A'FP nsS Qlnrnrll Slam ^rljonl SlibtarB Cornell University Library KFD1758.A4 1894 Rules of the Supreme Court of the Distri 3 1924 024 642 138 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/cu31924024642138 RULES OF TUB SUPREME COURT OF TUB DISTHICT OF COLUMBIA, ADOPTED AT TUB JANUARY TERM, 1894. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1894. Supreme Court of the District of Columbia. IN GENERAL TERM. Ordered, this 29th of February, A. D. 1896, that the following rule, being part of Equity Rule No. 6'5, be held applicable to common law cases, viz ; " Where the testimony of nonresident witnesses is desired by either party, the court in term time, or any justice in vacation, may, on motion designating the names of such witnesses, appoint an examiner to take such testimony, to whom the clerk shall issue a commission under the seal of the court; and said testimony shall be taken on written inter- rogatories and cross-interrogatories, which written interrogatories shall be filed in the clerk's office at least ten days before the issue of such commission, so that the adverse party may have opportunity to tile cross-interrogatories. But the court or justice, for special cause shown, may direct that such testimony may be taken orally." 12434 CONTENTS. Common-Jaw rules 5 Index to 43 Equity rules 55 Index to 79 Admiralty rules 87 Index to 101 Orphans'-court rules 103 3 RULES OF THE SUPREME COURT OF THE DIS- TRICT OF COLUMBIA. CLERK. 1. The clerk of this court shall reside in the District of Columbia, and shall keep his offlce open from 9 o'clock a. m. until 4 o'clock p. m. every day, excepting Sundays and legal holidays. ADMISSION TO THE BAR. 2. All applications for admission to the bar shall be made to the court in general term. Applicants for admission, who have been admitted to practice law in the Supreme Court of the United States or in the highest court of any State or Territory, may, upon satisfactory evidence of good moral character, and after examination as to fitness, or, in the discretion of the court, without such examination, be admitted to the bar, provided the members of tlie bar of this court are admitted to the bar of the highest court of such State or Territory upon the same terms. No student shall be admitted until after such examination and proof of good moral character, and that he has studied at least three years under the direction of some competent attorney. Diligent study in any law school shall, to the extent thereof, be computed as part of said three years. Seo. 2. Each applicant for examination for admission to the bar shall file with the clerk an application in writing, in wliich he shall state, under oath or affirmation, his name, age, and residence; with what attorney he has studied law, or in what law school, and when and for what length of time he has so studied; and also what books he has read. And upon the filing of such application it shall, without further order of the court, be referred to the committee for examination for their action. Sec. 3. Each applicant for examination shall deposit with the secre- tary or chairman of the committee on examination the sum of one dol- lar, to be applied to the printing and stationery expenses of such com- mittee. 6 COMMON-LAW RULES. Sec. 4, Applicants for admission to the bar must take tlie following oatli: OATH OF ATTORNEYS. I, , do solemly swear (or affirm) that I -will demean myself as an attorney and counselor of this court, uprightly and according to law, and that I will support the Constitution of the United States. So help me God. Sec. 5. The clerk shall be entitled to a fee of two dollars for each certificate of admission to the bar. THE TERMS OF THE COURT SHALL BE HELD AS FOLLOWS: 3. Of the general term on the — First Monday of January. First Monday of April. First Monday of October. Of the circuit courts on the — First Tuesday of January. First Tuesday of April. First Tuesday of October. Of the equity court on the — First Tuesday of every month. Of the district court on the — First Monday of January, First Monday of July. Of the criminal courts on the — First Tuesday of January. First Tuesday of April. First Tuesday of October. Each term to continue until the commencement of the next succeed- ing term. INTERLOCUTORY ORDERS. 4. At chambers. — An order obtained from a Justice at chambers shall not be presumed to be known to the opposite party without proof ot previous actual notice of the application to the party or his attorney. MINUTES. 5. The minutes of the court are, in effect, a journal of its proceedings while sitting, entered or recorded in due legal form by the clerk. Sec. 2. All orders made by a justice at chambers shall be recorded in the minute book of the branch of the court in which the cause in which it is made is pending, or, if made in a case or matter not pending in any branch of said court, then to be entered in the rule book, except habeas corpus and extradition cases, orders in which shall be recorded in a book kept for that purpose only. COMMON-LAW RULES. 7 COMMENCEMENT OF SUIT. 6. Every action shall be commenced by filing in tlie clerk's office a libel, information, bill, petition, or declaration, as the case may be, and in case of appeal from a justice of the peace, by filing; the jnsticeJs papers and a transcript from his docket; and in each case the plaintiff shall make the deposit towards clerk's costs, as required by law, unless such deposit shall be dispensed with by order of the court or one of the justices; whereupon the clerk shall immediately enter the case upon the proper docket, in the order of such filing, and number it accordingly. EJECTMENT. 7. In ejectment the declaration shall be in the name of the real party in interest against the party claiming to own or be possessed of the land at the commencement of the suit, and the declaration shall specific- ally set forth the nature and extent of the estate claimed by the plain- tiff in the premises. Under separate counts the plaintiff may unite in his declaration an action of ejectment and an action for mesne profits. 8. When the suit is against a tenant by a plaintiff claiming adversely to the tenant's landlord, the latter may be admitted to defend with or instead of a tenant; and any other person not named in the declara- tion may be allowed to defend on filing an affidavit, showing that he is in possession of the land, either by himself or his tenant. FORCIBLE ENTRY OR DETAINER. 9. In every proceeding instituted before a justice of the peace, under section 684, chapter 19, of the Eevised Statutes of the United States, relating to the District of Columbia, if, upon the trial, the defendant, to avail himself of the provisions of section 687 of the said Eevised Statutes, wishes to plead title to the premises in himself, or in another person under whom he claims the premises, the justice of the peace shall require the plea to be in writing, and to be sworn to by the defendant. The plea shall be in the following or equivalent form : Before , a justice of the peace in and for the District of Columbia, the day of , 18 — . A. B., Plaintiff, V. C. D., Defendastt. Now comes the defendant in his proper person, and, denying that he held the prem- ises as in the written complaint of plaintiff alleged, says that the title to the said premises is *a himself, [or in , under whom defendant claims the said premises;] and that the said title hereby claimed is not derived from any letting of the premises by the plaintiff, [or by those under whom the plaintiff claims,] and is not derived from any forcible entry or forcible detainer. C. D., Defendant. Sworn and subscribed before me, the day of , 18 — . ,J.P. [ No. — , 8 COMMON-LAW EULES. Any plea of title not made as above required the justice shall treat as a nullity. Unless the plea of title be made as by this rule required, the proceed- ings before the justice sliall not be suspended; but the justice shall go on with the trial and render judgment in the matter, as the right of the case may require. Upon a plea of title being made by the defendant in conformity with this rule, and upon the proceedings being certified to this court by the justice, the cause shall be docketed by the clerk, and placed on the trial calendar in the same manner, and subject to the same rules, as appeals from a justice of the peace. The plaintiff shall, during the first five days of the term of the circuit court occurring next after the pleading of title before the justice, file in said court a declaration making a demand for the possession of the premises, and with a description thereof, as in ejectment, and serve the defendant with a copy thereof, and the case shall be deemed then at issue. In any such declaration a general demand shall be sufftcient to war- rant an assessment of damages and intervening rent, as provided in section 690 of said Eevised Statutes. NOTICE TO PLEAD. 10. A notice to plead shall be subscribed to every declaration in the following form : The defendant is to plead hereto on or before the twentieth day, exclusive of Sun- days and legal holidays, occurring after the day of the service hereof; otherwise judgment. Except this notice to plead, subscribed to the declaration, no rule to plead or demand of plea shall be necessary. PROCESS. 11. The writ for compelling the defendant's appearance shall be a summons in the following form : SUMMONS. In the Supremb CotrRT or the District of Columbia. A B, PLAINTIFF, ) V. > At law. No. — . C D, DEFENDANT. ) The President of the United States to the defendant, , greeting: You are hereby commanded to appear in this court on or before the twentieth day, exclusive of Sundays and legal holidays, after the day of the service of this writ on you, to answer the plaintiff's suit and show why he should not have judgment against you for the cause of action stated in his declaration. Witness the honorable , chief justice of said court, the day of — , A. D. 18—. , Cleric. By , Assistant Clerk. COMMON-LAW RULES. V Said ■writ, if served, shall be returned into the clerk's ofQce on or before the twentieth day occurring after service thereof, and if the defendant shall not be found, shall be returnable on the twentieth day after the day of the issuing thereof. If one or more of several defendants be served said writ shall be returned as to the parties so served, as above directed. ATTACHMENT. 12. The form of the plaintiff's undertaking maybe as follows: Ik the Supreme Court of the District of Columbia, the day of ■ 18—. A B, PLAINTIFF, i V. > At law, No. — . C D, DEFENDAIJT. ) The plaintiff and , his surety, herehy undertake, for themselves and each of them, their and each of their heirs, executors, and administrators, to make good all costs and damages which the defendant may sustain by reason of the wrongful suing out of the attachment to be issued in this cause against said detendant: Sec. 2. When the aflfldavits and undertaking required by law have been filed, the clerk shall issue the writ of attachment and garnishment as follows : FOEM OP WEIT. In the Supreme Court of the District of Columbia. .f A B, plaintiff, V. .^ At law, No. — . C D, DEFENDANT. The President of ihe United States to the marshal for said District, greeting: You are hereby commanded to attach, seize, and take into your custody the defend- ant's lands, goods, chattels, and credits, which shall be found in this District, to the value of dollars and cents, with interest , the amount of the plaintiff's demand against the defendant, as shown by his affidavit, duly supported and filed, and claimed in his declaration ; and the further sum of dollars and cents, for the costs and charges which may accrue in the premises; and the same, so attached, safely keep, subject to the orders of the court, unless the defend- ant deliver to you, to be filed herewith, his undertaking, with sufficient surety or sureties, to satisfy and pay the final judgment of the court against him. And, should you attach the defendant's goods, chattels, or credits in the possession of any other person you shall warn him to appear before said court on or before the twen- tieth day, exclusive of Sundays and legal holidays, occurring after the service of this writ on him, to show cause why said goods, chattels, and credits so attached should not be condemned and execution thereof made. Witness the honorable , chief justice of said court, the day of -, A. D. 18—. , Clerk. 10 COMMON-LAW RULES. Sec. 3. If tlie defendant shall apply to discharge the property from the custody of the marshal under section 784, he shall file an under- taking as follows : In tub Supreme Coukt of the District ot Columbia, the day of - 18—. . B., plaintiff, 1 V. > At Law, No. - . T>., DEFENDANT. > A. B C The defendant and , his surety, hereby undertake for themselves and each of them, their and each of their heirs, executors, and administrators, to satisfy and pay the final judgment of the court against them in consideration of the dis- charge from the custody of the marshal of the thing seized by him upon the attach- ment sued out against said defendant on the day of ,18 — , in the above- entitled cause. Sec. 4. In all cases of attachment the plaintiif may exhibit interrog- atories in writing to the garnishee concerning the property of the defendant in his possession or charge, or by him due or owing at the time of serving such writ of attachment, or since the service thereof and the garnishee shall file his answer under oath to such interrogatories within ten days from the date of the service of such interrogatories upon him. Sec. 5. And if such garnishee shall neglect or refuse so to do, then, at the time of rendering judgment against the defendant when he has been summoned, or after due notice by publication when he has been returned not to be found, the court shall adjudge that he has in his possession property of the defendant to an amount suflicient to pay the debt, interests, and damages of the plaintiff, and costs; and execution shall issue as in other cases of condemnation of property or credits in the hands of garnishees, provided a copy of this rule be served with such interrogatories. Sec. 6. And if it shall appear from the garnishee's answer to inter- rogatories, or by verdict of a jury, that he has in his possession goods or credits of the defendant, then, at the time of rendering judgment against the defendant, or after due publication against him, as afore- said, judgment may be rendered condemning said property or credits, and execution may issue thereon as in other cases of condemnation. Sec. 7. The plaintiff may exhibit the following INTEEKOGATOEIES TO BE ANSWERED BY THE GARNISHEE. 1. Whether he is or ■was at the time of the garnishment indebted to the defendant f If so, how, and in what amount? 2. Whether he has now, or had at the time of serving the notice, or has had at any time between the date of service and the time of answering, any goods, chattels, or credits of the defendant? And such other interrogatories as the plaintiff may think proper to propound within the limits of this rule. COMMON-LAW RULES. 11 ATTACHMENT FOR RENT. 13. In case a landlord files Ms declaration to recover rent, he may sue out an attachment at the time of filing said declaration, or afterwards, pending the suit, to enforce his lien upon such of his tenant's chattels upon the premises as are subject to execution for debt. But the clerk shall not issue this attachment unless the plaintiff file in his office, as a step in his action, an affidavit to the effect — That the rent claimed is due and unpaid; or, if not due, that the defendant is about to remove or sell all or some of said chattels. In cases where the plaintiff is absent or is a corporation, such affi- davit may be made by the agent or attorney of the plaintiff. Thereupon the clerk shall issue a writ of attachment, as follows : FOBM OP ATTACHMENT FOR EENT. In the Supkemb Coxjkt of the Distkiot oi" Columbia. A B, plaintiff, ) V. > At law, No. — . C D, DEFENDANT. ) The President of the United States to the marshal for said District, greeting : You are hereby commaDded to attach, seize, and take into your custody such of the defendant's personal chattels on the premises occupied by him as tenant of the plaintiff in this District as are subject to plaintiff's lien for rent, to the value of dollars ($ ), the amount of the plaintiff's demand against the defendant for rent, as shown by the plaintiff's affidavit duly filed in the cause and as claimed in his declaration, and return this writ into the clerk's office of said court immediately, so indorsed as to show when and how you have executed the same. Witness the Honorable , chief justice of said court, the day of , A. D. 189— , Cleric. - WRIT OF REPLEVIN. 14. At the time of filing his declaration in replevin the plaintiff or his agent or attorney must file an affidavit to be made before the clerk, stating: First. That according to affiant's information and belief the plaintiff is entitled to recover possession of the chattels proposed to be replev- ied, being the same described in the declaration. Second. That the defendant has seized and detains, or detains the same. Third. That said chattels were not subject to such seizure or deten- tion, and were not taken upon any writ of replevin. iS COMMON-LAW RULES. Sec. 2. The plaintiff shall also, at the same time, enter into an under- taking with surety approved by the clerk in the following form : In the Supebmb Coukt op the District of Columbia, the day of 18—. A B, PLAINTIFF, 1 V. > At law, No. — . C D, DBl'BNDANT. ) The plaintiff, and , his surety, appear, and, suhmitting to the juris- diction of the court, hereby undertake for themselves, and each of them, their and each of their heirs, executors and administrators, to abide by and perform the judg- ment of the court in the premises, which judgment may be rendered against all the parties whose names are hereto affixed. Upon filing said undertaking the clerk shall issue a writ of replevin, as follows : FOEM OF WRIT OF REPLEYIN. In THE Supreme Court of the District of Columbia. A. B., plaintiff, V. ^ At law. No. — . C. D., defendant. The President of the United States to the marshal for said District, greeting: The plaintiff in this action having entered into an undertaking, with surety as required by law, you are hereby commanded to take the goods and chattels claimed by the plaintiff, to wit (describe them), from the defendant, and deliver the same to the plaintiff. And warn the defendant to appear in said court on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after the day of the service of this writ, and answer said action, and that if he make default in so doing, the plaintiff may proceed to judgment and execution. Witness, the honorable , chief justice of said court, the — — day of , A. D. 189—. , Clerk. Sec. 3. Property taken by the marshal or coroner under a writ of replevin shall be retained by him for three days before delivering the same to the plaintiff, in order that the defendant, or other person claiming an interest therein, may present objections, either to the court or a justice thereof to the sufficiency of the security on the under- taking; and, if the court or justice acting in the matter shall deem said undertaking insufficient, such property may be directed to be retained by the marshal or coroner for a further short time, to be designated in said order, within which an undertaking to be approved by such justice shall be filed, in default of which the officer shall return the property to the person from whom it was taken. SPECIAL REMEDIAL WRITS. 15. Motions or applications for special remedial writs, such as writs of quo warranto, mandamus, certiorari, supersedeas, etc., shall be COMMON-LAW RULES. 13 heard by the circuit or criminal court, or before one of the justices at chambers, but not until a petition, verified by affidavit which shall be made by the applicant in cases of quo warranto and mandamus, and stating the grounds of the application, has been filed and docketed. Motions to quash, set aside, or dissolve any of said writs may be heard in the same manner. Sec. 2. Proceedings to remove a justice of the peace must be com- menced by filing and docketing, on the criminal side of the court, to be heard in the general term, an information by the district attorney, in the name of the United States against the officer, setting forth the grounds of the complaint and supported by the affidavit of the relator or informer. Sec. 3. Hereafter no certiorari shall issue to bring up a cause pend- ing before any justice of the peace, on the ground of concurrent juris- diction, unless the petitioner therefor shall present and file with the petition his affidavit, stating that his application is not for the purpose of delay but solely because he believes he has a just and meritorious defense to the plaintiff's claim, either in whole or in part, and if to a part only, then stating to what part thereof. SERVICE OF PROCESS AND RETURN. 16. By marshal. — Every writ, process, or notice issuing out of the clerk's office of this court shall be served by the marshal for the District of Columbia or his deputy, if required, except in cases in which the marshal is a party, when such writ or process shall issue to the coroner of said District, and the return shall be pruna facie evi- dence of the statements therein. Sec. 2. Every writ issued out of the clerk's office to require the defendant's appearance to answer to an action shall be accompanied with a copy of the declaration and affidavit, if any, and of the notice thereto subscribed; and the defendant shall be served with said copies, and the return shall show the fact. 17. By publication. — Publication may be substituted for personal service of process upon any defendant who can not be found, in suits for partition, divorce, by attachment, for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against real or personal property, and in all actions at law or in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court. (§ 7, act 1867, ch. 64; E. 8. D. C, 787.) Sec. 2. No order for the substitution of publication for personal service shall be made until a summons for the defendant shall have been issued and returned "not to be found," ( E. S. D, 0., § 788.) 14 COMMON-LAW RULES. Seo. 3. Hereafter all notices which relate .to proceedings in the supreme court of the District of Columbia, the publication of which is required by law or by rules of court, or by any order of court, shall be published in the Washington Law Eeporter, during the time required by law, in addition to such other papers as may be specially ordered or which may be selected by the parties, FORM OP ORDER. Sec. 4. In such case the following is the form of the order of court which is to be published : In The Suprbmb Coukt of the District of Columbia. A. B., PLAINTIFF, i V. > At Law (In Equity), No. — . C. D., DEFENDANT. > On motion of the plaintiff, by Mr. , his attorney, it is tliis flay of , 18 — , ordered tliat the defendant cause his appearance to be entered herein on or befoi-e the fortietli day, exclusive of Sundays and legal holidays, occurring after the day of the iirst publication of this order ; otherwise the cause will be proceeded with as iu case of default. The object of this suit is (here state it briefly). By the Court, A true copy. Test. , Justice. Sec. 5. Every such order shall be published at least once a week for three successive weeks, or oftener, or for such further time as may be specially ordered. PROOF OF PUBLICATION. Sec. 6. The proof of the publication shall be an afftdavit of the pub- lisher, editor, agent, manager, or superintendent of the paper, accom- panied by a copy of the order as published, which affidavit shall state how many and at what times the order was published in the paper. Sec. 7. ISo order, judgment, or decree shall be passed upon such proof of publication unless the plaintiff, his agent, or attorney shall file in the cause an affidavit showing either that at least twenty days previous to applying for such order, judgment, or decree he mailed, postpaid, a copy of said advertisement, directed to the party therein ordered to appear, at his last known place of residence, or that he has been unable to ascertain the last place of residence of said party, and that he has diligently sought to inform himself of the same. ISSUES OF FACT AGREED. 18. After return of service of the declaration and summons, if the parties to the action are agreed as to any matter of fact in the case, they may state the same in writing for trial. AMENDMENT TO COMMON LAW BULE NO. 17. Supreme Court of the District of Columbia. IN GENERAL TEEM. Ordered, This 13th day of June, A. D. 1894, that section 4 of Rule No. 17 be amended by adding thereto the following, to wit : ^^ Provided, That in all suits or other proceedings in equity and suits for divorce, in which publication may be substituted for personal serv- ice, the order of publication shall be in the form given in section 789 of the Revised Statutes of the District of Columbia." ERRATUM. In Common Law Eule 72, page 28, reference should be to Eule 45 instead of 47. COMMON-LAW RULES. 15 PLEADING. 19. The order of pleading .sLall be: (1) To the jurisdiction. (2) To the disability of the plaintiff — abatement. (3) To the disability of the defendant — abatement. (4) To the declaration. (5) In bar. All pleas in abatement shall be accompanied by an affldavit of the defendant, his agent, or attorney as to the truth thereof. 20. Every pleading shall be signed by the party or by counsel, show- ing in this way, whether the party appears in person or by attorney, and not alone by stating the fact in the body of pleading. Sec. 2. All pleadings and other proceedings, and copies thereof, shall be fairly and legibly written or printed and indorsed with the number and title of the cause, and if not so done the clerk may refuse to file the same. 21. If the defendant appear, he shall demur or plead, on or before the twentieth day after the day of the service of process ; otherwise the plaintiff may have judgment by default. And a copy of every pleading subsequent to the declaration shall be served by the party filing it on the opposite party, or his attorney, within two days after filing the same. 22. Upon application of either party, for good cause shown, the court may enlarge the time of pleading, and may excuse a failure to plead within the prescribed time. DECLARATION. 23. The declaration shall state only the substantive facts necessary to constitute the cause of action, without unnecessary verbiage, and with substantial certainty. , PLEA. 24. Every plea shall set forth the true defense upon which the defend- ant supposes he may defeat the plaintiffs action. It may deny all, or any particular material allegation of the declaration, or it may confess and avoid ; and so of the replication to the plea. 25. No formal conclusion or prayer for judgment shall be necessary in any pleading. REPLICATION, ETC. 26. After plea filed and served, the plaintiff shall reply; and after replication filed, the defendant shall rejoin, and so on till issue is joined, within ten days after the last pleading filed, excluding the day of such 16 COMMON-LAW EULES. filing or within ten days after the day of service of a copy thereof as aforesaid; otherwise, on motion and notice thereof, the suit may be dis- missed or judgment taken by default, according as the failure shall be by the plaintiff or defendant. Sec. 2. Upon cause shown in any case the court may, in its discre- tion, permit two or more replications to be filed to any plea. JOINDER IN ISSUE. 87. The joinder in issue may be — The plaintiff joins issue upon the defendant's first plea. The defendant joins issue upon the plaintiff's replication to the first plea. And this form of joinder shall be deemed to be a denial of the sub- stance of the pleading to which it relates and an issue thereon. DEMURRER. 28. The form of a demurrer shall be as follows, or to the like effect: The defendant says that the declaration (indictment, or other pleading, as the case may be) is bad in substance. And in the margin thereof some substantial matter of law, intended to be argued, shall be stated, and a demurrer without such statement, or with a frivolous statement, may be set aside by a justice at chambers or by the court, and leave given to enter judgment as for want of plea: Provided, That no final judgment shall be entered in a criminal case against any defendant upon overruling his demurrer to any indictment; but the judgment in every such case shall be that he answer over, unless he elect to stand on his demurrer. Sec. 2. It shall not be necessary to file a joinder in demurrer, but the filing of a demurrer shall be considered as making an issue of law. Sec. 3. In all cases of defects in pleadings which were the subject of special demurrer at common law, the defect may be taken advantage of by motion to strike out. PLEA AFTER LAST CONTINUANCE. 29. If a matter of defense has arisen since the last pleading filed, the party may plead the same in addition to his former defense, in the fol- lowing form : In the Supreme Court of the District of Columbia, the — - day of , 18 — . a. b., plaintiff, ) V. > At Law, No. — :. C. D., DEFENDANT. ) The defendant says that after the alleged claim accrued, and after the last plead- ing in this action, that is to say, on the day of , 18 — , the plaintiff by deed [or otherwise as the Jaw maypermW] released the defendant from the said alleged claim. COMMON-LAW RULES. 17 Unless the court or a justice shall otherwise order, the plea must be accompanied with an affidavit of the truth of it, which may be in the following form: In the Supreme Coukt oe the District of Columbia, the day of , 18—. a. b., pi^intiff, ) V. } At Law, No. — . C. D., defendant. ) The defendant makes oath and says that the plea hereunto annexed is true in sub- stance and fact. 30. The plaintiff shall reply within five days after service of the plea upon him; and the defendant shall rejoin within two days after service of the replication; otherwise judgment. NOTICE TO ADMIT DOCUMENTS. 31. Either party may call on the other party by notice to admit any document, saving all just exceptions. In case of neglect or refusal to admit, the cost of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the justice certify that the refusal to admit was reasonable, Seo. 2. The following or the like in substance, shall be the form of a notice to admit; In the Supreme Court of the District of Columbia. A. B., PLAINTIFF, i V. V At Law, No. — . CD., DEFENDANT. ) Take notice that the plaintiff [defendant] in this cause proposes to adduce iu evi- dence on the trial thereof the several documents hereunder specified, and that the same may be inspected by the defendant [plaintiff], his attorney or agent, at on the day of , 18 — , between the hours of and ; and that the said defendant [plaintiff] will be required to admit that such of said documents as are herein specified to be originals were respectively written, signed, or executed as they purport, respectively, to have been ; that such as are specified as copies are true copies, and such documents as are stated to have been served, sent, or delivered were so served, sent, or delivered, respectively, saving all just exceptions to the admissibility pf all such documents as evidence in this cause. Pated this day of — , 18 — . -, Attorney for Plaintiff. To Mr> ■'^ , Attorney for Defendant. OEIGIKAIS. Description of documents. 16252- Date. 18 COMMON-LAW RULES. COPIES. Description of documents. Date. 0"g'»^ "^If ^^'S^t^Sj: *'"™''' when, how, and ^yrwhom. Sec. 3. If the party to whom the notice is addressed make the admis- sion, it may be indorsed on or subscribed to the notice, as follows: I consent to make the admission iec[uired in tlie witMn notice. [January — , 18—.] Plaintiff's lDefeiidant's'\ Attorney or Agent. I consent to admit the documents numbered 1, 2, 3, 4 in the within notice. [January — , 18 — .] Sec. 4. If the admission be special, it may be made in a separate paper, as follows : In the Supjseme Coukt of the Disteict of Columbia, the Day of , 18-. A. B., PLAIITTIPF, ) V. \ At Law, No. — . CD., defendant. ) I do hereby, as the attorney lagent] for the above-mentioned defendant iplaintiff'\, agree to admit in evidence, on the trial of the cause, the paper v/ritiug hereto, annexed, marked A, as and to be a true copy of [steie of what hut more fully tliau in the notice^, and I do also hereby agree, as such attorney, to admit in evidence on such trial the paper writing hereto annexed, and marked B, as and to be a true copy, etc. PRODUCTION OF BOOKS AND WRITINGS. 32. A party to an action at law, having in his possession or power books or writings containing evidence pertinent to the issue, may be required by order of the court to produce the same on the trial, on motion and due notice thereof being given, in cases and under circum- stances where parties might be compelled to produce the same by the ordinary rules of proceeding in chancery. Sec. 2. The motion must be made in writing, filed in the cause, and it must set forth a descriptive list of the books and writings to be pro- duced. Sec. 3. If the court order the production of the books and writings specified in the motion, a copy of the order an\l list, made by the clerk and duly certified, shall be served on the party in question two daysi before the day on which he shall be required to produce the books and writings. Sec. 4. It sliall be deemed a compliance with the order to file th^ books and writings in the clerk'a office by the t4me thereiu speoifled. COMMON-LAW RULES. 19 Seo. 5. On application of the party served with the notice to the court, or to a justice in vacation, the time to comply with the order may be enlarged. Sec. 6. If a plaintiff fail to comply with such order, the court may, on motion, give the like judgment for the defendant as in case of non- suit. Sec. 7. If a defendant fail to comply, the court may, on motion, give judgment against him by default. (1789, 0. 20, § 15.) NOTICE OF TRIAL. 33. At any time after issue joined, and at least ten days before the sitting of the court at which the cause stands for judgment or trial, either party may give notice of trial. FOEM OP NOTICE OP TRIAL. In thk StJPEEMB Court of the District of Columbia, the day of , 18 — . ( A B, plaintiff, ) Between < and > At law, No. — . (CD, defendant. ) Take notice that the issue joined in this oanse will be tried at the next term of this court. P Q, Attorney for Plaintiff. To Mr. P D, Attorney for Defendant. NOTE OF ISSUE, ETC. 34. The party giving the notice of trial shall furnish the clerk, at least ten days before the sitting of the court, a npte of issue, contain- ing— (1) The title of the action; (2) The name of the attorneys, and (3) The time when the last pleading was filed. 35. The clerk shall thereupon enter the cause upon a calendar, according to the date of the issue. But any case may, by consent of the parties or their counsel, be placed on the calendar at any time before the commencement of a term or afterwards, with the assent ot the court, provided that no case shaU be placed on the trial calendar while a demurrer to any pleading in the case is pending. 36. Issues of fact shall be tried by a jury at a circuit court, or by consent of parties, expressed in writing, by the justice presiding, with- out a jury. 37. A case once placed on the trial calendar, if not tried at the first term, shall stand for trial on the succeeding trial calendar, without further notice of trial. 38. Demurrers may be heard, on any motion day, after five days' notice. 20 COMMON-LAW EULES. STET CALENDAR. 39. In all cases on the civil-trial calendar not otherwise disposed of by the end of the third term after process served (unless they stand under leave to amend, or to make new parties) there shall be entered a stet, unless otherwise specially ordered, and they shall not be brought forward to succeeding terms, except as hereinafter directed; and in all cases on said calendar where leave to amend, or to make new parties, has been obtained, and no amendment is made, or new parties brought in by the end of the second term after that at which such leave may be obtained, or where amendment is made, or new parties brought in, and the case is not otherwise disposed of by the end of the third term after such amendment or new parties made, a stet shall be entered, unless otherwise directed by the court; and no case in which a stet is entered shall be brought forward on the calendars of the succeeding terms, except as hereinafter directed. , Sec. 2. If either party shall desire to try any case in which a stet has been entered it shall be his duty to give the adverse party, or his attorney, at least fifteen days' notice in writing of his intention to press for trial before the commencement of the term next succeeding such notice given, and upon filing such notice, duly served, on or before the first day of the term, the party shall have the same right to insist upon trial as if the case were regularly on the calendar for that term, the court having the right to designate the order and time of calling such case, having reference to the other business of the term. Sec. 3. All cases in which a stet may be entered shall be trans- ferred by the clerk to a separate calendar, to be called a stet calendar, and after the expiration of the third term, after stet entered, unless otherwise disposed of or ordered to the contrary, all cases shall be con- sidered as non-prossed, but cases on said stet calendar that have been enjoined or which stand under rule reference, or to abide decisions in other cases, shall be considered as continued untU a special order to the contrary : And this rule shall apply to all cases on the said trial cal- endar where stet may be entered by consent. TRIALS. CONSOLIDATION. 40. When causes of a like nature or relative to the same question are pending, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so. COMMON-LAW RULES. 21 SEPARATION. 41. If several causes of action be stated in tlie declaration, and it be inexpedient to try them together, the court may try each or as many of them separately as it deems convenient. NONAPPBAEANCE OP PARTIES. 42. When a cause is reached in the regular call of the calendar and neither party appears it may be dismissed at the cost of the plaintiff. 43. If the plaintiff fail to appear when the cause is called for trial the defendant may have the plaintiff called and dismiss the suit, or he may have a trial. 44. If the defendant fail to appear when the cause is called for trial the plaintiff may have the defendant called, and take a judgment by default, or may be required to prove his case, in the discretion of the court. REFERENCE TO ARBITRATORS. 45. A cause at issue, whether upon the trial calendar or not, may, by consent of the parties, by an order of court, be referred to arbitration; and if the reference be ordered after the commencement of the trial, the jury shall be discharged and the cause shall be continued until the award is returned. Sec. 2. The party in whose favor the award is given shall cause a copy thereof to be delivered to the adverse party, or his attorney, at least three days before moving for judgment thereon; and no judgment shall be entered but upon the order of the court, nor, unless by con- sent, till the court is satisiied of the service of a copy of the award, as aforesaid, by the party's af&davit, or by return of the marshal, or by admission of the opposite party. Sec. 3. If no award is returned within eight months after the ref- erence, the court may order the referee to return it, or give his reasons for not returning it, or may vacate the reference and proceed with the ca 'jse as if no reference had been made. (Maryland act of ISTovember, 1785, ch. 80, § 11.) Sec. 4. If either party die before the award is returned and judgment thereon, the arbitrator may proceed to make an award, after reason- able notice to the person succeeding to the interest of or representing the deceased, in the thing or matter in contest, not being a minor; and a judgment upon such award shall be good and suflicient, notwith- standing such death. (Id.) REFERENCE TO AUDITOR. 46. In actions at law brought or hereafter to be brought, grounded upon an account, or in which it may be necessary to examine and 22 COMMON-LAW RULES. determine upon accounts between the parties, the court, in its dis- cretion, at any stage of the cause, may order the accounts and dealings between the parties to be audited and stated by the auditor of the court, or by a special auditor or auditors to be appointed by the court, and when such order shall be made in any case, the course of proceed- ing before such auditor or auditors shall be the same therein, and such auditor or auditors shall have the same powers and duties in the premi- ses as in similar cases referred to the auditor in chancery by the court sitting in equity. When such audit shall be completed the auditor or auditors shall state and file the report and account in the clerk's ofiBce, and give notice thereof to the parties or their attorneys, and the clerk shall note the time the same is filed in the docket; and at the expira- tion of thirty calendar days thereafter judgment may be entered on motion of either party in accordance with such report and account, either by the court or by a justice at chambers, unless exceptions are filed thereto within said time for errors of law or of fact therein; and the party so excepting shall state therein definitely, in precise and distinct terms, the grounds of such exceptions, and shall point out par- ticularly the item or items in such report and accounts to which they are taken, and shall annex thereto a certificate of counsel that, in his opinion, the matters of law therein stated are well founded in law; and an aflidavit of such party that such exceptions are not interposed for delay; and that the allegations of fact in such exceptions are true; and shall serve a copy thereof on the opposite party or his attorney. Sec. 2. When such excejitions are so filed the court shall then enter the cause on the trial calendar of the term in its proper place, and the issues made by such exceptions shall be tried and determined in the same manner as other issues of law or of fact in action at law, and any part of such report and accounts not so excepted to shall be adjudged to be conclusive between the parties on such trial. Sec. 3. If only general, immaterial, or frivolous exceptions are made, or if they are filed without the certificate of counsel and afiidavit of exceptant and service of copy as aforesaid, they may be overruled by the court or by a justice at chambers on notice and motion, and judg- ment entered as if no exceptions had been filed. 47. If the suit be against an administrator or executor for debt or damages, and the real debt or damages shall be ascertained by the jury, their verdict shall be entered in the minutes of the court ; and the cause shall be referred to an auditor to ascertain the sum for which judgment shall be given. REPLEADER. 48. If it appear at the trial that the pleadings have miscarried — that is, failed to raise material issues, on which may be decided the real questions in dispute between the parties — the coiirt may then and there order them to be amended. COMMON-LAW RULES. ' 23 VERDICT. 49. A general verdict for the plaintiff shall be recorded thus: "The jury, on their oath, say they find the issue aforesaid in favor of the plaintiff, and that the money payable to him by the defendant by reason of the premises is the sum of $ ." If the action be founded on contract, the. record of the verdict shall proceed: "With lawful interest from the day of , 18 — ." Seo. 2. If the verdict be for the defendant, then: "The jury, on their oath, say they find for the defendant," unless, upon set-off' pleaded, a balance is found due the defendant; and then the record of the ver- dict shall proceed: "And that the money payable to him by the plain- tiff by reason of the premises is the sum of $ , with interest from the day of , 18—." Sec. 3. If there be several counts in the declaration, and the jury find for the plaintiff" on some and for the defendant on the rest, the verdict shall be entered thus: "The jury, on their oath, say they find for the plaintiff on the ( ) issues, and that the money payable to him by the defendant by reason thereof is the sum of $ , [with interest from the day of , 18 — ,] and for the defendant on the ( ) issues." SPECIAL VERDICT. 50. If the parties elect to have a special verdict taken, then the jury shall state all the facts as they find them proved with certainty and precision, and then add: "But" they are ignorant, in point of law, on which side they ought upon these facts to find the issue; and if, upon the whole matter, the court shall be of the opinion that the issue is proved for the plaintiff" they find for the plaintiff accordingly, and that the money payable to him by the delendant is the sum of $ [with interest from the day of , 18 — ] ; but if the court shall be of an opposite opinion, then they find for the defendant; " all which shall be entered upon the minutes of the court and constitute part of the record of the cause, VERDICT SUBJECT TO OPINION OF COURT. 51. When a verdict is taken, subject to the opinion of the court, it shall be entered as follows: "The jury, upon their oath, say they find in favor of the plaintiff, and that the money payable to him by the defendant is the sum of I [with interest from the day of , 18 — ] ; if the court shall be of the opinion that he ought to recover against the defendant upon the facts submitted to us upon the trial, which facts were as follows :" [State the facts found by the jury.] "But upon these facts, if it shall be the opinion of the court that the plaintiff ought not to recover against the defendant, then we find in favor of the defendant." 24: COMMON-LAW RULES. ARGUMENT OF CAUSES. 52. Only one counsel on each side will be lieard before tbe court upon any point of evidence, or on a motion, and in addressing the court shall not be permitted to occupy more than thirty minutes; and the counsel in reply anck-conclusion before the court shall not occupy more than fifteen minutes ; upon prayers of the law of the case and demurrers, the same rule shall prevail, except that the counsel on each side may extend their argument to one hour, but the counsel in reply shall be limited to half an hour; or two counsel maybe heard on each side, each, in such cases, not to occupy more than half an hour; and no more than two counsel on a side shall be permitted to address the jury nor to occupy more than one hour each : Provided, That by special leave of the court, in causes of more than ordinary importance and diffi- culty, the rule, both as to the number of counsel and the time which they will be permitted to occupy before the court or jury, may be enlarged according to the discretion of the court. Sec. 2. In no trial shall more than one counsel on a side examine or cross-examine a witness. ARGUMENT OF APPEAL CAUSES. Sec. 3. In the trial of appeal causes only one counsel shall be heard on a side, either before the court or jury; and the opening counsel shall have the right to address the court or jury twenty minutes in the opening and concluding arguments; and the other counsel shall have the right to address the court or jury thirty minutes, and no more, unless the time be extended by the court, as above. MOTION FOR NEW TRIAL. 53. Every motion for a new trial must be made within four days after verdict; and shall be in writing, and shall state, in separate para- graphs, successively numbered, the specific grounds upon which it is based, and it shall be entered on the minutes of the court on the day it is presented to the court. Sec. 2. Judgment shall not be entered on the verdict until the fifth day thereafter or if a motion in arrest of judgment or for a new trial shall be made, until after the ruling of the court on said motion. Seo. 3. All motions for new trials not heard and decided at the term at which the same shall have been made shall be deemed to have been overruled, and shall be so entered on the proceedings of the last day of the term, unless the motion has been continued by special order of the court. AMENDMENT TO COMMON LAW RULE NO. 53. Supreme Court of the District of Columbia. IN GENEEAL TERM, JANUARY 4, 1896. It is ordered that the following section he added to Rule N'o. 53 of the common law rules of this court, to wit : Sec. 4. In any case where a verdict has been rendered by a jury and has been set aside by the justice presiding at the trial, or the jury have failed to agree and have been discharged, and said cause shall again stand for trial before the same justice, the said justice may, of his own motion, or at the request of either party, pass an order trans- ferring said cause for retrial to another justice engaged in the trial of civil causes by jury: Provided, That any application for such transfer by either party shall be made with due diligence and not for the purpose of delay. O 8995 Common-law rules. 25 EXCEPTIONS. i54. If a party desires to present for review in the court of appe'fels the rulings or instructions of the presiding justice for alleged errors of law, he must, at the trial, and before the jury retire to consider their verdict, except to such rulings or instructions; and he may, at the time of taking exception, reduce the same to writing in a formal bill of exceptions, or the justice may enter the exception upon his minutes and proceed with the trial, and afterwards settle the bill of exceptions. Sec. 2. The bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment, in order to prepare it, but not longer than thirty days. Sec. 3. Whenever the justice who tried the cause shall consider it proper, several exceptions to the rulings shall be inserted in one bill of exceptions to be signed at the close. And the instructions granted by the court, whether excepted to or not, shall be inserted in the bill of exceptions. 55. Every bill of exceptions shall be drawn up by the counsel of the party tendering it and submitted to the counsel on the other side; and where the bill of exceptions is not settled before the jury retires the counsel tendering the bill of exceptions shall give notice in writing to the counsel on the other side of the time at which it is proposed' that the bill of exceptions shall be settled, and shall also, at least three days, Sundays exclusive, before the time designated in such notice, submit to the counsel on the other side the bill of exceptions so pro- posed to be settled; and if they can not agree it shall be settled by the justice who presided at the trial, aiid in that case the justice shall be attended by the counsel on both sides, as he may direct. IP NOT SETTLED NEW TRIAL TO BE GEANTED. 56. In case the justice is unable to settle the bill of exceptions, and counsel can not settle it by agreement, a new trial shall be granted. TO BE MADE PART OF EECOBD. 57. In every case the fact of the settling and filing of the bill of exceptions, and that it is made part of the record, shall be noted in the minutes of the court. ARREST OF JUDGMENT. 58. A motion in arrest of judgment must be filed within four days after verdict. It may be filed at the same time with the motion for a new trial, and the two motions may be heard together. If the new trial be refused the judgment may be arrested, and if the motion in arrest be overruled judgment shaU be entered on the verdict. Q'he 26 COMMON-LAW EULES. motion in arrest must be made in writing and signed by counsel, and shall state briefly the grounds relied on in support of it, and be made of record on the minutes. JUDGMENT. 59. If the judgment be for the recovery of money, it shall be awarded generally thus: "It is considered that the plaintiff recover against the defendant $ [with interest as aforesaid J, being the money payable by him to the plaintiff by reason of the premises, and $ for his costs of suit, and that he have execution thereof." 60. Judgment for the plaintiff may be — (1) On default of appearance by the defendant. (2) On defendant's confession as by saying nothing, or by con- fession of errors. Or if for the defendant, (1) That the plaintiff be nonsuited. Or for either party — (1) On demurrer, (2) On issue of " No such record." (3) On verdict, or — (4) On case agreed. JUDGMENT BY DEFAULT. 61. If the defendant, served with copies of the declaration, notice to plead and summons, fail to appear and plead, according to said notice, a judgment by default, for nonappearance, may be entered against him by the circuit court, at any time after the day fixed for his appearance, not less than ten days before the expiration of the term of said court in which it is entered, which judgment may be set aside during said term, upon the defendant's offering a plea verified by afSdavit, setting up a defense considered by the court sufilcient, if proved, to bar the action in whole or in part. STAYING EXECUTION. 62. After judgment is entered in the circuit court .execution may be issued, unless the party condemned appeals to the court of appeals and files a supersedeas bond as provided in Eule 80, or the court shall suspend execution for cause shown, during the term, after notice to the opposite party. ON ATTACHMENT AND GARNISHMENT. 63. If the summons accompanying the attachment has been returned " Ifot to be found," and an order for the defendant's appearance has COMMON-LAW RULES. 27 been made and published, and the return upon the attachment is that the defendant's lands, or his goods and chattels in the possession of a third person have been seized, and if the defendant fails to appear and plead as required by the order published, and no cause be shown against such attachment, the judgment shall be by default against the defendant for the amount claimed, and of condemnation of the property attached with an award of execution. 64. If the return upon the attachment be that a credit of the defend- ant has been attached in the hands of a designated person, who has been warned to appear as the writ commands, and who appears and admits that he has a credit of the defendant in his hands, and the defendant fails to appear and plead after due publication of the order for his appearance, and the judgment shall be by default against the defendant, and of condemnation of the credit, or of such amount of the credit as may be sufficient to satisfy the plaintiff's claim ; but if the garnishee fails to appear, there may be judgment of condemnation of the credit and the award of an inquisition to ascertain the amount of it. 65. If there are several defendants in an action ex contractu, judg- ment by default may be taken against such of them as fail to appear, and the plaintiff may proceed to trial and judgment against the others. 66. If the cause of action be an unliquidated sum of money claimed upon a contract, or for a wrong unconnected with contract, the court shall award an inquiry by the jury in attendance of the amount claimed in the following cases : (1) If the defendent fail to plead to the declaration; that is, makes default. (2) If he acknowledge the plaintiff's demand to be just; that is, con- fesses judgment. (3). When his attorney declares that he has no instructions to say anything in answer to the plaintiff, or in defense of his client. (4) When a demurrer to the plaintiff's declaration is overruled, unless there be leave to plead over. In executing such inquiry in the presence of the court the jury need not draw up and sign and seal an inquisition, but shaU merely ascertain the amount payable by the defendant to the plaintiff for the cause of action stated in the declaration; and their verdict shall be announced and made of record on the minutes of the court in the same way as upon an issue joined. 67. In replevin. — Judgment by default against a defendant in replevin may be entered after publication of a notice that an order has been made fixing a day for his appearance, upon his failure to appear pursuant to the notice, as provided by sections 818-819 E. S. D. C. 68. A judgment by default may be taken against a defendant in eject- ment in the manner prescribed in Eule 59, in relation to judgments by default generally. 28 COMMON-LAW RULES. JUDGMENT ON VEBDICT OR AN AUDITOK'S EEPOET OP ASSETS. 69. In case of set-off. — Upon the trial of an issue upon tlie plea of set-off judgment shall be for the balance found due, whether to the plaintiff or defendant, with costs. (E. S. D. G., § 812.) 70. If the declaration state a cause of action of which the court has jurisdiction, but the verdict find the money payable by the defendant to the plaintiff' to be less than the lowest sum of which the court has jurisdiction, the plaintiff shall have judgment for the amount found due to him from the defendant, but without costs. (R. S. D. C, § 828.) 71. On Auditor^s report of assets. — In an action against an adminis- trator or executor, if, on reference to the auditor to ascertain the sum for which judgment shall be given, he report the assets in the hands of the defendant to be less than the real debt or damages found by the jury, the judgment shall be that the plaintiff' recover against the defendant the amount found by the auditor, and then it shall go on to say: "And it is further considered that the plaintiff is entitled to such farther sum as the court shall hereafter assess on discovery of further assets in the defendant's hands." Sec. 2. At any time afterwards, when applied to by the plaintiff, upon a three days' notice to the defendant or his attorney, the court may assess (by reference to the auditor) and give judgment for such further proportionable sum as the plaintiff shall appear entitled to, regard being had to the amount of the debt and other claims. Sec. 3. And on any judgment so rendered an execution may issue against the defendant, and either his own goods or the goods of the deceased may be thereon taken and sold. (Maryland act of Ifovember, 1798, ch. 101, subchapter 8, § 9.) JUDGMENT ON AWARD. 72. Whenever an award has been returned by the arbitrator and approved by the court in the manner directed by rule 47, judgment shall be entered thereon. ACTIONS EX contractu. 73. In any action arising ex contractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affidavit setting out distinctly his cause of action, and the sum he claims to be due, exclusive of all set-off's and just grounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with interests and costs, unless the defendant shall file, along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufifl- cient to defeat the plaintiff's claim in whole or in part. And where COMMON-LAW RULES. 29 the defendant shall have acknowledged in his affidavit of defense his liability for a part of the plaintiff's claim as aforesaid the plaintiff, if he so elect, may have judgment entered in his favor for the amount so confessed to be due. Sec. 3. The provisions of this rule shall not apply to defendants who are representatives of a decedent's estate except when the affidavit filed with the declaration sets forth that the contract sued on was directly with such representative, or that a promise to pay was made by him. Sec. 3. When the defendant is a corporation, the affidavit of defense may be made by an officer, agent, or attorney of such corporation. COSTS. 74. The defendant may move the court to limit the plaintiff's recovery of costs to those of a single action when he has prosecuted several actions against separate defendants who might have been joined in one action or process. 75. The defendant may move to have costs imposed upon an attorney who shall appear to have multiplied proceedings in a cause, so as to increase costs unreasonably and vexatiously, as provided by the act of Congress of 1813, 0. 14, § 13. 76. A party who has refused to admit documents which have been proved at the trial shall be adjudged to pay the costs of such proof, unless it appear to the court that his refusal was reasonable. ( See rule 31.) 77. The lawful fee for a copy of any paper ou file in any cause or matter pending in the supreme court of the District of Columbia, furnished by the clerk to any party therein, shall be charged as part of the costs of the cause or matter and collected as such. NONRESIDENT PLAINTIFF, SECXJEITY FOE COSTS. 78. The defendant, in a suit brought by a nonresident plaintiff, or by a plaiutiff who becomes a nonresident after the suit is commenced, may lay aTule on the plaintiff' or his attorney at any time not later than the fifth day of the trial term, or if the plaintiff becomes a nonresident after the commencement of the trial term, then in a reasonable time thereafter, to give security for all costs and charges that he may be put to in case the plaintiff' be nonsuited or judgment be given against him. But such right of the defendant shall not entitle him to delay in plead- ing as required by the rules aforesaid and his pleading before the giving of such security shall not be deemed a waiver of his right to require security as aforesaid. Sec. 2. In case of noncompliance with the rule judgment of noji- suit shall be entered. Sec. 3. But if the rule be laid at the trial term the court may allow the plaintiff a reasonable time for compliance therewith or, on his motion, continue the case uutU the next term. The security required may be 30 COMMON-LAW RULES. in the form of a recognizance or of a bond or by a deposit of money. And a nonresident plaintiff may, at the commencement of his suit, with leave of the court, deposit in court such sum as the court shall deem sufficient as the security to which the defendant is entitled under this rule; which deposit may afterwards be increased on application, in the discretion of the court. Sec. 4. And if such deposit shall be made at the term at which the suit is commenced the defendant shall not delay his pleading. MOTION TO VACATE JUDGMENT. 79. This motion will not be entertained if made after the defendant has taken any fresh step after knowledge of the matter complained of in his motion, nor can it be made after execution executed, unless the defendant had no notice of the judgment. The motion must be made in writing, and the grounds upon which it is founded must be sworn to by the mover and supported by affida- vits, or otherwise, as may be required ; and a copy of the motion and accompanying papers must be served on the opposite party at least four days, Sundays excluded, before the day fixed for the hearing. APPEAL TO THE COURT OF APPEALS. 80. Ko appeal, except in cases where the United States or the Dis- trict of Columbia is appellant, shall operate as a stay of execution or supersedeas, unless within twenty days after the judgment the appel- lant shall file in the clerk's office of the supreme court of the District of Columbia a bond with surety or sureties to be approved by one of the justices of said court conditioned for the successful prosecution of such appeal, EXECUTION. 81. If the judgment of the court be not suspended, superseded, or reversed by one or other of the methods mentioned in the preceding rules, execution thereon may issue, and all writs in execution of any judgment shall be made returnable within sixty days from the date of issuing the same. 82. If the judgment be for the recovery of land, the same shall be carried into execution by a writ of possession in the following form: In the Supreme Codkt of the Disteiot of Columbia, a. b., plaintiff, ) c. d., defendant. ) The President of the United States to the marshal for said District, greeting: You are hereby conimanded, without delay, to cause the plaintiff to have posses- sion of (describe the premises as they are described in the declaration), according to bis recovery thereof in this action. And do yon return this writ iato the clerk's COMMON-LAW RULES. 31 office of said court immefliately after you have executed it, and witMn sixty days, so indorsed as to show when and how you have executed the same. Witness the honorable , chief justice of said court, this day of , A. D. 18—. 83. In other actions, when the judgment is that something special be done or rendered by the defendant, a special writ of execution shall issue to the marshal according to the nature of the case. 84. In replevin, if the judgment be that the plaintiff return the chat- tel or chattels in controversy, the following shall be the form of the writ of return: In the Supreme Court oe.thb District of Columbia. A. B., plaintiff, ) V. > At law. No. — . C. D., DEFENDANT. ) The President of the United States to the marshal for said District, greeting: You are hereby commanded that, without delay, you cause to be returned to the defendant the same chattels which, by the original writ of replevin in this action you took from him and delivered to the plaintiff, to wit (Describe them), which chattels the said defendant lately, in said court, recovered against the said plain- tiff, together with $ damages and $ costs of suit; which chattels the defendant is to hold irrepleviable forever. And if the said chattels be eloigned by the plaintiff so that they can not be found in this District, you are further commanded to make of the goods and chattels, lands, and tenements of said plaintiff and his surety, $ , the amount adjudged to the defendant for the value of the said chattels, and $ damages for the deten- tion of the same, and the further sum of $ for costs and charges about said suit expended, as appears of record. And do you return this writ into the office of the clerk of said court, so indorsed as to show how you have executed the same. Witness the honorable , chief justice of said court, this day of , A. D. 18—. , Clerk. 85. In an action where money only is recovered, and not any specific chattels, the following shall be the form of the writs of execution : FIERI FACIAS. In the Supreme Court of the District of Columbia. a. b., plaintiff, ) V. > At law, No. — . C. D., DEFENDANT. ) The President of the United States to the marshal for said District, greeting : You are hereby commanded that, of the goods and chattels, lands and tenements of the defendant , you cause to be made $ , which the plaintiff , on the day of , 18 — , by the judgment of said court in the above-entitled cause, recovered against said defendant , for money found payable to said plaintiff , and $ for costs and charges about said suit expended, as appears of record ; and return this writ into the clerk's office of said court within sixty days, so indorsed as to show when and how you have executed the same. Witness the honorable — ■ • , chief justice of said court, this day of , A. D, 18— '-' ' , Cl^rii, 32 COMMON-LAW RULES. ATTACHMENT ON JUDGMENT. In thb Supkbmb Coukt of the District of Columbia, a. b., plaintiff, ) V. > At law, No. — . C. D., DEFENDANT. ) Ihe President of the United States to the marshal for said District, greeting: You are hereby commanded to attach the lands, tenements, goods, chattels, and credits of the defendant, if to be found in this District, of value sufficient to satisfy the plaintifPs recovery against ■ in this court, on the day of , 18 — , of $ for money payable to him by the defendant, and $ for cost of suit; and the same, so attached, safely keep and have before said court on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after the execu- tion of said writ, that the same may be condemned unless sufficient cause be shown to the contrary ; and, if said goods, chattels, or credits be attached in the hands o,r possession of any person or persons other than the defendant, notify such person or persons to appear before said court within the time aforesaid, to show cause why the same should not be condemned and execution thereof had according to law. And have then there this writ, so indorsed as to show when and how you have executed it. Witnesss, the honorable , chief justice of said court, the day of , A. D. 18—. , Clerk. 86. The plaintiff, upon issuing such writ of attachment, may exhibit interrogatories to be answered by the garnishee within ten days after the service of the same upon him; and upon his failure to answer, judgment may be entered against him at any time after the twentieth day, exclusive of Sundays and legal holidays, occurring after the service of said attachment upon him, for the full amount of the judg- ment. If, by the answers of the garnishee, or by the verdict of a jury, it shall appear that he has property or credits of the defendant, judgment of condemnation of said property or credits shall be entered, but not for an amount in excess of the original judgment and the costs, and execution shall issue thereon. SCIRE FACIAS. 87. The following shall be the form of writ of sc«Ve/acias on judgment; In the Stjpheme Coukt of the District of Columbia, a. b., plaintiff, ) V. > At law, No. — i C. D., defendant. > The President of the United States to the defendant, -. , greeting: You are hereby commanded to appear before said court, on or before the twentieth day, exclusive of Sundays and legal holidays, occurring ^^fter the day of the service of this writ, to show cause why the plaintiff ought not to have execution of his judgment for $ , debt and damages, with interest and $ costs of suit, recovered against you in said court on the day of 18 and COMMOr-LAW RULES. 33 $ additional costs; and fiuther, to do and perform wliat said court shall con- sider in the premises. Witness, the honorable , chief justice of said court, the day of , A.D. 189—. , Clerl;. Sec. 2. In cases ai scire facias on juflgment, and in actions ou jn(]g- ineiits from a State court or a court of the United States, any plea tliereto shall be treated as a nullity unless an affidavit accompany the plea showing a defense to the action. MOTIONS. 88. Every motion shall be made in writing, and shall, together with the papers on which it is founded, if made upon matters not already of record, be filed in the clerk's ofBce; and a copy of the motion and of the affidavits or papers on which the same is founded must be se^^•ed on the opposite party, or his attorney, at least two clear days, Siiiulays excluded, except when otherwise provided by law, before the day fixed for tlie hearing, DEPOSIT IN REGISTRY OF COURT. 89. All moneys paid into court by virtue of orders of the court in causes depending therein, shall be deposited and disbursed as required by section 995 of the Eevised Statutes of the United States. 90. The clerk shall provide a book in which lie shall keep a true account of all moneys or funds or securities in court subject to its order, sliowing the date of the payment thereof into court, the cause to wliicli the same are credited, the place where deposited by him, a brief refer- ence to any order or orders touching the safe-keeping or investment, the amount of interest thereon received by him, if any, and the manner in Avhich the fund was finally disposed of. He shall make out and sub- mit to the general term a detailed report, showing the various funds in his hands as such clerk or as register,' where and by what authority the same is deposited, kept, or invested, and his vouchers shall be presented witli such report, and together they shall thereupon be filed amongst the records of the court. (E. S. 798.) APPEALS FROM JUSTICES OF THE PEACE. 91. If any justice of the peace from whose judgment an appeal is prayed shall refuse or neglect to file the papers in a case in the ofiSce of the clerk of this court on or before the first day of the term occuring ten days next after the rendition of his judgment, either party may have a certiorari, on application to the court by petition, to command him to certify the papers into court. 16252 3 34 COMMON-LAW RULES. If sucli justice shall disregard the certiorari either party may move the court for process of contempt to enforce obedience to the writ. 92. ]>ro appeal, except in cases in which the District of Columbia is appellant, shall be allowed from the judgment of a justice of the peace, unless the aijpellant, with sufficient surety or sureties, approved by the justice, shall enter into an undertaking to satisfy and pay all interveu- iug damages and costs arising on the appeal. 93. Such undertaking shall be entered into and submitted to the justice for approval, where the appeal is to operate as a supersedeas, within six days, Sunday excluded; and when the appeal is not to oper- ate as a supersedeas, within ten days after the rendition of the judg- ment complained of. And until the expiration of said six days, Sunday excluded, no exe- cution shall issue upon any judgment of a justice of the peace where au appeal may operate as a supersedeas. And such undertaking, if entered into and submitted for approval within the times prescribed, shall be effectual when approved by tlie justice, although such approval be made after such prescribed times. 94. When a stay of execution of a judgment of a justice of the peace, without an appeal, is desired, the security shall be taken within the time prescribed for entering the undertaking where an appeal is to oper- ate as a supersedeas. 95. Where any undertaking or security is to be approved by a justice of the peace the proceedings shall be similar to those prescribed by rule 105. 96. As soon as the appellant shall have made the deposit for costs ■•required by law, or obtained leave from one of the justices or from the court to prosecute his appeal without a deposit, the clerk shall docket the cause and issue a summons for the appellee to appear at the next trial term of the court, occurring ten days after the rendition of the judgment of the justice of the peace. Sec. 2. If the appellant shall neglect to pay the marshal's fee for serving such summons, then the marshal shall return the summons "Not served because fee not paid," and thereupon, on motion, the court may dismiss said appeal. 97. If the appellant fail to prosecute his appeal, by making tlie deposit or obtaining the leave aforesaid, the appellee may make the deposit for costs, have the cause docketed, and move for affirmance of the justice's judgment; or he may liave a trial of the cause upon its merits. 98. The cause shall bo docketed according to its title before the jus- tice, thus : A. B., PLAINTIFF [aj^pellee], r. C. D., DEFENUANT [appellimt]. i No. — . COMMON-LAW RULES. 35 99. If the first summons for the appellee be returned " Not to be found," another summons shall be issued, returnable in ten days there- after, md if that be returned " Not to be found," and the appellee shall not appear, the case may then be heard and determined in the same manner as if the appellee had regularly appeared. 100. Every such appeal, if tried upon its merits, shall be heard upon the " allegations and proofs" adduced by both parties, or by the party appearing, and shall be determined " according to law and the equity and right of the matter." 101. Whenever a cause shall be removed from a justice of the peace by Avrit of certiorari, on the ground of the concurrent jurisdiction of this court, the subsequent proceedings in respect to the docketing and trial thereof shall be the same as provided in cases of appeals from justices of the peace. 102. Any justice of the peace may, in his discretion, within four days after judgment, open the same, and grant a new trial. 103. Upon the issue of a summons to commence a suit, by a justice of the peace, he shall, at the same time, issue a copy thereof, which shall be served upon the party or parties defendant; and for issuing the same the justice shall be entitled to a fee of ten cents for each copy. DELIVERY OF PAPERS TO ATTORNEYS. 104. The clerk shall not hereafter allow any original papers in any cause, at law or in equity, to be taken out of his custody, except by the auditor or by an examiner of the court, or by an attorney or solicitor of the court, as hereinafter provided. Sec. 2. The clerk may deliver such papers to the auditor when the cause has been referred to him by the court for a report or account. Sec. 3. When an examiner has been required to take testimony in a cause the clerk may deliver to him, upon application, such papers filed therein as are required for use in taking such testimony. Sec. 4. Where an appeal has been taken to the court of appeals in any cause instituted before the 12th day of May, 1890, the clerk may deliver the papers therein to the attorney or solicitor of record in such causes, upon his written statement that he needs the same for the pur- pose of preparing the record for hearing in the court of appeals; and the said papers when delivered to the applicant shall be kept carefully in his own custody by the attorney and solicitor who has receipted for them, and shall be returned to the clerk with all convenient speed. Sec. 5. A receipt shall in all cases be taken by the clerk in a book kept for the purpose, enumerating or sufiflciently describing the papers so delivered by him to the auditor, examiner, or attorney, or solicitor of record, and such pajiers shall be returned to the clerk with all con- venient speed. 36 COMMON-LAW RULES. Sec. 6. In no case shall the auditor or examiner allow any papers so delivered to him by the clerk, or that may be filed before him as evi- dence during the examination, to be taken out of his office by any per- sons, nor to-be examined by others, except in the office of such auditor or examiner. APPROVAL OF BONDS. 105. In all cases where a bond or undertaking, with surety, is required by law or rule of court to be executed and filed in order to suspend the entry of judgment, or to act as a supersedeas, or to discharge any mechanics' lien, or any property held under any process of attachmeut, replevin, or any other judicial process, and where such bond, with surety, is required by law or by rule of court to be approved by the court, or by one of the justices or the clerk thereof, such approval shall not be made except upon affidavit of two clear days' notice of application for such approval to the opposite party in interest; and without such notice such approval shall not be operative, and such notice shall contain the name and address of the proposed surety. INSUFFICIENT SECURITY. 106. The court, on being satisfied that the security in any bond or undertaking shall have become insufficient since the approval thereof may pass an order requiring such further security within a specified time as it may deem proper, and in default of compliance with said order such action may be had and such proceedings taken as if such original bond or undertaking had never been filed, or the court may pass such further order in the premises as justice may require. ADVERTISING. 107. Advertising done under the authority of the court shall be paid for at rates, per square of four lines of agate type, not exceeding the following. One square daily One square every other day. One square twice a week . . . One sqtiare daily One square every other day One square twice a week — 2w. $:i. 00 2.75 2.25 $0,75 $1.00 :i. 50 3.00 One square once a week, 75 cents each insertion, 2t. .$1. 00 i.as 1.25 M. 1.50 $1.50 2.00 5t. .$1. 75 2.50 $5.00 4.00 3.50 $9.00 6.50 .5.50 $12. 00 7.50 7.00 $22. 50 15.05 $2, 00 2.75 $37.50 27.50 22.50 COMMON-LAW RULES. 37 FILING PAPERS BY CLERK. 108. It shall hereafter be the duty of the cjlerk of this court, upon receiving and filing any paper in any cause, either at law or in equity, to note the date of filing the same both upon the back of the paper and on the face thereof, next to the title of the cause; and such date shall be marked also upon each exhibit annexed or prefixed to such paper, at the head and on the face thereof. Whenever a transcript of a record of a cause shall be issued by the clerk the copy of each paper entering into said record shall show, at the beginning and on the face thereof, the date of the filing of the same. And the date of the pas- sage of any order or decree included in such transcript shall be noted by the clerk at the head thereof. MEMBERS OF BAR NOT TO BE SURETIES. 109. No member of the bar or other otficer of the court shall here, after be admitted as a surety upon any bond or undertaking requiied for the performance of any decree or order of the court. CRIMINAL CALENDARS. 110. The clerk shall keep in his office a book to be known as the cur- rent criminal calendar, upon which he shall place every case as soon as the indictment is found, and in separate columns opposite each case the date of the finding of the indictment and the offense charged therein. He shall also keep another boOk to be called the "laid away" criminal calendar, and at the expiration of eighteen months from the finding of an indictment, if the cause is still pending, the clerk shall place the same on the "laid away" calendar, and write opposite the case in the current calendar "laid away," and after a case has been placed upon the "laid away" calendar the district attorney shall not assign the same for trial without giving to the defendant, his attorney or bail, at least ten days' notice thereof in writing prior to the day it shall be assigned for trial. As soon as convenient after the adoption of this rule the clerk shall prepare the calendars hereinbefore men- tioned, placing upon each calendar such of the causes then pending as may be directed by the justices holding the criminal courts for the time being, and all cases placed on the current calendar of more than eighteen months' standing at thie time the calendars are completed, shall be placed by the clerk on the "laid away" calendar at the expira- tion of six months from the completion of said calendar. The clerk shall furnish to each of the justices holding the criminal terms, a cojjy of so much of the current calendar as contains the pending causes on the first day of each term of the criminal courts. 38 COMMON-LAW KULES. CRIMINAL COURTS. 111. The common law rules shall apply to and govern the practice in the criminal courts so far as applicable. PLEADINGS. 112. Prolixity and unnecessary verbiage shall be avoided in all plead- ings. JE. g. DECLARATION. Commencement and conclusion. Jn the Supreme Court of the District of Columbia, the day 01? - 18— A. B., plaintiff, ) )■. V At Law, No. CD., DKFBNDANT. ) The plaintiff sues the defendant for — [here state the cause of action, and conclude as follows, or to the like effecf^. And tlie plaintiff claims $ , with interest thereon from the day of , 18 — , besides costs. \_0r, if the action is for the recovery of specific goods, say — ;] And the plaintiff claims a return of said goods, or their value, and $ , for their detention. If the course of action accrue to or against the parties in some special character, for example, as executor, or ADMtNiSTRATOR, or trustee, or assignee, in bankruptcy or otherwise or as a corporation, partners, or surviving partner, or as hus- band AND wife, it will promote brevity and clearness to state such character in the title of the cause, thus : A. B., Executor of , Deceased, Plaintiff, ) XI. > At Law, Xo. — . C. D., Administrator op— , Deceased, Defendant. ) The plaintiff sues the defendant for — [state the cause of action, and conclude as a Joi'e] . The special character in which the plaintiff sues shall not be consid- ered to be in issue or necessary to be proved, unless, by specific plea under oath as to the truth thereof, the same be denied. ON SIMPLE CONTRACTS. MONEY COXTNTS COMBINED. Sec. 2. These may be combined in a single count, as pointed out by Williams, 2 Saunders, E., 121 c, n. 2, Stevens on PI. 33 — London, 1860— thus: I. For money payable by the defendant to the plaintiff for goods sold and deliv- ered by the plaintiff to the defendant ; and for work done and materials provided by the plaintiff for the defendant at his request, and for money lent by the plaintiff to the defendant; and for money paid by the plaintiff for the defendant at his request; and for money received by the defendant for the use of the plaintiff; and for money COMMON-LAW RULES. 30 found to lio. duo from Iho. doJi'iiiliiut. to the j)l;iiutiir on iiccouiits st.'itod butwccn them. And the phiintiff claims $ . with Interest from the day of , 18 — , according to the particulars of demand hereto annexed. And the plaintiff may recover the whole or any part of his claim on any one of the considerations stated. MONET COUNTS SEPARATE. For goods sold. — For goods bargained and sold by the plaintiff to the defendant. For goods sold and delivered. — For goods sold and delivered by the plaintiff to the defendant. For money lent. — For money lent by the plaintiff to the defendant. • For money paid. — For money paid by the plaintiff for the defendant at his request. -For money reoeived. — For money received by the defendant for the use of the plain- tiff. For interest. — For interest upon moneys due and owing from the defendant to the plaintiff, and for the foibearauce of interest, by the plaintiff at the defend- ant's request, of moneys due and owing him by the plaintiff. On an account stated. — For money found to be due from the defendant to the plain- tiff" on accounts stated between them. ON BILLS AND NOTES. Sec. 3. Where money is payable by two or more persons, jointly or severally, as by joint obligors, covenantors, makers, drawers, or endorsers, one action may be sustained and judgment recovered against all or any of said parties by whom the money is payable, at the option of the plaintiff. (14 Stat., 405 ; § 20.) Holder of note against all the parties. — That the defendant — — , [i/ie mnler,} on the day of , 18 — , by his promissory note, now overdue, promised to l)ay to the defendant , [_payee,'] [or order,] $ [two] months after date, and the said payee endorsed the said note to the defendant , who en lorsed it to the defendant , who endorsed it to the plaintiff, and the said note was duly presented for payment and was dishonored, whereof all of said endorsers each had notice, but the said defendants did not, nor did either of them, pay the same. Holder of bill against all the parties. — That , on the day of , 18 — , by his bill of exchange, now overdue, directed to the defendant ^drawee'], required him to pay to the defendant — , [^payeel [or order], $ [two'] months after date, and the said [payee] endorsed the said bill to ■ who endorsed it to , who endorsed it to the plaintiff, and tl le said drawee accepted the said bill, which was duly presented for payment, and was dishonored, whereof the defendants had due notice, but did not pay the same. Payee against maker of note. — That the defendant on the day of , 18 — , by his promissory note, now overdue, promised to pay to the plaintiff $ [two] months after date, but did not pay the same. The nice on note payable on demand. — That the defendant on the day of , 18 — , by his promissory note, now overdue, promised to pay to the plaintiff' $ on demand, but did not pay the same. The like on note payable at a banker's. — That the defendant on the day of - 18 — , by his promissory note, now overdue, promised to pay to the plaintiff' at Messrs. Riggs & Co.'s, bankers, Washington [as In the vote],$ , [two] months after datu, but did not pay the same. 40 COMMON-J.AW RULES. Ilintiirsee ugainsl malcer of itulv. — That tUc dcreudiiiit, ou the (layoff , 18 — , Ijy liis promissory note, now overdue, promised to pay to , or order, $ , [two] months afterdate; and the said endorsed the same to the plaintiif ; but the defendant did not pay the same. Sec. 4, PLEA. Commencement and conclusion. Iff THE SUI'RKMB COURT OP THE DISTRICT OP COLUMBIA, THE DaY OP , 18—. A. B., PLAINTIFF, ) V. / At Law, No. — . C. D., DBPBNDANT. ) 1. The defendant says [state first defense or plea]. 2. And for a further plea defendant says [state ihe second defense or plea] . 3. And for a further plea the defendant says [state the third defense or plea, and so on] . Jf the plea is to part only of the declaration, say — And for a further plea to [stating to what it is pleaded], the defendant says. Every second and subsequent defense or plea must he written in u separate paragraph and numbered. Sec. 5. KEPLICATION. In the Soprbme Court of the District of Columbia, the Day of , 18—. A. B., plaintiff, ) V. > At Law, No. — . C. D., defendant. ) The plaintiif joins issue upon the defendant's [first plea], [so much of the first plea as alleges that, etc.,] [specifying what or zchatpart]. To plea containing new matter. For example : 1. To plea of release. — That the alleged release is not the plaintiff's deed [was procured by defendant's fraud]. 2. To plea of set-ofi'. — That the alleged set-off did not accrue within three years beibre this suit. 3. To plea of self-defense. — That the plaintiff was possessed of land whereon the defendant was trespassing and doing damage, whereupon the plaintiff' requested the deii'ndant to leave the said land, which the defendant refused to do, and thereupon tlie plaintiff gently laid his hands on the defendant in order to remove him, doing no liiore than was necessary for that purpose, which is the alleged first assault by the plaintiff'. 4. To plea of right of way. — That the occupiers of the said land did not for twenty years before this suit enjoy as of right and without interruption the alleged way. 5. To plea of no such record — That there is not any record of the said recovery [recognizance] [im-it] in the said plea mentioned remaining in the said court, [sa\A circuit court of Montgomery County in the State of Maryland,] as in the said plea alleged. Rcplicatiov confessing pari of aj'lea of payment.— AnA. as to the defendant's second plea, except so far as it is pleaded and relates to the sum of $ —, parcel of the money claimed, the plaintiff confesses and admits that the defendant did satisfy and discharge by payment, as iu the said plea alleged, the plaintiff's claim as to the said sum of $ , parcel, etc., and the plaintiff says that he will not further prosecute his suit against the defendant as to said sum of $ , parcel, etc.; and as to the residue of the defendant's second plea the plaintiff takes issue thereon. COMMON-LAW RULES. 41 Iteplivntion admitting part of a plea of sel-off. — The plaintiff t.ikos issue on the defendant's second plea, except so far as relates to the sum of $ , parcel of the amount in which J}he plaintiff is therein alleged to be indebted to the defendant; and as to that plea, so far as it relates to those sums, parcels, etc., the plaintiff admits that he was and is indebted to the defendant in the sum of $ , parcel of the money in which he is, in that plea, alleged to be indebted, and the plaintiff is will- ing to set off the said sum of $ , parcel of the money claimed by him, against the said sum of $ , in which he was and is so indebted to the defendant, and he does set off the same accordingly, and says that he will not further prosecute his claim or suit against the defendant for or iu respect of the same. Sec. 6. rejoinder. In the Supreme Couut of the District of Columbia, thf. day of 18—, A. B., PLAINTIFF, ) I'. > At Law, No. • C. D., DEFENDAXT. > 'i'he defendant joins issue upon the plaintiff's replication to the defendant's [ph-ae,2 [^first plea ,} Iseoond pka,'\ [«s the case ma i/ he'\. Sec. 7. DEMUEKEB. In THE Supreme Court of the District of Columbia, the bay of 18—. i«t. ) A. B., PLAINTIFF, V. ^ At Law, No. — . CD., defendant The defendant [plaintiff '] says that the declaration [plea} is bad in substance. [Insert in the margin, or below the demurrer, the following :} Note. — One of the matters of law intended to be argued is thai. etc. [State tke ground of, the demurrer concisely.'] INDEX TO COMMON-LAW RULES. Page. Account betwkkn pauties — may loe referred to auditors, when proceedings on reference may be referred at any stage of rase auditor shall state and file report judgment on auditor's report exceptions to auditor's report affidavit to exceptions actions on, when account to he vciified by alii(!a\ it Actions, civil — how commenced in cases of appeal from justice of the peace deposit to be made separate, may be consolidated different causes of, how tried of ejectment must be brought in name of real party of ejectment, action for mesne profits may be united with ACTIOKS, EX contractu — rule as to when affidavit filed with declaration and plea , judgment in, unless for part of claim when rule does not apply rule as to corporation defendant, who may make affidavit . rule in case of several defendants for an unliquidated sum, when court shall award an injury by a jury how verdict of jury shall be announced Administrators and executors — when verdict against, shall be referred to auditors auditor's report as to assets judgment against, on auditor's report showing assets, shall be that further reference to auditor on execution, what may be taken discovery of further assets in hands of Admission to thb bar — rule as to form of oath of attorney deposit to pay for printing, etc clerk's fee for certificate Admission of docCmbnts — notice to admit, to save costs of proviug form of agreement (special) to admit, form of 46 46 46 46 46 46 46 73 6 6 6 4U 41 73 73 73 73 73 73 65 66 66 47 71 71 71 71 71 2 2 2 2 31 31 31 43 44 INDEX To COMMON-LAW KULES. Adveriising — rates to be paid, when done by authority of the coiirta AFlflDAVIT — in attachment for rent to be filed with petition for certiorari Betting forth cause of action to be filed with the doelaiation, in what oases of publisher to be proof of publication of defense, when to be filed with plea where part liability is admitted to be filed with declaration for replevin must accompany plea to sci. fa. on judgment AfiREBD ISSUES OF FACT — after service of declaration and summons, may be stutcd in writing Appeal to Coukt of Appeals — to be taken and perfected within twenty days not to operate as a supersedeas unless bond or nndertaliing is filed within twenty days Al'PEAL FEOM justice OF THE PEACE — justice papers and transcript of docket to be filed in clerk's office refusal or neglect to file papers, either party may have rert'wrari appellant must give security undertaking in, how approved when stay of execution is desired clerk shall docket cause, when on neglect to pay marshal's fee, appeal to be dismissed by the court if appellant fail to prosecute how cause shall be entitled proceedings when appellee fails to appear appeal to be heard on " allegations and proofs " when cause removed by certiorari justice, may grant new trial Al'PEARAKCE DAY — what is Approval of bonds and undertakings — rule as to Ariutrators— rule as to reference to what causes may be referred to copy of award of, must be delivered to adverse parly tlirec days before motion for judgment if no award of, returned within eight months in case of death of either party before award returned, how arbitrator may proceed Ai.'(Ji:ment of causes AliUEST of judgment — rule as to when motion for, may be filed motion for, and for new trial may be heard together motion for, must be in writing and signed by counsel Attachment and garnishment — before judgment, when writ may issue affidavit, how supported plaintiff's undertaking in, form of form of writ before judgment defendant's undertaking proceedings in interrogatories to garnishee verdict and judgment against garnishee, in what cases condemnation, j udgment of, in after judgment, form of writ interrogatories to garnishee may be exhibited within ten days after service condemnation, judgment of Rule. Page. 107 3G 13 11 15 12 73 28 17 13 73 28 73 I'M 14 11 87 33 18 14 80 30 80 30 6 7 91 92 93 94 96 96 97 98 99 100 101 102 11 105 15 ' 45 ! 15 , 45 58 58 58 58 12 12 12 12 12 12 12 12 85 86 86 INDEX TO COMMON-LAW EULES. 45 Attachment and garnishment — Continued. for rent, proceedings in affidavit in form of writ in suit by, publication may be substituted for personal serv- ice, when judgment in suits by Al'TOKNBYS — oath of, on admission to bar delivery of papers to Auditors— rules respecting reference to duty of, to file report and give notice judgment on report of exceptions to report of when placed on trial calendar , when overruled reference to, in cases against administrators or exccutdrs Award {See Arbitrators) B. Bill op exckptions — how made when settled to be drawn up by counsel tendering it when notice of, to opposing counsel if judge unable to settle, new trial to be granted made part of record and noted on min utes of the court Bills and notes— payable by two or more, one action may be sustained on forms of declaration ". form of pleas BOXD — in attachment before judgment, form of plaintififs' form of defenda u ts' in replevin, plaintiffs' undei'taking, form of on appeal, from justice of the peace how approved to stay execution time for filing approval of notice of application for approval no member of the bar or officer of the court to be admitted as surety on Books and writings — rule as to production of motion for order to be in writing filing in clerk's office deemed a compliance time to comply may be enlarged, how j udgment on failure to comply, how given C. Calendar — cases entered on, according to the date of issue case placed on, by consent, when trial, cases on, how tried case on, not tried at first term shall stand for trial on next trial calendar without further notice given law, cases on, how tried cases on, how transferred to trial calendar criminal Causes of action (see Actions) Certioeari — motions for, how heard on the ground of concurrent jurisdiction to justice of the peace proceedings in, same as on appeal from justice of the peace... Eule. 13 11 13 11 13 11 17 13 63-64 26-7 2 6 104 35 46 21 46 22 46 22 46 22 46 22 46 22 47 22 45 21 54 25 54 25 55 25 55 25 56 25 57 25 112 39 112 38 112 40 12 9 12 10 14 11 92 34 93 34 94 34 93 34 105 36 105 36 109 37 32 18 32 18 32 18 32 19 32 19 35 19 35 19 36 19 37 19 38 19 39 20 110 37 6 7 15 12 15 13 101 35 101 35 46 INDEX TO COMMON-LAW EULES. ClIAMBEKS — orders obtaiuecl at, not presumed to be known to adverse party witliovit proof of notice CiKcuiT Court — terms of Clerk — shall reside iu the District ofSce hours of Commencement of suit — rule as to deposit to be made ■without deposit, when CONUEMNATION — judgment of, against garnishee Consolidation of causes — rule as to Cokporation — affidavit of defense may be made, how Costs— when j udgraent must be without iu case of set-off when defendant may move to limit may be imposed upon attorney or proctor who has multiplied them unreasonably imposed on party refusing to admit documents proved at trial, when clerk's fee for copies charged as security for, by nonresident plaintiff deposit for clerk's Court — terms of clerk of, duties of, to note date of filing officer of, no, admitted as security on bond papers, delivery of, to attorneys Counts — money, combined separate Criminal Court — common law rules shall govern Page. D. JJajiagks — assessment of, in forcible entry and detainer in attachment, on failure of garnishee to answer D icclabation — in ejectment, must be in name of real party plaintiff in, may unite with, an action for mesne profits how person not named may be permitted to defend in forcible entry and detainer, rule as to , copy of an affidavit to be served with writ , notice to plead must be subscribed to every must state substantive facts only commencement and conclusion of, form of 1 ii;i.ault (see Judgment) 1 IKI'ENDANT — may be notified by publication, when failure of, to appear , ])i:mukrer — form of , - - - , joinder in, not necessary cause of, to be stated iu margin , may be set aside, for what iu criminal cases no final judgment on how heard .,,,,,.. ^ .... , , 4 3 1 1 li 6 6 12 40 73 70 69 74 76 77 78 6 3 108 109 104 112 112 111 9 12 8 9 16 10 23 112 61 17 44 28 28 28 28 28 38 INDEX TO COMMON-LAW RULES. 47 Deposit — to be made with clerk on commencing of suit suit may be bejjnn without, by order of court in appeals from justice of the peace Detainer— forcible entry or, rule as to defendant may plead title plea of title in, form of not made as provided to be treated as a nullil.v upon plea of title proceedings to be certified to the Supruiiic Court declaration to be filed during the first five days of the term next after pleading of title .' assessment of damages and intervening rent in DlVOIiCK — in suits for, when publication may be substituted for jiersonal service Docket — duty of clerk to enter suii;s in Documents — notice to admit, rule as to cost of proving form of notice to admit consent to admit special admission E. Ejectment — rule as to action of declaration in, to be in name of real party must specify what when action for mesne profits may be joined with when landlord and others may defend judgment by default in, how taken Exceptions (see Bill of Exceptions) Execution — stay of, on motion to set aside judgment when to issue writ of, returnable in 60 days for recovery of land, form of special, when to issue _ in replevin, form of where money only recovered against administrators stay of, on judgment of justice of the peace without appcnl .... not to issue on judgment of justice of peace within six days Exec UTOKS (see Administrators) E. FOKCIBLE ENTRY OR DETAINER (see Detainer) Forms— oath of attorney plea of title in forcible entry or detainer . . . notice to plead summons , attachment, plaintiff's undertaking in writ before judgment defendant's undertaking in interrogatories to garnishee in. for lent; aflSdavit in writ of after judgment, form of writ .. repleyiu, affidavit in plaint j.li''g undertaking in 17 31 31 31 31 31 68 54 62 81 81 82 83 84 85 71 94 93 47-71 2 6 9 7 10 8 11 8 12 9 12 9 12 10 12 10 13 11 13 11 85 31 14 11 14 12 48 INDEX TO COMMON-l.AW RULES. Forms— Continued. replevin, writ of de retorno pabendo, writ of publication of notice to appear, form of order of. joinder in issue demurrer puis darrien continuance, form of plea of affidavit to notice to admit documents admission of documents special notice of trial note of issue verdict, general, for plaintiff for defendant on several counts special subject to opinion of tlie court judgment - writ of possession for recovery of land fieri facias scire facias on judgment of declaration, commencement and conclusion. money counts bills and notes of picas, commencement and conclusion of replication of rejoinder of demurrer and marginal note Frivolous uemurkkr — may be set aside 14 84 17 27 28 29 29 31 31 31 33 34 tfl 49 49 .50 51 59 82 85 87 112 112 112 112 112 112 112 28 G. GARNisHArKXT (see Attachment) Garnishee — must file bis answer wi thin ten days failing to appear or answer, judgment of condemnation against. General Term — terms of tbe, wben held H. Habere iacias possessionbm- form of writ of I. Insufficient security — when surety shall have become insolvent, rule resi)cctiny Interlocutory orders — at chambers, rule as to to be entered in minutes Interrogatories — in attachment and garnishment before judgment after judgment Issues — of fact, agreed, may be stated in writing for trii\l how tried of law, note of, what it must contain Joinder — in issue in demurrer, not necessary. 12-85 12 12 82 106 4 ^ 5 12 18 36 34 27 28 INDEX TO COMMON-LAW RULES. 49 Page. Judgment — not to be entered until fifth day after verdict no formal conclusion or prayer for necessary on award of arbitrator, what necessary boJoro moving for... award of, form of when for the plaintiff defendant either party arrest of, motion in, rule as to for money only, form of by default, generally when entered may be set aside, how on attachment and garnishment , by judgment of condemnation of a credit in actions ex contractu, for want of affidavit of defense in actions ex contractu, may be entered against such of several defendants who fail to appear. . . in what cases the court shall award an inquiry how verdicts shall be awarded in such cases in ejectment, how taken in replevin, how entered in case of set-off when verdict is for less sum than amount for which court has jurisdiction. 1 on auditor's report of assets on an award against nonresident for want of security for costs. w^hen execution may issue of justice of the peace, stay of execution on JUBISDICTION — certiorari to justice of peace on ground of Justice of the peace — appeals from removal of cause from, by certiorari certiorari to, on failure to send up papers undertaking on appeal from " no execution to issue on judgment of, for six days stay of execution on judgment of ' . approval of undertaking by _[\\ clerk shall docket cause, when ..'..' if appellant fail to pay marshal'sfees, how dismissed ...... is appellant fail to prosecute, what proceedings how cause shall be entitled on return of summons' for appellee " not found" ...!!!!!..]' appeal from, how tried causes removed from, by certiorari, how tried may grant new trial '.......'. copy of summons shall be served on defendant ...!]!!!!]" L. Laid away calendar Land — form of execution on judgment for recovery of Landlord and tenant (see Ejectment and forcible eii try and detainer) M. Mandamus — rule as to Makshal — all process to be served by return of prima facie evidence . . . what return of writ must show. . Members ov the uak— not admitted as surety on bonds. 16252 4 53 25 45 59 66 66 66 58 59 61 61 63 I 64 73 65 66 66 68 67 69 70 71 72 78 62 94 15 6 15 91 92 93 94 95 96 96 97 98 99 100 101 102 103 110 82 7-9 15 16 16 16 109 50 INDEX TO COMMON-LAW RULES. Mesne pkofits — action for, may be joined with ejectment Minutes — of the court, what are the Money — unliquidated sums of paid into court, how deposited and disbursed cleric shall keep true account of , clerk shall submit report of, to the general term form of judgment for the recovery of counts combined separate Motions — for new trial must be in writing and within four days after \ er- dict to be deemed overruled if not heard and decided at same term unless continued by special order of the court , shall be granted if bill of exceptions can not bo settled to vacate judgment, rule as to must be made in writing and copy served to quash special writs Mutual accounts — rule as to Rule. N". New tfual {see Motions) NON APPEARANCE— at trial of both parties, rule as to pl.aiutiff defendant judgment by default against defendant judgment by default against defendant after jjub- lication of defendants in actions ex contractu judgment by default against such as fail to appear '. in replevin, judgment by default for, after publi- cation ., , Nonresident plaintiff — must give security for costs Note i >i' issue — must contain what N^)TICi: TO PLEAD — form of, to be subscribed to every declaraticm Notice to admit documents (see Documents) i Notice ov teial— rule as to form of.... Notices — when by publication, in what suits to be published in Washington Law Reporter 0. Oath of attorneys — on admission to bar , . . . form of Orders — interlocutory, rule respecting of publication P. Papers — delivery of, to iittorucys . . Parties — nonappearance of at trial 66 S!) HO 90 59 112 112 53 53 15 46 53 Page. 33 33 33 2G 38 38 24 24 30 lis 13 21 24 12 13 44 61 21 21 21 21) 63 26 65 27 67 27 78 29 34 19 10 31 8 17 33 33 19 19 17 17 13 14 2 6 6 4 17 6 14 104 35 42 31 INDEX TO COMMON-LAW RULES. 51 Parties — Continued. nonappearance of plaintiff of defendant Paktition — in suits for, publication may be substituted for personiil soi\ - ice, when Plea — must state true defense no formal conclusion to, necessary in abatement must be sworn to after last continuance, form of must be accompanied by an affidavit as to triitlj affidavit to, form of Pleading — order of, rule respecting.... to be signed by party or by counsel to be fairly and legibly written or printed copy of, to be served on opposite party or liis attorney time of defendant must plead or demur for may be enlarged no formal conclusion or prayer for judgment necessary in any defects in which are subject of special demurrer may br stricken out on motion ." Possession — form of writ of PllOCESS — form of summons writ returnable, when . service of, by marshal in case marshal a party to the suit by publication, when PllODUCTION OF BOOKS AND WRITINGS — rule as to Publication — when substituted for personal service, rule respecting Q. Quashing — writ of quo tvarrauto, mandamus, ceiilorari, how motions for, may be heard Quo WARRANTO — motion for, how heard R. Kecord — settling and filing bill of exceptions to be made a part of the. . Eeekrence — to arbitrators, rule as to to auditor, rule as to Rejoinder — when to be filed form of Eemedial writs — special, rules relating to Repleader — in what case court will order Replication— rule respecting form of Replevin — rule respecting , declaration, affidavit in, must state, what form of undertaking in, form of writ of, form of .'. marshal to retain property judgment by default in 43 44 17 24 25 19 29 29 29 19 20 20 21 21 21 28 82 11 11 16 16 17 32 17 15 15 5/ 45 46 26 112 15 48 26 112 14 14 14 14 14 14 67 52 INDEX TO COMMON-LAW RULES. Retobno Habendo, writ of KULE-BOOK — to be kept in clerk's office clerk shall enter in, what. S. Skcukity (See Bond) — for costs in case of nonresident plaintiff insufficient no member of bar or officer of court to be admitted as, on bond or undertaking '. Sbparate actions — may be consolidated, when Set-off — form of judgment on verdict when set-off pleaded Scire facias — on judgment, form of of affidavit to plea to Sl'ECIAL — remedial writs, rules resiioctiug motions to quash, how heard verdict, rule as to Stay of execution — rule as to on appeal to the court of appeals 8 TBT calendar 1 Suits (see Actions) Summons — form of returnable, when to be accompanied with copy of declaration, affidavit, ami notice to plead Supersedeas — rule respecting T. Terms of court — when held Trial — notice of, rule as to form of nonappearance of parties at of plaintiff' of defeudaut ; rule respecting consolidation .". separation new (see New trials) Trial calendar (see Calendar) U. Undertaking (see Bond)... Unliquidated sums of money — in actions for, when inquisition awarded. Vacating judgments — motion for must be made in writing Verdict — forms of, rule as to general for plaintiff, how recorded for plaintiff, if action founded on contract defendant, if action be founded on contract upon set-off pleaded and balance found for the defcudiiut. in case of several counts in declaration special, rule as to form of subject to opinion of the court 78 106 109 41 87 87 15 15 50 62 80 39 fi 11 a 16 80 33 33 4,2 ■13 44 40 41 53 35 12-14 66 79 49 49 49 49 49 19 50 51 INDEX TO COMMON-LAW RULES. 53 Vebification of declakation — in action ex contractu W. "Washington Law Reporter (see Publication) Writings, Books, etc. (see Documents) Writs — forms of (see Forms) special remedial, rule as to motion to quash Rule. Page. 73 17 31 11-14 15 15 28 14 17 8-12 12 13 EQUITY RULES. RETURN, APPEARANCE, OR ROLE DAY. 1. The first Tuesday of every month shall be the return day of proc- ess, appearance day of parties, and the day on which lules or orders may be made in the clerk's office to speed any cause depending in the court. And the term return day, appearance day, or rule day always designates the first Tuesday of the month to which it relates. COURT TO BE DEEMED ALWAYS OPEN FOR PREPARATION OF CAUSES. 2. The court of equity shall be deemed always open for the purpose of filing bills, answers, and other pleadings; for issuing and returning mesne and final jjrocess and commissions; and for making and direct- ing interlocutory motions, orders, rules, and other proceedings, pre- paratory to the hearing of causes upon their merits. INTERLOCUTORY ORDERS. 3. Any justice of the court may, at chambers (as well in vacation as in term), make and direct all interlocutory orders, rules, and other pro- ceedings, preparatory to the hearing of causes upon their merits, in the same manner and with the same effect as the court could make and direct the same in term ; reasonable notice of the application therefor having been previously given to the adverse party, or his solicitor. ORDER BOOK. An order book shall be kept by the clerk in his ofBce, in which the attorneys or solicitors may enter orders or directions to the clerk relat- ing to the preparation and calendaring of causes, which book shall be open at all office hours to the free inspection of the parties in any suit in equity and their solicitors. 56 EQUITY RULES. MOTIONS GRANTABLE OF COURSE. 4. All ai>plications in the clerk's office for the issuing of mesne proc- ess and of final process to enforce and execute decrees, for filing bills, answers, pleas, demurrers, and other pleadings, shall be deemed appli- cations to be complied with of course. NOTICE OF MOTION, WHEN REQUISITE. 5. All motions for rules or orders or other proceedings, which are not grantable, of course, or without notice, shall be heard on two days' notice, except when otherwise provided for by law, and a copy of the affidavits or papers upon which said motion is founded shall, together with the notice of motion, be served on the opposite party, if he has appeared, or his solicitor, at least two clear days before the hearing of said motion, unless the grounds of said motion are matter of record, iu which case it shall only be necessary to refer to such parts of the record as are specified in the notice of motion. PROCESS. POKM. 6. The writ of subpoena shall be the proper process in all suits in equity in the first instance to require the defendant to appear and answer the exigency of the bill. ISStTING. 7. No writ of subpoena shall issue in any suit in equity until the bill shall have been filed in the clerk's office. After such filing, tlie clerk shall issue the writ as of course, upon the application of the plaintiff. Where there are more defendants than one the plaintiff may sue out a subpoena separately for each defendant (except in case of husband and wife, defendants), or a joint subpoena against all the defendants. SERVICE. 8. The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or, iu case of husband and wife, to the husband personally, or, if such personal service can not be made, by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult per- son who is a member of or resident in the family. 9. Defendants shall not be required to file an answer, plea, or demurrer to any bill or petition, until all the exhibits referred to and prayed to be taken as part of said bill or petition, shall be actually exhibited and filed. EQUITY RULES. '^' EETUKN. 10. The writ of subpoena shall be returnable into the clerk's office on the next rule day occurring after ten days from the time of the issuing thereof. And at the bottom of the writ shall be placed a memorandum that the defendant is to enter Ms appearance in the suit in the clerk's office on or before the day at which the writ is returnable; othericise the bill may be taken pro confesso. RENEWAL. 11. Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to other subpoenas, toties qtioties, against such defendant, if he shall require it, until due service is made. BY WHOM SERVED. 12. The service of all process, mesne or final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case the person serving the process shall make affldavit of such service. DOCKETING SUIT. 13. As soon as the bill is filed the clerk shall enter the suit upon his docket as pending in the court and shall state the time of the entry. DEFENDANT'S APPEARANCE AND DEFENSE. TIME OP APPEARANCE. 14. A defendant served with subpoena must appear by the rule day first occuriiig ten days after service thereof. ENTRY OP APPEARANCE. 15. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order book, and docketed on the day thereof by the clerk. DEFAULT IN APPEARING. 16. In default of such appearance the plaintiff may, on application to the court, obtain an order that the bill be taken pro corifesso, and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at the next ensuing term thereof accordingly, if the same can be done without an answer or evidence and is proper to be decreed; or the plaintiii', if he requires any dis- covery or answer to enable him to obtain a proper decree, shall be 58 EQUITY RULES. entitled to process of attacLineut against the defendant to compel an answer; and the defendant shall not, when arrested upon such process, be discharged therefrom except upon filing his answer or otherwise com- plying with such order as the court or justice may direct, as to plead- ing to or fully answering the bill within a period to be fixed by the court or justice, and undertaking to speed the cause. SETTING ASIDE DEOKEE PRO CONFESSO. 17. When the bill is taken pro confesso the court may proceed to a decree at the next ensuing term, and such decree shall be deemed absolute unless the court shall, at the same term, set it aside or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant. But such motion shall not be granted unless upon the payment of the costs of the plaintiff in the suit up to that time, or of such part thereof as the court shall deem reasonable, nor unless the defendant shall undertake to file his answer within such time as the court shall direct, and shall submit to such other terms as the court shall direct for the purpose of speeding the cause. FRAME OF BILL. INTRODUCTION. 18. Every bill shall be divided into paragraphs, successively num bered, and shall contain the names and places of abode of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form of the introductory part thereof shall, in substance, be as follows : BILL IN EQUITY. In the Supreme Court op the District oir Columbia, the • day of , 18—. A. C. To the Supreme Court of the District of ColumMa holding an Equiti/ Court: The plaintiff states as follows: 1. He is a citizen of , [in the State of New York,] and brings this suit [in his own rifjlit] or [as assignee in bankruptcy of the late firm of , and , merchants in the city of New York], [stating the character in which lie sues.] 2. The defendant is a citizen of the United States and a resident of the District of Columbia, and is sued in this action [as executor of , deceased, late ot said District.] 3. That, etc. PARTS THAT MAY BE OMITTED. ' ' 19. The plaintiff' shall omit from his bill the following formal parts of a bill in chancery, viz, the confederacy clause, averring a confederacy L. B., PLAINTIFF, ) 1). VNo.— . . D., DEFENDANT. ) EQUITY RULES. 59 between the defendants to injure or defraud the plaintifl"; the charging clause^ setting forth the matters or excuses which the defendant is sup- posed to Intend to set up by way of defense ; and t\xe jurisdiction clause, averring ^.hat the acts complained of are contrary to equity, and that the defendant is without any remedy at law; and the bill shall not be demurrable therefor. BBASON FOE OMITTING PARTIES TO BE AVERRED, 20. If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties. BILL TO BE SIGNED BY COUNSEL. 21. To every bill the signature of counsel shall be annexed as an afflruiance on his part that, upon the instructions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. MATTER OF BILL TO BE BRIEF, RELEVANT, PERTINENT. 22. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in htec verba, nor any impertinent, scandalous, or irrelevant matter. Scandalous or imperti- nent matter shall, on motion, be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court otherwise order. If, on such motion, the court shall find that the matter of the bill is not scandalous or imperti- nent, the plaintiff shall be entitled to the costs of the motion. PRATER FOR PROCESS. 23. The prayer for process of subpcena shall contain the names of all the defendants named in the introductory part of the bill, and, if any of them are known to be infants, or otherwise under guardiansliii), shall state the fact, so that the court may, uijon the return of the proc- ess, take order thereon as justice may require. If an injunction, or a writ of ne exeat, or any other special order pending the suit, is asked for in the prayer for relief it shall not be necessary to repeat the same in the prayer for process. PRATER FOR RELIEF. 24. The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall ask for general relief; and if an injunction or a writ of ne exeat, or any other special order pending the suit, is required, it shall also be specially asked for. 60 EQUITY RULES. AMENDMENT OF BILLS. BEFORE COPT — AI^TER COPT. 25. The plaintiff may, as a matter of course, and without payment of costs, amend his bill in any inatters whatsoever before any copy has been taken out of the clerk's office; and in any small matters after- wards, such as filling blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form; and such amendments shall be noted by the clerk at the foot of the bill. But if he amend in a material point after a copy has been taken (as he may do, of course), before any answer or plea, or demurrer to the bill, he shall pay to the defendant the costs occa- sioned thereby, and shall, without delay, furnish him a fair copy thereof free of expense, with suitable references to the places where the amend- ments are to be inserted. And if the amendments are numerous, he shall furnish in like manner, to the defendant, a copy of the whole bill as amended; and if there be more than one defendant a copy shall be furnished to each defendant affected thereby. AFTER ANSWFIE. 26. After an answer, or plea, or demurrer is filed, and before replica- tion, the plaintiff may, upon motion or petition without notice, obtain an order from any justice to amend his bill on or before the next suc- ceeding rule-day, upon payment of costs or without payment of costs, as the court or a justice thereof may in his discretion direct. AFTER REPLICATION. But after replication filed the plaintiff shall not withdraw it and amend his bill, except upon a special order of a justice, upon motion or petition, after due notice to the other party, and upon proof by affi- davit that the same is not made for the purpose of vexation or delay, and that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff' submitting to such other terms as may be imposed by the justice for speeding the cause. LEAVE TO AMEND AACHEN DEEMED ABANDONED. 27. If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no appli- cation for any amendment had been made. EQUITY RULES. 61 DEMURRERS AND PLEAS. TERMS OF FILINa. 28. 15^0 demurrer or iilea shall be filed unless upon a certificate of counsel that in his opinion it is well founded in law, supported by the afBdavit of the defendant that it is not interposed for delay, and, if a plea, that it is true in fact. TO WHOLE OK PAKT OF BILL. 29. The defendant may, at any time before the bill is taken for con- fessed, or afterwards with the leave of the court, demur or plead to the whole bill or to part of it, and he may demur to part, plead to part, and answer as to the residue; but, in every casein which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea and explicitly denying the fraud and couibination and the facts on which the charge is founded. ARGUMENT OP OR ISSUE ON. 30. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. COSTS ON OVERRULING. 31. If, upon the hearing, any demurrer or plea is overruled, the plain- tiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant had good ground in Jaw or fact to interpose the same, and that it was not interposed vexatiously or for delay. And upon such overruling the defendant shall answer the bill, or so much thereof as was covered by the plea or demurrer, at the next succeeding rule-day, or at such other time as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done; in default whereof the bill shall be taken pro confesso, and the matter thereof proceeded in and decree accordingly. COSTS ON ALLOWING. 32. If, upon the hearing, demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its dis- cretion, upon motion of the plaintiff, allow him to amend his bill uiwn such ternis as it shall deem reasonable. ADMITTED TO BE TRUE AND SUFFICIENT, WHEN. 33. If the plaintiff' shall not reply to a plea, or shall not set down a l)lea or demurrer for argument, on the next rule-day (provided the same 62 EQUITY RULES. is filed five days before the commencement of the term), he shall be deemed to admit the truth and sufftciency thereof. DEFENSE BY ANSWER INSTEAD OP PLEA. 34. The rule that if a defendant submits to answer he shall answer fully to all the matters of the bill shall no longer apply in cases where lie nnght by plea protect himself from such answer and discovery. And the defendant may in all cases insist by answer upon all matters of defense in bar of or to the merits of the bill, of which he may avail himself by a plea in bar; and in such answer he shall not be compel- lable to answer any other matters than such as he would be compellable to answer and discover upon filing a plea in bar and answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defense. Thus, for example, a bona fide purchaser for a valuable consideration, without notice, may set up that defense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. NEW OR SUPPLEMENTAL ANSWER. 35. When the plaintiff amends after answer filed the defendant shall put in a new or supplemental answer within ten days after notice of the filing of the amended bill, unless the time is enlarged or it is otherwise ordered by a justice of the court; and upon his default the like proceedings may be had as in cases of an omission to put in au answer. PARTIES TO THE SUIT. PROCEEDING WITHOUT. 36. Whenever it appears to the court that persons who might other- wise be deemed necessary or proper parties to the suit can not be made parties because they can not be served personally or by publication, or are incapable otherwise of being made parties, the court may in its discretion proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. VERY NUMEROUS — ^DISPENSED WITH. 37. Where the parties on either side are very numerous, and can not, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having suffi- cient parties before it to represent all the adverse interests of the EQUITY RULES. 63 plaintiffs and the defendants in the suit properly before it. But in such (jases the decree shall be without prejudice to the rights and chiims of all the absent parties. BENEFICIARIES DISPENSED WITH. 38. In all suits concerning real estate which is vested by devise in trustees competent to sell and give discharges for the proceeds of the sale, and for the rents and protits of the estate, such trustees shall rep- resent the persons beneficially interested in the estateor in the proceeds or rents and profits in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such case it shall not be necessary to make the persons beneficially interested in such real estate, proceeds, or rents and profits, parties to the suit; but the court may, upon consideration of the matter on the hearing, if it shall think fit, order such persons to be made parties. WANT OF PARTIES SUGGESTED IN ANSWER. 39. When the defendant by his answer suggests that the bill is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument upon that objection only; and the purpose for which it is so set down shall be notified by an entry in the clerk's order book, to the following effect : " Set down, upon the defendant's objection for want of parties." If the plaintiff does not so set down his cause, but proceeds therewith to a hearing notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for leave to amend his bill by adding parties; but the court may, in its discretion, dismiss the bill. OMITTED PARTIES — SAVING FOR IN DECREE. 40. If a defendant, at the hearing of a cause, shall object that a suit is defective for want of parties, not having taken the objection by plea or answer, and therein specified by name or description the parties to whom the objection applies, the court may make a decree, saving the rights of the absent parties. NOMINAL PARTY, WHEN TO ANSWER — WHEN NOT. 41. A party, not being an infant, against whom no account, pay- ment, conveyance, or other direct relief is sought, need not, upon service of the subpoena upon him, appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill, but may do so at his option. If he does not appear and answer, he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the court shfvll otherwise direct, 64 EQUITY RULES. INJUNCTION. 42. N^o injunction or restraining order to suspend the ordinary busi- ness of a bank or a moneyed corporation, or to compel a defendant to refrain from doing any act, where the injunction will necessarily pro- duce great or irreparable injury to such defendant if the claim of the complainant be not sustained, shall be allowed except upon a direct application to the justice holding the equity court. Except when an injunction is to stay proceedings in an ordinary suit at law, or is against a judgment debtor who is made a defendant to a creditors' bill, no injunction or restraining order shall be issued except upon the precedent condition that the complainant execute and file ia the cause (with surety or sureties, if deemed necessary by the ju.-tice, and to be approved by him) an undertaking to make good to the defend- ant all damages by him suffered or sustained by reason of wrongfully and inequitably suing out the injunction, and stipulating that the damages may be ascertained in such manner as the justice shall direct, and that, on dissolving the injunction, he may give judgment thereon against the prin cipal and sureties for said damages in the decree itself dissolving the injunc- tion. GRANTING EX PARTE. 43. No preliminary injunction or ne exeat shall be granted ex parte unless prayed for in the bill, and the bill be verified in the manner pre- scribed in equity rule 89. NOTICE OP APPLICATION FOR. 44. The justice to whom an application for an injunction is made may refuse to allow it ex parte, and instead thereof may appoint a day for hearing the application, and to require the defendant, or, if there bo several defendants, such of them as he thinks proper, to be notified of the hearing for a reasonable time previously, subject to the provision of Eule No. 42, as to the undertaking to be filed by plaintiff. WHAT BILL FOR MUST STATE. 45. If the injunction prayed for be to stay proceedings at law, the bill nuist state whether an issue has been joined, or a verdict or judgment' obtained, a;nd the injunction, if granted, may stay all proceedings after issue joined, or permit the defendant to proceed to judgment, notwith- standing the injunction, without prejudice to the complainant's equities. TO STAY EJECTMENT OR REPLEVIN. 46. If an action of ejectment, or other suit at law to recover pos- session of land, or to recover possession of specific chattels, be at issue, no injunction shall be granted to stay the same until the complainant, EQUITY EULE8. 6^ with surety or sureties approved by the justice, has filed au undertaking in the suit to pay such rent and intervening damages as may be finally adjudged against the complainant, and stipulating that judgment may be given against the principal and sureties for the same if the hill he dismissed for want of equity . AFFIDAVITS ON APPLICATION FOR. 47. The application for an injunction or ne exeat, whether ex parte or upon notice, may be fortiiied by affidavits of third persons in support of the allegations of the bill or petition to be filed therewith; and ui)on motion of the defendant to dissolve, his answer may be supported, in like manner, by affidavits to be filed with said answer. MOTION TO DISSOLVE OE TO DISOHAKGE. 48. When an injunction or ne exeat is granted ex parte, the defend- ant, on due notice, may move to dissolve the injunction or discharge the ne exeat on the bill only; and if Ms motion be allowed it may be with or without costs, in the discretion of the justice. In this case the complainant shall serve a copy of the bill upon the defendant's solicitor within six days after he has entered his appear- ance and notice thereof; and if a copy of the bill be not delivered within said time the defendant may, upon due notice to the plaintiff, move to dissolve the injunction or discharge the ne exeat with costs. NOT DISSOLVED UNLESS ANSWER VERIFIED. 49. An injunction or ne exeat shall not be dissolved or discharged on answer, although the whole equity of the bill be denied by the answer, unless the answer is duly verified, provided the verification thereof is not waived by the plaintiff in the bill. REVIVOR AND SUPPLEMENTAL BILLS. REVIVOR. 50. Whenever a suit in equity shall become abated by the death of either party, or by any other event, it may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time; and iipon suggestion of the facts the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause be shown at the next rule day occurring after fourteen days from the time of the service of said process the suit shall stand revived, as of course. 16252 5 66 EQUITY RULES. SUPPLEMENTAL BILL. 51. Leave to file a supplemental bill may be granted by the justice holding the special term, or, in his absence, by any other justice of the court, upon sufficient cause shown, and notice of the application to the opposite party. If a supplemental bill be so filed the defendant shall demur, plead, or answer thereto on the next succeeding rule day after it is filed, unless some other time shall be assigned by a. justice of the court. MATTER OF. 52. It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit unless the special circumstances of the case may require it. ANSWER. TIME OP FILING 5 DEFAULT. 53. If defense is not made by plea or demurrer the defendant must file his answer by the rule day next succeeding that of entering his appearance. In default thereof the proceedings shall be the same as are prescribed in case of default in appearing. (Equity rule 16.) FRAME OF ANSWER. 51. The answer, after the introductory part of it, shall be divided into paragraphs in the same manner as the bill, and each paragraph in the answer shall correspond with the paragraph in the bill of the same number. AMENDMENT OF. 55. An answer may be amended, as of course, in any matter of form, as by filling up a blank, or correcting a date, or reference to a docu- ment, or in any other small matter, and be resworn at any time before replication or before the cause is set down for hearing upon bill and answer. But after replication, or such setting down for hearing, it shall not be amended in any such matter without leave of the court or of one of the justices, nor in any material matters, as by adding new facts or defenses or qualifying or altering the original statements, except by special leave of the court or a justice thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by affidavit. And the court, or the justice granting such leave, may require that such amendment be separately engrossed and added as a distinct amendment to the original answer, so as to be dis- tinguished therefrom. EQUITY RULES. 67 EXCEPTIONS TO ANSWER — TIME FOE PILING. 66. The plaintiff shall be allowed ten days after an answer is filed, and notice thereof is given to the plaintiff's solicitor, to file exceptions thereto for insufflciency, unless a longer time shall be allowed by a justice, upon cause shown; and if no exceptions shall be filed thereto within that period the answer shall be taken to be sufficient. EXCEPTIONS — ^WHEN TO BE HEARD. 57. Where exceptions to the answer for insufficiency are filed within the period prescribed by these rules, if the defendant shall not submit to the same and file an amended answer within ten days and give notice thereof to the plaintiff, the plaintiff shall forthwith set them down for hearing on the next succeeding rule day thereafter, before a justice of the court, and shall enter, as of course, in the order book an order for that purpose. If he shall not so set them down for hearing, the exceptions shall be deemed abandoned and the answer shall be held sufficient; provided, however, that the court, or any justice thereof, may, for cause shown, enlarge the time for filing exceptions or for answering the same, in his discretion, upon such terms as he may deem reasonable. ALLOWANCE OF EXCEPTIONS — ATTACHMENT, 58. When exceptions are allowed, the defendant shall put in a full and complete answer within ten days; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or he may have a writ of attach- ment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant shall not be discharged from cus- tody upon such writ except by an order of the court, or of a justice thereof, upon his putting in such answer and complying with such other terms as the court or justice may direct. COSTS OF EXCEPTIONS. 59. The party prevailing at the hearing upon exceptions to the answer shall be entitled to all the costs occasioned thereby, unless oth- erwise directed by the court or a justice. SEPARATE ANSWERS— COSTS OF. 60. When the same solicitor is employed for two or more defendants and separate answers are filed, or other proceedings are had separately by two or more of such defendants, costs shall not be allowed for such separate answers or other proceedings unless the court shall deter- mine that such separate answers or proceedings were necessary or proper and ought not to have been joined together. > In equity, No. ■ 68 EQUITY RULES. REPLICATION AND ISSUE. FORM OF REPLICATION. 61. No special replication to any answer shall be filed. The general replication may be in the following or equivalent form : In THE Supreme Court of the District of Columbia, the Dayof ,18—. A B, COMPLAIlSrANT, V. C D, DEFENDANT. The complainant hereby joins issue with the defendant [and will hear the cause on Mil and answer against the defendant], [and on the order to take the Mil as confessed against the defendant]. TIME OF FILINGS. 62. When an answer, being excepted to, is adjudged suflBcieut, the plaintiff shall file the general replication within ten days tiiereafter; and when an answer is not excepted to the plaintiff shall file the gen- eral replication within ten days after notice of the filing of such answer; and when the general replication is filed the cause shall be deemed at issue, without any rejoinder or other pleading on either side. NOT FILED IN TIME— WHAT. 63. If the plaintiff shall omit or refuse to file such replication within the prescribed period the defendant shall be entitled to an order, as of course, for a dismissal of the suit; and it shall thereupon stand dis- missed unless the court, or a justice thereof, shall, upon motion andfor cause shown, allow a replication to be filed, nunc pro tunc, the plaintiif submitting to speed the cause, and to such other terms as may be imposed. SETTING CAUSES FOR HEARING-. 64. No cause in equity shall be set down for hearing unless the same be at issue and ready for hearing, or be properly set down for hearing on bill and answer, or bill and answer and replication; and every such cause may be ordered by either party or his counsel to be placed upon the calendar, provided such order be given at least five days previous to the first day of the next term. Any cause once properly set down for hearing and placed upon the calendar, if not disposed of by the court, shall remain upon the calendar in its proper order, unless otherwise directed by the court. EVIDENCE. ANSWER, WHEN EVIDENCE. 65. If the complainant, in his bill, waive an answer under oath, or only require an answer under oath to certain specified paragraphs of his bill, the -answer of the defendant, though under oath, except such- EQUITY RULES. 69 parts of it as shall be directly responsive to such paragraph, shall not be. evidence in his favor unless the cause be set down on bill and answer only, but may nevertheless be used as an affidavit, with the same effect as heretofore, on motion to grant or dismiss an injunction, or any other incidental motion in the cause; but this shall not prevent a defendant from being a witness in his own behalf, under section 876 of the Eevised Statutes relating to the District of Columbia. DEPOSITION OP RESIDENT WITNESS. After the cause is at issue either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined, if they be in the District, shall be examined before one of the examiners of the courtj or by an examiner to be specially appointed by the court, the examiner to be furnished with a copy of the bill and answer, if any; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and reexamination, all of 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 either party request that the examination shall be by question and answer, and when completed shall be read over to the witness, and signed by him in the presence of the parties or counsel, or such of them as may attend; provided, if the witness shall refuse to sign the said deposition, then the examiner shall sign the same; and the exam- iner may, upon all examinations, state any special matters to the court as he shall think fit. And any question or questions which may be objected to shall be noted.by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions, and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. if a witness refuse to attend, or to be sworn, or to answer any ques- tion put by the examiner, or by counsel or solicitor, 'the fact shall be reported to the court by the examiner, when such order shall be made as may be deemed best. ITotice shall be. given by the respective counsel or solicitors to the opposite counsel or solicitors or parties of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. Wpen the examination of witnesses before the examiner is concluded, the original depositions, authenticated by the examiner, shall be trans- mitted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in section 865 of the Revised Statutes of the United States. 70 EQUITY RULES. DEPOSITION OP NONRESIDENT WITNESS. Where the testimony of nonresident witnesses is desired by either party, the court in term time, or any justice in vacation, may, on motion designating the names of such witnesses, appoint an examiner to take such testimony, to whom the clerk shall thereupon issue a com- mission under the seal of the court; and said testimony shall be taken on written interrogatories aud cross-interrogatories, which interroga- tories shall be filed in the clerk's office at least ten days before the issue of such commission, so that the adverse party may have oppor- tunity to file cross interrogatories. But the court or justice, for special cause shown, may direct that such testimony shall be taken orally. TIME POR TAKING. 66. Where the evidence to be adduced in a cause is to be taken orally, as provided in rule No. 65, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply; and no further evidence shall be taken in the cause, unless by agreement of the parties, or by leave of court first obtained, =on motion, for cause shown. PUBLICATION. 67. Immediately upon the return of the commissions and depositions containing the testimony into the clerk's ofiice, publication thereof may be made by the clerk. DE BENE ESSE. 68. After any bill filed, and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged or infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, upon the apph- cation of the plaintiff, issue a commission to such examiner or exam- iners, commissioner or commissioners, as a justice 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. PORM OF LAST INTERROGATORY. 69. The last written interrogatory to a witness maybe substantially. "Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this case, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer." EQUITY RULES. 71 CROSS-BILL FOR DISCOVERY ONLY. 70. Where a defendant flies a cross-bill for 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 original plaintiff to such cross-bill may be read and used by the party filing the cross-bill, at the hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used. PROCEEDINGS BEFORE THE AUDITOR. 71. Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the auditor to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct. 72. Whenever any m fitter is referred to the auditor, the party at whose instance or for whose benefit the reference is made shall cause the same to be presented to the auditor for a hearing on or before the next rule day succeeding the time when the reference was made. If he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the auditor at the costs of the party procuring the reference. 73. Upon every such reference the auditor shall, as soon as he rea- sonably can after the same is brought before him, assign a time and place for proceedings in the same, and give due notice thereof to each of the parties or their solicitors; and if either party fail to appear at the time and place appointed, the auditor may proceed ex parte, or, in his discretion, adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjourn- ment. The auditor shall proceed with all reasonable diligence in every such reference and with the least practicable delay, and either party may apply to the court, or a justice thereof, for an order to the auditor to speed the proceedings, and to make his report, and to certify to the court or justice the reasons for any delay. POWERS OP AUDITOR. 74. The auditor 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 production of all books, papers, writings, vouchers, and other documents applicable thereto; And also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination c ther witnesses 72 EQUITY RULES. 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 otlierwise, as hereinafter provided; And also to direct the mode in which the matters requiring evidence shall be proved before him; And generally to do all other acts and direct 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. WITNESS BEFOEB AUDITOR, COMMISSIONER, OR EXAMINER. 75. Witnesses who live within the District may, upon due notice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before an auditor or examiner appointed in any cause,, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, auditor, or examiner, requiring the attendance of the wit- nesses at the time and place specified, and shall be allowed for attendance the same coiiipensation as for attendance in court; and the refusal of any witness to appear, or to give evidence, shall be deemed a contempt of the court, which refusal being certified to the clerk's office by the commissioner, auditor, or examiner, an attachment may issue thereupon by order of the court or of any justice thereof in the same manner as if the contempt were for not attending, or for refusing to give testi- mony in the court. But nothing herein contained shall prevent the examination of witnesses viva voce in open court, if the court shall deem it advisable. But no subpoena duces tecum shall be issued in any case without the order of the court or of a justice thereof. FORM OE ACCOUNTING REPORE THE AITDITOR. 76. All parties accounting before the auditor shall bring in their respective accounts in the form of debtor aiid creditor, and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, in the auditor's office, or by deposition, as the auditor shall direct. DOCUMENTARY EVIDENCE BEFORE AUDITOR. 77. AH 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 before the auditor, and all papers pro- duced before the auditor shall be marked by him as filed. CREDITOR OR CLAIMANT EXAMINED. 78. The auditor shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interroga- EQUITY RULES. 73 tones or viva voce, or in both modes, as the nature of the case may appear to him to. require. The evidence upon such examination shall be taken down by the auditor or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if Jiecessary. COMPENSATION OF AUDITOR. 79. The compensation to be allowed to every auditor in chancery for his services in any particular case shall be fixed by the court in its discretion, having regard to all the circumstances thereof, and the com- pensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The auditor shall not be compelled to make out or return a report until his fees therefor be paid or secured to his satisfaction, unless the court to which the report is to be returned order it to be made out and returned without such payment or security. EXCEPTIONS TO REPORT OF AUDITOR. REPORT AND EXCEPTIONS THERETO. 80. The auditor, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk on the docket. The parties shall have one month from the time of filiug the report to file exceptions thereto, and if no exceptions are withia that period filed by either party the report may be confirmed. If exceptions are filed they shall stand for hearing before the court at the next sitting thereof. COST OF FRIVOLOUS EXCEPTIONS. 81. And in order to prevent exceptions to reports from being filed for frivolous caus&s or for mere delay, the party wliose exceptions are overruled shall, for every exception overruled, pay costs to the otlier party, and for every exception allowed shall be entitled to costs, to be fixed by the court in its discretion. DECREES. MISTAKES IN. 82. Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission may at anytime before an actual enrollment thereof, be corrected by order of the court or of a justice thereof, upon petition, without the form or expense of a rehearing. FORM AND SUBSTANCE OP. 83. In drawing up decrees and orders neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, 74 EQUITY RULES. nor any other prior proceeding shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as fol- lows: " This cause came on to be heard (or to be further heard, as the case may be) at this term, and teas argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz:^' [Here insert the decree or order.] EXECUTION OP DECREE FOR PAYMENT OP MONET. 84. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of fieri facias, or by attach- ment against real estate, goods, chattels, or credits of the defendant. EXECUTION OF DECREE FOR SPECIFIC ACT. 85. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the delivery of possession or the delivering up of deeds or other documents, it shall, in all cases, prescribe the time within which the act shall be done, of wliich the defendant shall be bound without further service to take notice; and upon affidavit of the plaintiff or his solic'.tor, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a justice thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party can not be found, a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. FOR DELIVERY OF POSSESSION. 86. When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. GUARDIAN AND PROCHEIN AMI. 87. Guardians ad litem to defend a suit may be appointed by the court for iufants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All iufants 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 other persons. EQUITY RULES. 75 REHEARING AND REVIEW. 88. Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, and shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded if an appeal lies to the court of appeals. But if no appeal lies, the petition may be admitted at anytime before the end of the next term of the court, in tbe discre- tion of the court. BILL OF REVIEW. No bill of review shall be filed unless within two years after the entry of the decree or order, with the exception spedfi«d in the proviso to section 1008 of the Eevised Statutes of the United States. OATH OR AFFIRMATION. 89. Whenever under these rules an oath is or may be required to be taken, the party may, in lieu thereof, if conscientiously scrupulous of taking an oath, make solemn affirmation to the truth of the facts stated by him. TERIPXCATION OP BILL, ETC. 90. Every verification of a bill, answer, or petition shall be to the following effect: "I do solemnly swear [affirm] that I have read [heard read] the [bill, answer, petition] by me subscribed, and know the con- tents thereof, and that the facts therein stated upon my personal knowledge are true, and those stated upon information and belief I believe to be true." SALES BY TRUSTEES. 91. Every trustee or other person authorized or directed by the court to advertise property for sale shall append to the advertisement his name and a reference to his place of business or residence; but he shall not enhance the cost of the advertisment by publishing the name or card of any person employed to cry the sale. Sec. 2. At every such sale the trustee or other officer or agent of the court making the sale shall be present, and shall himself in person receive the deposit required in such cases; and he shall in no case intrust the payment of the advertising and other expenses to the per- son employed to cry the sale. Sec. 3. In his report of the sale to the court the trustee or other per- son making the sale shall state under oath whether he has complied with the provisions of this rule. 76 EQUITY RULES. Sec. 4. The compensation of the person employed to cry any sale of real or leasehold estate, hereafter made by the authority or direction of the court, shall be one-eighth of one per cent of the amount for which the property shall sell: Provided, That such compensation shall not be less in any case than ten dollars. For an ineffectual effort to sell, such crier may be paid not exceeding Ave dollars. Such compensation shall be paid by the trustee and deducted from his commissions. DIVORCE. 92. When the defendant to a suit for divorce of either kind, or for nullity of marriage, is returned not fbuad, and is shown to the satisfac- tion of the court, by the affidavit of a disinterested person, to be a non- resident, or to have been absent from the District of Columbia for the space of six months the court shall grant an order of publication, stating the object and grounds of the application, which shall be pub- lished iu the Washington Law Eeporter, and also in a newspaper or newspapers published in the city of Washington or elsewhere, to be des- ignated by the court, for the space of three successive weeks, such num- ber of times in each week as the court shall direct; and a copy of the peti- tion shall be sent by mail by the clerk on or before the first day of publi- cation aforesaid, addressed to the defendant at his or her last known place of abode (which shall be stated in the petition and in the affidavits of a disinterested witness), and the mailing of such copy shall be certi- fied by the clerk to the court, and the complainant's solicitor shall also comply with the requirements of common law rule No. 17, sec. 7. 93. In all suits for divorce of either kind, or for nullity of marriage, the court shall order a reference to an examiner or commissioner to take proof of all material facts ; but in no case shall such reference be made to a person named by either i)arty. And after the completion of the testimony, all such cases shall be placed upon the calendar of the equity court before 1>he same can be heard; but when the defendant has been proceeded against by publication the testimony must be filed in court at least thirty days before the case shall be placed upon the calendar by the clerk. 94. No divorce shall be granted for adultery unless the petition, duly verified, charge that the adultery was committed without the consent, connivance, privity, or procurement of the petitioner, and that, after discovery of the offense, the petitioner has not voluntarily cohabited with the defendant. 95. If the suit be for nullity of marriage on the ground that the peti- tioner was under the age of consent at the time of the marriage, it shall be averred in the bill that the parties thereto have not voluntarily cohab- ited as man and wife after the petitioner attained said age. 96. If the suit be for nullity of marriage on the ground that the peti- tioner's consent was procured hy fraud, it must be averred in the petition EQUITY RULES. 77 that there has been no voluntary cohabitation between the parties as man and wife after knowledge of such fraud. 97. If the suit be for nullity of marriage on the ground of petitioner's lunacy, it must be averred in the petition that the lunacy still continues, or that the parties have not cohabited since the petitioner's restoration to reason. 98. Ail petitions for divorce, of either kind, or for nullity of marriage, must be verified in the mode prescribed in rule 90. 99. On reference to take proof of the facts charged in a petition for a divorce from bed and board, the examination of the petitioner, on oath or affirmation, may be taken as to any cruel or inhuman treatment alleged in the petition to have taken place when no witness was present competent to testify. 100. The defendant in the answer may set up the adultery of the petitioner, or any other matter, which would be a bar to a divorce or annulment of the marriage; and if an issue be taken thereon it shall be tried at the same time, in the same manner, as the other matters of the cause. PLEADINGS, ETC., TO BE WRITTEN LEGIBLY. 101. All pleadings and other proceedings, and copies thereof, shall be fairly and legibly written or printed and endorsed with the number and title of the cause; and if not so done the clerk may refuse to file the same. And no bill or petition shall be presented to the court until the same has been filed. COSTS OF COPIES. 102. The lawful fee for a copy of any paper on file in any cause or matter pending in the supreme court of the District of Oolumbia, fur- nished by the clerk to any party therein, shall be charged as part of the costs of the cause or matter, and collected as such. TABLE OF COMMISSIONS TO TRUSTEES AND OF ALLOWANCE IN LIEU OF DOWER. 103. On sales under decrees or orders of the court the following allowances are made to trustees : On the first $300, 7 percent $21.00 On the second $300, 6 per cent 18.00— $39.00 Oa the third $300, 5 per cent 15.00— 54.00 On the fourth $300, 5 per cent 12.00— 66.00 On the fifth $300, 3* per cent 10.50- 76.50 On the sixth $300, 3i per cent 10.50— 87.00 On the seventh $300, 3 per cent 9.00— 96.00 On the eighth $300, 3 per cent 9.00— 105.00 On the ninth $300, 2^ per cent 7.50— 112.50 On the tenth $300, 2i per cent 7.50— 120.00 78 EQUITY RULES. And three per cent on all above three thousand dollars, besides an allowance for expenses not personal. The above allowance subject to be increased in cases of postponement at the request of defendants or of extraordinary difficulty or trouble from other circumstances, and to be lessened in case of negligence, at the discretion of the chancellor. Table of allowance to a healthy woman in lieu of her right of dower in land sold under decrees. Under 30 years of age One-sixth. Above 30 and under 35 Two- thirteenths. Above 35 and under 40 One-seventh. Above 40 and under 45 Two-fifteenths. Above 45 and under 51 One-eighth. Above 51 and under 56 One-ninth. Above 56 and under 61 One- tenth. Above 61 and under 67 One-twelfth. Above 67 and under 72 One-fourteenth. Above 72 and under 77 One-eighteenth. Above 77 One-twentieth. INDEX TO EQUITY RULES. Page, A. Account — of personalty of deceased person Accounting — before auditor, form of Affirmation (see Oatli) Affidavit — on application for an injunction or ne exeat .. Amendment — of answer (see Answer) of bill, rule as to before copy after copy after answer after replication j when leave for, deemed abandoned .. when defendant to be given a copy of Answer — defense by, instead of plea new or supplemental, rule as to when want of parties suggested in of nominal party, rule as to time of filing, default frame of , attachment to compel . , amendment of, rule as to before replication after replication exceptions to, time for filing when to be heard allowance of costs of separate, costs of when evidence verification of, form of Appearance — and defense of defendant, time of entry of default in, rule as to and jiroceeditigs on day Assistance — writ of Attachment — to compel defendant to mate better answer. for failure to execute decree Attendancf- — in clerk's office, rule respecting Auctioneer — fees of, etc 71 76 89 47 35 25 25 25 26 26 27 25 34 35 39 41 53 54 58 55 55 55 56 57 58 59 60 65 90 14 15 16 1 86 58 85 91 79 80 IN])EX TO EQUITY RULES. AUDITOR — reference to and proceedings before directions to, on reference of every decree for an account of personal estate matter referred to, to be presented, when to fix time and place for hearing on failure of either party to appear, may proceed ex parte shall proceed with diligence powers of witnesses before, how summoned, etc form of accounting before documentary evidence before creditor or claimant may be examined by compensation of not compelled to file report until fees paid or secured unless otherwise ordered... report of, and exceptions thereto time of filing exceptions — costs of frivolous exceptions to report of B. Bank— injunction to suspend business of Bill in equity — frame of commencement what shall be omitted reasons for omitting parties must be averred , must be signed by counsel matter of, must be brief, relevant, and pertinent... scandalous or impertinent matter expunged on motion . amendment of. - demurrers and pleas to ■ prayer for process, to contain what for relief, to contain what beneficiaries may be dispensed with as parties, when.. verification of, form of Bill— of revivor of revivor, matter of supplemental supplemental, matter of - - - cross, for discovery only of review, time of filing verification of r.--? • Calendar — manner of placing causes on cause once placed on, to remain Claimant — before auditor may be examined Clerk'8 office — attendance in Commissioner — witness before Commissions — to take testimony Commission — of trustees, table of Copies — of papers, when furnished by the clerk, fee to be charged as part of the costs Costs— in setting aside decree pro confesao ■ of impertinent matter, etc ■ 71-73 71 72 73 73 73 74 75 76 77 78 79 79 80 80 81 42 18 18 19 20 21 22 22 25 25-28 23 24 38 90 50 52 51 52 70 88 90 64 64 78 2 75 65 103 103 17 22 INDEX TO EQUITY KULES. 81 Costs — Continued. of overruling demurrer or plea of nominal parties of exceptions to answer, when allowed or disallowed. of separate answers of frivolous exceptions to auditor's report of auditor, to be paid before sending in report of copies of papers, fee for, to be charged, how Counsel — . signature of, must be annexed to bUl Court — to be deemed always open Criwr of sale — fees of Cross bill — for discovery only answer to, and use thereof D. Db bene esse — when evidence may be taken Decree — pro confesso, rule respecting setting aside mistakes in form and substance of execution of, for payment of money for specific act for delivery of possession Deeault — in apijearing pro coiifesao on Defense — answer by, instead of plea ■ Defendants — service of subposna on appearance and defense Demurkers and pleas — rules respecting ■ terms of filing - may be to the whole or any part of tlie bill may be set down forbearing, when costs of overruling on allowing leave to answer on overruling of amend bill on allowing of admitted to be good, when Depositions — of resident witnesses, how taken nonresident witnesses, how taken Discovery — cross-bill for Divorce — rules regulating suits for Docketing — suit, on filing bill clerk shall enter the suit on the docket and note time of entry Dower — table of allowauce iu lieu of , Duces tecum — how issued E. Evidence — rules respecting, when answer is . 16252 6 Rule. 32 61 41 63 59 67 60 67 81 73 79 73 102 77 21 59 2 55 91 76 70 71 70 71 68 16 17 82 83 84 85 86 16 16 34 8 14-15 29-31 28 29 30 31 32 31 32 33 65 65 70 92-100 13 75 65-69 65 Page. 70 .57 58 73 73 74 74 74 57 57 62 .56 57 61,62 61 61 61 HI HI 61 61 61 69 70 71 76,77 57 72 68-70 68 82 INDEX TO EQUITY RULES. Evidence — Continned. depositions of witnesses, resident and nonresident time of taking to bo fixed by court publication of de bene esse, rule as to talting last written interrogatory, form of documentary, before auditor Examiner — duties of witnesses may be recLuired to appear before an Exceptions — time for filing when to be heard allowance of, attachment in case overrule, costs to auditorVreport to auditor's report, cost of iri volous Execution — of decree for payment of money for specific act for delivery of possession Exhibits — Defendants not required to answer until filed G. Gdardian — ad litem, infants or other incapable persons may sue and defend by H. Hearing — maimer of setting causes for I. IMPERTINENC15 — in bill, to be expunged Injunction — rules respecting to suspend business of bank or moneyed corporation to stay proceedings at law undertaking to be filed before issue of, in what cases no preliminary, or ne exeat shall be granted unless prayed for and bill veritied notice of application for what bill for, must state to stay ejectment or replevin affidavits on application for motion to dissolve not dissolved unless answer verified or ne exeat, prayer for process Interlocutory ordbhs— may be made at chambers on notice Issue (see Eeplication and Issue). M. Motions— grantable of course, what are notice of, when requisite copy of, and of affidavits to be served, when N. Ne EXEAT (se« Injunction)... Nullity of MARRIAGE (see Divorce) 65 66 67 68 69 74 65 74 56 57 58 59 80 81 84 85 86 87 64 22 42-49 42 42 42 43 44 45 46 47 48 49 23 43-49 92-100 INDEX TO EQUITY RULES. 83 O. Oath ok affirmation — rule respecting to bill, answei', or petition, form of Oedek book — to be kept at clerk's office directions to clerk to be entered Overruling — demurrers and pleas, costs of exceptions to answers, costs of frivolous, to auditor's report, costs of . Papers — fee for copies, when charged as part of costs Parties — to bill, reason for omitting, to be averred proceeding without very numerous, when dispensed with what beneficiaries may be dispensed with want of, proceedings when suggested in answer when omitted, saving for, in decree.. nominal, when to answer, when not Petition — verification of, form of Plea — terms of filing may be to the whole or any part of bill must bo accompanied by answer denying fraud, etc plaintiff may set for hearing or join issue cost of overruling allowing leave to answer on overruling amend on allowing when admitted to be true Pleadings — must be legibly written or printed copies of, fees for, how charged Possession — writ of, to enforce decree Prayer — for process for relief Preparation of causes — court to be deemed always open for Process — rnles respecting of subpoena, no writ of, shall issue until bill filed after bill filed to isstie, of course may be sued out for each or all of the defendants , how served by leaving copy, when return of, rule respecting , notice to appear to accompany writ renewal of to be served by the marshal or deputy prayer for final, to execute decree Prochein ami — infants, etc., may sue by Pro confesso — when bill may be taken proceedings in case of when decree may be made if plaintiff requires discovery or answer, when attachment may isgue , , ,,,...,„..., 89 90 3 3 31 59 81 102 20 36 37 38 39 40 , 41 90 28 29 29 30 31 32 31 32 33 101 102 86 23 24 6-12 7 7 7 8 8 10 10 11 12 23 85 87 16 16 16 16 58 84 INDEX TO EQUITY RULES. Pko coNFissso — Continued. decree of, and proceedings to set same aside Publication — of evidence, may be made by the clerk E. Eefbrkncb to auditor (see Auditor) EkHBAEING and KEVIKW — rule respecting Eejoindek — when not necessary Belief — prayer for Eeplication and issue — amendment of bill no special replication to be filed form of ; time of filing not filed in time, what no cause shall be set down for hearing unless at issue or after replication filed Eetuen day Eevivor — hill of, rule respecting matter of Ebview — bill of, must be filed within two years after eutry of decree, except EULE DAY s. Sequestration — writ of, shall issue, when Service Signature of counsel— must be annexed to bill Subpoena— writ of, proper process in all suits process of, not to issue until bill filed service of return of renewal of to be served by marshal duces tecum — how issued Suit— to be entered on docket parties to (see Parties) Summons (see. Subpoena) Supplemental answer — defeuflnnt shall put in, when time of filing ^ default of filing SUPPLBMENTAL BILL — rules respecting when leave granted to file notice of application to opposite party defendant to demur, plead, or answer thereto by the next suc- ceeding rule day matter of, need not set forth original bill T. Testimony (see Evidence) Trustees, sales by— fees of crier .■-.-•-. as parties to suit, instead of benoficiiivics table of commissions to Ofith of compliance with rule..., , .,,. ,,.. ,,,. .,-- ,,,,, 17 67 71-73 62 24 25 61 61 62 63 64 1 50 52 85 8 21 6 10 11 12 13 20 6 35 35 35 51,52 51 51 51 52 65-69 91 38 103 91 INDEX TO EQUITY RULES. 85 U. Underta kino — on application for injunction for injunction to stay proceedings in eject- ment or replevin V. Verification — of bill, for injunction or ne exeat of answer, no injunction or ne exeat shall be dissolved or dis- charged unless answer is verified form of W. Witnesses — deposition of resident, how examined refusal of, to attend or be sworn or answer, to be reported to the court noti ce of time and place of examination of depositions of, to be authenticated by examiner and trans- mitted to clerk for filing time of examination of, by complainant by defendant deposition of nonresident before auditor, commissioner, or examiner 42 46 47 49 90 65 64 64 65 65 75 69 65 69 65 69 65 69 66 70 66 70 65 70 75 72 RULES IN ADMIRALTY. PROCESS. ISSUING. 1. No mesne process shall issue in any civil cause of admiralty and maritime jurisdiction until a libel or libel of information shall have been filed in the clerk's office. SERVICE. 2. 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. RETURN. 3. Monitions, citations, and warrants of arrest shall in all cases be made returnable in fourteen days, except when the justice, by special order, shall designate an earlier day. 4. In suits in personam the mesne process may be by a monition in the nature of a summons of the defendant to appear and answer the suit, or by such summons, with a clause therein, if he can not be found, to attach his goods and chattels to the amount sued for, or, if such property can not be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein, as the libelant shall in his libel or information pray. (Eules in Admiralty of Supreme Court of II. S., No. 47; Eev. Stat, Dist. Col., §.791.) ARREST OP PROPERTY — FOR WHAT SUM. 5. In suits in personam no warrant of arrest of the property of the defendant shall issue for a sum exceeding five hundred dollars, unless by a special order of the court, upon affidavit or other proper proof showing the propriety thereof. GARNISHEE. 6. In cases of foreign attachment the garnishee shall be required to answer, under oath or solemn affirmation, as to the debts, credits, or 87 88 RULES IN ADMIRALTY. effects of the defendant in his hands, and to such interrogatories touch- ing the same as may be propounded by the libelant, and if he shall refuse or neglect so to do the court may award compulsory process in personam against him. If he admits any debts, credits, or effects the same shall be held in his hands liable to answer the exigency of the suit. DISSOLUTION OP ATTACHMENT. 7. When goods and chattels or credits aud effects are attached in any suit in personam, under a warrant authorizing the same, the attach- ment may be dissolved by order of the court upon the defendant whose property is so attached giving a bond or stipulation, with sufflcient sureties, to abide by all orders, interlocutory or final, of the court, and pay the amount awarded by the final decree rendered in said, cause; and summary process of execution may and shall be issued against the principal and sureties on said bond or stipulation to enforce the final decree so rendered, or, upon appeal, by the appellate court. IN REM. PROCESS. 8. In all cases of seizure, and other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by warrant of arrest of the ship, goods, or other things to be arrested; and the marshal shall thereupon arrest and take the ship, goods, or other things into his possession for safe custody, and shall cause notice thereof to be given by publishing in some newspaper in the city of Washington a short statement of the purport of the libel, with the order of the court thereon, setting forth the time appointed for return of such pro- cess and the hearing of the cause, and by posting up the same, for the space of fourteen days, at the door of the court-house: Provided, Tbat the judge may, by special order, direct a shorter notice than fourteen days. TACKLE, ETC, IN POSSESSION OP THIRD PERSON. 9. If in any suit in rem against a ship, her tackle, sails, apparel, fur- niture, boats, or other appurtenances such tackle, sails, apparel, fur- niture, boats, or other appurtenances are in the possession or custody of any third iierson, 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. PROPERTY ATTACHED TO OR BOUND BY SUIT. 10. Where freight or other proceeds of property are attached to or bound by the suit in any proceedings in rem, and are in the hands or RULES IN ADMIRALTY. 89 possession of any person, the court may, upon due application by peti- tion of the party interested, require the party charged with the posses- sion 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 suflli- cient cause be shown, may order the same to be so brought in for such purpose, and, upon failure of the party to comply with such order, may award an attachment or other compulsory process to compel obedience thereto. DELIVERY. 11. In all cases where any ship or goods or other property are arrested the court may, upon the application of the claimant, order a delivery thereof to him upon a due appraisement, to be had under its direction, either upon the claimant's depositing in court so much money as the court shall order or iipon his giving a stipulation, with sureties, in such sum as the court shall direct, to abide by and pay the money awarded by the final decree rendered by the court or by the appellate court; and if the claimant shall decline such stipulation, then the court may, in its discretion, upon the application of either party and 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. DELIVERY ON JPAYMENT INTO COXJET. 12. In suits in rem for seamen's wages, and in all other actions in rem for sums certain, the claimant or respondent may pay into court the amount sworn to be due in the libel, with interest computed thereon from the time it was due to the return day of the attachment, and the costs of the officers of the court already accrued, together with the sum of fifty dollars to cover further costs, etc., or, at his option, may give stipulation to pay such sworn amount, with interest, costs, and damages (first paying into court the costs of the officers of the court already accrued), and in either case may thereupon have an order entered instantly for the delivery of the property arrested without having the same appraised. PERISHABLE GOODS. 13. "Where any goods or other things arrested 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 to be sold, and the proceeds, or so much thereof as shall be a full security to satisfy the decree, to be brought into court to abide the event of the suit, or may, upon the application of the claimant, order a delivery thereof to him upon compliance with the proceedings and conditions prescribed as to the delivery of ships in the preceding rule. 90 EULES IN ADMIRALTY. "WAGES. 14. In all suits for mariners' wages the libelant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone in per sonam. PILOTAGE. 15. In all suits for pilotage the libelant may proceed against the ship and master, or against the ship, or against the owner or the master alone in personam. SUPPLIES, EEPAIRS, ETC. 16. In all suits by material men for supplies or repairs or other nec- essaries for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem or against the master or the owner alone in personam; and the like proceedings 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. HYPOTHEOATION. 17. In all suits founded upon a mere maritime hypothecation, either expressed or implied, of the master, for moneys taken up in a foreign port, for supplies or repairs, or other necessaries for the yoyage, with- out any claim of marine interest, the libelant may proceed either in rem against the ship or freight or against the master or the owner alone in personam. BOTTOMRY. 18. All suits on bottomry bonds, properly so called, shall be in rem only against the property hypothecated, or the proceeds of the prop- erty, in whosesoever hands the same may be found, unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has, by his own misconduct or wroug, lost or sub- tracted the property, in which latter cases the suit may be in personam against the wrongdoer. SALVAGE. 19. Suits for salvage 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. COLLISION. 20. In all suits for damage by collision the libelant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam. RULES IN ADMIRALTY. 91 ASSAULT OB BEATING. 21. All suits for assault or beating, in any place within the admiralty and maritime jurisdiction, shall be in personam only. PETITORY AND POSSESSORY SUITS. 22. In 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 of the part owners against the others to obtain possession 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. LIBELS. IN SEIZURES. 23. All informations and libels of information upon seizures for any breach of the revenue or navigation or other laws of the United States shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty and maritime juris- diction of the United States, and the district within which the property is brought, and where it then is. They shall also propound, in distinct articles, the matter 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 i»rovided, as the case may require, and shall conclude 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. IN CIVIL OASES. 24. In instance causes, civil and maritime, the libel shall state the nature of the cause, as, for exampje, that it is a cause, civil and mari- time, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be; and, if the suit be in rem, that the property is within the District, and, if in personam, the names and occu- pations and places of residence of the parties. It shall also propound in distinct articles the various allegations of fact upon which the libel- ant relies in support of his suit, so that the defendant maybe 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 be) and for 92 RULES IN ADMIRALTY. sucli relief and redress as the court is competent to give in the prem- ises. And the libelant may, at the conclusion thereof, require the defendant to answer on oath all interrogatories propounded by him touching, all and singular, the allegations in the libel. AMENDMENTS. 25. Amendments in matters of form in informations and libels may be made at any time, on motion to the court, as of course. 'Sew 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 libelant. CLAIM. 26. In suits in rem the party claiming the property shall verify his claim on oath or solemn affirraation, stating that the claimant by whom or on whose behalf the claim is made is the true and bona fide owner, and that no other person is the owner thereof, and where the claim is put in by an agent or consignee he shall also make oath that he is duly authorized thereto by the owner, or, if the property be at the time of the arrest in the possession of the master of the ship, that he is the lawful bailee thereof for the owner. NEGLECT OP LIBELANT TO PROCEED WITH DISPATCH. 27. If the promovent in a libel or information neglects to proceed in the cause with the dispatch which the course of the court admits the respondent or claimant may have the libel or information dismissed on motion, unless the delay is by order of the justice, or by the act of the respondent or claimant. Four days' notice shall be given of the application to dismiss the action. ANSWERS. IN CIVIL CASES. 28. In suits either in rem or in personam the answer of the defendant to the allegations in the libel shall be on oath or solemn affirmation, and 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 pro- pounded at the close of the libel; but this rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclu- sive of costs, unless the court shall be of opinion that the proceedings prescribed therein are necessary for the purposes of justice in the case. RULES IN ADMIRALTY. 93 EXCEPTIONS. 29. The libelant 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 exceptions, or any of them, to be good and valid, it shall order the defendant forthwith, or within such time as it may direct, to answer the same, and may further order the defendant to pay such costs as it shall adjudge reasonable. DEFAULT. 30. If the defendant shall omit or refuse to make due answer to the libel upon the return day of the process, or other day assigned by the court, the court shall pronounce him to be in contumacy and default, and thereupon adjudge the libel to be taken pro confesso against him, and shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall pertain; but the court may, in its discretion, set aside the default, and, upon the application of the defendant, admit him to make answer to the libel at any time before the final hearing and decree upon his payment of all the costs of the suit up to the time of granting leave therefor. REHEARING AFTER DEFAULT. 31. The court may, in its discretion, upon motion of defendant and payment of costs, rescind the decree in any suit iu 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 premises as the court may direct. ATTACHMENT TO COMPEL ANSWER. 32. When the defendant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception thereto is taken by the libelant, and the exception is allowed, the court may, by attachment, compel him to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against him to the full purport and effect of the article to which it purports to answer and as if no answer had been put in thereto. OBJECTING TO MAKE ANSWER. 33. The defendant may object, by his answer, to answer any allegation or interrogatory contained in the libel which will expose him to any prosecution or punishment for a crime, or for any penalty or any for- feiture of his property for any penal offense. INTERROGATORIES IN ANSWER. 34. The defendant shall have a right to require the personal answer of the libelant; upon oath or solemn affirmation, to any interrogatories 94 RULES IN ADMIRALTY. which he may, at the close of his answer, propound to the libelant touching any matter charged in the libel, or touching any matter of defense set up in the answer, subject to the like exception as to matters which would expose the libelant to any prosecution or punishment or forfeiture, as provided in the foregoing rule. Tn default of due answer by the libelant to such interrogatories the court may adjudge him to be in default and dismiss the libel, or may compel his answer in the prem- ises by attachment, or take the subject-matter of the interrogatory pro confesso in favor of the defendant, as, in its discretion, it shall deem most fit to promote public justice. NEW MATTER IN ANSWER. 35. When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libelant and no replication, general or special, shall be allowed. But within ten days after the answer is filed the libelant may amend his libel so as to confess and avoid or explain or add to the new matter set forth in the answer, and within ten days after such amendment of the libel is filed the defendant shall answer such amendments. But the court may, by special order and upon due cause shown, allow further time for filing such amendments of the libel and for filing such answer thereto. ANSWER DISPENSED WITH. 36. Where either the defendant or the libelant is out of the country, or is unable, from sickness, or other casualty, to make an answer to any interrogatory, on oath or afttrmation, at the proper time, the court may, in its discretion, in furtherance of the due administration of jus- tice, dispense therewith, or may award a commission to take the answer of the defendant where and as soon as it may be practicable. CROSS-LIBEL. SECURITY BY RESPONDENTS IN. 37. 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 shown, shall otherwise direct, and all pro- ceedings upon the original libel shall be stayed until such security shall be given. INTERVENTION. 38. If any third person shall intervene in any cause of admiralty and maritime jurisdiction in rem, for his own interest, and is entitled, according to the course of admiralty proceedings, to be heard for his RULES IN- ADMIRALTY. 95 own interest therein, he shall propound the matter in suitable allega- tions, to which, if admitted by the court, the other party or parties in the suit may be required, by order of the court, to make due answer; and such further proceedings shall be had, and decree rendered by the court therein, as to law and justice shall appertain. But every such intervenor shall be required, upon filing his allegations, to give a stip- ulation, with sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. SURPLUSAGE, ETC. 39. Exception may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, or scandal; and if, upon refer- ence to a master, the matter excepted to be reported to be so objection- able, and the exception is allowed by the court, such matter shall be expunged at the cost of the party in whose libel or answer the same is found. LIMITED LIABILITY OF SHIPOWNERS. PROCEEDINGS TO SECURE. 40, When any ship or vessel shall be libeled, or the owner or owners thereof shall be sued for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons of any property, goods, or merchandise shipped or put on board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limitation of liability provided for in sections 4283, 4284, and 4285 of the Eevised Statutes of the United States, the said owner or owners may and shall file a libel or petition, as hereinafter specified, setting forth the facts and circum- stances on which such limitation is claimed, and praying proper relief in that behalf; and thereupon the court, having caused due appraise- ment to be had of the amount or value of the interest of said owner or owners, respectively, in ship or vessel, and her freight for the voyage, shall make an order for the payment of the same into court, or for tlie giving of a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered; or, if the owner or owners shall so elect, the court shall, without such appraisement, make an order for the transfer by him or them of his or their interest in such vessel and freight to a trustee to be appointed by the court under said section 4285; and, upon compliance with such order, the court shall issue a monition against all persons claiming damages for any such embezzle- 96 RULES IN ADMIRALTY. ment, loss, destruction, damage, or injury, citing them to appear before tlie court and to malie due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same; and public notice of such monition shall be given as in other cases, and such further notice served through the post-office, or otherwise, as the court in its discretion may direct; and the court shall also, on the application of the said owner or owners, make an order to restrain the further prosecution of all and. any suit or suits against said owner or owners in respect of any such claim or claims. PROOF OF CLAIMS. 41. Proof of all claims which shall be presented in pursuance of said motion shall be made before a commissioner to be designated by the court, subject to the right of any person interested to question or con- trovert the same; and, upon the completion of said proofs, the com- missioner shall mate report of the claims so proven, and, upon confir- mation of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into the court as aforesaid, or the proceeds of said ship or vessel and freight, (after payment of costs and expenses), shall be divided, pro rata, among the several claimants, in proportion to the amount of their respective claims, duly approved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. CONTEST OF LIABILITY BY OWNERS. 42. In the proceedings aforesaid the said owner or owners shall be at liberty to contest his or their liability, or the liability of said ship or vessel, for said embezzlement, loss, destruction, damage, or injury (inde- pendently of the limitation of liability claimed under said act), provided that, in his or their libel or petition, he or they shall state the facts and circumstances by reason of which exemption from liability is claimed; and any person or persons claiming damages as aforesaid and who shall have presented his or their claim to the commissioner under oath, shall and may answer such libel or petition, and contest the right of the owner or owners of said ship or vessel either to an exemption from liability or to a limitation of liability under the said act of Con- gress, or both. MONEYS PAID IN. 43. All moneys paid into the registry of court shall be deposited, in the name of the court, in some bank designated by it, and shall not be drawn out except by check, signed by a justice of the court, and countersigned by the clerk, stating on whosfe account and for whose use it is drawn, and in what suit and out of what fund in particular it RULES IN ADMIKALTY. 97 is paid. The clerk shall keep a regulttr book, containiiig a memoran- dum and copy of all the checks so drawn and the date thereof. CLAIM OF PKOCEEDS IN KEGISTKT. 44. Any person having an interest in any proceeds in the registry shall have a right, by petition and summary proceeding, to intervene pro interesse suo for a delivery thereof to him ; and upon due notice to the adverse party, if any, the court may and shall 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. APPRAISERS. 45. Only one appraiser is to be appointed in suits by individuals, unless otherwise specially ordered by the justice; and if the respective l)arties do not agree in writing upon the appraiser to be appointed, the cleik shall forthwith name either paTty having a right of instant appeal to the j ustice from such nomination for adequate cause. REFERENCES. TO COMMISSIONERS. 46. The court may, in cases where it shall deem such course expedi- ent or necessary for the purposes of justice, refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by it, to hear the parties and make report therein, and such commis- sioner or commissioners shall have and ijossess all the powers in the liremises which are usually given or exercised by masters in chancery in references to them, includiug the power to administer oaths and examine the parties and witnesses touching the premises. TO AUDITOR. 47. In cases of demands arising, not ex delicto, on a decree in favor of the libelant by default or on hearing, it shall be referred to an auditor to ascertain the amount due the libelant; but reference may also be made in cases of tort or on allegations of incidental or consequential damages if desired by either party. TO ASSESSORS. 48. Upon any sufficient cause shown, such reference may be made to assessors or otherwise, according to the course and custom of courts of civil and admiralty jurisdiction. 1G:52 ? 98 rules in admiralty. confir:matiox. 49. Upon tlie coining in of tlie report of the auditor or assessors a decree of confirmation may be entered, on motion, without notice, unless otherwise ordered by the court, or unless the report be excepted to, and in the latter case the exception shall be overruled or held abandoned unless brought to a hearing. FAILURE TO TAKE PROCEEDINGS ON REPORT. 50. If the libelant take no proceedings on the report within five days after the filing tliereof in open court, the respondent may move the court to dismiss the libel for want of due ijrosecution. BONDS AND STIPULATIONS. VPHAT TO CONTAIN. 51. All stipulations in admiralty causes shall be executed by the prin- cipal party, if within the District, and at least one surety resident therein, and shall contain the consent of the obligors or stipulators that in case of default or contumacy on the i)art of the principal or sureties execution to the amount named in such stipulation may issue against the goods, chattels, and lands of the stipulators. HOW TAKEN. 52. Bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, by the justice holding the District court, or, in his absence, by any other justice of the court. RBDUCINa PENALTY — NEW SURETY. 53. The court may, upon motion and for due cause shown, reduce the sum contained in the bond or stipulation taken as bail in any suit ill personam J and if either of the sureties in a boud or stipulation, taken as bail or upon dissolving an attachment, shall become insolvent pend- ing the suit, the court may, upon motion and due proof thereof, require new sureties to be given. INCREASE OF SECURITY. 54. In all cases of stipulations in admiralty causes any party having an interest in the subject-matter may move the court, on special cause shown, for greater or better security, giving the opposite party two days' notice thereof, unless shorter time is allowed by the justice. RULES IN ADMIRALTY. 99 COSTS. SECUEITY FOR, IN SUITS IN PERSONAM. 55. In all cases of libel 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 him to give a stipulation, with sureties, in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication thereof, or by any interlocutory order in the progress of the suit. SECURITY FOR, IN SUITS IN REM. 56. No process in rem shall be issued, nor shall any appearance or answer be received, or'third party be i)ermitted to intervene and claim, except on the part of the United States, unless a stipulation in the sum of one hundred dollars shall be first entered into by the party, and at least one surety resident in the District, conditioned that the principal shall pay all costs assessed against him by the court. EXCEPTION OP SEAMEN AND SALVORS. 57. Seamen suing in rem for wages, in their own right and for their own benefit, for services on board American vessels, and salvors com- ing into possession of the property libeled, shall not be required to give such security in the first instance. But after the arrest of the pioperty the court may, on motion and notice to the libelants, and for adequate cause, order the usual stipulation to be given in these cases, or that the property arrested be discharged. DEPOSIT INSTEAD OF STIPULATION. 58. Instead of a bond or stipulation providing for payment of ciosts the court may direct the deposit therein of- such sum of money as it may consider a sufficient security in the premises. COSTS TO BE PAID BEFORE DELIVERY. 59. No vessel, goods, wares, or merchandise in the custody of the marshal shall be released from detention, upon appraisement and surety, until the costs and charges of the officers of the court, so far as the same shall have accrued, shall first have been paid into court by the party at whose instance the appraisement shall take place, to abide the decision of the court in respect to such costs. EXECUTION. 60. In all cases of final decree for the payment of money the libelant shall have a writ of execution, in the nature of a Jier if aci an, conuuand- ing the marshal or his deputy, or, when the marshal is a party in 100 RULES IN ADMIRALTY. interest, such other proper officer as may be assigned by the court, to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the defendant or stipulators. SALES. 61. All sales of property under any decree in admiralty shall be made by the marshal or his deputy, or, where the marshal is a party in interest, by other prpper officer assigned by the court, in pursuance of the orders of the court, and the proceeds thereof 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, NOTICE OP SALE. 62. Notice of sale of property after condemnation in suits iti rem (except under the revenue laws and on seizure by the United States), shall be six days, unless otherwise specially directed by the decree of condemnation and sale. INDEX TO RULES IN ADMIRALTY. A. Answers — in civil cases exceptions to default in default in, hearing after attachment to compel objecting to make interrogatories in new matter in dispensed with ArrRAiSEKS— only one to he appointed B. BOXDS AND STIPULATIONS^ what to contain how taken reducing penalty, new surety increase of security C. Costs — security for, in personam in rem exceptions in favor of seamen and salvors deposit of money for ' to be paid before delivery Ceoss-libel — security by respondents iu intervention in E. Execution— for iinal decree L. Libels — in seizures in civil cases amendments to information claim to be verified neglect of libelant to proceed with dispatcli Limited liability of ship-owners — proceedings to secure proof of claim contest of liability P. Process — issuing service 28 29 30 31 32 33 34 35 36 45 51 52 53 54 55 56 57 58 59 37 38 60 23 24 91 91 25 92 26 92 27 92 40 95 41 96 42 96 1 87 2 87 101 102 INDEX TO RULES IN ADMIRALTY. Process — Continued- return form of ^ arrest of property, for wh at sum to garnishee dissolution of attachment in rem, cases of seizure as to tackle, etc property attached delivery of ship or goods delivery on payment into court as to perishable goods , in suits for wages for pilotage for supplies, etc upon hypothecation on hottomry Ijonds for salvage for damages by collision , . for assault in petitory suits ,. R. References — to commissioners to auditor to assessors coniirmation of report . failure to take proceedings on report S. Sales — of property under decree notice of Surplusage, etc. — exception may be taken for i , ORPHANS' COURT RULES. Sessions of court for probate business Administration and letters testamkntary— rules respecting Guardians' accounts Guardians, delinquent Rule. 3 87 4 87 5 87 6 87 7 88 8 88 9 88 10 88 11 89 12 89 13 89 14 90 15 90 16 90 17 90 18 90 19 90 20 90 21 91 22 91 46 97 47 97 48 97 49 98 - 50 98 61 100 62 100 39 Page. 95 103 103 104 104 ORPHANS' COURT RULES. SESSIONS FOR ORPHANS' COURT BUSINESS. 1, There sliall be a sessiou of the supreme court for orphaus' court business on Friday of each week, excepting when that day falls on a legal holiday, and on such other day or days as the justice holding the said special term shall designate. RULES RESPECTING APPLICATION FOR LETTERS TfeSTAMEN- TARY AND OF ADMINISTRATION. 2. Every application to this court for letters testamentary or of admin- istration shall be in writing, duly sworn to, setting forth the residence and citizenship of the petitioner; by what right the petitioner makes application ; the death and date thereof of the person on whose estate the letters are desired ; his or her last domicile; the estimated value of the personal estate, the character thereof, and where situated or being; whether the decedent died testate or intestate; the names of the next of kin, whether residents or non-residents, adults or minors, and, if minors, their respective ages, and such other facts as the court may deem necessary and proper in the premises. If the will requests that the executor be not required to give bond, the application shall state the amount of the debts due by the testator. Sec. 2. Upon the filing of such application the register of wills shall issue a citation, to be served on all the next of kin of the decedent wlio may be over the age of fourteen years, residents of or to be found within the District of Columbia, commanding them to appear in this court on a day named iii such citation, not less than seven days from the date of service, to show cause, if any they have, why letters of administration or testamentary, as the case rhay be, should not be granted as prayed in the petition; such citation maybe served by any person designated by the court. Sec. 3. Should any of the next of kin, or persons entitled by law to the estate, be nonresidents or not to be found, notice of such applica- tion to them shall be by publication in one or more newspapers printed or published in the city of AVashington, for such time and in such man- ner as the court may direct, setting forth that application for letters on the decedent's estate has been made, and that they and all parties 103 104 orphans' couet rules. interested appear on a day named in siicli notice to show cause Avhy the application should not be granted; the proof of such publication shall be the afiQdavit of the publisher of the paper wherein it was inserted, or some competent person having personal knowledge of the publication. Sec. 4. The citation or publication may be dispensed with by tlie court, upon the written waiver or assent of the said next of kin, or where the justice shall deem it proper to dispense with the same. GUARDIANS' ACCOUNTS. 3. All allowances claimed by guardians for payments made by them, on behalf of their wards or their estates, shall be sustained by vouch- ers in due form, by regular books of account exhibited, or by claims made out and sworn to by the guardian and approved and passed by the court. DELINQUENT GUARDIANS, ETC. 4. Whenever any executor or administrator or guardian shall have failed to present to the court at the special term thereof, held for the transaction of orjihans' court business an account of his administra- tion or trust in the manner and form prescribed by law, or by the order or allowance of the court, a citation shall be issued forthwith to such delinquent executor, administrator, or guardian to appear and exhibit such account.