a defendant do not appear te prosecute his defense, or neglect or refuse to comply with the orders of the court, he shall be deemed in contumacy arrd default, and the court will proceed to.hear the cause ex parte, and pronounce the proper decree. 22. , Stipulations in admiralty may be given before such commissioner or commissioners as shall be duly authorized by the ,court for that purpose. And the clerk is authorized, out of court, to take stipu- lations for costs in all cases.^ 23. A party appealing from any decree of this court, shall, before his appeal is allowed, give stipulation for costs in such sum, and with such surety or sureties as the court shall order. 24. In suits for seamen's wages, any mariner in the same voyage, not made a party, may, by a short petition to the court, in any stage of the cause previous to th^ final distribution of the fund in court, or discharge of the defendant and his sureties,, be joined as libellant in the cause, «but no costs shall be allowed for the proceedings taken to make him a party. 25. In cases of salvage, and other causes civil and maritime, persons entitled to participate in the money, but not madfe parties in the original libel, may, upon petition, be admitted to prosecute as libel- lants, on such terms as the court may defem reasonable. District OF Vermont— Circvit Rules. 353 RULES Of the Circuit Court of the United States for the District of Vermont. 1. Attorneys of the Supreme Court and solicitors of the court of chancery of the State of Vermont, may, on motion in open court, or before a judge at chambers, be admitted, of course, as attorneys and solicitors in this court ; and attorneys and solicitors of said court may, in like manner, be admitted as proctors and advocates on the admiralty side of this court. All being sworn to support the consti- tution of the United States, and to faithfully and uprightly conduct themselves in their office. And it shall be the duty of the clerk of the court to make a record thereof, and give the person admitted a certified copy for which he shall receive a reasonable compensation. a. Grrand and petit jurors to serve at the session of this court, required by law to be held at Windsor, shall be summoned from the county of Windsor ; and those to serve at the session required to be held at Rutland, shall be summoned from the county of Rutland unless otherwise specially ordered by the court or a judge thereof; and those required to serve at any special session of this court, shall be summoned from the county in which said special session shall be held, unless otherwise specially ordered ; and they shall be drawn and summoned in the manner provided by the laws of the State, for such jurors in the county courts ; and if any panel shall not be full when callefl, the same may be filled by talemen selected under the order of the court, or a further number of regular jurors may be summoned, as the court shall direct. 3. In cases of opposition of opinion between the judges, whether in civil or criminal cases, either party may, within four days after such opposition of opinion occurs, serve on the other party a statement in writing of the point or points of disagreement, and also of such 22 354 Appendix 11. facts and of so much of jthe pleadings in the case as are necessary to present the said point or points with clearness and precision, and if no amendments are proposed thereto within two days, such state- ment shall be filed and engrossed by the clerk, and certified under the seal of this court to the Supreme' Court. When amendments are proposed, such statement and amendments shall be submitted to the court for settlement like a case or bill of exceptions. 4. ' The clerk of this court shall reside and keep his office at Burling- ton until otherwise ordered. 5. If an attorney, proctor or solicitor does not reside in this State, service of all notices and papers may be made as to him by affixing the same in a conspicuous place in the clerk's office. 6. All notices shall be in writing, and shall be served on the attor- ney, proctor or solicitor, or party in the cause, either personally or by leaving the same at his last and usual place of abode . in the hands of some discreet person ; but when the object is to bring the party into contempt the service shall be personal unless otherwise ordered by the court. And no service by notice or paper, in the ordinary proceedings in a cause, shall be required to be made on a defendant who has not appeared therein. 7. The form of process and declaration shall be the same as is, or may be, provided by the laws of this State, and in cases not expressly provided for by such laws, in the form used in the county and Supreme courts of the State, so far as they may be applicable to the Federal courts. 8. All process shall be dated the day it issues, and all mesne pro- cess shall be returnable to the next regular term, if there shall be time for seasonable service thereof, according to the laws of this State, otherwise it shall be returnable to the next regular term thereafter; final process shall be returnable to the next regular term, or otherwise, if so specially ordered by a judge. District of Vermont— Circuit Bules. 355 9. The plaintiff, in all mesne process, shall give security to the adverse party for the costs of defence, if he fail in the action, by filing the bond of some responsible person, other than himself, resi- dent in this State, in the penal sum of two hundred dollars, in the office of the clerk, on or before the return day of the process con- ditioned for the payment of such costs, as shall be adjudged against the plaintiff; and the court or any judge thereof may, on motion, require additional security for costs as shall be just ; and a failure to comply with this rule, or any other made under it, shall be ground of non-suit unless the court, in its discretion, shall relieve the party in default. 10. The court or any judge may require any defendant, who shall be held to bail, to put in additional or better bail, and on failure to comply, such defendant shall be defaulted, unless the court shall, in its discretion, relieve such defendant from such default. Bail may justify in court or before a judge at chambers, or before the clerk with the right of appeal to a judge. 11. The creation, continuance and termination of liens and rights cre- ated by attachment of property, or the arrest of a defendant, shall be governed by the laws of this State. 12. In eases in which personal service of process has not been made by reason of the absence of the party to be served, from the district, notice may be given him to appear, by publication in such paper, and in such manner as the court or a judge thereof may order. 13. All suits shall be docketed on the first day of the term to which they are returnable, but for special cause the court may permit a suit to be docketed at a later day in the term. 14. The appearance of the dfefendant in person, or by an attorney of this court, shall be entered on the docket on the first day of the term, at which he is required to appear, but, for special cause, the court may permit an appearance to be entered at a later day in the term. 356 Appendix IL — -?>^ , — , _ , — - 15. If no appearance shall be entered pursuant to the foregoing- rule, the defendant may be defeulted, and final judgment be entered upon suoh default. 16. In cases of judgment for the plaintiff, upon default, nil dicit, or on demurrer, or for non-compliance with any order of the court, the damages may be assessed by the court, or by the clerk, or any proper person appointed by the court for that purpose. 17. All civil causes except those mentioned in rules 18 and 19, shall be continued at the first term, on motion of either party j the post- ponement of criminal cases shall be discretionary with the court. 18. When in suits upon bonds for the payment of duties, and ia suits brought against persons responsible for the payment of public money, for the recovery thereof, the defendant interposes a plea, the district attorney may have the cause placed on the calendar, at the same term, without other notice; and may bring the same to trial when called, unless the court shall continue the cause over, at the instance of the defendant. 1». No plea shall be received in any suit instituted in this court upou a bond executed to the United States for the payment of duties, or, in any suit instituted upon a bail bond taken in consequence of such suit, unless such plea shall be accompanied by an affidavit of the truth of the matters in the plea contained. 20. In the cases mentioned in rules, 18 and 19, the defendant, un^ss the case be continued, shall plead before noon of the second day of the term, and the plaintiff may reply instanter, or have the case continued, at his option. If continued, he shall reply within thirty days, and the subsequent pleadings shall be put in within the same intervals. 31. In all eases continued, the defendant stiall plead or demur within sixty days, and the plaintiff shall reply or demur within thirty days thereafter, and so on until the pleadings are closed. Copies of all pleadings shall be served on the attorney of the adverse party (or District OF Vebmont— Circuit Rules. 357 on the party himself if he have no attorney), by depositing the same in the post ofSee properly addressed, postage paid. Dilatory pleas shall be- filed before noon of the second day of the term, and the plaintiff may reply within a time to be allowed by the court. 22. , A judge at chambers may, on motion and notice, make, enlarge, or discharge orders for bail, enlarge the time for pleading, allow amendinents of process, declarations, or pleadings, and make any other interlocutory orders' in a cause for the orderly proceedings therein, or the speeding thereof. 23. Common orders (or orders of course, without special cause shown) and orders by consent, may be entered in the proper book in the clerk's office in term or in vacation ; the day of entering the same being noted therein, and the party may enter such order as he may consider himself entitled to, of course, but at his peril. 24. Reasonable notice of assessment of damages and taxation of costs shall also be- given ; but no notice of assessment or taxation shall be required except when the defendant shall have appeared by an at- torney. And in cages of judgment for the defendant, reasonable notice of taxation, of costs shall be given to the plaintiff 's attorney, if any has appeared. And where an assessment is not made by a judge or jury, any contested point of law or practice may be revised by a judge on application of either party, filed within twenty-four hours after the filing of the report of the assessment. Taxation of cost may also be reviewed by a judge in like manner. But in cases in which it shall be necessary to issue execution immediately, in order to hold property attached, or bail, such application for review shall not delay the making up of the judgment on such assessment and taxation, and the issuing of execution thereon by the clerk, unless so ordered by a judge ; but if execution thus issue, the party will take it at his peril. 25. Applications made by a party in pursuance of the fifteenth section of the judicial act, to require the opposite party to produce books and writings,, must be made upon petition, verified by affidavit, set- 358 Appmndix II. ting forth plainly the facts and circumstances upon "ffhieh the appli- cation is founded ; and in such petition, or in the affidavit thereto subjoined, it must be stated that the books or writings, the pro- duction whereof is sought, are not in the possession nor under the control of the petitioner, and that he is advised by his counsel, and verily believes, that the production of the books or writings men- tioned in such petition, is necessary to enable him safely to proceed in the prosecution or defense (as the case may be) of his suit. 2&. The petition may be presented to the judge of this court in vaca- tion, as well as to the court in term ; and the order to be- made thereon shall be that the party against whom the application is made, shall produce the books or writings mentioned in the petition, or show cause on the day and at the place to be therein specified, why the prayer of such petition should not be granted. 27. Such order shall also specify the manner in which such books or writings shall be produced, and may require the party either to pro- duce and deposit the same with the clerk of this court, or to deliver to the petitioner or his attorney copies thereof verified by oath. as. A copy of such petition, together with a copy of the order made thereon, shall be served upon the party against whom the order is directed, a reasonable time to be prescribed in the order before the day' therein prescribed for showing cause. 29. Commissions to take the examination of witnesses may issue by order of court in term, or of a judge in vacation. 30. Such commissions may also be issued by consent. But the agree- ment for that purpose shall be in writing, and filed in the clerk's office ; and the clerk shall, in such case, make an endorsement upon the commission, under his signature, in the following form ; Allowed, by consent of parties. District of Vermont— Girovit Rules. 359 31. All civil causes shall (if a trial is intended) be noticed for trial. Where a cause is noticed for trial by a party desiring it, a notice thereof shall be entered on the docket at least twenty days before the term. And notice of countermand shall be given personally, or through the post office, to the counsel of the other party at least six days before the time for which the cause was noticed. And no such cause shall be' tried unless so noticed, without the consent of the parties. 32. Whenever it shall be intended to move to set aside a non-suit or verdict, except for irregularity, a case shall be prepared by the party intending to make the motion, and a copy thereof shall be served within four days after the trial on the opposite party, who may, within four days thereafter, prepare amendments thereto, and serve a copy on the party who prepared the case, who may then, within four days thereafter, serve the opposite party with notice to appear within a convenient time before the judge, to have the case and amendments settled. The judge shall thereupon correct and settle the case as he shall deem to consist with the truth of the facts. The tlime for settling the case must be specified in the notice, and shall not be less than four, nor more than twenty days after service of such notice. 33. If the party omit to make a case within the time above limited, he shall be deemed to have waived his right thereto ; and when a case is made and the parties shall omit, within the several times above limited, the one party to propose amendments and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as proposed. If judgment has been rendered upon a verdict, the party intending to move for a new trial shall give four days notice in writing to the opposite party, of any motion to stay execution thereon, and also of the petition intended to be filed pursuant to the 18th section of the act of Sep- tember 24th, 1789, unless a shorter time be allowiid by the court or a judge thereof. 34. General verdicts may be taken subject to the opinion of the court on a case to be mader by the party in whose favor the verdict is taken. 360 -^ PPENDIX 11. containing all the evidence given at the trial, the case to be pre- pared and settled in the manner prescribed in the foregoing rules. 35. In cases of exceptions taken, demurrer to evidence, or special verdict, the party shall not be required to prepare at the trial, his bill of exceptions, demurrer, statement of evidence or special case, or to put in form the special verdict, but shall merely reduce such exceptions to writing, or make a minute of the demurrer to the evi- dence, and of the facts found specially by the jury, as the case may happen to be, and deliver it to the judge, or the judge will himself note the points, as he may direct ; and the bill, demurrer or special verdict, shall afterwards be drawn up, amended and settled, within such times, and under the same regulations as are made with respect to cases. 36. A bill of exceptions may, before judgment, be used instead of a case on motion for a new trial, and notice of such motion, together with an order to stay proceedings, and a copy of such bill of excep- tions shall ojierate to stay all further proceedings until the decision of the court : Provided, that proceedings shall not be longer stayed than if a case had been made. 37. On hearings before the court, the clerk shall furnish each member of the court with a certified copy of the case upon both sides, and each party "shall pay for his portion of it. 38. Whenever an order to stay proceedings shall be granted, to enable the party to make a special motion, service of such order, with copies of the affidavit upon which it is granted, and notice of the motion, shall operate as a stay of proceedings until the further order of the court. But if the party shall neglect to bring on' the motion to be heard according to his notice, the proceedings shall be liable t,o pay the costs of attending to resist the motion. 39. " No private agreement or consent between the parties or their at- torneys, in respect to the proceedings in a cause shall be binding, unless the same shall be reduced to the form of a rale by consent, District of Vermont^- Cm cuit R ules. 361 and entered accordingly, or unless the evidence, thereof shall be in writing, subscribed by the party or his attorney, against whom the same shall be alleged. 40. In all cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party, whose duty it shall be to comply therewith, shall have twenty days for that purpose, unless otherwise directed in the order. And where, by the terms of any order, an act is directed to be done instanter, it shall be under- stood to require such act to be performed within twenty-four hours. I 41. All moneys paid into court, which any collector of customs is entitled by law to receive, shall, after deducting the costs, be paid over to him by the clerk upon an order to be entered, of course, for that purpose. ' 43. All moneys paid into court, which 'are required by law to be deposited in bank, shall be forthwith deposited by the clerk in such bank as the court may designate, to the credit of the court. 43. All checks for money so deposited, to be drawn out of the bank, shall be signed by the clerk, as clerk, and such check shall be written on the same paper which contains the order of the judge for that purpose. 44. • A book shall be kept by the clerk, in which he shall enter a full and particular account, under the title of each cause depending in the court, of all money paid into court in such cause, and of the pay- ment thereof; and such book shall, at all times, be open to the inspection and examination of the court, or any judge thereof. 45. The marshal and his deputies are prohibited from becoming bail in any case depending in this court. And attorneys, solicitors, proctors and advocates, are also prohibited from becoming bail in any case in which they are employed. 362 Appendix II. 46. The clerk may tax and certify bills of costs, and sign judgment records. 47. On an indictment found by the grand jury, the district attorney may forthwith sue out a capias, under the seal of the court, for the arrest of the person indicted. 48. Where a fine is imposed by the court on any person for any cause, and the party is not thereupon committed, and such fine is not dis- charged previously to the close of the term, the clerk shall issue to the marshal a warrant of execution, commanding him to levy and make such fine of the goods and chattels, or, in the default thereof, of the lands and tenements of the party, and, in default thereof, to commit such person to jail in the county where he resides, or may be found, unless some other county is designated by order of the court. 49. In all cases not provided for by the rules of this court, or by law, the practice of the Supreme and county courts of this State shall regu- late, so far as it may be consistent with the practice of this court. 50. The transcript to be sent to this court, on appeal thereto from a sentence or decree of the District Court, may be certified by the clerk of the latter court, under his hand and seal of the court. i 51. Eight days' notice of hearing on appeal, shall, in all cases, be given by the service thereof on the adverse party, or ou his proctor. 52. When an appeal from a decree of the District Court is interposed twenty days before the next stated session of this court, it may be noticed for hearing at such session by either party. 53. When an appeal from a decree of the District Court is interposed less than twenty days before the next stated session of this court, the appellee may, at his option, notice the cause for hearing, at such session, on the first or other day thereof; or have the cause continued uptil the next stated session. District of Vermont— District Rules. 363 54. Transcripts of tlie depositions taken in any cause in the District Court, according to law — whether de bene esse under the acts of Con- gress, or on commission — and read at the hearing of the cause in that court, may he transmitted to this court on appeal and read by either party as evidence at the hearing of "Ihe cause in this court. 55. A copy of the notes taken by the judge, orunder his direction, by the clerk of the District Court, of the e-videnoe of witnesses examined orally therein, shall be certified and transmitted to this court on appeal, along with the transcript of the record and other proceedings in the cause, and shall be admitted to prove the evidence given by such witnesses ; but nothing herein contained shall be con- strued to abridge the right of the parties to re-examine such witnesses in this court if they shall see fit to do so. RULES Of the District Coitrt op the United States foe the DisTKiCT 01" Vermont. 1. The "Rules of Practice of the Courts of the United Stakes, in causes of Admiralty and Maritime jurisdiction, on the instance side of the court," prescribed by the Supreme Court of the United States, at the January term, 1845, are understood to be obligatory on this court, in all causes arising nnder the act of Congress, entitled " An act extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same," passed February 26th, 1845 ; and the said rules are hereby declared to be the rules of practice in this court, in exercising the jurisdiction con- ferred by the said act ; and also by any subsequent law of Congress on that subject. 2. A special session of the court will be held at Burlington on the first Tuesday of every month, at ten o'clock in the forenoon; at which special sessions all process must be made returnable, and all proceedings must be had, except trials by jury, which will not be 364 AFPEXfmx II. held without a special order of the judge for that purpose, except at a stated term. And in case of the non-attendance of the judge at the time hereby appointed, or at any other time which may, by special order, be appointed, for any special session of the court, all process and proceedings shall be continued, without prejudice, to the nest special session, or to some earlier day for that purpose appointed by the judge. 3. All process shall bear test of the day on which it is sealed, and shall be made returnable before the judge at Burlington, on the first Tuesday of the month next after the test thereof, or of some suc- ceeding month. 4. Libels, answers, and all other pleadings and papers to be filed, shall be so plainly written as to be readily legible, and shall be free, to all reasonable extent, from interlineations and erasures ; and it shall be the duty of the clerk to reject all papers delivered to him to be filed,, which are not in conformity with this rule. 5. All libels praying process of arrest, whether in rem or in personam, shall be verified' by the oath or solemn affirmation of the libellant, unless, for sufficient cause shown, such oath or affirmation shall be dispensed with by the special order of the judge. And all libels, answers and other pleadings shall be signed by the party in his own proper handwriting, and in like manner by the proctor for the party in whose behalf they are filed, unless, for special cause shown, such signature shall be dispensed with by leave of the court. 6. In suits in rem, the mesne process shall be served, and the required notices given, at least fourteen days before the return day of the process, unless a shorter time shall be prescribed by special order, founded upon the exigencies of the particular case. 7. All process, and all notices for publication in a newspaper, in pur- suance of rule 9, of the rules of practice in admiralty and maritime causes, prescribed by the Supreme Court, shall be drawn up by the clerk ; and no process except subpoenas, shall be issued by him in blank. B ULEs — District Co urt of Vermont. 365 8. The notice mentioned in the last preceding rule, shall contain the title of the suit, a summary statement of the cause of action, the amount claimed by the libellant, and the day and place fixed for the return of the process ; and shall have the name of the proctor of - the libellant, and that of the marshal, or of his deputy by whom the arrest shall have been made, affixed thereto. 9. The amount of the debt or damages for which the action is brought, shall be stated in the libel, and, with the addition thereto, for costs, of $250 in a suit in rem, and of f 100 in a suit in personam, shall be endorsed on the mesne process thus : " Action for $ ." 10. When the libellant is not a resident of the district, he shall, at the time of commencing his suit, give a bond or stipulation, with one or more sufficient sureties, in the sum of at least one hundred ' dollars, if the suit is in personam ; and in the sum of at least two hundred dollars, if the suit be in rem — conditioned that he will ap- pear, from time to time, and abide by all orders, interlocutory and final, of the court, and pay the costs and expenses, if any, which shall be awarded against him by the final decree of this court, or of any appellate court : Provided, however, that this regulation shall not extend to suits for seamen's wages, nor to suits for salvage, when the salvors have come into port in possession of the property libelled. 11. In all cases not embraced in the last preceding rule, on motion of the defendant or claimant, the ' court will, in its discretion, direct the libellant, on pain of dismissing his libel, to give the like security. 12. Instead of the security specified in the two last preceding rules, the party from whom it is, required, may, at his option, deposit in court a sum of money of the like amount. 13. If, in any case, a libel shall be filed in behalf of a libellant who is not a resident within the district, before security for costs and ex- penses shall be filed as required by rule 10, the proctor for such 366 Appendix II. libellant sliall be liable for such costs and expenses, to the amount specified in the said rule, until such security shall be filed, and the payment thereof may be enforced by summary process in personam against such proctor. 14. When a proctor is retained to defend, in any suit, before the re- turn day of the mesne process therein, who resides, or has his place of business more than three miles from the clerk's office, and not more than three miles from the residence or place of business of the proctor for the libellant, such proctor for the defendant may, at any time before the return day of the process, serve a notice of his re- tainer on the proctor for the libellant ; and it shall thereupon be the duty of the proctor for the libellant, without delay, to serve on the proctor for the defendant a copy of the libel on file. 15. Wheli the defendant's answer, or any other pleading subsequent to the libel, is put in by being simply filed in the clerk's office, instead of being given in open court, in presence of the proctor or advocate for the adverse party, a copy thereof, with notice of the time of filing the same, shall, without delay, be served on the proctor of such, adverse party. 16. When a decree is made in the presence of the proctor of either party to the suit, unless such proctpr resides at the place where the clerk's office is kept, it shall be the duty of the clerk immediately to transmit to him by mail a copy of the decree ; and such proctor and party shall be responsible to the clerk for the fees to which he may be entitled for such service, according to the usual rate of charge. 17. Not less than fourteen days' notice shall be given of the sale of property on final process unless by a special order of the judge ; and when, in the opinion of the marshal or his deputy, by whom the sale is to be made, the circumstances of the case require a longer notice, he may, in his discretion, extend it to any time not exceeding thirty days. ' ■^ 18. When interrogatories are propounded by the defendant at the close of his answer, touching any matters charged in the libel, or touch- ing any matter of defense set up in the answer (according to Rule RULES^DlSTRIOT OOTJRT OF VERMONT. 367 82 of the Rules of Practice prescribed by the Supreme Court), the libeller shall answer the same within twelve days, unless, for suffi- cient cause shown, he shall, by special order, be allowed a longer period ; and the court may, in its discretion, require such interroga.- tories to be answered within a shorter time, or instanter. 19. When interrogatories are propounded to a garnishee (in pursuance of Rule 37 of the Rules of Practice, prescribed by the Supreme Court), in admiralty, a copy thereof shall be served upon the gar- nishee personally, or, in case of his absence from his dwelling house or usual place of abode, by leaving such copy with some person of suitable age who is a member or resident of the family ; and the garnishee shall be required to answer the interrogatories within twelve days after such service, unless a longer period shall, for ade- quate cause shown, be, by special order, allowed for that purposej and the court may also, in its discretion, prescribe a shorter period. 30. Exceptions to the libel (taken in pursuance of Rule 36 of the Rules of Practice prescribed by the Supreme Court) for surplusage, irrelevancy, impertinence or scandal, may be taken ore tenus, on the return day of the mesne process ; and exceptions to the answer or other allegation given by the defendant, taken for the like causes, in pursuance of the same rule, or in pursuance of Rule 27, for want of sufficiency, fulness or distinctness, may be taken in like manner, when the answer or allegation is put in in open court ; and the court will, thereupon, in its discretion, either decide upon the sufficiency of the exceptions so taken, instanter, or direct the same to be drawn up in writing, and appoint a day to hear argument thereon, or refer the same to a commissioner. 21. When, at the return of the mesne process, further time has been granted to answer the libel, and the answer, instead of being pro- duced and offered in open court, in the presence and hearing of the advocate of the libellant, is simply filed with the clerk, a copy there- of shall, without delay, be served on the proctor tor the libellant, personally, if he resides within three miles of the proctor for the defendant, otherwise either personally or by mail ; and the proctor for the libellant may, within ten days {ifter the service thereof, file 368 Appendix II. and s^rve exceptions thereto. The defendant, within eight days after the service of such exceptions, may give a written notice of his submission to any or all of them ; and if any of them are not sub- mitted to within the time prescribed, the libellant may bring the same to a hearing before the court, by giving, at any time within six days, a notice of not less than six nor more than ten days, of such hearing. Every exception not submitted to, and which is not notified for hearing within the time specified, shall be considered as abandoned. 22. When exceptions are referred to a commissioner, if the party who obtained the reference shall not procure and file the commissioner's report within fourteen days from the date of the order of reference, unless further time shall be allowed, for sufficient cause shown, by special order, the exceplaons shall be considered as abandoned. The party by whom the reference was obtained shall have eight days, after filing the report of the commissioner, to except thereto. On filing the report, he shall give notice of filing the same to the adverse proctor, who shall have eight days, after such notice, to except to the report. Exceptions to a commissioner's report may be noticed for argument by either party, and the noti(5e shall be served at least six days before the day designated for the hearing. 23. All appeals to the Circuit Court must be interposed within ten days from the date of the decree, or within such other period as shall be designated by special order made in the particular suit ; and, in cases where the right of appeal is allowed, no final process shall issue before the expiration of the Jen days or other period prescribed. 24. In all cases, not otherwise provided for, the regulations prescribed by law relative to the mode of serving notices and other papers, in suits prosecuted in the courts of the State of Vermont, are hereby adopted, mutatis mutandis, as rules of this court, in cases at law as well as in admiralty. 25. DELIVERY OF PROPERTY UNDER SEIZTTEE, PENDENTE LITE. 1. Applications for the delivery to the claimant of property seized as forfeited under any law of the Uiiited States at any time after the service of the monition and warrant of arrest. Rules— District Court of Vermont. 369 2. At least four days' notice of the application shall be given to the district attorney and to the collector of the collection district in which the seizure was made, accompanied by the service on each of them of a copy of the petition for delivery, unless the application be made in open cpurt, when the district attorney and the collector are present, in which case no previous notice shall be necessary. 3. Unless a claim, duly verified, shall have already been inter- posed by the applicant, he shall show, at the time of his application by his own oath or other evidence, that he is lawfully entitled to appear as claimant in the case. 4. The appraisers shall be sworn, faithfully and fairly, to appraise the property in question, and make a true report of the value thereof, according to the best of their understanding, without unnecessary delay. 6. Keasonable notice of the time and place appointed by the appraisers to make the appraisement shall be given to the district attorney, the collector and the claimant. 6. For the purpose of ascertaining the value of the property to be appraised, the appraisers may examine such persons on oath, and receive such affidavits taken before one of the commissioners of this court (who are hereby authorized to take such afidavits), as they may think proper. 7. On the return of the appraisement to the court, or to the judge in vacation, accompanied by a certificate from the collector and naval officer (if there be one), that the duties on the property seized; if any be chargeable thereon, have been paid ; and on satisfactory evi- dence that the expenses of the appraisement have been paid by the claimant, and on the execution by the claimant of a bond in con- formity with the statutes of the United States in such case made and provided, before the court, the judge, or the clerk, an order will be granted for the delivery of the property to the claimant. 8. The appraisers shall severally be entitled to be paid, for their services in making an appraisement, three dollars a day for each day necessarily spent in the performance of such services. 9. But whenever, in any case, the value of the property seized shall be agreed upon between the collector and district attorney in behalf of the United States, and the claimant, and a certificate in writing expressive of such agreement shall be signed by them and filed in the clerk's office (in conformity with the practice of the court 24 370 Appendix 11. heretofore), it shall have the same validity and effect as if it had been made and reported by appraisers duly appointed for that pur- pose. 26. ' SALE OP PERISHABLE PROPERTY. 1. Application for the sale of perishable property seized as for- feited under any law of the United States, may be made either by the district attorney in behalf of the United States, or by the claim- ant, at any time after the service of the monition and warrant of arrest. 2. At least four days' notice of the application, when made by the claimant, shall be given to the district attorney, and to the col- lector within whose collection district the seizure was made, accom- panied by the service' of a copy of the petition for the decree or order of sale ; and a like notice shall be given to the claimant, if there be one, or to his proctor or attorney, when the application is made by the district attorney. But when the application is made in open court, and the proctor or attorney of the opposite party is present, no previous notice shall be necessary. 3. When the application is^ made by the claimant before a claim duly verified shall have been already interposed, he shall be required to show, at the time of his application, by his own oath or other evidence, that he is lawfully entitled to appear as claimant in the case. 4. The place of sale, and the length of the notice of sale to be given by the marshal (which, unless otherwise specially directed, shall be given in the manner prescribed by the 90th section of the collection act of March 2, 1799, in cases of condemnation), will be determined by the court or the judge, in each case, according to its nature and circumstances, and prescribed in the order of sale, 5. When the application for an order of sale is resisted by the opposite party, and' the propriety of such order appears doubtful, surveyors will be appointed, preliminarily, to examine and report as to the condition of the property. Rules— DisTRidT Court of Vermont. 37I 27. REMISSION OP PINES, PENALTIES, PORPEITURES AND DISABILI- TIES. Preparatory to the presentation of a petition for the remission or mitigation of any fine, penalty, forfeiture, or disability, a copy of such petition, together with a notice of the time and place of pre- senting the same, shall be served on the attorney of the United States, and another copy with the like notice on the person or per- sons claiming the fine, penalty or forfeiture, ten days before the time of presenting the petition. The petition, in addition to the other circumstances of the case, shall state whether any, and what suit, has been instituted, and what proceedings have been had for the recovery of the fine, penalty or forfeiture, up to the time of preferring the petition. 29. The clerk, under the direction of the judge, shall prepare a state- ment of the facts relative to the case which appear upon the inquiry, and forthwith transmit the same, together with the petition, to the secretary of the treasury. 30. The fees of the clerk shall be paid by the petitioner before the transmission of the petition and statement to the secretary of the treasury ; and where there are several petitioners or distinct claim- ants, not being partners, or several cases or importations embraced in one petition, the clerk shall be entitled to the same fees as if a distinct petition had been presented in each case. 31. The clerk is authorized to enter satisfaction of record of any judg- ment rendered in this court in behalf of the United States, on filing an acknowledgment of satisfaction of the same duly made by the district attorney. 32. The practice in this court in instance causes, and in common law, equity and criminal cases, and in all other matters not herein other- wise provided for, shall be regulated by the rules of the Circuit Court for this district. A-PPEISTDIX III, Circuit Court Forms : On Appkals and Wkits of Erbob to Supekmb Court. In Equity Pbocbbdings in the Nobthben District, New York. In Law Proceedings in the Nobthebn and Southern Districts, New York. In Cbisiinal Proceedings in the Northern and Southern Districts, New York. In Commissioner's Proceedings in the Northern and Southern Dis- tricts, New York. In Incidental Proceedings in the Northern and Southern Dis- tricts, New York. District Court Forms : In Admiralty Proceedings in the Northern District, New York. In Customs Revenue Proceedings in the Northern District, New York. In Internal Revenue Proceedings in the Northern District, New York. In Bankruptcy Proceedings in the Northern District, New Yobk. In Copyright Proceedings in the Northern District, New York. In Incidental Pbocbbdings in the Northern District, New York. (explanatoey note.) The following 'forms, published as precedents, for use by the oflS- cers and practitioners in the Circuit and also in the District Courts, have been mostly prepared from the official files in the clerks' offices of the Northern District of New York. In the Circuit Court forms, those in equity cases have all been 374 -^ ppENmx III. taken from that, in the Northern Pistriot, and in other cases from that of Northern and Southern Districts jointly. In the District Cmirt forms, they are almost exclusively furnished from those used in the Northern District. On an examination of the copies of filed bills of costs, taxed in the Circuit and District Courts of the Northern District of New York, in comparison with those in the Eastern and Southern Dis- tricts, in a similar class of cases and proceedings, for officers' fees, taxed to attorney, marshal and clerk, respectively, it will be seen that a less number of items, as well as less aggregate amount, are found in the former than in the latter. The printed items in use, and taxed by the judge or clerk under the act of 1853, prove that in all the New York Districts, the officers of the courts of the United States, are disposed to give a rather liberal construction to the meagre " fee bill of 1853," as published in Appendix I. Supreme Court FoBMS. 3Y5 SUPEEME OOUET FOEMS. ( No. \. ) Appearance. SupKEME Court of the United States. — December Term, 18 , No. , vs. The clerk will enter my appearance as counsel for ( No. 2. ) Receipt FOR Record. Supreme Court of the United States. — December Term, '18 . No. , vs. Beceived from the clerk a copy of the record, as counsel for ( No. 3. ) ' Clerk's Bond. Know all Men by these Presents — That we, , of , in the «ounty of and State of , and of , in the county of , and State of , are held and firmly bound unto D. W. Middleton, clerk of the Supreme Court of the United States, in the full and just sum of two hundred dol- lars, current money of the United States, to be paid to the said D. W. Middleton, his heirs, executors, administrators, or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated this day of , in the year of our Lord, one thousand eigH hundred and Whereas, lately, at , in a suit depending in said court, between was rendered 376 Appendix III. against the said , and the said having obtained to remove the said cause to the Supreme Court of the United States, and filed a transscript of the record of said court in said cause in the office of the clerk of the Supreme Court of the United States, to reverse the in the aforesaid suit. Now, the condition of the above obligation is such, that if the said obligors shall well and truly pay, or cause to be paid, to the said D. W. Middleton, his heirs, executors, administrators or assigns, all such fees as shall accrue to him, the said D. W. Middleton, clerk as aforesaid, and charged to the said in the prosecution of the said , then the above obligation to be void ; otherwise, to remain in full force and virtue. [L. S.] Sealed and delivered in the presence of [l. s.] (N. B. — ^Insert the post ofiices (and if in a city, the streets and numbers) of the sureties. The party (plaintiff in error or appellant) should not join in the bond, as he is bound without it.) I, of the Court of the United States, for the District of , do hereby certify that the within named obljgors are known to me to be perfectly good and re- sponsible for the within named amount. ( No. 4. ) Writ of Ebboe,^ State Court. United States of America, m; The President of the United States, To the Honorable the Greeting : Because, in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said before you, or some of you, being the, highest court of law or equity of the said State in which a decision could be had in the said suit between wherein was drawn in question the validity of a treaty or stat- ute of, or an authority exercised under, the United States, and the decision was against their validity ; or wherein was drawn in ques- tion the validity of a statute of, or an authority exercised under, said State, on the ground of their being repugnant to the constitu- Supreme Court Forms. 377 tion, treaties, or laws of the United States, and the decision was in favor of such, their validity ; or wherein was drawn in question the construction of a clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision was against the title, right, privilege, or exemption, specially set up or claimed under such clause of the said constitution, treaty, statute, or commission, a manifest error hath happened, to the great damage of the said as by complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do com- mand you, if judgment therein be given, that then under your seal, distinctly and openly, you send the record and proceedings .aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington, on the Monday of next, in the said Supreme Court to be then and there held, that the record and pro- ceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error, what of right, and according to the laws and custom of the United States, should be done. ' Witness, the Honorable , Chief Justice of the said Supreme Court, the Monday of , in the year of our Lord one thousand eight hundred and Clerk of the Supreme Court of the United States. Allowed by ( No. 5. ) Writ of Error, Federal Court. United States of America, ss: ^ The President, of the United States, To the Honorable the Judge of the Court of the United States for the District of Greeting : * Because, in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said Court, before you, between a manifest error hath happened, to the great damage of the said as by 378 Appendix III. complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judg- ment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Wash- ington, on the Monday of next, in the said Supreme Court, to be then and there held ; that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error, what of right, and according to the laws and custom of the United States, should be done. Witness, the Honorable , Chief Justice of the said Supreme Court, this day of in the year of our Lord one thousand eight hundred and Clerk of the Supreme Court of the United States. Allowed by (No. 6.) ClTATIOir. The United States of America — To Greeting: You are hereby cited and admonished to be and appear at a Su- preme Court of the United States, to be holden at Washington on the Monday of . next, pursuant to a writ of error filed in the clerk's office of the wherein plaintiff in error, and you are defendant in error, to show cause, if any there be, why rendered against the said plaintiff in error as in the said writ of error mentioned, should not be corrected, and why speedy justice should not be done to the parties in that behalf. Witness, the Honorable of the this day of in the year of our Lord one thousand eight hundred and ■ On this day of in the year of Our Lord one SvPREHB Court Fobms. 379 thousand eigbt hundred and personally appeared before me, the subscriber, and makes oath that he delivered a true copy of the within citation to Sworn to and subscribed the day A. D. 18 . ( No. T. ) Bond on Appeal. Know all Men by these Presents — That we * are held and firmly bound unto in the full and just sum of to be paid to the said • certain attorney, administrators or assigns ; to which payment, well and truly to be made, we '' bind ourselves, our heirs, executors and administrators, jointly and severally by these presents. Sealed with our seals, and dated this day of in the year of our Lord one thousand eight hundred and Whereas, lately at a in a suit depending in said court, between was rendered against the said and the said having obtained and filed a copy thereof in the clerk's office of the said court to reverse the in the aforesaid suit, and a citation directed to the said citing and admonishing to be and appear at a Supreme Court of the United States, to be holden at Washington the first Monday of De- cember nexj. Now, the condition of the above obligation is such, that if the said shall prosecute to effect, and answer all damages and costs if fail to make plea good, then the above obligation to be void; else, to remain in full force and virtue. Sealed and delivered in presence of [L. S.] [L. S.] Approved by [l. s.] 380 Apptindix III. ( No. 8. ) Bond ON Gebtiiicate. Know all Men by these Presents — That are held and firmly bound unto Clerk of the Supreme Court of the United States, in the full and just sum of two hundred dollars, current money of the United States, to be paid to the said his heirs, executors, administrators or assigns ; to which payment well and truly to be made, bind , heirs, executors and administrators, jointly and severally, by these presents. Sealed with seal , and dated this day of in the year of our Lord one thousand eight hundred and WMreas having filed in the Supreme Court of the United States a certificate of a division in opinion of the Judges of the Circuit Court of the United States for the district of in a suit depending in said court, wherein the said and for the decision of said Supreme Court in said case, agreeably to the act of Congress in such case made and provided : Now the condition of the above obligation is such, that if the said shall well and truly pay, or cause to be paid, to the said his heirs, executors, administrators or assigns, all such fees as shall aocrue to him, the said clerk, as aforesaid, and chargeable to the said in the prosecution of said suit, then the above obligation to be void ; otherwise, to remain in full force and virtue [L. 8.] [L. S.] Sealed and delivered in presence of ( No. 9. ) JvDQMENT— State Court Writ. Supreme Court op the United States. — December Term, 18 . In error to the court of the State of This cause came on to be heard on the transcript of the record Supreme Court Forms, SgJ from the court of the State of , and was argued by counsel. On consideration whereof, it is now here ordered by this court, that the of the said court, in this cause, be, and the same is hereby ( No. 10. ) Judgment — Federal .Court Writ. Supreme Court of the United States. — December Term, 18 . In error to the Court of the United States for the District of This cause came on to be heard on the transcript of the record from the Court of the United States for the District of • , and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Court, in this cause, be, and the same is hereby (No. II.) Decree — Federal Court Appeal. Supreme Court op the United States.— December Term, 18 Appeal from the ' Court of the United States for the District Court of This cause came on to be heard on the transcript of the record from the Court of the United States for the- Dis- trict of , and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Court, in this cause, be, and the same is hereby 382 Appendix III. (No. 13.) Mandate to State Court. TJnited States of Amebioa, ss : The President of the United States of America. To the Honorable the Judges of the Greeting : Whereas, lately, in the , before you, or some of you, in a cause between as by the inspection of the transcript of the record of the said , which was brought into the Supreme Court of the United States, by virtue of a writ of error, agreeably to the act of Congress, in such case made and provided, fully and at large appears. And whereas, in the present term of , in the year of our Lord, one thousand eight hundred and , the said cause came on to be heard before the Supreme Court of the United States on the said transcript of the record, and was argued by coun- sel. On consideration whereof, and the same is hereby remanded to you, the said judges of the said , in order that such pro- ceedings may be had in the said cause, in conformity to the judg- ment and decree of this court above stated, as, according to right and justice, and the Constitution and laws of the United States, ought to be had therein, the said writ of error notwithstanding. Witness the Honorable Chief Justice of said Supreme Court, the Monday of , in the year of our Lord one thousand eight hundred and Costs. Clerk $ Attorney Taxed by Cleric of the Supreme Court of the United States. Supreme Go urt Forms. 383 (No. 13.) Mandate to Federal Covrt. United States of America, ss : The President of the United States of America, To the Honorable the'judges of the Court of the United States for the District of Cheeting: Whereas, lately, in the Court of the United States for the District of , before you, in a cause between , as by the inspection of the trans- cript of the record of the said court, which was brought into the Supreme Court of the United States by virtue of , agreeably to the act of Congress, ia such case made and provided, fully and at large appears. And whereas, in the present term of , in the year of our Lord one thousand eight hundred and , the said cause came on to be heard before' the said Supreme Court, on the said transcript of the record, and was argued by counsel. On con- sideration whereof, you, therefore, are hereby commanded that such proceedings be had in said cause, as, according to right and justice, and the laws of the United States, ought to be had, the said notwithstanding. Witness the Honorable , Chief Justice of said Supreme Court, the ' Monday of , in the year of our Lord one thousand eight hundred and Costs. Clerk $ Attorney Taxed by Clerk of the Supreme Court of the United States. 384 Appendix HI. OIEOUIT COTJET FOEMS. t Ko. 1. ) Bill in Equirr. United States Circuit ) t t^ -. District OF ). In Equity. To the Honorable the Judges of the Circuit Court of the United States for the Circuit, vithiu and for the District of , a citizen of the State of {or) a corporation dulj established under the laws of the State of ), bring this their bill of complaint against , a citizen (or citizens) of ' in said district. And thereupon your orators complain and say : That , a citizen of the United States, was the true and original inventor of a new and useful improvement in , which said improvement was not known or used by others before the inven- tion and discovery thereof by , who thereupon did apply to the Commissioner of patents of the United States for letters- patent for said improvement, and fully and in all respects complied with all the requirements of the law in that behalf, and especially made oath that he verily believed himself to be the true inventor or discoverer of the said improvement, and also 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 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 person skilled in the art with which the said improvement is most nearly connected, to make and use the same ; which said description was duly signed by the said , and attested by two witnesses ; and there- upon the said Commissioner of patents caused letters-patent to be made out and issued in the' name of the United States of America, GiBcuiT Court Fosms. 38,5 in due: form of law in ail respects, bearing daite.tte day of , in the yeax one thousand eight hundred and , wher-eby was granted untp. the said - , his heirs, administrators, or assigns, for the term of years from the date thereof, the full and exclusive right and libe];tj of making, conr Btructing, using, and vending to others to \>&. used, the; said improve* ment, which is entitled in said letters-patent, " A new and useful improvement in ; " and the said letters-patent having been signed by , Secretary of the interior of the United States, and conntersigued and sealed v^ith the seal of the patent office by , Comniissioner oC patents of the United States, and the same having been duly recorded, were issued a^d delivered unto the said And your orator further show unto your Honors, that the defend-! ant since the day of has been engaged in making, using and selling a large amojint of , such as is described in said patents, and that the defendant refused to pay to your orator any of the profits which made by such unlawful manufacture, use and sales, or to delist from making,, nsing, and selling the same in violation and infringement of your orator's rights, secured to them as aforesaid, and without their consent or allowance. All which actings and doings are contrary to equity and good conscience, and tend to the manifest injury of your orator in the premises. In consideration whereof, and forasmuch as your orator can only have adequate relief in this Honorable Court, where matters and things of this kind are made cognizable by statute : To the end, therefore, that the said defendant may, if can, show why your orator shonld not have the relie)f hereby pyayed, and may, upon corporal oath and according to best and utmost knowledge, remembranco, information and belief, full, true, direct and perfect answer, make tq the matte l's and things herein- before stated and charged : And that the said defendant may answer the premises, and that may be decreed to account with and pay over to your orator. the profits which has or might have made by infringe- ment of said letters-patent in such unlawful manufacture, use and sale of 25 386 Appendix III. May it please your Honors, the premises considered, to grant unjto your orator a 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,) enjoining and restraining the said clerks, attorneys, agents, servants and workmen from making any as is described in such letters-patent. And that your orators may have such further and other relief as the nature of the case may require, and to your Honors seem. meet; May it please your Honors to grant unto your orator, not only the writ of injunction conformable to the prayer of this bill, but also a writ of subpcena directed to the said commanding on a day certain, therein to be named, to be and appear in this Honorable Court ; then and there to answer the premises; and to stand to, perform, and abide such further order, direction and decree, as may be made against And your orator, as in duty bound, will ever pray, etc. Solicitor and of Counsel for Complainant United States op America, DiSTBICT OF I ss: At in the county of and district afore- said, on this day of A. D. 18 , personally appeared the above named , who being duly sworn according to law, deposeth and saith, that he is the complainant in the foregoing bill, and has read the same, and knows the contents thereof; That the said bill is true of his own knowledge, except as to those matters which are therein stated to be on information and belief of the complainant, and as to those matters, he believes it to be true ; That this deponent verily believes to have been the first and original inventor of the improvements claimed in said letters-patent. Circuit Court Forms. 337 ( No. 2. ) Equity Order for Subpcena. At a term of the Circuit Court of the United States of America, for the District of New York, in the Second Circuit, held at the on the day of in the year of our Lord one thousand eight hun- dred and Present : — The Honorable v (Justice or Judge.) vs. } In Equity. I ) On filing bill of complaint in this cause, and on motion of complainant's solicitor : Ordered, that a writ of sub- poena do issue out of, and under the seal of this court, pursuant to the prayer of said bill — and that this cause be docketed for complain- ant. ( JVo. 3. ) Equity SuBP(ENA to Appear and Answer. The President of the United States of America, To ' Greeting : You are hereby commanded that you personally appear before the judges of the Circuit Court of the United States for the District of New York, in the Second Cir- cuit, on the to answer to a bill of complaint [l. s.] exhibited against you in the said court by and to do further and receive whatever said court shall have considered in that behalf, and this you are not to omit undet the penalty of two hundred and fifty dollars. Witness the Honorable Chief Justice of the Supreme Court of the United States, at the city of in said District, the day of eighteen hundred and Ckrk. Solicitor for Plaintifft 3(88 Appendix III. Memorandum. — The defendant is to enter his appearance in the suit above mentioned, in the clerk's o£Sce at , on or before the day at which the above subpoena is returnable, otherwise the bill may be taken pro confisso. Solicitor for Plaintiff. MUrshal's Rt^um. — I hereby certify, that I served the within sub- poena on at on the day of A. P., 18 , and on at on the day of A. D., 18 , by delivering to and leaving with them, and each of them, a copy of this subpoena, and at the same time showing them, and each of them, this original, with the seal of the court attached. Dymty. District of New York : I hereby aatorize and depute to execute the annexed process, and make due return according to law. Vmted: States Marshal, , District of New Yorki Deputy Marshal. ( Jfo. 4. ) Eqvitt Precept for Appearance. U. S. CIRCUIT COURT, District op New York. vs. \ In E^ity. J The clerk of this court will please enter my appearance as solicitor , for the defendant in the above entitled cause. Yours, &c.. Solicitor for Defendant.. ' Dated, 18 CiRcviT Court Forms, 389 (iro. 5.) Mquitt Order for Appearance. U. S. CIRCUIT COURT, District of New ToaK. vs. in EgiMty. On filing precept in ttis cause and on motion of , ordered that -his appearance as solicitor for the defendant herein be and the same hereby is entered, and that this cause be now docketed for said defendant. (No. 6.) Hqtfitr Motion for Leave to File Supplesiejs'tal BIll.. U. S. CIRCUIT COURT, District op New York.. ■ In EqtMty, The complainants in the above entitled cause move the coaart upon) the proposed supplemental bill of complaint herewith filed,, for Iteaive to file the same as a supplemental bill of complaint in said cause, and that the same stand filed therein as of the rule day for- the first Monday of , A.. D. 18 , (motion to be heard oa saM rule day before his Honor , at o'clock.)! Dated, Solicitor for Complaihemt.. (No. T.) ^Qtfitr Answer. U. S. CIRCUIT (30URT, District of New York„ : _^ I vs. } In Eqmty. . . '. J The answer of to the bill of complaint of complainant. The defendant, now and at all times' hereafter, saving and reaerr- 390 A PPENDIX III. ing to himself all and all manner of bene^t and advantage of excep- tion to the many errors and insufficiencies in the complainant's said bill of complaint contained, for answer thereunto or unto so much or such parts thereof as this defendant is advised is material for him to make answer unto, answers and says All of which matters and things the said defendant is ready to aver, maintain and prove, as this honorable court shall direct, and hereby "prays to be hence dismissed with his reasonable costs and charges in that behalf sustained. Solicitor, and of Counsel. District op New York, County of , being duly sworn, says, that he is the defend- ant in the above entitled cause, that he has read the foregoing ans- wer and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters therein stated on infor- mation and belief, and -as to those matters he believes it to be true. Sworn to before me this day ) of ^ A. D., 18 . \ ( JTo. 8. ) Equity Order on Exceptions. U. S. CIKCUIT COURT, District op New York. vs. \ In Equity. ■ ■ J Exceptions for insufficiency having been filed to the answer of the said on the day of 18 , and the said not having submitted to answer said exceptions, on motion of solicitor for complainant, it is ordered that said exceptions be set down for a hearing on the next rule day, viz : the first Monday of A. D., 18 , before Judge, at the in the city of at o'clock Circuit Court Forms. 391 ( No. 9. ) Equitt Rbplica,tion. U. S. CIRCUIT COURT, District of New York. vs. \ In Equity. J The replication of the above named complainant to the answer of defendant. This repliant saving and' reserving to himself now, and at all times hereafter, all, and all manner of ben- efit and advantage of exception which may be had or taken to the manifold insufficiencies of the said answer, for replication thereunto, say that will aver, maintain and prove bill of com- plaint to be true, certain and sufficient in the law to be answered unto ; and that the said answer of the said defendant is uncertain, untrue and insufficient to be replied unto by repliant without this ; that any other matter or thing whatsoever, in the said answer con- tained, material or eflFectual in the law to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed and avoided, traversed or denied, is true ; all which matters and things repliant is and will be ready to aver, maintain and prove, as this honorable court shall direct, and humbly prays as in and by said bill ha already prayed. Solicitor for Complainant. ( No. 10. ) EquiTT Notice for Proofs under Oral Examination. U. S. CIRCUIT COURT, District of New Yorr. ■US. \ In Equity, J Sir : — You will please take notice that the complainants in said cause desire the evidence to be adduced therein, to be taken orally, under the 67th rule of the Supreme Court, as amended ; and you will further take notice that by an order made in said cause by Esq., one of the examiners of said court ; the 392 \lAppENmx Iir\ examination of witnesses on the part of the said complainants will take place before said examiner at in the city of on the day of A. D., 18 , at o'«lo6k and proceed as said examiner may diteet. Dated Yours, &c., Solicitor for Complainants. To Solicitor for pefendants and l)efendants. (No. II.) Equity D^scniSTAL OrjDeb. U. S. OIECUIT COURT, District op New Yokk. In Equity. This cause having been heretofore heard on argument by counsel for the respective ^parties, on the pleadings and proofs, and the court having considered the same, and being of the opinion that the com- plainant was the first and original inventor of the as described and claimed in his patent, adjudges and decrees that the defendant has infringed the said patent in making and vending the (patented article, whatsoever it may be,) as charged in the said bill of complaint, and that the said complainant is entitled to have a perpetual injunction to restrain said defendant, his agents, servants, and all claiming or holding under or through him, from making vending or using, or in any manner disposing of (the patented article) embracing the invention or iffliprovements described in said letters- patent, namely, (describe the patented article.) And it is further adjudged and decreed that the cause be referred to , esquire, the clerk of this court (or esquire, a master pro hac vice), to ascertain and report th'e B'umber of (describe paleHted article) made, and also the number g&ld by the said defendant since the day of A. D. 18 , a'tfd %1ie damages complainalit has sustained, br use and profits the defendant has derived by reason of sucih infringem6At since the time last aforesaid. , Circuit Court t'oRMS. 393 And upon the coming in and confirmation of the said report that said complainant hare a decree and execution for the amount found due to him, and also for the costs in this suit to be taxed. ( No. 12. ) Equity Masters' Summons. U. S. CIRCUIT COURT, Disxkict av New Yoek. 1 vs. \ In Equity. ^ J In pursuance 6f the authority contained in a decretal order, made in the above entitled cause, by the Son. , one of the judges of this court, at a term, held at in said district, on the day of 18 , , I, the subscriber, obe of the masters of the said court, do hereby summon yOu as defendant (or) ^s witnesses to appear before me, itt said district, on the day of 18 , at o'clock, in the noon, to attend a hearing befote me, the said master of the matters in refer- ence in the said cause, to be had by virtue of the order of the said court above referred to. And hereof you are not to fail at your peril. Master in Equity. Dated the day of 18 . Underwriting. — To appear for a personal examination and to pro- duce all books, vouchers and documents concerning accounts in this Slit. '• V . ' Master in Equity. I direct the above summons to be served previous to the return day thereof, days. Master in Equity. 394 Appendix III. ( No. 18. ) EquiTY Master's Report. U. S. CIRCUIT COURT, District of New York. 1 vs. \ In Equity. J To the Hon. , Judges in said Court : In pursuance of a decretal order made and entered in this cause, and bearing date on the day of , A, D., 18 , at a stated term of this court held at the in the city of , by which it was referred to _ Esq., of , one of the masters of this court to take and state an account of the use, gains and profits by defendants in the manufac- ture and sale of described in the plain- tiff'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, the subscriber, 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 plaintiff's solicitor, , Esq., and also by defendants in the city of , aforesaid, where, after taking due proofs, I find and report that the amount thereof is the sum of dollars. I do, therefore, respectfully report that the said defendants should be decreed to pay the said plaintiffs the sum of dollars, beside costs to be taxed. I respectfully refer to schedules A, B, C, hereto annexed, as making a part of this my report. All which is respectfulty submitted, TJ. S. Master. Dated, ■ Circuit Covrt Forms. 395 ( No. 14. ) Equity Exceptions to Report. U. S. CIRCUIT COURT, District op New York, I vs. ■ \ In Equity^ ■ J Exceptions taken by the to the report made herein by the master pro hoc vice, to whom this cause was referred by an order of this court on the day of A. D., 18 , and by the decree made herein on the day of , A. D., 18 , which report bears date the day of , A. D., 18 First Exception. — For that the master in his report ( No. 15. ) EquiTT Order for a Feigned Issue, &c. U. S. CIRCUIT COURT, District op New York. vs. y Defendants' Solicitor. A motion Iftiving been made in this cause on the part of the defendants for a feigned issue to try the validity of complainant's patent for an improvement in , (and also for leave to amend the answer on file, or to file a supplemental answer,) and, on hearing Mr. , on the part of the defendants, and Mr. , on the part of the complainant, ordered that a feigned issue be granted, and that the following questions be tried at law aX. the next Circuit Court of the United States, to be held at , viz : 1st. Whether or not the complainant is the first and original inventor of the improvement in , for which the above patent has been granted? 2d. Whether or not the manufactured by the defendants are substntially identical with those of the complainant in their construction and mode of operation ? 396 Appendix III. 3d. If an infringement is made out by the complainant, what amount of damages has been sustained by him ? And it is further ordered that the defendants have leave to file an amended answer or a supplemental answer to the bill filed within thirty days from the service of a copy of this order. And it is further ordered that the defendants give the same notice of the defence on the trial of the above issue at law, and within the same time that would be required if the trial was in a suit at law. The jury here come into court and being called., and the following questions being put them, viz : "First Quistion. — Was the plaintiff the original and first in- "ventor of the ?" " Second Question. — "Was the .plaintiff the original and first " inventor of the combination described in his patent, ^ ? " The jury, in answer to each of said questions, respond in the negative. ( Ko. 16. ) Equity Final Decree. U. S. CIECUIT COURT, District op New York. \ln Equity. J This cause hating been heretofore brought to a hearing upon the report of Esq., of the court, to whom it was referred, to ascertain and report the number of embracing the principle of the complainant's invention, as described and claimed in his patent, as mentioned and set forth in the bill of com- plaint in this cause that had been made, and also the number sold by the said defendants, or either oi them, since the day of 18 , and the damages the complainant had sustained, or use and profits the defendant had derived by reason of the infringement of such ps(tent since the time last aforesaid, which report bears date 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 reserved) and the said cause having been argued by the counsel for tie Circuit Court Forms. 39T said complainant and by the counsel for the defends.nts, and due deliberation had thereon. It is ordered, adjudged and decijeed, and tliis court by virtue of the power and authority therein vested, doth hereby order, adjudge, and decree, that It is further ordered, adjudged and decreed, and this court by virtue of the power and authority therein vested, doth further orderj, adjudge, determine and decree, that the said. dsfend8.nts are respect? ively liable to the said complainant. 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 each of the said defendants pay to the said complainant. And it is further ordered, adjudged and decreed, that the said defendants pay to the said complainant his costs in this suit, to. be taxed, and that have execution for such posts, and for the sums ^bov« decreed, to be paid as aforesaid. ( No. 17. ) Equity Taxed Costs. U. S. CIRCUIT COURT, District of New York, In Equity. Complainant's Costs on Decree. Solicitor's fee $20 00 Disbursements ; Paid postages: and' express charges. Paid for certified papers ,..,... Depositions at $2.50, taken and used Marshal's Fees.: Sei^ving subpcenas at $2 each Travel at 6c, going from place of service to place of re- tuTa — miles 398 Appendix III. Clerk's Fees: Filing bill of complaint, 10c ; entering order, 15o 25 Copying order, 10c ; certificate and seal, 35c 45 Issuing subpoena 1 00 Copies subpoena, 2 folios, 20c; certificate, 35c, being at 55e per copy Filing subpoena and entering return of service 25 Copying order on defendant's appearance, 1 folio certified, 45 Copying defendant's answer — ^folio at 10c and certificate B5o Filing replication 10 Filing depositions and papers at 10c each Issuing injunction, $1 ; copies, 4 folios certified at 75c . . . Copying depositions, folios at 10c, $ ; certificate, 35c, Making and enrolling decree, folios at 15c Copying enrolled decree, folios at 10c, $ , and certifi- cate 35c (if required) ^ Final fee on issue, docketing, indexing, etc 3 00 Issuing execution, $1 ; filing execution and entering re- turn, 25c 1 25 $ Taxed at $ this day of A. D. 18 . Clerk. ( No. 18. ) Equity Perpetual Injunction. • The President of the United States of America, To and to counsellors, attorneys, solicitors and agents and each and every of them. Greeting : Whereas, it has been represented to us in our Circuit Court in Equity, for the District of New York, on the part of plaintiff that have lately exhibited bill of complaint in our said Circuit Court, for the District of New York, against you. Circuit Court Forms. 399 the said 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 plaintiff, touching the matters set forth in the said bill, and that your actings and doings in the premises are contrary to equity and good cons6ience : We, therefore, in consideration thereof, and of thfe particular matters in the said bill set forth, do strictly command you, the said and the persons before mentioned, and each and every of you, under the penalty of ten thousand dollars, to be levied on your lands, goods and chattels, to our use, that you do absolutely desist an'd refrain from until the further order of our said Circuit Court. Witness, , Chief Justice of the Supreme Court of the United States, at the city of the day of one thousand eight hundred and Clerk. Solicitor. ( No. 19. ) Equity Revised Degree on Mandate, Sj-c. U. S. CIKCUIT COURT, District op New York. t)S. \ In Equity. J The above named defendants heretofore duly appealed to the Supreme Court of the United States, from certain parts of the final decree made by this court in this cause, and bearing date the j and the said Supreme Court of the United States, havine at the term, 18 , duly heard the said appeal upon the transcript of the record, and having, thereupon ordered, adjudged and decreed that so much of the said decree of this court as allows the said complainant costs, and the sum of for interest on the profits found for him, was erroneous, and should be reversed and annulled, and that the residue of the said decree of this court should be affirmed ; and the said Supreme Court having remanded the said cause to this court, with instructions that such proceedings be had in said cause, as according to right and justice, 400 Appendix III. and the laws of Uie United States, oijight to be had, the said appeal, notwithstandiag, which said decree, order and ingtiructions, appear to this court by the mandate of the said Supreme Court. "Sow, therefore, on filing the said inandate, ordered ( NO' 20. ) EquiTT Enrollment of Decree. At a term of the Circuit Court of the United States for the District of New York, held at the city of in the said District, on the day of A. D., 18 . Present : — The Honorable one of the judges of said court. U. S. CIRCUIT COURT, Disteict op New Yoek. vs. \ In Equity, The plaintiff filed his bill of complaint, which is ' hereto annexed, on the day of 18 , against the defend- ant a subpoena to appear and answer in said cause was thereupon issued, returnable on the day of 18 , and was served personally previous to the return day thereof on the defendant. The defendant appeared in said cause by as his solicitor. On the day of 18 , the defendant filed his answer to said bill, which answeJT is hereto annexed, A replication to said answei; was filed on the day of 18 , which repMoation is hereto annexed. That on the day of 18 , a report, and the ora>l and tpritten evidencfti, proofs; and exhibits referred to therein, as hereto annexed, were all duly filed. On the day of 18 , the defends^nt filed his except tions to said report, which exceptions are hereunto, annexed. On the day of 18 , the pUintiff filed his ^xceptioii^ to said report^ which exceptions are hereunto a.Bnexed. On the day of 18 , the sa^d cause haying been pire^ Circuit Court Forms. 401 viously brought to a hearing, a final decree waa made and entered therein in the words and figures following, to wit : Whereupon the said pleadings, proofs, orders and final decree, and taxed costs, together with other papers in said cause, are duly an- nexed hereto, and this decree is duly signed, filed and enrolled, pur- suant to the rules and practice of the court. (Judge or Clerk.) (On the day of 18 , the plaintifi", under leave of the court first obtained, filed his supplemental bill of complaint, which is hereto annexed. On the day 6f . 18 , an interlocutory order was made and entered in said cause as fpUows :) (No. 21.) {Law.) — Bond of Non-Resident Plaintiff. Know all men by these Presents — That I, , of the Distridt of New York, am held and firmly bound unto of the county of in the District of New York, in the sum of two hundred and fifty dollars, lawful money of the United States of America, to-be paid to the said their executors, administrators or assigns, for which payment well and truly to be made, I bind myself, my heirs, executors and assigns, firmly by these presents sealed with my seal and dated this day of A. D., 18 . Wlmreas, , heretofore a resident of the city of in the District of , commenced an action in the Circuit Court of the United States for the District of New York, against the said , now, therefore, the conditions of this obligation is such that if the said shall pay on Remand all costs that may be awarded to them the said , , then this obligation to be void, otherwise to be and remain in full force and virtue. United States 2d Circuit, ) District of New York, \ **" , of said District being duly sworn says, thai he is a resident and freeholder within the State of , and worth the sum of five hundred dollars, over and above all debts and 26 402 Appendix III. liabilities whicli he owes or has incurred and in property not exempt from execution. Sworn before me this day ) of 18 . \ United States 2d Circuit, ) ^^ District of New York, ) ' , On this day of A. D., 18 , personally appeared before me the above named , by me known to be the individual described in and who executed the foregoing instrument and acknowledged the execution thereof C/,.S. Gam. (Bfo. 22.) (Law^ — Summons iob Cobpobation. ^ The President: of the United States of America, To the Marshal of the Northern District of New York, Crreeting : You are hereby commanded that you summon to be and appear before the Judges of the Circuit Court of the United States in and for the District of New York, in the Second Circuit at the in the city of , on the day of A. D., to answer unto of a plea of trespass on the case for dollars damages (sustained by the plaintiff in an action of Infringement of Letters Patent issued by the United States,) and do you then and there make due return of this writ. Witness, the Honorable Salmon P. Chase, Chief Justice of the Supreme Court of the United States, at the city of [ L.«s. ] , the day of A. D., and of the Independence of the United States the Clerki Plaintiff's Attorney. Circuit Court I orms. 403 (No. 23.) {Law.) — Capias ad respondendum. The President of the United States of America, To the Marshal of the District of New York, Greeting : We command you, , that you take , defendant , if shall be found in your District, and safely keep, so that you may have bod before the Judges of the Circuit Court of the United States of America for the District of New York, in the Second Circuit, to be held at , in the city of , [ L. s. ] in the said District, on the day of to answer unto plaintiff in a plea of trespass : And also, to a certain bill of the said plaintiff against the said defendant for according to the custom of the said court, before the said judges, then and there to be exhibited, and that you have then there this writ. "Witness, the Honorable Chief Justice of the Supreme Court of the United States, at the city of , the day of , in the year oue thousand , and of the Independence of the United eight hundred and States the ninety- Plaintiff's Attorney. Clerk. I hereby depute the within writ. Dated to execute 18 . U. S. Marshal. Served personally on the within named defendant. U. S. Marshal. by Ikputy. 404 ^ -^ PPHNDIX III. ( No. 24. ) {Law) Declaration (os Narr.) U. S. CIRCUIT COURT, Distkict of New York. — ) vs. \ ■ J Of the day of 186 . As yet of Term in the year of our Lord, one thousand eight hundred, and District of New York, ss: , being a citizen of the United States of America, and a resident of . , plaintiff in this suit, by , his attorney, complains of / , defendant , of th'e said District, iof I a plea of trespass on the case. For that whereas the said , of the town of , in the county of' and State of New York, and in said district, before and at the time of the makingjjf the letters patent, and , of the committing of the grievances by the said i as heretofore mentioned, were the true, original and first inventors of a certain new and useful improvement in , which was not known nor used before such invention or discovery as afore- said, and were not at the time of the plaintiff's application for let- ters patent therefor, as hereinafter mentioned, in public use or on sale,«with the consent or allowance of said or either of them; and whereas, said. being such original and first inventors, and being citizens of the United States, obtained for said invention letters patent of the United States in due form of law, under the seal of the Patent Office, bearing date the And whereas, the said letters patent having been wholly assigned by the said , to the said , and having been surrendered by the said , for being partially invalid on account of a defective specification, were can- celed and new letters ordered to issue to said on the amended specification. And whereas the plaintiff did accordingly obtain new letters patent for such invention in due form of law, upon such amended specification, under the seal of the Patent Circuit Court Forms. 405 Office, and signed by the Secretary of the Interior, and counter- signed by the Commissioner of Patents, and bearing date the , eighteen hundred and , which said re-issued let- ters patent did grant according to law, to the said , his heirs, administrators and assigns, for the term of years from the said day of , eighteen hundred and , the full and exclusive right and liberty of making, con- structing, using,, and vending to others to be used, the said improve- ment, a description whereof was given in the words of the said , in a certain schedule to said letters annexed and made part thereof, as by reference to said letters patent and the said specification thereto annexed, which the plaintiff now brings hero into court, will fully appear. And the plaintiff further says, that from the time of the granting to him of the said letters patent hitherto, he has made, used, and vended to others to be used, the said improvement, to his great advantage and profit. Yet the said defendant , well knowing the premises, but contriving to injure the plaintiff, did, on the day of , eighteen hundred , and at divers other times before and afterwards, during the said term of years mentioned in said letters patent, and before the commencement of this suit, at , in the county of and State of New York, unlawfully and wrongfully, and without the consent or allowance, and against the will of the plaintiff, did use, and cause to be used, the said improvement, in violation and infringe- ment of the exclusive right so secured to plaintiff by said letters patent as aforesaid, and contrary to the form of the statute of the United States in such case made and provided, whereby the plaintiff has been greatly injured and deprived of great profit and advantagCj which he otherwise would have derived from said improvement, and has sustained actual damage to the amount of dollars ; and by force of the statute aforesaid, an action hath accrued to him to recover the said actual damages, and such additional amount, not exceeding in'the whole, three times the amount of such actual dam- age as the court may see fit to order and adjudge, besides costs. Yet the said defendant , though requested, ha 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. Attorney and of Counsel for Plaintiff, County, JV. Y. 406 -^ PPENDIX III. DisTKicT OF New York, ss; , being duly sworn, says, that on the day of , 186 , he personally served on the defendant , within named, a copy of the within decla- ration and notice of rule to plead as herein indorsed. Sworn before me this ) day of ,186 . ) Sir — Please to take notice that the within is a copy of a decla- ration, filed with the clerk of the United States Circuit Court, at , that you are required to plead thereto, within twenty days from service hereof on you, or judgment by default, &o. Yours, &e., Plaintiff's Attorney, County, N. Y. , To the above defendant. ( Mo. 45. ) {Law.) — PznA and Special Notices. U. S. CIRCUIT COURT, District of New York. Plea. And the said defendant - by his attorney comes and defends the wrong and injury, when, &c., and says that he is not guilty of the supposed grievances above laid to his charge, or any or either or any part thereof,,in manner and form as the said plaintiff hath a^ove thereof complained against , and of this the said defendant puts himself upon the country, and the said plaintiff doth the -like, &c. And it is suggested to the court, now here, that the defendant gives the following notices in writing of special matter to the plaintiff, thirty days before trial, under section 15 of the act of Congress ]^assed July 4th, 1836, entitled "An act to promote the progress of the useful arts, and to repeal all acts and parts of acts heretofore made for that purpose :" First, Notice of Special Matter. — Take notice that the above named defendant will prove upon the trial of this cause, in bar of CiR cuiT Co VRT Forms. 407 the said plaintiff's action, that the^said the assignors of the said plaintiff was not the original or first inventor of (here describe the patent.) And the said defendant will further prove, upon such trial as aforesaid, that the same principle was known to and had been pre- viously combined by and invented by , who resides (or resided) at in the State of , and that the same was known to and combined by said as early as 18 , And the said defendant will further prove, upon said trial as aforesaid, that what^s claimed in said declaration and in said letters patent therein mentioned, and' the specifications and drawings thereto attached, as the invention of said assignors of said plaintiff named in said declaration was substantially and in principle known to of in the State of And the said defendant will further prove, upon said trial as afore- said, that the thing patented in and by the letters patent was not first invented by or known to said , but the same was publicly known and used prior to the time when it is alleged in this action the same was invented by him. And the defendant will prove that , who resides at , possessed such prior knowledge of the said thing mentioned as aforesaid in said declaration. And that the said thing was in public use and on sale anterior to the said supposed discovery or invention thereof by said 2d. Please take notice that, on said trial of this cause, in addition to the notices already served upon you, the defendant will prove l)y , of , and others, that they knew of the use of said thing, or substantially the same, as the alleged invention of said and the same, or substantially the same, was used by prior to the alleged invention thereof. That the samej or substantially the same, was previously invented and patented " 18 , by And the same was, previously to the time when it is claimed they invented or discovered the same, in public use with his consent and allowance, and upon sale with his consent and allowance, and sub- sequent to the time when it is claimed he invented or discovered the same. 408 Appendix III. (No. 26.) {Law.) — SuBFCENA to Testify. The President of the United States of America, To (if a duces tecum, here add "and bring with you all.") Greeting : We command you, that all and singular business and excuses being laid aside, you and each of you appear and attend before the Judges of the Circuit Court of the United States of America, for the District of New York, at a Circuit Court to be held at , in the city of , in and for the said District !i [ L. S. ] of > on the day of , at o'clock in the forenoon, to testify and give evidence in a cer- tain cause pending in the said court, and then and there to be tried between on the part of the i And this you, or any of you, are not to omit, under the penalty, upon you, and every of you, of two hundred and fifty dollars. Witness, Esquire, Chief Justice of the Supreme Court of the United States, in the city of , the day of , in the year of our Lord one thousand eight hundred asd Chrh. (BTo. 27.) (La w.) — Judgment Record. in the Circuit Court of the United States for the District of New York. Pleas before the Judges of the Circuit Court of the United States for the District of New York, at the city of , at the Term of said court, held at said city on the Tuesday of , A. D.. 18 Witness, the Honorable , one of the Judges of said court. Clerk. Circuit Co urt Forms. 409 District of New York, ' Be it remembered that, heretofore, to wit : at a Term of the Circuit Court of the United States for the District of New York, held at , in the said District, before the Judges of the said court, , (a corporation, was duly summoned to answer unto of a plea of trespass on the case for infringment of letters patent, or by declaration filed and served) brought suit against , in this court, in the District of ; and, thereupon, the said , plaintiff , declared against the said , defendant , as follows, to wit : (Insert Declaration.) Note. — See Form No. 24. And it is suggested to the court, now here, that the said plaintiff gave oyer in the words and figures following, to wit, of the letters patent mentioned in the said declaration and of the schedule referred to in the said letters patent, and annexed thereto (oyer) (here recite letters-patent.) The schedule referred to in these letters-patents, and making part of the same, is as follows : (Not a usual suggestion.) (Insert Pleas and Notices.) Note.— See form No. 25. And hereupon the process thereof is contained between the parties aforesaid of the plea aforesaid, in this same court before the judges thereof, and the issue above joined is ordered by the said court to be tried at the term of this court appointed to be held at the city of ( on the day of in the year 18 , at which day and place last aforesaid came the parties afore- said, by their attorneys aforesaid before the judges of the said court, and the jurors of the jury summoned to try the ■ said issue being called also came, who, to speak the truth of the matters aforesaid being chosen, tried and sworn, say, upon their oath, that the said defendant is guilty of the premises above laid to his charge, in man- ner and form as the said plaintiff hath above complained against him, and they assess the damages of 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 costs and charges to cents. 410 Appendix III. Therefore, it is considered that the said plaintiff do recover against the said defendant his said damages, costs and charges, by the jurors aforesaid in form aforesaid assessed, and also dollars and cents 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 cents. And said defendant in mercy, &c., Judgment signed this day of A. D. 18 , Clerk. ( No. 28. ) (Law.) — Taxmd Costs to Plaintiff. U. S. CIRCUIT COURT, Disxrict op New York. } Plaintiff's Costs on Trial, after Verdict. " Attorney's fee by statute ,...,.... $20 00 Disbursements : Taking depositions at $2,50 each Witnesses fees paid, viz : A. B. C, one days' attendance, ' $1,50 each, is Miles travel, at 10c. one way Certified copy papers obtained and used JPostage and express charges paid out ' (Models paid for and used in court, if any) Marshal's Fees: Serving subpoenas at 50c. each witness Travel for service at 6c. one way, each subpoena Clerk's Fees: Filing narr, 10c. ; entering rule to plead, 15c 25 Copying rule to plead, lOp.; certificate and seal, 35c 45 Copying rule on appearance of defendant, lOe. ; certificate and seal, 35c 45 Circuit Court Forms. 411 Copying pleas or papers if ordered, at 10c. per folio, and certified Oaths to witnesses, on trial, at 10c. each Filing papers at lOc; each order at 15c Making dockets and indexes, and taxing costs 3 00 Issuing execution 1 00 Aggregate $ Taxed at $ this day of 18 . Clerk. (No. 39.) {Law.) — Execution. The President of the United States of America, To the Marshal of the District of New York, Greetijig : We command you, that of the goods and chattels of In your district, you cause to be made (for a certain judgment) which plaintiff lately in the Circuit Court of the United States of America, in the Second Circuit for the Dis- trict of New York, recovered against [ L. s. ] and which in the said court were adjudged to the said plaintiff for (debt or) damages, which had sus- tained, as well as on occasion as for costs and charges by about suit in that behalf expended; whereof the said defendant is convicted, as appears to us of record. And if suflScient goods and chattels of the said defendant cannot be found in your district, then we command you, that you cause the {debt or) damages aforesaid to be made of the lands and tenements, and real estate, whereof the said defendant was seized, on the day of in the year of our Lord one thousand eight hundred and , or at any time afterwards, in whose hands soever the same may be ; And have you that money before the judges of the said court, at the on the day of 18 , to render to the said plain- 412 -A^ PPENOIX III. tiff for (debt or) damages aforesaid. And have you then and there tliis writ. Witness, the Honorable Chief Justice of the Su- preme Court of the United States, at the in the said district, the day of in the year of our Lord one thousand eight hundred and , and in the year of the independence of the United States of America. CUrlt. Attorney. ( So. 30. ) (Law) Petition, ^c, Removal of Case fuom State VouBT sr U. S. Officer. To the Honorable the Circuit CourtfOf the United States, held in and for the District of New York. The petition of , of , in the county ' of , within said district, respectfully shows that your petitioner was at the various times hereinafter named, and is now an oflScer of the United States, to wit, "* in and for the of New York. That your petitioner was on the day of , A. D., . 18 , personally served with a summons and complaint issued out of the Supreme Court of the State of New York, wierein one is named as plaintiff, and your petitioner as defendant. That said summons and complaint were served on petitioner within the said District of New York ; that by such service a suit and prosecution has been commenced in the said Supreme Court of New York against your petitioner ; and that the grounds of such suit jand prosecution, as stated in the complaint aforesaid, are that your petitioner did on or about the day of , A. D., 18 , at , in the State of New York. Your petitioner therefore prays that the said action may be removed into the Circuit Court of the United States, in and for the District of New York, pursuant to the provisions of the statute in such case made and provided. And your petitioner will ever pray, &c. Dated, A. D., 18 . Circuit Court Forms. 413 District op New York, ) County of \ *** , of 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 the matters therein stated on information and belief, and as to those matters he believes the same to be true.' Sworn before me this day ) of , A. D., 18 . \ District of New York, ss. I) , do hereby certify that I reside at the city of , in the said district ; that I am a counsellor-at-law in the Supreme Court of the State of New York, and also in the Courts of the United States for the District of New York ; that as counsellor for the above named peti- tioner, I have examined the, proceedings against him, and have care- fully inquired into all the matters set forth in the foregoing petition, and that I believe the same to be true. Counsellor for the Petitioner above named. Dated, , A. D., 18 ( No. 31. ) {Law) Certiorari, for Removal Case srom State Court. The President of the United States of America, To the Supreme Court of the State of New York, in the Judicial District. Gi'eeting : Being informed that there is now pending before you a suit in which is plaintiff and defendant, which suit was commenced in said Supreme Court against the said for and on account of acts done by him "under the revenue laws of the United States. That said suit was commenced by summons and complaint, and that said suit has not been tried, and we being willing for certain reasons that the said cause and the records and proceedings therein should be 414 Appendix III. certified by the said court, and removed into our Circuit Court of the United Stat.es in and for the District of New York ; do ■ hereby command you that you send without delay to the said Circuit Court, as aforesaid, the record and proceedings in said cause, so that the said Circuit Court may act thereon as of right and according to law ought to be done. Witness the Honorable Salmon P. Chase, Chief Justice of the Supreme Court of the United States, at the day of , A.^., 18 Clerk. Attorney for Plaintiff in Error. Service of the within is hereby admitted this day of , A. D., 18 ( No. 38. ) I {Law.) — Petition, etg., for Removal Case against 2foN- Resident Defendant. SUPREME COURT— State op New York, County of The petition of , the above named defendant, shows to the court that the above suit was begun against him in the Supreme Court of the State of , by the service of a summons upon him on the day of 18 . That he has not appeared in said suit. That at the time said suit was begun, and at the present time, the plaintiff was and is a citizen and resident of the State of , and the defendant was and is a citizen and resident of the State of That the matter in dispute in said suit, and for which said suit is brought, exceeds the sum of dollars exclusive of costs, and the defendant hereby offers and of as sureties for his entering in the Circuit Court of the United States, for the district wherein said suit is pending, on the fiijst day of the next session of said court, (or before,) copies of the process and pro- ceedings and papers against him, and also for his appearing in said Circuit Court,, and entering special bail, if required, and for his com- Circuit Court Forms. 415 '— — . ■■ ^ ^- plying, in all respects, with the provisions in the premises of the judiciary act of the United States, passed 1789. Wherefore, the defendant prays this Honorable Court that said case be removed into the Circuit Court of the United States for the district of New York, and that this court proceed no further in the premises. ^ State of New Yoek, ) County of J *' being duly sworn, says, that he is the defendant in the above entitled action, and has read the foregoing petition subscribed by him and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. Sworn to before me this day ) of A. D. 18 . j ( No. 33. ) {Law.) — Bond on a Removal witb Affidavit, etc. Know all men by these presents. That we of the city of ' and of the city of and of the city of are jointly and severally held and firmly bound unto in the penal sum of dollars, for which well and truly to be paid unto said his heirs, executors, admin- istrators and assigns, we bind ourselves, our heirs, executors and assigns and- administrators firmly by these presents, sealed with our seal, this day A. D. 18 . The condition of this obligation is such that if the said defendant in a suit now pending in the Supreme Court of the State of New York, for the county of ' , shall forthwith and during the present term, or on the first day of the next session or term of the Circuit Court of the United States for the district of New York, enter copies of the process in said suit against the said and of all papers and pro- ceedings in said Supreme Court, and shall enter the appearance of gai(j in said Circuit Court of the United Statesi 416 A PPENDIX III. and shall enter special bail in the cause, if special bail were origin- ally required, then this obligation to be void and otherwise to remain in full force and effect. In witness whereof, tKe said obligors have hereunto set their hands and seals this day of A. D. 18 . State op New York, County of ' On this day of A. D. 18 , before me , personally came and to me personally known and known to me to be the persons who executed the foregoing bond, and acknowledged that they executed the same for the uses and purposes therein mentioned. (Ko. 34.) {La w.) — A ttoeney's Affida vit of Proceedings. SUPKEME COURT— State op New York. County of 1 I City and Countt op , ss: being sworn says, that on the day of , A. D., 18 , he caused to be entered with the Clerk of county, at the appearance of the defendant in the above suit, by , his attorney. That at the time of entering said appearance, the defendant caused to be filed with said clerk a petition for removal of the above cause, from the State Court to the United States Circuit Court for the District of New York, and a bond with suitable sureties, all as required by the twelfth section of the judiciary act of Congress of 1789. That deponent is one of the at'lorneys for the defendant, and de- ponent says that he desires to move before the Term of this court, as soon as said motion can be made and heard, for an order removing this cause to the United States Circuit Court for the District of New York. • That defendant desires a stay of proceedings in order to enable Eai4 motion to be made Circuit Court Forms. 417 That the above action was begun on or about the day of , A. D., 18 , by the service on the defendant of a summons. That the sum sued for and in dispute exceeds dollars, exclusive of costs. That at the time said suit was begun and at the present time, the plaintiff was and is a citizen and resident of the State of New York, and the defendant was and is a resident and citizen of the State of That until said day of , A. D., 18 , the defendant has not appeared in this action. Sworn to before me on the day of A. D„ 18 '! (>No. 35.) (Law.) — Notice and Order of Stay for a Removal Case. SUPREME COURT— State of New York. County of vs. Please take notice that on the petition of the defendant and the bond accompanying the same, which were heretofore filed in the office of the Clerk of county, and on the notice of appearance of the defendant herein, and his appearance which were filed and entered heretofore with said clerk and served on you and on the summons herein and all the papers and proceed- ings herein, whereof copies of said petition and bond and notice of appearance are herewith served, and on the affidavits of , copies of which are herewith served, we shall move this Honorable Court at a Term thereof, to be held at the , in , on the day of , A. D., 18 , at o'clock , or as soon thereafter as counsel can be heard for an order staying all proceedings in this suit in the State Court, and removing the same into the United States Circuit Court for the District of New York, under the judiciary act of 1789. ^ Yours, &c. Defendant's Attorney. To Plaintiff's Attorney. 27 418 Appendix III. SUPREME COURT— Statu of New York. County of Let all farther proceedings on the part of the plaintiff be stayed until the special term of this court to be held at the Court House, in , on the day of , A. D., 18 , and until the further order of the court, then to be made on the motion in this action for such term. Dated Justice of Supreme Court. Due service of the within is hereby .admitted. Plaintiff's Attorney. ( No. 3S. ) (Law.) — Order of State Court for Removal of Cause. At a Special Term of the Supreme Court, held at the in the city of on the day of A. D., 18 . Present : — Honorable Justice, . SUPREME COURT— County of On the pleadings and proceedings herein, and on the petition and bond filed herein by the defendant under the 12th section of the judiciary act of 1789, and on motion of defendant's attorney, ( attorney for the plaintiff consenting.) It is ordered that the security offered by the defendant be ac- cepted and said bond approved, and that the State Court proceed no further in this cause, and that this cause be removed into the United States Circuit Court in and for the District of New York. Clerk. , Circuit Court Forms. 4X9 ( No. 87. ) {Law.) — Notice of any Reference. TJ. S. CIROUIT COURT, District op New York. vs. > In conformity with the order entered in the above entitled cause, you will please to take notice, that the reference ordered therein, will be proceeded with before me (a commissioner duly appointed by the Circuit Court of the United States for the District of New York, under and by virtue of the acts of Congress ip 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 notified to attend with the testimony you may have to oflfer in the matter referred. Dated the day of A. D., 18 . Yours, etc., United States Commissioner. ( Ko. 38. ) (Law.) — Adjustment ON Verdict. U. S. CIRCUIT COURT, District of New York. vs. In pursuance of an order made in the above entitled cause, on the day of in the year of our Lord one thousand eight Tiun- dred and by which, among other things, it was referred to the undersigned to adjust the amount for which judgment shall be en- tered upon the verdict in this cause, and to report thereon to this court with all convenient speed-7- I, to whom the matter was referred, do report, that I have been attended by the counsel for the and have taken and examined the testimony offered in support of the plain- tiff 's claim, and do find that the plaintiff entitled to judgment on said verdict for and to interest on said sum, from the date of its payment to tho defendant, to the date of said verdict, amounting to , in the aggregate amounting to Dated the day of A. D., 18 . All which is respectfully submitted, Attorney for plaintiff. 420 Appendix III. ( No. 19- ) (La w) — Writ of Inquiry. The President of the United States' of America, To the Marshal of the District of Greeting : Whereas, lately, in the Circuit Court of the United States of America for the District of , before the judges thereof, at , in the said District, by bill, without our writ impleaded being in custody, &c., for that (here insert the declaration) to the damage of the said of as he said, and thereupon he brought his suit, &c. And such proceedings were thereupon had, in the said Circuit Court,, before the judges thereof, that the said ought to recover against the said , his damages by reason of the premises; but because it is not known to the said court what damages the said hath sus- tained by reason of the premises aforesaid; therefore, jou are hereby commanded, that by the oaths of twelve good and lawful men of your district, you diligently inquire what damages the said hath sustained, as well by means of the premises 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 judges of the said Circuit Court at. , in the said district on , under your seal and the seals of those by who^e oaths you shall take such inquisition, and have you this writ there at the same time. , ' [l. s.] Witness the Honorable , Chief Justice, &c. Chrk. ( No. 40. ) {La w) — Inq uisition. An inquisition indented, taken at , on , before me, , marshal of the District of , by virtue of the writ to me directed, and to this inquisition annexed, by the oaths of good and lawful men of my district, who being charged and sworn, say upon their Circuit Co urt Forms. 4 2 1 oaths that in the said writ named, hath sustained ■ damages occasioned by reason of the premises therein contained, to $ , besides costs and charges six cents. In witness whereof as well I, the said marshal, as the jurors afore- said, our seals to this inquisition have severally put, the day and year aforesaid. Note — For Form of Record in case of default or on writ of inquiry, see form 27, page 408, changing the continuance after Usue to, '' And hereupon the defendant makes default, &c., &c." (No. 41.) [Law) — Taxed Costs, Default, ij-c. U. S. CIRCUIT COURT, District of New York. vs. \ , J Plaintiff's costs on 'default, writ of inquiry and judgment. AUorney's Fees. Before issue $10 00- Disbursements Marshal's Fees. Executing writ of inquiry $5 00' Serving writ (or capias if any) 2 00 Travel at 6c. per mile, miles Clerk's Fees. Filing declaration, 10 cents; entering rule to plead, 15 cents; copy rule, 10 cents ; certificate and seal, 35 cents $> 70 Entering default, 15 cents ; copy rule on default, 10 cents ; certificate and seal, 35 cents 60 Clerk attending on inquiry one day 5 00 Issuing writ of inquiry, $1 1 00 Making -dockets, indexes, &c 1 00 Making judgment record, folios at 15 Issuing execution 1-00 Issuing writ of possession, (if done) 1 00 Filing and entering return of execution 25 (Filing and entering return of writ of possession) 25 1 422 Appendix III. (No. 42.) {Law) — Taxed Costs, Non Pros. U. S. CIKCUIT COURT, Distbict of New Yoek. vs. Bill of costs on judgment of non pros (in case removed or other- wise). Attorney's Fees. .Before issue $10 00 Disbursements ^ . . Marshal's Fees. Serving certiorari at $2 per defendant $ Travel to place of return at 6c Clerk's Fees. Filing petition, lOc, and entering rule for certiorari, 15e. $ 25 Copy rule, 1.0c. ; certificate and seal, 35c 45 Issuing certiorari in duplicate on removal from State court at $1 each , 2 00 Filing certiorari and entering return ; and filing precept and entering rule on appearance 50 Certified copy 45o. ; entering rule for pleading de novo, 15e. 60 Copy certified, 45c. ; filing papers at 10c. $ ; rule for judgment, l5c Copy rule certifie^, 45c.; final fee for making dockets, indexes, &c., $1 1 45 Making judgment record folios at 15c Issuing execution, $1 ; filing execution and entering re- turn, 25o 1 25 CmcmT CouBT Forms. 423 (No. 13.) {CRijaiNAL) — Obdbr for Grand Jvrt. United States op America, , \ DISTRICT OP NEW YORK, In pursuance of the authority in me vested, I do hereby order and appoint that a grand jury be drawn and summoned to serve in the Circuit Court of the United States of America, in and for the District of Ne^ York, at a session of said court, to be held at the court house in , on the day of , 18 , and that a venire issue to marshal therefor. Judge or Justice, ( No. 14. ) {Criminal.) Precept to Marshal for Grand and Petit Jurors. ^ The President of the United States of America, To the marshal of the United States for the district of Nevf York, Greeting : We command you, that you cause to come before a Circuit Court of the United States for the district of New York, to be held at , in the city of . , in the said district of New York, on the day of at o'clock in the fore- noon, twenty-four good and lawful men of your district, to inquire for the United States, and the body of the said district, and to do and receive all those things which, in behalf of the United States, shall then and there be enjoined them"; and, also, all the prisoners' then and there being' in any or either of the jails of said district, with their attachment and all other muniments in any wise concern- ing those prisoners, and likewise thirty-six free and lawful men resident within the district of New York, of the age of twenty-one years and upwards, and under sixty years old, (who are , at the time assessed for personal property belonging to them in their own right to the amount of two hundred and fifty dollars, or who shall have a freehold estate in real property in the said district 424 Appendix III. belonging to them in their own right, or in the right of their wives, to the value of one hundred and fifty dollars,) by whom the truth of the matter shall be the better known and inquired into, and who are in no wise of kin to the plaintiffs or defendants between whom the several issues joined are to be tried, nor to those prisoners. t And you, the said marshal, and your deputies, in your and their proper persons, shall then and there attend to do all those things which to your and their o£Sces appertain to be done in that behalf, arid have you then therte the names of those jurors, and those prison- ers, and this writ. "Witness, the Honorable , Chief Justice of the Supreme Court of the United States, at the city of , in the said • district of New York, this day of in the year of our Lord one thousand eight hundred and and of the independence of the United States the IJ. S. District Attorney. Clerk. ( rro. 45. ) {Criminal.) — Capias ob Bench Wamrant. The President of the United States of America, To the marshal of the district of New York, Greeting : We command you, that you arrest if shall be found in your district, and that you safely keep so that you may have body before the Circuit Court of the United States of America, for the district of New York, to be held at in the second Circuit, in and for the said district of New York, [ Ji. s. ] before the judges of the same court, on the day of next, to answer unto the United States on an indictment pending and on file against hJm for ' , as will more fully appear by reference to the said indictment, and that you also have then and there this writ. Circuit Co xtht Forms. 425 Witness, the Honorable , Chief Justice of the Supreme Court of the United States of America, at in the said district of New York, the day of in the year of our Lord one thousand eight hundred and sixty , and of the independence of the said United States the Attorney. Clerk.- I (No. 46.) {GrIMINAL.) — Sv^P(ENA TO TESTIFY. The President of the United States of America, To Greeting : We command you, that all and singular business and excuses being laid aside, you and each of you be and appear in your proper per- sons, before the Circuit Court of the United States of America for the District of New York, in the Second Circuit, at in the city of in the said District of New York, on the day of one thousand eight hundred and at o'clock in the noon of the same day, to tes- tify all and singular, what you and each of you may know in a cer- tain crimipal case now depending undeterinined in the Circuit Court of the United States, for the District of between The United'States of America vs. defendant, on the part of the And this you or either of you are not to omit, under the penalty upon each and every of you of two hundred and fifty dollars. Witness : — Hon. Chief Justice of the Supreme Court of the United States, at the city of the day of in the year of our Lord one thousand eight hundred and Clerk. 426 Appendix III. (No. if.) {Criminal.) — Ga. 8a. on a Fine Imposed. The President of the United States of America, To the Marshal of the District of New York, Greeting: ' We command you that in default of the payment of fine imposed on conTicted at term for the offense of to be collected, if you are able so to do, out of the goods and chattels, lands or tenements of said or any part thereof, therefore you do take said if shall be found in your district, and that you safely keep so that you may have bod before the Circuit Court of the United States of America, for the District of New York, to be held at in the Second Circuit, in and for the said District of New York, before the judges of the same court, on the next, to answer unto The United States of America, and that you also have then and there this writ. Witness, the Honorable Chief Justice of the Supreme Court of the United States of America, at in the said District of New York, the day of in the year of our Lord one thousand eight hundred and sixty and of the independence of the said United States the , Clerk. Attorney. U. S. CIKCUIT COURT, District op New York. vs. > Ca. Sa. Issued on order of U. S. Attorney, to imprison, &c., defendant in default of payment of fine $ imposed by order of court at term, A. D., 18 . Clerk. CiRGviT Court Forms. 427 ( Ko. 48. ) {Criminal.) — Commitment to Penitentiart. At a session of the Circuit Court of the United States of America, for the District of New York, held at the in the said district, on the day of in the year of our Lord one thousand eight hundred and Present : — The Honorable Judge. U. S. CIKCUIT COURT, Disteict op New Yokk. The U. S. op America. vs. The prisoner having heen indicted and arraigned, and having been tried and convicted of the offence of the court now here, on motion of Mr. United States Attorney, does adjudge and sentence the said to be imprisoned in the at and confined at hard labor for the term of ' And it is further ordered and adjudged, that the marshal transport the said to the said and deliver him the said to the keeper of the said and that the said keeper detain the said prisoner according to this sentence ; and that the clerk of this court immediately certify, under the seal of the court, and deliver to the marshal of the district a copy of this judgment, sentence "and order, to accompany the body of the gaid and to be left therewith at the said' the said copy to be warrant and authority for the transportation and imprisonment of the said as hereinbefore provided. I certify the foregoing to be a true copy of an original judgment, sentence and order of the said court, as filed in my ofiaoe. Witness my hand and the seal of the said court this day of [^.s.] A.D.,18 . ^^^^^^ 428 Appendix III. ( No. 49. ) {Criminal.) — Certificates, &c., on Division of Opinion. At a Circuit Court of the United States, begun and held at the city of , for the District of New York, on the day of A. D., 18 Present, Hon. Judge. Present, Hon. Judge. U. S. CIRCUIT COURT, District of New York. This is an indictment, against the defendant, charging him with having; at the city of , in the State of New York, on the day of , A. D., 18 ^ , knowingly exercised and carried on, 'the trade or business of a [lottery ticket dealer), and with having sold and offered to sell [lottery tickets), without having taken out and without having a license therefor, according to the provisions of the act of Congress entitled " An act to provide Internal Revenue and to pay interest on the public debt " and the amendments thereof. The defendant demurs to ,said indictment and the matters therein contained, as not sufficient in law to compel him to answer the same: The government joins in said demurrer, and it is stipulated by and between the respective parties, in writing, that' the defendant may have the same benefit as if he had pleaded specially the con- stitution and several laws of the State of New York, on the subject of [raffling and lotteries). And had also pleaded specially that at the several times mentioned in the indictment, he was a citizen of the said State, and exercised and carried on his business therein. The case coming on to be argued at this term, it occurred as a question, whether the defendant could be legally convicted and punished under the said indictment, and the acts of Congress therein referred to, for the offense of carrying on, without license, under the said acts of Congress, the business mentioned and described in such indictment, while the said business was unlawful and wholly pro- hibited by the laws of the State of New York, and said defendant was a citizen of and resident therein, and while said business could GiR cuiT Court Forms. 429 not be carried on by the said defendant, as alleged in said indict- ment, without his being liable to indictment, conviction and punish- ment under the laws and statutes of said State, for the criminal offense of (selling lottery tickets) and carrying on said business in violation of said statutes of said State. On which question the opinions of the judges were opposed. Whereupon, on motion of the United States, by their district attorney and counsel, that the point on which the disagreement has happened, may, during the term, be stated under the direction of the judges, and certified under the seal of the court, to the Supreme Court, to be finally decided. It is ordered that the foregoing state of the pleading, &c., and the following statement, made under the direction of the judges, be certified, according to the request of the United States, by their attorney and counsel, and the law in that ease made and provided, to wit : That the {sale of lottery tickets) and the carrying on of the business mentioned in the indictment as therein stated, was then and there, under the constitution and laws of the State of New York, a criminal offense ; and now and for the last ten years, has been a crime punishable by indictment, fine and imprisonment under the statutes of said State. U. S. CIRCUIT COUET, District of New York. At a stated session of the Circuit Court of the United States of America, held in and for the District of New York on the day of A. D., 18 , before the Honorable Judge of the said court, assigned to keep the peace of the said Uni- ted States of America in and for the said district, and also to hear and^ determine divers felonies, misdemeanors and other offenses against the said United States of America, in the said district com- mitted, good and lawful men of the said district, then and there sworn and charged to inquire for the said United States of America, and for the body of said district, do upon their oaths, present that now or late of in the county of with force and arms, &c., to wit, at in the county of in the said District of New York, and within the jurisdiction of this court, heretofore to wit, on the day of in the' year of our Lord one thousand eight hundred and sixty and on divers days and times between that day and the finding of this indictment, did knowingly, feloniously and unlawfully exer- 430 Appendix III. cise and carry on the trade or business of _ for the exer- cising and carrying on of which trade or business, a license then was and is required, and without having taken out, and without having a license therefor, according to the provisions of the act of the Congress of the United States, entitled "An act to provide internal revenue, and to pay interest on the public debt," and the amendments thereof, against the statute of the United States of America, in such case made and provided, and against the peace of the said United States of America, and their dignity, TJ. S. AttoTTiey, District of New York. U. S. CIRCUIT COURT, District op New York. vs. And now comes the above named defendant in open court, and having heard the said indictment read, saith, that the said The Uni- ted States of America ought not further to impeach or prosecute him, the said defendant, touching the premises whereof he is by the said indictment accused, because he says that the said indictment, and the matters therein contained, are not sufficient in law to com- pel him, the said defendant, to answer the same ; and that no pro- cess upon the said indictment, ought, by the law of the land, to be issued against him, the said defendant ; and this he is ready to verify. Wherefore, he prays judgment of the court here, and that he may be dismissed and discharged of the said indictment. Attorney for Defendant. U. S. CIRCUIT COURT, District op New York. vs. And District Attorney of the United States for the District of New York, who prosecutes for the said The United States of America in this behalf, saith, that the said indict- ment, and the matters therein contained, in manner and form, aa the same are above stated and set forth, are sufficient in law to com- Circuit Court Forms. 431 pel the said to answer the same. And the said The United States of America is ready to verify, as the court here shall direct and award. Wherefore, inasmuch as the said hath not answered to the said indictment, nor hitherto in any manner denied the same, the said The United States of America pray judgment, and that the said may be convicted of the premises in the said indictment specified. TJ. S. Attorney, District of New York, ' U. S. CIKCUIT COURT, District of New York. It is hereby stipulated that upon and under the demurrer of the defendant interposed to the indictment in this case, the defendant may have the same benefit as if he had pleaded specially the consti- tution and several laws of the State of New York, on the suject of and had also pleaded specially that at the several times mentioned in the indictment he was a citizen of the said State, and exercising and carrying on his business therein. U. S. Attorn^, Defendant's Attorney, ] U. S. CIRCUIT COURT, District of New York. Certified to the Supreme Court of United States, pursuant to the statute. Witness my hand and official seal at N. Y., this day of 18 . [ L. s. ] Clerk. 432 Appendix III. ( No. 50. ) (Commissioners.) — Order on Appointment. Present — The Honorable Judges, U. S. CIRCUIT COURT, District op New York. In the Matter of the Appointment of As U. S. Commissioner. It is hereby ordered that of in said district be and he hereby is appointed a commissioner of this court, to take affidavits and acknowledgments of bail in civil causes depending in the courts of the United States, and to execute and perform all the duties and powers conferred on commissioners appointed by this court by each and every of the acts of Congress hereinafter specified, viz : An act in addition to the act entitled "An act to establish the Judicial Courts of the United States," approved March 2, 1793; and the act of Congress entitled "An act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States," approved Februrary 20, 1812, and the act of Congress entitled "An act in addition to the act, entitled ' An act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States,' " approved March 1, 1817 ; and the act of Congress entitled "An act further and supplementary to an act, entitled 'An act to establish the Judicial Courts of the United States,' " passed Sep- tember 24, 1789, approved August 23, 1842 ; and the act entitled " An act to amend and supplementary to the act entitled ' An act respecting fugitives from justice and persons escaping from the ser- vice of their masters,'" approved February 12, 1793, approved Sep- tember 18, 1850 ; or any other act of Congress having relation to such commissioners and their duties and powers, or by any other act of Congress now or hereafter in force. Note. — An official oath to be made in usual form, by the commissioner, and returned and filed with clerk of court. CiRciriT Court Forms. 433 (No. 51.) {Commissioners.) — Warrant to Arrest. To the marshal of the United States for the district of New York, and to his deputies, or any or either of them : Whereas, complaint has this day been made by on oath, before me, , a commissioner of the United States for the district of New York, charging that did, on or about the day of 18 Now, therefore, you are hereby commanded, in the name of the President of the United States of America, to apprehend the said and bring bod forthwith before me, one of the commissiojiers appointed by the Circuit Court of the United States for the district of New York, at my office, in the city of , that may then and there be dealt with according to law for the said offense. Given under my hand and seal, this day of in the year of our Lord one thousand eight hundred and and of our independence the U. S. Commissioner for the District of New York. ( No. 52. ) {Commissioners ) — Subp(ena. The President of the United States of America, To Greeting : "We command you, that all and singular business and excuses being laid aside, you and each of you, be and appear in your proper persons, before i a commissioner appointed by the Circuit Court of the United States of America for the district of New York, in the Second Circuit, at his office in , in the district of New York, on the day of , 18 , at o'clock in the noon 28 434 Appendix III. of the same day, to testify, all and singular, what you and each of you may know relative to a certain complaint now depending undeter- mined in the Circuit Court of the United States for the district of New York, before said commissioner, wherein the United States of America are complainants against on a charge of on the part of the United States. And this you or either of you are not to omit, under the penalty upon each and every of you of two hundred arui, fifty dollars. Witness, , Chief Justice of the Supreme Court of the United States, at the city of , in the said district, the day of in the year of our Lord one thousand eight hundred and TI. S. Commissioner for the District of New York. 4 (No. 5S. ) (Commissioners) Mittimus. U. S. CIRCUIT COUBT, District op New York, Caninty, To , Marshal of the United States for the District of New York, and his deputies, or either of them, and to the jailor of County in said District. You are hereby commanded to commit '^ , for further examination, upon a charge of having Given under my hand and seal, at the city of this day of ' ,18 TJ. S. Commissimier for the District of New York. Circuit Court Forms. 435 - (^ 03 p. I eg a « i g I I I M - I g ^ p. 5^ a c3 (D L. *^ -tJ I II •g §• - 1 to ■" g GO J^ (, a 2 2^-** ? „, « rS w t^ 6.S g.. © fl.S *■ 5 ffl'^'s "S « SL.S S"l=g g S fl CT) « a> V V &'2 bO 13 o Ss W' f?- IB S S a » ' -* ^ W «J *^ "* , °S^ Sx.i3 fl .fl -t^ -»a .fS .tJ .S -♦J OQ IS '3 rfl •1 p< a 1 a ■3 a o . Su-Q 11 Cm O s s a .5. OQ Receired from the Marshal the amount set opposite our names. i o o d in No. of miles comlngtoand ret'gfromCt. 1 a K 14. <% a o £5 2 (M . O DO Place of Residence. iQ is A A ■ H -< S Q 5 1 s o » • .S o a s tM 436 Appendix III. (No. 55.) {Commissioners) Recognizance. U. S. CIKCUIT COUKT, District of New York, County Be it remembered, that on this day of , 18 , personally came before me, , Commis- sioner of the United States for the District of New York, of the county of and of the county of and severally and respectively acknowledged themselves to be indebted to the United States of America, in manner and form following, that is to say — the said in the sum of dollars, and the said in the sum of dollars each, to be levied of their respective goods and chattels, lands and tenements, to the use of the said United States of America, if the said shall make default in the condition following : Whereas, the said was charged before the said commissioner on the day of , 18 , upon the oath of , with having And the said having b,een regularly brought before the said Commissioner to answer said charge, and from an examination of the said and others, on oath, in the presence of the said in regard to the offense thus charged, and from an examination of the said without oath in relation thereto, he having been by the said commissioner previously informed of the charge made against him, and that he was at liberty to refuse to answer any question that might be put to him', and he»having been allowed a reasonable time to send for and advise with counsel, and from an examination of the whole matter it appearing to the said Commisssioner, that the said offense had been committed, and that there was probable cause to believe the said • guilty thereof, the said Commissioner did thereupon order the said to enter into a recognizance himself, in the sum of dollars, with two sureties in the sum of CiRcmt GovRT Forms. 437 dollars each, for his appearance at the next Court of the United States, to be held in and for said District, to answer to an indictment thenand there to be preferred against him for said offense, and to do further and receive what should be then and there enjoined upon him by the said court, and not to depart the said court with- out leave. Now, therefore, the condition of this recognizance is such, that if the said shall personally be and appear at the next Court of the United States, to be held in and for the said District, then and there to answer to an indictment, to be preferred against him for said offense, and to do further and receive what shall then and there be enjoined upon him by the said court, and shall not depart the said court without leave, then this recognizance to be void, and of no effect — otherwise to remain in full force and virtue. Taken, subscribed and acknowledged before ) me, the day and year first above written. J TJ. S. Commissioner for the District of New York. DisTEicT OP New York, ) County ) the sureties named in the foregoing recognizance being severally sworn, depose and say : The said for himself saith that he is a residing in the county of , and that he is worth the sum of dollars, over and above all his just debts and liabilities. And the said , for himself saith, that he is a residing in the county of , and that he is worth dollars, over and above all his just debts and liabilities. Subscribed and sworn to before ) me, 18 ) U. S. Commissioner, District of New York. 438 Appendix III. ( No. 56. ) ( Commissioners.) — Final Commitment. U. S. CIKCUIT COURT, District of New York. County To Hon. , Marshal of the United States, for the / District of New York, and his Deputies, or either of them, and to the Keeper of the Common Jail of the County of These are to command you, the said marshal and deputies or either of you, to convey and deliver into the custody of the said keeper, the body of , charged upon the day of , 18 , before me, a Commissioner of the United States in and for said District, on the oath of ' , for that on or about the and the said having been regularly brought before me to answer said charge, and it appearing from an examination of the said and others, on oath, in the presence and hear- ing of the said, in regard to the offense thus charged, for the said having been allowed a reasonable time to send for and advise with counsel, and from an examination of the whole matter, that the said offense has been committed, and that there was probable cause to believe the said to be guilty thereof; and the said not having offered sufficient bail for his appearance at the next court having cognizance of such offense, to answer therefor, you the said keeper of the said common jail, of the said county of , are hereby required to receive the said into your cus- tody, and him there safely keep for want of sureties, and until he shall be discharged by due course of law. Given under my hand and seal, at the city of , in the said county of , the day of , one thousand eight hundred and sixty- Z7. S. Commissioner in and for the District of New -York. CiRcviT Co VRT Forms. 439 ( No. 5T. ) (OoMinssioNERS.) — Affidavit and Order for Examina- tion (DE BENE ESSE.) Affidavit to obtain an order for tlie examination of a witness in behalf of the plaintiff. [When the application is in behalf of the defendant, there will be , no difficulty in making the required alterations.] Circuit Court of the United States for the Circuit and District of , or . ' District Court of the United States in and for the district of U. S. CIRCUIT COURT, District of New York. vs. being sworn, says, that he is the plaintiif in the above entitled cause; that he is advised by his counsel and verily believes that the testimony of 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 lives at , more than one hundred miles from where the court, at which this deponent expects the said cause will be tried, is to be held (or, is bound on a voyage to sea ; or, is about to go out of the district in which the said cause is pending, and to a greater distance than one hundred miles, as this deponent is informed and verily believes ; or, is so aged or so infirm as to render it probable that he will not be able to attend as a witness at the trial of such cause.) And this deponent further says that, as he is informed and believes, , the above named defendant, resides at , aljout miles distant from the place where the examina- tion of the said witness is expected to be taken ; and that, as he is also informed and believes, , the attorney of the said resides at ' , about miles from as aforesaid. Order thereon Circuit (or District) Court, &c. , (as in the affidavit.) 440 Appendix III. vs. Let , the witness named in the above (or within) affidavit, be examined [de bene esse) before me accordingly, at on the day of at o'clock in the noon. [If either the defendant or his attorney resides within one hun- dred miles of the place of examination, then add] and let days' notice be giv^'n to the said difmdant (or to ■ , the attorney of the said defendant, as either mfty be nearest) of such examination. , ( JVo. 58. ) (GOMMISSIONEBS.) — NOTICE OP EXAMINATION {DE BENE ESSE.) Notice to the opposite party or his attorney Circuit (or District) Court, &c., {as above.) U. S. CIRCUIT COURT, District op New York. vs. Sir, you are hereby notified that will be examined {de bene esse) before me, at on the day of at o'clock in the noon, as a witness for the above plain- tiff, according to the act of Congress in such case made and provided, at which time and place you are entitled by law to be present, and to put interrogatories to the said witnes?. Dated, &c., U. S. Commissioners. To , the above named defendant, (or , attorney for the above named defendant.) Circuit GouBT FoEMS. 441 ( No. 59. ) ( Commissioners.) — SvBPanrA. U. S. CIRCUIT COURT, District of New York. To Take notice, that yoii are required to be examined (de bene esse) on the part of the in the above entitled cause, before me (a commissioner duly appointed by the Circuit Court of the United States for the district of New York, under and by virtue of the acts of Congress in such case made and provided), at my offise, 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 . U. S. Commisswner. (No. 60.) {Commissioners.) — Caption for Depositions to be taken {de bene esse.) U. S. OF AMERICA. District of New York, State of New York, County of Be it remembered, that on this day of in the year of our Lord one thousand eight hundred and I, a commissioner duly appointed by the Circuit Court of the United States, for the District of New York, in the Circuit, under and by virtue of the acts of Congress entitled " An act for the more convenient taking of affidavits and bail in civil causes, de- pending in the courts of the United States," passed February 20th, 1812, and the act of Congress entitled, " An act, in addition to an act, entitled, ' An act for the more convenient 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 establish the juditsial courts of the United States," passed Septem- 442 Appendix III. ber 24th, 1789, did call and cause to be and personally appear be- fiffe me, at my office, in the District of New York, in the State aforesaid, to testify, and the truth to say, on the part, and behalf of the in a certain suit, or matter of controversy, now depending and undetermined, in the Court of the United States, for the District of wherein And the said being about the age of years, and having been by me first cautioned and sworn to testify the truth, the whole truth, and nothing but the truth, in the matter of controversy aforesaid, I did carefully examine the said and he did thereupon depose, testify and say as follows, viz : (Sfo. CI.) {COMMISSIOXEES) — UHRTIFICATE lOlt DEPOSITIONS [DE BENE ESSE). U. S. OF AMERICA, District op New -Yokk, State of New York, County of I, , a Commissioner, duly appointed by the Circuit Court of the United States, for the District of New York, in the Second Circuit, under and by virtue of the acts of Congress, entitled " An act for the more convenient taking of affi- davits and bail in civil causes, depending in the Courts of the United States," passed February 20th, 1812, apd the act of Congress,' entitled, " An act, in addition to an act, entitled ' An act for the more convenient taking of affidavits and bail in civil causes, depend- ing in the Courts of the United States,' " passed March 1st, 1817, and the act, entitled " An act to establish the Judicial Courts of . the United States, passed September 24th, 1789, do hereby cieretify, that the reason for taking the foregoing deposition iS, and the fact is, that the witness , I further certify, that no notification of the time and place of taking the said deposition signed by me, was made out and served on the to be present at the taking of the deposition and to put interrogatories, if he or they might think fit I further certify, that on the day A. D., 18 I was attended by and by the witness who Circuit Court Forms. 443 of sound mind and lawful age, and the witness by me first carefully examined and cautioned, and sworn to testify the whole truth, and the deposition by me reduced to writing, in the presence of the witness and from statement and after carefully reading the same to the witness sub- scribed the same in my presence. I have retained the said deposi- tion in my possession for the purpose of the same with my own hand to the court for which the same taken And I do further certify, that I am not of counsel nor attorney for either of the parties in the said deposition and caption named, nor in any way interested in the event of the cause named in the 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 States, the TJ. S. Commissioner, Circuit Court of the United States, for the District of New York, in the Second Circuit, (No. 62.) {Quasi Commissioners.)— -Depositions taken before MOTART. U. S. OF AMERICA, ) District of New York, > ss. State of Neib York, County of ) I, , a Notary Public, in and for the State of New York, by letters patent, under the great seal of said State, duly appointed, commissioned and sworn, aiid duly authorized by the laws of the. United States to take depositions to be used in the courts of the United States, &c., do hereby certify, that no notification of the time and place of taking the foregoing deposition, signed by me, was made out and served on the said nor upon Esquire, attorney to be present at the taking of the foregoing deposition, and to put interrogatories if he or they might fit, and the reason for taking the foregoing deposition is, and the fact is, that the witness • lives, and did live --1^^ Appendix 111. at the time of taking said deposition, in the of county of and State of New York more than one hundred miles from the of where the court, at which the said expected the said cause would be tried, was appointed by law to he held, to wit, more than miles ; and the said and the said resides and then resided at _ in the State of ■ more than miles from the of in the of in the county of and State of New York, the place of caption to the foregoing deposition, being the place where the same was taken ; and that , Esquire, the attorney of the said the in this cause, resides and then resided at the of in the State of New York, more than one hundred miles, and about mjles from the of aforesaid. And I further certify that the said witness, was of sound mind and lawful age, and was, by me, carefully exam- ined and sworn to testify the whole truth ; and the foregoing depo- sition was by me reduced to writing in presence of the said witness, and from his statements, and after carefully reading the same to the said witness, he subscribed the same in my presence. And I further certify that I am not of counsel nor attorney for either of the parties to the said suit, in the said deposition and cap- tion named, nor in any way interested in the event thereof. In testimony whereof, I have hereunto set my hand and seal this day of , in theyear of our Lord one thousand eight hundred and ' and of the Independence of the United States Notary Publtc. ( Ko. 63. ) (Incidental.) — Commission. The President of the United States of America, To Grating : Know ye. That we, in confidence of your prudence and fidelity, Circuit Court Forms. 445 have appointed you Commissioner and by these presents, do give you full power and authority, diligently to examine upon corporal oath , or affirmation , before you to be taken, and upon the inter- rogatories hereunto annexed, as witness on the part of the in a certain cause now pending undetermined in the Circuit Court of the United States of America, for the District of New York, Second Circuit, wherein And we do further empower you, to examine on the same behalf, and in like manner, any other person or persons, who may be produced as witness before you ; and we do hereby require you, before whom such testimony may be taken, to reduce the same to writing, and to close it up under your hand and seal directed to as soon as may be convenient after the execution of this commission ; and that you return the same, when executed as above directed, with the title of the cause endorsed on the envelope of the commission. Witness, the Honorable Chief Justice of the Supreme Court of the United States, at the City of , this day of in the year of our Lord one thousand eight hundred and and of our Independence the Clerk. Attorney. " ( No. 64. ) {Incidental.) — Affidavit for Habsas Corpus ad Testi- ficandum. U. S. CIRCUIT COURT, Distmot of New York. vs. of the above named plaintiff, maketh oath and saith, that now a prisoner for debt (as the case may be) in the custody of the Sheriff of (or as the case may be), is a material witness for this deponent at the 446 Appendix III. trial of this cause, without whose testimony, as he is advised by his counsel, and verily believes, this deponent cannot safely proceed to the trial thereof. Sworn, &c. '\ (No. 65.) {Incidental.)— Wbit ofHabeas Gobpusad Testificandum. The President of the United States of America, To the Sheriff of (or as the case may be) , Greeting : You are hereby commanded that you have the body of now in prison (or as the case may be), under your custody, as it is said, under safe and secure conduct, before, &c. (as in the subpiena), to testify the truth, according to his knowledge, in a certain case now depending, &o. (as in the subpcena), and immedia,tely after the said shall then and there have given his testi- mony, 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. (as in the capias). (Ko. 66.) {Incidental ) — Commission ofDbdimus Potestatem. The President of the United States of America, To Greeting : Know ye. That in confidence of your prudence and fidelity, you have been appointed, and by these presents you, or any two or more of you, are invented with full power and authority to examine on his corporal oath, as a witness in a case depending in the Circuit Court of the United States, for the Circuit and District of (or, in'the District Court of the United States, in and for the District of ), wherein is plaintiff, and , defendant, on the part of the upon the interrogatories annexed to this commission ; and, there- fore, you are hereby commanded, that you, or any two or more of you, at certain days and places to be appointed by you for that pur- pose, to cause the said to come before you, and then and CiRcviT Court ^ORMS. ^ 447 there examine him on oath upon the said interrogatdries, and that you take such examination, and reduce the same into writing, and return the same annexed to this writ, closed up under your seals, or the seals of any two "or more of you, into the said Circuit (or Dis- trict) Court, before the Judges (or Judge) thereof, with all conven- ient speed. Witness, &c. (as above). The interrogatories and cross-interrogatories {if any) to be annexed to the commission, and the depositions are to be drawn up in the usual form. ' ( No. 67. ) , (Incidental.) — Writ of Scire Facias. The President, &c.. To the Marshal, &c., Greeting : Whereas, , , lately in the District Court in and for the district of , before the judge thereof, by the judgment of the said court, recovered against for his damages which he has sustained, as well, &c., as for his costs and charges, by him, &c., whereof the said is convi9ted, as appears of record : nevertheless, execution of the said judgment yet remains as we have received information of the said , and we willing 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 that he be before the judge of the said District Court, at on the day of to show, if he has or knew of any cause, why the said 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 namesj of those by whom you shall so make known to him, and this writ. Witness, &o., 448 Appendix III. ( No. 68. ) {Incidental.) — Gestificate of Autboritt, etc. United States of America, district of new york, I, , , clerk of the Circuit Court of the United States of America, for the district of New York, Second Circuit, do hereby certify that I am well acquainted with the handwriting of whose name is subscribed to the annexed , and that the signature to the same is in his proper handwriting. And I do further certify that he was, at the time of signing the same, a United States Commissioner, duly appointed by the Circuit Court of the United States of America, for the district of New York, Second Circuit. In testimony whereof, I have hereunto subscribed my name, and affixed the seal of the said Circuit Court, this day of in the year of our Lord one thousand eight hundred and , and of the Independence of these United States, the Clerk. ( No. C9. ) {Incidental.) — Satisfaction Piece. U. S. CIRCUIT COURT, District op New York. Clerk's Office, ] '- ^ New York, ^ , 18 j vs. > I, , clerk of the Circuit Courl of the United States for the district of New York, 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 Court, this day of in the year of our Lord one thousand eight hundred and , and of the Independence of these United States, the Clerk. Circuit Court Forms. • 449 ( No. TO. ) (Incidental.) — License., United States op America, ) district op new york. ) **' I, , clerk of the Circuit Court of the United States, for the . . district of New York, in the Second Circuit, do hereby certify that has bepn duly admitted and sworn as a of the said court, and has signed the proper roll in this office. In witness whereof, I have hereunto set my hand and the seal of the said court, this day of in the year of our Lord one thousand eight hundred and , and of the Independence of the United States of America the Clerk. ( No. TI. ) {Incidental.)— Certificate of a Return. United States op America, ) district op new york. \ **' I, , clerk of the Circuit Court of the United States of America, for the district of New York, in the Second Circuit, do hereby certify that the foregoing pages, numbered from to inclusive, contain a true and com- plete transcript of the record and proceedings had in said court, in the case of ^ against as the same remain of record and on file in said office. In testimony whereof, I have caused the seal of the said court to be hereunto affixed, at the city of , in the district of New York, in the Second Circuit, this day of in the year of our Lord one thousand eight hundred and , and of the Independence of the said United States, the Clerk. 29 460 Appendix HI. ( Mo. T8. ) {Incidental.) — Assignment of Errors. SUPREME COUET OF THE UNITED STATES. iis. > In Error Of December Term, in the year of our Lord one ihousand eight hundred and Afterwards, to wit : on the first Monday of December, in this game Term, before tjie justices of , the Supreme Court of the United States, at the^Capitol, in the city of Washington, comes the said by hi? attorney, and says that in the record and proceedings aforesaid, there is manifest error in this, to wit : [that the declaration aforesaid, and th^ matters therein contained, are not sufficient in law for the said to have or maintain his aforesaid action thereof against the said ; there is also error in this, to wit :] that by the re- cord aforesaid it appears that the judgment aforesaid given, was given for the said against the said whereas, by the law of the land, the said judgmient ought to have been given for the said against the said and the said prays the judgment aforesaid may be reversed, annulled and altogether held for nothing, and that he may be restored to all things which he hath lost by occasion of the said judgment, &c. Attorney far Plaintiff in Error. ( No. 73. ) {Incidental.) — Joinder in Error. SUPREME COURT OF THE UNITED STATES. vs. } In Error, And afterwards, to wit|: on the first Monday of December in De- cember Term, in the year of our Lord one thousand eight hundred and the said by his attorney, freely comes here into court, and s^ys that there is no error, either Circuit Court Forms. 45I in the record and proceedings aforesaid, or in the giving of the judgment aforesaid ; and he prays that the said Supreme Court of judicature, before the justices thereof now here, may proceed to ex- amine, as well the record and proceedings aforesaid, as the matters' aforesaid above assigned for error ; and that the judgment aforesaid, in form aforesaid given, may be in all things affirmed, &c. Attorney, for Defmdant in Error. ( No. 74. ) {Incidental.) — Habeas Corpus Writ. The President of the United States of America, To Greeting : You are hereby commanded, that you have the body of by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name the said ' shall be called or charged, before the Honorable Judge of the * Court of the United States for the District of New York, at the United States court room, iii the city of on the day of 18\ at o'clock in the noon, to do and receive, what shall then and there be considered, concerning the said And have you then and there this writ. Witness the Honorable . Judge of the District Court of the United States, for the District of New York,, at the city of the ' day, of ■ 18 Aitormy. Clerk, 452 Appendix III. ( No. T5. ) (Incidental.)— Taxed Bill Costs. [The following printed form has been furnished from the Eastern District New York Circuit Clerk's Office.] ' i ' U. S. CIKOUIT COURT, District of New York. The United States ■PS. Clerk's Costs on Seizure in Mevenue Case. Fihng 10c, entering Order for Process and "copy 25c #0 35 Issuing Process $1, Seal 2Qc ..-....; 1 20 Draft Report to the Solicitor of the Treasury, fol. 1 and copy, and entering 40c ; filing 10c 50 Draft and two copies certificate of substance of information from files for publication by the U. S. Marshal, fol. at 35c Order to return Monition and copy 25c ; filing Monition and Return 20c ; entering Return 15c r 60 Order for Proclamations and copy 25c; Order for defaults and copy 25c 50' Order for Condemnation 15ci Sale 15c, copies at 10c. each 50 Drawing Decree and entering, fol. at 15c; copy at 10c;, filing 10c. Order for Yenditioni Exponas 15c ; copy 10c 25 Issuing Venditioni Exponas $1 ; Seal 20c 1 20 Drawing final Records with pleadings, &c., fol. at 15c " copy " " fol. at 10c; filing 10c Order to return Venditioni Exponas 15c; copy 10c , 25 Filing Venditioni Exponas 10c; filing Return 10c; entering Return 15c 35 Drawing and copy Report to Solicitor, fol. at 25c ; filing 10c, . . Clerk's fee for receiving, keeping and paying out $ , ^t 1 per cent Drawing Abstract 15c per fol. ; copy at 10c ; filing 10c Order for Distribution and copy 25c 25 Taxing District Attorney's cost $1 ; filing 10c 1 10 " Marshal's cost fl ; filing 10c; filing Touchers at 10c. Clwk's fee on entering Order-check, recording, &c. to pay Marshal's costs ; . . .' .."^ 1 60 Clerk's fee on entering Order-check, recording, &c., to pay District Attorney and Clerk 1 60 Clerk's fee on entering Order-check, recording, &c., to pay Inform- er^s moiety '. 1 60 CiRcviT CovRT Forms. 453 Clerk's fee on entering Order-check, recording, &c,, to pay Collect- or's net proceeds 1 60 Drawing and copy Receipts for Amounts paid, fol. at 25c; filing same at 10c each ' Copy of Abstracts and Receipts from files for Solicitor and Collector, ■ fol. at 10c Drawing Certificates 15c ; copies at 10c Entries in Ledger 15c ; copy Costs from files, fol. at 10c Filing Clerk's costs 10c ; making Dockets and Indexes, f 1 1 10 Drawiijg and copy Report to Solicitor of suit decided, fol 1, 25c ; entering 15c ; filing 10c . . . .' 50 Duplicate copies from the files of Monition, Decree, Venditioni Ex- ponas, Abstracts, Account Sales, District Attorney, Marshal and Clerk's costs'for Collector, fol. at 10c Certifying each at 25c ; Seals at 20c 90 Draft and two copies affidavit of services of Clerk, &c., fol. 1 and entry .... 50 Oath to same and certificate 25c ; oath to Marshal's costs and cer- tificate 25c. , 50 Taxed and adjusted at dollars. U. S. CIRCUIT COURT, ) . District op New Yokk, J Clerk; being duly sworn, deposes and says,' that the services charged herein have been or will be actually and necessarily performed as herein stated, to the knowledge of this deponent, and are, as this deponent believes, in accordance with the fee bill of 1853. Sworn to before me this ) day of 18 J U. S. Commissioner, 45'4 Appendix III. i No. 76. ) {Incidental} — Admibaltt Citation, By the Honorable one of the judges of the Circuit Court of the United States for the District of New York, in the Second Circuit. To, Whereas, lately appealed to the Circuit Court of the United States, for the District of New York, Second Circuit, from a decree rendered by the Judge of the liistriet Court of the United States, for the District' of New York, made in favor of you against ■- and has filed the security re^qujred by law. You are, therefore, hereby cited to appear before the said Circuit Court, at the city of on the day of ne;xt, to do and receive what may appertain to justice to be done in the premises. Given under my hand at the city of in the District of New York, in the Secomd Circuit, the day of in the year of our Lord one thousand eight hundred and and of the Independence of the United States the ' Judge, ( No. tt. ) {Incidental.) — Bill of Taxable Costs, U. S. CIKCUIT COURT.— Eastern Districi of New York. vs. > Costs in Equity, Solicitor's Fees: Solicitor's fees 4 $20 00 Counsel fees, on motion 10 00 Counsel fees, on reference 20 00 Marshal's Fees: For service of subpoena $2 00 Travel miles, at 5 cents For service of writ of injunction 2 00 Travel miles, at 5 cents Circuit Covrt Forms. 455 Clerk'' s Fees : Filing bills, &o. 5 65 Costs on motion for injunction 4 75 Entering rule and order, pro cotifessd 1 50 Attendance at reference, &6 5 00 Taking testimony, 38 cents per folio ■ Eeferee's certificate or report ; . . . . 1 00 linrolling proceedings, 15 cents per folio, . . . ." Writ of execution 1 45 $ 456 Appendix HI. DISTEIOT COUET FOEMS. Incidental. , Bills of Taxed Costs. ( No. 1. ) U. S. DISTRICT COURT, District of NewVokk. vs. > Proctor's Bill. Docket fee, (decree oyer fifty^ dollars) $20 00 Verification of libel, 25o ; verification of costs, 25c 50 Four depositions taken and admitted as evidence, .,,,,.. 10 00 One witness attending three days .- 4 50 120 miles travel, 5c per mile 6 00 120 miles travel, 2d trip, 5c per mile 6 00 Two witnesses attending two days each 6 00 Travel of each witness 180 miles 18 00 One witness one day 1 50 Travel fee for same 9 00 Paid notary public, taking depositions 20 00 $101 50 Taxed at N Clerk. United States of America, District of of the city of being diily sworn deposes and says, that the services charged for in the foregoing bill have been actually and necessarily rendered as therein stated ; that the expenses therein mentioned have been actually and necessarily incurred as therein set forth. Subscribed and sworn before me i this day of 18 V. S. Commissiomr. I ss. District Covrt Forms. 457 ( No. 2. ) U. S. DISTRICT COURT, Disteict op New York. , vs. • > Marshal's Bill. Serving mesne process at $2 00 Travel, to return the same, 2 miles, 6c per mile 12 Proclamation ^ 30 Expenses of custody actually paid, 124 days at 50c 62 00 Oath and certificate disbursements. ' Paid printer for publishing notice of arrest 6 00 Serving warrant to sell 2 00 Travel, to return the same, 2 miles, 6c per mile 12 Paid printer for publishing notice of sale 2 4:0 Poundage on $3,500, amount of sale 50 00 Paid for storing sales 5 00 Drawing and executing deed ^00 Paid for copy of enrollment 50 Percentage on disbursements ' 1 60 $137 04 Taxed at $137.04 this day of , 18 Clerk. ss. United States op America, district op , deputy marshal of the said .district, being duly sworn, deposes and says, that the services charged in the fore- going bill have been actually and necessarily performed as therein stated, and that the expenses mentioned in said bill have been actually and necessarily incurred as therein set forth. Subscribed and sworn before me ) this day of , 18 J ■ U. S. Commissioner. 458 / Appendix III. ( No. 3. ) U. S. DISTRICT COURT, Distkict of New. Yokk. vs. > Clerk's Bill. Filing libel, 10c; entering order of process, 45o. $ 55 Issuing process and seal, $1.20; marshal's notice's, $1.20. 2 40 Filing process, 10c ; entering return, 15c ; filing stip. 10c, 35 Entering 4 orders continuance, 1 folio each at 15c ; eng. each, 10c ; filing each, 10c 1 40 Filing stip., 10c ; entering order substitution, 15c ; eng. 10c ; filing, 10c. '. 45 Filing petition, 10c ; entering order sale, 2 folios, 30c ; en- grossing, 20c ; filing', 10c 70 Issuing warrant, $1.20 ; filing, 10c 1 30 Filing answer 10 Entering order for payment of marshal's bill, 15c ; eng., 10c; filing, 10c 35 Entering order for trial, 15c ; swearing 2 witnesses, I20c. . 35 Docket fee, $3.00 ; entering final decree, 4 fol, 15c each ; engrossing, 40c ; filing, 10c 4 10 Making enrollment, 8 folios, 15c each 1 20 Drawing 4 order checks, 30c ; copying each, 20c ; entering each in ledger, 15c 2 60 Filing 3 bills of costs, 30c ; filing 5 other papers, 50c 80 Percentage on $3,500 ,. . . 35 00 Taking testimony on trial, 30 folio? 6 00 $57 60 Tazed and allowed at $ Judge. DisTsiCT Court Forms. 459 ( No. 4. ) U, S. DISTRICT COURT, District of New York. vs. • \U.S. Dist. Attfs Costs. Two per cent on $303.48, proceeds of sale $6 07 Taxed at $6.07 this day of 18 Clerk. United States of America, ) f ss * district of new YORK, ) , of- the said District, being duly sworn, says that he is the U. S. District Attorney for said District; that the services charged in the foregoing bill have been actually and necessarily performed as therein stated ; and that the same or any part thereof have not been paid. ' Subscribed and sworn before me, ) this day of 18 i TJ. S. Commissioner for the District ofNejo York. ( No. 5. ) U. S. DISTRICT COURT, District of New York. vs. ? Marshal's Bill, Serving mesne process at $2 50 Travel to return the same, 174 miles at 6c. 10 44 Proclamation 30 Expenses of custody, actual storage 15 00 Oath and certificate disbursements 25 Paid pr'inter for publishing notice of arrest 5 00 Serving warrant to sell at 2 00 Travel to return the same, 96 miles at 6c 5 76 Paid printer for publishing notice of sale 5 00 Poundage on $303.48, amount of sale 5 88 Advertising sale 2 00 Percentage on disbursements 52 Paid labor 1 50 Service and travel on subpoenas returnable January term. ., 9 50 $66 85 Taxed at this day of 18 ====? Clerk. 460 Appendix III. ,!' United States of America, district of new york , Marshal of the said District, being duly sworn, deposes and says, that the services charged in the foregoing till have been actually and necessarily performed as therein stated, and that the expenses mentioned in said bill have been actUiilly and necessarily incurred as therein set forth, as deponent verily believes. Marshal. Subscribed and sworn before me, ) this day of 18 J U. S. Commissioner. ( No. «. ) U. S. DISTRICT COURT, District or New York. vs. > Clerk's Bill. Filing inf., 10c ; ent. order process, 15c; eng., 15c ; filing, 10c $ 50' Issuing process and seal, $1.20 ; Marshal's notices, $1.20 ; filing process, 10c. . . , 2 50 Copying inf. .for U. S. Att'y, 10 fol., at 10c ; cert., 15c 1 15 Filing answer, 10c ; copy for U. S. Att'y, 13 fol., at 10c ; cert., 15c. ; 1 55 Filing plea in abatement, 10c ; copy, for U. S. Att'y, 10c ; cert., 15c 35 Filings note of issue, 10c; ent. cause on cal., 15c 25 Filed no. of motion, 10c; ent. order denying motion, 15o; eng., 10c; filing, 10c. . .i 45 Filing replication, 10c ; copj, 10c ; cert., 15c... > 35 Filing note of issue for Jan'y Term, 1869, 10c; ent. on cal., 15c 25 Ent. decree of condemnation,,3.fol., at 15c; eng., 30c; filing, 10c 85 Swearing 1 witness as to attendance, 10c; report, &c., $1.05. 1 15 Making judgment record, 35 fol., at 15e, $5.25 ; filing, 10c ;" docket fee, $2.00 ." 7 35 Issuing warrant to sell, $1.20 ; filing, 10c 1 30 Percentage on $303.48, am't sale 3 03 District Govrt Forms. 461 Ent. order distribution, 2 fol., at 15c; eng., ?0c ; filing, lOe 60 Abstract proceedings, 3 fol., at 15o 45 . Drawing 4 order checks, 2 fol. each, at 15c 1 20 Copy each, 80c ; ent. each in ledger, 60e. 1 40 Filing 3 bills of costs, at 10c , 30 $24 93 Taxed and allowed at $ TJ. S. District Judge. United States of America, ) ? ss DISTBICT OP NEW YORK, ) ' Clerk of said Court, being duly sworn, says : that the services charged in the foregoing bill, as he verily believes, have been or will be actually and necessarily rendered in the pro- gress of this cause, as therein stated. Subscribe^ and sworn before me ) this day of 18 J TJ: S, District Judge. ( No. 7. ) 'U. S. DISTEICT COURT, District of New York. vs. > TJ. S. District Attorneys Cost's. Costs by statute, judgjt without jury. .-.' $10 00 Disbursements 25 $10 25 Taxed at $10.25 this day) ==== of ■ 18 i Clerk. United States op America, ) ^^ district of new york, ) of the said district, being duly sworn, says : that he is U. S. District Attorney for said district ; that the ser- vices charged in the foregoing bill have been actually and necessar- ily performed as therein stated, and that the expenses mentioned in said bill have been actually and necessarily incurred as therein set forth, and that the same or any part thereof have not been paid. Subscribjefd and sworn before me ) this ^ day of 18 ) v. S. CommissioTwr for the District of New York. 462 Appendix III. ( No. 8. ) U. S. DISTRICT COURT, District oi- New Yobk. * : L VS. > MarshaVs Bill. Serving capias at Albany $ 2 00 Travel to return the same, 300 miles at 6 cents 18 00 Oath and certificate disbursements 25 $20 25 Tated at this day ) ===^= of 18 J Clerk. ; United States of America, ) ^^ district of new york, j Marshal of the said district, bping duly sworn, deposes and says : ,that the services charged in the foregoing bill have been actually and necessarily performed as therein stated, and that the expenses mentioned in said bill' have been actually and necessarily incurred as therein set foi^th, as deponent verily believes. Subscribed and sworn before me ) thjis day of 18 J U. S. Commissiojrier. ( No. 9. ) U. S. DISTRICT COURT, District of New York. Clerics Costs. Issuing capias $ 1 00 Filing do 10 Filing narr , 19 Copy for U. S. Att'y, fol. 10 and eert 1 15 Ent. rule to plead, 15e ; copy, cert, and seal, 45o , 60 ^nt. rule for default ^ .... 15 Docket fee, $1.00 ; judgment reeonf, fbl. 14, at 15c 3 10 Percentage on $1,000 10 00 Filing 5 other papers in cause. , < 50 Issuing execution 1 00 $17 70 Taxed at 186 === U. S. District Judge. District Court Forms. 453 United States of America, DISTRICT OF NEW YORK, ' **" Clerk, being duly sworn, deposes and says : that the services charged in the foregoing bill have been actually and necessarily performed as therein stated, except such as are prospec- tive, and those must necessarily be-performed in the cause. Subscribed and sworn before me ) this day of 18 , J U. S. District Judge. (No. 10.) Order Remitting Indictment. Ki p. stated session of the District Court of the United States of America, for the district «f New York, held at the city of on the day of , 18 Present — Hon. , District Judge. The U. S. of America, vs. On motion of , United States Attorney, Ordered, that the indictment in this case be and it is hereby remitted to the . Circuit Court of the United States for this district, for disposal therein. A true copy of the original order. Clerk. Admiralty. (No. n. ) Order for Process on Libel. U. S. DISTRICT COURT, District of New York. Caption.. On filing a libel in this cause, and on motion of Mr. , proctor for the libellant, it is ordered that a warrant of arrest and monition be issued herein, returiiable the day of ,18 464 Appendix III. ( No. 12. ) Warrant of Arrest anh Monition. I ss. IJnited States of America, disteiot op The President of the United States of America, To the Marshal of the District of , and to his deputy, whomsoever. Greeting : You are hereby jointly and severally empowered and strictly enjoined and commanded, that you arrest the vessel called the (whereof now is, or late was master,) her boats, tackle, apparel and furniture, if she shall be found within your district ; and the same so arrested yoii keep under safe and secure arrest until you shall receive further orders from the said court, or the same shall be discharged in due course of law ; and that you cite at the premises all persons in general, who have, or pretend to have, any right, title or interest therein, to appear before the judge of tiie District Court of the United States of America, for the district of New York, at the city of on the day of , if it be a court day, or else on the court day next following, at o'clock in the noon, there to answer unto in a cause of civil and maritime, and further to do and receive in this behalf, as to 'justice shall appertain ; and that you duly certify the judge of the aforesaid court what you shall do in the premises, together with these presents, Witness, The Honorable , judge of the aforesaid court, at the city of , this > day of in the year of our Lord one thousand eight hundred and Action for $ Clerk. Proctor. Marshal's Return. In obedience to the within writ, I did on the day of , 18 , arrest the within mentioned , her tackle, &c., and I duly cited all persons to appear as within commanded. District Court Forms. 465 Subsequently having received a bond duly executed and approved, conditioned to abide the decree of the court in this cause, I did release the said vessel, and return the said bond herewith. , Dated the day of , 18 U. S. Marshal, Deputy. ( No. 13. ) Bond ik Admiralty. Know all Men by these Pkesents, That held and firmly bound unto in the sum of dollars, lawful money of the" United States of America, to be paid to the said executors, administrators or assigns ; for which payment, well and truly to be made bind heirs, executors and administrators, firmly by these presents. Sealed with seal. Pated the day of one thousand eight hundred and Whereas, in a certain cause of civil and maritime, moved and prosecuted in the District Court of the United States of America, for the district of New York, on behalf of the above named obligees against the ship, or vessel, called the her boats, tackle, apparel and furniture, a warrant of arrest has been issued out of the said court against the said ship or vessel, boats, tackle, apparel and furniture, in virtue of which said warrant the said ship or vessel, her tackle, apparel and furniture have been arrested by , one of the deputies of the marshal of the said district, and are now in his custody. Now, therefore, the conditions of the above obligation is such, that if , the claimant of the said ship or vessel, her boats, tackl^, apparel and furniture, shall well and truly abide and answer the decree of the said court in the aforesaid cause, with- out fraud or other delay, then the above obligation to be void ; otherwise it shall remain in full force and virtue. Sealed and delivered in presence of [L. s.] [L. S.] 30 466 Appendix III. State of New York, disteict op new york, } ss. County. I hereby certify, ttat on this day of 18 , before me came the above named to me known to be the same person described in and who executed the above bond, and acknowledged that had executed the same. State op New York, \ district op new york, > ss. County. ) ^ of the of in the said district, being duly sworn, doth depose and say, and each for himself says, that he is a householder and resident of the said district, and that he is worthr' : dollars, after all his debts and liabilities are paid and satisfied. Sworn before me, this ) day of , 18 5 ( ITo. 14. ) Default and Order of Reference. U. S. DISTRICT COURT, District op New York. Caption. The mesne process returnable this day in this cause, having been returned duly executed ; and upon proclamation duly made for all persons having, or pretending to have, any right, title or interest in the said her tackle, apparel and furniture, to appear and make due answer to the filed in this cause, no person having appeared to answer the same, the Court, on motion of Mr. advocate for the doth pronounce all persons whatsoever, to be in contumacy and default, and doth order and adjudge that the filed in this cause be, and the same hereby is, taken pro confesso against all persons whatsoever : and it is further ordered that it be referred to Esquire, who is hereby appointed a Commissioner District Court Forms. 457 for the purpose, to take and hear such testimony as the nature of the case may require, and report the same to the Court ; and also to ascertain and compute the amount due the for principal and interest on account of the mentioned in the said and report thereon with all convenient speed, ( Jfo. 15. ) Report on Reference. U. S. DISTRICT COURT, District of New York. To the Judge of the said Court : In pursuance of an order of this Court, made in the above cause, on the day of by which it was referred to me to com- pute and ascertain the amount due the for principal and interest on account of mentioned and set forth in the , in this cause, I, the Commissioner and Referee in the said order named, do respectfully certify and feport, that certain testi- mony has been taken on the reference herein, which is herewith transmitted to the Court. And I do further respectfully report, that I have considered the said testimony and have made the neces- sary computations, and that I have accordingly ascertained the amount due the in this cause as aforesaid ; and that the amount due to the as aforesaid, for principal and interest, up to and including the date of this report, is And I do further certify and report, that the schedule hereunto annexed, marked A, and making a part of this my report, contains a statement and account of the principal and interest nfcneys due to the as aforesaid, the period of computation of interest and its rate, and to which, for greater certainty, I refer. ' All of which is respectfully submitted. Dated Commissioner and Referee. (Here insert schedule A, referred to in the foregoing report.) 468 Appendix III. ( No. 16. ) Final Decree. ' , U. S. DISTRICT COURT, District op New Tokk. vs. > Caption. This cause coming on to be heard upon the report of Esquire, appointed a commissioner to make report therein, bearing date the day of certifying that there due to the at the date of said report, for on motion of Mr. advocate for the the court doth order, adjudge and decree, that the said report, and all things therein contained, do stand ratified and confirmed ; and it is further ordered, adjudged and decreed, that the said her tackle, apparel, boats and furniture, be sold at public auction, according to the course and practice of the court, and that the pro- ceeds of such sale be brought without delay into the registry of the court ; and that the clerk pay to the Proctor, out of the said proceeds, the sum hereinbefore mentioned, as reported to be due with the legal interest thereon from the date of the said report, together with costs and charges in this suit to be taxed, or so much thereof as the said proceeds will pay of the same, after deducting all prior claims and charges thereon. ( No. IT. ) Pboctoi^s Costs. U. S. DISTRICT COURT, District of New York. vs. > Proctor's Bill. Docket fee decree for $50.00 (or over) $ Vei;ification of libel hereof 25c , Deposition taken and admitted as evidence Witnesses attending day do travel at 5c per mile each •e District Co urt Forms. 4q 9 United States op America,' ) district op new york, ) **" of the city of , being duly sworn, deposes and says : that the services charged for in the foregoing bill have been actually and necessarily rendered, as therein stated ; and that the expenses therein mentioned have been actually and neces- sarily incurred, as therein set forth. Subscribed and sworn before me ) this day of 18 J Vommihioner of the United States. (No. 18. ) Cleric's Costs. V. S. DISTRICT COURT, District op New York. ^j_ } Clerk's Bill. . ,_^__ ) Default and Reference. Filing libel, 10c ; entering order for process in minutes, 15c ; engrossing, 10c ; copy for enrollment, 10c $0 45 Issuing process, $1.00 ; seal, 20c 1 20 Certifying to marshal's contents of libel, 4 foL, at 15c ; en- grossing, 10c ; copy, 10c , 1 40 Filing process, 10c ; return, 10c ; entering return, 15c ; or- der for proclamation, 15c ; engrossing, 10c 60' Entering decree of default, 3 foU, at 15c ; engrossing, 10c ; copy for enrollment, 10c 1 05 Making report and schedule, 3 fol., at 15c ; engrossing, 10c. 75 Copy same for proctor, 30c ; certifying, .15c ; entering in register, 15c - 60 Entering final decree, 3 fol., at 15c; engrossing, 10c; copy, 10c. 1 66 Docket fee, $1.00; making enrollment, 8 fol., at 15e; en- grossing, 10c 3 00 Drawing four orders for payment of money, each 30c ; en- grossing, 20c ; copy, 20c 2 80 Filing other papers in cause, 10c Making this return, 3 fol., at 15c ; copy, 10c 75 Attendance on reference, at $3.00 per day Testimony; folio, at 20c ; oaths 10c each * — — ^— — $• Taxed at 18 r 470 Appendix in. United States of America, ^^ DISTKICT OP new TORK, IK,! Clerk, being duly sworn, deposes and says : that the services charged in the foregoing bill have been actually and necessarily performed as therein stated, except such as are prospec- tive, and those must necessarily be performed in the cause. Subscribed and sworn before me ) this day of 18 ) ( No. 19. ) Enrollment of Decree. U. S. DISTRICT COURT, District op New York. Caption, In the said court, before the aforesaid judge, on the day of in the year of our Lord one thousand eight hundred and sixty the in this cause, filed against the said her tacklcj apparel and furniture, and the same is hereunto annexed, and thereupon an order was entered, directing the issuing of process against the said which order is in the following words : A process of .arrest and monition was thereupon issued, returnable on the said day of A. D. 18 . On the day of A. D. 18 the said process with the marshal's return thereon endorsed was duly filed, and the same is hereunto annexed On the day of 18 a decree was entered herein in the words and figures following : Thereupon the costs of this including charges and expenses were taxed at Whereupon the said pleadings, process, bills of cost and expenses, and such other papers as are required by the rules and practice of the court, are now attached together and hereto annexed, and the said final decree is signed and enrolled the day and year in the cap- tion of this enrollment mentioned. District Judge. BisTBiar Court Forms. 4 7 j .\- * ( No. 20. ) Execution. United States op America, disteict of new york, The President of the United States of America, to the [l. s.] Marshal of the United States for the District of New York, and to his Deputy, whomsoever. Greeting: Whereas, in a certain cause of civil and maritime, moved and prosecuted before the District Court of the United States of America, for the District of New York, on behalf of against the her tackle, apparel and furniture, it was, on the day of A. D. 18 , by a decree of the aforesaid Court, pronounced, decreed and declared, that the said ' w entitled to recover in the said cause, the sum of dollars and cents, together with costs and expenses in the said suit ; and whereas, the said was delivered out of the custody of the Court, in virtue of a bond executed by as principal, and and as sureties, by which bond the said principal and sureties stipulated to abide the decree of the Court in this cause ; and whereas, the said costs and ekpenses have been taxed at dollars and _ cents : Now therefore, in order that full and speedy justice may be done in the premises, you are hereby strictly charged and commanded jointly and severally, that of the goods and chattels of the said or of either of them, in your District, you cause to be made the said sum so decreed, and also the said costs and expenses, amounting, in the whole, to the sum of dollars and cents ; and you are hereby further strictly charged and commanded, if sufficient goods and chattels of the said or of some one of them, cannot be found in your District, that you cause the said sum to be made out of any real property, lands or tenements, of which they are, or either of them was possessed in your District, on the day of 18 . And do you further have the said monies,-and pay the same into the Kegistry of the said Court, at the city of on the Tuesday of next, and do you then and there certify to the aforesaid Court, what you shall have done in the premises, together with these presents. 472 Appendix III. Witness, the Honorable , Judge of the said Court, at the city of this day of 18 Clerk. Proctor. [Enbobsbmbnt.] No. U. S. DISTRICT COURT, District of New York. 1 • \ In Admiralty. j Execution. — The marshal will levv $ with interest from the day of 18 besides his fees, poundage and expenses hereon. Clerk. Marshal's Return. — In obedience to the within writ, I have col- lected the sum of $ in full of the requirements of the within exeoiition, and have paid the same into the registry of the court, as I am required. Dated the day of 18 U. S. Marshal. Deputy. ( Ko. 31. ) Warrant of Arrest in Personam. z,V'- United States op America, district of new york, The President of the United States of America, to the [l. s.] Marshal of the District of New York, and to his Deputy, whomsoever, Greeting : You are hereby jointly and severally empowered and strictly enjoined and commanded, that you arrest if he shall be found within your District ; and him so arrested you keep under safe and secure arrest, so that his body may be had and forthcoming before the Judge of the District Court of the United States of America for the District of New York, at the DlSTHICT Co UBT FOBMS. 473 city of on the day of , if it be a court day, else on the court day next following, at o'clock in the noon, there to answer unto in a cause of civil and maritime, and further to do and receive in this behalf as to justice shall appertain ; and that you duly certify the aforesaid Judge what you shall do in the premises, together with these presents. Witness, the Honorable , Judge of the aforesaid Court, at the city of this day of in the year of our Lord one thousand eight hundred and Action for $ Proctor. Clerk. ( No. %%. ) Marshal's Citation. United States of America, ss DISTRICT OF NEW YORK, ) Whereas, a libel hath been filed in the District Court of the United States of America, for the District of New York, on the day of in the year of our Lord one thousand eight hundred and by Esq , Proctor , in behalf of and praying the usual process and monition of the Court, that all persons interested in the said vessel, her tackle, apparel and furni- ture, may be cited to answer the premises, and all due proceedings being had, that the same may be decreed to be sold, and the pro- ceeds thereof to be distributed according to law : Therefore, in pur- suance of the said monition under the seal of the said Court, to me directed and delivered, I do hereby give notice generally, unto all persons having or pretending to have any right, title or interest therein, and to master of the said in special, to appear before the aforesaid Court, at the city of on the day of * , if it be a court day, or else on the next court day thereafter, at o'clock in the noon, then and there to answer the said libel and to make their allegations in that behalf. Dated at , the day of in the year of our Lord one thousand eight hundred and Proctor. . U. S. Marshal. Deputy. 474 Appendix III. ( No. 23. ) Venditioni Exponas. United States op America, ) district op new tork, ) **' The President of the United States of America, to the [l. s.] Marshal of the District of New York, and to his Deputy, whomsoever, Greeting: Whereas, in a certain cause of civil and maritime, moved and prosecuted before the District Court of the United States of America for the District of New York, on behalf of against the vessel called the , her boats, tackle, apparel and furniture, and against all persons in general, having, or pretending to have, any right, title or interest therein, it was, on the day of by a decree of the aforesaid court, pronounced, decreed and declared, that the demand of the said in the in this cause set forth, was valid and effectual against the said to the amount of ■ dollars and cents ; and that the same ought to be paid to the said together with the costs and charges by ' incurred in the prose- cution of ' said suit, as by the said decree remaining as of record in the said court doth more fully appear j and whereas, the costs and expenses so decreed to be paid to the said amount to the sum of dollars and cents, as taxed in the aforesaid court ; and whereas, it was by the afore- said court accordingly further ordered that the said her boats, tackle, apparel and furniture should be sold to pay the said above mentioned sums of money, amounting, in the whole, to dollars and cents : Now therefore, in order that speedy justice may be done in the premises, you are hereby strictly charged and commanded, jointly and severally, that you expose to public sale the aforesaid her boats, tackle, apparel and furniture, and that you sell the same to the best bidder ; and that you bring the proceeds arising from such sale into the registry of the aforesaid court, on or before the day of . . and that you duly certify the Judge of the aforesaid court what you shall do in the premises. Witness, the, Honorable Judge of the aforesaid DisTBicT Court Forms. 475 court, at the city of this day of in the year of our Lord one thousand eight hundred and Proctor. Clerk. ( No. U. ) Monition. 'United States of America, district of new york. The President of the United States of America, to the [ L. s. ] Marshal of the United States, for the district of New York, and to his deputy, whomsoever, Greeting : You are hereby jointly and severally strictly charged and com- manded that you monish and cite all persons in general, having or pretending to have, any right, iitle or interest in the proceeds of the sale of now in the registry of the District Court of the United States of America, for the district of New York, to appear before the said court, at the city of , in the said district, on the day of to answer the petition of in a cause ; and further to do and receive in this behalf as to justice shall appertain. Witness, the Honorable , judge of the aforesaid court, at the city of , this day of in the year of our Lord one thousand eight hundred and Proctor. Clerk. (No. 25.) Marssal's Notice. United States op America, ) ^^ district of new york. ) Whereas, a petition hath been filed in the District Court of the United States of America, for the district of New York, on the day of in the year of our Lord one 476 ' Apfkndix hi. thousand eight hundred and by Esquire, Proctor, in behalf of of in the State of against the proceeds of the sale of the now in the registry of the said court, stating and alleging that and praying the usual process and monition of the said court, that all persons having, or pretending to have, any right, title or interest therein, may be cited to answer the premises, and all due proceed- ings being had, that the demand of the petitioner may be decreed to be paid out of the said proceeds. Therefore, in pursuance of the said monition, under the seal of the said court, to me directed and delivered, I do hereby give notice generally, unto all persons having, or pretendiifg to have, any right, title or interest in the said proceeds, to appear before the said court, at the city of , on the day of if it shall be a court day, otherwise on the next court day thereafter, at o'clock in the noon, to answer the petition of the said , and further to do and receive in this behalf as to justice shall appertain. Dated at the day of in the year of our Lord one thousand eight hundred and Proctor. U. S. Marshal. Deputy. (No. 26.) Final Decree Pbo Confesso. At a special session of the District Court of the United States of America, for the district of New York, held at the city of , in the said district, on the day of in the year of our Lord one thousand eight hundred and Present — The Honorable * , District Judge. vs. The mesne process returnable this day in this cause, having been returned duly executed : and upon proclamation duly made for all District Court Forms. 477 persons having, or pretending to have, any right, title or interest in the said her tackle, apparel and /urniture, to appear and make due answer to the filed in this cause, no person having appeared to answer the same, the court, on motion of , advocate for the doth pronounce all persons whatsoever, to be in contumacy and default, and doth order and adjudge that the filed in this cause be, and the same hereby i% taken pro confesso against all per- sons whatsoever : and it is further ordered that the libellant ought to have and receive the sum of dollars and cents by demanded in the libel in this cause on account of the ( No. 27. ) Clerics Bill. U. S. DISTEICT COURT, District op New York. Filing libel, 10c ; entering order for process in minutes, 15c ; engrossing, 10c j copy for enrollment, 10c $0 45 Issuing process, $1 ; seal, 20c 1 20 Certifying to marshal's contents of libel, fol. 4, 15o ; engross- ing, 10c ; copy, 10c 1 40 Filing process, lOe ; return, 10c; entering return, 15c; order for proclamation, 15c ; engrossing, lOo 60 Entering final decree, fol. 4, 15c; engrossing, 10c; copy, 10c; copy for Proctor, 10c 1 80 Docket fee, $1; making enrollment, fol. 8, 15c; eng., 10c. . 3 00 Drawing four orders for payment of money, each 30c; eng., •20c; copy, 20o 2 80 Filing other papers in cause, 10c Making this return, folio 3, 15c ; copy, lOe 75 Taxed at $ Clerk. 478 Appendix III. .! United States of America, disteict op new york. ^ ft , clerk, being duly sworn, deposes and says, that the services charged in the foregoing bill have been actually and necessarily performed as therein stated, except such as are prospect- ive, and those must necessatily be performed in the cause. ' Subscribed and sworn before me, ) this day of 18 J Revenue. ( »o. 28. ) Iniobmation. .!■ •U. S. District Court, DISTRICT OP NEW YORK At a session of the District Court of the United States of America, held in and for the district of New^Tork, at the city of i on the day of in the year of our Lord one thousand eight hundred and - before the Hon. judge of the said court, comes attorney of the said United States of Ameriba in and for the said district, who prosecutes for the United States of America in this, behalf, and be- ing present here, in this honorable court, in his own proper person, in the name and on the behalf of the said United States of Amer- ica, gives the said court now here to understand and be informed as follows, that is to say, That collector of for the' district of in the said district of New York, and within the jurisdiction of this court, heretofore, that is to say, on the day of . in the year one thousand eight hundred and to wit, at in the said district of and within the jurisdiction of this court, seized as forfeited to the use of the United States of America, being the goods, chattels and property of some person or persons to the said United States of America, and to their said attorney, un- known, and being subject' to duty to the said United States of America, on being imported into the said United States of America. For that heretofore, that is to say, on the day and year last afore- said, the goods, chattels and property aforesaid being subject to District Court Forms. 479 duty as aforesaid on Being imported into the said United States of America, were imported and brought into the said United States of America, that is to say, into the said district of in the said district of New York, and' within the jurisdiction of this court, from some foreign territory adjacent to the said United States of America, to the said United States of America and their said attorney unknown, in and on board of some unregistered ves- sel, boat, raft, canoe, carriage or sleigh, or by some person or per- sons coming from the said adjacent foreign territory to the said United States of America, and to their said attorney unknown. Yet the master of the said unregistered vessel, or the person hav- ing charge of the said boat or raft, or the conductor or driver of the said carriage or sleigh, in which the said goods apd chattels were imported and brought as aforesaid from the said adjacent foreign territory, or the person or persons coming from the said adjacent foreign territory with the said goods, chattels and property, did not immediately on his arrival within the said United States of America, deliver a manifest of the cargo or loading of the said unregistered vessel, boat, canoe, raft, carriage or sleigh, in which the said goods, chattels and property were imported and brought as aforesaid into the said United States of America, or of the said goods, chattels and property, or of any part thereof, at the office of the collector or deputy collector nearest to the boundary line between the said Uni- ted States of America and the said adjacent foreign territory, or nearest to the road or waters by which the said goods, chattels and property were imported and brought into the said United States as aforesaid, but the master of the said unregistered vessel, and the person having charge of the said boat, canoe or raft, and the con- ductor or driver of said carriage or sleigh, with the said goods, chat- tels and property, or the person or persons coming from the said adjacent foreign territory into the said United States of America, with the said goods, chattels and property, did neglect and refuse to deliver such manifest, and did also pass by and avoid the said office contrary to the form of the statute in such case made and provided, whereby and by force of the statute in such case made and provided, the said goods, chattels and property became and were forfeited to the use of the said United States of America. And the said attorney of the United States, on behalf of the said United States, saith, that by reason of all and singular the premi- ses aforesaid, and by force of the statute in such case made and pro- 480 Appendix III. vided, the aforementioned and described goods, wares and merchan- dise becan^ and are forfeited to the use of the said United States : And that all and singular the premises aforesaid are and were true, public and notorious, of wTjich due proof being made, the said attor- ney prays the usual process and monition of this honorable court, in this behalf to be made ; and that all person or persons inte(:ested in the before mentioned and described goods, wares and merchandise, may be cited in general and special to answer the premises, and all due proceedings being had thereon, that the said goods, wares and merchandise may, for the causes aforesaid and others appearing, 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 statutes of the United States, in such caises made and provided. United States Attorney for the District of New York. U. S. DisTKiCT Court, DISTRICT OF NEW YORK ( Ifo. 29. ) Infobmatiojv. ( 2nd Form. ) > SS. That Collector of the Customs for the District of - having full power and authority to enter any ' ^ in which he should have to suspect any goods, wares or merchandise, subject to duty, were concealed, and therein to search for, seize and secure such goods, wares and merchandise, heretofore, to wit : on the day of in the year one thousand eight hundred and having to suspect that the aforesaid described which were subject to duty, were concealed in a certain the said Collector thereupon did enter the said and did seize the said goods, wares and merchandise, first above described, and that, upon examination, it was found that District Court Forms. 481 no duties had been paid on the said goods, wares and merchandise, and that no duties had been secured to be paid on -the same, con- trary to the sixty-eighth section of the act of Congress, approved on the second diy of March, one thousand seven hundred and ninety- nine, entitled " An act to regulate, the collection of duties on imports and tonnage." And also, for that the aforesaid goods, wares and merchandise, subject to duty on being imported into the United States, were here- tofore, to wit : on the day of in the year one thou- sand' eight hundred and found by Collector of Customs of the District of in the possession of some person or persons to the said attorney unknown, at in the said district ; and that the said bad not impressed thereon the inspection marks as required by the provisions of the thirty-ninth section of the act of Congress, approved March 2d, 1799, entitled " An act to regulate the collection of duties on imports and tonnage," and that the said person or persons, to the said attorney unknown, so having possession of said as aforesaid, did not have the certificate or certificates required by the provisions of sections forty and forty-one of the act of Congress last aforesaid, and contrary to the provisions of the forty-third section of the last aforesaid act of Congress, in such case made and provided. United States Attorney for the District of New York. ( No. 30. ) Jttachment. United States of America, ) ^^ district op new york, ) The President of the United States of America, to the [l. s.] Marshal of the District of New York, Greeting : Whereas, a bas been filed in the District Court of the United States, for the District of New York, on the day of 18 , on behalf of the said United 31 482 Appendix III. States, by ' Esq., Attorney of the said United States for the district aforesaid, against which by i Collector of for the District of on the day of 18 , at the said District of in the District of New York, were seized as forfeited to the use of the said United States, for the reasons and causes in the said mentiened, 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 may be cited in general and special to answer the premises,' and all due proceedings being had, that the said property above mentioned may, for the causes in the said mentioned, be condemned as forfeited to the use of the said United States, aooord- ing.to the form of the statute in such case made and provided : You are therefore hereby commanded to attach the said and to detain the same in your custody, until the further order of the court respecting the same, and to give due notice unto all per- sons claiming the said property or knowing or having anything to say why the same shall not be condemned as forfeited, pursuant to the prayer of fhe said , that they be and appear before the said District Cour^ to be held in and for the District of New York, at the city of in the county of in the said District of New York, on the day of next, 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 s4me and to make their allegations on that behalf. And what you shall have done in the premises, do you then and there make return thereof with this writ. Witness, the Honorable District Judge of the United States for the ' District of New York, at the city of the day of 18 Glerk. U. S. Attorney. Marshal's Return. In obedience to the within writ, I did, on the day of 18 at seize and attach the within mentioned property, District Co urt Forms. 483 ^ —1 , and I have duly cited all persons to appear and assert their claims, as I am within commanded. Dated Marshal. Service, $ by Deputy. Travel, miles, at six cents per mile, $ Total amount, $ ( No. 31. ) Marshal's Notice. United States op America, J SS DISTRICT OP NEW YORK, ' ' I Whereas, a hath been filed in the District Court of the United States of America, for the district of New York, on the day of in the year of our Lord one thousand eight hundred and by Esquire, , United States Attorney, in behalf of the United States of America, against stating that the same were, on the day of by Esquire, collector of for the district of seized as forfeited to the use of the said United States; and further stating and alleging that the said forfeiture was incurred by reason and for other reasons, as will more fully appear by reference to ,the said on file with the clerk of said court at and praying the usual process andimonitidn of the said court, that all persons interested' in ■the said &o., &e., may be cited to answer the premises, and all due proceedings being had, that the same may be condemned and sold, and the proceeds thereof be distributed according to law : Therefore, in pursuance of the said monition, under^the seal of the said court to me directed and delivered, I do hereby give notice unto all persons generally, having or pretending to have, any right, title or interest therein, to appear before the aforesaid court, in the city of on the day of next, if it be a court day, or else on the next court day thereafter, at o'clock in the noon, then and there to answer the said and to make their allegations in that behalf. 484 Apfmkdix III. Bated at the day of in the year of oitr Lord one thousand eight hundred and J7. S. Attorney. U. S. Marshal. Deputy. ( No. 32. ) Final Decree. At a stated session of the District Court of the United States, for the district of New York, held at the city of on the day of 18 Present — The Honorable District Judge. The mesne process heretofore issued in this cause and returnable at this term of the- court, haying been duly returned, and proclama- tion having been made for all persons having or claiming any right,' title or interest in the property mentioned and described in the information herein, to come forward and assert their claims on the pain of being pronounced in contumacy and default, and a decree pro confesso being taken against them, and no persons having appeared or asserted any elaim thereto, the court now here doth pro- nounce all persons having or claiming any right, title, or interest in the said property to be in contumacy and default, and that the information in this cause be taken as confessed. And this court having proceeded to hear this cause ex parte and having considered the same, it is hereby ordered and adjudged that the property mentioned and described in this suit be and it is hereby condemned, as forfeited to the use of the United Ststtes. And it is further ordered that the said property, in said information described-, be sold by the marshal at public sale, according to the statute, and the rules and practice of the court at in the said district of New York, and that the marshal pay the proceeds of said sale into the registry of the court with all proper speed. District Court Forms. 485 ( No. S3. } Clerks Costs. ' U. S. DISTRICT COURT, District of New York. vs. Filing , 10c ; entering order process, 15c ; copy, lOo ; engrossing, 10c ; filing, 10c $0 &5 Issuing process and seal, $1.20 ; notices for marshal, $1.20. . 2 40 Entering decree of default, &c., 3 folios, 15c ; copy, 30c ; engrossing, 30c; filing, 10c .'...• 1 15 Copy for Dist. Att'y, fol. , 10c; cert., 15c Docket fee, $1.00; judgment record, fol. , 15c Issuing venditioni, exponas and seal 1 20 ^Percentage on sale paid in, $ Entering order distribution, 2 fol., 15c; copy, 20c; engross- ing, 20c ; filing; 10c 80 Abstract proceedings, 3 foL, 15c ; copy for solr. try., 30c ; do. for coir., 30c 105 Drawing 4 order checks, 2 fol. each, at 15c 1 20 Copy each, 80c ; entering each in ledger, 60o 1 40 Filing other papers, 10c ; taking affidavits, 25c. . . . 1 Taxed and allowed at $ this day of 18 District Judge, ss. United States op America, ) >BK. ) district op new YORK. , clerk of said court, being duly sworn, says, that the services charged in the foregoing bill have been or will be actually and necessarily rendered in the progress of this ciiuse, as^ therein stated. Sworn and subscribed before me, ) this day of » 18 J 486 Appendix III. ( No. 34. ) Warrant to Sell. United States op America, district of new york .! The President of the United States of America, To the Marshal of the United States^ for the district of New York, Greeting : Whereas, a tath been filed in the District Court of the United States, for the district of New York, on the day of , 18 , on behalf of the United States, by , Esq., attorney of the said United States for the district aforesaid, against , stating and alleging, that for the reasons and causes specified in the said the said property above described had been seized and become forfeited to the use of the said United States, and praying that the same may be condemned as forfeited to the use of the said United States : and, whereas, the said property above described has been attached by the process issued out of the said District Court, in pursuance of said and is now in custody, by virtue thereof, and such proceedings have been thereupon had, that by the definite sentence and decree of the said District Court, in this cause made and pro- nounced on the day of , 18 , the said property above described was condemned as forfeited to the use of the said United States, and was ordered to be sold by you, the said marshal, at after giving fifteen days of such sale according to law ; and that yoii have the moneys arising from such sale, together with this writ, at the next stated session of the said ' District Court of the United States, to be held for the district of New York, at the city of on the day of next ; therefore, you, the said marshal, are hereby commanded to cause the said above described property, so condemned and ordered to be sold, to be sold in manner and form, upon the notice and at the time and place aforesaid, and that you have and pay the money arising from such sale, as in said decree directed, and have you also then and there this writ. District Go urt Forms. 487 Witness, the Honorable , judge of the said court of the city of in the district of New York, the day of in the year of our Lord one thousand eight hundred and U. S. Attorney. Cleric. Marshal's Return. In obedience to the within writ, I did on the day of , 18 , sell at public auction, after due notice as required by law, the within mentioned property, for the sum of $ that being the highest sum bid therefor. i Dated Marshal. by Deputy. ( No. 35. ) ' Order for Distribution. At a stated session of the District Court of the United States, for the district of New York, held at the city of i on the day of ,1,8 Present — Honorable , District Judge. vs. It appearing to the court that the warrant of sale heretofore issued in this cause, has been returned duly executed, and that the proceeds of the sale of said property, amounting to thd sum of dollars^ has been paid into the registry of the court, and that the bills of costs of the officers of the court have been duly taxed, allowed and filed. It is ordered that the clerk draw the necessary checks and pay to , United States Attorney, the sum of >$ , and to , United States Marshal, the sum of $ , and to , clerk, the sum of $ , the same being the amount of their several taxed bills of costs. And it is further ordered that the clerk pay one-half of the balance of said proceeds of said sale into the treasury of the United States, and retain the other moiety of said balance till the next term of this court, to await any claims for the same which may be made by informers under the rules of this court. 488 Appendix III. ( No. 36. } Nabr for a Penalty. U. S. CIRCUIT COURT, District of New York. Of the day of 18 . As yet of Term in the year of our Lord, one thousand eight hundred and District op New York, ss: , being a citizen of the United States of America, and a resident of ,. plaintiff in this suit, by of , defendant , of the said District, a plea of trespass on the case. For that heretofore, to wit, on the day of A. D. 18 at in the county of in the District of New York, and within the jurisdiction of thia court, one paid to the defendant the sum of and defendant received the same, and did then and there make, sign, and issue a receipt for the said sum of so paid as aforesaid, and then and there delivered the same to the said without the same being duly stamped, or having thereon an adhesive stamp for denoting the duty chargeable thereon by law, to wit, a stamp of the value and denomination of cents, or any stamp, contrary to and with intent to evade the provisions of the act of Congre&s of the United States, entitled " An act to provide internal revenue to sup- port the Government, to pay interest on the public debt, and for other purposes," approved June SO, 1864, and the acts amendatory thereof. Whereby and by virtue of section 158' of said act, the said defendant has forfeited and become liable to pay the sum of dollars ; and by reason of the premises and by force of the statute in such case'made and provided, an action hath accrued to the said plaintiff to demand and have of and from the said defend- ant the sum of dollars, being part and parcel of the sum above demanded. District Co tjrt Forms. 489 ( No. JT. ) Information. U. S. DISTRICT COURT, ) District op New York. ) *** - At a session of the District Court of the United States of America, for the District of New York, begun and held at the United States Buildings in the city of^ in the State of New York, in the said District, before the judge of the sSime court, on the day of in the year one thousand eight hundred and comes Attorney of the United States for the said District of New York, who prosecutes for the said United States in this behalf, and being present here in court, in his own proper person, in the name and on behalf of the said United States, alleges, informs and declares, as follows, to wit : First. — That Collector of Internal Revenue for the District of the State of New York, heretofore, to wit, on the day of in the year one thousand eight hun- dred and on land at the within the District of New York, and within the juris- diction of this court, seized, as forfeited to the use of the United States, the following described gopds, wares and merchandise, arti- cles and objects, that is to say : That the said goods, wares and merchandise, articles and objects, then and there being so subject to the payment of duties and taxes as aforesaid, were found by the said such collector as aforesaid, in the possession and custody and within the control of for the purpose of being removed by in fraud of tbe internal revenue laws of, the United States, and with design to avoid the payment of such duties and taxes, against the 48th section of the act of Congress aforemen- tioned. That the said goods, wares and merchandise, articles and objects; except the said were raw materials, tools, implements, instruments and personal property in the place and building and within the yard and enclos- 490 Appendix HI. ure where said articles upon which duties are and were imposed as aforesaid, were found and seized by the said as such collector as aforesaid, at the time, and place aforesaid, and were intended to be used by / in the fraudulent manufacture of the said such raw materials as aforesaid, into highwines, whiskey, distilled spirits and spirituous liquors, and in fraud of the internal revenue laws of the United States, and with the ^design to avoid the payment of the duties imposed by the be'fore- mentioned act of Congress, and against the 48th section thereof. That the said goods, wares and merchandise, articles and objects, then and there being so subject to the payment of duties and taxes as aforesaid, were found by the said such collector as aforesaid, in the possession and custody and within the control of for the purpose of being sold by in fraud of the internal revenue laws of the United States, and with design to avoid the payment of such duties and taxes, ag^insrt; the 48th section of the act of Congress aforemen- tioned. ' ' That the said goods, wares and merchandise, articles and objects, except the said ' were raw materials, tools, implements, instruments and .personal property in the place and building and within the yard and enclos- ure where said articles upon which duties are and were imposed as aforesaid were found, and seized by the said ^ as such collector as aforesaid, at the time and place aforesaid, and ' were intended to be used by in the fraudulent manufacture of the said such raw materials as aforesaid, into highwines, whiskey, distilled spirits and spirituous liquors, and in fraud of the internal revenue laws of the United States, and with the design to avoid the payment of the duties imposed by the beforementioned act of Congress, and against the 48th section thereof. That upon said goods, wares,, merchandise, articles and objects, duties and taxes are imposed by the provisions of the section of the act of Congress, approved June 30th, 1864, entitled " An act to provide internal revenue to support the Government, to District Court Porms. 491 pay interest on the public debt, and for other purposes," and the several amendments thereto. That the said goods, wares and merchandi^, articles and objects, then and there being so subject to the payment of duties and taxes as aforesaid, were found by the said collector, in the possession and custody and within the control of at within the said , collection district in the District of New York, for the purpose of being sold by said - in fraud of the said internal revenue law, and with design to avoid the payment of such duties and taxes, against the 48th section of the act of Congress afore- mentioned. That the said goods, wares and merchandise, articles and objects, then and there being so subject to the payment of duties and taxes as aforesaid, were found by the said ' collector, in the possession and custody and within the control of the said at aforesaid, for .the purpose of being removed by him in. fraud of the internal revenue law, and with the design to avoid the paypient of such duties and taxes, against the 48th section aforementioned. ^ Second. — And also, for that the aforesaid goods, wares and mer- chandise, articles and objects, and distilled spirits, being liable to duty and tax, under and pursu- ant to the statute aforesaid, were found and seized at in the said collection district of the State of New York, within the District of New York, and within the jurisdiction of this court, by the said Esq., as such collector as aforesaid, on the day of A. D. 18 ; that the said and distilled spirits were so found elsewhere than in a bonded warehouse, and having been by one theretofore, and on or about the day of A. D. 18 sold and offered for sale at a less price than the tax imposed by law thereon, to one contrary to the provisions of the statute in such case made and pro- vided, and against the 21st section ,of the act of Congress, approved March 2d, 1867, entitled " An act to amend existing laws relating to internal revenue, and for oth6r purposes." 492 Appendix III. Third. — For that the aforesaid goods, wares and merchandise, articles and objects, and distilled spirits, were liable to taxation, under and pursuant to, the statutes in such case made and provided, and the said and distilled spirits were so as aforesaid found and seized at in the collection district of the State of New York, in the District of New York, and within the jurisdiction of this court, by the said as such collector, on the said day of A. D. 18 , the said distilled spirits having been made, manufactured and distilled at some place, at some tiine, and by somfe person or persons to the said United States and theic said attorney unknowii, and the same were thereafter, and before the time of the finding and seizure thereof, as aforesaid, by some person or persons to the said United States and their said attorney unknown, removed from the place where the same were distilled, otherwise than into a bonded warehouse, as pro- vided by law ; and the said and distilled spirits were, by the said as such collector, as afore- said, found and seized at the time and place aforesaid', the said and distilleji spirits being so found elsewhere than in a bonded warehouse, not having been removed from such warehouse, according to law, and the tax imposed by law upon the same not having been paid, in fraud of the internal revenue laws, and against the provisions of the 45th section of the act of Congress, entitled " An act to reduce the internal taxation, and to amend an act enti- tled ' An act to provide internal revenue to support the Government, to pay interest on the public debt, and for other purposes, approved June 30th, 1864, and the acts amendatory thereof,' " approved July 13, A. D. 1866. Banlcmptcjr. ( No. 38. ) Deposit Certificate. U. S. DISTRICT COURT, District op New Yoek. In the matter of the petition of To be declared a bankrupt. In Bankruptcy. On this day of , , 18 , the above named petitioner has deposited with the clerk of this court, the sum District Court FoBus. 493 of fifty dollars, as security for the payment of fees in the above entitled matter, under section forty-seven of the act of Congress, approved March 2d, 1867. Also % on account of clerk's fees. % Clerk. ( Ko. 39. ) Registei^s Receipt. U. S. DISTRICT COURT, Disteict op New York. In the inatter of the petition of Se declared a bankrupt. In Bankruptcy. Received this day of , 18 , of , clerk of said court, the sum of dollars, being part of the moneys deposited with the said clerk in the above entitled matter, under the forty-seventh section of the bankrupt aet, the same being received by me in payment of my fees in said matter, as register in bankruptcy. $ ' Register in Bankruptcy for the Cotigressional District. ( No. 10. ) Clerk's Certificate. UNITED STATES OF AMERICA, -j Disteict Couet Cleek's Office, > ss. DISTEICT OP NEW TOEK. ) I, , clerk of said court, do hereby certify that I hive compared the copy of with the original, in this office, and that the same is a correct transcript therefrom, and of the whole of said original. In testimony whereof,! have I caused the seal of the said court to be affixed at the city of , in [ L. s. ] said district, this day of A. D. 18 Clerk. 494 Appendix III. ( No. 41. ) Warrant of Seizure. (involuntary bankkuptct.) U. S. DISTRICT COURT, District op New York. In the matter of Bankrupt. • In Bankruptcy. District of New York, ss. To, the Marshal of said District, I Greeting : Whereas^ a petition for adjudication of bankruptcy was,- on the day of < , A. D. 18 , filed against of the county of and State of , , in said district, under which he has been duly declared and adjudicated bankrupt j you are, therefore, by virtue of the said petition and the adjudication thereon, according to the pro- visions of the act entitled "An act to establish a uniform system of bankruptcy throughout the United States," approved March 2d, 186/, required, authorized and empowered' as messenger, to take possession of all the estate, real and personal, of said , the said bankrupt^ except such as may be by law exempt from the operation of said act, and of all his deeds, books of account and papers, and to keep the same safely until the appoint- ment of an assignee. And you are also directed to publish notice twice in the news- papers called , printed at ■ , in the county of , tbe first publication be made forthwith, as follows : U. S. DISTRICT COURT, District of New York.] In Bankruptcy. In the matter of Bankrupt. District of New York, ss. A warrant in bankruptcy has been issued by said court against the estate of , of the county of District Court Forms. 495 and State of , in said district, adjudged a bankrupt upon the petition of his creditors, and the payment of any debts and the delivery of any property belonging to said bankrupt, to him or to his use, and the transfer of any property by him are forbidden by law. A meeting of the creditors of said bankrupt, to prove their debts and choose one or more assignees of his estajie, wi\l be held at a court of bankruptcy, to be holden at in said district, on the day of , A. D. 18 , at o'clock M., at the office of , one of the registers in bankruptcy of said court, at No. street. V. S. Marshal as Messenger. And you will also serve written or printed notice' by mail, or per- sonally, on all creditors whoso names may be given to you by said bankrupt within five days from the date of such adjudication, within , days after the date hereof, and also to said , the bankrupt, which notice shall be as follows : U. S. DISTRICT COUKT, District of New York. In the matter of Bankrupt. • In Bankruptcy. District of New York, ss. To , one of the creditors of said , bankrupt. this is to give you notice : 1st. That a warrant in bankruptcy, has been issued against the estate of ' , bankrupt aforesaid. 2d. That the payment of any debts and the, delivery of any prop- erty belonging to said bankrupt, to him or to his use, and the trans- fer of any property by him, are forbidden by law. 3d. That a meeting of the creditors of the said bankrupt; to prove their debts and choose one or more assignees of his estate, will be held at a court of bankruptcy, to be holden at , in said district, on the day of , at o'clock, M., at the office of , one ot the registers in bankruptcy of said court, at No. street. 496 Appendix III. And the following are the names of the creditors of said bank- rupt, and the amount of their debts, as given to me by him. [JS. g.~- (of ,) dollars.] U. S. Marshal as Messenger. And have you there this warrant, with your doings thereon. In testimony whereof, I have hereunto set my hand and caused the seal of this court to be a£Gxed at [[ L. S. ] , this day of iu'the year of our Lord 18 Clerk of the Court. District Judge. Return hy Marshal. District op New Yoek, ss. By virtue of the within warrant, I have taken possession of the estate of the within named , bankrupt, except such as is by law excepted from the operation of said warrant by the act of Congress, and of all his deeds, books of acciount, and papers which have come to my knowledge ; and I have published notice by advertisement on two different days in the newspapers within men- tioned, the first publication of which was on the day of , A. D. 18 . I, also, within days after the date of the within warrant, sent written or printed notice, as within directed, to the within named , bankrupt, and to the creditors named on the schedule delivered to me by him, and^ herewith returned. The notices sent by mail were, without being enclosed in an envelope, deposited in the post office at on the day of " , A. D. 18 , with the direction thereon written, and the proper postage stamp affixed thereto, and those delivered personally by me to said creditors were delivered' at the times and the places set opposite to the name of each, and all of said notices were according to the directions set out in this warrant. TJ. S. Marshal as Messenger. Fees and Expenses. 1. Service of warrant $2 00 2. Necessary travel at the rate of 5 cents a mile each way. . District Court Forms. 49 3. Notice to creditors, 10 cents each , 4. Actual expenses in publishing notices, as follows :...•••• 5. Actual expenses in custody of property and other services, as follows : Marshal. Affidavit as to Expenses. DisTaioT OP New York, ) ' A. D. 18 j"' Personally appeared the said , messenger, and made oath that the abovei expenses returned by him, under numbers four and five, have been actually incurred and paid by him, and are just and reasonable. Sworn before me, (No. 42.) Warrant TO Messenger. (YOLCNTAEY BANKKUPTCy.) TJ. S. DISTRICT COURT, Disteict op New Yoek. ■ In Bankruptcy. In the matter of By whom a petition for an adju- dication of bankruptcy was filed on the day of A. D., 18 in said court. Disteict op New Yoek, ss: To the Marshal of the District of New York, ' Greeti7ig : 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," ap- proved March 2, 1867. was on the day of 18 filed |,y of iQ S3.id district, upon which he hath 32 498 Appendix III. been found and adjudged a bankrupt, there being no opposing party thereto : You are therefore hereby directed, as messenger, to publish twice in each of the following named papers, to wit : (The first publication to be made forthwith) the fpUowing 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 New York, 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 credit- ors of the said bankrupt, to prove their debts, and to choose one or more assignees of his estate, will be held at a court of bankruptcy, to be holden at before Register, on the day of A. D., 18 at o'clock, M. And you are further directed to serve written or printed notice forthmth, either by mail or personally, on all creditors upon the schedule 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 creditor 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 New York, 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 bankrupt, to him, or for his use, and the transfer of any property by hiia, are forbidden by law ; that a meeting of the creditors of said bankrupt, to wit : District Court Forms. 499 To prove their debts and choose one or more assignees of his estate, will be held at a court of bankruptcy, to be holden on the day of A. D.', 18 at o'clock m., at before Kegister. And have you then there this warrant, with your doings thereon. Witness, tiie Honorable Judge of the [ L. 8. ] said court, and the seal thereof, at in said district, on the day of A. D., 18 Chrk of District Court for said District. Given under the hand and seal of the undersigned, a register in bankruptcy, for the said judicial district, by whom this warrant is granted, signed and issued, in pursuance of the 11th section of the act of Congress above referred to, on the day last above mentioned. [L. s. ] Register in Bankruptcy. Messenger^s Return.^ District of New Yoek, ss : 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 advertisement twice in each of the news- papers within mentioned ; the first publication'of which was on the day of A. D., 18 in And I also on the day of A. D., 18 sent by mail or served per- sonally, 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 to the directions set out in said warrant. Fees: 1. For service of warrant $2 00 2. For necessary travel miles at 6e. per mile, each way, 3. For each written note to creditor named in the schedule, lOe 4. For actual and necessary expenses in publication of no- tices $ U. S. Marshal as Messenger, District of New York. 500 ^ Appendix III. DisTEicT OP New Yokk, 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. Sworn before me, &c. ( No. 43. ) Clmsi^s Gertifioatb of Notices, ^c. U. S. DISTRICT COURT, DiaiRicT op New York. In the matter Of ( ' In Bankruptcy. No. Bankrupt. District op New York, ) A. D. 18 $ **• I, Clerk of said court, do hereby certify, that on the _ day of 18 , there were deposited in the post-office in the city of with the postage fully prepaid thereon, notices by letter signed by me, of each of which the annexed is a true coj>y, which s^id notices ' were properly prepaid, folded and directed as required by Rule 33 ef the Rules in Bankruptcy of this court, to the following named persons, at the places set opposite their respective names : NAMES. residences. District Court Forms. 501 ( No. 14. > Notice of Appointment. CLERK'S OFFICE, U. S. District Court, DISTRICT OP NEW YORK. 18 To ' Esq., Register in Bankruptcy: Dear Sir — Your appointment of assignee in cases Nos. were duly approved by Judge this day. Yours respectfully, Clerk. ( No. 15, ) Assignment of Bankrupt's Effects. U. S. DISTRICT COURT, District ot New York. "^ In the matter of Bankrupt. In Bankruptcy. No. District op New York, ss. Know all men bt these presents. That of the of in the county of and State of in said districtj has been duly appointed assignee in said matter. Now therefore, I, Register in Bankruptcy of said district, by virtue of the authority vested in me by the 14th section of an act of Congress, entitled " An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867, do hereby convey and assign to the said assignee, as aforesaid, all the estate, real and personal, of the said bankrupt, aforesaid, including all the property, of whatever kind, of which he is possessed, or in which he was interested, or entitled to have, on the day of A. D. 18 , with all his deeds, books and papers relating thereto, excepting such property as is exempted from the operatipn of this assignment by the provisions of the said 14th section of said act. 502 Appendix III. To have and to hold all the foregoing premises to the said and his heirs forever ; in trust, nevertheless, for the use and purposes, with the powers, and subject to the conditions and liMtations set forth in said act'. In witness whereof, I, the said Begister, have hereunto set [l. s.] my hand, and caused the seal of said court to be affixedf this day of 18 . Register in Bankruptcy. ( No. 46. ) Decree roR Discbaroe of Bankrupt. U. S. DISTRICT COURT, Dibtrict op New York. In the matter of Bankrupt. • In Bankruptcy, No. At , in said district this day of 18 . This case having heretofore, to wit : on thg day of 18 , come on to be heard upon the petition and application of the said bankrupt for a discharge from debts, and upon the order heretofore made thereon, that all creditors who had proved their debts, and all persons in interest, might appear on the day last men- tioned, at o'clock in the noon, and show cause, if any they had, why the prayer of the said petition should not be granted ; and it now appearing that notice of such order has been given as required by law and the practice of the court, 4nd that the said bankrupt ha in all things conformed to duty under the act of the Congress of the United States, entitled " An act to establish a uniform system _of bankruptcy throughout the United States," approved March 2, 1867, and entitled, under the provisions thereof, to receive a discharge, it is hereby ordered, adjudged and decreed, that this court do grant, and it hereby does adjudge, decree and grant to the said the said bankrupt a discharge from all debts, except as in said act provided. District Court Forms. 503 And it is further ordered, adjudged and decreed, that a certificate of such discharge, under the seal of this court (attested by the cler^ thereof), in the words and figures following, viz : U. S. DISTRICT COURT, In the matter of. Bankrupt. In Bankruptcy. No. Whereas, ha been duly adjudged bankrupt under the act of Congress establishing a uniform aystem of bankruptcy throughout the United States, and appear to have conformed to all the requirements of law in that behalf, it is therefore ordered by the court, that the said be forever discharged from, all debts and claims which by said act are made provable against estate and which existed on the day of 18 , on which , day the petition for adjudication was filed excepting such t debts, if any, as are by said act excepted from the operation of a discharge in bankruptcy. Given under my hand and the seal of the court, at [l. s.] in the said district, this day of 18 . Attest : Clerk. Jvdge. be immediately signed by the judge of this court, and given to the said bankrupt .- And thereupon the certificate of the discharge of the said bank- rupt under the seal of this court, attested as aforesaid, and ip the words and figures aforesaid, was duly signed by the said judge,, and given to the said bankrupt on the day and year in the caption of this order and decree above mentioned. In testimony whereof, and of the proceedings in this matter, on the same day and year, and at the place mentioned in the caption hereof, the record thereof is duly signed by the clerk of the said court. Clerk. 504 Appendix III. (No. 4T. ) Certified Osdeb Bbfeeences. U. S. DISTBICT COURT, District of New York. In the matter of A petitioner for adjudication in ' P V- ' bankruptcy of himself. District of New York, ss. Whereas, of the county of State of New York, arid district aforesaid, has on this day of > , A. D. 18 , at o'clock minutes M,, filed in the office of the clerk of said court, a petition for adjudica- tion In bankruptcy against himself, according to the provision of the act of Congress, entitled " An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867. It is thereupon ordered, on motion of , of counsel for said petitioner, that said petition be referred to , one of the registers in bankruptcy of this court, to make adjudication thereon, and take such other proceedings therein as are required by said act ; and further, that the said petitioner shall, on or before the day of 18 , at o'clock M., file with said register a duplicate copy of said petition, and the schedule thereto annexed, and that he attend before said register on said day, at o'clock m., 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 bankruptcy. And further, that until otherwise ordered by the coilrt, the said register shall act upon the matters arising iji this case, at his office, at in the county of at the time' last aforesaid, and afterwards at such times as he shall fix for that purpose. I, , clerk of the District Court of the United States, for the district of New York,, do hereby certify that the above is a true copy of an order made in the above entitled matter. District Court Forms. 505' In testimony whereof, I have caused the seal of the said court to be hereunto affixed at the city of I L- s. ] , in the district of New York, this . , day of in the year of our Lord one thousand eight hundred and Clerk. ( No. 48. ) Order for Greditoiis, etc. DisTEicT OP New York, ss. On this day of , A. D. 18 , on read- ing the foregoing petition, it is ordered by the court that a hearing be had upon the same on the v day of , A. D. 18 , before said court, at the United States court room in , in said district, at o'clock, M., and that notice thereof be published in newspapers printed in said dis- trict for times once a week ; and that all creditors who have proved their debts, and other persons in interest, may appear ■ at the said time and place, and show cause, if any they have, why the prayer of the said petition should not be granied. And it is further ordered by the courii that all such creditors, whose places of residence are known, shall be entitled to a service of notice of the said petition and order, either personally or by letter addressed to them at their known usual place of residence, attested by the clerk of the court, or served at their usual place of abode by the marshal or his deputy, or sent by mail, whereof due proof shall be given. And it is further ordered, that the publication of such notices shall be made in the newspapers designated by the 32d rule in bank- ruptcy heretofore adopted by this court ; and that the second and third meetings of the creditors of the said bankrupt shall be held before , Esq., register in bankruptcy, at his office at , in the said district, on the day of ) 18 , at o'clock, m., and that notice of such meetings be published in like manner. 506 Appendix III. Witness, the Honorable ; jj^^^ge of the said court, and the seal thereof, at { L. s. ] , in said district, on the day of , A. D. 18 > Clerk. ( No. 49. ) Adjudication of Bankruptcy. (ceeditok's petition.) U. S. DISTRICT COURT, District op New York. In the matter of Bankrupt. • In Bankruptcy. At the city of , in said district, on the day of , A. D. 18 District of New York, ss. , This cause came on to be heard at the city of , in said court, and And thereupon, and upon consideration of the proofs in said cause, it was found ihat the facts set forth in said petition were true, and it is therefore adjudged, on motion of , of counsel for the petitioner, that became a bankrupt within the true intent and meaning of the act entitled "An act to establish a uniform system of bank- ruptcy throughout the United States," approved March 2d, 1867, before the filing of the said petition, and he is therefore declared and adjudged a bankrupt accordingly. And it is further ordered, that the said bankrupt shall, within five jays after /notice of this order, make and deliver, or transmit by mail, post paid, to the marshal, as messenger, a schedule of his ' creditors, and an inventory of his estate, in the form, and verified in the manner required of the petitioning debtor by the said act. That the said petition be referred to , one of the registers in bankruptcy of this court; to make adjudication theteon, and take such other proceedings therein as are required by said act; and that the said petitioner shall, on or before the day of ,18 , at o'clock, M., file with District Go urt Forms. 507 said register a duplicate copy of said petition, and that the said bankrupt attend before said register on the said day, at o'clock, M., 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 bankruptcy. And further, that until otherwise ordered by the court, the said register shall act upon the matters arising in this case, at his office, at in the county of at the time last aforesaid, and afterwards at such times as he shall fix for that purpose. Witness, the Honorable , judge of the said court, and the seal thereof, at , [ L. s. ] in said district, on the day of , A. D. 18 Clerk. I, , 3lerk of the District Court of the United States, for the district of New York, do hereby certify that the above is a true copy of the original adjudication in bank- ruptcy and order made in the above entitled matter. In testimony whereof,! have caused the seal of the said court to be hereunto affixed, at the city of , in the district of New York, this day of in the year of our Lord one thousand eight hundred and , and of the Independence of the said United States, the Clerk. ( No. 50. ) Notice to Creditor. U. S. DISTRICT COURT, District of New York. In the matter of Bankrupt. In Bankruptcy. No. At in said district, on the day of A. D,, 18 District of New York, ss: gjH . Take notice that a petition has been filed in said court, by of in said district, duly declared a bank- 508 Appendix III. rapt under the act of Congress of March 2, 1867, for a discharge, and certificate thereof, from all his debts, and other claims provable und'er said act, and that the day of 18 next, at o'clock, M., at the United States court room in the city of ia assigned for the hearing of the same, when and Any party impressing upon any work the words implying that the same has been entered when it has not, will render himself liable to the penalty prescribed in the statute, and measures will be taken to collect the same. For further information we refer you to the acts of Congress of F,ebuary 3, 1831, 4 Stat, at Large, p. 416 ; June 30, 1834, 4 Stat., 728 ; Feb. 15, 1819, 3 Stat., 481; August 18, 1856, 11 Stat., 138, and generally to Brightly's Digest of the laws of the United States, page 193, with the statement that section 4, as it appears in Brightly, was repealed by the act of February 5, 1859. Respectfully yours, To Clerk of said District. District Go ubt Forms. 513 (No. 57.) CSRTIFIOATE. t District of New York, ss: , Be it remembereil, that on the day of A. D., 18 of the said district, ha deposited in this office the title of a the title of which is in the words follow- Iowing„ to wit : The right whereof claim as In conformity with an act of Congress entitled, " An act to amend ^ the several acts respecting copy rights." Clerk of, the District. ' Received the within described work for deposit the day of 18 Clerk of the District, ,33 ' STJPI>LE]VtENT. [Itt Appendix II, pages 344, vinder the head "Rules of the District Court for the Southern District of New York," we stated in a brief note that the same had not been pubUshed entire, but were soon to be revised and printed in pamphlet form — and, if practicable, they might form a supplement. We are now enabled to introduce them in a supplementary form as we then intimtited. They having been lately collected and arranged in datal form' by that astute lawyer, upon whose shoulders the judicial ermine has so worthily fallen in that District, the Hon. Samuel Blatchford. Although quite voluminous, they will be found most valuable, not only to practitioners in that court, but as well to those in other districts ; being prepared with care they may be considered reliable as authority in all respects.] RULES Of the Distbict Cotjet of the United States for the Southern DrsTEicT of New York. [The following rnles, numbered from 1 to"24i , both inclusive, were adopted by the Court on the 6th of November, 18.38. The remaining Rules were adopted at the dates they severally bear. The Rules in Bankruptcy, under the Act of 1867, are not contained in t"his compilation. The Prize Rules now in force are printed in the Appendix to Blatchford's Prize Cases. With these exceptions, this compi- lation contains all the Rules adopted by the Court, except a few of merely a tem- porary character.] . 1. A libel, information, or petition, must state plainly the facts upon which relief is sought, without any repetitions or amplification of charges. See Rules 22 and 23, in Admiralty, prescribed by the Supreme Court. 516 SUFPLE3tSNT. 2. No process shall issue until the pleading or statement in writing upon which it is allowed be duly filed. See Bale 1, in Admiralty, presoribed by the Snpreme Court. 3. Libels (except on behalf of the United States) praying an attach- ment in persoTiam or in rem, or demanding the answer of any party on oath, shall be Terified by oath or affirmation. See Sule 87, pott. 4. The oath, or affirmation, of the party himself, in all cases where one is necessary, shall be required to pleadings filed in his name, except as is hereafter otherwise provided, or as shall be specially ordered by the judge. See Bule 93, post. Libels, informations, or petitions, ptaying a monition or citation only, without attachment, need not be sworn to. 6. Libels, and other proceedings to be filed, shall he plainly and fairly engrossed, without erasures or interlineations materially de- facing them. If papers not conforming to this rule are offered, the clerk shall require the allocatur of the judge to be indorsed thereon> before he receives them on the files. 7. Amendments, or supplementary matters, must be connected with the libel or other pleading by appropriate references, without a re- capitulation or restatement of the pleading amended or added to. S. In suits for seamen's wages, any mariner in the same voyage, not made a party, may, by short petition to the court, in any stage of the cause previous to the final distribution of the fund in court, or discharge of the defendant and his sureties, be joined as libellant in the cause, but no costs shall be allowed for the proceedings taken to make him a party. R ULES So VTHBRN t)lSTRICT. \ 7 ' — — — - — . < 9. The proctor in the original cause shall not, however, be compelled to proceed in behalf of such petitioning mariner, unless a reasonable indemnity is offered for such costs as may be incurred in consequence of his being j6ined in the cause. 10. In case of salvage and other causes, civil and maritime, persons entitled to participate in the recovery, but not made parties in the original libel, may, upon petition, be admitted to prosecute as co- libellants, on such terms as the court may deem reasonable. 11. Process on libels or informations may be made returnable on any day, at a stated or special term, but writs for the sale of property under any order or decree of the court, and all final process, shall be returnable at a stated term, unless,, upon cause shown, an earlier day is specially appointed by the judge. 12. Tuesday of each week ip appointed as a special sessions of the court (except the stated term be then in session), at which the same proceedings may be taken, in causes of admiralty and maritime juris- diction, as at a stated term. 13. Process to be used in commencing suits shall be a citation or monition ; an attachment in rem, united with -a monition, or, by special allowance of the judge, with an attachment in personam; an attachment in personam and a writ of foreign attachment. See Bule 2, in Admiralty, preicribed by the Supreme Court. 14. Where no specific process is provided by the rules, parties may have such process as is in use in like cases in the Supreme Court of the State. See Rule 2, in Admiralty, preieribed by the Supreme Court,. 518 Supplement. 15. Where it is not desired to arrest a defesdant, the clerk, on filing a libel or information, may, at the instance of {he actor, issue a cita- tion or monition, according to the usage in civil and admiralty pro- ceedings. See Bules 2 and t, in Admiralty, prescribed by the Snpreme Court. !«. No process in personam, for the arrest of any person, in cases of torts or unliquidated damages, sl^ali issue, except upon the mandate of the jjidge, See Bule 1, In Admiralty, prescribed by the Supreme Court. 17. In cases of liquidated damages, when the certdinty and amount of the demand appear upon the face of the libel, an attachment in per- - sonant may be issued by the clerk without an order. The attachment shall plainly express the cause of action and the amount of the de: inand, and the clerk shall indorse thereon the sum for which bail is required, not exceeding one hundred dollars above the sum sworn to be due and unpaid ; but no attachment or citation shall be issued until the libellant shall have filed a stipulation for costs, in the sum of one hundred dollars, except in suits by the United States. See Bules 44 and 45, pout ; and Bule of April leth, 1847, poat ; and Bule J, in Admiralty, prescribed by the Supreme Court. 18. On the return of a citation Or warrant by the marshal, "served personally," the party sh;»ll be deemed in court, and may be pro- ceeded against accordingly. ' 1». When the citation or monition, in suits in personam, is not served personally, the libellant may, at his election, pursue the defendant to a decree, of contumacy, in which decree may be embraced an order for the attachment of the defendant as for contempt of process ; or, on verifying by oath the matters demanded by the libel, the libellant may have an attachment in personam instanter, on the return of the citation " not served." R ULES So UTBERN DISTRICT. 519- f 20. , In the latter case, all subsequent proceedings may be as if the attachment had been sued out in the first instance. 31. On warrants to ^rrest the person, in admiralty and maritime causes, the marshal may take bail in the form of a stipulation, and in the sum indorsed on the warrant, conditioned for the appearance of the party on the return day, to answer to the libellant in a cause civil and maritime, according to the course of the court. See Bules 3 and 48, is Admiralty, prescribed by the Supreme Court. The sureties having made oath thereon to their suflSciency, and the bail stipulation being filed, it shall have the same effect in favor of the actor, and against the defendant, as if taken in court ; and the marshal shall be deemed discharged of all personal responsibility foe th^ appearance of the respondent. S3. In ease the marshal does pot file such stipulation, or the sureties,. being required, refuse to justify, like proceedings may be taken toi compel the marshal to bring in the party, as if no stipulation had. been entered into. S4. The condition of the stipulation shall be deemed satisfied,, if the party shall appear in person, on the return day of the warrant,, and submit himself for commitment, or enter into the usual stipulation in the cause, according to the course of the court, »5. If a party against whom a warrant of arrest issues cannot be found, and return thereof be made, the plaintiff may, upon the man- date of the judge, have a warrant to attach the property of the- defendant, and may also have inserted therein a clause of foreign attachment, according, to the course of the admiralty.. 26. In all cases of attachment, under admiralty process,, to coMpel an appearance, the attachment may be dissolved on the party's giving a stipulation with sureties, to the same effect as in cases of arrest. See Bul« i, in Admiralty, pretciibed by the Supreme Court. 520 SUPPLEIIENT. 27. In cases of foreign attachment, if the defen,dant appear, the same proceedings may be had as is usual in suits personam, and, if he make default, the ' court will proceed ex parte, and pronounce the proper decree, unless the attachment is discharged at the instance of the, garnishee. 28. Process cannot issue against goods, choses in action, or moneys in the hands of third persons, except by the order of the judge, and upon due proof of the claim first made ; and the names of such per- sons, and also of the persons whose effects are to be attached, together with a specification of such effects, shall be expressed in the process. 29. On the service of the attachment by arrest of property, the parties^ holding the property or funds attached shall, on the return day of such process, file an affidavit containing a full and true statement of the property of funds in their hands, belonging to the principal party at the time the attachment was served and at the time the deposition is made, and deplare whether ihey have any, and, if any, what claim to any, and what part thereof, and shall then, on motion of the actor, pay into court such amount as they shall not claim, or as may be ordered by the court, or give stipulation, with sufficient surety, to abide the further order or decree of the court in relation thereto ; and, on their default in this behalf, a rule may be entered, that an attachment issue against them, unless they shall show cause in folir days, or on the first day the court is in session afterwards. See Eule 37, in Admiralty, prescribed by the Supreme Court. t 30. When the property, effects or credits named in the process are not delivered up to the marshal by the garnishee or trustee, or are denied by him to be the property of the party, it shall be a sufficient service of such foreign attachment to leave a copy thereof with such trustee, or at his residence or usual place of business, unless the libellant shall, by competent surety, indemnify the marshal for arresting the property pointed out to him. Sta Kale 37, ia Admiralty, prescribed by the Supreme Court. R ULES So UTHERN DISTRICT. 521 31. On the return, by the marshal, of service of such attachment by notice and copy, with the reason thereof, the libellant may move the court for a peremptory attachment, or such order as the equity of the case may demand ; or, on proof satisfactory to the courts that the property, &c., belongs to the defendant, may proceed to a hear- ing and final decree in the cause, as if the property had been held in arrest. See Bule Z1, in Admiialty, prescribed by the Supreme Court. 32. All process to the marshal shall be returned on the return day thereof, and, if he shall not return the same in four days after being required in writing so to do, by any party or his proctor, upon affi- davit of such requirement and of the delivery of the process to him, an order may be entered, of course,' that he show cause why an attach- ment shall not issue against him ; and, in the case of process in rem, the return of the marshal shall express the day of tfie seizure of the property or the day of sale, if a process for that object. 33. No process shall be received on file unless duly returned by the officer to whom directed. 34. In case the court is not in session at the return of process requir- ing to be acted on in open court, proceedings shall be deemed con- tinued to the next sitting of the court (either stated or special), at which time the like proceedings may be had thereupon as if then returnable. 35. , On proclamation, after due return of process, the libellant shall be entitled to a decree of default or contumacy, according to the nature of the case, and the three proclamations heretofore used are abolished. See Kules of December let, 1847, post ; aid Bule of February 7th, 1863, poit ; and Kale 29, in Admiralty, preacribed by the Supreme Court. POO Supplement. 36. In case of the attachment of property, or the arrest of the person, in causes of civil and admiralty jurisdiction (except in suits for sea- men's wages, when the s^ttachment is issued upon certificate, pursu- ant to the act of Congress of July 20, 1790), the party arrested, or any pferson having a right to intervene in respect to the ' thing attached, may, upon evidence showin"g any improper practices, or a manifest want of equity on the part of the libellant, have a mandate from the judge, for the libellant to show cause instanter why the arrest or attachment should not be vacated. Stipulations may be taken, in admiralty and maratime causes, out of court, before the clerk or a commissioner, under a dedimus potestatem. The officer taking the stipulation, shall, if required by the opposite party, examine the sureties on oath and decide as to their competency. An appeal may be taken instanter to the judge, in case the decision is against the sufficiency of the sureties. See Kales 5 and Si, in Admiralty, prescribed by tbe Saprome Coart. 38. The conditions of stipulations, in causes in personam, shall be, that the principal, whenever required by this court, or an appellate court, in case of appeal, shall appear and answer to the cause or to interrogatories', and pay all costs that may be decreed against him, *and, by the respondent or defendant, that he will also perform and abide all orders and decrees in the cause, interlocutory or final, or deliver himself personally for commitment, in execution of such orders, to the proper officer. See Rule 3, in Admiralty, prescribed by the Supreme Court. 39. 'She amount of stipulations on the part of the defendants, in causes in personam, shall be the sum endorsed on the warrant, and, in rem, on the delivery of property attached, the appraisea or agreed value of the property seized, unless the sum, in either case, is modified or enlarged by order of the court. R ULES So UTHUBN DISTRICT. 523 40. Application may be made instanter to the judge, after an arrest in personam, to mitigate the amount of the bail stipulation ; and like application may be made at any time aft^r property has been delivered on bail stipulation, upon facts occurring after such deliv- ery, to discharge such stipulation, or to reduce the amount, accord- ing to the equity^of the case, previous notice of the application having been given to the proctor of the lib^Uant. See Rule 6, in Admiralty, prescribed by the Supreme Coutt. 41. Two days' notice shall be given the proctor of the libellant, of application for delivering up on stipulation property under attach- ment, specifying the sureties intended to be given, and their occu- pations and places of residence, and the officer before whom, atid the place where, the stipulation will be offered, except in suits by sea- men for wages, when such notice may be instanter. See Bule of October lat, 1857, post. 4a. The stipulation or bond to be given upon releasing and delivering up property arrested by process of the court, shall be conditioned that the claimant and his sureties shall, at any time, upon the inter- locutory , order or decree of the court, or of any appellate court to, which the cause may proceed, and on notice of such order to the ■proctor of the party to whom the property shall have been delivered, bring into court the appraised or agreed value of such property, or any part thereof so ordered or decreed. If no proc.tor is employed by such party, the order or decree shall be deemed peremptory two days after the same is entered. ' gee Bules 10 and ll, in Admiralty, prescribed by the Supreme Court. 43. The clerk shall provide a book in which shall be registered all stipulations filed in causes civil and admiralty, which shall be open to the examination of all parties interested. 44. No process in rem shall be issued, nor shall any appearance or answer be received, or third party be permitted to intervene and claim, except on the part of the United States, unless a stipulation, 524 SUPPLEMBNT. in the sum of two hundred and fifty dollars, shall be first entered into by the party, and at least one surety, resident in the district, conditioned that the principal shall pay all costd awarded against him by this court, or, in case of apj)eal, by the appellate court. See Kule 17, ante ; and Bule of April 16th, 1817, post ; and Bnle of April 26th, 1865, post ! alloiring a surety to reside in the Eastern Sistriot of Sew York ; and Bule 26, in Admiralty, prescribed by the Supreme Court. 45. But seamen suing in rem for wages^^ in their own right" and for their own benefit, for services on board American vessels, and salvors coming into port in possession of the property libelled, shall not be required to give such security in the first instance. The court, on motion, with notice to the libellants, may, after the arrest of the property, for adequate cause, order the usual stipulation to be given in these cases, or that the property arrested be discharged. By Bule of April 16th, 1847, post, this Bule is made applicable alike to anits inpersonam and in rem. See Bule 17, ante. 46. Notice of the arrest of property by attachment in rem, in behalf of individual suitors, shall be published and affixed in the manner directed by act of Congress in case of, seizures on the part of the United States, except when the judge by special order directs a shorter notice than fourteen days ; and except that, instead of the substance of the libel, a short statement of its purport may be given. 47. Notice of sale of property after condemnation, in suits in rem , (except under the revenue laws and on seizure by the United States), shall be six days, unless otherwise specially directed in the decree of condemnation and sale. 48. All such notices shall Ije published in the manner directed by act of Congress, in the case of condemnation under the revenue laws. 49. The marshal shall be allowed (in conformity to the former usage of the court) one dollar and fifty cents per day for the Custody of a vessel, her tackle, apparel and furniture, seized by any officer of the revenue, and seized, libelled and prosecuted for forfeiture. I 'Rules Southern District. 525 50. He shall be allowed for the custody of goods so seized, on all sums not exceeding $5,000, held in custody less than thirty days, two per cent ; on all sums expeeding $5,000, held in custody less than thirty days, one per cent ; on all sums not exceeding $5,000, held in custody over thirty days, two and a half per cent ; and on all sums exceeding $5,000, held in custody over thirty days, one and a half per cent ; except, on attachment of specie, bullion, jewelry or precious stones, the allowance to the marshal shall be specifically fixed by the court, having regard to the special circumstances of each case. 51. The marshal may have like allowances taxed on all other attach- ments of property, in causes of civil and admiralty jurisdiction. 52. All the above allowances are, however, subject to alteration by the court on motion, due notice thereof being given the opposite party, and adequate cause being shown therefor, 53. The allowance to the marshal, above appointed, for the custody of goods, shall be computed upon the gross proceeds, in case of sale ; or upon the appraised or agreed value;, if bonded ; but the marshal, in case of an agreed valuation between the parties, not assented to by him, may have an appraisement in the usual mode. 54. If attachments in rem are accompanied by written instructions to the niarshal, specifying the sum demanded (adding thereto $250, to cover costs), he shall, as in case of executions, only arrest so much of the goods or effects to be seized (when severable) as shall be suf- ficient to satisfy such amounts. 55. In all cases of stipulations, in civil and admiralty causes, any party having an interest in the subject matter, may move the court, on special cause shown, for greater or better security, giving the opposite party two days' notice thereof, unless a shorter time ia allowed by order of the judge. S*a Rnl* 6, in Admiralty, preaoribed by the Supreme Conit. 526 Supplement. S6. After a citation or monition, or warrant of artest, in suits in per- sonam,^Tet\urxei " served personally," if the defendant do not ap- pear at the return day, he shall be deetned in contumacy and in default, and the libellant may take order for Aiforcement of the stip- ulation (in case any is given), orto compel the defendant's appearance, according to the course of admiralty proceedings ; or, at his option, may proceed to hearing ex parte, and obtain the proper decree, unless the court,. for good cause, shall ^low the defendant further time. 57. , In suits in personam, stipulators to the marshal on the arrest of the defendant, may be discharged from their stipulation, on the sur- render of the principal, as in cases of bail at law. 58. So, also, stipulators or Jide-jtissores, after the return of the attach- ment, in suits in personam, may surrender their principal, or he may surrender himself, in discharge of the stipulation, as in cases of special bail at law ; except in respect to costs in this court, or any other court to which the cause may be appealed. 69. All stipulations in causes civil and maritime, shall be executed by the principal party (if within the district), and at least one surety resident therein, and shall contain the consent of the stipulators, that in case of default or contumacy on the part of the principal or sureties, execution to the amount named in such stipulation majr issue against the goods, chattels and lands of the stipulators. The court will modify the execution as to the time it may stay and the amount to be collected, according to the equity of the case. Non- resident parties must supply at least two sureties. See rule of April 26tb, 1865, post, alldwing a surety to reside in the' Eastern Sistriot of New York. 60. In case of seizure of property in behalf of the United States, an appraisement for the purpose of bonding the same may be had hf any party in interest, on giving one day's previous notice of motion before the court, or the judge in vacation, for the appointment of appraisers. R ULES So UTHERN DISTRICT. 527 61. If the parties or their proctors, and the district attorney are present in court, such motion may be made instanter, after seizure, and without previous notice. 62. Orders for the appraisement of property under arrest, at the suit of an individual, may be entered of course, by the clerk, at the in- stance of any party interested therein, or upon filing the consent of the proctors for the respective parties. 63. s Only one appraiser is to be appointed in suits by indiv;idual3, un- less otherwise specially ordered by the judge, and if the respective parties do not agree in writing upon the appraiser to be appointed^ the clerk shall forthwith name him, either party having a right of appeal instanter to the judge from such nomination, for adequate cause. 64. In case vessels, their tackle or appurtenances, are to be appraised, the clerk shall name a warden of the port, and in case of merchan- dise, an appraiser or an assistant appraiser of the custom house, as ^praiser. 65. In suits in rem for seamen's wages, and all other actions in rem for sums certain, the claiuunt, or respondent may pay into court the amount sworn to be due in the libel, with interest computed thereon from the time it was due, to the stated term next succeeding the return day of the attachment, and the costs of the officers of court already accrued, together with the sum of $250 to cover further costs, &c. ; or, at his option, may give stipulation to pay such sworn amount, with interest, costs and damages (first paying into court the costs of the officers of court already accrued), and, in either case, may thereupon have an order entered instanter, for delivery of the property arrested, without having the same appraised. 66. Appraisers before execdting their trust shall be sworn or affirmed to its faithful discharge, before the clerk or his deputy (who are hereby appointed commissioners for the qualification of appraisers), 528 Supplement. and shall give one day's previous notice of the time and place of making the appraisement, by affixing the same in a conspicuous place adjacent to the United States court rooms, and where the marshal usually affixes his notices, to the end that all persons concerned may be iijformed thereof, and the appraisement, when made, shall b« re- turned to the clerk's office. Appraisers acting under an order of this court shall be severally entitled to three dollars for each day necessarily employed in mak- ing the appraisement, to be paid by the party at whose instance the same shall be ordered. 68. No vessels, goods, wares, or merchandise ip the custody of the marshal shall be released from detention, upon appraisement and surety, until the costs and charges of the officers of this court, so far as the same shall have accrued, shall first' be paid into court by the party at whose instance the appraisement shall take place, to abide the lieoision of the court in respect to such costs. See Bales 10 and 11, in Admiralty, prescribed by the Supreme Court. 69. No property in the custody of any officer of the court shall be delivered up without the order of the court ; but such order may be entered, of course, by the clerk, on filing a written consent thereto by the proctor in whose behalf it is detained ; and, also, after ap- praisement and bond duly executed. 70. If, in possessory suits, after decrees for either party, the other shall make application to the court for a proceeding in a petitory suit, and file the proper stipulation, the property shall not be deliv- ered over to the prevailing party until after an appraisement made, nor until he shall give a stipulation with sureties to restore the same property without waste, in case his adversary shall prevail in the petitory suit, and also to abide as well all interlocutory orders and decrees, as the final sentence and decree of the district court, and, on appeal, of the appellate court. R ULES So UTHBSN DISTRICT. 529 71. In all cases where a judgment or decree is entered on a bond or stipulation filed with the clerk for the appraised or agreed valu^ of any property libelled in this court, the clerk shall receive, in addi- tion to the amount of the bond, interest at the rate of six per cent per annum, for the time which shall intervene between the entry of the judgment, or date^ of the stipulation, and the day when th» money shall be paid into court. 72. A tender inter partes shall be of no avail on defence,-or in dis- charge of costs, unless, on suit brought, and before answer, plea, or claim filed, the same tender is deposited in court, to abide the order or decree to be made in the matter. 73. When tender is first made after suit brought, it must include tax- able costs thei; accrued. 74. No third party can intervene by claim, without proof of a subsist- ing interest in the subject matter of the claim. This proof may, in the first instance, be the oath of the claimant, but subject to denial and disproof on the part of the libellant, on issue thereto or on sum- mary petition. See fiulea 26 and 34, in Admiralty, prescribed by the Supreme Court. 75. Double pleas, or exceptions, replications to pleas, triplications or rejoiiiders, ke-.) may be filed without previous leave of the court, the pleading of several matters being restricted to cases in which the matters are distinct. 76. Defense may be made by answer or claim, of matters of law or fact, without the employment of exceptions or special pleas usual in causes of civil and maritime jurisdiction, other than exceptions to the competency of the party or the process, or other matter of abatement. 84 530 Supplement. If matter of bar at law to the libel is set up by answer or claim, and allowed by the court, no costs shall be taxed for any other part of the answer or claim than that stating such bar. 78. . When the answer alleges a bar in law to the whole libel, it may be treated as a plea, and set down for hearing, without filing a repli- tsation other than to such bar, or going into proofs upon the issues in fact. 79. Where a party not required to answer intervenes by claim and answer, costs will be taxed for the claims only. 80. When an answer is required, in a suit in rem, of a party -having no interest in the subject matter, he may file an exceptive allegation or disclaimer, and notice the same instanter for hearing. If the de- cree of the court is in affirmance of his plea, he shall be discharged the action with costs. 81. One improperly joined as defendani;, in an action in personam, may have a decree of discharge in the same manner; provided it is made satisfactorily to appear to the court that he can give material testimony as a witness in the cause. 82. When the claim is in derogation of the right set up by the libel, it may form a general is^ue therewith, by denying " that the' libellant is entitled to the remedy and relief in the premises sought by him," without traversing or admitting the several articles of the libel. See Bole 26, in Admiralty, prescrilied by the Supreme Court. 83. A general issue may be taken by answer, in like manner, when the answei: is not required to be under oath. See Kale 21, in Admiralty, prescribed by the Supreme Court. - 84. So, also, the libel may be contested affirmatively, by a general issue instead of a formal demurrer. Rules Southern 3 istrwt. 5^1 85. When a general issue is taken to the libel in open court, on the return day of process, either party may have the cause placed upon the calendar instanter, and it may be called in its place for proofs, without other notice. 86. . Each party is entitled to like proceedings in such case, as if the cause had been noticed by each, pursuant to the usual practice. 87. A sworn answer is not to be deemed higher evidence than the libel of information to which it respQnds,'UQle^s made so by the act of the promovent. An answer need not be put in . under oath, unless so required by a sworn libel, or one filed by the United States. See Kule 3, ante ; and Rules 27 and 49, in Admiralty, prescribed by the Supreme Court. ) 88. The matter set up by a sworn answer responsive to the allegations or interrogatories of the libel, shall be dbemed admitted on the part of the libellant, unless, within four days from'the time the answer is perfected, or from the expiratiota of the time allowed for excepting thereto, replication is filed, or a written -notice served on the proctor of the respondent, that, on the trial of the cause, proof will be offered on the" part of the libellant, in opposition to the allegations of the answer. No replication need be filed for any other purpose, to an answer taking an issue in fact upon the allegation of the libel. See Rule S2, ^n Admiralty, prescribed by the Supreme Court, by which the pro- visions of this Rule are altered. 89. A claim or answer may be put in and filed at any timte after the service of process and before defaults entered ; and, when it shall be put in at any other time than on making proclamation, notice of the time of filing it shall be given the libellant ; otherwise, he shall iiot be bound to regard it. 90. If separate answers or claims are put in by the same proctor, or by different proctors being connected in business, all costs thereby unnecessarily incurred shall be disallowed, on taxation. 532 SVPPLEMENT. 91. An answer or claim on the part of the United States is to be put in without oath, by the District Attorney, and is not subject to exception for insufficiency. 9a. In the case of bailable process in personam, unless the defendant appear snd put in bail stipulation according to the rules of the court, his claim or answer may be treated as a nullity and his defaults l)e entered. An answer in such case shall be deemed filed from the time bail becomes perfected. 93. ■ On due proof that a claimant or respondent is absent from the United States, or resides out of the district, and more than one hun- dred miles from the city of New York, a claim or answer to a libel may be sworn to by a proctor or attorney in fact, in behalf of such party ; and if, thereupon, the libellant, by written notice to the re- spondent, demands a personal answer verified by the oath of the party, proceedings shall stay a reasonable time to enable such answer to be taken by commission or dedirrms potestatem.- The provisiona of this rule may, also, be applied to the verification of a libel, by the oath of a proctor or attorney in fact. See Bale 4, ante ; and Bole 26 in Admiralty, prescribed by the Supreme Court. 94. The defendant may, on the return day of process, atid before an- swering, demurring or pleading, file an exception to the libel, that it is multifarious or ambiguous, or without plain allegations upon which issue can be taken ; and if it be adjudged by the court insuf- ficient, for any of these causes, and be not amended by the libellant within two days thereafter, it shall be disinissed, with costs. See Rule 36, in Admiralty, presoribed by the Supreme Court. 95. Proceedings upon such exceptions shall conform to those on ex- ceptions to answers or other pleadings. See Bule 36, in Admiralty, prescribed by the Supreme Court. R VLES So VTBEBN DISTRICT. ' 683 96. The libellant may, within four days from the filing of the answer or claim, file exceptions thereto, for insufBciency, irrelevancy or scandal, which exceptions shall briefly and clearly specify the parts excepted to, by the line and page of the papers in the clerk's office ; whereupon the party answering or claiming, shall, in four day's, either give notice to the libellant of his submitting to the exceptions, or set down the exceptions for hearing, and give four days' notice thereof, for the earliest day of jurisdiction afterwards. In default whereof, the like order may be entered as if the exceptions had been allowed by the court. See Rales 28 and 36, in Admiralty, pfescribed by tbe Supreme Court. 97. If a party submit to exceptions for insufficiency, he shall answer further, within four days after notibe of his submitting. If the ex- ceptions are a,llowed on hearing, he shall answer futther within such tiiAe as the court shall direct ; and if the hearing of the exceptions shall not be duly brought on, or the further answer duly put in, the claim or answer excepted to shall be treated as a nullity, and the default of the pafty-fee entered. See Rules 28, 30 and 36, in Admiralty, presoribed by tbe Supreme Court. 98. If exceptions for irrelevancy be submitted to, or be allowed by the court, or the hearing be not duly brought on by the respoadent, the matter excepted to shall be struck out of the claim or answer by the clerk. See Rule 36, in Admiralty, prescribed by tbe Supreme Court. 99. Either party may propound interrogatories to the other, withitt four days from the putting in of the claim or answer, or other plead- ing, and the perfecting of the same, if excepted to. See Rules 32 and 33, in Admiralty, presoribed by the Supreme Court. 100. A copy of the interrogatories shall be served on the party for whom the same are intendedy or his proctor, if one be employed ; and if he object thereto, he shall notify the party serving the same, who shall, on due notice, submit the ?ame to the judge for his al- 534 Supplement. lowance. The intorrogatories allowed shall be filed with the clerk, and notice thereof be ['given, and the party shall file his answer thereto in ten days after such notice ; in default whereof, if libel- lant, the libel shall be dismissed ; if claimant or defendant, the claim or answer shall be treated as a nullity, and default maybe en- tered against such party. See Rules 32 and 33, in Admiralty, presoiibed by the Supreme Court. 101. Answers to interrogatories ijiay be excepted to in the same man- ner as answers or claims put in by a defendant, and shall, in all re- Bpects, be subject to the provisions of the rules in relation to excep- tions; and if the libellant making answers, shall not perfect the game after exception, the libel shall be dismissed for want of prose- cution. But this rule, and the preceding one, shall not in any case be I deemed to require answers to interrogatories on the part of the United States, in suits brought in their behalf. Sec Rules 32 and 33, in Admiralty, prescribed by tbe Supreme Court. 103, The oath of calumny shall not be required of any party, in any stage of a cause, 103. Suits may be joined pr consolidated upon the same principle as in the practice of the court at common law. 104. When various actions kre'pending, all resting upon the same mat- ter of right or defense, the court, by order, at its discretion, will compel the parties to abide by the decision rendered in one case, and will enter a decree in the other causes ^conformably thereto, although there be no common interest between the parties. lOS. Commissions for taking testimony, if not sued out pursuant to the rules of the Circuit Court, shall be moved for in four days after the olai(m or answer is filed and perfected (if the same shall have been excepted to); but, if interrogatories shall be propounded foi: the other party, by the party who moves for a commission, he shall have four days for moving after the answers to the interrogatories shall B ULBS So VTffERN DISTRICT. 535 be perfected ; otherwise, such commissions shall not operate to stay proceedings ; but, on a proper case shown, application for a commis- sion may be made at. any time after the action is commenced, and before issue joined, or after a default or interlocutory decree. See Rules 41 to 50, both inolusirci, of the Circuit Court. 106. Affida,vits on which a motion for a commission is made shall specify the facts expected to be proved, and the shortest time within which the party believes the testimony may be taken and the commission returned. 107. , A commission will not be allowed to stay proceedings if the oppo- Bite' party admits in writing that the witnesses will depose to the facts stated in such affidavit ; such affidavit, with the admission, may be read on the trial or hearing, and will have the same effect as a •deposition to those facts by the witness or witnesses named. 108. The motion may be noticed and made at term, before the court, or in vacation before the judge out of court, and only one commis- 1 sioner will be named, unless special cause is shown fof appointing a greater number, nor will costs be taxed for the services of more than one, except where both parties require a greater number. 109. Interrogatories for the direct and cross-examination, ii^ case the parties disagree respecting them, shall be presented to the judge for his allowance at one time, and one day's notice of such reference shall be given by the party objecting to the opposite interrogatories. 110. Cross-interrogatories shall be served within four days after the. direct have been received, ot they shall be regarded as assented to, and, if no notice of reference to the judge is given within five days after both direct and cross-interrogatories have been served, each ' party shall be deemed to have assented to the interrogatoi'ies served. 111. The interrogatories, direct and cross, as agreed to by the parties or settled by the judge, shall be annexed to the Commission. 536 Supplement. iia. Directions as to the execution and return of the commission, signed by the clerk, and the proctor of the party moving it, or of both par- ties, if both unite in the tjommission, or if both propose interrogato- ries, shall accompany the commission. 113. Depositions taken under commission, or otherwise, shall be for- warded to the clerk immediately after they are taken, and be filed on their return to the clerk's office, in term or vacation, and notice thereof shall be forthwith giveii by the party filing them to the proc- tor of the opposite party. And all objections to the form ot manner in which they were taken or returned shall be deemed waived, unless such objection shall be specified in writing in four days after the same are opened, unless further time shall be granted by the jud^e. 114, In suits between individuals, either party may, at any time after the commissions or depositions are deposited with the, clerk, enter an order of course, as of a special sessions, if in vacation, to open the same and deliver copies thereiof. 115. In suits on seizures, in which the United States are a party, such order may be entered on the written consent of the proctors or attor- neys of the respective parties,' or on motion to the court at a stated or special session. 116. Opening such commisi»ons or depbsitions shall not preclude either party from objecting to the competency or relevancy of the evidence when offered on trial. 117. Exceptive allegations to the credibility or competency of witnesses examined on deposition or commission, may be filed within four days after the depositions or commissions are opened at the clerk's office, and notice shall be given forthwith of such exceptions. 118. Testimony impeaching or supporting the witnesses may, in such case, be given by the parties respectively, on the hearing of the cause, and may be taken in the same manner as proofs in chief. R ULES So UTBEBN DISTRICT. 537 " 119. Depositions in perpetuam rei memoriam, to be used in this court, may be taken under a dedimus potestatem, or by any officer author- ized by act of Congress to take depositions de bene esse, to be used in the courts of the United States, in like cases and by like proceed- ings as is now authorized by the Supreme Court of the State of New York. ' / 130. Notices of trial, argument or hearing may be for any day in term the court being then sitting (including days to which the court may stand adjourned), upon a sufficient excuse for not giving notice for the first day of the term. 131. In all issues brought to trial, argument or hearing, except as pro- vided in these Bules, four days' previous notice shall be served on the attorney or proctor of the opposite party, when the attorney or proctor resides in this city; in all other cases, posting such notice conspicuously in the clerk's office shall be a sufficient service. 122. A note of the pleadings and of the date of the issue shall be served on the clerk, with a notice of the hearing, four days before the time of hearing, and such notices shall also specify the pleadings, and whatever papers or documents in his office shall be required by the parties to be produced'by the clerk at the trial. 123. So soon as issue is joined, the respondent or claimant may notice the cause for hearing on his part, and be thereupon entitled to a decree dismissing the same, with costs, or such other decree as the case may demand, unless the libellant shall also notice the cause for the same time, and proceed to trial or hearing, or obtain a continu- ance by order of the court, on proper cause shown. See Rule 183, po$t ; and Rule 39, in Admiralty, prescribed by the Snpreo* Court. 538 SVPFLEirSNT. 124. When either party shall require viva voce testimony given in open court, to be taken down by the clerk pursuant to the act of Congress, it shall be taken in the same manner as in ju^y trials on common law issues, and not verbatim as in depositions de bene esse. See Kule of NoTember 17th, 186S, post ; and Bule 51, in Admiralty, presoribad by the Snpreme Court. 125. The notes of the judge- may, by assent of parties, be used as if taken down by the clerk. See Bule of November 17th, 18S8, pott. 126. Either party desiring to diminish, vary, oi; enlarge the minutes of proofs taken by the clerk or judge, may, within two days after the trial, serve a statement of proofs on the proctor of the opposite party, and such statement, if assented to, or if no amendments are proposed thereto, within two days thereafter, by such proctor, shall be re- garded the true minutes of the testimony taken, and the notes of the judge or clerk be corrected in conformity thereto. See Rule of November 17th, 1868, post. 127. If amendments are proposed and the parties do not agree therein, the statements and amendments shall be forthwith referred to the judge, and he shall settle or determine how the facts are, and the statement thus settled or adjusted shall be filed as the true minutes of the testimony given. See Bule of November 17th, 1868, post. v, 128. In cases of demands arising not ex delicto, on a decree in" favor of the libellant by default or on hearing, it shall be referred to the clerk to compute and ascertain the amount due the libeUant, but reference may also be made in cases of tort, or on allegations of in- cidental or consequential damages, if desired by either party. Rules Southern DistBicT. 539 129. In case of the absence of the clerk, or his incompetency, from in- terest or otherwise, or upon any sufiScient cause shown, such refer- ence may be made to assessors, or otherwise, according to the course and custom of courts of civil and admiralty jurisdiction. 130. On such reference, either party may produce and use the plead- ings and proofs filed in the cause or heard in court, and other com- petent proofs pertinent to the matter of reference. 131. The clerk shall allow neither party longer than ten days from the order of referenpe, to complete the proofs thereon, without the special order of the judge. 132. At the instance of either party, the clerk shall report the addi- tional testimony received by him, and' the offer of testimony rejected (if any) by him. , 133. Either party may except to the clerk's report, and set down the exceptions for hearing, on t^o days' notice', at the first stated or' special sessions after the report is filed. 6e« Rules of Deeember lit, 1817, posts "i^^ K»Ib of May 21>t, 1368, post. 134. Upon the coming in of the jreport, a decree of confirmation may be entered, on motion, without notice, unless otherwise ordered by the court, or the report shall be excepited to ; and in the latter case, the exception shall be overruled or held abandoned, unless brought to a hearing the first stated or special sessions of die court for which it can be noticed. See Bales of December Ist, 1847, post. 135. If the libellant takes no proceedings upon the report within four days after the filing thereof in open court, the respondent may move the court to dismiss the libel, for want of due prosecution. See Eules of December lat, 18*7, post. 540 Supplement. . 136. If the promovent in a libel or information, neglects to proceed in the cause with tl^e dispatch the course of the court admits, the re- spondent or claimant may have the libel or information dismissed on motion, unless the delay is by order of the judge, or the act of the respondent or claimant. See Kule 123, ante; and Rule 39, in Admiralty, presoribed by the Supreme Court. ' 137. Four days' notice shall be given of the application to dismiss the action, and a copy of an aflSdavit, or a certificate of the clerk, that no proceedings have been taken, be served at the same time. 138. A special session of the court (besides the sittings on Tuesday, each week) may be opened iX. any time instanter, on the allowance of the judge, for hearing and disposing of-special motions, argu- ments on questions of law, and also for taking proofs, or hearing admiralty and maritime or revenue causes, and rendering interlocu- tory or final decrees therein. 139. No party shall be compelled to take or meet proceedings at a special sessions (without the order of the judge previously served on him), in other than civil causes of admiralty and maritime juris- diction. 140. A guardian ad litem will be appointed on a petition, verified by oath, stating a proper case for such appointment; and the guardian shall give stipulations for costs, &c., the same as if he was person- ally the party in interest. , 141. Infants may sue by prochain ami, to be first approved by the court; the prochain ami to give stipulations and be responsible for costs, in the same manner as the infant would be if of full age. 142. Suits can only be ^rosecijted or defended in forma pauperis by express allowance of the court. In such casCj the pauper will be discharged of all stipulations or liabilitieB for costs. R ULES So l^TBERN DISTRICT. 541 143. ' But the court, on satisfactory proof of the inability of a party to comply with the usual -stipulations in a cause, may mitigate and modify such stipulations conformably to the equities or exigencies of the case. See Rule 6, in Admiralty, presoribed by the Supreme Court. 144. Where proceedings on a decree shall not be stayed by an appeal, and the decree shall not be fulfilled or satisfied in ten days after notice to the proctor of the party against whom it shall be rendered, it shall be of course to enter an order that the sureties of such piarty cause the engagement of their stipulation to be performed, or show cause in four days, or on the first day of jurisdiction afterwards, ' why execution should not issue against them, their lands, goods, and chattels, according to their stipulation ; and, if no cause be then shown, due service having been made on the proctor of the party, a summary decree shall be rendered against them on their stipulations, and execution issue ; but the same may be discharged on the per- formance of the decree and payment of all costs. See Kule 3, in Admiralty, presoribed by the Supreme Court. 145. A party obtaining a decree of the court, may, at his election, > have, for the execution thereof, like process as is now used in this State for like purposes, except that of personal attachment, as for a contempt oft court. See Rule 21, in Admiralty, prescribed by the Suprejne Court. 146. The writ oi fieri facias or venditioni ex^raos is adopted as final process, in this court, in all cases for the sale of property ; and the proceedings thereon, in admiralty cases, shall ^be conformable to those on the common law side of the court. See Rule 21, in Admiralty, presoribed by the Supreme Court. 117. Whenever, from the death of any of the parties, or changes of interest in the suit, defect in the pleadings or proceedings, o^r other- wise, new parties to the suit are necessary, the persons required to be made parties may be made such either by a petition on their part or by the adverse party. 542 Supplement. 148. In either mode, it shall be sufficient to allege briefly the prayer of the original libel, the several proceedings in the cau^e and date therepf, and to pray that such persons required to be made parties to the suit may be made such parties. 149. On service of a, copy of such petition and of notice of the pre- senting thereof, such order shall he maide for the further proceeding in the cause as shall be proper for its speedy and convenient prose- cution as to such new parties, and the same stipulations and security shall, in all such cases, be required and given, as in cases of persons becoming originally parties to a suit. 150. A party shall not be held to enter his appeal from any decree or order of the court as final, unless the same is in a condition to be executed against him without further proceedings therein in court. See Bule 45, in Admiralty, prescribed by the Sapreime Court ; and Bale 117 of the Circnit Court. 151. Ten days from the .time of rendering the decree shall be allowed to enter an appeal, within which time the decree shall not be executed. A brief notice in writing to the plerk and opposite proctor, that th'e party appeals in the cause, shall be a sufficient entry of the appeal, without any petition to the court for leave to enter the same. See Bule 45, in Admiralty, proscribed by the Supreme Court. 152. When an appeal shall be entered, the appellant shall, within ten days thereafter, give security for damages and costs ; and, if security shall not be given within that time, the decree may be executed as if there h^d been no appeal, unless further time be allowed by the court. 153. The appellant shall give four days' notice, to the adverse party, or his proctor, of the person or persons proposed as his sureties, with their additions and descriptions, and of the time and place of giving the stipulation. R ULES So VTHERN DISTRICT. 543 154. When an appeal shall be entered, the appellant shall cause the proceedings of the court, Required by law to be transmitted to the Circuit Court, to be transcribed for that purpose within thirty days after the appeal shall be entered in this court ; and, in default thereof, the decree shall be executed as if there had been no appeal, unless the court shall, upon special motioti of the appellant, otherwise order. See Rule 53, in Admiralty, prescribed by the Supreme Court. 155. A re-hearing will not be granted in any matter in which a decree has been rendered, unless application is made at the term when the decree is pronounced, or there is a stay of proceedings by order of the judge. See Rule 40, in Admiralty, prescribed by the Supreme Court. 156. , No libel of review will be entertained in cases subject to appeal, nor unless filed before the enrollment of the decree or return of final process issued in the cause. 157. When any moneys shall come to the hands of the marshal under or by virtue of any order or process of the court, he shall forthwith pay over the gross' amount thereof to the clerk, with a bill of his charges thereon, and a statement of the time of the receipt of the moneys by him, and, upon the filing of such statements, and the taxation of such charges, the same shall be paid to the marshal out of such moneys ; and the general account of all property, sold under the order or decree of this court, shall be returned by the marshal and filed in the clerk's office, with the execution or other process under which the sale was made. See Rule 11, in Admiralty, prescribed by the Supreme Court. 158. All bills of costs and of charges to i)e paid under any order or decree of this court, shall be taxed and filed with the clerk before payment thereof; and, if the same shall include charges for disburse- 544 Supplement. ments other than to the officers of the coujrt, the proper and genuine vouchers, or an affidavit therefor (in cases of loss of vouchers), shall be exhibited and filed, and, if such bill shall be taxed without four days' notice to dl parties concerned, they shall be sul^ect to a retaxation, of course, on application by any such party, not having had notice, and at the oharge of the party obtaining such taxation. 159. The clerk is authorized to tax or certify bill of costs and to sign judgments, and also take acknowledgments of the satisfaction of judgments, and all affidavits and oaths out of court, as in open court, in all cases where the same are not required' by law to be taken in open court. 160. The deputies or chief clerks of the clerk of this court, not exceed- ing two in number, and named and designated by an appointment filed in the office of said clerk, are each authorized to sign judgments, , to tax and certify all bills of costs in this court, other than those of the clerk, and also to affix the seal of the court and certify proceed- ings or papers in the name of the clerk, in all other cases than exemplifications of the records or files of the court, and to perform all duties appertaining to the clerk by the appointment of the court, or the course of practice, which are not specifically appointed by statute to be performed by the clerk. Ibis Kule is printed as amended by a Bule made March 26tb, 1841. 161. The clerk is authorized to enter satisfaction of record ot any judgment rendered in this court in behalf of the United States, on filing acknowledgment of satisfaction of the same duly made by the District Attorney. i 162. All rules to which a party is entitled, of course, or which are moved for upon the written consent of the parties, may be entered by the clerk in vacation, without the mandate of the judge, and be entitled as of special court held on that day. Rules Southern District. 545 Proctors of any Circuit or District Court of tkc United States, and attorneys of the Supreme Court of this State, and solicitors of the Court of Chancery, may be admitted attorneys and proctors of this court, and counsellors of the said Supreme Court and Court of Chancery, and counsellors and advocates of said Circuit or District Courts, may be admitted counsellors and advocates of this court, of course, upon taking the oaths prescribed by the Constitution and laws of the United States. 164. In admiralty and maritime causes, wherein the matter in demand does not exceed fifty dollars, the proceedings for recovery thereof may be summary. £ee Eules of Jane term, lSt9, pott. 163. Instead of filing a libel, tte promovent in suits by individuals, may, by short petition, state the matter of his demand, and the amount or value thereof, or present an account stated, or a bill of charges by items, on filing either of which, process may issue, as on the filing of a libel in ordinary cases. See Bales of June term, 1819, post. 16^. The same petition or statement used on application for a summons, pursuant to the act of Congress of July 20, 1799, section 6, shall, when admiralty process is ordered by the judge or justice of the peace, be filed, and may stand aad be proceeded upon in lieu of the libel in form. See Boles of June teim, 184:9, post. 16T. Any party intervening may contest the petition or demand orally or in writing, by general denial or affirmance, or file a plea in bar, or answer, or claim. See Bales of Jane term, 1849, post. 35 546 Supplement. 168. , No costs shall be taxed the defendant for any plea, answer or claim, other than a general issue to the aotor's demand, unless an answer on oath be demanded. See Bulei of June Term, 1849, post. 169. Either party may file interrogatories to be propounded to his ad- versary, which shall be answered on oath. See Kules of June term, 1849, post. 170. The monition or citation, or attachment, may be made returnable the first day of a stated or special session of court next succeeding the service thereof, at least three days intervening between the ser- vice and return of process in rem, in suits by individuals, and four- teen in suits by the United States,; and on the return of process in open court, duly 'served, the cause may be put Instanter upon the calendar, and either party, without other notice, may proeeediherein to proofs and hearing; and the party obtaining a continuance of the cause, if in rem, shall bear all expenses taxed for keeping the thing attached, 'intermediate such continuance and the final hearing. See Rules of June term, 1849, post; and Bale 9, in Admiralty, prescribed by the Supreme Court. 171. The notices to be published in suits by individuals, need contain only the title of the suit, the cause of action, the amount demanded, and the day and place of the return of the monition, and be sub- scribed with the name of the marshal and proctor of the libellant. No more than the usual priiiter's charge for advertisements of like size, shall be taxed for the publication. See Rules of Jane term, 1849, pott; and Rule 9, in Admiralty, prescribed by the Supreme Court. ' 17». In summary proceedings in rem, in behalf of the United States, when the goods are under seizure by the collector, and in his pos- session, the clerk, at the instance of the district attorney, may omit the attachment clause in the monition issued. See Rules of June Term, 1849, post. R ULES So UTHERN DISTRICT. , 547 173. If the monition also contains an attachment in such cases, and the marshal returns that the goods, &c., are in the custody of the col- , lector, he shall stand acquitted of all responsibility for their safe keeping or production to answer the decree. See' Eules of June term, 1849, post. In such case, the service of the monition shall be by leaving a copy or inotice thereof with the collector or person having the goods in keeping, and also making like service on the owner or his agent, if known to the marshal, and resident in the city. See Eulea of June term, 1849, post. ' ' < 175.' The costs to be taxed the district attorney, proctor and advocate, on either side, in a summary cause, shall not exceed twelve dollars. Sofe Rules of June Term, 184*9, pott. 176. Fees shall not be taxed for more than one witness to prove the same facts, unless it appears that the wiiness was impeached or his testimony contradicted. ' No charges for serving writs of subpoena shall be, taxed against the opposite party, when the writ is executed by the marshal. If a witness does not attend after regular sum- mons, proceedings' to attachment may be had against him, without the service of a writ of subpoena. See Rules of Jane Term, 1849, post. irr. The provisions of the twelve preceding rules are limited to those eases of admiralty and maritime jurisdiction, in which no appeal lies from this court to the Circuit Court. See Rules of Jane Term, 1849, ^o«t. 178. Summary proceedings in all respects, not specified in the preced- ing rules, are to be governed by the general course of procedure of the court. See Rules of June Term, 1849, pott. 548 SUPPLTIMENT. PEACTICE IN INFORMATIONS, 179. Informations on seizures upon land or water are to be drawn in a plain and concise form, only referring to, without reciting, statutes or sections of statutes at large. The information should set forth the gravamen of the suit by plain and issuable allegation ; and^ when in rem, the property demanded as forfeited is to be specified, together with the alleged cause' of forfeiture. Informations are sub- ject to the same general rules, as to their structure and amendment, as ordinary libels. See Bule 22, in Admiralty, prescribed by tbe Supreme Court. 180. Proceedings in rem for a forfeiture, and in personam for an offense, fine, penalty or debt, may be joined in one information, when having relation to the same transaction. 181. On filing an information in personam or in rem, the eleri shall issue process thereon, corresponding as nearly as may be with that employed in the instance court of admiralty in similar cases. But process in personam inay be, in the first instance, a,' capias, or attach- ment against goods to compel an appearance, or a monition, at the election of the complainant. 182. No party shall be held to bail on an information in. persanifm without the mandate of the judge, except where bail is required or authorized by statute. 183. All rules applicable to the service of, or proceedings in relation to, process in plenary causes in admiralty, shall equally apply to process on information. See Kale 123, ante. 184. If the information filed is multifarious or ambiguous, or does not Supply plain allegations upon which issue can be taken, or a distinct reference to the statute upon which it is founded, the defendant or claimer may move the court to have it reformed, giving two days' previous notice, together with a specification of the exceptive parts, R VLES So VTBERN DlSTRWT. 549 to the district attorney or proctor in whose name it is filed. It may be amended of course, in conformity to such notice ; if not reformed within two days after prontjunced defective by the court, the defend- ant may take an order of discharge from the action. 185. Amendments may be had to informations, in any stage of the cause ; but, if after an issue is formed between the parties, it shall be on payment of all costs which jnay have accrued by means of the amendment or the defective pleading. 186. In informations in rem, a delivery, on stipulation, of property seized, or a sale of perishable articles, may be had, as in case of pro- ceedings in the instance court of admiralty. i«r. The claimer shall appear and interpose his claim or plea, on infor- mations in rem, within the same time and in the same manner as in causes on the instance side of the court of admiralty; and shall appear and plead to informations in personam within the same titee and in the same manner as in causes at common law; but no plea other than in abatement, the general issue, former recovery, pardon or remission of offense, fine or forfeiture, shall be received. 188. , Instead of a traverse of each separate cause of forfeiture alleged in the information, the defendant may plead, as a general issue to an information in rem, " that the several goods in the information men- tioned did not, nor did any pa,rt thereof, become forfeited in manner and form as in the information in the behalf alleged." 189. Putting in and justifying bail on b«half of the defendants on ar- rest, and the proceedings to and on trial and execution, where a trial by jury must be had, shall be the same as in cases of common law jurisdiction. 550 Supplement. COMMON LAW PRACTICE, 190. Process commencing suits at common law, except on bail bonds, must be returnable at a stated term. In suits bn obligation or agree- ments to pay money, damages may be claimed in the declaration' and judgment be taken beyond the amount stated in the writ. 191. When the capias has been served on the real party intended, the plaintiff, before or after its return may amend, of course, any error in the name of the party inserted in the process, giving the defendant . notice of such amendment ; and, when the real name is not known, process may be issued against the person by a fictitious name. 192. When bail is not ■ required, it shall be a sufficient service of the capias, or other mesne process in personam, for the marshal to show such process to the defendant, or offer to show it, and, at the same time, leave with him a. true copy thereof; in which case, the marshal shall endorse his return " personally served." The same rules and orders may be taken on filing such return, a^ if common bail had been filed, or the defendant had endorsed his appearance on such process. ' 193. 3ail shall not be exacted, in actions of debt or informations on penal statutes, for a fine, penalty, or forfeiture, without the order of the judge endorsed on the process, except where otherwise provided by statute. To obtain the order, it must be shown, for cause, that the defendant is a transient person, or that there is reason to believe he is about to depart out of the jurisdiction of the court. 194. In bailable suits in behalf of the United States, wherein the plain- tiffs are entitled, by any statutory provisions, to have judgment entered at the return term of the writ, the district attorney may waive special bail, and file common 'bail, on the return of the- writ, and proceed to judgment accordingly. Rules Soutbern District. 551 195. In the cases last specified, if the district attorney takes an assign* ment of the bail bond, the writ may be issued thereon the first day of term, and be made returnable the same day, or any subsequent day in termor vacation. 196. When special bail is required, it shall be put in and perfected on the return of the writ, in default whereof a rule may be entered instanter, that the marshal bring in the body of the defendant ; but, in such case, if the defendant is arrested in this or the county of Kings, written notice of the intention to enter such rule shall be given the marshal two days previously, and six days, if the defendant is arrested in any other county of the district. 197. All other proceedings in such cases shall be the same as in other common law actions in this court. 198. In suits in which the United States shall be plaintifTs, or in which they shall be interested, though not plaintiffs, and in which the defendant shall be held to bail, the assignment of the bail-bond, and' the acceptance thereof by the plaintiff's attorney, shall not be deemed to preclude him from excepting to the sufficiency of the special bail; and the marshal shall becomle responsible for good bail in like manner as if the bail-bond had not been signed and accepted as aforesaid. 199. In recognizance of bail in civil suits, the sum for which the suit is instituted shall be expressed in the bail piece, and, in suits where the sum demanded exceeds ten thousand dollars, two or more bail may justify for proportionate parts of such amount, in sums to be determined by the judge. 200. Bail desiring to surrender the principal, or the principal wishing to surrender himself in discharge of his bail, may give two days' notice in writing to the attorney of the plaintiff of the time and place of surrender. 552 Supplement. 301. Two certified copies of tie bail piece being produced to the judge, with proof of tbe due service of such notice, he will endorse on each a committitur of the principal to the custody of the marshal. 202. On the written admission of the marshal, or due proof that the principal is in his custody under such committitur, and no sufiScient cause being shown to the contrary, the judge will immediately there- ■ upon order an exomretur to be entered. 203. Such order and certified copy of the bail piece being filed, the clerk shall endorse an exoneretur on the bail piece, and also enter in the registry of bail the discharge thereof. An exoneretur may also be entered upon filing the written consent of the plaintiff's attorney, without an order of the judge. 204. An immediate committitur, before ndtice given, may be had, on proof satisfactory to the judge, that the principal is about to depart the district, or that the bail cannot, with safety, await the expiration of such notice, before a surrender is made. 205. In such case, the surrender shall be made in conformity to the present practice'of this court, and maybe made on the bail-bond, or by putting in special bail before the return day of the writ. 206. In case the defendant is held in custody out of this district in any gaol, the use of which shall have been ceded to the United Stats, for the custody of prisoners, a surrender to the custody of the marshal of the district in which such gaol is situated, may be made, in the same manner as before designated ; but such surrender shall be at the request of the bail alone. R ULES So VTHERN DISTRICT. 553 207. No plea shall be received, 'in any suit instituted in this court upon a bond executed to the United States for the payment of duties, or against persons accountable for public money, or in any suit instituted upon a bail-bond taken in consequence of such suit, unless such plea shall be accompanied by an afiSdavit of the truth of the matters in the said plea contained. 208. In suits in behalf of the United States, in which the plaintiffs are by statute entitled to judgment at the return term of the writ, the declaration may be filed in open court, on the day the writ is returned ; and proper proceedings may be thereon taken for perfect- ing judgment instanter, unless a plea is filed and a continuance of the cause allowed by the court. 209. If the defendant pleads to any such suit, the district attorney may have the cause placed on the calendar of the same term, and may, without other notice^ bring the same to trial, when called, unless, at the instance of the defendant, the court shall grant a continuance in the case. 210. Judgments by default, in all cases in which the United States are plaintiffs, or are interested, may be entered up at any time in vaca- tion, as of the preceding term. The marshal, his deputies, and all other persons concerned in the service of any process of this court, are respectively prohibited from becoming bail to the arrest, in any suit depending in this court, and, also, from becoming special bail in any suit, unless for the purpose of surrendering the defendant, in which case the surrender shall be made within eight days after special bail shall be put in. 312. In cases where the collector of the customs is entitled to receive the mo^eys in court, the same, after deducting the costs, shall be paid him by the clerk, upon an order to be entered, of. course, for that purpose. 554 ' Supplement. 213. All commissions to examine witnesses shall be drawn and engrossed by the clerk, or shall be carefully examined und approved by him, and he shall be entitled to charge for the same as if drawn and. engrossed by him. 214. On filing every note of issue in common law causes, ,and for all services not provided for by any law of the United States, the clerk shall be entitled to receive the same fees as are allowed at the time, in the courts of this State, for similar services, with the addition thereto allowed by the laws of the United States. 215. The clerk shall, before the first day of every stated term, prepare two calendars, one for the use of the court and the other for the use of the'bar, which calendars shall each be divided under two titles, the first containing the jury causes noticed for trial, with the usual additions contained in the notes of issue filed, and the second con- . tabling thfe titles of all admiralty suits and issues at law, with the usual additions contained in the notices of trial filed with the said clerk. 216. The clerk is prohibited from practicing in this court, in all cir- pumstances whatsoever. 217. The bond required by law from the clerk shall be first recorded in a book to be kept in his office, and deposited in that bank in the city of New York in which moneys in court are deposited, deliverable, upon the order of the court, to such person as the court may desig- nate. The marshal's bond shall be filed and recorded in the clerk's office. ' 218. All moneys paid into court by the officers thereof, or any other person or persons, in causes pending therein, shall be forthwith deposited by the clerk, to the credit of the court, in the bank in the city of New York, which shall be designated on the minutes of this court as the bank for keeping the moneys of the court. No money Rules Southern District. 555 BO deposited shall be drawn from said bank, except by order of the judge, in term or vacation, to be signed by the judge, and the order shall state the cause or causes in or on account of which.it is drawn, and the same shall be entered on record. - i See Rule 42, in Admiralty, prescribed by the Supreme Court. 219. Whenever; after judgment or decree for a sum certain, and before execution issued thereon, any party shall pay into court the amount thereof, together with the costs taxed ; or, whenever the m^trshal (or the proper officer) shall return process of execution satisfied, and pay the amount of the judgment or decree, and costs, upon which such process issued, into court, the clerk shall forthwith, and without other authorization, enter satisfaction of record of such judginent or decree, at the charge of the party in whose favor such judgment or decree may be rendered. 220. The clerk's costs for entering satisfaction of judgment may be taxed, in the first instance, by the party obtaining the same. 221. All checks for money to be drawn out of the bank, in causes in which money is deposited, shall be drawn and signed by the clerk as clerk, and such check shall be written immediately under the order of the judge, or on the same paper. 222, ' \ The clerk shall exhibit to the court, on the first day of each stated term, a full and particular statement or account of all moneys remaining therein, or standing to his credit as clerk, subject to the order of the court, stating particularly on account of what causes such moneys are deposited, which account and the vouchers thereof shall be filed in court. 223. The clerk shall provide a book, in which he shall keep a full and particular account,' in each cause depending in the ^ourt, of all moneys brought into court, and of the payment thereof ; and such book and the accounts therein shall, at all times, be open to the 556 Supplement. inspection and examination of the judge, the attorney of the United States, and the marshal of the district ; and any particular account shall also be open to the inspection of any person interested therein. MISCELLANEOUS KULES. 224. On an indictment found by the grand jury, the district attorney may forthwith sue out a capias or attachment, under the seal of the court, for the arrest and commitment of the party indicted ; such writ may also issue, if the defendant fails to appear pursuant to his recognizance given after indictment found. 225. Where default is made by any party or witness bound by recog- nizance in any criminal proceeding, the clerk shall immediately issue a scire facias thereon. 226. The amount of forfeited recognizances, and all fines imposed and collected, shall be paid into court, to be accounted for by the clerk with the United States treasury. 227. When a fine is imposed by the court on any person for any cause, . and the party is not thereupon committed, and such fine is not dis- charged previous to the close of the term, the clerk shall issue to the marshal a warrant of execution, commanding him to levy and make such fine of the goods and chattels, or, in default thereof, of the lands and tenements of the party. 228. Such fine may, on application by the party, and sufiScient cause shown, before payment of the same out of court into the treasury or otherwise, be mitigated or remitted, at any term succeeding that jn which it was imposed. B ULE8 So UTHERN DiSTBWT. 5 5 7 229. In cases wherein the marshal of the district, or his deputy, is a party in interest, process shall be directed and delivered to the sheriff or under-sheriff of the city and county of New York for the time being, who are hereby, pursuant to the statute in such case made and provided, appointed to serve and execute such process. 230. Special bail may be put in and filed, for the purpose of surrender- ing the principal, before the return day of the writ. 231. Bail to the arrest may surrender the principal, or he may surren- der himself in their exoneration, upon the bail-bond given on his arrest. 232.' Copies of the bail bond, certified by the marshal or his deputy, may be used for that purpose, in the same manner as certified copies of a bail piece. 233. Proceedings against the marshal or any other officer of the court, by attachment of course, and the filing of interrogatories for not returning the process of the court, is abolished. 234. Every order for the marshal or other officer of the court to show cause why an attachment shall not issue against him, shall state the true cause or ground upon which such attachment is demanded. 235. On due service of a certified copy of such order, the party against whom it is entered shall be bound to appear on the first sitting of the court four days thereafter, and, by affidavit filed in court, purge himself of every default or misfeasance in such order specified, to the same extent as if he had answered to interrogatories framed thereon. 236. If such officer fails, in the judgment of the court, so purging him- self, the court shall forthwith proceed against such officer, to commit him fully for contempt, or otherwise^ the same as if he had insuffi- ciently answered interrogatories filed against him on his attachment. 658 Supplement. 237. No writ of attachment shall issue, in the first instance, against any officer of this court, without the special mandate of the judge. S38. All notices served on an agent, or on attorneys" or proctors resid- ing out of the city and county of New York (and not having an office or place of husiness in this city, in Brooklyn, or Williamsburg,) shall be double the time ordinarily required. 339. No special sessions will be held for the trial of jury causes, nor out of the city of New York, without a special order of the court entered upon the minutes, and published in a newspaper in the city of New York, and also in one nearest the place where the court is to be held, (if out of the city), at least fifteen days previous to such sitting. 240. In all cases not provided for by the rules of this court, the rules of the Circuit Court of the United States for this district, for the time being, (whether adopted before or aftfer these rules,) so far as the same may be applicable, shall regulate the practice of this court; and when there is no rule, of the Circuit Court to apply, then the rules of the Supreme Court of this State, now in force, so far as the same may be applicable, shall govern. 241. The arr£|,ngement of rules under distinct heads of practice, is not to prevent their governing every mode of procedure in court to which they may be applicable ; but, if differing provisions are adopted, the rules in collision are to be restricted each to the head of practice under which it may be classed. Apeil 16th, 1847^ Ordered, that the standing rule No. 45, of this court, in admir- alty, be hereafter applied alike to suits in personam and in rem. Decembee 1st, 1847. No decree shall be entered by default, or consent of parties in court, ordering the condemnation and sale of property arrested on process in rem, or for the distribution of the proceeds thereof in -B ULES So UIHERN DISTRICT. 659 court, or of the ayails of a stipulation or bond given for the value of such property, unless publication, according to the course of the court, shall have been duly made before the return day' of the moni- tion issued with the attachment in the case. " All reports of commissioners, assessors, adjusters, &c., on the matters referred by order of the court, shall be filed in court, at the opening of the court, on Tuesdays of the stated or special terms, unless otherwise specially allowed by the court, and on two days' previous notice in writing to the party to be affected thereby. Exceptions to such reports shall be filed before or at the time confirmation thereof is moved in court, unless further time is allowed by order of the court, and no exception to any report can be received on file without the party offering it has duly filed stipulations in the cause, accor(iing to the course of the court (unless he be excused by the standing rules from stipulating). Febextart, 9th, 1849.' Ordered, that the commissioners appointed by the Circuit Court of the United States for the Southern District of New York, to take affidavits, bail, &c., under the several acts of, Congress, be commis- sioners authorized by this court to do all the acts, and exercise, and be vested with all the powers, jurisdiction and- authority contained in and conferred by the ,act of Congress of the United States, passed .August 12th, 1848, and entitled " An act for giving effect to certain treaty speculations between this and foreign governriients, for the apprehension and delivering up of certain offenders." June Term, 1849. To prevent unnecessary multiplication of suits, and the accumula- tion of costs, for the recovery of seamen's wages, the following addi- tional rules in summary actions are adopted : Rule 1. — In suits in persmiam for wages, where the amount sworn to be due, in the libel, is less than fifty dollars, the clerk shall not issue process without the usual stipulation for co^ts, unles the libel be accompanied by satisfactory proof that the respondent is about to leave the district; or by an allocatur of the judge, or by a certificate of a coinmissioner of the court, that, upon due service of a summons to the respondent, to appear before him, sufficient cause pf complaint whereon to be found process appeared. 560 Supplement. RuljB 2 — Such sammons shall be served at least one da,j previous to the day of hearing therein mentioned, and, if it shall appear, on the hearing, to the satisfaction of the commissioner, that the wages claimed have been paid or forfeited, he shall refuse the, certificate. And, if a reasonable offdr of compromise shall be made on such hear- ing, by either party, and be rejected by the other, the commissioner shall add a certificate of such fact, and, in case of final recovery by the party rejecting such offer, he shall recover no costs. No costs shall be taxed for the proceeding, unless the commissioner shall cer- tify that a demand of wages was made by the seamen a reasonable time previous to taking out the summons, and then the proctor shall be allowed no more than $1,25, the ordinary fees for attendance and motion in court. Rzde 3. — No fees shall be taxed to the marshal!, clerk or witness on such proceedings, unless, by special mandate of the judge, a sub- poena or attachment is issued-4o compel the attendance of witnesses. Rule 4. — The commissioner's fees for his services thereon shall not exceed one dollar for a single sitting, and every adjournment granted shall be at the expense of the party obtaining it ; if, how- ever, it is required by the parties that the commissioner take down in writing the tes'timbny heard on the summons, he. shall be allowed therefor the customary fees for like serviees. Proof so taken in writing may be used by either party, on the hearing in court, in case the suit is further prosecuted. Rule 5. — No more than one process shall issue against the master or owners, at the same time, for wages claimed by a crew, or any part thereof, for the same voyage, nor during the pendency of a suit therefor, nor shall costs be taxed for more than one retainer or libel, in such cases,. unless an order of thd judge, on cause shown, be pre- viously had, authorizing suits therefor. Seamen claiming wages for the same voyage may file an affidavit stating the amount due them, and, if such affidavit be filed before the issue of process, the clerk may order the respondent to be held to bail in a sum exceeding by by $100 the whole amount of such claims. Rule 6. — The bail or stipulation given by the master or owner, on such process, shall be conditioned to abide the order of the court in the particular suit, and in favor of such other parties as the court may grant leave to join therein. Rules SouTBEBN DiSTBiGT. 561 December 23d, 1850. ■ No counsel will be permitted to speak, ia -the argument of any cause in the court, more than one hour, without the special leave of the court, granted before the argument begins. Janfart 29th, 1851. Except as may be from time to time otherwise specially ordered by the court, when, hereafter, a venire shall issue, pursuant to the standing Bules of the court, for the purpose of summoning petit jurors to serve in this court, the marshal, or other officer, to whom such venire shall be directed, shall, with the clerk or his deputy, repair therewith to the office of the clerk of the city and county of New York, and there, at least ten days before the return of such venire, in the presence of the said clerk of the city and county, and of the marshal,.or such officer, the clerk or deputy shall proceed, if the clerk of .said city and county shall consent thereto, to draw out of the box of jurors qualified according as the law of the State of New York was on the 20th day of July, 1840, to serve in the highest court of law thereof, kept by the clerk of the said city and county, the names of so many jurors as, by the said venire^ shall be required to be named ; and the clerk of this court shall immediately make out and certify, under his hand, a panel of the jurors so drawn, with their respective additions and places of abode,' and deliver the same> to the marshal or other such officer ; and the persons so certified shall be summoned to serve as jurors, pursuant to such venire, and if any of the persons whose names are so drawn shall be dead or removed from the city and county, or not qualified, as aforesaid, within the knowledge of the clerk or marshal, then such names shall be disije- garded, and the clerk shall forthwith proceed to draw out of the said box other names, until the said panel shall be completed. Whenever the court shall order petit jurprs, under such veiiire,, to be taken, wholly or in par±, from any county or counties within the district, other than the city pr county of New York, the , panel or panels thereof shall be drawn, certified and summoned in lik^ manner as is directed in the preceding order or rule. , £ee Rule of November 11th, 1867, po$t, ^ 36 ^62 SUPPLEISENT. March 2d, 1852. No ease, after being called on the docket, will be allowed to re- tain its priority, except for the cause of sickness of some one whose attendance upon it is necessary, or because of other inevitable acci- dent, nor will a case so called be assigned for hearing at a future day but for like causes. Each Saturday of the term is assigned for hearing special mo- tions and the docket will not be called on those days. See Bales of January tenu, 1857, post ; and Kales of Febraary 22d, 1868, post. Janttaey Term, 1857^ All oases placed upon the day docket .shall be deemed set down absolutely for hearing or trial upon that day, and no motion for post- poning such cases, or assigning them for hearing on a different day, will be entertained by the court,, except for causes not existing, or n9t known to the party making the application, at the time the case was put upon the day docket. ' Cases must be put upon the day docket in the order they stand on the term calendar, unless otherwise directed by the court, for cause shown prior to the making up of the day docket, i Cases on the day docket shall retain their priority from day to day, until called for hearing, and shall have preference to assigned cases ; and each case not moved to hearing in its place shall go to the foot of the term calendar. See Boles of March 2d, 1352, ante ; and Boles of Fettroary 22d, 1868, post. October lst,. .-.r. ..rr 377 Index. 589 . CiEcuiT Court. In Equity. Answer , 389 BiU ^ 384 Decretal order 392 Enrollment of decree ., 400 Exceptions to report 395 Final decree. 396 Master's report ■ j 394 Master's summons 393 Motion for leave to file supplemental bill 389 Notice for proofs under oral examination 391 Order for appearance 389 Order on exceptions ..^.....^. 390 Order for a feigned issue; &c •. - 395 Order for subpoena , , ^ , .^ .^- 387 Perpetual ii^unction ^ . . . . 398 . Precept for appearance 388 Keplication ^ 391 Kevised decree on mandate, kc 399 Subpoena to appear and ansirer ^■. 387 Taxedcosts .' 397 In Law. Adjustment on verdict .^ 419 Attorney's a£Bdavit of proceedings. 416 Bond of non-resident plaintiff. ^ 401 Bond on a removal, with afiSdavit, &c 415 Capias ad respondendum 403 Certiorari, for removal of case from State court. ....« ..>< 413 Declaration (or Narr.) .....^...^ ..^. 404 Execution . 411 Inquisition - 420 Judgment record --.. 403 Notice and order of stay for a removal case. 417 Notice of any reference 419 Order of State court for removal of cause 418 Petition, &c., for removal case, against non-resident defendant 414 Petition, &c., for removal case from State court, tyTJ. S.-offlcer 412 Plea and special notices « i.».»i^. .,.. 406 Subpcena to testify 408 590 Index. Summons for corporation 402 Taxed costs to plaintiff. 410 Taxed costs, default, &c '. 421 Taxed costs, rum pros 422 Writ of inquiry 420 Criminal. Ga. Sa. on a fine imposed. 426 Capias, or bench -warrant 424 Certiflcatei &c., on division of opinion 428 Commitment to penitentiary .• 427 Order for grand iury 423 Precept to marshal for grand and petit jurors 423 Subpoena to testify. 1 . . . 425 Commissioner!). AfBdavitand order fi>r examination (de beneesse).. 439 Caption for depositions- to be taken (de bene essei) 441 Certificate for depositions (de behe esse) 442 Depositions taken before flotary 443 Final commitment 438 Mittimus.... 434 Notice of examination (rfe 6ene esse) 440 Order on appointments. 432 Pay order ii^ duplicate 435 Kecognizanee .' 436 Subpoena .433, 441 Warrant to arrest 43S IiicidentaK Admiralty.fiatatibn , 454 Affidavit for habeas corpust adHestificandium 445 Assignment of errors 450 Billi of taxable- eests 454 Gentificate pf authtarity, &c 448 Certificate of a return , 449 Commission 444 Commission of dedirmts protestatem 446 Habeas corpus writ 451 Joinder in error. 450 liicense ^.. . . . 449 Satisfaction pieoC'.. 448 Taxed bill costs. ..., 452 Wmtof habeas oorpus adttestifieamhim 446 Writ of scire yiicias....... 447 Index. 591 District Court. Incidental. Bills of Taxed costs : " Clerk's biU 458,460 Clerk's costs... 462 Marshal's bill 457,459,462 Proctor's bill 456 IT. S. District Attorney, costs 459, 461 Order remitting indictment • 463 Admiralty. Bond in admiralty 456 Clerk's biU , , 477 Clerk's cofits 469 De&ult and order of reference 466 Enrollment of decree. > 470 Execution 471 Final decree , 468 Final decree pro conftiso 476 Marshal's citation ' 473 Marshal'^ notice 475 Monition 475 Order for process on libel ', 463 Proctor's costs 468 Venditioni exponas 474 Beport on reference 467 Warrant of arrest and monition 464 Warrant of arrest in personam 472 Revenue. Attachment 481 Clerk's Costs 485 Final decree i • • • 484 Information 478,480,489 Marshal's notice 483 Narr for a penalty •, 488 Order for distribution s 487 Warrant to sell » 486 592 Index. Bankruptcy. Adjudication of bankruptcy '. SOS Assignment of bankrupt's effects 501 Certified order references .•• 504 Clerk's certificate < 493 Clerk's certificate of notice?, &c 500 Deposit certificate. 492 Decree for discharge of bankrupt ^ . . . . 502 Discharge of bankrupt. • • • 511 Notice of appointment < . . . 501 Notice for publication 508 Notice to creditor ., 507 Order to show cause ^510 Order for creditors, &c 505 Begister's receipt 493 Subpoena 508 Subpcena ticket 509 Warrant of seizure 494 Warrant to messenger 497 Copyrigrht. Certificate ; 513 Clerk's circular 511 G. GRAND JURORS : Ho-w ordered 92 Order for, form of 423 Precept to marshal for, form of 423 Qualifications and exemptions , 94, 95 H. HABEAS CORPUS,: When and how writ may issue 113 If by State o^fiacer, when not to be obeyed 114 Opinion of judge N. D., N. Y., in ex parte cases 115 Writs not' issuable in certain cases 115 Writ of cum causa on removal of a case fi:om State court . . 81 Writ of, formof. 451 HEARING : ' Notice of, and time in admiralty appeals 90 Index. 593 J. INCIDENTAL: Forms of, see Forms. 1 INDICTMENT : Motion to quash, when denied 94 INFORMATION : In revenue cases 138 Forms of -. 478, 480, 489 INJUNCTION, WEIT OF.- In equity cases 42 to 45 Perpetual, form of 398 INQUIRY, WRIT OF : In law cases 62 Form of 420 INQUISITION: In law cases, form of 420 INSTRUCTION TO JURY : In trials at law 68, 69 To U. S. Officers, in Supplement 569, 579 INTERROGATORIES: May be filed under the 67tJi equity rule 208 Not practiced since amendment 209 INTERNAL REVENUE : Proceedings in District Courts 137, 138 Seizure therein 138, 139 ■ Forms of, see Forms (revenue). J. JUDGES: How appointed,- tenure of office and oath 14, 15 JUDGMENTS : In law cases 68 to 70 Record of, form of 408 38. 594 ^ ImBEX: JUDICIAL SYSTEM : What comprises it 13, 14 JURISDICTION : Original, of Circuit Court .- 21 to 33 Appellate, of Circuit Court 33, 34 Concurrent, of Circuit Court 34, 35 " General character of, as to District Courts 134 to 136 A failure of, remands case to State court 85 JURORS: In criminal cases, proceedings as to, and how drawn and , summoned ' 92, 93 Qualiflcation.of jurors 94 Oaths and fees of grand jurors and petit jurors. 95, 96 Challenges, &c , 99 ' In civil cases (as in Criminal) 92 'L. LAW- Forms of, see Forms. LEGISLATIVE ACTS : How proved as evidence 77 LETTERS ROGATORY : How and when issued and returned ; 54 Form and requisites of (similar to that of a dedimus potes- tatem) , 446 LIBEL: Suit by, in admiralty and revenue case? 136, 137 Order for process on, form of 463 li;bn: Time of, same as in State courts 72 Judgments binding without any county transcripts, ..... W M. , ^ MANDATE : Forms of, as issued by Supreme Court* .382, 383 Index. 595 MARSHAL : ' How appointed, ofBcial tenure, bond and oath 17 Powers and duties ' 18 Fees and emoluments, and limit to amount .20, 151 Deputies' oath, and how removed 18 Bill, forms of. 457, 459; 462 Citation, form of , 473 Kotice, form of 475 t MONEY : Moieties of fines limited by rule 139 MONITION : Form of, in admiralty 475 , .' N. NATURALIZATION : Proceedings vested' in District Courts 144 Acts of Congress regulating it 144 NE EXEAT, WRIT OF : When it may issue '. 1 45 'NEW^ TRIAL : When and how granted. 69, 70 NON-SUIT : Not allowed in Federal courts 68 NOTARY PUBLIC : Powers in criminal and civiljproceedings 112, 113 I NOTICE: Of special matter under plea 63 Of rules in law proceedings 61 to 63 NONPROS: ^ Judgment, in cases removed from State court 28 o. OFFICERS : Of District Courts 133, 134 596 Index. ORGANIZATION: Of District Courts in Second Circuit 133 PATENT : Suits of infringement at law 64, 71 PAY ORDERS : In commissioner's proceedings * 109 PENALTIES : Analysis of internal revenue acts . ; 166 to '169 PLEAS : In law cases, general and special ' 63 PLEADINGS : Replication forms the issue, in equity suits 49 Final, in law suits 63 Indictment, &c., in criminal cases 101, 102 De novo, in cases removed from State court 81 Complaint under Code not good pleading 85 PRACTICE: In equity cases 36 to 56 In law cases 57 to 91 In criminal cases 92 to 118 In Supreme Court cases 119 -to 132 In District Court cases 133 to 145 Explanatory note as to N. Y. State Code 277" PRECEDENTS : ^ee Forms. PRISONERS : Rights on trial, to have counsel and subpoenas 97 "When sentenced, to be sent to county penitentiary 105 Juveniles to house of correction 105 One month per year abated for good conduct 105 PROCESS: - Suits in equity cases by subpoena, under rule 40 Suits in lav7 cas^ by capias, under rule 59 See Injunctions, Executions, Attachments. Index. 597 PROCTORS ' See Attorneys. Bill of taxed costs, form of 456 E. RECORDS : Official papers how proved 76 Different modes of proof 76, 77 REMOVAL CAUSES FROM STATE COURT : Kind of cases described in, see 78 to 85 Application and papers necessa,ry 78 Neglect of papers how supplied 82 Where local influence and prejudices prevail 83 Where aliens, etc., are defendants 84 REVENUE : Customs cases in District Court — 137 Internal revenue cases in District Court 138 Officers sue.d, how case removed from State co,urt 82 RULES : To plead in suits at law. 61 To reply, join, &c., suits at law ; . : /. . . . 63 Of Supreme Court in general; 176 Of Supreme Court in equity cases 140r Of Supreme Court in admiralty 217 Of Supreme Court for court of claims 189, 190 Of Supreme Court in bankruptcy 232 Of Circuit Court, Northern District, New York 247 Of District Court, Northern District, New York 251 Of Circuit Court, Southern District, New York 310 Of Circuit Court, Eastern District, New York 344 Of Circuit Court, Connecticut District 345 Of District Court, Admiralty, Connecticut District 346 Of Circuit Court, Vermont District 353 Of District Court, Vermont District 363 Of District Court, Southern District New York (see Supple- ment) 515 to 568 598 ■ ■ -^^^^^- S. SCIRE FACIAS : Form of writ **' SECURITY FOR COSTS : When and how, by non-resident vplaintifF 59 Form of bond in ^ch case 401 SEIZURES: In customs cases 137 In internal revenue cases 138 See form of Warrant to sell 486 SOLICITOR OF TREASURY: ' OfiScer supervising reports of court, moneys, &c 19 SPECIAL : Notices of defense in patent cases , 6i Verdict, when 69 SUBPCENA : To answer in equity cases 40 To testify in law cakes 65 To testify in criniiaal cases 98 In equity, for defendants to answer, orm of 387 In law, for witnesses to testify, form of 425 It may run b,eyond district 9 How served in such case • Penalty by attachment for neglect of SUIT: , ' What constitutes in equity , ^ ,, What constitutes in law 58, 59 SUMMONS: Against corporation in law cases 5? Fohn of 4' SUPERSEDEAS : When w^rit of error operates as such. ' 12 Index. 599 SUPPLEMENT : Rules District Court, Southern District New York 515, 568 U. S. Secretary, instructions for clerks of U. S. Courts, 569 to 574 U. S. Auditor, instructions for marshals, &c., 575 to 579 SUPREME COURT: Part of the judicial ^system 13 Writs of error to, and proceedings thereunder 119 to 126 Appeals to, and proceedings thereunder 127 to 129 Mandate, &c 125, 126 Appearance, form of ." 375 Bond, &c., for clerk's f?es, form of . 375 Forms of, see Forms. / T. TRANSCRIPT : Of judgment, need not be filed , . . . . 73 Of official papers, when and how evidence 77 f RANSMISS : On appeals from District Court, see 14th equity rule of ^ Circuit Court, N. D., N. Y 250 TRIAL: Proceedings at law.. , 68 Motion for new trial 70 IT. •TITED STATES : ^ Not to be sued or pay costs 71 I 1 ,, V. VENDITIONI EXPONAS : Form of, in admiralty cases 474 VENIRE FACIAS DE NOVO, ON REVERSAL : Issues, when by Supreme Court •• 126 Venire writ for grand jury. 92 ERDICT: '' . For any amount, carries costs in patent cases 71 600 Index. W. WARRANT GF AKRBST: On indictment.^- 97' By commissioner 107 WITNESS: ,, r tlow subpoenaed.'. 65 Fees in criminal and civil cases same '. 95, 96 WRIT OF ERROR : See error, writ of.