ajornfll ilaui i>rl|onI IGibratH Cornell University Library KF8719.R69 A treatise on preliminary proceedings in 3 1924 020 613 604 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020613604 A TREATISE PRELIMINARY PROCEEDIN&S IN THE COURTS OF THE .UNITED STATES, DESIGNED FOR THE USE OF ATTORNEYS PRACTICING IN THE FEDERAL COURTS, AND ESPECIALLY AS A MANUAL UNITED STATES COMMISSIONERS, WITH NUMEROUS PRACTICAL FORMS AND CITATIONS FROM ACTS OF CONGRESS. BY EDWARD T. EOE, B. L., Assistant Unitbd Statbs Attoruby fob the Southern District of Illinois. ( : SPRINGFIELD : , , , ' ', D. 4 J. B. BROWN, PUBLISHERS. : f- 1874. ' 0^d^c> Entered according to Act of Congress in the year 1874, by EDWARD T. ROE, In the Office of the Librarian of Congress, at Washington. PREFACE Ab its title implies, this work is designed as a Manual for the use of United States Commissioners, containing the neoessary instructions for the conduct of all official business that may come before them; giving full infor- mation as to the manner of making up their reports, securing payment of their accounts with the government, and of making their returns into court; and embracing all the Acts of Congress (or the sections thereof) relating to their jurisdiction and duties; together with concise practical forms and precedents. It is hoped that the work will meet a demand long felt and frequently expressed among those for whom it is designed. This is the Author's apology for submit- ting it to their favorable consideration. E. T. R. Springfield. UNITED STATES COMMISSIONERS THEIR POWERS AND DUTIES. CHAPTER I. CIVIL AND MISCELLANEOUS. Appointment. — The Circuit Courts of the United States [Act of Feb. 20, 1812, sec. 1, 2 Stat. 679,J and the Supreme Courts of the Territories [Act of September 8th, 1850, sec. 2, 9 Stat. 462,] are author- ized to appoint such and so many discreet persons in different parts of the district where the existing pro- visions, by law, for taking bail and affidavits in civil causes are inadequate, or on account of the extent of such district, inconvenient, as such courts shall deem necessary, to take acknowledgments of bail and affi- davits. b AFFIDAVITS, AFFIRMATIONS AND BAIL. By several subsequent acts the powers of these commissioners have been greatly enlarged, and as now defined are comprised under the following sections : SECTION I. AFFIDAVITS, AFFIRMATIONS AND BAIL. Acknowledgments of bail and affidavits taken be- fore commissioners (in pursuance of the above-men- tioned statutes,) shall have the like force and effect as if taken before any judge of the Circuit Court ; and any person swearing falsely in and by any such affidavit, shall be liable to the same punishment as if the same affidavit had been made or taken before a judge of said court [Act of Feb. 20th, 1812, sec. 1, 3 Stat, at L. 679.] Affidavits and bail in civil causes to be used in the several District Courts of the United States may be taken before commissioners. [Act of March 1st, 1817, 3 Stat, at L. 350.] OATHS AND AFFIRMATIONS. 1. In all cases in which, under the laws of the United States, oaths, or affirmations or acknowledg- ments, may now be taken or made before any justice BANKEirPTOT. or justices of the peace, of any State or Territory, such oaths, affirmations or acknowledgments may be hereafter also taken and made by or before any notary public, duly appointed, in any State or Terri- tory ; and, when certified under the hand and official seal of such notary, shall have the same force and effijct as if taken or made by or before such justice or justices of the peace. * * * * 2. All the powers and authority conferred in and by the preceding section of this act upon notaries public, shall be, and the same are hereby vested in, and may be exercised by, any commissioner appoint- ed, or hereafter to be appointed, by any Circuit Court of the United States, under any Act of Congress authorizing the appointment of commissioners to take bail, affidavits or depositions in causes pending in the courts of the United States. [Act of Sept. 16th, 1860, 9 Stat, at L. 458.] SECTION II. BANKRUPTCY. Evidence or examination in any of the proceedings under this act ["An Act to establish a uniform system of Bankruptcy throughout the United States."] may DEPOSITIONS. be taken before the court, or a register in bankrupt- cy, viva voce or in writing, before a commissioner of the Circuit Court, or by affidavit, or on commission, and the court may direct a reference to a register in bankruptcy, or other suitable person, to take and certify such examination ; and may compel the attend- ance of witnesses, the production of books and papers, and the giving of testimony in the same manner as in suits in equity in the Circuit Court. [Act of March 2d, 1867, sec. 38, 14 Stat, at L. 535.] And such commissioners may take proofs in bank- ruptcy in all cases, subject to the revision of such proofs by the register and by the court, according to the provisions of the said act. [Act of July 27th, 1868, sec. 3, 15 Stat, at L. 228. J SECTION III. DEPOSITIONS (de bene esse.) When the testimony of any person shall be neces- sary in any civil cause depending in any district in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is DEPOSITIONS. about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid before the time of trial, or is ancient or very infirm, the /ieposition of such person may be taken de bene esse before any justice or judge of any of the courts of the United States, or before any chancellor, justice or judge of a supreme or su- perior court, mayor or chief magistrate of a city, or judge of a County Court or Court of Common Pleas of any of the United States [or, by the Act of March Ist, 1817, 3 Stat, at L. 350, any of the commissioners appointed under the Act of Feb. 20th, 1812,] not being of counsel or attorney to either of the parties, or interested in the event of the cause, Provided, that a notification, -8S. State of County of ) Be it remembered, that on the day of A. D. 18 — , before me, a Commissioner appointed by the Circuit Court of the United States, within and for the district of in the Circuit, by virtue of the act entitled "An Act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States," at my office, [state loGation\ in the city of in the county of and State aforesaid, and within the said district of between the usual hours of business, were produced and personally came before me [state names of witnesses^ witness- es in behalf of the plaintiff, to depose in a civil cause depending in the Circuit {or District) Court of the United States, for the district of held DEPOSITIONS. 17 at in the last said district, on the common law side of said court, wherein A. B. is plaintiff, \if more tlian one, name them all], and Y. Z. is de- fendant, [name all the defendants], in an action of assumpsit, and whose testimony is alleged to be material and necessary in said civil cause, in be- half of the plaintiff. And the said [name all the witnesses], being of lawful age and sound mind, and being by me first carefully examined, cautioned and duly sworn on their respective corporal oaths, to testify the whole truth touching the matters in controversy in said civil cause, respectively depose and say as follows : Deposition of , a witness produced and sworn as aforesaid, on behalf of the plaintiff: [^ere ffive the testimony of the witness, which must be reduced to writing hy the commissioner, or hy the deponent in his presence. The deposition should then he read over to the witness, and signed and sworn to hy him hefore the next witness is exam- ined. Then proceed with the second and third witnesses in Uke manner to the end, and close as follows]: —3 18 DEPOSITIONS. I do hereby certify that the foregoing deposi- tions of [state the names of the witnesses'], were, when taken, then and there reduced to writing by me, in the presence of tbe said deponents, and by them respectively subscribed in ray presence after having been so reduced to writing. I further certify that the reason for taking said depositions was and is, and the fact was and is, that the deponents [here state the reason for taking deposition, as, Hive in the city of in the State of , more than one hund/red miles from , in the said- rdistrict of , where the said civil cause is appointed hy law to he tried.] I further certify that I am not of counsel nor attorney to either of the parties in this suit, nor interested in the event of this cause. I further certify that, it being impracticable for me to deliver said depositions with my own hand to the court for which they were taken, I have retained the same for the purpose of being sealed up by me, and speedily and safely transmitted by the United States mail, to the said court, for which they were taken, and to remain under my seal until there opened. DECISIONS OF CONSULS. 19 I further certify that the fee for taking said de- positions, amounting to | , has been paid to me by the plaintiff, and the same is just and reasonable for the services performed. Given under my hand, etc , at in the said district of this day of A. D. 18 — . Y. Z., Commissioner as aforesaid. The depositions should then be sealed up, and on the face of the package should be endorsed by the commissioner : " To the Clerk of the Circuit {or District) Court of the United States, for the {Southern) District of {Illinois, Springfield, Illinois.'^) And further, as follows: "Depositions on the part of the {plaintiff,) in the case of vs. ." SECTION lY. DECISIONS OF CONSULS. The commissioners and the Circuit and District Courts of the United States have full power and authority to issue process, and have jurisdiction, upon the application or petition of foreign consuls, 20 LETTERS EOGATOET. etc., to enforce the awards, arbitrations and de- crees of foreign consuls and commercial agents, who are authorized, under treaty stipulations of their governments with the United States, to sit as judges and arbitrators between the captains and crews of the vessels in our ports belonging to the nations whose interests are committed to their charge. [Act of Aug. 8th, 1846, 9 Stat, at L. 78]. SECTION V. LETTERS ROGATORY. Where letters rogatory shall have been addressed from any court of a foreign country to any circuit court of the United States, and a United States commissioner designated by said court to make the examination of witnesses in said letters mentioned, said commissioner shall be empowered to compel the witnesses to appear and depose in the same manner as to appear and testify in court. [Act of March 1st, 1855, section 2.] The testimony of any witness residing within the United States, to be used in any suit for the re- covery of money or property depending in any .LETTERS KOGATiiEY. 21 court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party, or shall have an interest, may be obtained to be used in such suit. If a commission or letters rogatory to take such testimony shall have been issued from the court in which said suit is pending, on pro- ducing the same before the district judge of any district where said witness resides or shall be found, and on due proof being made to such judge that the testimony of any witness is material to the party desiring the same, such judge shall issue a summons to such witness, requiring him to appear before the officer or commissioner named in such commission or letters rogatory, to testify in such suit. Such sum- mons shall specify the time and place where said witness is required to attend, which place shall be within one hundred miles of the place where the wit. ness resides or shall be served with said summons. [Act of March 3rd, 1863, sec. 1, 12 Stat, at L. 769.] No witness shall be compelled to appear or to tes- tify before any commissioner or officer to take testi- mony under letters rogatory, issued or to be issued from any court in any foreign country, in any suit or 22 seamen's wages. proceeding in which the government of such foreign country shall be a party of record or in interest, ex- cept for the purpose of answering specific written interrogatories issued with and accompanying such letters rogatory, and addressed to such witness ; Provided, That when counsel for all the parties attend the examination, they may consent that ques- tions in addition to those accompanying the letters rogatory may be put to the witness, unless the letters rogatory exclude such additional interrogatories. No witness shall be required on such examination, or any other under letters rogatory, to make any dis- closure or discovery which shall tend to criminate him either under the laws of the State or Territory within^ which such examination is had, or any other, or any foreign state. [Act of March 3rd, 1873, sec. 2, 17 Stat, at L. 581.] SECTIOlSr VI. seamen's wages. * * * As soon as the voyage is ended, and the cargo or ballast be fully discharged at the last port of delivery, every seaman or mariner shall seamen's wages. 23 be entitled to the wages whicli shall be then due ac- cording to his contract ; and if such wages shall not be paid within ten days after such discharge, or if any dispute shall arise between the master and sea- men or mariners touching the said wages, it shall be lawful for the judge of the district (or, by the Act of Aug. 23rd, 1842, 5 Stat, at L. 515, a Commissioner of the Circuit Court) where the said ship or vessel shall be, or in case his residence be more than three miles from the place, or of his absence from the place of his residence, then, for any judge or jus- tice of the peace, to summon the master of such ship or vessel to appear before him, to show cause why process should not issue against such ship or vessel, her tackle, furniture and apparel, according to the course of admiralty courts, to answer for the said wages ; and if the master shall neglect to appear, or appearing, shall not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute shall not be forthwith settled, in such case the judge or justice shall certify to the clerk of che court of the district, that there is sufficient cause of complaint whereon to found admiralty process. [Act of July 26th, 1790, 1 Stat. 133.] 24 seamen's wages. A seaman can not deprive himself of his right to sue under the above act by an agreement in the ship- ping articles that he will not sue for his wages until a certain time after his services are ended. Such agreement will be held void as against the seaman. The Cypress, 1 Blatchford and Howland, 83. Upon complaint of a seaman or mariner that his wages are due and unpaid (which complaint should contain an itemized account of the same, sworn to by the complainant), the commissioners will issue sum- mons as follows : SuMMOirs FOE Seaman's Wages. (Southern) District oe ss. The United States of America. To the Marshal of the said- District, Greeting : We command you to summon C. D., the master of the ship {or vessel) M., to be and appear before me, G. H., a commissioner appointed by the Circuit Court of the United States to take acknowledgments of bail and affidavits, and also to take depositions of SEAMEN 8 WAGES. '25 witnesses in civil causes at my office [siate location], in the city of . in said district, at o'clock, in the noon of that day, then and there to show cause, if any he has, why process should not issue out of the District Court of said district, against the ship {or vessel) M., her tackle, furniture and apparel, according to the course of admiralty courts, to an- swer the claim of [state name of claimant] for mar- iner's wages. And have you then and there this writ. Given under my hand and seal this day of A. D. 18—. U. S. Oommissioner as aforesaid. The commissioner's certificate to the clerk that there is sufficient cause to found admiralty process may be in the following form : Ceetificate to found ADMiRALTr Peooess. District of ss. To the Clerk of the District Court for the District aforesaid: I, a commissioner appointed by the Circuit Court of the United States for said district, to take —3 26 STIPITLATIOlirS. acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes, do hereby certify that there is sufficient cause of complaint whereon to found admiralty process against the ship (or vessel) M., her tackle, furniture and apparel, to answer for the wages of [state name of claimant.'] Dated this day of A. D. 18 — . U. S. Commissioner as aforesaid. SECTION YII. Stipulations {in Admfiiralty.) Bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, or before any commissioner of the court who is author- ized by the court to take affidavits of bail and de- positions in cases pending before the court. [Rule No. 5 of Rules in Admiralty, adopted at the Decem- ber Term of the Supreme Court of the United States for the year 1844, in pursuance of the Act of August 23rd, 1842.J Stipulations in admiralty and maritime suits may be taken in open court, or by the proper judge at chambers, or, under his order, by any commissioner STIPULATIONS. 27 of the court who is a standing commissioner of the court, and is now authorized by law to take affidavits of bail, and also depositions in civil causes pending in the courts of the United States. — [Rule No. 35, idem.'] CHAPTER II. CBIMINAL. The commissioner is an examining and committing magistrate, bound to hear all complaints of the United States in his district, to cause the offender to be arrested, to examine into the matters charged, to summon witnesses for the government and for the accused ; and to commit for trial or to discharge from arrest, according as the evidence tends or fails to support the accusation. For the faithful discharge of his duty in these particulars he alone is account- able. He has no divided responsibility with any other officer of the government ; nor is he subject to any other's control. United States vs. Schumann, 2 Abb. (U. S. Reports) 523. SECTION VIII. ABBEST, BAIL AND COMMITMENT. For any crime against the United States the offender may, by any justice or judge of the United AEBEST, BAIL AKD COMMITMENT. 29 ■• States, or by any justice of the peace or other magistrate of any of the United States where he may be found, (or by any commissioner of the circuit court.^-see below), agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrest- ed, and imprisoned or bailed, as the case may be, for trial before such court of the United States, as by this act, has cognizance of the offence. And copies of the process shall be returned as speedily as may be into the clerk's office of such court, to- gether with the recognizances of the witnesses for their appearance to testify in the case ; which recognizances the magistrate before whom the exam- ination shall be may require on pain of imprison- ment. And if such commitment of the offender, or the witnesses, shall be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of that district where the de- linquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a war- rant for the removal of the offender and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. 30 AEKEST, BAIL AND COMMITMENT. And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which case it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and usages of law. And if a person committed by a justice of the supreme court or a judge of a district court for an offence not pun- ishable with death, shall afterwards procure bail, and there be no judge of the United States in the dis- trict to take the same, it may be taken by any judge of the supreme or superior court of law of such State. [Act of Sept. 24th, 1789, sec, 33, 1 Stat, at L. 73.] The commissioners who now are, or hereafter may be, appointed by the circuit courts of the United States to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes, shall and may exercise all the powers that any justice of the peace, or other magistrate, of any of the United States, may now exercise in respect to offend- ers for any crime or offence against the United States, by arresting, imprisoning or bailing the same, under AitEEST, BAIL AND COMMITMENT. 31 and by virtue of the (above) 33rd section of the Act of the 24th of September, A. D. 1789, entitled "An Act to establish the Judicial Courts of the United States." [Act of Aug. 23rd, 1842, sec. 1, 5 Stat, at L. 516.] In all hearings before any justice or judge of the United States, or any commissioner appointed as aforesaid, under and in virtue of the said 33rd section of the act entitled "An Act to establish the Judicial Courts of the United States,'^ it shall be lawful for such justice, judge or commissioner, where the crime or offence is charged to have been committed on the high seas or elsewhere within the admiralty and mar- itime jurisdiction of the United States, in his discretion to require a recognizance of any witness produced in behalf of the accused, with such surety or sureties as he may judge necessary, as well as in behalf of the United States, for their appearing and giving testi- mony at the trial of the cause, whose testimony, in his opinion, is important for the purpose of justice at the trial of the cause, and is in danger of being otherwise lost ; and such witnesses shall be entitled to receive from the United States the usual com- pensation allowed to government witnesses for their 32 SURRENDER OF BAIL. NEW AIL. detention and attendance, if they shall appear and be ready to give testimony at the trial. {Idem, sec. 2.] SUKEBNDER OF BAIL. Any party charged with a criminal offence, and admitted to bail, may, in vacation, be arrested by his bail, and delivered to the marshal or his deputy, before any judge or other officer having power to commit for such offence ; and at the re- quest of such bail, the judge or other officer shall re-commit the party so arrested to the custody of the marshal, and endorse on the recognizance, or certified copy thereof, the discharge and exoneratur of such bail ; and the party so committed shall therefrom be held in custody until discharged by due course of law. [Act of Aug. 8th, 1846, sec. 4, 9 Stat at L. 72.] NEW BAIL. Upon the necessary proof being made to any judge of the United States, or other magistrate having authority to commit on criminal charges against the laws of the United States, that a per- son previously admitted to bail on any such crim- inal charge is about to abscond, and that his bail ARKE8T, BAIL AND COMMITMENT. 33 is insufficient, it shall and may be lawful for any sucli judge or magistrate to require such person to give better security, or, for default thereof, to cause him to be committed to prison ; and, to that end, an order for his arrest may be indorsed on the former commitment, or a new warrant therefor may be issued by such judge or magistrate, setting forth the cause thereof. [Idem, sec. 6.] Whenever two or more charges are or shall be made, or two or more indictments shall be found against a person, only one writ or warrant shall be necessary to arrest and commit him for trial ; and it shall be sufficient to state in the writ the name or general character of the offences, or to refer to them only in very general terms. Only one writ or war- rant shall be necessary to remove a prisoner from one district to another ; a copy of which maybe delivered to the sheriff or jailor from whose custody the prison- er may be taken, and another copy thereof to the sheriff or jailor to whose custody he may be commit- ted ; and the original writ, with the marshal's return thereon, shall be returned to the clerk of the district to which he may be removed. [Act of Feb. 26, 1853, 10 Stat, at L. 162.J 6— 34 aeeest, bail and commitment. The jurisdiction of the Commissioneb Extends to all persons found in his district charged upon oath with having committed any crime or oflfence against the United States. [4 Opin. 306.] ARREST AND REMOVAL. It is not lawful to arrest a person in one district, for an alleged offence against the laws of the United States, and remove him to another district for exam- ination, nor can a district judge authorize such re- moval. The offender, upon being arrested, is entitled to be be taken before the proper officer of the district in which the arrest is made, for examination ; and if probable cause is not shown, or if (the case being bailable) he gives bail, he is entitled to be discharged. It is ooly after a commitment upon the results of such an examination, that an order (by the district judge) can be made to remove him to the district in which the trial is to be had. United States vs. Shephard, 1 Abb. U. S. Rep. 431. THE COMPLAINT. Before the commissioner can properly issue his war- rant of arrest, there must first be a complaint, sup- AEEEST, BAIL AND COMMITMENT. 35 ported by oath or affirmation, showing probable cause. United States vs. Shephard, 1 Abb. U. S. Rep. 431. A defendant may be arrested and committed by one magistrate, for a criminal offence, on an affi- davit made before another. Ex parte Bollman, 4 Cranch 75 ; United States vs. Bun-, 1 Burr's Trial, 97; Conkling's Treatise, 5th Ed., 598. But before such affidavit should be received and acted on, its verity ought to be established beyond any reasonable doubt. {Idem.} A certified copy of an information filed for an offence against the United States, without copies of some oath or affirmacion to facts showing prob- able cause to believe the defendant guilty, does not authorize issuing a warrant of arrest. United States vs. Shephard, 1 Abb. U. S. Rep, 431. The complaint to ground warrant may be in the following form : 36 AEEEST, BAIL AND COMMITMENT. COMPLAINT TO GROUND WARRANT. District of ss. To A. B., Esq., a commissioner appointed by the circuit court of the United States for the district of to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes : C. D., of in the county of and State of on behalf of the United States, on oath, deposes and says that E. F., late of the district aforesaid, hereto- fore to- wit : on or about the day of A.D. 18 — , at, etc., did (here insert the ff round of complaint, as, ' ^exercise and carry on the business of a retail dealer in liquors, not then and there having paid the special tax, as imposed by the Statutes of the United States,'") contrary to the form of the statute in such case made And provided, and against the peace and dignity of the United States. Wherefore the said deponent prays that the said E. F. may be apprehended, and held to answer to this complaint, and further dealt with, relative to the same, according to law. And, furthermore, the said deponent prays that G. H., L J., K. L. and M. N., whom he has reason AEEKST, BAIL AND COMMITMENT. 37 to and does believe are material witnesses to the sub' ject matter of this complaint, may be duly summoned to appear and give evidence relative thereto. (Signed.) C. D. DiSTEICT OF SS. The above-named personally appeared before me, and made oath to the truth of the above com- plaint, by him subscribed, this day of A. D. 18—. U. S. Commissioner as aforesaid. THB WAEEANT. Section 33 of the Act of 1789, provides that the arrest, etc., of offenders against the laws of the United States may be effected agreeably to the usual mode of process against offenders in the State where such arrest is to be made. This provision does not limit the power of arrest to cases in which, according to State laws, a person might be arrested, but simply prescribes the mode to be pursued. Whenever, by the laws of the United States, an offender is to be arrested, the process of 38 AREEST, BAIL AND COMMITMENT. arrest employed in the State must be pursued ; but an arrest is positively enjoined for any pflfence against the United States. 1 Bright, p. 90, note E. The warrant of arrest should be directed by the commissioner to the marshal of his district, and may be in the following form : WAEEANT OF ARKEST. District op Illinois, i**. The United States of America. To the Marshal of the District of : Whereas, C. D., in behalf of the United States', has made complaint on his oath, to me, the under- signed, a commissioner appointed by the circuit court of the United States, within and for the said district of to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes, charging that E. F., of did, on or about the— =^ day of A. D. 18 — , at, etc,, to- wit: at the district aforesaid \here insert a des- cription of the offence charged in the com/plaint;, AEEEST. BAIL AND COMMITMENT. 39 and as nearly in the words of the statute as prac' ticable^ as: '■^exercise and carry on the business of a retail dealer in liquors, not then and there having paid the special tax therefor, as imposed hy the statutes of the United States, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United 8tates."~\ Now, tterefore, you are hereby commanded, in the name of the United States of America, to apprehend the said E. F., and bring his body forthwith before me, or before some other proper officer, authorized by law to arrest, imprison and bail for crimes and offences against the United States, wherever found in your district, that he may then and there be dealt with according to law for said offence. And have you then and there this writ. Given under my hand and seal, this day of A. D. 18—. A. B. , U. S. Commissioner as aforesaid. The warrant must state the name and general character of the offence or offences, the name (or if the name be unknown, that fact should be stated, 4rO ABEEST, BAIL ASTD COMMITMENT. and the party described) of the party to be arrest- ed, and, as near as may be, the time and place of the alleged offence. Exp. Buford, 3 Cranch 447. EXAMINATION AND COMMITMENT. The prisoner, upon being brought before a magistrate, should be immediately, or as soon as the nature of the case will admit, examined and committed, bailed or discharged. [2 Hall, 120.J A defendant arrested on a criminal charge may be committed for a further examination, but it should be for a short, fixed period, and not for an indefinite time. United States vs. Worms, 4, Blatchford C. C. 333. Evidence Showing probable cause to believe that the accused is guilty, is sufficient to warrant his being com- mitted for trial. ^x parte VanCampen, 2 Benedict, 1419. The commissioner should not require that proof which would be necessary to convict the person to ABEBST, BllL AND OOMMITMENT, 41 be committed on a trial in chief, nor should he even require that which should absolutely convince his own mind of the guilt of the accused ; but he ought to require, and he should require, that prob- able cause be shown, i. e.: a case made out by proof, furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it. 1 Burr's Trial, 11. As the action of the commissioner as an exam- ining and committing magistrate is subject to the review of the court on habeas cdrpus and certiorari (.5 Blatchford C. C. 303, 414), it would be more satisfactory if the minutes of the commissioner were always formally taken, and the testimony of the witness read over to him and subscribed by his own hand. [Idem, 303.] A magistrate may commit on an affidavit (sup- ported by probable cause) taken before another mag- istrate. Ex parte BoUman, 4 Cranch, 75. 42 AEEE8T, BAIL AND COMMITMENT. A WARRANT OF COMMITMENT Should show that the accused was committed upon proof of probable cause, supported by oath, and should describe the offence for which the commitment was ordered. The mittimus may be as follows : (SorxHEEN) District of ss. The United States of America. To the Sheriff or Jailor of County: Whereas, E. F., has been charged upon oath before me, the undersigned, a commissioner appointed by the circuit court of the United States for the district of , to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes, with having committed an offence against the laws of the United States, in this : that on the day of A. D. 18—., at \_Statethe name of the district where the offence loas committed^ the said E. F. did [describe the offence set forth in the warrant of arrest.^ And after an examination had this day, by me, of the witnesses against the said E. F., it appearing to me that the said offence has been AEEEST, BAIL AND COMMITMENT. 43 committed, and that there is probable cause to be- lieve the said E. F. to be guilty of the offence thus charged, and the said E. F., not having offered sufficient bail, as required by me, the said commis- sioner, in the sum of dollars, for his appearance at the next term of the court of the United States, for the district of to be holden at the United States court room, in the city of . on the first \Monday\ of [January] next, to answer for the said offence, was by me then and there ordered to be committed to the common jail of county, for want of sureties, and until he should be discharged by due course of law. You are therefore, hereby commanded, in the name and by the authority of the United States of America, to receive the said E. F., and him safely keep, until he shall be delivered by due process of law. Given under my hand and seal this day of A. D. 18—. U. 8. Commiadoner as aforesaid. THE EECOGNIZANCE OE THE ACCUSED To appear in court, and answer to the charge pre- ferred against him before the commissioner, may be as follows: M AHBEST, BAIL AND COMMITMENT. RECOGNIZANCE OF THE ACCUSBX). (Southern) District of ss. Before me, A. B., a commissioner appointed by the Circuit Court of the United States for said dis- trict, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes, personally appeared E. F., G. H. and J. K., and entered into recognizance as follows : We E. F., as principal, and G. H. and J. K., as sureties, of the county of and State of , ac- knowledge ourselves to owe and be indebted to the United States of America, in the penal sum of dollars, to be levied of our respective goods and chat- tels, lands and tenements, subject, however, to the following condition, to-wit : Whereas the said E. F. has been charged on oath, before the said A. B., commissioner as aforesaid, with having committed an offence against the United States, in this, that on the day of A. D. 18 — at in the district of the said E. F. did [here set forth the offence as described in the wa/r- rant |, and upon said charge being made as aforesaid, the said A. B., commissioner aforesaid, did issue his AEKEST, BAIL AND COMMITMENT. 45 warrant in due form of law, for the arrest of the said E. F. And whereas, the said E. F., one of the parties above named, has been brought before the said A.B., commissioner as aforesaid, to answer to the said charge, and witnesses have been duly sworn and ex- amined in relation to said charge, in presence of said E. F., and upon such examination, it appearing to the said commissioner that the offence with which the said E. F. stood charged as aforesaid, had been committed, and that there was probable cause to be- lieve the said E. F. to be guilty thereof, and the said offence being bailable by the said commissioner, he did thereupon order the said E. F. to find sufficient bail in the sum of -dollars, for his appearance at the next term of the court of the United States for the district of , to be holden at the city of , on the first [^Mbnday]^ of [January'] next, to answer all such matters and things pertaining to said charge as should be objected against him, and that in default of finding such bail, the said E. F. should stand committed for trial. Now, therefore, if the said E. F. shall personally be and appear before the said court of the United 46 AEEEST, BAIL AND COMMITMENT. States for the said distriet, at the next term thereof, to be held in the city of , on the first [ifore- da/y\ of [Janua/ry] next, to answer all such matters and things pertaining to the said charge as shall be objected against him, and abide the order of coart, and not depart the said court without leave, and until the charge shall have been duly disposed of, make like appearance at each successive term of said court, then this recognizance to be void, other- wise to remain in full force and virtue. Witness our hands this day of A. D. 18 — . E. F. G. H. J. K. Taken and acknowledged before me, this day ot^ A. D. 18—. A. B., U. S. Commissioner as aforesaid. District of ss. G. H. and J. K., parties to the above recog- nizance, being duly sworn, depose and say, that they I'eside at ^in the county of and State of , and are worth in property situated in the ARREST, BAIL AND COMMITMENT. 47 -district of , liable to execution,- doUars over and above all their debts and liabilities. G. H. J. K. Subscribed and sworn to before me, this day of A. D. 18—. A. B., TJ. S. Commissioner as aforesaid. The commissioner has power to adjourn an exam- ination to another tiijie and place (United States vs. Rundlett, 2 Curtis C. C. 41), and may require the accused to give bail for his appearance while his ex- amination is depending. 1 Burr's Trial, 4. The condition of the recognizance to appear before the commissioner, can be shown to be broken only by calling the cognizor, at the time and place when and where he is bound to answer, and making an entry of his default ; it can not be shown by evidence aliunde. United States vs. Rundlett, 2 Curtis C. C. 41. WITNESSES. As already shown, the commissioner has power to comp&l the attendance of witnesses, and to take 48 ABSEST, BAIL A2JD COMMITMENT. their recognizances to appear and give testimony at the trial. In no case shall the fees of more than four wit- nesses be taxed against the United States in the examination of criminal cases before the commis- sioners of the United States circuit courts, unless their materiality and importance shall first be approved and certified to by the United States district attorney, for the district in which the ex- amination shall take place, subject to revision as in other cases [Act of Aug. 16th, 1856, 11 Stat, at L. 50.] The certificate of attendance before the commis- sioner may be as follows : certificate of attendance of witnesses, (Southern) District of (Illinois,) •s'.?. Before A. B. , JI. 8. Commissioner. United States, ] Charge, vs. y To the Marshal of the {Southern) District of {Illi nois): AEEEST. BAIL AND COMMITMENT. 49 I hereby certify that it appears from an affidavit on file in my office that attended before me as witness in the above entitled cause on the — —day of A.D. 18 — , and were duly subpoenaed on behalf of the United States. That reside in in the county of and State of (Illinois), SEAL. miles from the city of \h&re state place of examina- tion], by the traveled route. Given under my hand and seal, this day of A. D. 18—. A. B,, U. 8. Commissioner for the {Southern) District of {Illinois.) The affidavit of attendance of witnesses may be as follows : affidavit of attendance of witnesses. (Southern) District of (Illinois,) ss. United States, ) Charge,. vs. Before A. B. , U. 8. Commissioner. being duly sworn, deposes and says that he attended before the above named commissioner, at — T 50 POWEES TTNDER THE OITIL EIGHTS ACTS. his office in , on the day of A. D. 18 — , as a witness in the above entitled suit, and that he was duly subpoenaed on behalf of the United States, and that he resides in , in county, and State of {Illinois), miles from {^place of exam- ination^, by the traveled route. Subscribed and sworn to before me, this day of A. D. 18—. U. 8. Commissioner for the said district. SECTION" IX. POWERS TTNDEB THE CIVIL RiaHTS 'ACTS. * * * * And with a view to affording reasonable protection to all persons in their constitu- tional rights of equality before the law, without dis- tinction of race or color, or previous condition of slavery or involuntary servitude, except as a punish- ment for crime, whereof the party shall have been duly convicted, and to the prompt discharge of the duties of this act, it shall be the duty of the circuit courts of the United States, and the supreme courts of the territories of the United States, from time to POWEES UNDER THE CIVIL EIGHTS ACTS. 51 time, to increase the number of commissioners, so as to aflford a speedy and convenient means for the arrest and examination of persons charged with a violation ^ of this act ; and such commissioners are hereby au- thorized and required to exercise and discharge all the powers and duties conferred on them by this act, and the same duties with regard to offences created by this act, as they are authorized by law to exercise with regard to other offences against the laws of the United States. [Act of April 9th, 1866, sec. 4, 14 Stat, at L. 27 ; Act of May 31st, 1870, 16 Stat. 140.] * * * And the better to enable the said commissioners to execute their duties faithfully and efficiently, in conformity with the constitution of the United States and the requirements of this act, they are hereby authorized and empowered, within their counties respectively, to appoint in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful per- formance of their respective duties. {Idem, sec. 5 ; Act of May Slst, 1870, sec. 9, 16 Stat, at L. 142.] 52 DESEETEES FEOM FOEEIGN VESSELS. SECTION X I DESERTERS FROM FOREIGN VESSELS. On application of a consul or vice-consul of any foreign government having a treaty with the United StateSj'stipulating for the restoration of seamen de- serting, made in writing, stating that the person therein named has deserted from a vessel of any such government, while in any port of the United States, and on proof, by the exhibition of the register of the vessel, ship's roll or other official document, that the person named belonged, at the time of desertion, to the crew of said vessel, it shall be the duty of any court, judge, justice or other magistrate (or commission- er, Act of Feb. 24th, 1855, 10 Stat. atL. 614), having competent power, to issue warrants to cause the said person to be arrested for examination ; and if, on ex- amination, the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the said consul or vice-consul, to be sent back to the dominions of , any such government ; or, on the request, and at the ex- pense of the said consul or vice-consul, shall be detained until the consul or vice-consul finds an oppor- tunity to send him back to the dominions of any such DISCHAEGE OF POOK CONVICTS. 58 government: Provided, nevertheless, that no person shall be detained' more than two months after his arrest ; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause : And provided further, that if any such desert- er shall be found to have committed any crime or offence, his surrender may be delayed until the tri- bunal before which the case shall be depending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect. [Act of March 2d, 1829, 4 Stat, at L. 359.] 8ECTI0NXI. DISCHAEGE OF POOK CONVICTS. When a poor convict, sentenced by any court of the United States to be imprisoned and pay a fine, or fine and cost, or to pay a fine, or fine and cost, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and cost, such convict may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the 54 DISOHAEGE OF POOE CONVICTS. district attorney of the United States, who may ap- pear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if, on examination, it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the fol- lowing oath : "I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of Instate where oath is administered /']a,ndih&t I have no property in any way conveyed or con- cealed, or in any way disposed of, for my future use or benefit. So help me God." And thereupon such convict shall be discharged, the commis- sioner giving to the jailor or keeper of the jail a certificate setting forth the facts. [Act of June 1st, 1872, sec. 14, 17 Stat. 197.] If the convict swears falsely he may be punished for perjury. [Idem, sec. 15.] EXTRADITION. 55 SECTION XII. EXTRADITION. In all cases in which there now exists, or here- after may exist, any treaty or convention for extra- dition, between the government of the United States and any foreign government, it shall and may be lawful for any of the justices of the supreme court, or judges of the several district courts of the United States, and the judges of the several State courts, and the commissioners authorized so to do by any of the courts of the United States, are hereby sev- erally vested with power, jurisdiction and authority, upon complaint made under oath or affirmation, charging any person found within the limits of any State, district or territory, with having committed, within the jurisdiction of any such foreign government any of the crimes enumerated or provided for by any such treaty or convention, to issue his warrant for the apprehension of the person so charged, that he may be brought before such judge or commissioner, to the end that the evidence of criminality may be heard and considered ; and if, on such hearing, the evidence be deemed sufficient by him to sustain the 56 EXTKADITION. charge under the provisions of the proper treaty or convention, it shall be his duty to certify the same, together with a copy of all the testimony taken before him, to the secretary of state, that a war- rant may issue upon the requisition of the proper authorities of such foreign government, for the sur- render of such person, according to the stipulations of said treaty or convention ; and it shall be the duty of the said judge or commissioner to issue his warrant for the commitment of the person so charged to the proper ' jail, there to remain until such surrender shall be made. [Act of Aug. 12th, 1848, sec. 1, 9 Stat. 302. J In every case of complaint as aforesaid, and of a hearing upon the return of the warrant of arrest, copies of the depositions upon which an original warrant in any such foreign country may have been granted, certified under the hand of the per- son or persons issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be re- ceived in evidence of the criminality of the person so apprehended. [Ibid, sec. 2.J If the Commissioner certifies the criminality of EXTKADITION. 57 the accused, then the president is to order a sur render, otherwise there is the end, pro hac vice, of the duty and the power of the president. Nor can appeal be taken from the decision of the magistrate to any other court, so as to revise that decision. The judge or magistrate in the case acts by special authority under the act of congress ; no appeal is given from his decision by the act; and he does not exercise any pai't of what is technically con- sidered the judicial power of the United States. [6 Opin, 91. J The magistrate may act with or without the mandate from the president, and examine on oath any persons touching the truth of the charge, and upon such evidence, as, according to the law of the place, would justify the apprehension and commit- ment for trial of the person accused of the crime to jail, shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until delivered up in pursuance of the requisition of the United States. [Ibid. \ —8 68 ' EXTRADITION. poem for "warrant of commitment. United States of America. (Southern) District of (New York,) ss. In the matter of (Thomas Kane.) This case having been heard before me, on re- quisition, through (Anthony Barclay, Esquire, Her Britannic Majesty'' s Consul at the Port of New York), that the said (Kane) be committed for the purpose of being delivered up as a fugitive from justice, pursuant to the provisions of the treaty made be- tween the United States and (Great Britain, Aug. Mh, 1842), I find and adjudge that the evidence produced against the said (Kane) is sufficient in law to justify his commitment on the charge of (assault with intent to commit murder) had the crime been' committed within the United States. Wherefore I order that the said (Thomas Kane) be committed, pursuant to the provisions of the said treaty, to abide the order of the President of the United States in the premises. SEAECH WAEEANTS. BUEBTT OF THE PEACE. 59 Given under my hand and seal, at the city of {New YnrJc) this (29^^) day of {June) A. D. (1852). (Signed). Joseph Bridgham, [l. s.J United States Commissioner for the {So.) District of {New York.) SECTION XIII. SEARCH WARRANTS. Section 15 of the Act of July 13th, 1866, (14 Stat, at L. 98), provides "That the judge of any circuit or district court of the United States, or any commissioner thereof may issue a search war- rant, authorizing any internal revenue officer to search any premises, if such officer shall make oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of said premises." SECTION XIV. SURETY OF THE PEACE. The judges of the supreme court, and of the several district courts of the United States, and all 60 STJEETT OF THE PEACE. judges and justices of the courts* of tlie several States, having authority by the laws of the United States to take cognizance of offences against the constitution and laws thereof, (and the commission- ers, Act of May 15th, 18fi2, sec. 8, 12 Stat, at L. 387), shall respectively have the like power and authority to hold to security of the peace and for good behavior, in cases arising under the constitu- tion and laws of the United States, as may or can be lawfully exercised by any judge or justice of the peace of the respective States, in cases cognizable before them. [Act of July 16th, 1798, sec. 1, 1 Stat. 609.] CHAPTER III. ACCOtTNTS. Tte accounts of cominissioners, in cases where the United States are liable for fees, should be made out and verified by the commissioner under oath, examined and certified to by the district judge of the district in which they are appointed, and for- waraed to the First Auditor of the Treasury, at Washington. [Act of Aug. 16th, 1856, sec. 1, 11 Stat. 49.J The commissioners' accounts for services in each fiscal year (ending on 30th of June) are payable only from the appropriation made for that fiscal year (beginning July 1st and ending June 30th) in which the services are performed ; and no accounts should contain fees earned in different fiscal years. The account may be formed as follows : 62 ACCOUNTS. Statement of compensation due United States commissioner for the district of , and residing at— , for services rendered as per the fol- lowing bill and vouchers, numbered from 1 to — : The United States of America, Dr. To TJ. S. Oommissioner. 1874. July 1, 10. The United States vs. John Doe, voucher No. : $10 40 The United States vs. Richard Roe, voucher No. 2 [jProceed in liJce manner with all cases whe^in fees are claimed, and sum up total amount due.] United States op America, J >ss. District of ) — ■ United States commissioner for the district of being duly sworn, deposes and says, " That all the services charged for in the foregoing account, and in the vouchers therein referred to, have been actually and necessarily rendered as therein stated." ACCOUNTS. 63 SuV)scribed and sworn before me, this day of — A. D. 18—. -Glerh IT. 8. District Court. [Or other officer having authority to administer oath.J judge''s ceetifioate. United States of America, \ yss. District of j I , Judge of the United States district court for the district of , do hereby certify that I have carefully examined the foregoing bill of United States commissioner for the district ot^ , and find the same correct, and that the services charged therein have been actually and necessarily performed, as therein stated. Vouchee No. 1. United States op America, To U. S. Oommissioner for the District of , Dr. For fees in case of U. S. vs. John Doe, (Violation of Revenue Law.) 64 AOOOtTNTS. 1874. July 1, For draw'g affidavit of complaint, 3 folios, 45c.; oath, lOc; filing, 10c 65 For capias, $1 00; entering return, 15c.; filing lOc; precipe for sub- poena, 10c. 1 35 For subpoena, 25c.; entering return, 1 folio, 15c.; filing, lOc 50 July 10. For recognizance of deft., 5 folios 75c.; acknowledgment, 25c 1 00 For recognizance of witness, 5 folios 75c.; acknowledgment, 25c 1 00 For 3 oaths of sureties, 30c.; 3 oaths of attendance of witnesses, 30c. . 60 For certificate to marshal for pay of witnesses, 2 folios 30 For hearing and deciding case, one day 5 00 $10 40 \_Proceed in like manner with each case in which fees are claimed, specifying in detail the services ren- dered {giving the date in the ma/rgin) and for which fees a/re claimed. ] TEES. 66 FEES. For administering an oath, ten cents ; taking an acknowledgment, twenty-five cents. For hearing and deciding on criminal charges, five dollars per day for the time necessarily employed. For attending to a reference in a litigated matter in a civil cause at law, in equity, or in admiralty, in pursuance of an order of court, three dollars per day. For taking and certifying depositions to file, twenty cents for each folio of one hundred words, and ten cents per folio for each copy of the same furnished to a party on request. For issuing any warrant, or writ, or any other ser- vice, the same compensation as is allowed to clerks for like services. (See "Clerks' Fees/' p. 66). For issuing any warrant under the tenth article of the treaty of the ninth of August, eighteen hundred and forty-two, between the United States and the Queen of the United Kingdom of Great Britain and Ireland, against any person charged with any of the crimes or offences set forth in said article, two dollars ; and the same sum for any warrant issued under the 9— 66 OLEEKS' FEES. provisions of the convention for tlie surrender of criminals, between the United States and the King of the French, concluded at Washington, on the ninth day of November, eighteen hundred and forty-three ; and for hearing and deciding, upon the case of any person charged with any offence or crime, and arrested under the provisions of said treaty, or convention, five dollars per day for the time necessarily employed. [A»ct of Feb. 26th, 1853, 10 Stat. 167.J For examination and certificate in proceedings for the discharge of poor convicts, five dollars per day for every day engaged in such examination. [Act of May 31st, 1872, sec. 16, 17 Scat., p. 199.J For services incident to arrest and examination under Civil Rights Act, ten dollars in each case. [Act of April 9th, 1866, sec. 7, 14 Stat., 27.] CLEEKr's FEES. For issuing and entering every process, commission, summons, capias, execution, warrant, attachment or other writ, except a writ of venire, summons or sub- poena for a witness, one dollar. For filing and entering every declaration, plea or other paper, ten cents. clerks' tees. 67 For administering every oatli or affirmation to a witness or other person, except a juror, ten cents. For entering any return, rule, order, continuance, judgment, decree or recognizance, drawing any bond or making any record, certificate, return or report, for each folio, fifteen cents ; and for a copy of any such entry, or of any paper on file, not exceeding one folio, ten cents ; and for each additional folio, ten cents. For making dockets and indexes, and for all other services on the trial or argument of a cause where issue is joined and testimony given, including venire and taxing costs, three dollars. For making dockets and indexes, 'and for taxing costs and other services in a cause where issue is joined and po testimony given, including taxing costs, two dollars. For making dockets and indexes, and for taxing costs and other services in a cause which is dismissed, discontinued, or a judgment or decree is made or rendered therein without issue, one dollar. In equity and admiralty causes only, the process, pleadings and decree, and such orders and memoran- d.a as may be necessary to show the jurisdiction of the 68 CLERKS FEES. court and regularity of the proceedings, stall be en- tered upon the final record ; and, in case of an appeal, copies of tte proofs, and of such entries and papers ou file as may be necessary on hearing of the appeal, may be certified up to the appellate court. For affixing the seal of the court to any instru- ment when required, twenty cents. For issuing a writ of subpoena, twenty-five cents. For every search for any particular mortgage, judgment or other lien, fifteen cents. For traveling from the office of the clerk, where he is required by law to reside, to the place of holding any cojirt required to be held by law, five cents per mile for going, and five for returning, and five dollars per day for his attendance on any such court or courts while actually in session. For searching the records of the court for judg- ments, decrees and other instruments, constituting a general lien upon real estate, and certifying the result of such search, fifteen cents for each person against whom such search is required to be made. For receiving, keeping and paying out money, in pursuance of the requirements of any statute or order witnesses' fees. 69 of court, one per cent, on the amount so received, kept and paid. In cases removed by writ of error or appeal, the clerk's fees for making dockets and taxing costs, shall be but one dollar ; and the clerks of the district and circuit courts respectively, ex officio, shall be, and hereby are, authorized and empowered to adminis- ter oaths, take acknowledgments, take and certify affidavits and depositions in the same manner as com- missioners, and shall be entitled to the same fees and compensation therefor. [Act of Feb. 26th, 1853, 10 Stat., 163.] witnesses' fees. For each day's attendance in court, or before any officer, pursuant to law, one dollar and fifty cents, and five cents per mile for traveling from his place of res- idence to said place of trial or hearing, and five cents per mile for returning. When a witness is subpoe- naed in more than one cause between the same parties in different suits at the same court, but one travel fee and onq per diem compensation shall be allowed for attendance, to be taxed in the first case disposed of, 70 ■witnesses' fees. and per diem "only in the other causes, to be taxed from that time in each case, in the order in which they may be disposed of. [Act of Feb. 26th, 1853, 10 Stat., 157.] U. S. Commissioner's Manual STJI^I^LElIMIElsrT. The following table of corrections, indicating the latest changes in the times of holding the several Circuit and District Courts, should be consulted in con- nection with the list printed in the body'of the Manual, the reader will then have a. correct statement of the Terms as now held in the several districts. November 14th, 1874. ALABAMA. On page yi, under "Alabama," in first line instead of as there printed, read first Monday in April and second Monday in October; and on same page, in third line from bottom, for " Fourth," read First. On page 72, under Southern District, Fifth Judicial Circuit, instead of as there printed, read Circuit and District Courts, first Monday in June and fourth Monday in December, at Mobile. ERRATA. CALIFORNIA. On. page 73, under " California," in first line, for " first," read second; in second line, for "June," read July; in same line, for " first," read second ; in same line, for " October," read December. GEORGIA. On page 76, under '■'■Southern District, Fifth yudicial Circuit" in first line, after "April," read at Savannah; in third line, for " Savannah," read Milledgeville. ILLINOIS. On page 77, under " Illinois," in second line, for " third Monday in October," read third Monday in December. INDIANA. On page 78, under " Indiana," in fourth line, for " Febru- ary," read April ; in same line, for "August," read October. IOWA. On same page, under " lovsra," in head line, for '■'■District^'' r&aA '■'■ Circuit ;" in first line, for " Tuesday," read Monday; in second line, for "third Tuesday," read second Monday; in third and fourth line, for " third Tuesdays in January and July," read fourth Mondays in March and September; in fifth line, for " March and September," read January and June. MISSOURI. On page 84, under " Missouri," in first line, for " first," read third ; in same line, for " May, read March ; in second line, for " November," read September. In same line, for " third," read first; in same line, strike out February. ERRATA. 3 NEBRASKA. On page 85, under " Nebraska," in second line, before ' November," insert second Monday of; in second line, after " District Court ," instead of as there printed, read first Mon- day in May and November, at Omaha. NEVADA. On same page, under " Nevada," in first line, for " first," read second ; in same line, for "August," read June ; in second line, for " December," read October. OHIO. On page 90, under "Ohio," in third line, after " Toledo," insert on the second Tuesday of June and December. OREGON. On page 91, under " Oregon," in first line, for " first," read second ; in same line, for " January," read April ; in second line, for " May," read August; in same line, for " Septem- ber," read November. TEXAS. On page 95, under " Western District, Pifth yudicial Circuit" in second line, after " June," insert, at Austin. VERMONT. On page 96, under " Vermont," after " Terms," instead of as there printed, read. Circuit and District Courts, fourth Tuesday in February, at Burlington; third Tuesday of May, at Windsor, and first Tuesday of October, at Rutland. 4 ERRATA. WEST VIRGINIA. On page 98, under " West "Virginia," in third line, for " September," read August. / WISCONSIN. On page 99, under " Wisconsin," in second line, for " first Monday," read second Tuesday. THE CIRCUIT AND DISTRICT COURTS UNITED STATES [Except where otherwise specified, the Clerk resides at the place of holding Court.] ALABAMA. Northern district, fifth judicial circuit. Teems. — Third Monday in May and November, at Hunts ville. Clerk district court, Lionel W. Day. COUNTIES IN THE DISTRICT. Blount, Calhoun, Cherokee, Cleburne, Colbert, De Kalb, Etowah, Fayette, Franklin, Jackson, Jefferson, Lauderdale, Lawrence, Limestone, Madison, Marion, Marshall, Morgan, Saint Clair, Sanford, Walker and Winston. Middle district, fifth judicial circuit. Teems. — Fourth Monday in May and November, at Montgomery. Clerk United States district court, E. C. V, Blake. 72 THE CIECUIT Am) DISTEIOT COURTS COUNTIES IN THE DISTRICT. Autauga, Baker, Barbour, Bibb, Bullock, Butler, Chambers, Clay, Coffee, Coosa, Covington, Crenshaw, Dale, Dallas, Elmore, Geneva, Henry, Lee, Lowndes, Macon, Montgomery, Perry, Pike, Randolph, Russell, Shelby, Talladega, Tallapoosa and Tuscaloosa. Southern district, Jlfth Judicial circuit. Terms. — Circuit court, second Monday in April, and fourth Monday in December, at Mobile. District court, fourth Monday in April and second Monday after fourth Monday in November, at Mobile. Clerk United States courts, Nathaniel W. Trimble. COUNTIES IN THE DISTRICT. Baldwin, Choctaw, Clark, Conecuh, Escambia, Greene, Hale, Marengo, Mobile, Monroe, Pickens, Sumter, Washington and Wilcox. ARKANSAS. -Eastern district, eighth judicial circuit. Teems. — Circuit court, second Monday in April, and fourth Monday in October, at Little Rock. District court, first Mondays in April and October, at Little Rock. Clerk United States courts, Ralph L. Goodrich. COUNTIES IN THE DISTRICT. Newton, Searcy, Van Buren, Pope, Conway, White, Yell, Perry, Saline, Pulaski, Montgomery, Hot Springs, Pike, Clark, Hempstead, Lafayette, Colum- bia, Ouachita, Dallas, Calhoun, Union, Grant, Prairie, Jefferson, Bradley, Ashley, Drew, Chicot, Desha, Arkansaw, Lincoln, Nevada, Dorsey, Faulkner, Gai- land and Lonoke. OF THE UNITED STATES. 73 Western District, eighth judicial circuit. Teems. — District court (having circuit court powers), second Mondays in May and November, at Fort Smith ; second Mondays in March and September, at Helena. Clerks United States Courts, James O. Churchill, Fort Smith ; W. A. E. Tisdale, DeVall's Bluflf. COUNTIES IN THE DISTRICT. The entire Indian Territory, and Phillips, Missis- sippi, Crittenden, Monroe, Woodruff, Jackson, Saint Francis, Cross. Poinsett, Craighead, Green, Randolph, Sharp, Lawrence, Izard, Independence, Marion, Ful- ton, Boone, Carroll, Benton, Madison, Washington, Crawford, Franklin, Johnson, Sebastian, Sarber, Scott, Polk, Sevier, and Little River. CALIFORNIA. Ninth judicial circuit. Terms. — Circuit court, first Monday in February, second Monday in June, and first Monday in October, at San Francisco ; district court, first Monday in April, second Monday in August, and first Monday in December, at San Francisco. Clerk United States circuit court, L. S. B. Sawyer ; clerk United States district court, Ed. B. Cotter. The district comprises the entire State. CONNECTICUT. Second judicial circuit. Teems. — Circuit court, fourth Tuesday in April at New Haven, and third Tuesday in September at Hart- ford ; district court, fourth Tuesdays in February, —10 74 THE OIECUIT AND DI8TEI0T COUET8 May, August and November, at Hartford and New- Haven alternately. Clerk United States courts, Loren P. Waldo, Hart- ford, The district comprises the entire State. DELAWARE. Third judicial circuit. Teems. — Circuit court, third Tuesdays in June and October, at Wilmington ; United States distiict court, second Tuesdays of January, April, June, and September, at Wilmington. Clerk United States courts, Samuel R. Smith, The district comprises the entire State — New Cas- tle, Kent and Sussex. DISTRICT OF COLUMBIA. Teems. — Circuit court, fourth Monday in January, second Monday in May, and third Monday in Octo- ber ; district court, first Mondays in June and Decem- ber, at Washington ; criminal court, first Mondays in March and December, and third Monday in June, at Washington. Clerk district, circuit and criminal courts, R. J. Meigs. District of Columbia — Washington City, George- town, &c. OF THE UNITED STATES. 75 FLORIDA. Northern disti'ict, fifth judicial circuit. Tebms. — District court (having circuit court pow- ers), first Monday in December, at Jacksonville; first Monday in February, at Tallahassee ; first Monday in March, at Pensacola. Clerks United States courts, Josiah E. Townsend, Jacksonville ; Charles H. Foster, Tallahassee ; M. P. DeRieboo, Pensacola. COUNTIES IN THE DISTRICT. Escambia, Santa Rosa, Walton, Holmes, Washing- ton, Jackson, Calhoun, Franklin, Gadsden, Leon, Wakulla, Jefferson, Madison, Hamilton, Suwannee, Taylor, LaFayette, Columbia, Baker, Bradford, Nas- sau, Duval, Saint John's, Clay, Putnam, Alachua, Levy, Marion, Sumter, Polk, Hernando, Hillsborough, Orange, Volusia, Brevard, and so much of Manatee county as is north of the forty-second township line. Southern District^ fifth judicial circuit. Teems — First Mondays in May and November, at Key West. Clerk United States courts, Eugene O. Locke. COUNTIES IN THE DISTRICT. Monroe, Dade, and parts of Manatee and Brevard. GEORGIA. Northern district, fifth judicial circuit. Terms. — District court, first Monday in March and September, at Atlanta. Circuit court, second Mon- day in March and September, at Atlanta. 76 THE CIRCUIT AND DISTRICT COtTETS Clerk United States courts, Alfred E Buck. COUNTIES IN THE DISTRICT. Banks, Bartow, Butts, Campbell, Carroll, Catoosa, Chattooga, Cherokee, Clarke, Clayton, Cobb, Coweta, Dade, Douglas, Dawson, DeKalb, Elbert, Fannin, Fayette, Floyd, Forsyth, Franklin, Fulton, Gilmer, Gordon, Greene, Gwinnett, Habersham, Hall, Haral- son, Hart, Heard, Henry, Jackson, Jasper, Lincoln, Lumpkin, Madison, Merriwether, Milton, Morgan, Murray, Newton, Oglethorpe, Paulding, Pickens, Pike, Polk, Rabun, Rockdale, Spalding, Taliaferro, Towns, Troop, Union, Walker, Walton, White, Whitfield and Wilkes. Southern district, fifth judicial circuit. Tekms. — Circuit court, second Monday in April, and Thursday after first Monday in November, at Savannah. District court, second Tuesdays in Feb- ruary, May, August and November, at Savannah. Clerk United States courts. James McPherson. COUNTIES IN THE DISTRICT. Appling, Baker, Baldwin, Berrien, Bibb, Brooks, Bryan, Bullock, Burke, Calhoun, Camden, Chatham, Chattahoochee, Charlton, Clay, Clinch, Coffee, Col- umbia, Colquitt, Crawford, Decatur, Dodge, Dooley, Dougherty, Early, Echols, Effingham, Emanuel, Glascock, Glynn, Hancock, Harris, Houston, Irwin, Jefferson, Johnson, Jones, Laurens, Lee, Liberty, Lowndes, Macon, Marion, Mcintosh, McDuffie, MiUer, Mitchell, Monroe, Montgomery, Muscogee, Pierce, Pulaski, Putnam, Quitman, Randolph, Richmond, Schley, Screven, Stewart, Sumter, Talbot, Tatnall, Taylor, Telfair, Terrell, Thomas, Twiggs, Upson, OF THE UNITED STATES. 77 "Ware, Warren, Washington, Wayne, Webster, Wil- cox, "Wilkinson and Worth. ILLINOIS. North&rn district^ seventh jvdicial circuit. Terms. — First Mondays in March, May, July and October, and third Monday in October, at Chicago. Clerk United States courts, William H. Bradley. COUNTIES IN THE DISTRICT. Boone, Bureau, Carroll, Cook, DuPage, DeKalb, Grundy, Henderson, Henry, Iroquois, Jo Daviess, Kane, Kankakee, Kendall, Knox, Lake, LaSalle, Lee, Livingston, McHenry, Marshall, Mercer, Ogle, Peoria, Putnam, Eock Island, Stark, Stephenson, "Warren, Whitesides, WiU, Winnebago and Woodford. Southern district., seventh judicial circuit. Teems. — Circuit and district courts, first Mondays in January and June, at Springfield. Additional terms of the district court, first Mondays in March and October, at Cairo. Clerk United States circuit court, John A. Jones, Springfield; clerk United States district court, George P. Bowen, Springfield. COUNTIES IN THE DISTRICT. Adams, Alexander, Brown, Bond, Coles, Cham- paign, Crawford, Clinton, Clark, Calhoun, Christian, Cass, Cumberland, De Witt, Douglas, Edgar, Ed- wards, Effingham, Fayette, Ford, Fulton, Franklin, 78 THE OIECUIT AND D18TEI0T 00UET8 Gallatin, Green, Hamilton, Hancock, Hardin, Jack son, Jasper, Jefferson, Jersey, Johnson, Lawrence Logan, Moultrie, Macon, Macoupin, Madison, Marion Mason, Massac, McDonough, McLean, Menard, Mon roe, Montgomery, Morgan, Perry, Piatt, Pike, Pope, Pulaski, Randolph, Richland, Saline, Sangamon. Schuyler, Scott, Shelby, Saint Clair, Tazewell, Union Vermilion, Wabash, Washington, Wayne, White, and Williamson. INDIANA. Seventh judicial circuit. Teems. — Circuit and district courts, first Tuesdays in May and November, at Indianapolis, first Mondays in January and July, at New Albany ; and first Mondays in February and August, at Evansville. Clerk United States courts, John D. Howland, Indianapolis. The district comprises the entire State. IOWA. Eighth judicial District. Tbbms. — United States circuit court,* second Tues- day in May and third Tuesday in October, at Des Moines ; United States district court, third Tuesdays in January and July, at Council Bluffs ; third Tues- days in March and September, at Keokuk ; third Tuesdays in April and November, at Dubuque; third Tuesdays in May and October, at Des Moines. OF THE UNITED STATES. 79 Cleik circuit court, George B. Corkhill, Mount Pleasant; clerk district court, Henry K. Love, Du- buque. The district comprises the entire State. KANSAS. Eighth judicial circuit. Teems. — Circuit court, first Monday in June, at Leavenworth ; fourth Monday in November, at To- peka. District court, second Monday in April, at Topeka ; second Monday in October, at Leavenworth. Clerk United States courts, A. S. Thomas, Topeka. The district comprises the entire State. KENTUCKY. Sixth judicial circuit. Teems. — Circuit and district courts, first Monday in October and third Monday in February, at Louis- ville ; first Monday in November and second Monday in April, at Paducah ; first Monday in December and second Monday in May, at Covington. Clerks United States courts, W. A. Meriwether, Louisville ; Henry Bostwick, Covington ; John R. Puryear, Paducah. The district comprises the entire State. 80 THE CIECUIT AND DI8TEI0T COITRTS LOUISIANA. Fifth judicial cvrcuit. Teems. — Circuit court, first Monday in November and fourth Monday in April, at New Orleans. District courtj third Mondays in February, May and November, at New Orleans. Clerk United States circuit court, Francis A. Woof- ley ; clerk United States district court, Charles Clai- borne. The district comprises the entire State. MAINE. First judicial circuit. Teems. — Circuit court, 23d day of April and Sep- tember, at Portland. District court, first Tuesdays of February and December, at Portland ; first Tues- day of September, at Bath ; and fourth Tuesday of June, at Bangor. Clerk United States circuit court, George F. Emery, Portland ; clerk United States district court, William P. Preble, Portland. The district comprises the entire State. MARYLAND. Fourth judicial cvrcuit. Teems. — Circuit court, first Mondays in April and November, in Baltimore. District court, first Tues- days in March^ June, September and December, at Baltimore. OF THE UNITED STATES. 81 Clerk United States courts, James W. Chew. The district comprises the entire State. MASSACHUSETTS. First judicial circuit. Teems. — Circuit court, 15th of May and 15th of October, at Boston. District court, third Tuesday in March, fourth Tuesday in June, second Tuesday in September, and first Tuesday in December, at Boston. Clerk United States circuit court, John G. Stetson ; clerk United States district, Edward Dexter. The district comprises the entire State. MICHIGAN. Eastern district, sixth judicial circuit. Teems. — United States courts, first Tuesdays in March, June and November, at Detroit. Clerk United States circuit court. Addison Man- dell ; clerk United States district court, Darius J. Davidson. COUNTIES IN THE DISTRICT. Branch, Hillsdale, Lenawee, Monroe, Wayne, Washtenaw, Jackson, Calhoun, Ingham, Livingston, Oakland, Macomb, Saint Clair, Lapeer, Genesee, 11— 82 THE OIECTJIT AiTO DISTRICT COUETS Shiawassee, Clinton, Gratiot, Saginaw, Tuscola, San ilac, Huron, Bay, Midland, Isabella, Clare, Gladwin, Roscommon, Ogemaw, losca, Alcona, Oscoda, Craw ford, Otsego, Montmorency, Alpena, Presque Isle Cheboygan, Michilimackinac, Chippewa, Schoolcraft, Marquette, Houghton and Ontonagon. Wssiern District, sixth judicial circuit. Terms. — Third Mondays in May and October, at Grand Rapids, Clerk United States courts, Isaac H. Parrish. COUNTIES m THE DISTRICT. Allegan, Antrim, Benzie, Berrien, Barry, Cass, Charlevoix, Delta, Eaton, Emmett, Grand Traverse, Ionia, Kent, Kalcasca, Kalamazoo, Leelanaw, Lake, Montcalm, Manistee, Mason, Muskegon, Mecosta, Missaukee, Manitou, Menominee, Newaygo, Ottawa, Osceola, Oceana, Saint Joseph, Van Buren and Wex- ford. MINNESOTA. Eighth judicial district. Terms. — Circuit court, third Monday in June and second Monday in December, at St. Paul. District court, first Monday in June, at Winona; and first Monday in October, at St. Paul. Clerk United States circuit court, Horatio E. Mann, St. Paul ; clerk United States district court, William A. Spencer, St. Paul. The district comprises the entire State OF THE UNITED STATES. 83 MISSISSIPPI. North&rn district, fiftJi judicial circuit. Teems. — District court, first Mondays in June and December, at Oxford. Clerk United States courts, George Robert Hill. COUNTIES IN THE DISTRICT. Tishemingo, Alcorn, Prentiss, Itawamba, Lee, Pon- totoc, Union, Tippah, Yalabusha, Benton, LaFayette, Calhoun, DeSoto, Tunica, Panola, Coahoma, Bolivar, Sunflower, Tallahatchee, Leflore, Marshall, Grenada, Carroll. Tate, Attala, Monroe, Chickasaw, Lowndes, Oktibbeha, Choctaw, Montgomery, Noxubee and Winston. Southern district, fifth judicial circuit. Terms. — Circuit court, first Mondays in May and November, at Jackson. District court, fourth Mon- days in June and January, at Jackson. Clerk United States circuit and district courts, George T. Swann, COUNTIES IN THE DISTRICT. Adams, Amite, Claiborne, Copiah, Covington, Clark, Franklin, Greene, Hancock, Harrison, Hinds, Holmes, Issaquena, Jackson, Jasper, Jefferson, Jones, Kemper, Leake, Lawrence, Lauderdale, Lincoln, Madison, Marion, Newton, Neshoba, Perry, Pike, Rankin, Smith, Simpson, Scott, Washington, Warren, Wayne, Wilkinson and Yazoo. 84: THE CIEOUIT AND DISTEICT OO0BT8 MISSOUEI. Eastern, district, eighth judicial circuit. Terms. — Circuit court, first Mondays in May and November ; district courts third Mondays in Febru- ary, May and November, both at St. Louis. Clerk United States circuit court, Austin Drake ; clerk United States district court, Jos. H. Clark. COUNTIES IN THE DISTRICT. Adair, Audrian, Bollinger, Butler, Cape Girardeau, Carter, Clarke, Dunklin, Franklin, Gasconade, Iron, Jefferson, Knox, Lewis, liincoln, Madison, Marion, Mississippi, Montgomery, Monroe, New Madrid, Oregon, Pemiscott, Perry, Pike, Ralls, Reynolds, Rip- ley, Saint Charles, Saint Francis, Saint Louis, Saint Genevieve, Scott, Scotland, Shannon, Schuyler, Shel- by, Stoddard, Warren, Wayne and Washington. Western district, eighth judicial circuit. Teems. — United States circuit court, third Mondays in April and November, at Jefferson City. District court, first Mondays in March and September, at Jefferson City. Adjourned terms at Saint Joseph and Kansas City. Clerk United States circuit and district courts, Alfred S. Krekel, Jefferson City. COUNTIES IN THE DISTRICT. Andrew, Atchison, Barry, Barton, Bates, Benton, Boone, Buchanan, Caldwell, Callaway, Camden, Car- roll, Cass, Cedar, Chariton, Christian, Clay, Clinton, OF THE TTNITBD STATES. 85 Cole, Cooper, Crawford, Dade, Dallas, Daviess, De Kalb, Dent, Douglas, Greene, Gentry, Grundy, Har- rison, Henry, Hickory, Holt, Howard, Howell, Jack son, Jasper, Johnson, Laclede, Lafayette, Lawrence, Linn, Livingston, McDonald, Macon, Maries, Mercer, Miller, Moniteau, Morgan, Newton, Nodaway, Osage, Ozark, Pettis, Phelps, Platte, Polk, Pulaski, Putnam Randolph, Ray, Saint Clair, Saline, Stone, Sullivan Taney, Texas, Vernon, Webster, Worth and Wright NEBRASKA. Eighth judicial circuit. Teems. — Circuit court, first Mondays in May and November, at Omaha District court, first Monday in May and first Wednesday after second Tuesday in October, at Omaha. Clerk United States courts, Watson B. Smith. The district comprises the entire State. NEVADA. Ninth judicial circuit. Terms. — Circuit court, first Monday in March, Au- gust, and December. District court, first Mondays February, May and October, both at Carson City. Clerk United States courts, RoUin Mallory Daggett, Carson City and Virginia. The district comprises the entire State. 86 THE CIEOUIT AND DISTEICT OOUETS NEW HAMPSHIRE. First judicial circuit. Terms — Circuit court, 8th day of May, at Ports- mouth ; 8th day of October, at Exeter. District court, third Tuesdays in March and September, at Portsmouth ; third Tuesdays of June and December, at Exeter. Clerk United States circuit court, William H. Hackett, Portsmouth ; clerk United States district court, Charles H. Bartlett, Manchester. The district comprises the entire State. NEW JEESEY. Third judicial circuit. Teems. — Circuit court, fourth Tuesdays in March and September, at Trenton. District court, third Tuesdays in January, April, June and September, at Trenton. Clerk United States circuit court, S. D. Oliphant ; clerk United States district court, Robert C. Bellville. The district comprises the entire State. NEW YORK. Northern district, second judicial circuit. Teems. — Circuit court, third Tuesday in June, at Canandaigua ; second Tuesday in October, at Albany ; OF THE UNITED STATES. 87 third Tuesday in January, at Albany ; and third Tuesday in March, at Utica. (The last two are ad- journed sessions for civil business only.) District court, third Tuesday in January, at Albany ; third Tuesday in March, at Utica ; second Tuesday in May, at Rochester ; third Tuesday in August, at Buffalo ; and third Tuesday in November, at Auburn. Clerk United States circuit court, Charles Mason, Utica ; clerk United States district court, Millard P. Fillmore, Buffalo. COUNTIES IN THE DISTRICT. Albany, Allegany, Broome, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Cortland, Delaware, Erie, Essex, Franklin, Fulton, Genesee, Hamilton, Herkimer, Jefferson, Lewis, Liviiigston, Madison, Monroe, Montgomery, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Otsego, Rens- selaer, Saint Lawrence, Saratoga, Schenectady, Scho- harie, Schuyler, Seneca, Steuben, Tioga, Tompkins, Warren, Washington, Wayne, Wyoming and Yates. Southern District^ second judicial circuit. Terms — Circuit court, last Monday in February, first Monday in April, and third Monday in October, for the trial of civil causes ; on the second Wednesdays in January, March and May, the third Wednesday of June, and the second Wednesdays in October and December, for the trial of criminal causes. District court, first Tuesday in every month, at No. 4 1 Cham- bers street, New York City. Cleik United States circuit court, Kenneth G. White ; clerk United States district court, George F. Betts. 88 THE OIECUIT AND DISTBIOT COURTS COUNTIES IN THE DISTRICT. New York, Westchester, Putnam, Dutchess, Co- lumbia, Greene, Ulster, Sullivan, Orange and Rock- laud. Eastern district, second judicial circuit. Teems — United States courts, first Wednesday of every month, at Brooklyn, New York. Clerk United States courts, Samuel T. Jones. COUNTIES IN THE DISTRICT. Kings, Queens, SuflEblk and Richmond, and the waters of the city and county of New York. NORTH CAROLINA. Eastern district, fourth judicial circuit. Teems. — Circuit court, first Monday in June and last Monday in November, at Raleigh. District court, third Mondays in April and October, at Elizabeth City ; fourth Mondays in April and October, at New Berne ; and first Mondays after fourth Mondays in April and October, at Wilmington. Clerk United States circuit court, Nathaniel J. Rid- dick, Raleigh ; clerk United States district court, M. B. Culpepper, Elizabeth City. COUNTIES IN THE DISTRICT. Beaufort, Bertie, Bladen, Brunswick, Camden, Car- teret, Chatham, Chowan, Columbus, Craven, Cumber- land, Currituck, Dare, Duplin, Edgecomb, Franklin, OF THE UNITED STATES. 89 Gates, Granville, Greene, Halifax, Harnett, Hertford, Hyde, Johnston, Jones, Lenoir, Martin, Nash, New Hanover, Northampton, Onslow, Orange, Pamlico, Pasquotank, Perquimans, Pitt, Robeson, Sampson, Tyrrel, Wake, Warren, Washington, Wayne and Wilson. Western district, fourth Judicial circuit. Terms. — United States courts, first Mondays in April and October, at Greensboro ; third Mondays in April and October, at Statesville ; first Mondays in May and November, at Asheville. Clerks United States courts, E. R. Hampton, Ashe- ville; J. W. Payne, Greensboro; H. C. Cowles, Statesville. COUNTIES IN THE DISTRICT. Mecklenburgh, Cabarrus, Stanly, Montgomery, Richmond, Davie, Davidson, Randolph, Guilford, Stokes, Rockingham, Forsyth, Union, Anson, Caswell, Person, Alamance, Orange, Chatham, Moore, Clay, Cherokee, Swain, Macon, Jackson, Graham, Haywood, Transylvania, Henderson, Buncombe, Madison, Yan cey, Ashe, Mitchell, Watauga, Alleghany, Caldwell, Burke, McDowell; Rutherford, Polk, Cleveland, Gas- ton, Lincoln, Catawba, Alexander, Wilkes, Surrey, Iredell, Yadkin and Rowan. 12— 90 THE OIBCinT AND DISTKIOT OOTIETS OHIO. Northern district, sixth judicial circuit. Teems. — United States courts, first Tuesdays in January, April and October, at Cleveland. District court, two terms at Toledo, time fixed by judge. Clerk United States courts, Earl Bill, Cleveland. COUNTIES IN THE DISTRICT. Allen, Ashland, Ashtabula, Auglaize, Carroll, Col umbiana, Coshocton, Crawford, Cuyahoga, Defiance Delaware, Erie, Fulton, Geauga, Hancock, Hardin Harrison, Henry, Holmes, Huron, Jefierson, Knox Lake, Logan, Lorain, Lucas, Mahoning, Marion, Me dina, Morrow, Ottawa, Paulding, Portage, Putnam Richland, Sandusky, Seneca, Stark, Summit, Trum bull, Tuscarawas, Union, Van Wert, Wayne, Wil liams, Wood and Wyandot. Southern district, sixth judicial circuit. Terms. — Circuit and district court, on first Tues- days of February, April and October, at Cincinnati. Clerk United States courts, Thomas Ambrose. COUNTIES IN THE DISTRICT. Adams, Athens, Belmont, Brown, Champaign, Clark, Clermont, Clinton, Darke, Fairfield, Fayette, Franklin, Gallia, Greene, Guernsey, Highland, Hock- ing, Jackson, Lawrence, Licking, Madison, Meigs, Monroe, Mercer, Miami, Morgan, Montgomery, Musk- ingum, Noble, Perry, Pickaway, Pike, Preble, Ross, Scioto, Shelby, Vinton, Warren and Washington. OF THE TTNITED STATES. 91 OEEGON. Ninth judicial circuit. Teems. — Circuit court, first Mondays in January, May and September, at Portland. District court, first Mondays in March. July and November, at Port- land. Clerk United States courts, Kalph Wilcox. The district comprises the entire State. PENNSYLVANIA. Eastern district, third judicial circuit. Terms. — Circuit court, first Mondays in April and October, at Philadelphia. District court, third Mon- days in February, May, August and November, at Philadelphia. Clerk United States circuit court, Samuel Bell, Phil- adelphia ; clerk United States district court, George R. Fox, Norristown. COUNTIES IN THE DISTRICT. Adams, Berks, Bucks, Carbon, Chester, Cumber- land, Dauphin, Delaware, Franklin, Lancaster, Leb- anon, Lehigh, Monroe, Montgomery, Northampton, Perry, Pike, Schuylkill, "Wayne, York and Philadel- phia. 92 THE OIEOTJIT JJW DISTEICT COTTRTS Western district, third judicial circuit. Terms. — Circuit court, second Mondays in May and November, at Pittsburgh ; third Monday in June and September, at Williarasport ; second Monday in January and third Monday in July, at Erie. District court, first Monday in May and third Monday in October, at Pittsburgh ; third Monday in June and first Monday in October, at Williamsport ; second Monday in January and third Monday in July, at Erie. Clerk United States circuit court, H. D. Gamble, Pittsburgh ; clerk United States district court, S. C. McCandless, Pittsburgh. COUNTIES IN TQE DISTRICT. Allegheny, Armstrong, Beaver, Butler, Blair, Brad- ford, Bedford, Columbia, Cameron, Clinton, Clearfield, Cambria, Crawford, Centre, Clarion, Elk, Erie, Ful- ton, Forest, Fayette, Greene, Huntingdon, Indiana, Jefferson, Juniata, Lawrence, Luzerne, Lycoming, Mc Kean, Mercer, Mifflin, Montour, Northumberland, Potter, Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union, Venango, Warren, Washington, West- moreland and Wyoming. RHODE ISLAND. First judicial circuit. Terms. — Circuit court, 15th daysof Jun^ and Nov- ember, at Providence. District court, first Tuesdays OF THE imiTED STATES. 93 in February and August, at Providence ; and second Tuesday in May and third Tuesday in October, at Newport. Clerk United States courts, Henry Pitman, Prov- idence. The district comprises the entire State. SOUTH CAEOLINA. Fourth judicial circuit. Terms. — Circuit court, first Monday in April, ac Charleston ; fourth Monday in November, at Co- lumbia. District court, eastern district of South Carolina, first Mondays in January, May, July and October, at Charleston ; western district, first Mon- day in August, at Greenville, Clerk United States district court, Daniel Horl- beck, Charleston ; clerk United States circuit court, James E. Hagood, Pickens Court-House. The district comprises the entire State. TENNESSEE. Eastern district, sixth judicial circuit. Teems. — ^United States courts, second Mondays in January and July, at Knoxville. Clerk United States circuit court, H. M. Aiken ; clerk United States district court, Thomas L. Wil- liams. 94 THE OIEOUIT AND DISTEICT OOtTETS COUNTIES IK THE DISTRICT. Anderson, Bradley, Blount, Bledsoe, Carter, Clai- borne, Cumberland, Cocke, Campbell, Greene, Ha,w- kins, Hancock, Hamilton, Hamblin, Jefferson, James, Johnson, Knox, Morgan, Monroe, Meigs, McMinn, Marion, Polk, Rhea, Roane, Sullivan, Sevier, Scott, Union, Loudon, Grainger and Sequatchie. Middle district^ sixth judicial circuit. Teems. — United States courts, third Mondays in April and October, at Nashville. Clerk United States courts, Edward R. Campbell. COUNTIES IN THE DISTRICT. Davidson, Bedford, Bell, Cannon, Cheatham, Clay, Coffee, DeKalb, Dickson, Fentress, Franklin, Giles, Grundy, Hickman, Humphreys, Jackson, Lawrence, Lewis, Lincoln, Macon, Marshall, Maury, Montgom- ery, Moore, Overton, Putnam, Perry, Robertson, Rutherford, Smith, Stewart, Sumner, Trousdale, Van Buren, Warren, Wayne, White, Williamson and Wil- son. Western District, sixth judicial circuit. Terms — United States courts, fourth Mondays in May and November, at Memphis. Clerk United States courts, H. E. Andrews. COUNTIES IN THE DISTRICT. Shelby, Fayette, Hardeman, Madison, Haywood, Tipton, Lauderdale, Dyer, Gibson, Carroll, Benton, Perry, Henry, Makly, Obion and Lake. OF THE TINITED STATES. 95 TEXAS. Eastern district, fiftli judicial circuit. Terms. — District court (having circuit court pow- ers), first Mondays in December and May, at Galves- ton ; first Mondays in March and October, at Brownsville. Clerk United States district court, Geo. C. Rives, Galveston ; cleik United States circuit court, Chris- topher Dart, Galveston; clerk United States courts at Brownsville, F. J. Parker, Brownsville. COUNTIES IN THE DISTRICT. Newton, Jasper, Jefferson, Orange, Tyler, Polk, Liberty, Galveston, Harris, Montgomery, Austin, Fort Bend, Brazoria, Colorado, Wharton, Matagorda, Lavaca, Jackson, Calhoun, DeWitt, Victoria, Goliad, Eefugio, San Patricio, Nueces, Cameron, Starr, Webb, Hidalgo, Hardin, Chambers, San Jacinto, Live Oak. Bee, McMullen, Duval, Encinal, La Salle, Dimmit, Zapata, and the south half of Karnes. Western District, fifth judicial cvrcuit. Teems. — District court (having circuit court pow- ers), first Mondays in January and June, fourth Mon- day in April, and first Monday in November, at Tyler. Clerk United States circuit and district court, Mat- thew Hopkins, Austin ; clerk United States courts, W. Camp Robards, Tyler. 96 THE CIBCTJIT AND DISTEIOT COUETS COUNTIES IN THE DISTRICT. Anderson, Angelina, Atascosa, Archer, Bandera, Bastrop, Baylor, Bell, Bexar, Blanco, Basque, Brown, Brazos, Bowie, Burleson. Burnett, Caldwell, Cherokee, Comanche, Collin, Comal, Concho, Clay, Callahan, Coleman, Cook, Corydell, Dallas, Davis, Denton, Eastland, Edwards, Ellis, Erath, El Paso, Falls, Fan- nin, Fayette, Freestone, Frio, Gillespie, Gonzales, Grayson, Grimes, Guadalupe, Harrison, Hays, Ham- ilton, Henderson, Hill, Houston, Hardeman, Haskell, Hopkins, Hood,' Hunt, Jack, Johnson, Jones, Kauf- man, Karnes, Kerr, Kendall, Knox, Kimball, Kinney, Leon, Lamar, Lampasas, Llano, Limestone, Madison, Marion, Mason, McCulloch, McLennan, Medina, Milam, Menard, Montague, Maverick, Nacogdoches, Navarro, Panola, Parker, Palo Pinto, Presidio, Red River, Robertson, Rusk, Runnels, Sabine, San Au- gustine, San Saba, Shackelford, Smith, Shelby, Stevens, Tarrant, Travis, Titus, Trinity, Taylor, Throckmorton, Upshur, Uvalde, VanZandt, Walker, Washington, Williamson, Wilson, Wichita, Wise, Wilbarger, Wood, Young and Zapata. VERMONT. Second Judicial circuit. Teems. — Circuit court, fourth Tuesday in February, at Burlington ; fourth Tuesday of July, at Windsor ; and 3d day of October, at Rutland. District court, fourth Tuesday in February, at Burlington; first Monday after fourth Tuesday in July, at Windsor ; 3d day of October, at Rutland. OF THE TTOTTED STATES. 97 Clerk United States courts, Bradley B. Smalley, Burlington. The district comprises the entire State. VIRGINIA. Eastern dist/rict^ fourth judicial circuit. Terms. — United States courts, first Mondays in April and October, at Richmond ; first Mondays in January and July, at Alexandria ; and first Mondays in May and November, at Norfolk. Clerk United States circuit court, Matthew F. Pleasants, Richmond; clerk United States district court, Edward J. Underwood, Alexandria. COUNTIES IN THE DISTRICT. Accomac, Alexandria, Amelia, Brunswick, Caroline, Charles City, Chesterfield, Culpepper, Dinwiddle, Eliz- abeth City, Essex, Fairfax, Fauquier, Gloucester, Goochland, Greenville, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Loudoun, Louisa, Lunen- burgh, Matthews, Mecklenburgh, Middlesex, Nanse- mond, New Kent, Norfolk, Northampton. Northum- berland, Nottoway, Orange, Powhatan, Prince Ed- ward, Prince George, Prince William, Princess Anne, Richmond, Southampton, Spottsylvania, Stafford, Surrey, Sussex, Warwick, Westmoreland and York. Western district^ fourth judicial circuit. Terms. — United States courts, Tuesdays after fourth Mondays of February and August, at Danville ; Tues- days after third Mondays of March and September, at Lynchburg ; Tuesday after first Monday of May, 13— 98 THE OIECUIT AND DISTEIOT COITETS and Tuesday after second Monday of October, at Har- risonburgh ; Tuesdays after fourth Mondays of May and October, at Abingdon. Clerks United States courts, Everett W. Early, Lynchburgh ; Charles P. Latham, Danville ; Edward S. Watson, Abingdon ; W. J. Points, Harrisonburgh. COUNTIES IN THE DISTRICT. Albemarle, Alleghany, Amherst, Appomattox, Au gusta, Bath, Bedford, Bland, Botetourt, Buchanan Buckingham, Campbell, Carroll, Charlotte, Clarke. Craig, Cumberland, Floyd, Franklin, Frederick, Flu vanna, Giles, Grayson, Greene, Halifax, Henry, High land, Lee, Madison, Montgomery, Nelson, Patrick Page, Pulaski, Pittsylvania, Rappahannock, Rock bridge, Rockingham, Roanoke, Russell, Scott, Smyth Shenandoah, Tazewell, Washington, Wise, Wythe, and Warren. WEST VIRGINIA. Fourth judicial circuit. Teems. — Circuit court, first Monday in August, ac Parkersburgh. District court, 24th days of March and September, at Clarksburgh ; 6th days of April and September, at Wheeling ; and 19th days of April and September, at Charleston. Clerk United States circuit court, J. B. Jackson, Parkersburgh ; clerk United States district court, J. Y. Moore, Clarksburgh. The district comprises the entire State. OF THE UNITED STATES. 99 WISCONSIN. Eastern district, seventh judicial circuit. Terms. — United States courts, first Mondays in January and October, at Milwaukee ; and first Mon- day in July, at Oshkosh. Clerk United States circuit court, Edward Kurtz, Milwaukee ; clerk United States district court, John M. Miller, Milwaukee. COUNTIES IN THE DISTRICT. Milwaukee, Racine, Kenosha, Walworth, Wau- kesha, Ozaukee, Washington, Marquette, Green Lake, Fond du Lac, Sheboygan, Manitowoc, Calumet, Win- nebago, Waushara, Waupaca, Outagamie, Brown, Kewaunee, Door, Shawanaw and Oconto. Western District, seventh judicial circuit. Terms. — United States courts, first Monday in June, at Madison ; and third Tuesday in September, at LaCrosse. Special term, third Tuesday in Febru- ary, at Madison. Clerks United States courts, Frank M. Stewart, Madison ; Harvey J. Peck, LaCrosse. COUNTIES IN THE DISTRICT. Ashland, Adams, Buffalo, Burnett, Barron, Bay- field, Columbia, Chippewa, Crawford, Clark, Dane, Dunn, Douglas, Eau Claire, Grant, Green, Iowa, Jackson, Jefferson, Juneau, La Crosse, La Fayette, Monroe, Marathon, Portage, Pierce, Pepin, Polk, Rock, Richland, Sauk, Saint Croix, Trempeleau, Ver- non and Wood. 100 THE OIKOUIT AND DI8TEICT 00UET8 TERRITORY OF ARIZONA. Teems. — Supreme court, one term, second Monday in January. First district court, first Mondays in March, and October, at Tucson. Second district court, third Mondays in March and November, at Arizona City. Third district court, third Mondays in June and November, at Prescott ; first Mondays in May and September, at Phoenix. Special terms, at judges' option. Clerk first district court, ; clerk second district court, J. W. Dorrington, Yuma ; clerk third district court, E. W. Wells, Prescott. COUNTIES m THE DISTRICT. First district court, Pima county ; second district court, Yuma and Mohave counties; third district court, Yavapai and Maricopa counties. TERRITORY OF COLORADO. Teems. — Supreme court, second Tuesday in Febru- ary. First district court, first Mondays in April and October, at Denver. Second district court, fourth Tuesday in April, and first Tuesday in October, at Central City. Third district court, first Tuesday in June, and second Tuesday in December, at Pueblo. Clerk first district court, Greorge H. Mills, Denver; clerk second district court, John R. Cleaveland, Cen- tral City ; clerk third district court, George A. Bute, Pueblo ; clerk supreme court, David W. Crater, Denver. COUNTIES IN THE DISTRICT. First district : Arapahoe, Douglas, Weld, Green- wood, Park Summit and Lake. Second district: Clear Creek, Gilpin, Jefferson, Boulder and Larimer. OF THE UNITED STATES. 101 Third district: Pueblo, El Paso, Fremont, Bent, Huerfano, Las Animas, Conejo"^, Costilla and Saguache. TERRITORY OF DAKOTA. Terms. — Supreme court, first Tuesday in January, at Yankton. First district court, second Tuesdays in February and November, at Vermillion. Second dis- trict court, second Tuesdays in April and October, at Yankton. Third district court, second Tuesdays in June and September, at Fargo. Clerk supreme court, Joseph R. Hanson, Yankton ; clerk first district court, Silas W. Kidder, Vermillion ; clerk second and third district courts, George I. Fos- ter, Fargo. COUNTIES IN THE DISTRICT. First district : Clay, Union and Lincoln. Second district : Yankton, Bon Homme, Turner, Minnehaha, Buffalo, Hutchinson, Charles Mix and Jayne. Third district : Pembina, Duel and Brookings. TERRITORY OF IDAHO. Terms. — Supreme court, first Monday in January, at Boise City. First district court, second Monday in May, and third Monday in October, at Lewiston. Second district court, first Monday in April, and sec- ond Monday in November, at Boise City. Third district court, first Monday in July, and fourth Mon- day in October, at Malade City. Clerk supreme court, A. L. Richardson, Boise City ; clerk first district court, H. Squier, Lewiston ; clerk second district court, A. L. Richardson, Boise City ; clerk third district court, E. A. HoUister, Malade City. 102 THE CIECUIT AND DISTRICT COURTS COUNTIES IN THE DISTRICT. First district : Nez Perces, Idato and Shoshone. Second district : Ada, Owyhee, Boise and Alturas. Third district : Oneida and Lemhi. TERRITORY OF MONTANA. Teems. — Supreme court, first Monday in January, and second Monday in August, at Virginia City. United States district courts: first district, first Monday in May, second Monday in July, and third Monday in November, at Virginia City. Second district, second Monday in April, and first Mondays in September and December, at Deer Lodge. Third district, fourth Monday in February, and first Mon- days in June and November, at Helena. Territorial courts : first district, first Monday in May, second Monday in July, and third Monday in November, in Madison county, at Virginia City ; first Monday in March, and fourth Monday in October, in Gallatin county, at Bozeman ; fourth Monday in March, and first Monday in October, in Jefferson county, at Ra- dersburgh. Second district, second Monday in April, and first Mondays in September and December, in Deer Lodge county, at Deer Lodge ; fourth Monday in June and second Monday in November, in Mis- soula county, at Missoula ; first Monday in June and second Monday in October, in Beaver Head county, at Bannack. Third district, fourth Monday in Feb- ruary, and first Mondays in June and November, in Lewis and Clarke county, at Helena ; second Mon- days in May and October, in Meagher county, at Diamond City. Clerk supreme court, Isaac R. Alden, Virginia City; clerk first district court, Theophilus Muffly, Virginia City ; clerk second district court, Orville B. O'Bannon, OF THE TTNITED STATES. 103 Deer Lodge ; clerk third district court, Alexander H. Beattie, Helena. COUNTIES IN THE DISTRICT. First district : Madison, Gallatin, Jefferson and Big Horn, which last county is attached to Gallatin for judicial purposes. Second district : Deer Lodge, Beaver Head and Missoula. Third district : Lewis and Clarke, Meagher, Choteau and Dawson ; last two counties attached to Lewis and Clarke county for judicial purposes. TERRITORY OF NEW MEXICO. Terms. — Supreme court, first Monday in January of each year, at Santa Fe. First district court, first Monday in February, and second Monday in July, at Santa Fe. Second district court, last Mondays in April and September, at Albuquerque. Third district court, on the Mondays preceding the last Mondays in May and October, at Mesilla. Clerk U. S. supreme court, ; clerk U.S. first district court, M. A. Bi eeden, Santa Fe ; clerk U. S. second district court, Joseph C. Hill, Albu- querque ; clerk U. S. third district court, Ira M Bond. Mesilla. COUNTIES IN THE DISTRICT. First judicial district : Taos, Colfax, Mora, Rio Ar- riba, San Miguel, Santa Fe and Santa Ana. Second judicial district : Bernalillo, Valencia and Socorro. Third judicial district : Dona Ana, Lincoln and Grant. TERRITORY OF UTAH. Teems. — First district, regular terms not designa- ted. Second district, second Mondays in June and September. Third district, second Mondays in March and September. 104: THE CIBCUIT AND DISTEIOT COUETS Clerk supreme court, C. M. Hawley, Salt Lake City ; clerk first district court, C. W. Emerson, Salt Lake City ; clerk second district court, J. R. Wilkins, Beaver City ; clerk third district court, Joseph F. Nounnon, Salt Lake City. COUNTIES IN THE DISTRICT. First district : Utah, Juab, Millard, Piute, Sevier, San Pete and Wasatch. Second district : Beaver, Iron, Kane and Washington. Third district : Salt Lake, Tooele, Box Elder, Cache, Rich, Neber, Davis, Mor- gan and Summit. TERRITORY OF WASHINGTON. Terms. — Supreme court, second Monday in Decem- ber, at Olympia. First judicial district, second Mon- day in May and fourth Monday in September, at Walla Walla ; second sub-district, second Monday in June, at Fort Colville, and fourth Monday in October, at Yakima City. Second judicial district : first sub- district, second Monday in July, at Oysterville; sec- ond sub-district, second Monday in April and third Monday in October, at Vancouver ; third sub-district third Monday in March and second Monday in Nov- ember, at Olympia. Third judicial district : first sub- district, fourth Mondays in February and November, at Port Townsend ; second sub-district, first Mondays in February and August, at Seattle ; third sub- district, third Mondays in January and July, at Steil- acoom. Clerk supreme court, Joseph H. Houghton, Olym- pia ; clerks first district court, William H. Andrews, Walla- Wall a ; Horace M. Benton, Yakima ; Park Winans, Fort Colville ; clerks second district court, George T. McConnell, Vancouver; Robert Turner, OIKCUIT AND DISTRICT 00UKT8 OF THE UNITED STATES. Oysterville ; clerks third district court, Lyman B. Andrews, Seattle ; James Seary, Port Townsend ; John Saltar, Steilacoom. COUNTIES IN THE DISTRICT. First judicial district : first suh-district, Walla- Walla ; second sub-district, Stevens and Yakima. Second judicial district : first sub-district. Pacific ; second sub-district, Waukiakum, Cowlitz, Clarke, Skamania and Klikitat ; third sub-district, Thurston, Chehalis, Lewis and Mason. Third judicial district ; first sub-district, Whatcom, Island, Jefierson and Clallam ; second sub-district, King, Snohomish and Kitsap ; third sub-district, Pierce. TERRITOKY OF WYOMING. Terms. — Supreme Court, first Monday in July, at Cheyenne. First district court, first and third Mondays in March, third Mondays in July and November, and first Monday in September, alter- nately at Cheyenne and Laramie City. Second dis- trict court, first Mondays in January, May and December, and fourth Monday in July, alternately at Rawlins Springs and Evanston. Third district court, first Mondays in June and October, at South Pass City. Clerk supreme and first district courts, John W. Bruner, Cheyenne ; clerk seeond district court, L. D. Pease, Laramie City ; clerk third district court, Jesse Knight, South Pass City. COUNTIES IN THE DISTRICT. First district, Laramie and Albany; second dis- trict, Carbon and Uinta; third district. Sweet Water. PREFACE TO PART II. It was first intended to make this work exclusively a Manual for United States Commissioners, but so many of these officers being also Clerks of United States Courts, or attorneys practicing therein, it was afterwards decided to include such practical matter as would serve them in the transaction of the duties of their several offices. E. T. R. Springfield^ Ills.^ October 12th, l8'j4. :pjli?.t II. PRACTICE ACT OF JUNE i, 1872. FORTY-SECOND CONGRESS, SESSION II, CH. 255, I7 STAT. AT L. 196. An Act to further the Adminstration of Justice. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That whenever, in any suit or proceeding in a circuit court of the United States, being held by a justice of the Supreme Court and the circuit judge or a district judge, or by the cir- cuit judge and a district judge, there shall occur any differ- ence of opinion between the judges as to any matter or thing to be decided, ruled, or ordered by the court, the opinion of the presiding justice or the presiding judge shall prevail, and be considered the opinion of the court for the time being; but when a final judgment, decree or order in such suit or proceeding shall be entered, if said judges shall certify, as it shall be their duty to do if such be the fact, that they differed in opinion as to any question which, under the act of Con- gress of April twenty-ninth, eighteen hundred and two, might have been reviewed by the Supreme Court on certificate of difference of opinion, then either party may remove said final judgment, decree or order to the Supreme Court, on writ of error or appeal, according to the nature of the case, and sub- ject to the provisions of law applicable to other writs of error or appeals in regard to bail or supersedeas. Io6 PRACTICE ACT OF JUNE I, 1873. Sec. 2. That no judgment, decree or order of a circuit or district court of the United States, in any civil action at law or in equity, rendered after this act shall take effect, shall be reviewed by the Supreme Court of the United States, on writ of error or appeal, unless the writ of error be sued out, or the appeal be taken, within two years after the entry of such judgment, decree or order; and no judgment, decree or order of a district court, rendered after this act shall take eifect shall be reviewed by a circuit court of the United States upon like process or appeal, unless the process be sued out, or the ap- peal be taken within one year after the entry of the judg- ment, decree or order sought to be ^reviewed: Provided, That where a party entitled to prosecute a writ of error or to take an appeal is an infant, or non compos mentis, or impris- oned, such writ of error may be .prosecuted, or such appeal may be taken, within the periods above designated after the entry of the judgment, decree or order, exclusive of the term of such disability. The appellate court may affirm, modify or reverse the judgment, decree or order brought before it for review, or may direct such judgment, decree or order to be i rendered, or such further proceedings to be had by the infe- rior court as the justice of the case may require. Sec. 3. That the Supreme Court may at any time in its discretion, and upon such terms as it may deem just, and where the defect has not injured and the amendment will not prejudice the defendant in error, allow an amendment of a writ of error, where there is a mistake in the teste of the writ, or a seal to the writ is wanting, or where the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form where the defect has not prejudiced, and the amendment will not injure, the defendant in error; and the circuit and district courts of the United States shall possess the like power of amendment of all process returnable to or before them. PRACTICE ACT OF JUNE I, 1872. I07 Sec. 4. That a bill of exceptions hereafter allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or pre- siding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge being an- nexed thereto; and all process issued from the courts of the United States shall bear teste from the day of such issue. Sec. 5. That the practice, pleadings and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States shall con- form, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the State w^ithin w^hich such cir- cuit or district courts are held, any rule of court to the con- trary notwithstanding: Provided, however. That nothing herein contained shall alter the rules of evidence under the laws of the United States, and as practiced in the courts thereof. Sec. 6. That in common law causes in the circuit and dis- trict courtg of the United States the plaintiff shall be entitled to similar remedies, by attachment or other process against the property of the defendant, which are now provided by the laws of the State in which such court is held, applicable to the courts of such State ; and such circuit and district courts may, from time to time, by general rules, adopt such State laws as may be in force in the State in relation to attachments and other process ; and the party recovering judgment in such cause shall be entitled to similar remedies upon the same by execution or otherwise, to reach the property of the judg- ment debtor, as are now provided by the laws of the State within which said circuit or district courts shall be held in like causes, or which shall be adopted by rules as aforesaid : Provided, That similar preliminary affidavits or proofs, and similar security as required by such laws, %hall be first fur- nished by the party seeking such attachment or other remedy. Io8 PRACTICE ACT OF JUNE I, 1872. Sec. 7. That whenever notice is given of a motion for an injunction out of a circuit or district court of the United States, the court or judge thereof may, if there appear to be danger of irreparable injury from delay, grant an order re- straining the act sought to be enjoined until the decision upon the motion. Such order may be granted with or without security in the discretion of the court or judge : Provided, That no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order, except within the circuit to which he is allotted, and in causes pend- ing in the circuit to which he is allotted, or in such causes at such place outside of the circuit as the parties may in writing stipulate, except in causes vsrhere such application cannot be heard by the circuit judge of the circuit, or the district judge of the district. Sec 8. That no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judg- ment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. Sec 9. That in all criminal causes the defendant may be found guilty of any offense the commission of which is neces- sarily included in that with which he is charged in the indict- ment, or may be found guilty of an attempt to commit the offense. Sec 10. That on an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a ver- dict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly ; and the cause as to the other defendants may be tried by another jury. Sec II. That any party or person desiring to have any judgment, decree or order of any district or circuit court re- viewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, PRACTICE ACT OF JUNE I, 1872. IO9 may give the security required by law therefor within sixty days after the rendition of such judgment, decree or order, or afterward with the permission of a justice or judge of the said appellate court. Sec. 12. That in all criminal or penal causes in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced : Provided, That where the judg- ment directs that the defendant shall be imprisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid. Sec. 13. That where in any suit in equity, commenced in any court of the United States, to enforce any legal or equi- table lien or claim against real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear there- to, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer or demur to the complainant's bill at a certain day therein to be designated, which order shall be served on such absent defendant, if prac- ticable, wherever found, or where such personal service is not practicable such order shall be published in such manner as the court shall direct; and in case such absent defendant shall not appear, plead, answer, or demur within the time so lim- ited, or within some further time, to be allowed by the court in its discretion, and upon proof of the service of publication of said order and of the performance of the directions con- tained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had no PRACTICE ACT OF JUNE I, l8'J2. been served with process within the said district, but said ad- judication shall, as regards such absent defendant without ap- pearance, affect his property within such district only. Sec. 14. That when a poor convict, sentenced by any court of the United States to be imprisoned and pay a fine, or fine and cost, or to pay a fine, or fine and cost, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and cost, such convict may make application in writing to any commissioner of the United States Court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the district-attorney of the United States who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if on examination it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execu- tion for debt, the commissioner shall administer to him the following oath : " I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of the State where oath is ad- ministered ; and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God." And thereupon such convict shall be discharged, the commissioner giving to the jailer or keeper of the jail a certificate setting forth the facts. Sec 15. That if at any time after such discharge of such convict it shall be made to appear that in taking the aforesaid oath he swore falsely, he may be indicted, convicted and pun- ished for perjury, and be liable to the penalties prescribed in section thirteen of an act entitled " An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes," approved March third, A. D. eighteen hundred and twenty-five. ACT OF MARCH 3, 1 865. 'ill Sec. 16. That the fees of the commissioner for the exam- ination and certificate provided for in this act shall be five dol- lars per day for every day that he shall be engaged in such examination. ACT OF MARCH 3, 1865. THIRTY-EIGHTH CONGRESS, SESSION II, CH. 86, I3 STAT. AT L. 500. An Act Regulating Proceedings in Criminal Cases, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That every grand jury impanelled before any district or cir- cuit court of the United States to inquire into and present- ment make of public offences against the United States, com- mitted or tryable within the district for which the court is holden, shall consist of not less than sixteen and not exceed- ing twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either im- mediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to an invidual grand juror is allowed, and there are not other jurors in attendance sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. No indictment shall be found, nor shall any presentment be made, without the con- currence of at least twelve grand jurors. From the persons summoned and accepted as grand jurors, the court shall ap- point the foreman, who shall have power to administer oaths and affirmations to witnesses appearing before the grand jury. 112 ACT OF MARCH 3, 1 865. Sec. 2. And be it further enacted,, That when the offense charged be treason or a capital offense, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On a trial for any other offence in which the right of peremptory challenge now exists, the defendant shall be entitled to ten and the United States to two (extended to three by act of June 8, 1872, see p. 113) peremptory challenges. All challenges, whether to the array or panel or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. Sec. 3. And he it further enacted,, That in every case where any person, convicted of any offense against the United States, shall be sentenced to imprisonment for a period longer than one year, it shall be lawful for the court by which the sentence is passed to order the same to be executed in any State prison or penitentiary within the district or State where such court is held, the use of which prison or penitentiary is allowed by the legislature of such State for such purposes ; and the expenses attendant upon the execution of such sen- tence shall be paid by the United States. Sec. 4. And be it further enacted,, That issues of fact in civil cases in any circuit court of the United States may be tried and determined by the court without the intervention of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk of the court w^aiving a jury. The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as .the verdict of a jury. The rulings of the court in the court [cause] in the progress of the trial, when excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error, or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determi- nation of the sufficiency of the facts found to support the judgment. ACT OF JUNE 8, 1872. 113 SeC. 5. And be it further enacted. That all acts and parts of acts in conflict with this act be, and the same are hei'eby repealed. Sec. 6. And be it further enacted. That this act shall take effect on the first day of June, one thousand eight hundred and sixty-five. ACT OF JUNE 8, 1872. FORTY-SECOND CONGRESS, SESSION II., CH. 333, I7 STAT. AT L. 282. An Act to amend an Act entitled "An Act regu- lating Proceedings in Criminal Cases, and for OTHER Purposes," approved March third, eighteen HUNDRED AND SIXTY-FIVE. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section two of the act entitled " An Act regulating pro- ceedings in cripiinal cases, and for other purposes," be and the same is hereby amended to read as follows : Sec. 2. That when the offense charged be treason or a cap- ital offence, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to three peremptory challenges ; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges ; and in all cases where there are sev- eral defendants or several plaintiflEs, the parties on each side shall be deemed a single party for the purposes of all chal- lenges under this section. All challenges, whether to the array or panel, or to individual jurors, for cause or favor, shall be tried by the court without the aid of triers. 15— RULES OF THE SUPREME COURT UNITED STATES. I — CLERK. The clerk of this court shall reside and keep the office at the seat of the national government, and he shall not practice either as an attorney or counselor in this court, or any other court, while he shall continue to be clerk of this court. The clerk shall not permit any original record or paper to be taken from the supreme court-room, or from the office, without an order from the court. II ATTORNEYS. It shall be requisite to the admission of attorneys and coun- selors to practice in this court, that they shall have been such for three years past in the supreme courts of the States to which they respectively belong, and their private and profes- sional character shall appear to be fair. They shall respectively take the following oath or affirma- tion, viz. : " I do solemnly swear (or affirm, as the case may be), that I will demean myself, as an attorney and counselor of this court, uprightly, and according to law, and that I will sup- port the constitution of the United States." OF THE UNITED STATES COURT. JI5 III PRACTICE. This court consider the practice of the courts of the King's Bench and of Chancery, in England, as affording outlines for the practice of this court; and tliey will from time to time make such alteration therein as circumstances may render necessary. IV BILL OF EXCEPTIONS. Hereafter the judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepted ; and that such matters of law, and those only, shall be inserted in the bill of exceptions, and allowed by the court. V — PROCESS. All process wf this court shall be in the name of the Presi- dent of the United States. When process at common law, or in equity, shall issue against a State, the same shall be served on the governor, or chief ex- ecutive magistrate, and attorney-general of such State. Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and if the defendant, on such service of the subpoena, shall not appear at the return day con- tained therein, the complainant shall be at liberty to proceed ex parte. VI MOTIONS. All motions hereafter made to the court shall be reduced to writing, and shall contain a brief statement of the facts and pbjects of the motion. Il6 RULES OF THE SUPREME COURT VII LAW LIBRARY CONFERENCE ROOM. 1. During the session of the court, any gentleman of the bar having a cause on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon applica- tion to the clerk of this court, to receive an order to take the same (not exceeding at any one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or when required by the clerk. And it shall be the duty of the clerk to keep, in a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be responsible for, and pay twice the value thereof; as also one dollar per day for every day's detention beyond the limited time. 2. The clerk shall take charge of the books of the court, together with such of the duplicate law books as Congress may direct to be transferred to the court, and arrange them in the conference room, which he shall have fitted up in a proper manner; and he shall not permit such books to be taken there- from by any one, except the judges of the court. VIII — RETURN TO WRIT OF ERROR. 1. The clerk of the court to which any writ of error shall be directed, may make return of the same by transmitting a true copy of the record, and of all proceedings in the cause, under his hand and the seal of the court. 2. No cause will hereafter be heard until a complete record, containing in itself, without reference aliunde^ all the papers, exhibits, depositions, and other proceedings which are neces- sary to the hearing in this court, shall be filed. 3. Whenever it shall be necessary or proper, in the opinion of the presiding judge of any circuit court, or district court exercising circuit court jurisdiction, that original papers should at any time be inspected in the supreme court, upon appeal. OF THE UNITED STATES. 117 such presiding judge may make such rule or order for the safe keeping, transporting and return of such original papers, as to him may seem proper; and this court will receive and consider such original papers in connection with the transcript of pro- ceedings. AMENDMENT TO THE 8tH RULE. \Promulgated April 2S, J^/J-] That hereafter in all cases brought to this court, by writ of error, or appeal, to review any judgment or decree, the clerk. of the court by which such judgment or decree was rendered shall annex to, and transmit with the record, a copy of the opinion or opinions filed in the case. IX DOCKETING CASES. In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of plaintiff in error or appellant, as the case may be, to docket the cause, and file the record thereof with the clerk of this court within the first six days of the term ; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the commence- ment of the term, it shall be the duty of the plaintiffs in error or appellant to docket the cause and file the record thereof with the clerk of this court within the first thirty days of the term; and if the plaintiff in error or appellant shall fail to comply with the rule, the defendant in error or appellee may have the cause docketed and dismissed, upon producing the certificate of the clerk of the court wherein the decree or judg- ment was rendered, stating the cause, and certifying that such writ of error or appeal has been sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record, after the same shall have been docketed and dismissed under this rule, unless by order of the court. Il8 RULES OF THE SUPREME COURT 2. But the defendant in error or appellee may, at his option, docket the cause and file a copy of the record with the clerk of this court; and if the case is docketed, and a copy of the record filed with the clerk of this court, by the plaintiflT in error or appellant, within the periods of time above limited and prescribed by this rule, or by the defendant in error or appel- lee, at any time thereafter during the term, the case shall stand for argument at the term. 3. In all cases where the period of thirty days is mentioned in this rule, it shall be extended to sixty days in writs of error or appeals from California, Oregon, Washington, New^ Mexico, and Utah. X SECURITY FOR COSTS PRINTING RECORDS ATTACH- MENT FOR COSTS. 1. In all cases the clerk shall take of the party a bond, with competent security to secure his fees, in the penalty of two hundred dollars, or a deposit to that amount, to be placed in bank, subject to his draft. 2. In all cases the clerk shall have fifteen copies of the record printed for the court; and the cost of printing shall be" charged to the government, in the expenses of the court. 3. The clerk will furnish copies to the printer, shall super- vise the printing, and shall take care of and distribute the printed copies to the judges, the reporter and the parties, from time to time, as required. 4. In each case the clerk shall charge the parties the legal fees for but one manuscript copy in the case. 5. In all cases the clerk shall deliver a copy of the printed record to each party. And in cases of dismission, reversal or affirmance with costs, the fees for the said manuscript copy of the record shall be taxed against the party against whom costs are given, and which charge includes the charge for the copy furnished him. 6. In cases of dismission for want of jurisdiction, each party shall be charged with one half the legal fees for a copy. OF THE UNITED STATES. II9 7. Upon the clerk's producing satisfactory evidence, by affidavit or acknov^rledgment of the parties or their sureties, of having served a copy of the bill of fees due by them respect- ively in this court, on such parties or their sureties, an attach- ment shall issue against such parties or sureties respectively, to compel the payment of said fees. XI — TRANSLATIONS. Whenever any record transmitted to this court upon a writ or error or appeal, shall contain any document, paper, testi- mony or other proceeding, in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceeding, made under the author- ity of the inferior court, or admitted to be correct, the record shall not be printed, but the case shall be reported to the court by the clerk, and the court vvrill thereupon remand it to the in- ferior court, in order that a translation may be there supplied and inserted in the record. XII EVIDENCE. 1. In all cases where further proof is ordered by the court, the depositions which shall be taken shall be by a commission to be issued from this court, or from any circuit court of the United States. 2. In all cases of admiralty and maritime jurisdiction where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any circuit court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories to be filed by the party applying for the commission, and notice to the opposite party, or his agent or attorney, accompanied with a copy of the interrogatories so filed; to file cross-inter- rogatories within twenty days from the service of such notice : Provided, however, that nothing in this I'ule shall prevent any party from giving oral testimony in open court in cases where, by \dcvi, it is admissible. I20 RULES OF THE SUPREME COURT XIII — DEEDS, ETC., NOT OBJECTED TO, ETC., ADMITTED, ETC. In all cases of equity and admiralty jurisdictiction heard in this court, no objection shall hereafter be allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found in the record, as evidence, unless objection was taken thereto in the court below, and entered of record; but the same shall otherwise be deemed to have been admitted by consent. XIV — CERTIORARI. No certiorari for diminution of the record shall be hereafter awarded in any cause, unless a motion therefor shall be made in writing ; and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari shall be made at the first term of the entry of the cause; otherwise the same shall not be granted, unless upon special cause shown in court, account- ing satisfactorily for the delay. XV DEATH OF A PARTY. I. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personality or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases; and if such representatives shall not voluntarily become parties, then the other party may sug- gest the death on the record, and thereupon, on motion, obtain an order, that unless such representatives shall become parties within the first ten days of the ensuing term, the party mov- ing for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed ; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the same reversed if it be erroneous: Provided, however, that a copy of every such ' OF THE UNITED STATES. 121 order shall be printed in some newspaper at the seat of gov- ernment in which the laws of the United States shall be printed by authority, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. 2. When the death of a party is suggested, and the repre- sentatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no meas- ures are taken by the opposite party within that time to com- pel their appearance, the case shall abate. XVI NO APPEARANCE OF PLAINTIFF. Where there is no appearance for the plaintiff when the case is called for trial, the defendant may have the plaintiff called and dismiss the writ of error, or may open the record and pray for an appearance. XVII — NO APPEARANCE OF DEFENDANT. Where the defendant fails to appear when the cause shall be called for trial, the Court may proceed to hear an argu- ment on the part of the plaintiff, and to give judgment ac- cording to the right of the cause. XVIII NO APPEARANCE OF EITHER PARTY. When a case is reached in the regular call of the docket, and no appearance is entered for either party, the case shall be dismissed at the costs of the plaintiff. XIX NEITHER PARTY READY AT THE SECOND TERM. When a case is called for argument at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dismissed at the costs of the plaintiff, unless sufficient cause is shown for further postponement. 16— 123 RULES OF THE SUPREME COURT XX — PRINTED ARGUMENTS. 1. In all cases brought tiere on appeal, writ of error, or otherwise, the Court will receive printed arguments without regard to the number of the case on the docket, if the coun- sel on both sides shall choose to submit the same within the first sixty days of the term ; but twenty copies of the argu- ments, signed by attorneys or counselors of this Court, must be first filed ; ten of these copies for the Court, two for the reporter, three to be retained by the Clerk, and the residue for counsel. 2. When a case is reached in the regular call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. 3. When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument will be received unless it is filed before the oral argument begins, and the Court will proceed to consider and decide the case upon the ex parte argument. [Promulgated November i6th, iSy2.'^ XXI. — COUNSEL. — ARGUMENTS. — BRIEFS. Sec. I. Only two counsel shall be heard for each party on the argument of a cause. Sec. 3. Two hours on each side shall be allowed to the argument, and no more, without special leave of the court, granted before the argument begins. The time thus allowed may be apportioned between the counsel on the same side, at their discretion : Provided, always, that a fair opening of the case shall be made by the party having the opening and clos- ing arguments. Sec. 3. The counsel for the plaintiff in error, or appellant, shall file with the clerk of the court, at least six days before OF THE UNITED STATES. 1 23 the case is called for argument, twenty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side. Sec. 4. This brief shall contain, in the order here stated: I. A concise abstract, or statement of the case, presenting succintly the questions involved, and the manner in which they are raised. II. An assignment of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and specifically each error asserted and intended to be urged ; and, in cases brought up by appeal, the assignment shall state, as specifically as may be, in what the decree is alleged to be eri'oneous. If error is assigned to a ruling upon the report of a master, the specification shall state the exception to the re- port, and the action of the court upon it. III. A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record, and the authorities relied upon in sup- port of each point. When a statute of a State is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. Sec. 5. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused. Sec. 6. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. Sec. 7. Counsel for a defendant in error, or an appellee, shall file with the clerk twenty printed copies of his argument at least three days before the case is called for hearing. His brief shall be of a like character with that required of the plaintiff or appellant, except that no assignment of errors is re- quired, and no statement of the case, unless that presented by the plaintiff or appellant is controverted. Sec. 8. Without such an assignment of errors counsel will not be heard, except at the request of the court, and errors not 124 RULES OF THE SUPREME COURT assigned according to this rule will be disregarded, though the court, at its option, may notice a plain error not assigned. Sec. 9. When, according to this rule, a plaintiff in error, or an appellant, is in default, the case may be dismissed on motion ; and when a defendant in error, or an appellee, is in default, he will not be heard, except on consent of his adver- sary, and with request of the court. Sec. id. When no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel will be heard for the adverse party ; but if a printed brief or argu- ment is filed, the adverse party will be entitled to be heard by two counsel. XXII. ORDER OF ARGUMENT. The plaintiff or appellant in this court shall be entitled to open and conclude the case. But when there are cross-appeals, they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the ar- gument. XXIII. — INTEREST. 1. In cases where a writ of error is prosecuted to this court, and the judgment of the inferior court is affirmed, the interest shall be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest in the courts of the State where such judgment is rendered. 2. In all cases where a writ of error shall delay the pro- ceedings on the judgment of the inferior court, and shall ap- pear to have been sued out merely for delay, damages at the rate of 10 per cent., in addition to interest, shall be awarded, upon the amount of the judgment. 3. The same rule shall be applied to decrees for the pay- ment of money in cases in chancery, unless otherwise ordered by this court. OF THE UNITED STATES. I25 XXIV. — COSTS. 1. In all cases where any suit shall be dismissed in this court, except where the dismissal shall be for want of jurisdic- tion, costs shall be allowed for the defendant in error or appel- lee, as the case may be, unless otherwise agreed by the parties. 2. In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, as the case may be, unless otherwise ordered by the court. 3. In cases of reversal of any judginent or decree in this court, costs shall be allowed to the plaintiff in error or appel- lant, as the case may be, unless otherwise ordered by the court. The £osts of the transcript of the record from the court below, shall be a part of such costs. 4. Neither of the foregoing rules shall apply to cases where the United States are a party ; but in such cases no costs shall be allowed in this court for or against the United States. 5. In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a mandate, or other pro- per process, in the nature of a procedendo, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. 6. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. XXV, — OPINIONS OF THE COURT. I. All opinions delivered by the court shall, immediately upon the delivery thereof, be delivered over to the clerk to be recorded. And it sh^I be the duty of the clerk to cause the same to be forthwith recorded, and to deliver the originals, with a transcript of the judgment or decree of the court there- on, to the reporter, as soon as the same shall be recorded. 126 RULES OF THE SUPREME COURT 2. And all the opinions of the court, as far as practicable, shall be recorded during the term, so that the publication of the reports may not be delayed thereby. XXVI. CALL OF THE DOCKET. (See also Rule xxx.) The court on the second day in each term will commence calling the cases for argument in the order in which they stand on the docket, and proceed from day to day during the term, in the same order; and if the parties, or either of them, shall be ready when the case is called, the same will be heard ; and if neither party shall be ready to proceed in the argument, the cause shall go down to the foot of the docket, unless some good and satisfactory reason to the contrary shall be shown to the court. Ten causes only shall be considered as liable to be called on each day during the term, including the one under argument, if the same shall not be concluded on the preceding day. No cause shall be taken up out of the order on the docket, or be set down for any particular day, except under special and peculiar circumstances to be shown to the court. Every cause which shall have been called in its order, and passed, and put at the foot of the docket, shall, if not again reached during the term it was called, be continued to the next term of the court. XXVII. MOTION DAY. The court will not hear arguments on Saturday, (unless for special cause it shall order to the contrary), but will devote that day to the other business of the court; and on Friday in each week, during the sitting of the court, motions in cases not required by the rules of the court tabe put on the docket shall be entitled to preference, if such motions shall be made before the court shall have entered on the hearing of a cause upon the docket. OF THE UNITED STATES COURT. 1 27 XXVIII. — ADJOURNMENT. The court will, at every session, announce at what day it will adjourn, at least ten days before the time which shall be fixed upon; and the court will take up no case for argument, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjournment. XXIX. DISMISSING CASES IN VACATION. Whenever the plaintiff and defendant in a writ of error pending in this court; or the appellant and appellee in any appeal, shall at any time hereafter, in vacation and out of term time, by their respective attorneys, who are entered as such on the record, sign and file with the clerk an agreement in writ- ing, directing the case to be dismissed, and specifying the terms upon which it is to be dismissed as to costs, and also paying to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party which may request it a copy of the agree- ment filed ; but no mandate or other process is to issue without an order by the court. XXX. WHEN CASES SHALL BE HEARD. All cases on the calendar, except cases advanced as herein- after provided, shall be heard when reached in the regular call of the docket, and in the order in which they are entered. Criminal cases may be advanced, by leave of the court, on motion of either party. Revenue cases, and cases in which the United States are concerned, which also involve or affect some matter of gener- al public interest, may also, by leave of the court, be advanced on motion of the attorney-general. Two or more cases, also, involving the same questions, may, by leave of the court, be heard together, but they must be ar- gued as one case. 128 RULES OF THE SUPREME COURT XXXI. — APPEARANCE OF COUNSEL. — MOTIONS TO DISMISS. Upon the filing of the transcript of a record brought up by- writ of error or appeal, the appearance of the counsel for the plaintiff in error or appellant shall be pntered, and no motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. XXXII. SUPERSEDEAS. BOND FOR INDEMNITY. Supersedeas bonds in the circuit courts must be taken, with good and sufficient security, that the plaintifFin error or appel- lant shall prosecute his writ or appeal to effect and answer all damages and costs, if he fail to make his plea good. Such in- demnity, w^hen the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including "just damages for delay," and costs and interest on the appeal ; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages; or, when the property is in the custody of the marshal, under ad- miralty process, as in case of capture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in custody or control of the court, indemnity in all such cases is only re- quired in an amount sufficient to secure the sum recovered for the use or detention of the property, and the costs of the suit and "just damages for delay," and costs and interest on the appeal. XXXIII. WRITS OF ERROR. In cases where final judgment is rendered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be returnable on the first day of said term, aud be served before that day; but in cases where judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the said term, and be served before that day. RULES OF PRACTICE COURTS OF EQUITY, OF THE UNITED STATES. JANUARY TERM 1843. PRELIMINARY REGULATIONS. No. I. The -Circuit Courts, as Courts of Equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings; for issuing and returning tnesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits. No. 2. The Clerk's office shall be open, and the Clerk shall be in attendance therein on the first Monday of every month, for the purpose of receiving, entering, entertaining and disposing of all motions, rules, orders, and other proceed- ings, which are grantable of course and applied for, or had by the parties, or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. No. 3. Any Judge of a Circuit Court, as well in vacation as in term, may, at chambers, or on the rule days, at the Clerk's office, make and direct all such interlocutory orders, -17 130 COURTS OF EQUITY rules, and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the Circuit Court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to ap- pear and show cause to the contrary at the next rule day thereafter, unless some other time is assigned by the Judge for the hearing. No. 4. All motions, rules, orders, and other proceedings made and directed at chambers, or on rule days at the Clerk's office, whether special or of course, shall be entered by the Clerk in an order booli, to be kept at the Clerk's office, on the day when they are made and directed ; which book shall be open at all office hours, to the free inspection of the parties in any suit in equity, and their solicitors. And except in cases whei-e personal or other notice is specially required or direc- ted, such entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further serv- ice thereof, of all orders, rules, acts, notices, and other pro- ceedings entered in such order book, touching any and all the matters in the suits, to and in which they are parties and soli- citors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not other- wise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the Judges of the Circuit Court may, by rule, abridge the time for notice of rules, orders, or other proceedings, not requir- ing personal service on the parties, in their discretion. No. 5. All motions and applications in the Clerk's office for the issuing of mesne process and final process to enforce and execute decrees, for filing bills, answers, pleas, demurrers and other pleadings; for making amendments to bills and answers; for taking bills fro confesso; for filing exceptions, and for other proceedings in the Clerk's office, which do not, by the i^ules hereinafter prescribed, require any allowance or OF THE UNITED STATES. I3I order of the Court, or of any Judge thereof, shall be deemed motions and applications, grantable of course by the Clerk of the Court. But the same may be suspended, or altered, or rescinded by any Judge of the Court, upon special cause shown. No. 6. All motions for rules or orders, and other proceed- ings, which are not grantable of course, or without notice, shall, unless a different time be assigned by a Judge of the Court, be made on a rule day, and entered in the order book, and shall be heard at the rule day next after that on which the motion is made. And if the adverse party, or his solici- tor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any Judge of the Court ex parte, and granted, as if not objected to, or re- fused, in his discretion. PROCESS. No. 7. The process of Subpcena shall constitute the pro- per mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill; and unless otherwise provided in these rules, or specially ordered by the Circuit Court, a writ of attachment, and if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the Court. No. 8. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in. the Circuit Court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land, or the delivering up of deeds or other documents, the decree shall, in all cases, pre- scribe the time within which the act shall be done, of which the defendant shall be bound without further service to take 132 COURTS OF EQUITY notice; and upon affidavit of the plaintiff, filed in the Clei-k'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 Judge thereof, upon motion and affidavit, enlarging- the time for the performance thereof. If the de- linquent party cannot be found, a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. No. 9. When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and re- fusal 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. No. 10. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process, as if he were a party to the cause ; and every person not being a pai-ty in any cause, against whom obedience to any order of the Court may be enforced, shall be liable to the same process for enforcing obedience to such order, as if he were a party in the cause. SERVICE OF PROCESS. No. II. No process of subpoena shall issue from the Clerk's office, in any suit in equity, until the bill is filed in the cause. No. 12. Whenever a bill is filed, the Clerk shall issue the process of subpoena thereon, as of course, upon the applica- tion of the plaintiflT, which shall be returnable into the Clerk's office the next rule day, or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoe- na shall be placed a memorandum, that the defendant is to OF THE UNITED STATES. J 33 enter his appearance in the suit in the Clerk's office, on or before the day at which the writ is returnable; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife, defendants, or a joint subpoena against all the defendants. No. 13. The service of all subpoenas shall be by a deliv- ery of a copy thereof by the officer serving the same, to the defendant personally, or, in case of husband and wife, to the husband personally, or by leaving a copy thereof at the dwel- ling house or usual place of abode of each defendant, with some free white person who is a member or resident in the family. No. 14. Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpoena, toties guoties, against such defendant, if he shall require it, until due service is made. No. 15. The service of all process, mesne and final, shall be by the Marshal of the District, or his Deputy, or by some other person specially appointed by the Court for that pur- pose, and not otherwise ; in the latter case, the person serving the process shall make affidavit thereof. No. 16. Upon the return of the subpoena, as served and executed upon any defendant, the Clerk shall enter the suit upon his docket as pending in the Court, and shall state the time of the entry. APPEARANCE. No. 17. The appearance day of the defendant shall be the rule day, to which the subpoena is made retui-nable, provided he has been served with the process twenty days before that day; otherwise, his appearance day shall be the next rule day succeeding the rule day when the process is returnable. The appearance of the defendant, either personally or by 134 COURTS OF EQUITY his solicitor, shall be entered in the order book on the day thereof by the Clerk. BILLS TAKEN PRO CONFESSO. No. 1 8. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a Judge of the Court upon motion for that purpose, to file his plea, demurrer, or answer to the bill in the Clerk's office, on the rule day next succeeding that of entering his appearance; in default thereof, the plaintiff may, at his election, enter an order (as of course) in the order book, that the bill be taken fro confesso; 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, and is proper to be de- creed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant, to compel an answer ; and the defendant shall not, when arrested upon such process, be discharged therefrom, unless, upon filing his an- swer, or otherwise complying with such order, as the Court or a Judge thereof may direct, as to pleading to, or fully answering the bill, within a period to be fixed by the Court or Judge, and undertaking to speed his cause. No. 19. When the bill is taken fro confesso, the Court may proceed to a decree at the next ensuing term thereof, such decree rendered shall be deemed absolute, unless the Court shall, at the same term, set aside the same, or enlarge the time of filing the answer, upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the Court shall deem reasonable, and unless the defendant shall under- take to file his answer within such time as the Court shall direct, and submit to such other terms as the Court shall direct, for the purpose of speeding the cause. OF THE UNITED STATES. FRAME OF BILLS. 135 No. 20. Every bill in the introductory part thereof, shall contain the names, places of abode and citizenship, of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : "To the Judge of the Circuit Court of the United States for the district of -, A. B., of , and a citizen of the State of , brings this his bill against C. D., of , and a citizen of the State of , and E. F., of , and a citizen of the State of . And thereupon your orator complains and says, that, etc." No. 21. The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the com- mon confederacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff; also what is commonly called the charging part of the bill, setting forth the matters or excuses, which the defendant is supposed to intend to set up by way of defense to the bill ; also what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the de- fendant is without any remedy at law; and the bill shall not be demurrable therefor. And the plaintiff may, in the narra- tive or stating part of his bill, state and avoid, by counter averments, at his option, any matter or thing which he suppo- ses will be insisted upon by the defendant, by way of defense or excuse, to the 'case made by the plaintiff for relief. The prayer of the bill shall ask the- special relief, to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction or writ of ne exeat regno, or any other special order pending the suit, is required, it shall also be specially asked for. No. 22. If any persons, other than those named as de- fendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the juris- diction of the Court, or that they cannot be joined without ousting the jurisdiction of the Court as to the other parties. 136 COURTS OF EQUITY And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill, if they should come within the jurisdiction. No. 23. The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the Court may take order thereon as justice may require, upon the return of the process. If an injunction, or a writ of ne exeat regno^ or any other special order pending the suit, is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process. No. 24. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part, that upon the instructions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. No. 25. In order to prevent unnecessary costs and expen- ses, and to promote brevity, succinctness, and directness in the allegations of bills and answers, the regular taxable costs for every bill and answer, shall in no case exceed the sum which is allowed in the State Court of Chancery in the dis- trict, if any there be; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer. SCANDAL AND IMPERTINENCE IN BILLS. No. 26. Every bill shall be expressed in as brief and suc- cinct terms as it reasonably can be, and shall contain no un- necessary recitals of deeds, documents, contracts, or other in- struments, in hcBC verba, or any other impertinent manner, or any scandalous matter not relevant to the suit. If it does, it may on exceptions be referred to a master by any Judge of the Court for impertinence or scandal, and if so found by him, the matter shall be expunged at the expense of the plaintiff. OF THB UNITED STATES. 137 and he shall pay to the defendant all his costs in the suit up to that time, unless the Court or a Judge thereof shall other- wise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the reference. No. 27. No order shall be made by any Judge for refer- ring any bill, answer or pleading, or other matter or proceed- ing, depending before the Court for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages, which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule day, or the master shall certify that further time is necessary for him to complete the examination. AMENDMENT OF BILLS. No. 28. The plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill in any matters whatsoever, before any copy has been taken out of the Clerk's office, and in any small matters afterwards, such as filling blanks, correcting errors of dates, inisnomer of par- ties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do of course), after a copy has been so taken, before any answer or plea, or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall without delay furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be in- serted. And if the amendments are numerous, he shall fur- nish in like manner, to the defendant, a copy of the whole — 18 138 COURTS OF EQUITY bill as amended, and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. No. 29. After an answer, or plea, or demurrer is put in, and before replication, the plaintiff may, upon motion or pe- tition, without notice, obtain an order from any Judge of the Court, to amend his bill on or before the next succeding rule day, upon payment of costs, or without payment of costs, as the Court or a Judge thereof may in his discretion direct. But after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except on a special order of a Judge of a Court, upon motion or petition, after due notice to the other party, and upon proof by affidavit, that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material,^ and could not with reasonable dilligence have been sooner intro- duced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the Judge for speeding the cause. No. 30. 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 application for any amend- ment had been made. DEMURRERS AND PLEAS. No. 31. No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel, that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant, that it is not interposed for delay ; and if a plea, that it is true in point of fact. No. 32. The defendant may, at any time before the bill is taken for confessed, or afterwards with the leave of the Court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue ; OF THE UNITED STATES. 1 39 but in every case in 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 combination, and the facts on which the charge is founded. No. 33. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defend- ant, they shall avail him, as far as in law and equity they ought to avail him. No. 34. If, upon the hearing, any demurrer or plea is over- ruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the Court shall be satisfied that the de- fendant had good ground in point of law or fact to interpose the same, and it was not interposed vexatiously or for delay. And upon the overruling of any plea or demurrer, the defend- ant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule day, or at such other period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the Court, be reasonably done; in default whereof the bill shall be taken against him, fro confesso, and the matter there- of proceeded in and decreed accordingly, No. 35. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the Court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. No. 36. No demurrer or plea shall be held bad and over- ruled upon argument, only because such demurrer or plea shall not cover so much of the bill as" it might by law have extended to. No. 37. No demurrer or plea shall be held bad and over- ruled upon argument, only because the answer of the defend- ant may extend to some part of the same matter, as may be covered by such demurer or plea. 140 COURTS OF EQUITY No. 38. If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule day, when the same is filed, or on the next succeeding rule day, he shall be deemed to admit the truth and sufficiency thereof and his bill shall be dismissed as of course, unless a Judge of the Court shall allow him further time for the purpose. ANSWERS. No. 39. The rule, that if a defendant submits to answer he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of de- fense (not being matters of abatement, or to the character of the parties, or matters of form), in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar; and in such answer he shall not be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the the bar or defense. Thus, for example, a bona Jide purchaser for a valuable considera- tion, without notice, may set up that defense by way of an- swer instead of plea, and shall be entitled to the same protec- tion, 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. No. 40. [Repealed.] — [See Rule p^. No. 41. The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered consecutively i, 2, 3, etc.; and the interrogatories, which each defendant is required to an- swer, shall be specified in a note at the foot of the bill, in the form or to the effect following ; that is to say — " The defend- ant (A. B.) is required to answer the interrogatories number- ed respectively i, 2, 3, etc.;" and the office copy of the bill OF THE UNITED STATES. I41 taken by each defendant shall not contain any interrogatories except those which such defendant is required to answer, un- less such defendant shall require to be furnished with a copy of the whole bill. AMENDMENT TO 4IST EQUITY RULE. (Promulgated May 6th, 13^2.) If the complainant, in his bill,, shall waive an answer un- der oath, or shall only require an answer under oath with re- gard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hear- ing on bill and answer only; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of Congress of July 2d, 1864. No. 42. The note at the foot of the bill specifying the in- terrogatories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill. No. 43. Instead of the words of the bill now in use, pre- ceding the interrogating part thereof, and beginning with the -words — "To the end therefore," there shall hereafter be used words in the form or to the effect following : " To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and accord- ing to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several inter- 142 COURTS OF EQUITY rogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer; that is to say — "I. Whether, etc. "2. Whether, etc." 44. A defendant shall be at liberty, by answer, to decline answering any interrogatory or part of an interrogatory, from answering which he might have protected himself by demur- rer; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill, from w^hich he might have protected himself by demurrer. No. 45. No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it neces- sary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the Court or a Judge thereof may in his discretion direct. No. 46. In every case where an amendment shall be made after answer filed, the defendant shall put in a new or supple- mental answer, on or before the next succeeding rule day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a Judge of the Court; and upon his default the like proceedings may be had as in cases of omission to put in an answer. PARTIES TO BILLS. No. 47. In all cases where it shall appear to the Court that persons, who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the Court, or incapable other- wise of being made parties, or because their joinder would oust the jurisdiction of the Court as to the parties before the Court, the Court may, in their discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. OF THE UNITED STATES. I43 No. 48. Where the parties on either side are very numer- ous, and cannot without manifest inconvenience and oppressive delays in the suit, be all brought before it, the Court in its dis- cretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the de- fendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. No. 49. In all suits concerning real estate, which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate or the proceeds, or the rents and profits, in the same manner, and to the same ex- tent, as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit; but the Court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. No. 50. In suits to execute the trusts of a will, it shall no^ be necessary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law a party, where he desires to have the will established against him. No. 51. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the Court, as parties to a suit concerning such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. No. 52. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and 144 COURTS OF EQUITY the purpose for which the same is so set down shall be notified by an entry, to be made in the Clerk's order book, in the form or to the effect following: (that is to say) — "Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, 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 liberty to amend his bill by adding parties. But the Court, if it thinks fit, shall be at liberty to dismiss the bill. No. 53. If a defendant shall, at the hearing of a cause, ob- ject that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description the parties to w^hom the objection applies) the Court (if it shall think fit), shall be at liberty to make a decree saving the rights of the absent parties. NOMINAL PARTIES TO BILLS. No. 54. Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party upon service of the subpcena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill; but he may appear and answer at his option ; and if he does not appear and answer, he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the Court shall otherwise direct. No. 55. Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his ap- pearance and plead, demur, or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled as of course, upon motioh without notice, to such in- junction. But special injunction shall be grantable only upon due notice to the other party by the Court in term, or by a OF THE UNITED STATES. I45 Judge thereof in vacation, after a hearing, which may be ex farte, if the adverse party does not appear at the time and place ordered. In every case vsrhere an injunction, either the cornmon injunction, or a special injunction, is awarded in vaca- tion, it shall, unless previously dissolved by the Judge grant- ing the same, continue until the next term of the Court, or until it is dissolved by some other order of the Court. BILLS OF REVIVOR AND SUPPLEMENTAL BILLS. No. 56. Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a 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 upon sug- gestion of the facts, the proper process of subpoena shall, as of course, be issued by the Clerk, requiring the proper repre- sentatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule day, which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. No. 57. Whenever any suit in equity shall become defect- ive, from any event happening after the filing of the bill (as for example, by a change of interest in the parties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any Judge of the Court, on any rule day, upon proper cause shown, and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead, or answer thereto, on the next succeeding rule day after the supplemental bill is filed in the Clerk's office, unless some other time shall be assigned by a Judge of the Court. No. 58. It shall not be necessary in any bill of revivor, or 146 COURTS OF EQUITY supplemental bill, to set forth any of the statements in the original suit, unless the special circumstances of the case may- require it. ANSWERS. No. 59. Every defendant may swear to his answer before any Justice or Judge of any Court of the United States, or before any Commissioner appointed by any Circuit Court to take testimony or depositions, or before any Master in Chancery appointed by any Circuit Court, or before any Judge of any Court of a State or Territory. AMENDMENT OF ANSWERS. No. 60. After an answer is put in it may be amended, as of course, in any matter or form, or by filling up a blank, or correcting a date, or reference to a document or other small matter, and be re-sworn, at any time before a replication is put in, or the cause is set down for a hearing upon bill and answ^er. But after replication, or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original statements, except by special leave of the Court or of a Judge thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by affidavit. And in every case where leave is so granted, the Court, or the Judge granting the same, may, in his discretion, require that the same be separately engrossed and added as a distinct amend- ment to the original answer, so as to be distinguishable there- from, EXCEPTIONS TO ANSWERS. No. 61. After an answer is filed on any rule day, the plaint- iff" shall be allowed until the next succeeding rule day to file in the Clerk's office, exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the pur- OF THE UNITED STATES. I47 pose, upon cause shown to the Court or a Judge thereof; and if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. No. 62. When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other proceedings had by two or more of the defendants, separately, costs shall not be allowed for such separate answers or other proceedings, unless a master, upon reference to him, shall cer- tify, that such separate answers and other proceedings were necessary or proper, and ought not to have been joined to- gether. No. 63. Where exceptions shall be filed to the answer for insufficiency within the period prescribed by these rules, if the defendant shall not submit to the same, and file an amended answer on the next succeeding rule day, the plaintiflf shall forth- with set them down for a hearing on the next succeeding rule day thereafter, before a Judge of the Court; and shall enter, as of course, in the order book an order for that purpose. And if he shall not so set down the same for a hearing, the excep- tions shall be deemed abandoned, and the answer shall be deemed sufficient; provided, however, that the Court, or any Judge thereof, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discre- tion, upon such terms as he may deem reasonable. No. 64. If, at the hearing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete an- swer thereto, on the next succeeding rule day, 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 at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the Court, or of a Judge thereof, upon his putting in such answer, and complying with such other terms, as the Court or Judge may direct. 148 COURTS OF EQUITY No. 65. If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged in- sufficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the Court, or the Judge thereof, at the hearing upon the exceptions. REPLICATION AND ISSUE. No. 66. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule day thereafter; and in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, w^ithout any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the de- fendant shall be entitled to an order, as of course, for a dis- missal of the suit; and the suit shall thereupon stand dismissed, unless the Court, or a Judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. TESTIMONY, HOW TAKEN. No. 67. After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon in- terrogatories filed by the party taking out the same in the Clerk's office, ten days' notice thereof being given to the ad- verse party to file cross-interrogatories before the issuing of the commission; and if no cross interrogatories are filed at the expiration of the time, the commission may issue ex parte. on all cases the commissioner or commissioners shall be named by the Court, or by a Judge thereof. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents, without filing any written in- terrogatories. OF THE UNITED STATES. I49 AMENDMENT OF THE 67TH CHANCERY RULE. {December Term^ 1^54^ Ordered, That the 67th rule governing equity practice be so amended as to allow the presiding Judge of any Court ex- ercising jurisdiction, either in term time or vacation, to vest in the Clerk of said Court general power to name commis- sioners to take testimony in Hke manner that the Court or Judge thereof can now do by the said 67th rule. AMENDMENT TO 67TH RULE IN EQUITY. {December Term, 1861^ Ordered, That the last paragraph in the 67th rule in equity be repealed, and the rule be amended as follows: Either party may give notice to the other that he desires the evidence to be adduced in the cause, to be taken orally, and thereupon all the witnesses to be examined shall be ex- amined before one of the examiners of the Court, or before an examiner to be specially appointed by the Court, the examiner to be furnished with a copy of the bill, and answer, if any, and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-exam- ination, and which shall be conducted as near as may be in the mode now used in common-law courts. The depositions ta- ken upon such oral examination shall be taken down in writ- ing by the examiner, in the form of narrative, unless he determines the examination shall be by question and answer in special instances, and when completed shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend : provided, if the witness shall refuse to sign the said deposition, then the exam- iner shall sign the same, and the examiner may, upon all ex- aminations, state any special matters to the Court as he shall think fit, and any question or questions which may be object- ed to shall be noted by the examiner upon the deposition, but 150 COURTS OF EQUITY he shall not have power to decide on the competency, mate- riality, or relevancy of the questions, and the Court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. The compulsory attendance of witnesses, in case of refusal to attend, to be sworn, or to answer any question put by the examiner, or by counsel or soliciter, the same practice shall be adopted as is now practised with respect to witnesses to be produced on examination before an examiner of said Court on written interrogatories. Notice shall be given by the respective counsel or solicit- ors, 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. When the examination of witnesses before the examiner is concluded, the original deposition, authenticated by the sig- nature of the examiner, shall be transmitted by him to the Clerk of the Court, to be there filed of record, in the same mode as prescribed in the 30th section of Act of Congress, September 24, 1789. Testimony may be' taken on commission in the usual way by written interrogatories and cross-interrogatories, on mo- tion to the Court in term time, or to a Judge in vacation, for special reasons, satisfactory to the Court or Judge. AMENDMENT TO 67TH RULE IN EQUITY. December Term, i86g. Where the evidence to be adduced in a cause is to be taken orally, as provided in the order passed at the December term, 1 86 1, amending the 67th General Rule, the Court may, on motion of either party, assign a time within which the com- plainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evi- dence in defence, and a time thereafter within which the com- plainant shall take his evidence in reply; and no further OF THE UNITED STATES. 151 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. No. 68. Testimony may also be taken in the cause, after it is at issue by deposition, according to the acts of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examin- ation of the witness, either under a commission or by a new deposition taken under the acts of Congress, if a Court, or a Judge thereof shall, under all the circumstances, deem it rea- sonable. No. 69. Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the Court or a Judge thereof shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon return of the commissions and depositions, containing the testimony, into the Clerk's office, publication thereof may be Ordered in the Clerk's office by any Judge of the Court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the circumstances. But by consent of the parties, publication of the testimony may at any time pass in the Clerk's office, such consent being in writing, and a copy thereof entered in the order books, or indorsed upon the deposition or testimony. TESTIMONY DE BENE ESSE. No. 70. After any bill filed, and before the defendant hath answered the same, upon affidavit made that any of the plain- tiif 's witnesses are aged or infirm, or going out of the coun- try, or that any one of them is a single witness to a material fact, the Clerk of the Court shall, as of course, upon the ap- plication of the plaintiff, issue a commission to such commis- sioner or commissioners as a Judge of the Court may direct, to take the examination of such witness or witnesses de bene 152 COURTS OF EQUITY esse, upon giving due notice to the adverse party of the time and place of taking his testimony. FORM OF THE LAST INTERROGATORY. No. 71. The last interrogatory in the written interrogato- ries to take testimony, now commonly in use, shall in the future be altered, and state in substance, thus : "Do you know or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause } If yea, set forth the same fully and at large in your answer." CROSS BILL. No. 72. Where a defendant in equity files 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 answ^er praying relief may now^ be read and used. REFERENCE TO AND PROCEEDINGS BEFORE MASTERS. No. 73. Every decree for an account of the personal estate of a testator or intestate, shall contain a direction to the mas- ter, to whom it is referred to take the same, to enquire and state to the Court what parts, if any, of such personal estate are outstanding or undisposed of, unless the Court shall other- wise direct. No. 74. Whenever any reference of any matter is made to a master to examine and report thereon, the party at w^hose instance or for whose benefit the reference is made, shall cause the same to be presented to the master for a hearing on or before the next rule day succeeding the time when the refer- OF THE UNITED STATES. 153 ence is made : if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. No. 75. Upon every such reference, it shall be the duty of the master as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the par- ties or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or in his discretion to adjourn the exam- ation and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable dili- gence in every such reference, and with the least practicable delay; and either party shall be at liberty to apply to the Court, or a Judge thereof, for an order to the master to speed the proceedings, and to make his report, and to certify to the Court or Judge the reasons for any delay. No. 76. In the reports made by the master to the Court, no part of any state of facts, charge, affidavit, deposition, ex- amination, or answer, brought in or used before them shall be stated or recited. But such state of facts, charge, affidavit, de- position, examination, or answer, shall be identified, specified and referred to, so as to inform the Court what state of facts, charge, affidavit, deposition, examination or answer, were so brought in or used. No. 77. The master shall regula'te 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, wri- tings, vouchers, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon -20 154 COURTS OF EQUITY his certificate from the Clerk's office, or by deposition accord- ing to the acts of Congress, or otherwise as hereinafter pro- vided; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries and proceed- ings in the matters before him, which he may deem necessary and proper to the justice and merits thereof, and the rights of the parties. No. 78. 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 a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the Clerk in blank, and filled up by the party praying the same, or by the com- missioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attend- ance in Court; and if any witness shall refuse to appear, or to give evidence, it shall be deemed a contempt of the Court, which being certified to the Clerk's office by the commission- er, master, or examiner, an attachment may issue thereupon by order of the Court or of any Judge thereof, in the same manner as if the contempt were for not attending, or for re- fusing to give testimony in the Court. But nothing herein contained shall prevent the examination of witnesses viva voce when produced in open Court, if the Court shall in its discre- tion deem it advisable. No. 79. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties, who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the accounting party viva voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct. No. 80. All affidavits, depositions, and documents, which have been previously made, read, or used in the Court, upon any OF THE UNITED STATES. 155 proceeding in any cause or matter, may be used before the master. No. 81. The master shall be at liberty to examine any creditor or other person coming into claim before him, either upon wi-itten interrogatories, or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examination shall be taken down by the master, or by some other person by his order and in his pres- ence, if either pai'ty requires it, in order that the same may be used by the Court, if necessary. No. 82. The Circuit Courts may appoint standing masters in chancery in their respective districts, both the Judges con- curring in the appointment; and they may also appoint a master fro hac vice in any particular case. The compensa- tion to be allowed to every master in chancery for his services in any particular case shall be fixed by the Cii'cuit Court in its discretion, having regard to all the circumstances there- of; and the compensation shall be charged upon and borne by such of the parties in the cause as the Court shall direct. The master shall not retain his report as security for his com- pensation; but when the compensation is allowed by the Court, he shall be entitled to an attachment for the amount against the party who is oi'dered to pay the same, if upon notice thereof, he does not pay it within the time prescribed by the Court. EXCEPTIONS TO REPORT OF MASTER. No. 83. The master, as soon as his report is ready, shall return the same into the Clerk's office, and the day of the re- turn shall be entered by the Clerk in the order book. The parties shall have one month, from the time of filing the re- port, to file exceptions thereto ; and if no exceptions are with- in that period filed by either party, the report shall stand confirmed on the next rule day after the month is expired. If exceptions are filed, they shall stand for hearing before the Court, if the Court is then in session, or if not then, at the 156 COURTS OF EQUITY next sitting of the Court, which shall be held thereafter by adjournment or otherwise. No. 84. And in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled, shall for every excep- tion overruled, pay costs to the other party, and for every ex- ception allowed, shall be entitled to costs — the costs to be fixed in each case by the Court by a standing rule of the Circuit Court. DECREES. No. 85. Clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or .omission, may at any time before an actual enrollment thereof, be corrected by order of the Court or a Judge thereof, upon petition, without the form or expense of a rehearing. No. 86. In drawing up decrees and orders, neither the bill not; answer, nor other pleadings, nor any pai't thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order, but the decree and order shall begin in substance as follows : " This cause came on to be heard (or to be further heard, as the case may be) at this term, and w^as argued by counsel ; and thereupon, upon consideration thereof, it was ordered adjudged, and decreed as follows, viz :" [Here insert the decree or order.] GUARDIANS AND PROCHEIN AMIS. No. 87. Guardians ad litem to defend a suit may be ap- pointed by the Court, or by any Judge thereof, for infants or other persons who are under guardianship, or otherwise in- capable to sue for themselves ; all infants and other persons so incapable, may sue by their guardians, if any, or by their frochein ami, subject, however, to such orders as the Court may direct for the protection of infants and other persons. OF THE UNITED STATES. 1 57 RE-HEARING. No. 88. Every petition for a re-hearing shall contain the special matter or cause on which such re-hearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. No re-hearing shall be grant- ed after the term at w^hich the final decree of the Court shall have been entered and recorded, if an appeal lies to the Su- preme Court. But if no appeal lies, the petition may be ad- mitted at any time before the end of the next term of the Court, in the discretion of the Court. FURTHER REGULATIONS. No. 89. The Circuit Courts ( both Judges concurring therein) may make any other and further rules and regula- tions for the practice, proceedings, and process, mesne and , final, in their respective districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. No. 90. In all cases where the rules prescribed by this Court, or by the Circuit Court, do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstan- ces and local convenience of the district where the Court is held, not as positive rules, but as furnishing just analogies to regulate the practice. No. 91. Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scru- pulous of taking an oath, in lieu thereof, make solemn affir- mation to the truth of the facts stated by him. No. 92. These rules shall take effect, and be of force, in all the Circuit Courts of the United States, from and after the first day of August next; but they may be previously adopted by any Circuit Court in its discretion; and when and as soon as these rules shall so take effect, and be of force, the 158 COURTS OF EQUITY rules of practice for the Circuit Courts in Equity Suits, pro- mulgated and prescribed by this Court in March, 1822, shall henceforth cease, and be of no further force or effect. REPEAL OF THE FORTIETH RULE. Decetnher Term, 1850. No. 93. Ordered, That the fortieth Rule heretofore adop- ted and promulgated by this Court as one of the rules of practice in suits in equity in the Circuit Courts, be, and the same is hereby repealed and annulled. And it shall not here- after be necessary to interrogate a defendant specially and par- ticularly upon any statement in the bill, unless the complain- ant desires to do so, to obtain a discovery. EXECUTION IN FORECLOSURE. December Term, iS6j. No. 94. In suits in equity for the foreclosure of mortgages in the Circuit Courts of the United States, or in any Court of the Territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the eighth Rule of this Court regulating the equity practice, where the decree is solely for the payment of money. RULES OF PRACTICE FOR THE COURTS OF THE UNITED STATES IN ADMIRALTY, ON" THE IN'STAJSrCBl SIDE OP THE COTJRT. DECEMBER TERM, 1844. No. I. No mesne process shall issue from the District Courts, in any civil cause of admiralty and maritime jurisdic- tion, until the libel, or libel of information, shall be filed in the Clerk's office from which such process is to issue. All process shall be served by the Marshal or his Deputy, or, where he or they are interested, by some discreet and disin- terested person appointed by the Court. No. 3. In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant in the nature of a capias, or by a warrant of arrest of the per- son of the defendant, with a clause therein, that if he cannot be found, to attach his goods and chattels to the amount sued for, or if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the gar- l6o RULES IN ADMIRALTY. nishees named therein ; or by a simple monition in the nature of a summons, to appear and answer to the suit, as the libel- lant shall, in his libel or information, pray for, or elect. No. 3. In all suits in personam, where a simple warrant of arrest issues and is executed, the Marshal may take bail, with sufficient sureties, from the party arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the Court, interlocutory or final, in the cause, and pay the money awarded by the final decree ren- dered therein in the Court to which the process is returnable or in any appellate Court. And upon such bond or stipula- tion summary process of execution may and shall be issued against the principal and sureties by the Court to which such process is retui'nable, to enforce the final decree so rendered, or upon appeal by the appellate Court. No. 4. In all suits in personam, where goods and chattels, or credits and effects, are attached under such warrant author- izing the same, the attachment may be dissolved by order of the Court to which the same warrant is returnable, upon the defendant, whose property is so attached, giving a bond or stipulation, with sufficient sureties, to abide by all orders, in- terlocutory or final, of the Court, and pay the amount award- ed by the final decree rendered in the Court to which the pro- cess is returnable, or in any appellate Court; and upon such bond or stipulation summary process of execution shall and may be issued against the principal and sureties by the Court to which such warrant is returnable, to enforce the final decree so rendered, or upon appeal by the appellate Court. No. 5. Bonds, or stipulations in admiralty suits, may be given and taken in open Court, or at chambers, or before any Commissioner of the Court who is authorized by the Court to take affidavits of bail, and depositions in cases pending be- fore the Court. RULES IN ADMIRALTY. lOI AMENDMENT TO FIFTH RULE IN ADMIRALTY. ^Promulgated May 6, i ... 105, 113 Practice in criminal cases in courts of the United States 109, 113 Proofs in bankruptcy, commissioners may take 8 Process in criminal cases 29, 87 Process, summons for seamen's wages 24 Process in case of new bail required 33 Process to remove prisoner to another district 33 Process, warrant of commitment 42 Process, commissioners to appoint persons to execute 51 Process in extradition cases 58 Recognizances to be returned into court 29 Recognizances of witnesses may be required 29, 31 Recognizances of accused, form of : 44 Removal of prisoner to another district for trial 29 Removal of prisoner to another district for examination unlawful . 34 Rules of the Stiprbmb Court op the United States I. Clerk 114 If. Attorneys 114 III. Practice 115 IV. Bill of exceptions 115 V. Process 115 VI. Motions 115 VII. Law Library — conference room 116 VIII. Return to writ of error 116 IX. Docketing cases 117 X. Security for costs — ^printing records— attachment for costs 118 XI. Translations 119 INDEX. iii Rules op the Stjpbeme Court.— Continued. XII. Evidence.... ^-^g Xril. Deeds, etc., not objected to, etc.,' admitted,' etc! ...... 120 XIV. Certiorari ]^3q XV. Death of a party .'.'.'.'..'.'.'..'.'.'.'.".'.'.' 120 XVI. No appearance of plaintiff .'.'.'.'.'.'.'.'.','.'. 131 XVII. No appearance of defendant .'....'!!!!! 131 XVIII. No appearance of either party ..'. 131 XIX. Neither party ready at the second term '. 131 XX. Printed Arguments 133 XXI. Counsel — Arguments — Briefs 123, 124 XXII. Order of Argument 124 XXIII. Interest 134 XXIV. Costs ......v.'..'.'.'.'.'. 135 XXV. Opinions of the court 125,136 XXVI. Call of the docket 136 XXVII. Motionday 136 XXVIII. Adjournment 137 XXIX. Dismissing cases in vacation . . ' 137 XXX. When cases shall be heard 127 XXXI. Appearance of counsel 127 XX XII. Supersedeas. — Bond for indemnity 128 XXXm Writsoferror liS Rules in Equity 139 I. Circuit courts, as courts of equity, to be always open etc 139 n. Rule days to be the first Monday of every month 139 in. Interlocutory orders, etc., may be made at chambers, etc 129 rv. Proceedings at chambers or on rule days to be entered in order book, etc., such entrance to be notice to parties, etc 130 V. Motions grantable of course 130 VI. Motions not grantable of course 131 VII. Proper mesne process in certain cases 131 VIII. Pinal process to execute decree 131 IX Writ of assistance 133 X. Persons not parties to suit entitled to process, etc 133 " Persons not parlies to suit liable to process 132 XI.-XVI. Issue, service and return of process 132, 133 XVII. " Appearance of defendant 133 XVIII.-XIX. Bills taken pro confesso — Attachment to compel an- swer 134 XX.-XXV. Frame of bills 135, 136 XXVI.-XXVII. Scandal and impertinence in bills 136, 137 XXVIII.-XXX. Amendment of bills 137, 138 XXXL-XXX VIII. Demurrers and pleas 138, 140 XXXIX.-XLIV. Answers— Interrogatories annexed to the bill 140,142 XLV.-XLVI. Amendment after answer— supplemental answer 142 XLVIL-LIII. Parties to bills 143, 144 LIV. Nominal parties to bills 144 LV Injunctions 144 LVI -LVIII. Bills of revivor and supplemental bills 145, 146 IV. INDEX. Rules in Equity. — Continued. LIX. Answers may be sworn to before any justice, etc 146 LX. Amendment of answers 146 LXI.-LXV. Exceptions to answers 146, 14& LXVI. Replication and issue 148 LXVII.-LXIX. Testimony, how taken 148, 151 LXX. Testimony, de bene esse 151 LXXI. Form of the last interrogatory 152 LXXII. Cross biil 152 LXXIII. — LXXXII. Reference to, and proceedings before Masters 15'' 155- LXXXIII.-LXXXIV. Exceptions to report of Master! ..... 155,' 156 LXXXV.-LXXXVI. Decrees 1,56 LXXXVII. Guardians and Ptochein amis 156 LXXXVIII. Re-hearing 157 LXXXIX.-XCII. Further regulations 157 XCIII. Repeal of Rule XL 158 XCIV. Execution in foreclosure 158 Rules in Admiralty 159 1. Issue and service of process 159 IJ. Mesne process in suits in personam 159 III. Marshal may take bail of party arrested, etc 160 IV. Attachment may be dissolved upon giving stipulation 160 v. Stipulations in Admiralty, before whom taken 160, 161 VI. Court may reduce bail, or require new sureties 161 VII. No warrant of arrest shall issue unless, etc 101 VIII. In suits in rem, Court may decree delivery to Mar- shal, etc 161 IX. Seizures in rem, form of process, notice, etc 161, 162 X. Court may decree sale, pending the suit, etc 162 XI Court may order delivery upon giving stipulation, etc. 162 • XII. Suits by Material men 163 XIII. Suits for Mariner's wages 163, 164 XIV. Suits for pilotage 164 XV. Suits for damages by collision 164 XVI. Suits for assault and beating on the high seas, etc. . . 164 XVII. Suits founded on Maritime hypothecation, etc 164 XVIII. Suits upon bottomry bonds, etc 164 XIX. Suits for Salvage 164 XX. Petitory and possessory suits. 164, 165 XXI. Final process to execute decree 165 XXII. Form of informations and libels of information. . .165, 166 XXIII Form of libels in instance causes 166 XXIV. Amendment of libels 166, 167 XXV. Stipulations for costs may be required in certain cases, 167 XXVI. Verification of claim in suits in rem — Stipulations for costs . 167 XXVII. Answers to be on oath, to be full and explicit, etc. . . 167 XXVIII. Exceptions to answers 167, 168 XXIX. Libels taken pro confesso 168 XXX Attachment to compel further answer, etc 168 XXXI. Defendant may object to answer, etc 168 XXXII. Defendant may require answer of libeUant, etc.. . .168, 169 XXXIII. Court may award commission to take answer in cer- tain cases 169 INDEX. v. RuiiBS IN ADMiBAiiTY. — Continued. XXXIV. Proceedings where third parties intervene, etc 169 XXXV. Stipulations, how taken .169, 170 XXXVI. Exceptions to libels 170 XXXVII. Garnishees may be required to antwer, etc 170 XXXVIII. Court may require freight, etc., to be brought into court ' 170 XXXIX. Libellant failing to prosecute, suit may be dismissed. 171 XL. Court may grant re-hearing within ten days after decree 171 XLI. Sales, by whom to be made, proceeds to be brought into court 171 XLII. Moneys, how deposited and drawn out 171 XLIII. Persons having interest in proceeds may intervene, etc 171, 172 XLIV. Reference to commissioners, their power and duties... 173 XLV. Appeals to the Circuit Court 172 XL VI. District and Circuit Courts may regulate practice, etc. 172 XL VII. When these rules to take effect 173 XLVin. Bail — in what cases may be taken, etc.. 173 XLIX. Modification of 37th rule 173 L. Further proof on appeal, how taken 173, 174 LI. Oral evidence taken down by Clerk, may be used on appeal 174 LII. When defendant alleges new facts in his answer, libellant may amend 174, 175 LIII. Records on appeals, how made up 175, 176 LIV. Cross libels 176 LV.-LVIII. Practice under the act of March 3, 1851, entitled "An Act to limit the liability of ship owners, and for other purposes " 176, 178 Rules of the Circuit Coubt fob the Sotjthebn Distbict of Illinois 179 I. Admission of Attorneys 179 II. Practice to conform to that of the State courts 179 III. Process to be the same as in like cases in State courts. 179 IV. Bonds for costs, when required , 180 V. Bail, when plaintiff entitled to , 180 VI. Attachments, when plaintiff entitled to 180 VII. Rule to plead may be taken on third day of term in certain cases 180 VIII. Saleof real estate on execution, what notice required. 180 IX. Sees. 3, 36 and 37, ch 31, and sec. 37, ch. 57, Rev. Stat. 111. adopted 180 X. Ejectment, rule regulating practice in 181 XI. Sale of railroad on execution, what notice required . . 181 XII. Witness attending at request of either party entitled to fees 181 Xm. Process may be made returnable to first day of term . 182 " ' Rule to plead may be taken after 10 days from ser- vice, &c 182 XIV. Sale of real estate on execution, what notice required. 183 XV. Garnishee proceedings 183 XVI. Process may be made returnable to future day of term 183 VI. INDEX. KuLES OF THE CiscuiT CoTJKT.— Continued, XVI. Rule to plead may be taken after 3d day from return day, etc 183 XVII. Copies of pleadings to be furnished — costs of same — how taxed 183 XVIII. Form of pleading in actions on contracts 184 ' XIX. Assessment of damages in actions on contracts 184 XX. Liens, ch. 65, Rev. Stat. 111. adopted 184 XXI. Evidence and depositions, sec. 10, ch. 40, Rev. Stat. 111., adopted 184 XXII. Depositions of witnesses in suits in chancery 185 XXIII. Depositions of witnesses in suits at law 185 XX I V. Suits may be dismissed in vacation 185 XXV. Moneys paid into court, where to be deposited 185 XXVI. Executions may be issued 10 days after judgment 186 XXVII. Public notice, when required, to be published where. 186 XXVIII. Records or papers not to be removed from clerk's office, etc 187 XXIX. Ejectment — judgments may be rendered against de- fendants, jointly or separately 187 XXX. Judgment creditors having judgments in State courts may redeem, etc 187 XXXI. Judgment creditors in this court may redeem, etc 188 XXXII. Certificates of purchase and redemption to be recorded 188 XXXIII. Jurors, how selected and summoned 189 XXXIV. Admission fee of counselors and attorneys 190 XXXV. Declarations and notices in ejectment 190 XXXVI. Jurors, applicants not to be selected as 190 XXXVII. Clerk may require bond for costs in cases transferred to this court 190 XXXVIII. Issue of execution 191 XXXIX. Mode of commencing action in ejectment 191 XL. Phonographic reporter 192 XLI. Process against railroad companies, how served 192 XLII. Moneys paid into registry, where deposited 198 XLIII. Printing of records 193 Rules of the District Coukt for the Southebn District OF Illinois 194 I. Moneys paid into court, where to be deposited 194 II. Public notice, when required, to be published, etc 194 in. Jurors, how selected and summoned 194, 195 IV. Jurors, how selected and summoned 195 V. Proceeds of sales in Admiralty to be paid into court, etc. 196 VI. Proceeds of sales in prize cases to be deposited, etc.... 197 VII. Process in Admiralty, when returnable 197 Vlil. Seizures in rem, what notice required 197 IX. Execution in Admiralty, notice, etc 197 X. Stipulation for costs, when required 198 XI. Captors to give notice of arrival of prize property 198 XII. Prize Commissioners to take possession of, etc 198 XIII. Duty of Prize Commissioners if no notice is given, etc. 198, 1 99 XIV. Captors to deliver papers, etc., to, etc 199 XV. Captors to make deposition, as to papers, etc 169, 300 XVI. Prize Commissioners to examme Prize Masters, etc.. . . 200 INDEX. viL Rules of the Distkict Cottrt.— Continued. ^tfV i*^,''^P*°™'»eglect, etc., Prize Commis'ners to report, etc. 301 ■g-VJ-^- Admission fees of attorneys and counselors 301 XK. Oath of attorney, before whom may be taken 201 XX. Jurors, applicants not to be selected as 201 ^I- Moneys paid into court, where to be deposited 201 XXII. Notice in cases of seizure made at Cairo, may be pub- lished where 202 XXIII. Process, how made returnable ,'..', 203 XXIV. No cause to be entered for trial at Cairo, except such as are made returnable to, or, etc 202 XXV. No grand or petit jury to be summoned to Cairo term unless ordered, etc 202 XXVI. Depositions ot witnesses in Admiralty causes, may be ^^ taken on what notice 203 XXVn. Moneys paid into court may be deposited where 203 XXVIII. Admiralty causes may be transferred to Cairo for trial, when 203 XXIX. Money paid into court may be deposited where 204 Rules m Bankbuptct Adopted by the Distkict Coubt fob THE Southern Distbict of Illinois 205 I. Moneys paid into court, where deposited 205 II. Opposition to bankrupt's discharge, how filed and heard . 205, 206 III. When homestead is claimed by bankrupt, etc., commission- ers to appraise, etc 206, 207 rV. Sales by assignee of bankrupt's estate 208, 309 V. Fees of the Marshal as Messenger 209 VI. Moneys paid into the Registry, to be deposited where 210 Vn. Publications in bankruptcy 210, 211 Vni. Moneys paid into the Registry, to be deposited, etc 311 Security for Register's fees 312 Warrant of arrest should contain what 38, 39 Warrant of arrest may embraco several charges 33 Warrant of commitment, requisites of 42 Warrant of commitment in extradition cases 58 Witnesses, commissioner may compel attendance of 47 Witnesses to be summoned for accused 26 Witnesses may be required to give recognizance 29, 31 Witnesses may beicompelled to appear and depose 10 Witnesses, fees of but four to be taxed 48 ,<■?'_«' '